Wednesday, 29 September 2004
Dáil Eireann Debate
Mr. J. O’Keeffe: Since this Fianna Fáil-Progressive Democrats Government came to power seven years ago, almost 10,000 of our people have been put in prison for non-payment of fines or debt. It is a startling figure. Until I began to research this issue, I had no idea that such an enormous number of people went to prison for non-payment of fines or debt.
Prison should be a last resort. In general, it should be reserved for hardened criminals who should serve out their sentences without access to a revolving door mechanism or to release because of over crowding, which is accentuated by putting people in prison for non-payment of debt or fines.
It is horrendously unfair that up to 50 people per day are in jail for non-payment of fines, particularly given that poor people make up virtually the entire number. Most of the 40 to 50 people who are in jail this evening for non-payment of fines or debt come from the poorer and more vulnerable sections of our population.
Apart from this travesty of justice, the current system is hugely inefficient and costs tens of millions of euro to run annually. Six years ago Fine Gael first proposed a Bill that would have had a major impact on the Exchequer, prison places and people on whom the courts impose fines. The then Minister for Justice, Equality and Law Reform, Deputy O’Donoghue, rejected the Fine Gael proposal claiming that the Government’s own version of the proposal was in the final stage of preparation. No legislation relating to attachment of earnings or enforcement of court orders has been produced and we are still waiting. There is no sign of a Government Bill and, according to the legislative programme issued yesterday, such a Bill will not be published in the short term.
Fine Gael cannot wait a few years to get into Government to make the change because it wants this job done now. We are introducing our Bill because if we wait a few years, another 2,000 people will have been jailed under a system sanctioned by the present Administration for the non-payment of fines and debts. I ask the Government to stop playing party politics and to support the Bill. There is no social, economic, logical or moral case for opposing it.
I will illustrate the moral aspect of this issue with one example. A few months ago a mother of seven who did not have a television licence was fined €150. She did not have the money and she was imprisoned. She is one example of the type of person who is imprisoned under the iniquitous system operated by the Government. It is unfair and it is wrong. I accept entirely that in many instances the stay in prison is short term. Fortunately, because media attention focused on this case, the unfortunate lady was released quickly but, at the same time, it happened and without the media focus her case would have passed unnoticed. She is one of many who are forced under this system to go to jail because they cannot afford to pay fines. In addition, she could not pay the €150 fine at €10 or €5 a week because instalments are not provided for under the system. Why is Ireland one of the few countries in the western world that still operates such a system? I am reminded of the debtor’s prison of medieval times. The inertia of the Government parties, which have been in office for seven years, is highlighted by their failure to tackle this problem.
Fine Gael seeks to create a win-win scenario for both the State and the individuals involved. We want to make it easier for people to discharge their debts instead of sending them to jail. If they pay the fines in instalments the Exchequer will benefit from the money received whereas under the current system they are hauled into prison and the fines are not paid. It is more expensive to keep someone in prison than to keep them in the Shelbourne Hotel. It costs €250 per day on average to keep somebody in prison. What is the advantage to the Exchequer, for example, of putting the woman to whom I referred in prison? It is a waste of time and money.
In addition, costs are incurred by the Prison Service as it deals with people who receive unnecessary custodial sentences. For example, it must pay for induction procedures. The Garda also incurs expense. I asked a chief superintendent in rural Ireland recently what happens when a warrant must be executed for non-payment of a fine. He said he must dispatch two officers from his force — a force that is over-stretched because the Government will not provide extra officers who are needed — to arrest the person and they must hire a car and transport the person to Mountjoy Prison. The two officers who should be engaged in crime prevention and detection must transport an unfortunate debtor to Mountjoy Prison at enormous expense. That is a significant waste of Garda resources.
The Bill is a serious attempt to eliminate an unjust system, which results in people being sent to jail for failure to pay a fine or debt. Meanwhile, other criminals are granted early release in some instances because of a shortage of prison places. The cost of keeping defaulters in prison is approximately €4 million a year. More than 1,000 are imprisoned annually for failure to pay fines or debts. However, when the debtor is freed, the debt remains unpaid. That is a lose-lose scenario on every front.
According to the Comptroller and Auditor General’s report on the collection of fines a number of years ago, a significant sum — up to €10 million a year — was expended in the area of uncollected and unpaid fines. The collection rate for fines was extremely low. He found from a sample in Dublin that almost half the fines were not recovered. He failed to see a reason the same did not apply throughout the State.
The Bill provides a legislative basis to provide those who have difficulty paying fines with the opportunity to pay by instalments and to ensure those who refuse to pay fines or debts will over time have the amount deducted from their wages or social welfare payments. An attachment order will be sent to their employers to deduct the amount decided by the court per week to pay the fine. The Exchequer will gain and there will be a benefit in that Garda and Prison Service time and resources will not have to be wasted in dealing with the debtor.
This issue also involves a human right. I do not wish to weep for the poor but it is utterly unjust that a poor person should have to go to jail because he or she cannot pay a fine or debt. Surely, in this day and age, that is wrong. Why do we not change the system? It is because the Government will not produce the necessary legislation to do so.
The Bill serves a number of purposes and provides an alternative to jail where a person cannot afford to pay a fine. I am not saying such debts should be wiped out but the Bill provides for a system whereby fines can be easily collected. They can either be paid by instalment or by an attachment of earnings or welfare. I understand the sensitivity concerning welfare payments and a number of people have pointed out their concerns that those surviving on social welfare should not be subject to extra pressure. God knows the amounts involved are not enormous and there is much that is free, but it is better for people on social welfare to have the system I am suggesting than to go to jail. I do not believe someone should go to jail because they are poor. They certainly should not go to jail because the sole income in a household is from social welfare.
The Bill provides for a protected welfare rate below which a person will not be expected to make any instalments. I am providing that the Minister for Social and Family Affairs — we have a new Minister, Deputy Brennan — will make an order as to what the protected welfare rate will be. In that way, the courts will not be able to demand payment of an instalment which would reduce the income of a welfare recipient below that rate.
My colleagues will deal with the situation in more detail but I wish to run briefly through the Bill’s provisions. Section 1 sets out the Short Title of the Bill and section 2 defines its terms. Section 3 states the general application of the Act as being that it applies to a person who has defaulted on payment of money, which arises from a court order. Section 4 is one of the principal sections, which allows the court to grant an attachment of earnings order, directing the debtor’s employer to periodically deduct specified sums from the employee’s wage at source. In deciding on the amount to be deducted from the employee’s wages under the Bill the court must ensure the employee’s wages will not be reduced below an amount which he or she needs to maintain themselves or their family. There is a protection built in there concerning employment.
Section 5 is a technical provision requiring the official to serve the attachment of earnings order on the employer concerned. The employer must then comply with the order within ten days. Where deductions are made from the employee’s wage, the employer must provide him or her with a statement of the deduction made.
