Jim Walsh (Fianna Fail)

I am mindful in section 16B of the proposed new section which deals with the corrupt enrichment order, because we debated this matter at the Joint Committee on Justice, Equality, Defence and Women's Right. I advocated that the evidential barrier to criminal activity may well be too high and should probably be reviewed when one sees criminals who are known to the community and the Garda walking the streets and because it is not possible to get sufficient evidence to obtain a prosecution they appear to operate with impunity. I note that the evidential barrier is changed in this section.

Are the nine subsections in section 16B standalone subsections? Subsection (3)(a) states: "[Where] the defendant is in a position to benefit others in the exercise of his or her official functions, ... it shall be presumed, until the contrary is shown, that the defendant has engaged in corrupt conduct." That significantly shifts the burden of proof in this scenario. As a stand-alone statement it appears stark but, perhaps, it is contingent on the processing of a whole range of other issues to arrive at that conclusion. If one deals with the subsection on its own it raises questions. I was mindful of this at the Joint Committee on Justice, Equality, Defence and Women's Rights and that we should proceed on that basis when dealing with serious crime. In this instance, perhaps because of some of the activities at the tribunals, the Department and others are mindful of this as money generally can be tracked through the banks and other ways. Therefore, it should be possible to prosecute without going that far. I raise the question in order to hear the view of the Minister of State.