Fines Bill 2009: Committee Stage.

SECTION 1.

Before coming to amendment No. 1, I wish to have a matter clarified. The schedule we were given refers to "Committee and Remaining Stages". I believe we are only taking Committee Stage today.

That was agreed to on the Order of Business. We are taking Committee Stage first, after which the House will make the decision. The question will be put as to when the next Stage will be taken. It was scheduled to take Committee and Remaining Stages.

I was present for the Order of Business but do not recall that happening.

We are taking Committee Stage first.

I move amendment No. 1:

In page 3, subsection (2), line 29, after "provisions" to insert the following:

", provided thatPart 2 shall come into operation in its entirety on a specified day”.

There is something of a contradiction in giving the Minister power in section 1(2) to commence the Bill in an open-ended fashion and to commence different sections at different times. However, the definition of "commencement date" in section 2 presupposes all of Part 2 will be commenced on a specified single date. This drafting amendment seeks to remove the contradiction between section 1(2) and section 2.

The amendment seeks to ensure all of Part 2 relating to the increase in the value of fines would come into operation on the same day. The drafters' views have been sought on the amendment on more than one occasion. It is the intention that all of Part 2 will come into operation on the same day. It would be impossible to bring Part 2 into operation in bits and pieces, as the provisions are largely independent. It is a basic concept of good drafting that nothing should be included in a Bill that is not necessary or that will not improve it. The amendment satisfies neither condition. Part 2 will commence as soon as I am satisfied that the courts are ready to implement the indexation provisions. We do not believe the amendment is necessary.

Amendment, by leave, withdrawn.
Section 1 agreed to.
Section 2 agreed to.
SECTION 3.

Amendments Nos. 2 and 8 are related and may be discussed together.

I move amendment No. 2:

In page 4, between lines 19 and 20, to insert the following:

""maximum fine", in respect of a specified amount or within a specified range, includes a fixed fine of that amount or within that range.".

As the expression "maximum fine" is used in other places, for example, in section 8, an ambiguity arises as to whether this means a particular maximum or whether it also includes fixed fines, in respect of which there is no discretion. This is a drafting amendment which seeks to remove that doubt.

Amendment No. 8 is also a drafting amendment that seeks to deal with statutory provisions that impose a specific fine rather than a maximum fine. Older statutes provide for a classified or fixed fine rather than "a fine not exceeding an amount", which is the language used in the existing section 4(2). The amendment would cater for fixed as well as maximum fines.

In practical terms, amendment No. 2 seeks to define the expression "maximum fine" for the purposes of the use of that expression in section 9 which provides for the increase in the amount of certain fines on conviction on indictment. The amendment seeks to include in the meaning of "maximum fine" a fixed fine, in effect, to unfix it. Fixed fines are usually found in respect of revenue offences. For example, section 65(1) of the Finance Act 2008 provides for the offence of contravening or failing to comply with provisions concerning electricity taxes. Without prejudice to any other penalty to which a person may be liable, conviction carries a penalty of €5,000. Another example is to be found in section 55(6)(a) of the Finance (No. 2) Act 2008, dealing with the offence of failing to comply with an air travel tax. Again, the fixed financial penalty is €5,000. Fines are fixed for a reason. The fact that they are fixed implies that the sponsoring Department wishes to provide for an unchanging level of penalty as a response to particular types of offence. It would not be appropriate to provide that such penalties should be raised automatically with other fines. Fixed fines are usually found in respect of revenue offences. As there is an opportunity for the sponsoring Department to review these fines annually in the preparation of the Finance Bill, there is little chance of them falling out of date.

Amendment No. 8 seeks to deal with fixed fines that can be imposed in the District Court. For the reasons I have outlined for fines imposed on indictment, I have decided that, on balance, it would not be prudent to include such fines in the indexing provisions. Following consultation with the drafter of the Bill, it was decided it would not be appropriate to include fixed fines in an indexing provision.

Amendment, by leave, withdrawn.

I move amendment No. 3:

In page 4, between lines 19 and 20, to insert the following subsection:

"(2) The Minister for Justice, Equality and Law Reform may, by order, vary the amounts of money specified insubsection (1) from time to time having regard to changes in the value of money since the commencement date.”.

This provides that the Minister may by order vary the amounts of money specified in subsection (1) from time to time, having regard to changes to the value of money since the commencement date. This is to ensure the amounts of fines specified in the Bill can be varied by order so the Bill does not become out of date.

We have some sympathy for this amendment but, on legal advice, the Attorney General's office has stated the safer option is to do this by primary legislation rather than by secondary legislation. He errs, and we also now err, on the side of caution following some of the court decisions about the over-use of secondary legislation by the Oireachtas. I ask the Deputy not to press the amendment for that reason: it is better for us to do this by primary legislation.

I accept the Minister's point, it is better to err on the side of caution but most of these amendments are technical in nature and are being offered in a constructive spirit to strengthen the Bill. As I said on Second Stage, we welcome the Bill. The Irish Penal Reform Trust has also welcomed it. Any measure that reduces the number of people imprisoned for non-payment of fines must be welcomed. We are trying to improve the Bill but I take the Minister's point.

Amendment, by leave, withdrawn.
Section 3 agreed to.
SECTION 4.

Amendments Nos. 4 and 26 to 28, inclusive, are related and may be discussed together by agreement.

I move amendment No. 4:

In page 4, subsection (1), line 20, after "enactment" to insert "amended by this Act or".

The first amendment is a drafting amendment to facilitate the interpretation of the legislation amended by section 9 of the Bill so in future legislation will use the simple expression "class A fine" rather than the more unwieldy expression "class A fine within the meaning of this Part". It tries to improve upon the terminology that will be used in future when people are referring to the classes of fines created by the Bill.

The later amendments relate to section 10 of the Bill and again try to use a less long-winded formula when referring to classes of fines.

I indicated on Report Stage in the Dáil that we would look again at this issue and the drafting counsel was satisfied with the existing wording, saying it is a matter of drafting technique. The purpose of including the first of the amendments in this group would obviate the need for the inclusion of the phrase "within the meaning ofPart 2 of the Fines Act 2010” in the other three. It is a drafting technique I prefer for the substance and style of the existing draft.

I am grateful to the Minister that he considered the matter and consulted the drafting counsel on this. As a matter of general principle, it is preferable to have more accessible and concise language in criminal legislation. There is a huge amount of unwieldy language and an unnecessary number of different Acts on the Statute Book. A consolidation project is under way but here we are trying to contribute to making the language of criminal law and legislation more accessible and understandable. It is a pity that a matter of drafting technique should prevent us from using shorter terms. Perhaps the Minister will take the general point on board.

Amendment, by leave, withdrawn.

Amendment No. 5 is a Government amendment that has also been tabled by the Labour Senators. Amendments Nos. 5, 10, 14, 18, and 22 are cognate and may be discussed together by agreement.

Government amendment No. 5:
In page 4, subsection (1), line 20, to delete "after" and substitute "on or after".

The Government amendment and that of the Labour Party to section 4 is to ensure that a person who commits an offence under the Act enacted on the day on which this part of the Bill comes into operation will be liable on summary conviction to a class A fine. Similar amendments to sections 5, 6, 7 and 8 will ensure that in the same circumstances, a person will be liable to the other classes, B, C, D and E.

These amendments arise from an amendment tabled by the Labour Party in the Dáil and repeated here today. I accepted a number of amendments from that party in the Dáil and in the case of those I was not in a position to accept, I arranged further discussions with the drafter of the Bill in the light of the further points raised and these amendments fall into that category. I thank the Labour Party for bringing this to my attention and I am happy to introduce these amendments that deal with the situation.

