I welcome the Minister of State, Deputy Fergus O'Dowd.
Fines (Payment and Recovery) Bill 2013: Committee Stage
Amendments Nos. 1 and 2 are related and may be discussed together, by agreement. Is that agreed? Agreed.
I am standing in for the Minister, Deputy Alan Shatter, who has to attend to other business. He sends his apologies.
I propose to take amendments Nos. 1 and 2 together. In the Bill, as it stands, only fines greater than €100 in value can be paid by instalments. However, under section 6(5)(b) where more than one fine is imposed at a court sitting, these fines can be added together and if the total exceeds €100, they can also be paid by instalments.
The Minister has considered this provision further in consultation with the Courts Service and has decided to replace the provision in subsection (5)(b). Amendments Nos. 1 and 2 provide instead that where a number of fines are imposed which do not qualify to be paid by instalments, the judge can take this into account in fixing the due date for payment. This could result in the judge fixing a later due date for payment for three €50 fines than he or she would have fixed in the case of one fine of €150, which could be paid by instalments, had been imposed.
Amendments Nos. 3, 4 and 8 are related and may be discussed together, by agreement. Is that agreed? Agreed.
These amendments address a number of issues. In the first instance, the Minister has considered again the orders to be made in default and is proposing a change from what is currently in the Bill. In the Bill, as it stands, a court can make any one of an attachment order, a recovery order or a community service order in default. The Minister proposes to change this in order that the court will under amendment No. 4 first consider making an attachment order. In the event that the court decides not to make an attachment order, it can then make either a recovery order or a community service order.
The Minister is also proposing in amendment No. 3 that recovery orders will only be made where the fine exceeds €500 in value, unless the fined person is a company. This is to avoid the appointment of receivers to recover small fines. Accordingly, except where companies are concerned, recovery orders may only be made where the court decides that it is appropriate to do so and the fine is greater than €500.
Amendment No. 8 is consequential to amendment No. 3 in relation to the making of recovery orders where the fined person is a body corporate. Under section 2(2) of the Courts (No. 2) Act 1986, where a company defaults on a fine, the fine is to be recovered by the seizure and disposal of the company’s assets. Amendment No. 8 repeals this provision in the 1986 Act in order that companies will now be dealt with in accordance with the provisions in section 7, which allow for the appointment of a receiver to recover the fine.
Were the concerns expressed by the Irish Penal Reform Trust about the use of community service orders under section 7 taken into account in these amendments? While I admit that the Bill provides useful safeguards against the automatic use of community service orders, their inclusion could nonetheless have a broadening effect. The use of community service orders for the non-payment of fines may undermine judges' confidence in the suitability or appropriateness of making an order as an alternative to a custodial sentence of up to 12 months, as provided for in the Criminal Justice (Community Service) (Amendment) Act 2011. The Irish Penal Reform Trust argues that consideration should be given to clarifying the use of community service orders under section 7 of the Bill, as distinct from their use under the Criminal Justice (Community Service) Act 1983. I recognise that the Minister of State, Deputy Fergus O'Dowd, has been handed this brief, but I ask that that the issue be clarified on Report Stage.
A priority is established beginning with the attachment order, which is attached to earnings rather the individual. I presume that a recovery order would be made where assets are available to be disposed of and that a community service order would be used where it is not possible to recover assets. A community service order provides for discretion in that context and that is probably why it has been included in the Bill.
In the Bill there is an incorrect cross-reference to subsection (4) at the start of section 8(1)(a). The amendment corrects the reference which should be to section 7(2).
I move amendment No. 6:
In page 11, to delete all words from "receiver," in line 35 down to and including "amount of—" in line 38 and in page 12, to delete lines 1 to 4 and substitute the following:
The ability of a court to seize a person's property and to sell it in the event of non-payment of a fine is going overboard, is not necessary and goes too far. With this provision, the receiver shall be able to seize a person's home and gain the proceeds of the sale of the person's home.
The amendment proposes to "delete all words from "receiver," in line 35 down to and including "amount of—" in line 38 and in page 12, to delete lines 1 to 4 and substitute the following: "receiver."." When we examine legislation, we must remember what we are trying to do, which is something that is often forgotten. The Government is saying people's properties should be protected in the context of banks seizing them when they do not keep up with mortgage payments but in this legislation, it is saying a person's property could be seized and sold. On top of this, the proceeds of the sale would be given to the receiver for the relatively small offence of not paying a fine. That is a massive disparity.
How can the Government promise citizens that their homes will be protected from banks, while at the same time drawing up legislation where a receiver can seize a person's house in the event of non-payment of a fine? Let us treat people like the adults they are. I also see one's home as part of one's fundamental rights.
The Minister may argue this is a last resort, which I think was the case made on Second Stage, but let us be a sophisticated country and not some banana republic as the legislation almost implies. Irish people have a particular reason for being property owners and this part of the legislation which infringes on much of that right is not in the right spirit. Do people know that in the legislation, there is another way for their property to be seized? How many home owners know this?
