Barry Ward (Fine Gael) | Oireachtas source

I had not looked at this from the perspective that the Senators are coming from and had not considered it in the context of the protocol. On Second Stage I indicated that there should be additional references to recklessness in sections 6(1)(b) and 7(1)(b) in terms of whether the person had a reasonable cause to believe or whether the person was reckless as to whether he or she believed that. The fewer stumbling blocks we put in the way of prosecutions in general from the point of view of achieving not only prosecutions but convictions under this Act the better. Therefore, I was in favour of the notion that the principle of recklessness would also be considered as part of these offences. I spoke to the departmental officials and I understand the Minister of State is satisfied that is not required. I have not put in an amendment and I accept that.

This amendment and amendment No. 5 seek to create two elements to the offence in terms of intention and a purpose for the offence to be committed, being the financial or material benefit. The Senators are coming at it from the perspective that they are following the protocol and they want to avoid a situation where individuals who do it for the right reason, which is obviously a subjective thing, would not fall foul of the Act. However, I would make two points on that. First, even if we are talking about, say, a family member who assisted the smuggling of a brother, sister, son or daughter or whoever it might be, across the border there is no guarantee that the material benefit aspect of that would exclude the person from a prosecution.

Second, I refer to section 9(1)(b) of the Act. I say this accepting the legitimate distinction that Senator Higgins particularly draws between a defence and an exemption. Section 9(1)(b) essentially says the defence is available where activity takes place "for the purpose of providing humanitarian assistance, otherwise than for the purpose of obtaining, directly or indirectly, a financial or material benefit". It is my position that this covers exactly what the Senator is trying to do. I know she does not agree with me. To a large extent we need to rely on the prosecutorial discretion that is operated by the DPP or whatever the prosecutorial authority is in respect of dealing with these offences.

Senator Higgins is quite right in distinguishing between an exemption and an offence but the reality is in the practice of these matters, when the DPP or whatever prosecutorial authority is making a decision about whether or not to prosecute a person or how that prosecution happens, a factor they will consider is whether or not a defence exists. There are three factors that come into consideration when a prosecution is being decided on. One is whether a conviction is likely or possible under the Act. Whether an offence exists or not is a key component in that. It strikes me as extremely unlikely that a prosecution would proceed in circumstances where somebody could avail of the defence under section 9(1)(b). Therefore, although there is a distinction between an exemption and a defence, I cannot envisage a situation where a prosecutorial authority would proceed to charge someone and prosecute someone under this Act when that defence is available to the person.

There might be a dispute about whether the defence is available to the person or not but in the same way there might a dispute about whether the exemption applies to the person or not. Therefore, while I recognise the absolute bona fides of amendments Nos. 4 and 5, and I had my own concerns about the phrasing of sections 6 and 7, in framing this Bill, we need to rely on the fact that there is a significant mechanism for prosecuting these matters that involves the good judgment of people who very much know what they are doing and therefore will take into consideration the provisions of section 9. In those circumstances I would be loath to add in another hurdle for prosecutors to get over simply to possibly safeguard people who I suggest are already safeguarded. I would rather rely on the common sense of a prosecutor to decide that a prosecution is not an appropriate path in the particular circumstances of a given set of facts.