Wednesday, 3 March 2010
Dáil Eireann Debate
The Bill contains one reference to the Minister for Justice, Equality and Law Reform, which is in section 1(2). In the extensive list of amendments I propose today, there are two further references in the new section 19 that deal with the appointment of receivers. Therefore, in accordance with best drafting practice, the Minister for Justice, Equality and Law Reform will be referred to, in the Bill, as the Minister. The Minister is defined as the Minister for Justice, Equality and Law Reform. I recommend these drafting amendments to the House.
We addressed this matter at some length on Committee Stage. It concerns the review of monetary amounts in the Bill. The issue was whether it would be done by way of regulation or primary legislation. The Minister indicated that he would consult the Attorney General on the matter. I would have thought it might be appropriate to insert an amendment in the primary legislation. I know the previous Attorney General gave advice, but I am not sure if it was different to that of the current holder of the office. What consideration has the Minister given to this matter since we addressed it on Committee Stage?
Deputy Dermot Ahern: When we discussed this issue, I expressed sympathy with the effort by Deputies to take into the legislation power to vary by means of secondary legislation. They said it would be simpler and more straightforward. While it would be, we went back to the Office of the Attorney General and the legal advice is that it still remains the safer option to deal with it in primary legislation. I therefore ask the Deputy to withdraw the amendment. That is the strong advice I have received from the Attorney General’s office.
Deputy Dermot Ahern: In practical terms this amendment seeks to define the expression “maximum fine” for the purpose of the use of that expression in section 8, which provides for an increase in the amount of certain fines on conviction or indictment. The amendment seeks to include in the meaning of “maximum fine” a fixed fine and, in effect — if I can use a non-legal term — to unfix it. We do not have many fixed fines on the Statute Book. Such fines usually relate to Revenue offences. For example, section 65(1) of the Finance Act 2008 requires that conviction for the offence of contravening or failing to comply with provisions concerning electricity taxes, without prejudice to any other penalty to which the person may be liable, carry a penalty of €5,000. Fines are fixed for a reason. The fact they are fixed implies the sponsoring Department wishes to provide an unchanging level of penalty as a response to particular types of offences. It would not be appropriate to provide that such penalties could be raised automatically along with other fines. There is an opportunity for the sponsoring Department to review such fines annually during the preparation of Finance Acts and there is little chance of them falling out of date. I understand the thinking behind the amendment and appreciate the effort made on Committee Stage. I have consulted with the draftsmen and it has been decided it would not be appropriate to include fixed fines in an indexing provision. Therefore, I cannot accept the amendment.
Deputy Dermot Ahern: On Committee Stage I consulted the draftsman of the Bill, who advised there is no need for this amendment. The definition of “enactment” in section 2 adequately covers the intent of the amendment and, in the view of the drafter, leaves no gaps.
The purpose of this amendment is to provide clarity and avoid any constitutional difficulty in respect of the offences to which the section applies. Clearly, it would be legally improper to impose the new penalties on persons convicted after the commencement date for an offence committed before the commencement date. The European Convention on Human Rights expressly states that a higher penalty than the penalty enforced at the material time of the offence cannot be imposed on a person. This amendment will avoid any challenge based on this point by making clear that the new penalties will only apply to offences committed on, or after, the commencement date.
Deputy Dermot Ahern: On Committee Stage we listened to what the Deputy had to say. We are still unsure that the amendments the Deputy proposes would have the effect he seeks. I suggest we should leave it for now and I guarantee we will consider the issue between now and the time the Bill goes to the Seanad. The inclusion of the first three of the Deputy’s amendments would seem to obviate the necessity for the following three. We asked the draftsman of the legislation to consider what the Deputy was trying to achieve, based on what he said on Committee Stage. We feel it is just a matter of drafting technique and there is no need to change it. However, in view of what the Deputy has said, we will take another look at the issue. We are still not quite clear as to intent behind the Deputy’s amendments.
Deputy Seán Sherlock: It could be argued that the existing Bill is ambiguous, in that it does not state clearly whether it refers to the conviction or the offence that occurred before the commencement date. It is a matter of trying to tighten up the wording. That is our approach.
Acting Chairman: Amendment No. 10 must be recommitted as it does not arise from committee proceedings. Amendments Nos. 10 and 11, amendments 13 to 39, inclusive, and amendments Nos. 41 and 42 are cognate and will be discussed together.
