Fines (Payment and Recovery) Bill 2013: Committee Stage

We have a quorum. This meeting has been convened to consider the Fines (Payment and Recovery) Bill 2013. Apologies have been received from the Chairman, Deputy Stanton. I welcome the Minister and his officials to the meeting. I make the usual request that all mobile phones be switched off completely because they interfere with the sound system. As this is Committee Stage, I ask members to make brief contributions and no speeches, please.

Section 1 agreed to.
SECTION 2

I move amendment No. 1:

In page 4, to delete lines 1 to 12 and substitute the following:

“ “appropriate court official”—

(a) in relation to a fine imposed by the District Court, means the district court clerk for the district court area in which the fine was imposed,

(b) in relation to a fine imposed by the Circuit Court, means the county registrar for the county in which the fine was imposed or, if a combined court office has been established under the Courts and Court Officers Act 2009 in respect of that county, the manager of that combined court office,

(c) in relation to a fine imposed by the High Court, means the principal officer serving in the Central Office attached to the High Court who manages such Central Office, and

(d) in relation to a fine imposed by the Central Criminal Court, means the registrar of the Central Criminal Court;”.

The definition of "appropriate court official" is used in a number of sections. Generally this is the person who issues notices under the Bill. The definition sets out who is the appropriate court official for each court. The amendment corrects the definition of the appropriate court official for the High Court and inserts one for the Central Criminal Court which was omitted in error from the Bill when published.

I support this amendment. Has the Minister any concerns about the issue of fines, particularly with regard to penalty points? In my view the system of justice has been let down in recent weeks. People like me pay our fines or take our two penalty points while others are walking away scot free. There has been a serious lack of fairness and justice with regard to this issue.

We cannot discuss penalty points at this meeting.

I understand that. However, it is a bit rich to talk about fines when people are walking away scot free. I pay my fines, my two penalty points, as do my neighbours. There is an elite group in this country getting away with absolute murder and it is a disgrace.

I am sure we all pay our fines but that is not an appropriate matter for this Bill. It is being discussed by another committee.

I mean no disrespect to the Chair.

Amendment agreed to.

Amendment No. 2 and amendments Nos. 9 to 14, inclusive, are related and may be discussed together. Amendments Nos. 2, 9 and 10 are consequential on amendment No. 11.

I move amendment No. 2:

In page 4, line 13, after “section 14(1)” to insert “, including such an order as varied under section 14(4)(a)*”.

The Bill makes provision for a change in a person's employment status after an attachment order is made. However, it does not cover the situation where a person remains in employment but is on lower earnings or is off pay. For example, a person may become ill and though remaining in employment may be temporarily off pay or not in receipt of payment. The same could arise with regard to maternity or carer's leave. In this scenario the person would still be in employment but his or her earnings may not be sufficient to meet the obligations under the attachment order. The amendments in this group are designed to address this gap in the Bill by providing for the variation of an attachment order where the change in a person's earnings is temporary and for the revocation of the order where the change is of a more permanent nature. This is an important issue which needs to be addressed in the substance of the Bill.

Amendment No. 12 is the important amendment. It provides for the insertion of a new subsection (4) in section 15. The new subsection provides for the employer to advise the court when it determines that a person's earnings are, for whatever reason, insufficient to satisfy the attachment order previously made. Amendment No. 11 amends section 14 to allow for the making of a variation order which varies the original order to take account of changed circumstances where advised by the employer under the new section 15(4). If the changed circumstances are such that it is unlikely that the person's earnings will become sufficient in the future to satisfy the order the court can move to the other option in the Bill which is the alternative option of community service, where appropriate, or imprisonment. In circumstances where an individual's finances had changed so that he or she was unable to make payments, the natural order would be a residual community service order if the court deemed it appropriate. If the sum outstanding on a fine was very small, such as €20 or €30, I would expect in the circumstances that the court would accept the position. This amendment gives the court discretion to deal in a sensible and humane way with individuals who find themselves in such a situation.