Section 6 provides that when determining an application for an attachment of earnings order, a court may ask the debtor to provide a statement of his or her earnings. Section 7 requires that where an attachment of earnings order has been made and the debtor moves to another job, he or she must notify the court of that fact. Also, where an employer becomes aware that an attachment of earnings order has been made, he or she must notify the court that they are the current employer of the debtor.
Section 8 enables an application to be made to the court where there is doubt as to whether payments being received by the debtor actually constitute earnings for the purpose of the order. The debtor, the creditor or the employer may make such an application to the court.
Section 9 clarifies the employment status of persons who are civil or public servants for the purposes of identifying an employer in the event that an order is to be made. Section 10 empowers the court to discharge or vary an attachment of earnings order. Section 11 provides that an attachment of earnings order will become ineffective if it is discharged by the court. Once an order ceases to be effective, the court must notify the employer.
Section 12 states that where an attachment of earnings order has been made, proceedings to imprison a defaulter for failure to pay family law maintenance will lapse and any warrant or order issued under that section will no longer have effect. On the other hand, where an attachment of earnings order has been made and an order to imprison a defaulter for failure to pay such maintenance is made, the attachment of earnings order will no longer have effect.
Section 14 is quite important because it gives the Minister for Social and Family Affairs the power to make regulations to put in place a system under which a court could make an attachment of welfare order to allow the Minister to deduct money owed by a person who is in receipt of social welfare payments. This section specifically provides that the Minister will set a limit beyond which the person’s social welfare payments must not be reduced. That limit is referred to as a protected welfare rate. I envisage that, under the Bill, it will be subject to annual review to ensure it keeps pace with inflationary and other influences.
Effectively, section 4 dealing with attachment of earnings, and section 12 dealing with attachment of welfare orders, will ensure that we will see an end to people being sent to prison for failing to pay a fine or a debt.
Section 15 amends the Criminal Justice (Community Services Orders) Act. Section 16 allows a court to extend the time within which a payment must be made. Section 17 allows a court to direct a debtor to pay the fine by instalment. It is ludicrous that we do not have such a system in this country and that one cannot pay a fine by instalment. I know of no other country in the world that has continued with that policy, yet the Government sits on its hands in allowing that to continue.
Section 18 provides that where a person has been given time to pay a debt and has failed to do so, a court may order that such a person be placed under the supervision of a probation and welfare officer. I hope that provision could be used with a view to advising the person how best to manage the payment of the fine.
As the House can see from the sections I have outlined, a fair bit of thought has gone into how the system can operate. It is not a question of reinventing the wheel; similar situations have existed in the United Kingdom for quite a long time. As far as I know, similar systems exist in virtually every other country in the western world.
It is time to stand back and look at what we are talking about. We have had much fuss today about some people losing their jobs and others getting a step up. I am sorry for those who have lost their jobs, and the best of luck to those who got the step up. One must compare that situation, however, with the 50 people who are in our prisons tonight because they cannot pay fines.
Mr. J. O’Keeffe: That is the warrant he is getting but I am thinking of the 50 people in prison tonight and the warrants that put them there because they are poor. The essential message is that because they are poor they cannot pay what in many instances are relatively small fines. I want to make it quite clear that I am not a bleeding heart liberal. If somebody commits a serious crime they should be put in prison and kept there. However, prison places should be kept for hardened criminals. For God’s sake do not put people into prison merely because they are poor. That is what is happening day in and day out under this Government. If this Bill is not accepted, it will continue to be the case during the term of this Government. We were promised change six years ago in the programme for Government, but as with many other commitments and promises nothing has happened. Let us call a halt, draw the line now and make the change. I do not say this to the Government because this is a Fine Gael Bill, but because this legislation deals with the problem. There may be details which need to be changed or amended, but that is the purpose of Committee Stage. I urge the Government strongly to accept this Bill, co-operate on Committee Stage to make it law and change the iniquitous, unfair, stupid and costly system in which between 40 and 50 people are put into prison because they cannot pay fines.
Mr. O’Dowd: While the Minister may be gone for his warrant, people are going to prison. We must record the facts for this so-called caring Government as they are not as its members have explained them. Perhaps the Minister of State recognises the document I have with me. It is An Agreed Programme for Government, agreed between Fianna Fáil and the Progressive Democrats, page 70 of which refers to building a caring society. On page 59, the following commitment is outlined: “The enforcement of fines Bill which will provide new procedures for the enforcement of fines focusing on alternatives to imprisonment for non-payment is currently under consideration.” The date of that caring commitment was June 2003. The court of public opinion will pass judgment at the next election.
Listening to what the Taoiseach has been saying in the press, it is clear that the so-called caring Government could not care less. As Deputy Jim O’Keeffe pointed out, the Government has done nothing to address real inequality in our society. People who are unable to pay fines for many different reasons are going to prison, which wastes millions of euro while the Minister clearly could not care less. Fine Gael is facing the court of public opinion tonight with our proposal to say that we care. We challenge the Government with its born-again commitment to caring to tell us what it intends to do. We want to hear and see the response. We want the Government to take on board the principles of this Bill, if not every comma. People want the Government to take action and they want change, which is something they are not getting. We are prepared to provide change and we ask the Government to take on board our points tonight.
I have had two clients in the recent past who went to prison for non-payment of fines. When I asked the first person who had failed to pay her television licence why she was going to prison instead of making arrangements to obtain the money from the credit union, she said simply that she would not pay. While I pointed out that she had a young family, she insisted on going to prison rather than pay the fine. There are people like that who do not listen to anybody and decide that going to prison is the short way out and that they cannot afford to pay. I do not support such people and I think the lady in question should not have gone to prison because her children needed her at home. There should be a mechanism in our legal system to intervene to prevent that from happening.
The second case was also very difficult. A person who had committed a driving offence by driving without road tax opted to go to prison rather than pay the substantial sum involved. The man had a mental health problem and would not listen to me, his parents, gardaí or anyone else who tried to advise him. The difficulty was that he had to pay the whole fine and could not settle over a period of time. Deputy Jim O’Keeffe made a critical point about such scenarios. The man in question went to prison despite the fact that nobody wanted him to go. The warrant for his arrest was outstanding for two months before it was executed. The enforcing garda and other members of the community in Drogheda wanted to help him, but he insisted on going to prison. He came to me recently and I asked him what it was like. He told me that he had been in the probation area which is not as strict as full prison and that everyone said he should not have been there. That is the shame and disgrace in our society and, as Deputy Jim O’Keeffe pointed out, that is what we must change. Clearly, the Government has not yet realised that.