I am grateful to the Minister for accepting and acknowledging the Labour Party amendments. We tabled amendment No. 5 and the same point is made in the other amendments. We were concerned that in the absence of these amendments there would be an anomaly in respect of offences committed under Acts on the commencement date. It is a technical amendment but I am grateful the Minister accepted it. It clarifies the legislation and makes it more effective.

Amendment agreed to.

Amendments Nos. 6, 11, 15, 19 and 23 are cognate and may be discussed together by agreement.

Government amendment No. 6:
In page 4, subsection (1), lines 21 and 22, to delete "under the enactment" and substitute "under that or any other enactment".

These are technical amendments designed to ensure the indexing provisions will apply to any enactments enacted on or after the commencement date that amend other enactments. A new Act may substitute a provision into the existing Act that amends a penalty provision that can be imposed on summary conviction. These amendments will ensure the fine will fall into one of the classes provided for in sections 4 to 8.

Amendment agreed to.

Amendments Nos. 7, 9, 12, 13, 16, 17, 20, 21, 24 and 25 are cognate and may be discussed together by agreement.

Government amendment No. 7:
In page 4, subsection (2), line 27, to delete "number in" and substitute "number specified in".

These are purely drafting amendments that for consistency in sections 4 to 8 insert the word "specified" after the word "number" in two places in subsections (2) and (3) of sections 4 to 8. For example, where it now states "Where an enactment enacted during a period specified incolumn (2) of the Table opposite, a particular reference number in column (1)”, the revised wording will be “Where an enactment enacted during a period specified in column (2) of the Table opposite, a particular reference number specified in column (1)”. This is a drafting amendment that will help the Bill.

Amendment agreed to.
Amendment No. 8 not moved.
Government amendment No. 9:
In page 4, subsection (3)(a), line 41, to delete “number in” and substitute “number specified in”.
Amendment agreed to.
Section 4, as amended, agreed to.
SECTION 5.
Government amendment No. 10:
In page 5, subsection (1), line 26, to delete "after" and substitute "on or after".
Amendment agreed to.
Government amendment No. 11:
In page 5, subsection (1), lines 27 and 28, to delete "under the enactment" and substitute "under that or any other enactment".
Amendment agreed to.
Government amendment No. 12:
In page 5, subsection (2), line 33, to delete "number in" and substitute "number specified in".
Amendment agreed to.
Government amendment No. 13:
In page 5, subsection (3)(a), line 47, to delete “number in” and substitute “number specified in”.
Amendment agreed to.
Section 5, as amended, agreed to.
SECTION 6.
Government amendment No. 14:
In page 6, subsection (1), line 26, to delete "after" and substitute "on or after".
Amendment agreed to.
Government amendment No. 15:
In page 6, subsection (1), lines 27 and 28, to delete "under the enactment" and substitute "under that or any other enactment".
Amendment agreed to.
Government amendment No. 16:
In page 6, subsection (2), line 33, to delete "number in" and substitute "number specified in".
Amendment agreed to.
Government amendment No. 17:
In page 6, subsection (3)(a), line 47, to delete “number in” and substitute “number specified in”.
Amendment agreed to.
Section 6, as amended, agreed to.
SECTION 7.
Government amendment No. 18:
In page 7, subsection (1), line 26, to delete "after" and substitute "on or after".
Amendment agreed to.
Government amendment No. 19:
In page 7, subsection (1), lines 27 and 28, to delete "under the enactment" and substitute "under that or any other enactment".
Amendment agreed to.
Government amendment No. 20:
In page 7, subsection (2), line 33, to delete "number in" and substitute "number specified in".
Amendment agreed to.
Government amendment No. 21:
In page 7, subsection (3)(a), line 47, to delete “number in” and substitute “number specified in”.
Amendment agreed to.
Section 7, as amended, agreed to.
SECTION 8.
Government amendment No. 22:
In page 8, subsection (1), line 26, to delete "after" and substitute "on or after".
Amendment agreed to.
Government amendment No. 23:
In page 8, subsection (1), lines 27 and 28, to delete "under the enactment" and substitute "under that or any other enactment".
Amendment agreed to.
Government amendment No. 24:
In page 8, subsection (2), line 33, to delete "number in" and substitute "number specified in".
Amendment agreed to.
Government amendment No. 25:
In page 8, subsection (3)(a), line 47, to delete “number in” and substitute “number specified in”.
Amendment agreed to.
Section 8, as amended, agreed to.
Section 9 agreed to.
Amendments Nos. 26 to 28, inclusive, not moved.
Section 10 agreed to.
SECTION 11.
Government amendment No. 29:
In page 10, subsection (1), lines 23 and 24, to delete "Minister for Justice, Equality and Law Reform" and substitute "Minister".

This is just a drafting amendment that speaks for itself.

Amendment agreed to.

I move amendment No. 30:

In page 10, subsection (1), lines 26 to 32, to delete all words from and including "or for securing" in line 26 down to and including "operation" in line 32.

On Second Stage I mentioned the issue of delegated legislation. The Minister has said, regarding the amendment proposed by Senator Bacik for section 4, that he has concerns about overuse of delegated legislation. The same issue applies here. While the Minister should be able to introduce regulations to implement details of this legislation because the principles have been set out, I am concerned about this provision and the precedent that any such regulations might modify any provision of this part of the Bill which continues: "in so far as may be necessary or expedient". That provision might be in many Bills. It means the Minister can amend the primary legislation.

When we implement and transpose EU directives, we are able to do so by regulation because of their volume. However, when the legislation is of this type, it is unwise to have this type of provision whereby regulations or statutory instruments can amend primary legislation. This is a bad precedent if only for the sake of having transparency and clarity in the legislation.

When I raised this matter on Second Stage there was a response to the effect that there had been a precedent in another Act. I suggest that this precedent may have been unfortunate and should not be followed here. I ask the Minister to consider this amendment which I do not believe can be classified as merely a technical amendment. It is the principle that concerns me, however, namely, that we would be able to change primary legislation by a statutory instrument.

The matter is referred to in the Oireachtas Library and Research Service Bills digest in respect of the Fines Bill. Reference is made to the Supreme Court case, Cooke v. Walsh. There are other precedents in regard to this matter but specific reference was made in the Library research to the effect that this is something that has been frowned upon by the Supreme Court.

I ask the Minister to consider my amendment. It does not contradict another amendment tabled by Senator Bacik in which the Minister is asked to make regulations to provide for a centralised system of data collection and retention on sentences. That is a most worthwhile and important proposal but such a proposal does not amend the Act. It is on the principle of having clarity in the law and because of an unwelcome precedent that I put the amendment to the Minister.

I support Senator Regan's points. In the context of what the Minister said about the caution with which the Attorney General approached the issue of primary versus secondary legislation, it is interesting it was thought better, for example, to make changes to the value of money in the Bill through primary rather than secondary legislation. In my earlier response to the Minister on amendment No. 3 I acknowledged this was probably a cautious and wise approach to take, but I believe Senator Regan's proposed amendment is in keeping with the caution to which the Attorney General adheres. Senator Regan suggests that the provisions in section 11(1) currently give the Minister too much power to make changes through regulation. I am grateful to the Senator for his point about my amendment to section 11. It is somewhat different in that it simply provides that the Minister will have power to ensure there is a centralised statistical system of gathering into place sentencing data. It is different from the notion that the Minister can change aspects of the legislation through regulation and, therefore, I support Senator Regan's amendment.

I have some sympathy with the argument on the use of secondary legislation. However, the Supreme Court primarily found fault with the making of legislation, as such, by means of secondary legislation because in some Departments there was a practice whereby Acts were changed by secondary legislation rather than by having to go through the rigours of primary legislation.

This legislation itself is ground-breaking and fairly complicated, especially in regard to the change from punts, or Irish pounds, into euro, as witnessed by the fact that we are going back as far as 1914 in respect of the indexing or upgrading of fines. There may be mistakes or difficulties that will occur in the initial stages of the legislation but we are being careful in that there is a three-year limit to how it will operate.

