James Browne (Wexford, Fianna Fail) | Oireachtas source

I thank the Senators for their proposals. Amendments Nos. 7 to 9, inclusive, and 11 are similar in that they would effectively reframe the humanitarian assistance defence as being elements of the offence and accordingly it would be for the prosecution to prove the contrary.

Amendment No. 10 provides for a bar to prosecution under similar circumstances.

The question of where the burden of proof should lie was discussed at length on Committee Stage and it is useful to recap now. A significant motivation for this Bill was to increase the effectiveness of criminal sanctions in this area. The very clear advice we received from the Garda and from prosecutors was that the existing framing in the 2000 Act of a requirement for material gain was a major practical block to successfully prosecuting organised criminal smugglers. The reason for that, as I think is widely accepted, is that the payment will not typically take place in the state and the smuggled persons may not co-operate with authorities for fear of the consequences for them and their families at home.

The starting point has to be that the existing legislation falls considerably short of providing an effective deterrent to people smugglers. We have sought to strike an appropriate balance that reflects our intention, which is to focus on for-profit smuggling while also not placing an impossible burden on prosecutors. I wish to make clear that allowing smugglers to operate without risk of prosecution does not further any humanitarian motive. It places more and more people in the hands of criminal gangs who, at the very least, will charge exorbitant fees, will likely place the people smuggled in danger and may exploit them in the most shocking of ways.

The State is not at odds with those providing genuine humanitarian assistance to migrants. We simply have to ensure that well-intentioned measures do not unintentionally undermine the criminal sanctions we are putting in place. Under the EU instruments for assisting entry-in-transit, we cannot incorporate a blanket element of financial material gain either as an element of the offence or as a defence. We can make provision for humanitarian assistance, as we have done. We have done so as broadly as possible. In providing for a broad and generally applicable humanitarian assistance defence, we have gone well beyond what most other member states have done. This discretion has been taken up by just seven other states and in many cases is far more narrowly drawn.

Our terms with regard to where the burden of proof lies rest on the question of who is best placed to meet it. One can take entry as an example. The prosecution must prove that the accused intentionally assisted someone to enter the State in breach of immigration law and that the accused knew or had reasonable cause to believe that the entry was a breach. That is a substantial burden. It is showing that a person intentionally facilitated unlawful entry. If that is proven and if the accused is then claiming that they were acting for humanitarian motives, it is reasonable to require them to provide positive and convincing evidence.

The Senators have raised how significant a prosecution would be for a humanitarian actor. While accepting that being prosecuted is, of course, very serious for anyone, I do not agree that the framing of a humanitarian assistance provision as a defence gives rise to a real risk of unjustified or politicised prosecution. The Director of Public Prosecutions, DPP, is independent in its functions and it establishes clear and well-understood guidelines on decisions to prosecute. Critically, the guidelines state that a "prosecutor should not lay a charge where there is no reasonable prospect of securing a conviction before a reasonable jury." There is simply nothing to suggest that the DPP charges people to make political points where there is no prospect of a conviction.

I do not think the bar to prosecution proposed in amendment No. 10 is realistic. We would be asking the DPP to make a determination of fact, which would properly be for a court to do. Assuming that the DPP believes there is some prospect of a conviction, then the language would not prevent that. Even if we were to accept the Senators' hypothetical politically motivated prosecutor, these provisions would not prevent that. Such a prosecutor could simply state that they were satisfied that the evidence was there. Given the breadth of the defence as it is drafted, I do not believe there is a real risk of an unjustified prosecution and I do not accept that bona fide organisations now find themselves in jeopardy. Similar language has been used in the Illegal Immigrants (Trafficking) Act 2000 and I do not believe that there has been politically motivated prosecutions in those cases. I simply do not believe that any real risk exists in these circumstances but we need to secure prosecutions against those who are smuggling. In the circumstances, I cannot accept the amendment.