James Browne (Wexford, Fianna Fail) | Oireachtas source

I thank the Senators for their suggested change in this regard but, unfortunately, I cannot accept the amendment. The elements of defence have been considered carefully with the Office of the Parliamentary Counsel and the Office of the Attorney General. Removing the phrase, "having reasonable cause to believe" would significantly weaken the offence and would inevitably create issues in prosecuting such an offence. It would, effectively, mean the prosecution having to establish that the person knows. In cases of criminal prosecution, it would be necessary to prove that proposition beyond a reasonable doubt. It would lead to a situation where it would almost be impossible to obtain a prosecution in circumstances where the defence raised any issue around a defendant’s knowledge of the law.

Where smuggling has taken place under circumstances where it is clear, for example, that the entry into the State is unlawful, it cannot be a defence for a people to say that they did not know the immigration status of a person with absolute certainty.The humanitarian assistance defence would also apply in many of the circumstances the Senator has outlined. In the circumstances, the formulation is reasonable and is balanced.