I turn next to the social issue of families which have split up. I use the term “families” in the broadest possible sense to refer to couples who have split up who have children. In many cases, a court order is made that the person who is working, most often the male, must provide money to support his family. Such arrangements are not made in all cases. Often people come to our constituency offices to say they cannot afford to feed their children or buy school uniforms. Women tell us that they are supposed to receive money from their husbands by order of the District Court, but nothing happens. They do not get the money and the children are not properly looked after. These are the circumstances Deputy Jim O’Keeffe is addressing in this Bill. If an order is made against a person, the money should come out of his or her wages in the way outlined.
From my constituency work, I am aware of a case in which a man went to prison rather than support his wife and children from his fund. While the cases I am raising are exceptional, they happen. There is no social justice in a man choosing to go to prison rather than look after his family. The children of the man in question lost out as a result. There are many instances in our society of fathers refusing to take on the obligation to support the children they have fathered. The mother who has serious need of the money does not receive it and the man in question gets off scot free. The mother should be able to apply to the court for an order to have the money deducted from the man’s income. Such a mechanism would be fair and just, but we are missing the opportunity to implement it.
The Government does not care about this issue and continues to refuse to act. This Bill is before the House to force the Government to think more seriously about these matters and to do more about them. There are other cases to consider. A Member of this House went to prison for non-payment of bin charges, which was a joke and a waste of time. It is a waste for hundreds of people to go to prison for refusing to pay a legitimate charge. Is there not a case for legally imposing payment where a person refuses to pay a reasonable local authority charge? If a person refuses to pay a fair and equitable charge which has been agreed by the Houses of the Oireachtas, it is a waste to send him or her to prison. We should implement attachment of earnings provisions whereby charges due are properly paid over a period of time. What goes on is a disgrace.
I draw the attention of the House to the profile of prisoners who go to prison in these circumstances. As Deputy Jim O’Keeffe has said, most of them are very poor and unable to handle money properly. On later Stages, I would like to see consideration of a mechanism of referral to the agencies which offer help with finances, particularly the Money Advice and Budgeting Service, which is absolutely first class at dealing with people who get into financial difficulties. An assessment of income and a person’s ability to deal with the issues in question should be made and reported to the court before it makes a decision. The problem with the system is that such an assessment is not done currently. Too many people are being sent to prison, some of whom want to go there to avoid paying their fines, which is a waste of taxpayers’ money. These circumstances must end.
Deputy Jim O’Keeffe addressed the question of people on income support and social welfare income against whom charges are made. I support the view which has been expressed that one should be very cautious in such circumstances and carry out a proper income assessment. In the United Kingdom, the maximum that can be deducted on a weekly basis from someone on income support is £2.65. We should set a limit beyond which one could not go. The maximum we should deduct from an unemployed single person in receipt of approximately €138 is €1 or €2. However, we should ensure sensitivity in such cases. With a proper co-ordinated cohesive system, with a caring Government and a Minister who acts as well as talks, we will get the action required. The current lack of action makes a mockery of our commitment to a caring society. It is time the Government went about looking after its citizens.
Mr. Crawford: I welcome the opportunity to support this important Bill. As Deputy Jim O’Keeffe stated already no action, other than the preparation of a proposal for Government which was supposed to solve everything, was taken on a similar Bill before the House six years ago. The current Minister for Justice, Equality and Law Reform, who unfortunately is not here tonight, is an active Minister who informs us of all he intends to do and how quickly he proposes to do it. He has promised to provide 2,000 extra gardaí. Although he has not done so this term he has once again promised to deliver them within the next two and a half years. He also told us today he will provide drug-free prisons by early next year. That is fantastic news. We are all aware that the drug problem in prisons is extremely serious. We on this side of the House will keep the Minister to that promise.
Is it right that people on low income who are unable to pay fines or debts are detained in prison alongside druggies, as referred to by the Minister in today’s The Irish Times? Is that the right place for a person who cannot afford to pay a fine? As Deputy O’Keeffe said, there are up to 50 people in prison tonight simply because the Oireachtas has failed to provide a system which allows them to pay fines or debts from their income or social welfare payments. Such people are detained in prison at a cost to the State of approximately €220 to €240 per night, in many cases less than the amount owed in fines or debts.
The last report on the matter stated the amount outstanding in unpaid fines was €5 million, possibly €10 million today. That money could be of benefit to disabled and other people who are currently unable to obtain care. Some €3.5 million to €4 million was spent on keeping people in prison last year. The State lost through unpaid fines and unnecessary expenditure. Many gardaí are deployed to collect fines. We all know there is a scarcity of gardaí in many areas. Gardaí are involved in transporting to Mountjoy Prison those who cannot pay fines be they from Donegal, Cork or Monaghan. Often such people are taken to prison by taxi.
I wish to tell the House of an incident which took place in my constituency. A young man who got himself into many difficulties was unable to deal with life and unable to pay fines against him of approximately €2,000. He could not face the situation and decided it was best to leave the country. However, he could not enjoy life and decided to return and deal with the problem. His family organised a good job for him and a member of his family organised a meeting for him with the credit union which agreed to put his case before the board the following Friday night. However, the gardaí arrived at 7 a.m. on Friday and took him to Mountjoy Prison, where there was no place available for him. That person had agreed to pay his fines by way of credit union loan over a number of years. While the two gardaí involved returned to work by taxi the prison authorities had to provide the young man with the money to make his way home. He thumbed his way home and spent the money in the pub while telling of his great ordeal. That sends out a very poor message and was not helpful to that young man. Had he had to pay his fines by way of attachment of earnings he would have been reminded on a weekly basis of his misdemeanours. I could tell many similar stories of people who believing they could take the same route ended up in other prisons.
Much revenue has been lost through uncollected fines and detaining people in prisons. Can we not once and for all deal with this issue? The Bill allows for instalment orders, attachment of earning orders and attachment of welfare orders. The issue of uncollected fines can be dealt with in a simple way. Perhaps the Minister of State, Deputy Parlon, can ensure his colleague, the Minister, does not, for the sake of rhetoric, rubbish this Bill. It is a genuine effort to introduce something positive, realistic and workable. In that context, it should be supported.
I wish to refer to two important sections of the Bill. Section 17 allows for the introduction of instalment orders, something which I have sought several times in this House. That provision would allow people to pay their debts by instalments. Many people have begged the Garda to allow them to pay their fine by instalment but the Garda have had to refuse. That is wrong. Giving the person an opportunity to pay his or her debts would be a major step forward. As Deputy O’Dowd said, sometimes people over-react and insist on going to prison rather than pay a fine.
Section 14 relates to the attachment to social welfare payments. That is a delicate issue. We are all aware of the level of social welfare payments in 1997 and of what they are today as a result of increases. However, the cost of living has also increased. For instance, a house which cost £70,000 in 1997 costs €300,000 today, an indication of how little use money is nowadays. However, when social welfare recipients are overpaid, be it their fault or that of the Department, an attachment is made to their payment. The precedent of attachment orders to social welfare payments already exists. It is much better to have a person pay unpaid fines or bills by stopping €2 or €5 from his or her payment. It reminds them on a weekly basis that they have done something wrong without costing the State a ransom and without putting these people in jail where they do not belong. I commend the Bill to the House.
