James Browne (Wexford, Fianna Fail) | Oireachtas source

I thank the Senator and I understand where she is coming from but making it almost impossible to prosecute smugglers is not going to help those people in the sea who are dying or at risk of dying. Of course, we want to protect the humanitarian organisations and the individuals who rescue people and this is why we have sought to strike a balance here. Effectively, nullifying the legislation in its ability to be able to prosecute smugglers is not going to help that situation. We feel that there is a balance in this Bill. Human rights organisations or individuals who act out of humanitarian assistance will have that defence. The prosecutors, in deciding whether to prosecute, will under their guidelines and principles take into consideration whether there is a defence available, as they do in all cases. Even with the Senators' amendments, the DPP would still have to make a judgment call on whether to prosecute. If those amendments are made to the Bill, there is a risk that they would tie the hands of the DPP, where that office would then be mandated to bring a prosecution against someone who is perhaps acting with humanitarian motivation but who does not fall within a very particular definition. That is the risk there. This is before it even ends up in court. If a person inadvertently ended up in court, they would also have this defence available to them. We have a robust system in this country between the DPP, our courts system, our judges and our juries, in whom I have a lot of faith.

I believe the balance has been found in this legislation to protect humanitarian assistance organisations and people acting with humanitarian assistance motives, while ensuring we can prosecute those who smuggle. All the research from the EU Commission shows that when one takes the alternative approach it is almost impossible to secure those prosecutions. Certainly, if we were to reduce this section down to mandating a proof that a person knows that the other person was acting in such a way, which must be proved beyond a reasonable doubt, it would become an issue. I have defended in criminal cases for 12 years and I know how difficult it is to get prosecutions. If we have to fix a knowledge clause solely, I believe that would become almost impossible to get a prosecution that regard.