On Committee Stage I undertook to consult with the Parliamentary Counsel to see if we could accept the amendments being proposed by Deputy Sherlock or amendments similar to those being proposed. We accept the point made by Deputy Sherlock and as a result have drafted these amendments to address the matter. While Deputy Sherlock has tabled two amendments, the same point arises in other parts of sections 3 and 8 and in other sections. As a result, I propose 29 similar amendments which delete the reference to a party “guilty of” an offence being liable on conviction to a fine and I am replacing them with a reference to a person “who commits” an offence being liable on conviction to a fine. I thank the Deputy for his contribution and believe what we have brought forward meets the objective of what he suggested on Committee Stage.
The basis of this amendment is that the 2007 version of the Bill, in section 7(5), sets forth a minimum fine on indictment of €10,000 for fines set prior to the commencement date. This has disappeared from the Bill, although it seems an appropriate provision to maintain the hierarchy of penalties between summary conviction and conviction on indictment. We suggest that this be re-inserted.
Deputy Dermot Ahern: These amendments were introduced on Committee Stage and are designed to ensure that when a person is convicted on indictment for a criminal offence and the court decides the appropriate penalty is a fine, the level of the fine that can be imposed will be no less than €10,000. On Committee Stage I undertook to consult the Attorney General on any legal or constitutional implications that might arise, and I did so. Deputy Sherlock stated that the Fines Bill 2007 provided for a minimum fine of €10,000 on conviction on indictment and that all his amendments seek to do is to restate that policy.
Following a full re-examination of the provision of the 2007 Bill, it was decided that some elements could be improved. It was also decided to greatly expand the scope of the Bill. That is why it was withdrawn and replaced by this Bill. The main provision that we believed could be improved was section 7, as it was considered to be unnecessarily complicated and restrictive. It has been replaced by what is now section 8.
I would not agree that the 2007 Bill provided for a minimum fine of €10,000. Rather, it replaced all fines on indictment with a maximum value of less than €10,000 in specific Acts with a maximum fine of €10,000. The amendments would unnecessarily reduce, to an extent, the discretion of judges when deciding on the appropriate fine to impose in a particular case. I thank the Deputy for the amendments but, having considered the position, I cannot accept them.
Acting Chairman: Acceptance of amendment No. 47 involves the deletion of section 10. It arises from Committee Stage proceedings. Nos. 47, 48, 58 to 65, inclusive, 67 to 71, inclusive, and 73 to 78, inclusive, are related and will be discussed together.
The Fines Bill as discussed and as passed on Committee Stage contains a range of proposals aimed at ensuring that the level of fines imposed by the courts on persons convicted of committing offences will be affordable to the offender and, where default on payment occurs, a range of alternative sanctions is available. Briefly, in practical terms, this means that where a fine is imposed the court will be able to increase or reduce the fine within statutory limits in accordance with the offender’s ability to pay. This means that payment of the fine will not cause any financial hardship to the offender or his or her dependants. In addition, the court may allow the fine to be paid in instalments over a 12-month period, which may in exceptional cases be extended for a further 12 months. Thus, the court will have an obligation to take into account the financial circumstances of the person being fined in determining the amount of the fine.
Despite the provisions for equality of impact and payment by instalment, not everyone will pay his or her fine. There will be various reasons for this. In some cases people will forget, although administrative provisions are being established to remind people of their obligations; others will not pay for reasons of principle or contrariness, while some simply could not be bothered because of general antipathy towards the law of the State and its institutions. That is why I have provided alternatives to imprisonment. The purpose of the amendments we are now discussing is to set out in more detail how they will operate in practice.
Deputies on the opposite side of the House have raised the issue of the number of bench warrants that are outstanding, many of which are for relatively small fines that are not collected. This has been a source of much complaint in recent years. There is a considerable onus on the Garda to execute those warrants, which means that in some instances a person who has forgotten to pay will find himself being taken to Mountjoy prison by a Garda under a court order, having been sentenced to seven days’ imprisonment in default. In the Department we spent much time considering the provision of alternatives to imprisonment. These amendments are the way forward, although I am open to any suggestions from the Opposition.
The current draft provides for making a recovery order, the appointment of a receiver and the imposition of community service. The receiver would only have been appointed in instances of default on large fines imposed in higher courts, and the effect of the recovery order would have been to transform the non-payment of the fine into civil debt. I have decided to fuse these orders into one new recovery order, under which the court can appoint an approved person or receiver to recover the fine or its value. The use of this formula avoids the duplication of having two similar orders and having to arrange additional court hearings to effectively repeat investigating the offender’s capacity to pay.