In 1998, when Deputy Jim Higgins introduced his Enforcement of Court Orders Bill, the Minister for Justice, Equality and Law Reform, Deputy John O’Donoghue, on behalf of the Government, indicated that the approach in the proposed Bill could undermine the existing system for payment of fines, prove vastly and disproportionately expensive to administer, place impossible administrative burdens on both the courts and the Garda and would not make any significant improvement in relation to pressure on prison accommodation. The 2004 Bill is almost identical to the 1998 Bill.
In the meantime, the Government has been extremely active in related areas and considerable work has been done or is in hand. There continues to be good and sound reasons essentially the same Private Member’s Bill is not acceptable and will be opposed by the Government.
The Government’s legislative programme, published yesterday, proposes two Bills to deal with fines. The first, a fines Bill, while providing primarily for updating and indexation of fines, will also provide for a mechanism to strengthen the means assessment procedure used by the courts in assessing a person’s ability to pay the fine. It will also provide for payment of fines by instalment. The second Bill is an enforcement of fines Bill and is intended to end imprisonment where practicable for inability to pay fines and to provide for new ways of enforcing fines. While examination of the later proposal has not yet concluded, the Minister is of the view that care must be taken to ensure that such proposals are measured and tailored to meet specific circumstances. Otherwise, as with the Deputy’s Bill, the potential exists to undermine the entire fines system.
The Minister for Justice, Equality and Law Reform intends to bring forward proposals to provide for payment of court imposed fines by instalment and to provide for a stronger means assessment mechanism. While he is considering the introduction of alternative means of enforcing fines, he will do so in the context of the impact of other developments, including the introduction of a facility to pay fines by instalment.
With regard to the issue of civil debt, the Minister has consistently maintained that it is not the primary function of either his Department or the Courts Service certainly in terms of personnel and resources, to take on the significant role of operating a debt management service in situations following the granting of enforcement orders against persons who find themselves, for whatever reason, in arrears to banks, finance houses, public utilities etc.
The Minister for Justice, Equality and Law Reform has been involved in an ongoing review of the fines system. As part of that review, his Department commissioned the Nexus Research Co-operative report, entitled Imprisonment for Fine Default and Civil Debt, which was published in 2002. The report examined some of the key issues, such as why people ended up in prison in regard to non-payment of fines or debts. The Minister directed that the report be considered by his officials with a view to drawing up whatever proposals may be necessary for inclusion in the proposed enforcement of fines Bill.
It should be noted that the Nexus report dealt in effect only with the issue of fine default. It could not, therefore, provide the basis for developing new policy approaches to the separate and more complicated issue of civil debt or over-indebtedness.
The report was based on interviews and the personal circumstances, opinions and experiences of a sample of 24 imprisoned persons who responded to the Nexus request to be interviewed, of whom only two persons, one on principle and the other due to confusion, were imprisoned for refusing to pay a civil debt. It found that almost half of the offenders committed to prisons for fine and civil debt default were for periods of less than ten days. It is noteworthy that 29% of these committals were discharged for various reasons on the same day they were committed. About one third of those had paid or part paid the fine in question. The research also revealed that the vast majority of the committals in respect of fine defaults related to offences under the Road Traffic Act.
The Nexus report indicated that persons imprisoned seemed to have limited knowledge of the court process or of the level of their indebtedness. They did not, for the most part, have the capacity to pay the fines imposed, which had to be paid in full. Most of the persons interviewed were not in permanent employment. Only a very small number do not pay fines or debts on a point of principle. The idea of a payment process by instalments as an alternative to prison was broadly attractive, but may be of little real use in light of the financial circumstances involved. Similarly, in the absence of an employer for the majority of the persons surveyed, an attachment of earnings arrangement would not be a real solution. It was considered that an attachment of social welfare benefits would be problematic for people living on or close to the poverty line. The report has helped to inform policy in the context of development of proposals in the Minister’s enforcement of fines Bill.
Deputy Jim O’Keeffe, in proposing this Bill, is seeking to suggest that somehow criminals are being released from prison, almost willy nilly, to accommodate large numbers of persons who are in fine or civil debt default. This is a total exaggeration with no basis in reality. Let us deal first of all with the numbers of persons on which a court has imposed a prison sentence for fine or civil debt default.
Statistics on the number of people in custody for non-payment of fines and debts tend to be used in a way that distorts reality when the implications for prison accommodation are being considered. The latest information provided to me by the Prison Service is that, as of today, out of a total prison population of 3,100, there are 29 persons in custody serving sentences for failure to pay a fine, and eight persons in custody in respect of failure to discharge a debt. This amounts to approximately 1.2% of the prison population, a proportion that has remained roughly constant over the years.
The explanation for this is straightforward — the time spent by debt or fine defaulters in custody is generally short and the sentences in these cases are relatively short. In addition, some defaulters make payment either on committal or shortly afterwards. Even if the Deputy’s Bill had the effect that no fine or debt defaulter took up prison places in future — and it would be most unlikely to have that effect — the result in terms of prison places freed up would be so minor as to be of little significance. Also, many defaulters are held in open prisons and there is no guarantee that there would be other prisoners in closed institutions suitable for transfer to open centres to take up these places should they become available.
While it is recognised that fine and debt defaulters represent only a tiny fraction of our prison population at any given time, the number of committals places an administrative burden on our prison system. Nevertheless, to seek to displace that burden to the Courts Service and the Garda, as the Bill appears to do, is no real solution. While the Minister accepts the general proposition that imprisonment should be a sanction of last resort, it is also clear that it is unsustainable to suggest that this proposed Bill could have substantial positive implications in terms of prison accommodation.
Deputy Jim O’Keeffe also raised the issue of costs associated with prison. No one can deny that these costs are quite large. The average cost of keeping an offender in custody in 2003 was €87,950, or €1,691 per week. This cost is calculated by averaging out the current running costs of the prisons and places of detention against the average number of offenders in those institutions. It should be borne in mind that these costs include certain items that are fixed, such as utilities and staff salaries, no matter how many offenders are in custody.
The Minister regards the level of costs arising as unsustainable and is actively pursuing the application of more efficient staffing arrangements, particularly those that involve reducing overtime. The Irish Prison Service proposal to reduce overtime substantially holds out the prospect of substantial savings annually and, consequently, the costs of imprisonment would be likewise substantially reduced.