Senator Regan is right concerning the last dealing of this. We gave the example that it was not a unique or once-off provision but has been used in other legislation, primarily in section 5 of the British-Irish Agreement of 1999 which stated that if within three years of the coming into operation of Part II any difficulty were to arise in bringing a provision into operation or concerning the operation of such provision, the Minister may propose regulations that may remove these difficulties so the provision might be brought into operation.

The words the amendment seeks to delete would also allow the regulations to modify any provision to facilitate its coming into effect. The word "modify" is not defined but the ordinary dictionary definition means to moderate, meaning to keep within measure or bounds. It most certainly does not mean to change substantially, which is something the courts would not allow. It is simply facilitating the coming into effect of what is already legislation.

I can understand the reluctance with regard to secondary legislation but this is genuinely made to cater for a position if an anomaly arises in the implementation of this legislation. It could be dealt with easily rather than having to come back for primary legislation. It is not endeavouring to change legislation dramatically.

That is the language. The Bill states "such regulations may modify any provision of this Part" so the legislation adopted in the Oireachtas could be changed. My concern, given the precedent referred to of the British-Irish Agreement Act 1999, is that we will have another precedent and it will become a standard practice whereby primary legislation can be amended by ministerial order. That is undesirable and should not be sanctioned.

Question put: "That the words proposed to be deleted stand."
The Committee divided: Tá, 26; Níl, 20.

  • Boyle, Dan.
  • Brady, Martin.
  • Butler, Larry.
  • Callely, Ivor.
  • Carroll, James.
  • Carty, John.
  • Cassidy, Donie.
  • Corrigan, Maria.
  • Daly, Mark.
  • Ellis, John.
  • Glynn, Camillus.
  • Hanafin, John.
  • MacSharry, Marc.
  • Mooney, Paschal.
  • Ó Brolcháin, Niall.
  • Ó Domhnaill, Brian.
  • Ó Murchú, Labhrás.
  • O’Brien, Francis.
  • O’Donovan, Denis.
  • O’Malley, Fiona.
  • O’Sullivan, Ned.
  • Ormonde, Ann.
  • Phelan, Kieran.
  • Walsh, Jim.
  • White, Mary M.
  • Wilson, Diarmuid.

Níl

  • Bacik, Ivana.
  • Bradford, Paul.
  • Burke, Paddy.
  • Buttimer, Jerry.
  • Cannon, Ciaran.
  • Coffey, Paudie.
  • Coghlan, Paul.
  • Cummins, Maurice.
  • Donohoe, Paschal.
  • Healy Eames, Fidelma.
  • McCarthy, Michael.
  • McFadden, Nicky.
  • Norris, David.
  • O’Toole, Joe.
  • Phelan, John Paul.
  • Prendergast, Phil.
  • Quinn, Feargal.
  • Regan, Eugene.
  • Ryan, Brendan.
  • Twomey, Liam.
Tellers: Tá, Senators Niall Ó Brolcháin and Diarmuid Wilson; Níl, Senators Maurice Cummins and Eugene Regan.
Question declared carried
Amendment declared lost.

I move amendment No. 31:

In page 10, lines 33 to 36, to delete subsection (2).

In a way, this amendment goes with the previous amendment because——

(Interruptions).

Please, Senator Regan wishes to contribute on the Bill.

Had the previous amendment been accepted, one would not have needed this provision, so they stand or fall together. I will not press the amendment, but I put it to the Minister that a reformulation of the term "modify any provision" could be considered for Report Stage. Some language could surmount the problem without necessarily deleting everything, but I will leave the matter with the Minister. I will not press this amendment as it goes with the previous amendment.

I will add to Senator Regan's comments. Given the wording of section 11 as a whole, a difficulty arises with the use of the word "modify" in subsection (1). I accept Senator Regan's statement to the effect that his amendment No. 31 is closely linked with amendment No. 30. In respect of the provision generally, however, the Minister has given different legislation as a precedent for the formula, in particular the use of the word "modify", namely, the British-Irish Agreement Act 1999. Clearly, it is not a criminal statute whereas the Fines Bill would be. In this instance, the Attorney General would probably urge caution in the use of any powers to provide for principles through secondary legislation, as doing so would be problematic. The phrase "modify any provision of this Part" in section 11(1) is problematic. Replacing it with the term "give effect to any provision of this Part" or "clarify any provision of this Part" might be preferable. Will the Minister consider this suggestion? Section 11(1) would not seem as problematic as it currently might do.

As I stated, I have some sympathy with the views expressed in this respect. I assure the House that the Attorney General and his office have spent a bit of time on this provision. They would not normally use it, but the Attorney General is adamant that, in the context of this ground-breaking legislation, there needs to be a contingency plan. As to examining the formulation, I can revert to the Attorney General and his office to determine whether something better can be done, although I am not sure anything can be done.

This provision and that of the British-Irish Agreement Act are not absolutelyad idem with each other and so I accept Senator Bacik’s point. The provision is phrased in a way that is completely new. As the Senator is aware, it will operate in the courts every day from the date of its commencement. We will know very quickly if difficulties arise in respect of it. We are appreciative of that possibility.

Amendment, by leave, withdrawn.

I move amendment No. 32:

In page 10, between lines 36 and 37, to insert the following subsection:

"(3) In particular, the Minister may by regulation provide for a centralised system of data collection and retention on sentences handed down in the District and Circuit Courts.".

This amendment relates to a matter I raised on Second Stage. As the Minister indicated, this legislation is ground-breaking in nature and we welcome it. We hope and anticipate it will reduce the number of persons imprisoned for failure to pay fines. The Irish Penal Reform Trust has again reminded us of the enormous number of people imprisoned, some 3,366 — an increase of over 50% on the total for 2008 — in the first ten months of 2009. The trust also highlighted the solid evidence that community service programmes are far more successful than custodial sentences when it comes to dealing with fine defaulters. In that context, it referred to an article by Ian O'Donnell and others from 2008 which states that 85% of fine defaulters currently return to prison within four years. An alternative must, therefore, be considered and I am delighted this is being done in the Bill.

As stated on Second Stage, however, the difficulty with assessing the impact of this legislation will arise in the context of the absence of any centralised source of data on sentencing in Ireland. I also pointed out on Second Stage that the Central Criminal Court provides information on the sentences it hands down but as the Minister is well aware, that court only deals with the most serious offences of murder and rape. The bulk of cases in respect of which the legislation will have an impact will be heard in the District Court and, to a much lesser extent, in the Circuit Court. We will need to know whether the legislation works. We will also require information on the type of sentences courts will be handing down and statistics relating to the number of fine defaulters who will be given community service.

A centralised system of data collection and retention for sentences handed down in the District Court and the Circuit Court is long overdue. The Minister will probably state that this Bill is probably not the ideal vehicle in which to provide for the establishment of such a system. I accept that but I decided to table the amendment in respect of this section which deals with the Minister's power to make regulations. An essential part of assessing the impact of this Bill will be trying to identify a source in respect of sentencing data.

The Minister referred to the practical impact of the legislation and indicated that it will be operated in the courts as soon as it comes into force. When I was starting out in practice in London, the magistrates' courts were just beginning to operate a new system of fines. These fines were imposed on a sliding scale and were based on an offender's ability to pay. I am sure the Minister's officials investigated this matter and he will be aware that the system to which I refer was discontinued as a result of difficulties with its workability. I recall that its operation was extremely complex.

To ensure the system set out in the Bill works, there will be a need for us to arrive at a better way to assess its impact and obtain information relating to the type of sentences that will be handed down in the District Court and the Circuit Court. A huge volume of cases is dealt with in the District Court and it is difficult to ascertain patterns in respect of sentencing, the imposition of fines and the level of fine default. I am concerned we will pass the legislation but that we will never know for sure — other than by means of the usual anecdotal reports, which are not satisfactory — how it will work in practice. If he is not willing to accept the amendment, would the Minister contemplate providing for such a centralised system in some other legislation or in some other way?

