Barry Ward (Fine Gael) | Oireachtas source

We had this discussion on Committee Stage, with regard to Senator Higgins's amendments. I appreciate very clearly the difference between an exemption and a defence, and I understand where the Senator is coming from. In the context of amendment No. 2, which adds in the words "whether for profit or otherwise", I can see the value in that and I do not have a difficulty with that.

On the proposed insert in subsection (3), I wonder if two issues arise there. My understanding is that it expands the provision of the defining section 5 to also include an exemption in respect of section 8, which is the provision of fraudulent travel or identity documents for the purposes of assisting transit into or the presence in the State. While I am very much alive to what Senator Higgins is suggesting for putting in place a layer of protection for people who are doing things in a bona fide way and who might inadvertently provide something without ever intending to commit an offence, I do have a small concern that the kind of activity involved in section 8 is of a different calibre to the potential offences under sections 6 and 7. It is in a different category to those offences and I would be less inclined to extend the provisions of the existing subsection (2) through a subsection (3) in to cover section 8 as well.

In addition to that, I come back to what I said on Committee Stage. I am mindful of the difference between an exemption and a defence, but one of the pitfalls with prosecuting offences like this is that one can hamstring the prosecution and prevent it from ever bringing an action where it thinks it might be appropriate to bring one. However noble it might be, that is the consequence of creating an exemption. I have a concern with the further extension of that to cover certain categories whereby an unintended consequence might arise and that somebody who is clearly a person who should be prosecuted for one reason or another, or who in the opinion of the prosecutor should be prosecuted, would then be able to avail of an exemption and would be able to say "Well you cannot prosecute me for this". My concern about subsection (3) as proposed through amendment No. 3 is that there is an unintended consequence that might arise from that. We may end up giving an exemption to someone and giving him or her a free pass who might not be deserving of it.

We have discussed how important it is in the context of this legislation to enable prosecutors and also to defend humanitarian activities and those involved in humanitarian activities. At the same time, however, I come back to what I said on Committee Stage about relying on the prosecutorial discretion of the prosecutorial authority, and trusting in the fact that it does not want to prosecute people who should not be prosecuted, and to a certain extent understanding that we must, even when framing legislation, allow for the discretion of a prosecutor to make these decisions. It is impossible, in drafting legislation of this breadth, to provide for every individual case. The reality is that no matter how many of these amendments go in - I am not saying there are not some that should go in - and no matter how many changes we make, we will never have a piece of legislation that comprehensively addresses every possible scenario. We will, therefore, be necessarily reliant on the discretion of the person who has to make a decision about a prosecution. My concern about amendment No. 3 in particular is that it removes that discretion and we would try to cover everything in a legislative format, which is not possible, and this will have the potential for an unintended consequence of giving somebody a free pass who should not get it.