Michael McNamara (Clare, Independent) | Oireachtas source

I am slightly confused by the Minister of State's contention that borders are irrelevant to the purpose of the Bill, if that is how I am to understand it. We are talking about the Criminal Justice (Smuggling of Persons) Bill 2021, section 6 of which states: "A person is guilty of an offence if he or she intentionally assists the entry into, transit across or presence in the State". The "State" is Ireland and its territorial waters. If somebody lets the person drown, he or she has not assisted that person anywhere. I appreciate that we want to discourage immigration and the European Union wants to discourage immigration. However, my question is this. By assisting somebody, even if it is as a humanitarian act, even if it is the smuggled person who assists somebody, are they not subject to prosecution for doing so?

This is about catching smugglers. We accept that they are bad people and that their moral compass is askew. Most of us have read stories in reliable media about people smugglers who take people out on the high seas and do not care very much what happens to them. Are we saying they cannot be prosecuted under this section but those who intervene to save the lives of smuggled persons can be prosecuted?

I appreciate that there is a problem if a smuggler says he or she was saving a life and what could he or she do but bring the person or persons ashore. This makes it difficult to prosecute such a person. I appreciate that. Notwithstanding the difficulty, however, it is far worse, in my view, if, through our criminal laws, we seek to incentivise such activity in any way. There is a big debate on the question of whether a person commits a criminal offence if he or she watches somebody drown and does not intervene to save that person. Colleagues may recall a recent case where, for the first time, somebody was prosecuted for not intervening to save a life. In fact, there is no obligation whatsoever to save somebody else's life; there is only an obligation not to imperil others or cause them any harm. If we are incentivising people not to intervene, and it seems to me that section 6 does so, then there is a problem. That is saying it is worse to smuggle somebody in than it is to save a person's life. I appreciate it is difficult to determine between the two and to prosecute in such instances, but I would rather that be the case than to enshrine in legislation a situation whereby somebody who intervenes to save life can be prosecuted, even if such persons have a defence open to them. In my view, that is morally problematic.

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