Streamlining the orders leads me to the main purpose of these amendments; instead of giving the courts power to impose imprisonment for default or to impose one of the alternative sanctions, the effect of the amendments will be to establish precisely how and when the alternative sanctions will operate. As Deputy Flanagan will know from his practice, the issue of following fines and civil debt is fairly tortuous in our courts. These amendments insert the ability of the court, in fining a person, to make a recovery order and various elements will kick into place immediately thereafter. A person can pay by instalments before that and if there is a default on those, the recovery order kicks in.
The recovery order necessitates somebody being appointed by the court, such as a sheriff, to take goods to the value of the fine. These goods fulfil the court order but if the agent does not get such goods, certain other provisions kick in with these amendments, including the obligation for community service.
The amendments in this group are a mix of substantive changes and consequential drafting changes. Section 10, setting out the period of imprisonment the courts can impose for default, and section 16, relating to the recovery order, are being deleted and their substance in amended format is being incorporated into other sections. I am also deleting the first two subsections of section 15 and replacing them with important amendments establishing the role of the courts in imposing fines.
In future, when a court imposes a fine for a criminal offence, it will also appoint a receiver to recover the fine or to seize and sell property from the offender to the value of the fine. The recovery order will only enter into force if the offender defaults on the payment of the fine and it will have effect from the time the Courts Service notifies the receiver of the default. This means the only option open to the court where a person does not pay a fine by the due date is to order the recovery of the fine and its value in property by the receiver. It is a logical first step on default to recover the fine and its value before considering other options that would result in additional cost to the State.
The system outlined will not require any additional court sittings as the recovery order is made at the time the fine is imposed and automatically enters into force on default. The reason the order will not take effect until the receiver is notified of the default by the Courts Service is to give the person in default one final opportunity to pay. The duties and responsibilities of receivers are set out in section 15 and an amendment I am making to the section is to permit a receiver to be appointed by one or more members of the Garda Síochána when carrying out his or her duties, as authorised in the court order.
What happens if the receiver is unable to recover the fine or any property belonging to the offender, as this will probably happen in a few cases? Most persons fined by the court will live in accommodation and possess goods such as televisions and so on. Approximately three quarters of fines imposed in District Courts are for road traffic offences so it is probably safe to assume the vast majority of persons so fined own cars. There will nonetheless be cases where the receiver will report to the court an inability to recover the fine or its value in property.
In such cases the Courts Service will have informed the probation service of the receiver’s failure to recover the fine and the probation service will prepare a report for submission to the court on whether the offender is suitable for community service and if a place is available. Most but not all persons are suitable for community service and the probation service will try to tailor a work programme to suit the problems and needs which some offenders might have. The probation service has the capacity to manage and supervise additional supervisory community service orders.
If the offender consents and is suitable for community service and a place is available, a community service order will be imposed. Only if the offender does not consent and other conditions are not met does the question of imprisonment arise. The amendments to section 18 give effect to the changes to the community services aspects of the scheme in this group of amendments. Currently, the minimum number of hours of community service that can be imposed by a court is 40 hours and there is a maximum of 240 hours. This will also be the case where a person defaults on payment of a fine imposed on conviction on indictment. On summary conviction, where the fines are generally modest — with an average fine of approximately €300 — the minimum number of hours will be 30 hours and the maximum 100 hours.
Section 18 sets out the maximum terms of imprisonment for failure to pay on time a fine imposed on conviction on indictment. I am replacing this with provisions taking the place of it and section 10, which I have already indicated is being repealed. The amount of any fine or value of the property recovered, if any, will be taken into account in calculating the number of days imprisonment to be served on default. Failure to comply with the requirements of the community service order will also result in imprisonment in accordance with the scales set out in the section. There would be little point in imposing a fine for failure to carry out a community service order when the community service order was imposed in the first place for failure to pay a fine on time.
Section 20 sets out the procedure for the appointment of receivers. Such a person or persons will be nominated by the Minister for Justice, Equality and Law Reform with the consent of the Minister for Finance and approved by the Government.
I have spoken at length on this grouping of amendments but they represent a genuine and important policy change with regard to fining defaulters. The traditional policy of imprisonment is no longer viable or socially desirable. It also places a significant financial burden on the State and uses prison places that should be available for serious criminals. The proposals in my amendments will result in fewer offenders failing to pay fines as who would want a receiver knocking on the door, in front of neighbours, and removing property?