I support the amendment and I accept Senator Bacik's observation regarding whether it should be included in this legislation. In light of the extent to which law is administered in the District Court and the Circuit Court, the matter to which the amendment relates is very important. A system such as that suggested would act as a guide to policy and would provide essential and useful feedback on what happens in the courts. Ultimately, it would bring about greater coherence in respect of sentencing. The amendment has merit and, regardless of whether the Minister accepts it or commits to its being dealt with in some other context, it is to be commended.

In effect, Senator Bacik anticipated what I was going to say. This is not the Bill in which to deal with this matter. I am not sure if I can provide a commitment to consider it in the context of other legislation because it could possibly interfere with the data collection system, the Irish sentencing information system, ISIS, being developed by the Judiciary with the aid of the Courts Service. The development of said system is being overseen by a steering committee which was established by the Courts Service board and which is chaired by Ms Justice Susan Denham of the Supreme Court. The steering committee is comprised of a judge from each court jurisdiction as well as a leading academic expert on sentencing.

I understand a number of pilot projects have been run in several court jurisdictions, including the Circuit Criminal Courts in Dublin, Cork and Limerick, the District Court in Dublin and the Court of Criminal Appeal. The outcome of these projects is being reviewed and assessed by judges prior to final evaluation and establishment. It is envisaged that in addition to the content which is being compiled, following consultation with the Data Protection Commissioner, the system will contain references to leading cases on sentencing and summaries and links to significant judgments on sentencing law, statistical data and academic material on sentencing. This system will act as a valuable support to judges when they are considering the sentences to be imposed in individual cases.

Moves are also afoot at EU level in order that a common platform will operate across Europe. As already stated, the responsibility in this area lies primarily with the Judiciary on the basis that the information is for use by them in the context of achieving consistency in respect of sentencing. The information to which I refer will also be available to practitioners.

I thank the Minister for providing an update, although he did not indicate when this project is likely to come to fruition. We have been waiting some time for information relating to its outcome. I am aware that a number of pilot projects were conducted. Unfortunately, there have been many such projects in the field of criminal justice, for example, the drug treatment courts, etc., but we never tend to see these being rolled out. Placing the initiative of the Courts Service and the Judiciary on a statutory basis or providing a timeline in order that we might know when the system will come into effect might prove useful. The work relating to this system has been ongoing for some time.

Amendment, by leave, withdrawn.
Section 11, as amended, agreed to.
SECTION 12.

Amendments Nos. 33 and 34 are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 33:

In page 11, line 7, after "income" to insert the following:

"and the amount and nature of the person's annual outgoings".

The purpose of amendment No. 33 is to provide greater clarity in respect of the workings of section 12, which sets down the criteria by which a court will assess the financial circumstances of a person who has been convicted of an offence. Section 12(a) should have regard to the amount of a person’s annual income. The amendment suggests that this should also include the amount and nature of the person’s annual outgoings. It is clear that if someone has a large number of outgoings, especially those of a fixed nature, such as rent, mortgage payments, child support payments, court-ordered maintenance payments, etc., these should be taken into account. Otherwise, the court might obtain a false or inflated sense of the resources available to a person.

Amendment No. 34 relates to section 12(b) and is designed to ensure a court considers all the assets of a person and not just his or her real or personal property. There could be assets which do not fall within the scope of the Bill, such as intellectual property, shares etc.

I note the Irish Penal Reform Trust has suggested another point on section 12(b) to the effect that the estimated value of real property, in particular, should be assessed, together with the potential for sale in the prevailing real estate market. Such potential for sale might be zero in the prevailing real estate market, but this is an attempt to give the court a better sense of reality regarding a person’s assets and resources when it is trying to assess his or her financial circumstances under section 12. Again, the intention is to try to make it more workable and give the court a little more information before it makes its judgment based on financial circumstances and ensure it is not given either an inflated sense of a person’s income or a deflated sense of a person’s assets, as a person might be wealthy in terms of assets other than real and personal property belonging to him or her.

This proposal was the subject of significant discussion in the other House and I undertook to re-examine it. However, the view of the drafters of amendment No. 33 is that paragraphs (c), (d) and (e) of section 12 significantly deal with the issue of financial circumstances and that what is being proposed would not add to it in any way.

As for amendment No. 34, section 12(b) is drafted in such a way that no assets are excluded. It specifies “the aggregate value of all property (real and personal) belonging to the person”. Again, the Parliamentary Counsel’s view is that this allows for a situation in which no property or assets will be excluded.

Amendment, by leave, withdrawn.
Amendment No. 34 not moved.
Section 12 agreed to.
NEW SECTION.
Government amendment No. 35:
In page 11, before section 13, to insert the following new section:
"13.—(1) A notification or other document that is required to be served on or given to a person under this Part shall be addressed to the person concerned by name, and may be so served on or given to the person in one of the following ways:
(a) by delivering it to the person;
(b) by leaving it at the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, at that address;
or
(c) by sending it by post in a prepaid registered letter to the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, to that address.
(2) For the purpose of this section, a company within the meaning of the Companies Acts shall be deemed to be ordinarily resident at its registered office, and every other body corporate and every unincorporated body of persons shall be deemed to be ordinarily resident at its principal office or place of business.".

This is a standard provision found in legislation where provision is made for a notification or other document to be served on or given to a person. A recent example of such a provision can be found in section 9 of the Charities Act 2009. An example of where such a notification is required under this Bill may be found in section 15(2), under which the Courts Service must notify the receiver in writing that a person has failed to pay a fine by the due date. As I noted, this should be a standard provision in the Bill.

Amendment agreed to.
SECTION 13.
Question proposed: "That section 13 stand part of the Bill."

While I have not tabled an amendment to the section, I flag for Report Stage that section 13(3) reads as though, even after all the circumstances are taken into consideration and the court decides a level of fine that will not have a detrimental effect on the situation of the defendant and his or her dependants, the court may still impose a fine greater than one that is reasonable in the circumstances. Again, I am grateful to the Irish Penal Reform Trust for raising this issue with me. In other words, section 13(3) implies that a court may impose an unreasonably high fine, notwithstanding the stated purpose of section 13(1). Has the Minister given any thought to this point? For example, has he considered limiting the power in section 13(3) to exceptional cases or requiring the court to provide an explanation of the reason an unreasonable sanction was provided for or decided upon? It appears as though section 13(3) contradicts section 13(1) because it more or less states that, in spite of the section's purpose, the court may impose a fine that is greater than the otherwise appropriate fine.

I am unsure of the point being raised by the Senator. Section 13(3) states:

A court may, in making a determination undersubsection (2), impose a fine that is greater than, less than or equal to the otherwise appropriate fine having regard to the purpose of this section but in any case a court shall not impose a fine that is . . . greater than the maximum fine . . . or . . . less than the minimum fine . . . to which a person would be liable upon conviction of the offence concerned.

It relates to the capacity of the person to pay. Obviously, if someone can well afford to pay a fine, that is something the court can take into account.

I wish to tease this out because it is an important point. I am trying to put myself in the shoes of a court or a district judge who is trying to reach a figure for a fine and considering the terms of section 13. I note that section 13(8) states this only applies where the court has discretion in determining the amount of the fine. Section 13(9) states:

"otherwise appropriate fine" means the fine that the court would impose on the person in respect of the offence ... if, in determining the amount of the fine, it were not required to take into account the person's financial circumstances.

If one then considers section 13(1), it states:

The purpose of this section is to ensure as far as practicable that, where a court imposes a fine on a person, the effect of the fine on that person or his or her dependants is not significantly abated or made more severe by reason of his or her financial circumstances.

