Alice-Mary Higgins (Independent) | Oireachtas source

I am sorry to keep pressing on this. As the Minister of State said, the decision has been not to prosecute. Of course, we want the DPP to be able to do its work. We try to produce good laws so that it can do that. However, the fact is that we are not being given an evidence base that it cannot secure prosecutions. Even if we decide to give the DPP the benefit of the doubt, and listen to the concern that has been expressed and try to give it a better opportunity, that is only one step. Another step is that we would then delegate the question of whether it should be prosecuting humanitarian cases and humanitarian actions.

As a legislator, who is separate from the courts, and who is trying to produce laws that will be used and interpreted by the courts and by our justice system, I am not happy, but I am willing to take this one step. However, it is a step too far to remove this potential defence whereby the courts must prove financial and material gain. That is one thing. We are also creating the burden of defence, which is taking two steps. This is taking it too far. We have not had evidence of why these prosecutions do not succeed. We were merely given an interpretation that it was believed that they would not succeed.

We are now saying that we will leave it to the DPP to interpret whether or not it would prosecute in cases where the new defences around humanitarian rescue around humanitarian action are present. In my view, this would abdicate too many of our responsibilities. If there were an exemption, it would send a clear signal in terms of prosecution. It may be that the DPP or others may say that they do not believe the exemption applies in this case.They can still then prosecute a case because they have deemed that the exemption does not apply. In stating that the defence may come later, that is really the same argument as used previously, in that there is a belief that it will not be possible to win a case against a person. It is a different relationship. There is still an adversarial relationship. It is still being envisaged that the person will be prosecuted and an estimation being made of whether it would be possible to win the case or to use this defence. The person concerned would still be placed in a position where he or she is a defendant and a potential offender. It is a different relationship to one where the DPP's office states that it does not believe that the law has been breached and chooses not to prosecute because there is an exemption.

An exemption is an empowering tool. It is a clearer one than a defence relationship. Many things are defences and must be argued out in courtrooms. We see that happening all the time. This is a step too far. The discretionary space is not an appropriate one to allow us to abdicate our responsibilities regarding the core intention here. The reason that there was an option for exemption in the directive is because there was a recognised jeopardy faced in cases of humanitarian action. It was recognised as a danger and that is why an exemption was presented as an option. I do not believe that hoping for discretion from the DPP is a sufficient response to that jeopardy.