The 1990s, in a prison context, were blighted by a persistent high level of overcrowding in our committal institutions that resulted in granting release in an unstructured manner to many offenders at an early stage in their sentences. This situation was in serious danger of undermining the credibility of our whole system of criminal justice as the prison capacity available was totally insufficient to accommodate those sent there from the courts. As a result, almost 20% of prisoners under sentence were out on temporary release. The construction of a large number of prison spaces, particularly with the opening of Cloverhill Prison and the Midlands Prison in recent years has created a situation whereby the Prison Service is now in a much better position to accommodate prisoners for the duration of their sentences.
However, with most of our prisons operating at or near full capacity, some accommodation difficulties occur from time to time. It should also be noted that this issue is not simply one of matching the global prisoner population to a global figure for beds or cells. A number of factors have to be taken into account including the prisoner’s age, gender, the nature of the offence, location, security and whether he or she is on remand or sentenced.
The Minister obtained Government approval in principle to replace the Mountjoy Prison complex with a modern prison facility. He also plans to replace Cork Prison with a new facility on Spike Island to incorporate the existing Fort Mitchel detention centre on the island. The development of the new complexes will present the Irish Prison Service with an excellent opportunity to create facilities which, in terms of custody, care and rehabilitation, will be a considerable advance on the penal and rehabilitation structures in the mainly Victorian facilities of Mountjoy and Cork Prisons, as well as addressing overcrowding difficulties which arise from time to time. In addition, work is ongoing on upgrading facilities at Wheatfield, Cloverhill and Portlaoise Prisons and Loughan House Place of Detention.
Any shortage of prison spaces is not as a direct result of the forced mothballing of the places of detention at Fort Mitchel and the Curragh. Overall, these two institutions had a capacity of 204 spaces. The recent opening of a new wing in Limerick Prison has fully offset the loss of Fort Mitchel. This programme of prison building and modernisation evidences the Government’s determination that our criminal justice system should have available to it the resources necessary to meet the demands placed on it. I emphasise that this approach is fully consistent with developing appropriate alternatives to custody to the greatest extent possible. As I mentioned earlier, it is not a question of doing one or the other.
The Minister agrees that reform is necessary and there are complex issues involved in regard to the issue of fines. It is essential that such reform is tailored to meet the problems which exist and to finding solutions which are fair, effective and efficient. In December 2000, the Comptroller and Auditor General published a value for money audit of the collection of fines based on the year 1998. A high level interdepartmental group, chaired by the Department of Justice, Equality and Law Reform, was formed on foot of the report and following the appearance before the Committee of Public Accounts in April 2001 of the Secretary General of that Department. The group, which was representative of the Departments and agencies with a role in fines collection, undertook an in-depth examination of the issues raised in the report of the Comptroller and Auditor General and submitted a detailed report and recommendations to the Committee of Public Accounts in November 2001. This was considered briefly by that committee in November 2002 when it examined the courts Vote.
The reports of both the Comptroller and Auditor General and the high level group noted the impact of the introduction of clamping in reducing the number of fine notices issued for parking violations. Dublin City Council is now reporting a 60% decrease in illegal parking incidents since wheel clamping and towing services were introduced in 1998 to tackle the problem of illegal parking in Dublin. Driver behaviour has also improved since clamping was introduced in 1998. The adverse effect of illegally parked vehicles on traffic movement has been greatly reduced and spaces are now available for short-term parking virtually on demand. The improvement in compliance has enabled the council to increase the maximum parking time from two to three hours.
The high level group found that road traffic offences constitute a large percentage of the offences which attract the penalty of fines and that the introduction of a system of administratively imposed cumulative penalty points would have a significant impact on persistent offenders.
The Civil Liability and Courts Act 2004 facilitates the establishment of a central office of the Courts Service to which applications can be made for the issuing of summonses and from which summonses can be issued. Up to the introduction of this section, applications for a summons had to be made to the District Court office in the District Court district in which jurisdiction in regard to the offence resided. The establishment of the new centralised office does not do away with the issuing of summonses by the local court offices. Rather, the two systems operate side by side. The purpose of the centralised issuing is to facilitate organisational changes to implement the penalty points legislation. It also provides for the application for and the issuing of summonses by electronic means.
A major recommendation of the high level group, proposed the establishment of an executive office, under the aegis of the Department of Justice, Equality and Law Reform, to oversee and manage fines collection policy. Among the issues which such an office could examine would be the possibility of contracting out to the private sector the collection of fines. The establishment of that office remains an objective of the Minister. His Department has advanced as far as possible and in consultation with the other Departments and agencies involved the detailed recommendations made in the report of the high level group to ensure that the necessary improvements in the functioning of the fines system, including in the processes for the effective collection of fines, are being effected on an ongoing basis. These have concentrated on fines for road traffic offences.
The Courts Service has taken measures to reduce the time taken to deal with cases and to minimise the delay in issuing warrants following court convictions. The development of IT systems in the courts by the Garda and the Department of the Environment, Heritage and Local Government is designed to improve the overall delivery of information electronically across their systems, resulting in a reducing likelihood of fines going unenforced due to error or inadvertence. These systems will also greatly improve the level of management information on which to formulate policy.
The Department of the Environment, Heritage and Local Government is carrying out developments to the national driver file, where penalty points received are recorded, thus adding to the deterrent effect of penalty points.
It may be useful to outline the changes happening within the courts in relation to the processing and collection of fines. In recent years the courts have developed and piloted a criminal case tracking system which, among other things, records fines imposed and produces fines notices, reminders and warrants. The roll-out of this system to all District Court offices was recently completed.
In 2002, the Courts Service began the development of a new courts accounting system to handle the processing of all court receipts, including fines. The Courts Service has taken a modular approach to implementing this system. Initially, two modules have been implemented which handle family law and minors. The service is looking at other processes, including fines. Based on the experience to date, the service is now of the view that the most effective approach to fines collection is to consolidate it within one main office which will handle all receipts and payments in relation to fines. It is intended to pilot this approach with the fines office in the Dublin Metropolitan District. One of the key factors for the success of this project will be the development of interfaces between the case tracking system and the accounting system.
In addition, the Courts Service will look at introducing a range of payment options for fines which will be made available to customers, including payment on the Internet in banks and post offices, by credit and debit cards, by phone using lo-call numbers.
There has been a number of reports which made recommendations for legislative proposals in relation to payment and enforcement of fines as well as civil debt. These include the report, in February 2000, of the sub-committee on crime and punishment of the Joint Committee on Justice, Equality, Defence and Women’s Rights on alternatives to fines and the use of prisons, relevant reports by the Law Reform Commission in 2002 and 2003 and the already mentioned Nexus report of 2002.
A summary of the recommendations from these various reports in regard to fines would conclude that there should be improved means assessment by the courts to ensure fines imposed are within the means of the offenders to pay them, a facility to allow offenders to pay fines by instalment and a means of enforcing fines other than by way of imprisonment.