Similarly, section 13(2) specifies that in determining the amount of the fine, the court must take into account the person's financial circumstances, while section 12 gives guidance to the court on the criteria to be used in determining the financial circumstances. However, section 12(3) appears to undermine all of these good intentions and purpose by stating a "court may, in making a determination undersubsection (2)”, in other words, in considering the amount of the fine taking into account the financial circumstances and deciding on a level it considers to be appropriate, impose a fine that is greater than the maximum fine.

I note that the purpose of section 13(3) is to give the court power to impose a fine that is greater than what would otherwise be appropriate if it considers that the person has sufficient assets to pay it. However, the Irish Penal Reform Trust has made the point that were this power to be included, it should only be capable of being exercised in exceptional circumstances and when an explanation was given because it appears to lead to a potential injustice, given the stated purpose as outlined in section 13(1). I have a concern in this regard because it allows the court to impose a fine that is greater than what would otherwise be appropriate if it did not consider financial circumstances because someone has plenty of assets, yet the courts also are being told to ensure there is no significant adverse effects on the person or his or her dependants. Consequently, will the Minister consider inserting a proviso to the effect that if the courts do this, they should at least be obliged to explain the reason they are so doing and that they should do so only in exceptional circumstances? I refer to the scenario in which a court was to impose a fine greater than the otherwise appropriate fine.

I do not believe it would be in exceptional circumstances because the section is endeavouring to deal with people who do not have the capacity to pay fines. The legislation is placing an onus on the court to take into account their financial circumstances. However, if, from the court's point of view, the financial circumstances of the person are not an issue, the court should be free to make a determination to impose a fine as it sees fit within the ambit of the legislation. I am not altogether certain that I am getting the Senator's point. Perhaps I will revert to this matter again on Report Stage. In the meantime my Department will examine the submission from the Irish Penal Reform Trust.

As I am thinking on my feet somewhat, I apologise for not being a little more coherent but to clarify, one must have regard to the standard drafting principle that where an ambiguity arises when one is dealing with a criminal statute, it must be interpreted in favour of the accused. As the Minister noted, the context is that the purpose of the Bill is to deal with those persons who cannot afford to pay what otherwise would be a reasonable fine. I take his point in this regard and acknowledge that they will provide the majority of cases to which section 13 will apply. However, the section also provides that a court may impose a fine greater than the otherwise appropriate fine. There is not sufficient criteria or clarity in the limits to a court's power to impose this greater fine. Presumably it is where a court considers that an offender has sufficient resources or assets to be able to afford to pay a higher fine but there are no criteria as to what are the circumstances in which the court can make that adjudication. It is fair that the court should impose a fine less than the otherwise appropriate fine where it considers that an offender simply does not have the resources or the effect on his or her dependants would be so severe if the otherwise appropriate fine was imposed.

My concern is that where a court breaks out of that and imposes a greater fine because it considers the accused is wealthy, this would impose a harsher sanction than what would be appropriate or reasonable in normal circumstances and yet there is no clear criteria as to the circumstances in which the court can make that adjudication. This is something that might be open to challenge. I accept it is something that would only arise in a very small number of cases and that the majority of cases would be cases where the court would impose a lesser fine. That is appropriate and in a criminal statute that power does not need to be as carefully demarcated. However, the power to impose the greater fine needs a little more clarity or precise demarcation, given the implications it might have.

This is an important point. The Minister said the court has the latitude to impose a fine that it deems fit and what it would deem fit is what it would deem appropriate. This seems arbitrary. A judge could impose a fine that is more than appropriate. In other words, the judge would have come to a reasonable conclusion as to what would work, be appropriate and fit and could then increase that fine for some arbitrary reason. That seems unreasonable. Perhaps this is something that should be revisited on Report Stage.

I will have another look at it but the idea behind this section was to put into practice the principle of equality of impact. We were endeavouring in circumstances where people could afford to pay to provide that the normal fine, as determined by the judge, would be struck but in circumstances where there would be a financial difficulty that a lesser sum than what would be regarded as the appropriate amount and could be struck. We are seeking to deal with this issue of equality of impact.

We will have another look at it between now and Report Stage but I cannot guarantee that we will come up with something better. The Senators might come up with their own formulation and we will have another look at it. I would be loathe to agree to something like saying this can only be done in exceptional circumstances because a court should be given discretion rather than tying its hands to exceptional circumstances.

The appropriate way to deal with this might be to delete the words "greater than" because the more I think about this the more I believe it would be open to challenge. A common law sentencing must be exercised in a reasonable manner. If a court is being told it can devise what would be an otherwise appropriate fine without regard to financial circumstances, when it would examine the financial circumstances, sections 12 and 13 would allow it to reduce the fine and that would be appropriate and fair to the accused because it would giving him or her a lesser sanction.

However the two words "greater than" also empowers a court to impose a more than reasonable fine on a person by virtue of his or her financial circumstances and that seems unfair to an accused and potentially in breach of that common law principle. I am trying to think of case law on that common law principle, but I believe there is some constitutional backing for the idea that sentencing should not be exercised in an unreasonable manner. I accept that the power is obviously subject to the maximum fine where that fine is imposed. As the Minister will be aware courts will often impose a fine that they consider reasonable and which is not the maximum fine in respect of a particular offence because of the circumstances of the offence and of the offender. This is giving the court power to sentence in an unreasonable manner that is unfair and disadvantageous to an accused because of his or her financial circumstances. It may only apply to a tiny number of accused persons but it is still a problematic phrase.

The Minister is probably right in that exceptional circumstances might not be the best way to deal with this but if the words "greater than" were removed, the true purpose of the section would become clear; it is to allow the court to impose a fine that is less than the appropriate fine where the offender cannot afford to pay the otherwise appropriate fine.

I will look at this again for Report Stage. We are not due to take Report Stage today.

A separate Report Stage would have to be ordered and it has not been ordered at present, but a change could be made to the Order of Business.

I do not want to delay the passage of the Bill but given that it is now 4.15 p.m. and that we still have a considerable number of amendments with which to deal, it may not be possible to get through Report Stage.

This is a Bill I would like to get on the Statute Book sooner rather than later.

We all would; we are all anxious to get it on the Statute Book sooner rather than later but we want to make sure it is effective legislation.

Question put and agreed to.
SECTION 14.
Government amendment No. 36:
In page 12, subsection (2)(b), line 37, to delete “from” and substitute “after”.

A court when directing that a fine be paid by instalments will specify the time during which the instalments will be paid. It can be for 12 months or a shorter period from the time the fine will otherwise have been due to be paid. This is called due date of payment.

The purpose of the official amendment is to ensure that in accordance with normal practice the time during which the fine must be paid in instalments commences the date after the fine would otherwise have had to be paid instead of the day itself. This is a minor drafting amendment.

Amendment agreed to.

Amendments Nos. 37 and 39 are related and may be discussed together. Is that agreed? Agreed.

Government amendment No. 37:
In page 12, subsection (3), to delete lines 38 to 40 and substitute the following:
"(3) Upon the application of a person to whom a direction undersubsection (1) applies, the court that gave the direction may, by further direction—”.

This provides for payment of fines by way of instalments. Subsection (1) permits an offender to make an application to the court that imposed the fine to use that method of payment. Subsection (7) obliges the court to inform the offender of his or her right to make such an application. It is the intention that the application can be made at a time after the court hearing at which the fine was imposed. For example, a person might not, for a number of valid reasons, have applied to pay by instalments when the fine was imposed but subsequently he or she might incur, say, a major expense that would make the paying of the fine and lump sum difficult. The Bill places no time limit on the making of such an application although common sense would suggest an application after the due date of payment would not be entertained. However, in order that there is no uncertainty, amendment No. 39 states that any application to pay by instalments has to be made before the receiver is notified of the default. This is likely to be several weeks after the default as some breathing space is given to persons to pay following a series of reminders.