Where default occurs I propose a cost-effective way of recovering for the State the fine or its value in property. If that does not work — in such cases there would be very few defaulters — the probation service has the capacity to manage additional community service orders without any increase in allocation. Underlying my proposals is determination to keep the need for additional court sittings to a minimum so at a relatively low cost the Exchequer will gain substantially and prison will only be a real option in a tiny number of cases. I very much recommend these important amendments to the House.
As I mentioned we have spent much time considering the issue to ensure a position where people fined in court for offences make recompense in a cost-effective way. I am conscious of the position of people who are not habitual offenders and who are fined. For some reason such people may not pay the fine and in a couple of months a local garda would look to take them to Mountjoy. If this happens such people must go through a fairly significant bureaucracy and great difficulty is created in the prison because space must be found and so on. The family of the this person may pay the fine shortly afterwards and he or she is then released. This involves much bureaucracy and wastes Garda and prison time as well as prison space.
We are looking to save time for the Garda and the Prison Service. Quite properly, the overriding view of me and my Department is that in this day and age, people who are not habitual offenders should not be put in prison. It is unfair on such people as although they may have committed an offence, it might be the only offence they will ever commit.
Deputy Flanagan knows that a judge may impose a €1,000 fine and seven days in default but this will now be a €1,000 fine and a recovery order, which will dictate provisions on default of instalment payments or the full fine by a due date. The receiver will go to the premises in question and look for the person, demanding goods to the value of the fine. The receiver will have the power to sell, if necessary. A total of 75% of the fines in the District Court are for road traffic offences, so if the person who has offended owns a car then that could be taken in lieu of the fine.
If the receiver comes back without the value of the goods, then we propose that the person be examined for the possibility of carrying out a community service order. The person will have to consent and will have to be suitable before carrying out the community service order hours. We already have had detailed discussions with the Probation Service about its capacity, and its officials have assured me that they are able even to quadruple the number of hours to be taken on. This is because when offenders are doing community service, they usually only do it one at a time, so the Probation Service can easily double up. Anybody who is interested in this should look at the last annual report of the Probation Service and the section that deals with community service orders. It shows that individual community groups around the country have benefitted from community service orders. I am talking here about things like graffiti removal, working with tidy towns groups and so on. Local community groups will be able to avail of extra help from the ramping up of the community service position.
We looked at other possibilities before putting people into prison, for example creating a threshold under which somebody would not go to prison at all. However, we found that people who were fined under the threshold could thumb their nose at the system and get away without paying, as there was no other reasonable way to enforce the fine. If people were cute, they would not consent to a community service order, would not pay by instalments and make it difficult for the receiver to take any goods, all of which would mean they would get away with it. In consultation with the Office of the Attorney General and with my own Department, it was decided that we would not create that threshold for no imprisonment.
The options move along from fine, instalments, receiver, community service order and then imprisonment. Amendment No. 79 allows the Courts Service to publish a list of names of persons who fail to pay fines on time. That is an added incentive for people to pay their fines, as it effectively names and shames those who refuse to pay. Some people will be aghast at the possibility that their names will appear for not paying fines, while others will not care if their names appear. Ultimately, we still have to keep imprisonment as the final option, but the Bill is designed to ensure that as few people as possible are imprisoned for defaulting on fines. Therefore, I strongly recommend these amendments to the House.
Deputy Charles Flanagan: I welcome what the Minister has said and I welcome what he has done in addressing the heart of the Bill. We must strike a balance between those who are unable, for one reason or another, to discharge the fine and those who are unwilling to pay and respond to the court.
I accept the Minister’s point that there are often difficulties. For example, it often appears that higher fines are imposed in court on persons who do not attend for whatever reason. They may have lost the summons or do not regard it as being as serious as it should be, or maybe they have received some bad advice that there is no need to attend. They are often then faced with a higher fine because the court wishes to register the lack of respect on the part of the person for his or her inability to attend. This gives rise to problems because the court has no idea as to the financial status or the dependent, family or employment circumstances of the individual involved. This can cause hardship down the line where the person who is unable to pay the fine does not have a choice, and when the garda comes knocking on the door a few months later to execute a warrant for imprisonment, that garda is unable to accept an amount less than the full payment of the fine.
We referred to this problem on Committee Stage and we pointed out that there was an element of redress some years ago in the from of a ministerial petition, which regrettably received some very bad press and was discontinued. There are circumstances in which I would still see merit in such an arrangement, albeit narrowly focused at the level of ministerial discretion. However, what we are doing now will assist in some way.