The Minister agrees largely with these conclusions and the legislative proposals which he intends to bring forward will reflect that. He is taking an incremental approach to reform of the fines system because he believes it is necessary to assess and evaluate how different developments affect the overall system. As a first step, the Minister intends to bring to Government the fines Bill in the near future. Although this Bill will be primarily intended to update existing fines and provide a mechanism for indexation, the Minister will also likely include proposals to strengthen the criteria to be used by the courts in assessing the means of the offenders before imposing fines. This provision is fundamental.
The reality is that most offenders who do not pay fines have financial difficulties. It is vitally important in the interest of fairness to these people and in the interest of efficiency in the system that fines are set at an affordable level. Yet the Deputy’s Bill, focused as it is on procedures, omits such a provision to ensure basic fairness to the less well off in our society. One of the effects of that Bill is that it could use up valuable court resources, resources which should necessarily be available to the more affluent in society.
Most importantly, the Minister’s proposed fines Bill will also include provisions for the payment of fines by instalment. In respect of the latter, it is the intention that such a payment arrangement will only be available to those who genuinely need it, having regard to their financial circumstances and the amount of the fine imposed. Bearing in mind that more than 110,000 fines are imposed in the District Court annually, if every such fine could attract an instalment order serious administrative problems could arise for the Courts Service. There is no doubt in my mind that those who can afford to pay a fine in one amount should have to do so.
The Minister’s proposed enforcement of fines Bill, which is also on the Government’s legislative programme, aims to end imprisonment as far as practicable for non-payment of fines and provide for new ways to enforce fines. The Minister is actively considering a range of alternative measures but will only introduce such measures when he is satisfied they will improve the efficiency and fairness of the system.
Mr. Parlon: The Minister must be satisfied as to the practicality of any proposals. For example, in the United Kingdom, a large range of alternative enforcement options is available to the courts, yet the indications are that it is not used to any great extent. The most workable solutions in that jurisdiction appear to be the facility to pay fines by instalment and extended time to pay. This reflects the fact that doing all that can be done to help people to pay is an essential prerequisite to introducing more wide ranging enforcement measures, particularly as such enforcement measures may have harsh consequences.
Mr. Parlon: Deputy O’Keeffe’s Bill will not necessarily create a fairer or more enabling system of enforcement. The introduction of attachment of earnings and attachment of social welfare contributions without first establishing a fairer procedure for imposition of the fine and its collection raises serious questions.
The intention of the Minister is to build on the measures introduced in his fines Bill. This will allow a more accurate assessment of what other measures are required and allow him to take into account the impact of the proposals contained in that Bill. It will also allow for consideration to be given to the effect of other developments, for example, the impact of the increasing number of road traffic offences for which a fixed payment and-or penalty point is provided. I mention this to emphasise the importance of ensuring that measures to improve the situation take account of all dimensions of the operation of the fines system. Alternative means of enforcement of fines must be considered with caution and must be fair, efficient and effective.
On the issue of civil debt, the Minister has consistently maintained that it is not the primary function of either his Department or the Courts Service to take on the significant role, certainly in terms of personnel and resources, of operating a debt management service in circumstances following the granting of enforcement orders against persons who find themselves, for whatever reason, in arrears to banks, finance houses, public utilities, etc.
The Minister, like all of us, is supportive of any efforts to find alternative non-judicial approaches to the resolution of debt problems. Little reference has been made to the fantastic work being done by the money advice and budgeting service, MABS, of the Department of Social and Family Affairs. MABS provides funding for 52 projects around the country which address the problems of money lending and over-indebtedness. Its programme was established in 1992 as a response to the Combat Poverty Agency’s report, Money Lending and Low Income Families. It operates through 52 locally based management committees with funding for staff and other costs being made available by the Department of Social and Family Affairs.
The MABS approach, based primarily on the willingness of the debtor to attempt to manage his or her circumstances, offers significant prospects of a successful resolution of the credit problem. MABS has a special relationship with the credit unions, which operate a special accounts system to enable MABS clients to repay debts and save small amounts. A loan guarantee fund also operates to provide crisis loans as an alternative to the moneylender. While MABS projects give advice and assistance, they do not pay debts and are not a source of money. The key elements of MABS are the resources, contacts and expertise of all relevant people in an area who co-operate to provide a special service for people who may require intensive help and advice in working their way out of serious debt. The Government’s commitment to MABS is demonstrated by the allocation of funding amounting to some €11.4 million in 2004. More than 12,000 new clients approach MABS annually and the service deals with 30,000 people on an ongoing basis.
A pilot debt settlement programme was agreed by MABS and the Irish Bankers’ Federation and supported by the other main creditors. This scheme provides a non-judicial alternative for resolving cases of multiple consumer debt which are likely to prove intractable and otherwise end up in court. It introduces a range of innovative features new to this jurisdiction, such as a finite period for an agreed debt repayment programme, the freezing or reduction of interest and the write-off of residual debt on successful completion of the programme. The debtor’s principal private residence is secured against enforced sale or repossession. The debt settlement pilot commenced in four MABS offices in the greater Dublin area in June 2002 and was extended countrywide in June 2003.
This voluntary approach is significantly more preferable, cost effective and likely to yield a result satisfactory to all involved than seeking to impose on the Courts Service the role of managing a debt collection and recovery process, especially one as cumbersome as that envisaged in the proposed legislation.
I hope it will be clear from my contribution that we have doubts about the practicality of much of what is proposed in the Bill. The Minister for Justice, Equality and Law Reform is aware of, and is addressing, issues of concern and will consider the views expressed during this debate this evening and tomorrow.
In contrast to what some speakers would have us believe, we have ended the form of early release from prison known as the revolving door syndrome which, unquestionably, caused considerable difficulty for many years. Having done so, I am convinced we will succeed in bringing crime figures down even further.
I accept there are other methods which must be applied to dealing with the issue of non-payment of fines and civil debt, some of which Deputy Jim O’Keeffe mentioned. As I have made clear, the Government is working across a number of initiatives to bring forward real solutions to effectively assist persons in difficult circumstances. It would be wrong of me, however, not to acknowledge that, unfortunately, there are people for whom the ultimate sanction of imprisonment will have to remain as a deterrent available to the courts.
Mr. O’Connor: I was not shafted today or on any other day. It is great to be back after the recess. I congratulate the Taoiseach and Government on the changes made today. It is a glorious day for Tallaght which has a new Minister of State. Former Deputy Chris Flood was the area’s previous Minister of State and I am sure my constituency colleague, Deputy Conor Lenihan, will follow in his illustrious footsteps. If he needs to travel abroad on important Government business, I will do my best to represent his interests in the constituency.
Mr. O’Connor: Deputy O’Keeffe knows as well as I do that it is a long hard road. It will only be 1,000 days to the next general election and I intend to work hard and enjoy every one of them. I understand the Fine Gael Party is targeting me. The Deputy should tell it I am good and ready.
