Alice-Mary Higgins (Independent) | Oireachtas source

I have a few points to make. As a legislator, I do not and cannot rely on prosecutorial power. I believe in the separation of powers. Therefore, we need to take our powers seriously and I would not abdicate our responsibilities to ensure the best possible quality of legislation be deferred, in the hope of prosecutorial discretion. I am also aware that circumstances change. We would not have believed five or ten years ago some of the practices that we have seen happening across Europe. I do not believe we would have seen some of the erosions of the basic European Convention on Human Rights, ECHR. We need to legislate for good law and then hope for good interpretation. We need to legislate to the highest standard.

On prosecutorial discretion, it might be useful to have a sense as to what extent prosecutorial discretion is being used to not prosecute cases? How many cases have been prosecuted, but have been unsuccessful because of the failure to prove financial or material benefit? In my understanding, we have not had a huge number of prosecutions. We, therefore, have not tested the premise that proving financial and material benefit will be so difficult that a conviction cannot be achieved. That has not been robustly and lengthily tested. We have small number cases in that respect. Again, that could be addressed by looking at what we consider as adequate evidence of financial or material benefits. There are many ways to approach that, if prosecutors are genuinely encountering an obstacle. On one side, we are going from the impression that it would be hard to prove this but, on the other side, we are creating a danger. As I said, the exemption is the middle ground here. It is not that Ireland has something quite good. Moving away from the requirement to prove financial or material benefit is a big thing. This would be to move to the point whereby humanitarian organisations and humanitarian individuals will end up in the dock. We know what it is to be put into the dock and to be in the position of defending oneself. We know there is a litany of people in the defence position in the State. They may become extremely vulnerable, face an inequality of arms, be disempowered and need free legal aid. In some cases, they may not receive free legal aid. We create a set of stresses and pressures on these people. This is not a simple position to be in. An exemption can be shown to ensure that we will not have needless wrongful prosecutions. A defence only comes into place after prosecution.

As Senator Ward put it, we should not prosecute cases where there is clearly a humanitarian role or humanitarian purpose, or if somebody is working for an NGO that has a clear human rights agenda and record. That might be manifest to a Director of Public Prosecutions. However, as legislators, we should not merely hope that the Director of Public Prosecutions would do the right thing in those situations. We should send a signal in law that such circumstances are exempt.

I would suggest we keep the defence. There will be cases whereby that exemption may not be applied when it should have been. There is more danger of the exemption not being applied when it should be applied, than it being applied when it should not have been. In those circumstances, the defence may come in.

What we do not want is that every time there is an action of humanitarian search and rescue, the case will go the Office of the Director of Public Prosecutions for an invisible pre-trial in which we are not included, where it will decide whether or not to prosecute. From there, the case would have to be argued out in the defence dock. If we know that we should not be prosecuting these cases, let us make them exempt from prosecution.