If we are to be reasonable, as legislators, this provision should be removed. We should not impose this sort of medieval legislation on citizens. I urge the Minister of State to accept this amendment and to show some common sense. The legislation relates to fines and not murder. How on earth does a person's property come into this legislation? This is over the top.
When we talked about this issue on Second Stage, it was said this would not happen, that it was just giving the power. I think we are all of the opinion that if somebody does not pay a fine, we should find some way to make him or her do so. However, to have the right to go as far as this is going much too far.
I thank the Senator for raising this issue. The amendment, if accepted, would have the effect of allowing for the appointment of a receiver under section 8(1)(a) but would prevent the receiver from seizing property and selling it. This would greatly reduce the efficacy of the receiver provisions in the Bill.
I do not think the definition of a property is a house. Subject to correction, I understand the average fine is €300. It is an appalling vista that 8,000 people went to jail last year for not paying fines of around that amount. This is progressive social legislation in that people will not be sent to prison. The property is not the home but property amounting to the value of the fine.
If the property is not their home, it would be to the value of the fine. The average fine is €300 and if property is involved, it will be a much smaller item than a person's home, which is critical to them. The court is required to take the person's financial circumstances into account. When the fine is being fixed, notwithstanding the provision for same in statute, the court must take into account the person's income. The fine may under the terms of the Bill be paid in instalments over 12 months. It is only if the person fails to pay the fine in full and the court decides that it is not appropriate to make an attachment order that the receiver provisions are engaged. Even then, the court can choose at its sole discretion to make either a recovery order or a community service order. Following the acceptance of amendment No. 3, it may only make a recovery order where the fine exceeds €500.
These receiver provisions are balanced and fair. They are on the Statute Book in a less nuanced form in the Fines Act 2010. They fit with the overall architecture of the Bill and the Minister is not prepared to amend them as the Senator suggests. I hope the issues as I have outlined them may put the Senator's mind at ease.
My mind is not put at rest at all because if somebody's home is not going to be taken from him or her, the legislation should state this. I acknowledge the fine may be €300, €400 or €500 and a house is more valuable than this, but if that is so, constraint should be provided for in this section. It is said an Englishman's home is his castle, but it is going too far in Ireland that somebody can invade one's home for non-payment of a fine. There must be some other way we can address this issue.
I support the Senator who has raised a valid point. I take the Minister of State at his word, but the Bill states "seize and sell property belonging to the fined person and recover from the proceeds of the sale of that property a sum equal to the amount...", and the amount is not specified. We are taking an extreme example, but Senator Feargal Quinn's comments are valid. Perhaps a definition of "property" is needed to clarify that we are not talking about a family home.
The provisions relating to recovery orders are the same as those in the Fines Act 2010. While the issue of a person's home is not addressed, it is difficult to conceive of a situation where a court would permit the seizure and disposal of a person's home to recover a fine. It would have to act proportionately. Under the legislation, the fine should be set at a level that takes account of the person's financial circumstances. Presumably, if the person has no account or assets other than his or her home, the fine would be set at a low level. I could not imagine a judge permitting the seizure of a house to pay a €300 fine. Even if such an order was made, I am sure it would be challenged quickly in a superior court. Assuming the small fine is not paid, the case would then come back before the court. Assuming the person is not working, the judge will then proceed to consider either making a recovery order or a community service order. If the fine is less than €300 and the person has no money or assets, it cannot be the subject of a recovery order following the acceptance of amendment No. 3. The person will either have to do community service or be sent to prison.
If the fine is more than €500, the court has the choice, but it must act judiciously. It is difficult to see how a decision to permit the seizure of a family home to satisfy a small fine would survive a challenge to the validity of the order of the court. In these circumstances, the Minister is satisfied that the legislation will not result in the seizure and disposal of family homes.
The issue Senator Feargal Quinn has raised has validity to be examined in greater detail based on the Minister of State's reply that this could happen under the Fines Act 2010.
It is an excellent point but perhaps the Fines Act 2010 needs to be rectified. I ask the Minister of State to revert to the Minister for Justice and Equality on studying the possibility of changing that Act. Somebody's home need not necessarily be made of bricks and mortar. For example, it may be a mobile home worth only €1,000 or €1,500. Therefore, we must be careful about our definitions of "home" and "principal primary residence". Senator Feargal Quinn should note the point made was excellent and that the issue was extremely well spotted. We may need to go further than the Bill before us in dealing with it. I suggest some work be done on the 2010 Act as opposed to delaying this Bill.
I will bring the comments of the Senators to the attention of the Minister for Justice and Equality for due consideration. I take the points they have made, particularly the last one. I will ask the Minister to re-examine the issue.
I will withdraw the amendment for the time being and we will have a look at it again before the next Stage.