Amendment No. 37 is consequential to providing that an application can be made any time up to the notification of the receiver of the default. This is because a person can make a further application for the extension up to one year after the original application. It is necessary that the two applications are not confused. The first application is to pay by instalments and the second is for an extension to the original period of payment directed by the court.

Amendment agreed to.

Amendments Nos. 38, 56 and 64 are related and may be taken together by agreement. Is that agreed? Agreed.

Government amendment No. 38:
In page 13, lines 22 to 30, to delete subsection (6).

These are essentially drafting amendments. The drafter has decided that subsection (6) of section 14 while correct does not fit comfortably in section 14. Its purpose is to establish the appropriate period of imprisonment when a fine has been partially paid by instalments. This is already achieved in section 17 at the inserted section 2A(3) into the Courts (No. 2) Act 1986 in relation to defaults on fines imposed on indictment.

I now propose to include a similar provision relating to fines imposed on summary conviction into the inserted subsection (1)(b) into the amended section 2 of the 1986 Act. This is a more obvious place for these amendments as the relevant provisions in section 17 already deal with the appropriate periods of imprisonment where the receiver can only recover part of the fine or the proceeds of seized goods that might only satisfy part of the fine.

It is also proposed to add the same definition of "fine" to section 2A of the Courts (No. 2) Act 1986, as is being added to section 2, that is, to ensure that it does not include the fees and expenses of the receiver. These only have a relevance in section 15.

Amendment agreed to.
Government amendment No. 39:
In page 13, between lines 33 and 34, to insert the following subsection:
"(8) An application referred to insubsection (1) may be made at any time before the notification of the receiver under subsection (2) of section 15.”.
Amendment agreed to.

I move amendment No. 40:

In page 13, lines 34 and 35, to delete subsection (8).

This was raised in the Dáil and I also raised it on Second Stage. The purpose of this amendment is to delete the subsection which imposes a limit and states that it should apply only to fines greater than €100. Overall, we very much welcome this section and the power to pay fines in instalments. It will be very useful in terms of keeping people out of prison and enabling them to manage their budgets. However, it does not seem necessary to state that only fines greater than €100 will come within its terms.

I do not see why it is not possible to pay a fine of €70, €80 or €100 in instalments. For example, with non-payment of refuse charges, local authorities have systems where people can make repayments in instalments of as little as €5 per week. This can be a much easier way for people to pay off relatively small debts of €70 or €80. Where people are in receipt of social welfare payments, earning subsistence wages or in part-time work and where every penny is accounted for in weekly outgoings, it may be problematic to pay a €100 fine in one instalment. It might be appropriate to give courts the power to order instalments for fines of less than €100.

As I said the last day, it applies to any fine greater than €100 so even a fine of €100 cannot be repaid by instalments. That seems out of keeping with the very welcome purpose of the section and its ethos, namely to try to keep people out of prison when they simply cannot afford to pay fines.

I acknowledge the Penal Reform Trust's support for this amendment. It also suggested that the limit of €100 should be removed. There is no reason for it. I simply suggest that this subsection be deleted from the Bill.

I support this amendment. The Minister spoke about leaving discretion to the court to decide. This is one case where it can be left to the court to decide what is appropriate. This limit is regressive. In a way, it runs contrary to the purpose of the Bill which is to deal with situations where people find themselves unable to pay fines and face the threat of committal to prison. It does not add to the Bill to have this cut off point. It could be left to the court to exercise its discretion in how it determines the fines and how they are to be paid.

If one could pay fines of under €100 by instalments, it would lead to a substantial workload on the Courts Service. A conservative estimate suggests 10,000 such successful applications annually. Less than 10% of the total number of fines imposed could realistically lead to an additional 100,000 transactions.

When one looks at the type of fines imposed in the District Courts, 70% relate to motor traffic offences. Normally, the fines are more than €100. The percentage of fines for road traffic offences, which result in a fine of less than €100, is approximately 70%. If people are unable to pay, that section kicks in. The court would have to take that into account, so it would impose an appropriate fine based on the person's circumstances. Some 70% of the fines imposed in the District Courts are for road traffic offences and if people are able to afford a car, they should be well able to afford a fine of more than €100. This is to ensure the Courts Service does not collapse under the bureaucratic system which would have to be built in for fines. We have gone as low as we felt possible in consultation with the Courts Service.

With respect, that is not an appropriate response. To state it would impose an undue burden on the Courts Service rather than refer to any principled reason for this limit does not seem to be an adequate answer. We may see courts' discretion being fettered because a judge will know a fine of less than €100 cannot be paid in instalments. We might reach a very unsatisfactory outcome where courts impose higher fines to give people the capacity to pay in instalments which runs contrary to the principle, the Title and stated purpose of the Bill.

I do not see an administrative burden as sufficient reason. There will be ways to automate fine collection and to ensure it is done in a more streamlined fashion in order that it does not impose such a burden on the Courts Service. I do not believe the answer is simply to impose an arbitrary limit of €100 for fines to which the instalment power can apply.

I intend to press this amendment because it relates very much to the purpose, stated ethos and Title of the Bill in seeking to modernise the fine collection system as much as anything else and to ensure fewer people are sent to prison for non-payment of fines if they cannot afford to pay. I ask the Minister to consider it again.

The Minister mentioned road traffic offences and that people who are fined have a car and presumably some means. It could be confined to those types of offences and in that way, it would not cut across those who have a genuine problem paying a fine of €100.

To what could it be confined?

It could be confined to the type of offences to which the Minister referred.

Road traffic offences.

Senator Regan raised a point I should have mentioned in response to the Minister's reference to road traffic cases. That conjures up a very different picture of somebody who, as Senator Regan said, owns a car and, therefore, has some means. In that situation, it may well be that most of the fines are more than €100.

My experience of cases where fines are imposed are not in the road traffic cases but public order offences, possession of cannabis and prostitution-related offences where people are, for the most part, genuinely impecunious. Some €100 is a significant amount of money in terms of loitering and soliciting and public order offences. Routinely fines of €50 are imposed in those instances. It is not that there are few cases where fines of less than €100 are imposed. They tend to be imposed where people genuinely have difficulty paying it in one instalment.

We looked at this very carefully and wanted to be fair to people. Equally, we did not want to overburden the system with this new provision which has been welcomed by everyone. It is not unreasonable to expect somebody fined a sum of up to €100 to pay it in one go given that 70% of all fines are for road traffic offences.

While Senator Regan's proposal to restrict this to non-road traffic offences might be sound and good, the Attorney General would probably not run the rule over it on the basis that it is relatively arbitrary. We are trying to be fair to people in this legislation. If people were be fined similar amounts for different offences, some would be able to pay by instalment while others would not. The idea of this legislation is to have equality of impact. If one was to try to apply this provision to one type of offence, as opposed to others, it would not be fair. It was suggested that the threshold should be higher but I considered, in the circumstances, that the figure of €100 placed an onus on the Courts Service to allow for instalment procedures for fines above what is a relatively small figure. While I accept people may be in difficulty, the provisions on capacity to pay will have already kicked in under the legislation.

As I stated, I do not accept administrative expediency as a reason for imposing what I would describe as an arbitrary limit of €100 and for this reason, I will press the amendment.

There does not appear to be any good reason for providing that the power to pay in instalments will apply only to fines of €100 or greater. This approach will lead to hardship and have the unfortunate outcome of courts imposing higher fines than they would otherwise have done to enable people to pay in instalments. The current provision may result in the administratively awkward practice of courts imposing fines of €101 to ensure people have the capacity to pay in instalments. In principle the amendment is worth pressing.

I do not believe the provision would be operated as described. Judges would not specifically fine someone €101 to allow him or her to pay in instalments when they have the ability to take into account the person's financial circumstances and impose a fine of a lesser amount. The scenario presented by the Senator does not make sense.