When the fine is imposed, my understanding is that instead of having the rider of seven days’ imprisonment in default of payment within the period, the reference will be made to the new receiver. How will it come back on the court list? I presume there will be a return date where unpaid or undischarged fines will be listed for hearing. It will not be at the application of the person against whom the fine is levied, because that person may not know about it or may not have expressed an interest. There will be a duty on the State to have the matter listed for hearing at some later date to allow for the receiver process to take place.
The ultimate sanction of imprisonment for people who will not pay is probably unavoidable because otherwise the system will not work without the deterrent of the ultimate sanction of loss of liberty. However, the fact that almost 4,000 citizens were imprisoned last year for defaulting on fines underlines the need to bring about change, having regard to the fact that it costs almost €100,000 to keep somebody in prison. If up to 4,000 people are being imprisoned for a period either in respect of the non-payment of fines or as a result of an inability on the part of the State to collect fines, there is no doubt but that a cost arises. In such circumstances, there are no winners. In the first instance, the State does not obtain its money. In the second, it finds it difficult to recover any funds because those who are in prison cannot pursue any lawful occupations that would facilitate their making earnings which would thereby allow them to pay their fines.
I agree with the Minister in respect of the community service option. I am somewhat concerned that the courts do not appear to be invoking this option in the manner in which they might do so. Perhaps the Minister will explain why the figures relating to community service orders appear to be declining. The value for money and policy review of the community service scheme indicates that 2,500 community service orders were issued by the District Court in 2007, whereas in 2003 the figure was 2,883. I am concerned with regard to the decline in these figures. I do not have the 2009 figures in my possession. If the Minister has sight of them, perhaps he could inform the House of the position. I would have thought that community service orders were working well, particularly in light of the recent report of the probation and welfare service. It is regrettable that community service is not being used to the same extent as in the past. I understand it is only being used in respect of a proportion of offences and a percentage of the offenders to whom it is applicable.
There are a number of other issues relating to these amendments which I raised on Committee Stage. If the Minister is not in a position to provide information in respect of those issues at this point, perhaps he might forward me a note in respect of them. In that context, I do not wish to delay the proceedings of the House in any way. I welcome what the Minister is doing here because it is extremely important. The legislation was lacking in the absence of the measures he is introducing in these amendments.
Will the Minister outline the reason for mandatory fines? I refer, in particular, to revenue and customs offences in respect of which there is just one level of fine and this is somewhat on the high side. There is no scale provided but the sitting judge will have power to commute. More often than not, the latter is done immediately. However, it need not necessarily be done. The vast majority of fines handed down in the courts relate to road traffic offences. However, a scale applies in respect of such fines and this is often linked to the ability of a defendant — should he or she be present to explain the circumstances relating to the case to the presiding judge — to pay. Most revenue and weights and measures offences appear to be mandatory in nature. Why is that the case? What is the State’s reasoning in respect of the imposition of such mandatory fines?
I am also concerned with regard to the compulsory assessment of means. What mechanism can be applied in respect of such an assessment? Bearing in mind that a defendant may not appear in court, would a matter be adjourned and an onus placed on the court clerk to serve further documentation on said defendant and produce registered post slips to show that every effort was made to contact him or her before any inordinate fine is imposed?
We dealt with the payment of fines by instalment. I refer here to the right or ability of an aggrieved individual to make an application to the court that a fine be paid by way of instalment. I presume that in such cases it will be necessary to engage in an assessment of means.
Deputy Seán Sherlock: I will not delay proceedings except to say that I agree with the tenor and tone of the amendments tabled by the Minister. The primary purpose of the legislation is to ensure that people who are not criminals but who transgress or make mistakes will not be imprisoned as a result of not paying fines. The legislation is also designed to put in place a process to ensure that people will have every avenue open to them in order that they might pay fines.
Will the Minister clarify the position with regard to people’s financial circumstances? Do I understand that there is some degree of sympathy for persons who may have transgressed and who might find themselves subject to fines? Will the new process take into account an individual’s inability to pay in the context of both their outgoings and their overall earnings? The Minister referred, in some sympathy, to persons who may have unintentionally transgressed and indicated that, for obvious reasons, he wants to keep them out of prison. Is it the case that an appointed receiver will be in a position to recover property from someone who does not pay a fine?
The amendments before the House improve the legislation. The bottom line is that citizens must be given every means and opportunity possible to pay fines and avoid prison. In addition, the legislation must contain a mechanism which ensures that no one will take advantage of any perceived softening in the approach of putting in place a system of fines in the first instance. I welcome the amendments.
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