Although I wish him well, I will not vote for Deputy O’Keeffe’s Bill tomorrow night. I support the points made by the Minister of State, particularly regarding the critical role played by the money advice and budgetary service. This is not only because of the tremendous work MABS does in Tallaght but because of its great work throughout the country. Primarily based on voluntary arrangements, its efforts are best placed to deal with cases of indebtedness, particularly before they reach the critical stage of court orders.
As the Minister of State indicated, evidence suggests the banks, finance houses and utility companies are willing to work and co-operate with the efforts of MABS, which is excellent. The Deputy should heckle me on another day because my time is limited. There is considerable satisfaction to be derived from seeing the Irish Bankers’ Federation and the Irish Mortgage and Savings Association working jointly with MABS on pilot projects to provide a better method of dealing with defaulting creditors. When fully evaluated, I hope the results of these programmes will validate this approach.
In my experience, financial institutions usually favour alternative approaches over seeking a court order. Voluntary arrangements, through MABS or otherwise, for the payment of debt by instalment which result in some, if not all, moneys due being paid are surely the preferred solution. Even Deputy O’Keeffe would agree with that assessment.
Mr. O’Connor: Of their very nature, civil debt issues are based on individual circumstances and in most genuine circumstances would probably lend themselves to some form of mediation or conciliation process. However, the examination of some of the evidence available thus far from MABS seems to suggest that some persons in debt are often more reluctant to engage with any process, whether voluntary, mediation or court proceedings, until it is too late. I am not, therefore, convinced that the Courts Service should have a role in managing a debt collection and recovery process, especially one as cumbersome as that envisaged in the Bill.
I am sure the Minister for Justice, Equality and Law Reform, Deputy McDowell, whom I wish well, would wish to examine court procedures, including changes in rules of court, that would help to streamline court enforcement procedures for both debtors and creditors. Presumably, in civil debt cases the courts might also have recourse to any new suitable financial procedures introduced to help reduce fine default.
The two issues of fine default and civil debt are essentially unrelated although they always seem to have been lumped together. Perhaps this is due to a common feeling that imprisonment for them should be a case of last resort or no resort in our justice system. It would be useful if we could separate the issue of civil debt and any sanction that might ultimately be involved when a person cannot or will not repay the cost involved in the provision to him or her of goods and services from the issue of non-payment of fines following the imposition by the court of a sanction in respect of various offences. I will be happy to support the Government amendment tomorrow night. I wish Deputy Jim O’Keeffe well and remind Deputy Broughan that I am enjoying my day.
Mr. Broughan: I wish our colleague from Tallaght well with the new ministerial car that his colleague has obtained this afternoon. I look forward to being filled in on all the occasions in question. Deputy O’Connor stated that 1,000 days remain until the general election, but it could be considerably less than that. Let us not forget that during the summer——
Mr. Broughan: ——we had one or two little frissons from the Progressive Democrats, who seem to be mightily upset about various issues. It may be that the Progressive Democrats Party feels it does not want to wait for another two years and eight months. Deputy O’Connor might be facing the people of Tallaght and I the people of Dublin North-East much sooner than he anticipates.
Mr. Broughan: The Labour Party is very ready for an election at any time. I suppose the recent debate was about the priority of elections and the fact that the general election, by definition, must be the number one priority upon which everybody must focus, particularly those in smaller parties.
I am deputising for my colleague, Deputy Costello, who has a prior engagement. On behalf of the Labour Party, I warmly welcome efforts made by Deputy Jim O’Keeffe by way of the Enforcement of Court Orders Bill to address some of the most serious issues in our judicial system and the range of sanctions available to courts. As Deputy O’Keeffe said, a serious issue is that up to 50 people who have failed to pay fines imposed by court order are imprisoned daily. It is appropriate that this Bill is a typically thoughtful production by one of our most able parliamentarians.
The imprisonment of citizens for not paying fines and debt is almost characteristic of the behaviour of the 18th and 19th centuries. It is important that this is addressed. Deputy Jim O’Keeffe can take credit for the fact that the Minister has made clear tonight that the payment by instalment system will be introduced. This is a great and very welcome step forward. Deputy Jim O’Keeffe introduced the concept over five years ago to bring us into line with many other common law jurisdictions.
It must be said, however, that the Government has been less than generous in its response to this Bill, as has been the case regarding other Opposition Bills. I, like the Leas-Cheann Comhairle and others, am very familiar with the great distress citizens often feel when they have to call to see fines officers in Garda stations. Such citizens may have accumulated fines, often because of the late payment of television licences and the failure to meet other obligations to State agencies, for example. It is welcome that this Bill attempts to introduce a methodology to address this.
The Labour Party has grave difficulty with section 17, which pertains to the attachment of social welfare payments. Deputy Jim O’Keeffe and I were social welfare spokespersons for our parties for three and a half or four years. A common refrain of both of us throughout that period concerned the low level of social welfare payment. Even the basic level today, €134, is such that even a fine of €127 — the old £100 fine — would represent a great percentage of the weekly earnings of somebody on assistance.
Consider the legislation of our colleagues in the UK, namely, SI 1407 of 2004, the Fines Collection Amendment Regulations of 2004, and SI 176 of 2004, which provides tables of periodical deductions from earnings. Certain basic payments, such as disability benefit and maternity benefit and certain social welfare payments or benefits are absolutely excluded. The tables indicate clearly what can be taken from a citizen. In the table listing deductions from weekly earnings, I note that if net earnings do not exceed £55, the percentage deductions rate is 0%. If they are between £55 and £100, the rate is 3%, and if they are between £100 and £135 the rate is 5% etc. Other jurisdictions, particularly the UK, have obviously thought very carefully about this as a result of having had many problems in this area. The Labour Party feels that it would like Deputy Jim O’Keeffe to re-examine this area. If the Minister accepted the Bill this evening, this would need to be teased out very carefully on the next Stage.
I am a little alarmed that the Minister, Deputy McDowell, would be the person with an input into or the ability to determine the levels those on welfare would have to pay, perhaps through regulation. As my party leader stated this evening, although Deputy McDowell is Minister for equality, he is effectively the Minister who believes inequality is good for us.
Many social welfare recipients are on household budgets, as Deputy Jim O’Keeffe stated. MABS was rightly praised a few minutes ago but the household budget system should be considered in this regard. Deputy Jim O’Keeffe and I made a contribution to the discussion on this over the past decade. The net payments people receive are often very low and very difficult to survive on, even with a graduated instalment system. We have some doubts about this matter.
When the Minister of State, Deputy Parlon, was a leader of the farming community, the notorious petition system existed whereby citizens used to go to Deputies and ask them to postpone their fines. A considerable part of the work of this House in respect of the Department of Justice, Equality and Law Reform involved the postponement of fines for as long as possible until those concerned could get the money together to pay them.
