Ivana Bacik (Independent) | Oireachtas source

I did not make any argument earlier about section 22. The point I was making was about section 21. I entirely agree with Senator McDowell that these are entirely different provisions. They are entirely different offences and the format of section 22 is very different. However, I take issue with the fact that he is suggesting, I think, that section 22, despite concerning an offence by a person in authority, is easier on the defendant. If one reads the section carefully, one will see it is harder on the defendant. It places a heavier burden on him or her. I will outline why. Under section 21(3), all the accused needs to do is raise a reasonable doubt - there is no reversal of the legal burden - whereas in sections 22(3) and 22(5), it is clear that the burden is heavier for the defendant. Under these subsections, the defendant must prove he or she was reasonably mistaken, so there is an objective test, and the standard of proof required to prove the defendant was reasonably mistaken is that applicable to civil proceedings. Therefore, there is a heavier burden of proof, as I read it, on the defendant who is a person of authority under section 22. I again agree with Senator McDowell that it seems strange that the language in the two sections is very different. They are two separate offences. As I said, we did not deal with the current section 22 in the Seanad. Perhaps it would have been preferable to have more of an alignment in the language but I accept that they are two entirely separate offences and that is probably the reason for the difference in the language used. Clearly, section 22 concerns a very different kind of defence. It is a defence that places a heavier burden on the defendants to raise because they must prove they were reasonably mistaken on the civil standard, that is, on the balance of probabilities, and they obviously need reference to an objective standard in order to do so because the test is not that they were genuinely mistaken but that they were reasonably mistaken. I read that as being a heavier burden on the defendant.