A figure of €101 may appear nonsensical but under the wording of the section the instalment option will only apply to fines greater than €100. For this reason, a fine of €100 would not attract the power to pay in instalments. As I indicated during the previous debate on the Bill, leaving aside the larger point about the limit, the section should at least use the words "greater than or equal to €100" to provide that fines of €100 could also be paid in instalments. As the Minister indicated, a fine of €100 is much more common than a fine of €101. The reason judges will issue fines of €101 is that they will realise that the power to pay in instalments only kicks in for fines exceeding €100. Greater clarity is necessary to ensure fines of €100 and above are covered by the instalment option.

Question put: "That the words proposed to be deleted stand."
The Committee divided: Tá, 26; Níl, 19.

  • Boyle, Dan.
  • Brady, Martin.
  • Butler, Larry.
  • Callely, Ivor.
  • Carroll, James.
  • Carty, John.
  • Cassidy, Donie.
  • Corrigan, Maria.
  • Daly, Mark.
  • Ellis, John.
  • Glynn, Camillus.
  • Hanafin, John.
  • MacSharry, Marc.
  • Mooney, Paschal.
  • Ó Brolcháin, Niall.
  • Ó Domhnaill, Brian.
  • Ó Murchú, Labhrás.
  • O’Brien, Francis.
  • O’Donovan, Denis.
  • O’Malley, Fiona.
  • O’Sullivan, Ned.
  • Ormonde, Ann.
  • Phelan, Kieran.
  • Quinn, Feargal.
  • White, Mary M.
  • Wilson, Diarmuid.

Níl

  • Bacik, Ivana.
  • Bradford, Paul.
  • Burke, Paddy.
  • Buttimer, Jerry.
  • Cannon, Ciaran.
  • Coffey, Paudie.
  • Coghlan, Paul.
  • Cummins, Maurice.
  • Donohoe, Paschal.
  • Fitzgerald, Frances.
  • Healy Eames, Fidelma.
  • McFadden, Nicky.
  • Norris, David.
  • O’Toole, Joe.
  • Phelan, John Paul.
  • Regan, Eugene.
  • Ross, Shane.
  • Ryan, Brendan.
  • Twomey, Liam.
Tellers: Tá, Senators Niall Ó Brolcháin and Diarmuid Wilson; Níl, Senators Ivana Bacik and Brendan Ryan.
Question declared carried.
Amendment declared lost.

Amendments Nos. 41 and 42 are related and may be discussed together.

Government amendment No. 41:
In page 13, lines 36 to 43, to delete subsection (9) and substitute the following:
"(9) In this section "due date for payment" means, in relation to a fine, the date by which the fine would, but for a direction under this section, be required to be paid in accordance with the order of the court that imposed the fine.".

I thank Senator Regan for bringing this matter to our attention. Several amendments were made to section 14, the effect of one which was that the "due date for payment" definition was rendered unnecessary. However, it remained owing to an oversight. Our amendments take care of the problem.

I thank the Minister. We define the term "due date for payment" in a couple of sections of the Bill. As it is now a standard definition, I wonder whether it should be included in the defintions section in order that this overlap can be avoided. I appreciate that the point I made has been taken on board in the amendment. I know there have been many amendments, but having the same definitions in all of the sections is probably unnecessary.

There is only one necessary definition which is included in section 14. We do not believe it is necessary to copy it in other sections. It is a matter of leaving it where it is.

It is included in sections 15, 19 and 59. We also have the standard definition. This is not a point of principle. I am putting it to the Minister that as we are repeating the definition, perhaps a standard single definition could be inserted in the definitions section.

I am satisfied that it is only necessary to include it in section 14.

It is a fact that the same definition is included in three sections. I am not arguing with the Minister on the actual definition included, but rather that it would be more elegant if there was one common definition without repetition in each section. Perhaps, therefore, the phrase, "In this section "due date for payment" means," is unnecessary. It is a question of drafting.

Amendment agreed to.
Amendment No. 42 not moved.
Section 14, as amended, agreed to.
SECTION 15.
Government amendment No. 43:
In page 14, subsection (1), lines 1 to 4, to delete paragraphs (a) and (b) and substitute the following:
"(a) recover—
(i) the fine, or, as may be appropriate, that part of the fine that, upon the notification of the receiver undersubsection (2), remains unpaid, and
(ii) the fees of the receiver and the expenses reasonably incurred by the receiver in the performance of his or her functions, or
(b) seize and sell property belonging to the first-mentioned person and recover from the proceeds of the sale of that property a sum equal to the amount of—
(i) the fine, or, as may be appropriate, that part of the fine that, upon the notification of the receiver undersubsection (2), remains unpaid, and
(ii) the fees of the receiver and the expenses reasonably incurred by the receiver in the performance of his or her functions.".

When a receiver is notified by the Courts Service that a person has not paid a fine by the due date, the recovery order made by the court when the fine was imposed will take effect. This gives the receiver power to recover the fine or seize or sell property belonging to the offender equal to the amount of the fine. It may be that part of the fine was paid, for example, by instalments. One of the purposes of the amendment is to give the receiver power only to recover either the part of the fine that remains unpaid, or seize or sell property equal to the value of the unpaid part of the fine. While it may be implied that the receiver can only recover money or property to the value of the unpaid part of the fine, it is desirable to set it out clearly in the Bill.

The other purpose of the amendment is to permit the receiver to recover his or her fees and expenses reasonably incurred in the performance of his or her duties. Appropriate fees will be set out in a fees order and a record of expenses will have to be maintained and given to the Courts Service every six months. Any overcharging on the expenses could have implications for a contract between the Courts Service and the receiver and could also be a criminal offence.

Amendment agreed to.
Government amendment No. 44:
In page 14, subsection (2), line 9, to delete "notify" and substitute "notifies".

This is a drafting amendment which acknowledges that the Courts Service is singular, rather than plural.

Amendment agreed to.
Government amendment No. 45:
In page 14, subsection (3), line 25, to delete paragraph (e) and substitute the following:
"(e) insure the property, and”.

This is a drafting amendment that adds the word "and" to the end of paragraph (e) of subsection (3) which sets out the rights and responsibilities of a receiver as authorised by the court.

Amendment agreed to.

Amendments Nos. 46 to 53, inclusive, are related and may be discussed together.

Government amendment No. 46:
In page 14, subsection (4), lines 33 to 36, to delete all words from and including "court" in line 33 down to and including "functions." in line 36 and substitute "court.".

On Report Stage I introduced a list of amendments setting out how the provisions relating to the receiver would operate in practice and how receivers would be appointed. The purpose of these amendments is to put on a statutory basis measures that are necessary to ensure the fees the receiver can charge and the expenses he or she can claim are open, transparent and reasonable. Taking the amendments in sequence, amendment No. 46 removes the requirement relating to the vouching of expenses; instead of placing the time-consuming responsibility on the Courts Service for vouching every expense, it puts the onus on the receiver of making and maintaining a record of expenses and fees and forwarding them to the Courts Service at a regular interval. I will mention these aspects of the amendments, but, first, I would like to say a few words about amendment No. 47.

Section 15(4) obliges a receiver to perform his or her functions subject to directions or conditions specified in the recovery order, including any directions or conditions having regard to the payment of amounts received in court. Amendment No. 47 allows the receiver to apply to the court for directions relating to the performance of his or her functions. Receivers will have to contend with many circumstances when performing their duties, ranging from recovering small to very large amounts. It is wise that the receiver be given power to apply for directions to the court in specific circumstances.