I have often noticed that some almost prefer to do time in prison than to pay a fine. It is tragic that anyone would be imprisoned for not purchasing a television licence, for example, but sometimes a woman in this position might prefer to go to the women’s prison in Mountjoy to do a few hours. Deputy Jim O’Keeffe is correct in saying that it is scandalous that the mother of a family should be placed in this horrendous position.
I reviewed some of the literature surrounding Deputy O’ Keeffe’s Bill and discussed some of the issues in it with the Labour Party senior legal adviser. It appears there is a general problem regarding fines, to which the Law Reform Commission referred, especially the impact of fines. The Minister has indicated that the levels of fines will be reviewed. For many citizens, particularly for those on low incomes, a few hundred euro is a very heavy imposition. For other citizens, this is a derisory amount, perhaps the cost of a meal in a few hotels down the road. Much thought needs to be given to the impact of fines. If we want to see fines working and people deterred from going to prison in the first place, this Bill will allow us do that.
The current Minister for Justice, Equality and Law Reform and his party have participated in Government over the last seven years, when the income gap between the top and bottom 20% of society was never as wide. My party and the Government parties had a little contretemps this afternoon regarding poverty levels in this State. The reality is that the lowest income deciles of our society find life in this economy very difficult. It is an aspect of the Bill which probably needs some further research, including a major review of fines and the structure and level of sanctions.
All of this tends to refer to employees and people on social welfare income. What about the large section of society that is self-employed? We need the appropriate level of sanction in that area as well. Fines per se can be quite inegalitarian and that is an area that has to be kept under review. Deputy O’Keeffe has set out a system whereby employers would have a role in attachments regarding fines. They already have a role in other attachments, so this would be an additional group. There might be complaints that this would lead to further bureaucracy. On the positive side, the system exists in a range of other areas.
In general terms, I welcome the effort to produce this Bill. It makes very little sense to detain fine defaulters in prison, thereby increasing the cost to the State through the expense of housing them in prison. My Fine Gael colleague referred to debtors being put into prison with criminals who are serving serious criminal sentences for very serious crimes against society.
Prison should be the last resort for those who have incurred this sort of fine under court orders. Prison is for the most serious offenders and the most recalcitrant criminals in society. We would like to see section 14 of the Bill changed, which obliges payments from those in receipt of social welfare.
The Bill is concerned with two categories of people who end up in prison, namely fine defaulters and civil debtors. I want to concentrate on those imprisoned in default of payment of a fine. Strictly speaking, this should be a very small category within the prison population. As a matter of first principle, a sentencing court should first consider whether a fine rather than a prison sentence is adequate to meet the seriousness of the case. Since the District Court deals only with cases that are, by definition, minor, a fine should be appropriate. The court should then consider whether the accused has the means to pay the fine it proposes to impose. If not, the court should reduce or waive that fine. It is constitutionally impermissible to impose a prison sentence where a fine would be appropriate simply because the accused does not have the means to pay a fine. Given that this is clear and established law, why do we have so many fine defaulters sentenced to our prisons?
It is common enough for a court to impose a fine of a few hundred euro on an individual, with provision for, say, seven days in default of payment. It is difficult to know what sort of assessment is carried out by most courts as to the means of defendants before such sentences are imposed. There is a dearth of research in Ireland on fines imposed by the courts generally and the same deficiency arises when trying to ascertain the extent of the inquiry made by District Court judges into an offender’s financial circumstances when determining the amount of a fine to be imposed. The Joint Committee on Justice, Equality, Defence and Women’s Rights in its 2000 report on alternatives to fines and uses of prison recommended a full means inquiry in every case where a financial penalty is being considered in order to ensure that fines are explicitly tailored to the defendant’s ability to pay. I would welcome if the Minister took that route. I commend Deputy O’ Keeffe, who has spurred us to start down this road.
The report on imprisonment for fine default and civil debt, commissioned by the Department of Justice, Equality and Law Reform, concluded that inquiries in the court process about offenders’ means and capacity to pay fines would appear to be non-existent or at best cursory. The current system is clearly not working effectively given the high level of imprisonment for default of payment of fines, the rate of which was 35% in 1993.
As the explanatory memorandum points out, a recent examination conducted by the Comptroller and Auditor General into the efficiency of the fines system regarding cases within the jurisdiction of the District Court sheds important light on some of the issues. The report on value for money examination on the collection of money for fines notes that the ultimate objective of the fines system is to reduce the level of offences committed by deterring undesirable behaviour. Having examined the available data on legal proceedings in Dublin District Court cases in 1998, the report found that fines were imposed in half of the 57,100 summons cases actually heard. Overall, the average fine imposed by the Dublin District Courts was €127, varying considerably between different types of offences. Average fines imposed in fine cases in Dublin in 1998 were as follows: €84 for parking offences, €151 for disc offences, €86 for speeding offences, €123 for other motoring offences and €212 for other criminal offences. These figures raise questions as to the extent to which these fines adequately effect the aims of criminal law, namely to make an impact on offenders.
More than 95% of all criminal offences are tried summarily in the District Court. It performs the essential task of disposing of very large numbers of minor offences, without the checks, balances and safeguards that surround trial on indictment before a jury in the higher courts. The subject of maximum fines permissible in the District Court has attracted less attention than does that of the maximum sentence of imprisonment. The District Court punishes offenders by fining in the great majority of cases. The level of fine is rarely such as to give rise to any question of the limit of fine which might be constitutionally permissible.
In practice, the Legislature, or those who draft its Bills, appear to operate a general District Court fine limit of €3,000. The working group on the jurisdiction of the courts believes this limit is much too low. The Law Reform Commission seems to agree and a general limit of €10,000 is suggested. If this is introduced, there will be far greater significance attached to the question of what to do with those in default of such substantial fines. It is clear that a fine of the same amount will affect different defendants differently, having regard to their means. In its report on penalties for minor offences, the Law Reform Commission discussed whether the means of the accused were a relevant factor in assessing whether the penalty was appropriate to a minor offence.
While a fine of €127 may have quite some severe financial implications for an unemployed offender, it is unlikely to impact on those with much higher incomes. This brings us to the law as regards equality of impact in fining as it currently stands. There should be some provision for means adjustment in the District Court. Section 43 of the Criminal Justice (Administration) Act 1924 provided that a court of summary jurisdiction fixing the amount of any fine to be imposed on an offender shall take into consideration, among other things, the means of the offender. It is a long-established common law rule that fines should not be increased for the better-off. The Law Reform Commission has suggested that the principle of equality of impact, which the Labour Party believes should be the key theme of the new fines legislation, requires that fines should be adjusted to reflect the means of offenders to ensure that fines will be felt by offenders, whatever their wealth. According to the commission, this common sense approach requires that fines be increased for those who are better-off. I welcome the commendable construction of this Bill.
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