Amendment No. 48 deals with what will happen if the receiver recovers or sells property of greater value than the amount of the fine or the unpaid part of the fine. It repeats the provision under which the receiver will be obliged to return to the offender the part of the proceeds of the sale that exceeds the amount of fine or the unpaid part of the fine. In addition, for the purposes of this provision, the normal definition of "fine" is changed so as to include the fees of the receiver and expenses reasonably incurred by him or her. This is because when the fine is imposed, it will not at that stage be known what the exact amount of the receiver's expenses will be; therefore, they will not form part of the fine. This also entails the deletion of the definition of "fine" in amendment No. 52 for the purposes of the section. The definition of "fine" in section 12 will apply to this section.

Amendment No. 49 deals with the making of a fees order by the Minister for Justice, Equality and Law Reform with the consent of the Minister for Finance. I envisage that the fees orders made under this provision will be similar to those made under the provisions set out for sheriffs and Revenue sheriffs under which they operate. The work they will perform will essentially be the same.

Amendment No. 51 obliges the receiver to make and maintain a written record of the fees deducted and expenses incurred and deducted from the sum recovered, or the proceeds of any sale of property pursuant to a recovery order. At least every six months the receiver will give the Courts Service the written record of fees and expenses. The making of false and misleading entries in the record will be a criminal offence. I have decided to create this offence for which there will be severe penalties because where false and misleading information is given, there is the potential for considerable amounts of money to be involved. I also envisage that the contract between the receiver and the Courts Service will be drawn up in such a way that in such circumstances the contract will be immediately terminated.

Amendments Nos. 50 and 53 are largely drafting amendments. The only difference between section 15(8) being deleted and the new section 16 is the addition of the receiver's fees to the moneys that can be subtracted from the moneys that will be paid into the Exchequer as a result of the appointment of the receiver.

The amendments complete the scheme proposed for the operations of the receiver. During the Dáil debate, particularly on Report Stage, the role of the receiver was revised and made more central in how the default provisions would work. The revised role of the receiver made it important that the fees and expenses provisions were fully thought through and included in the Bill, instead of being left to administrative action or rules of court. The amendments will facilitate a smoother operation of the receiver provisions, as well as obliging receivers to maintain proper records of expenses.

Amendment agreed to.
Government amendment No. 47:
In page 14, between lines 36 and 37, to insert the following subsection:
"(5) A receiver may, at any time after receiving a notification undersubsection (2), apply to the court that made the recovery order under which he or she was appointed for directions in relation to the performance of his or her functions under this Act.”.
Amendment agreed to.
Government amendment No. 48:
In page 14, lines 41 to 45, to delete subsection (6) and substitute the following:
"(6) (a) Where the receiver sells property belonging to the person in relation to whose property the receiver has been appointed and the proceeds of the sale exceed the amount of the fine or the amount of the fine remaining unpaid, as the case may be, the receiver shall pay to the person so much of those proceeds as exceeds that amount.
(b) In this subsection “fine” includes the fees of the receiver and any expenses reasonably incurred by the receiver in the performance of his or her functions.”.
Amendment agreed to.
Government amendment No. 49:
In page 15, between lines 7 and 8, to insert the following subsection:
"(8) (a) The Minister may, by order, specify—
(i) the fees that a receiver may deduct from any sum or sums recovered by him or her, or obtained from the proceeds of the sale of any property by him or her, in accordance with this section, or
(ii) the rates at which fees that may be so deducted shall be calculated.
(b) The Minister shall not make an order under this subsection without the consent of the Minister for Finance.”.
Amendment agreed to.
Government amendment No. 50:
In page 15, lines 8 to 13, to delete subsection (8).
Amendment agreed to.
Government amendment No. 51:
In page 15, between lines 13 and 14, to insert the following subsections:
"(9) The receiver shall make and maintain a record in writing of—
(a) the fees deducted, and
(b) the expenses incurred and deducted, by him or her from the sum or sums recovered, or the proceeds of the sale of any property sold, by him or her pursuant to a recovery order.
(10) The receiver shall, not later than 6 months after the performance by him or her of his or her functions pursuant to a recovery order, give to the Courts Service the record required to be made and maintained undersubsection (9) relating to that recovery order.
(11) If a receiver makes, or causes to be made, an entry in a record required to be made and maintained undersubsection (9) that—
(a) is false or misleading in any material respect, and
(b) he or she knows to be false or misleading,
he or she shall be guilty of an offence and shall be liable—
(i) upon summary conviction to a class A fine or imprisonment for a term not exceeding 12 months or both, or
(ii) upon conviction on indictment to a fine not exceeding €50,000 or imprisonment for a term not exceeding 5 years or both.
(12) A record required to be made and maintained undersubsection (9) shall be in such form as the Courts Service shall determine.”.
Amendment agreed to.
Government amendment No. 52:
In page 15, subsection (9), to delete lines 21 and 22.
Amendment agreed to.
Section 15, as amended, agreed to.
NEW SECTION.
Government amendment No. 53:
In page 15, before section 16, to insert the following new section:
16.—Monies paid into the court or otherwise received by it as a result of the appointment of a receiver undersection 15 shall be paid to the Minister for Finance and such monies shall be paid to, or disposed of for the benefit of, the Exchequer in such manner as the Minister for Finance may direct.
Amendment agreed to.
SECTION 16.

Amendments Nos. 54, 55 and 57 are related and may be discussed together.

Government amendment No. 54:
In page 15, subsection (1), lines 25 to 27, to delete paragraph (a) and substitute the following:
"(a) by the insertion of the following definitions in subsection (1) of section 1:
" ‘Act of 2010' means theFines Act 2010;
‘fine' has the same meaning as it has in section 2 (amended bysubparagraph (iii)# of section 17(a) of the Act of 2010) of the Courts (No. 2) Act 1986;”,”.

The purpose of amendment No. 54 is to ensure the definition of "fine" is properly inserted in the Criminal Justice (Community Service) Act 1983 and that the reference to the Fines Act 2010 is correct. Under the 1983 Act, community service can only be imposed by a court as an alternative to imprisonment. In this legislation I am extending the possibility of community service being imposed to situations where a fine has not been paid by the due date and a receiver has been unable to recover the fine or the value in property. Therefore, by inserting in the 1983 Act provisions where the word "fine" is used, it is necessary to define "fine" for the purposes of that Act. The definition being inserted is the standard definition of "fine" as used in the Courts (No. 2) Act 1986 which it is proposed to amend by way of amendment No. 57 to section 17.

Section 2 of the Courts (No. 2) Act 1986 deals with the consequences of not paying a fine by the due date for payment. It applies only to fines imposed in the District Court. Amendments Nos. 55 and 57 give the proper reference in the Courts (No. 2) Act 1986 to the Fines Act 2010 and provide for a new definition of "fine" in subsection (2) of the 1986 Act that excludes the fees and expenses of the receiver. This is necessary because the 1986 definition includes a reference to expenses, which could be confused with the receiver's expenses. The receiver's fees and expenses are dealt with separately in section 15 of the Bill.

Amendment agreed to.
Question proposed: "That section 16, as amended, stand part of the Bill."

I have a query on section 16(1)(b). Section 16 amends the Act of 1983 and states it applies to a person who has attained the age of 16 years. Does this mean fines can still be imposed on those under 16, but if they default they will still be imprisoned because the new provisions in respect of community service will not apply? I am not trying to catch anyone out on this, but am not clear why the age of 16 has been inserted.

The Children's Act 2001 deals with the regime of fines for children under the age of 18 and in most circumstances there is reference to community service and other sanctions.

I am aware of that, which is why I am puzzled by the age of 16 being inserted here, which makes it appear a child between the ages of 16 and 18 may be subject to two parallel regimes. I am trying to ensure there is co-ordination across the legislation and there is no dual regime in place.

The age of 16 is the minimum age for community service orders in both pieces of legislation.

Question put and agreed to.

As it is now 5 p.m, in keeping with the Order of Business set out this morning, I call on the Acting Leader to move the adjournment of the debate.

Progress reported; Committee to sit again.