Amendments Nos. 2, 9,10, 13 and 14, are mainly technical amendments to take account in other sections of the amendments to sections 14 and 15. Amendment No. 13 amends subsection 16(2) in like regard. It inserts the words, "in the interests of justice" at the end of the subsection. In the normal course where an attachment order has not been satisfied, the person is summoned to court under subsection 16(3). Either a community service order is made or the person is imprisoned. However, subsection 16(2) allows the court not to proceed to these options if the person pays the fine or if the court decides otherwise. The intention is that the court would exercise its discretion in the interests of justice and the addition of these words at the end of the subsection makes it clear that the judge has a discretion as to how to approach the matter in the context of the individual circumstances of the individual affected.

I refer to an issue which the Minister and I might discuss later. The Irish Congress of Trade Unions has raised concerns about the attachment order in that it could possibly facilitate the dismissal of an employee or could lead to discrimination in the future. It suggests that we should consider amending the Bill to protect the rights of persons served with an attachment order. I ask the Minister to comment.

The Deputy raises an interesting issue. The Unfair Dismissals Act and anti-discrimination legislation are in place. My initial reaction is that these legislative provisions would adequately cover that possibility. I do not believe an employer who would conduct itself in that way would be acting lawfully. I do not think the fact that an attachment order could be made could properly result in anyone's dismissal.

This is an issue which has been settled. As long ago as 1976 attachment orders were introduced under the Family Law (Maintenance of Spouses and Children) Act 1976. These were not introduced in a criminal context but rather in the context of family law. At that time when maintenance orders were made for the support of a spouse and children, if a person who was clearly in a position to afford to make payments reneged on making payment, the courts since then have been able to make attachment or earnings orders. That regime of attachment of earnings orders has been extended over the years to support payment orders in judicial separation cases and divorce cases and made under the Guardianship of Infants Act 1964 for the maintenance of children. This Bill deals with an attachment order instead of a fine but it is a similar order in that it orders that a portion of salary be paid directly. I do not think this is a problem issue but I am very happy to examine it in order to ensure that it is not a difficulty.

The reality is that if a person is brought before the courts and convicted, any fine or sentence imposed is a public matter and may well come to the notice of that individual's employer. I appreciate that if a person is employed subsequent to a conviction, the employer may or not know about it, depending on whether the latter has researched the issue. My view is that there is no legal problem in this regard. I appreciate the concerns the union has expressed and, as I said, we will give further consideration to the matter.

To clarify, because attachment orders have been in operation for decades, any employer which conducted itself in the manner indicated would fall foul of the relevant legislation. As somebody who practised in the family law area for many years, that type of occurrence certainly was not my experience, either in representing spouses against whom attachment of earnings order were made or spouses, primarily wives, who were recipients of maintenance and were obliged to apply for attachment orders. In 30 years of practice, I cannot recall a single case of a person in employment against whom an attachment order was made getting into difficulties with his or her employer. I certainly can recall instances where, because family law was conducted in private, a plea was made to the court not to make an attachment of earnings order, thereby alerting the employer that the employee was not meeting his or her maintenance obligations. In such cases, people were generally not proud of their conduct and did not want their employer to know about it. Indeed, in the family law context, a threat of making an attachment of earnings order often brought about compliance.

Having said that, I am glad to give further consideration to the provision in light of the concerns set out by the Deputy. If any amendment is found to be necessary, I will engage with my officials to bring it forward on Report Stage. Likewise, if the Deputy deems it necessary to table an amendment on Report Stage, we will come back with chapter and verse in the context of the relevant provisions, which, as I understand it, are the Unfair Dismissals Act and the anti-discrimination legislation, together with any other statutory measures that might be of relevance.

Amendment agreed to.

Amendments Nos. 3 and 16 are related and may be discussed together.

I move amendment No. 3:

In page 5, line 11, to delete "compensation, costs" and substitute "costs, compensation".

Heretofore, a person on whom a fine was imposed either paid that fine in full by the due date or failed to do so, in which case a warrant was activated and the individual could be arrested and brought to prison. Under the new arrangements, part-payment of fines is possible. This is an important provision in terms of ensuring that persons of limited means have a period of time in which to pay a fine and can do so on an incremental basis. In addition, we must ensure that where people are made redundant, they do not find themselves at the receiving end of a warrant.

"Fines" is defined in section 2 to include costs, compensation, expenses and the penalty itself. Where a fine is part-paid, it is necessary to set out how the part-paid fine is to be allocated where it is made up of a number of different elements. The new section 24 provides that where less than the total due is collected, the order of satisfaction is costs, compensation, expenses and the penalty. The amendment to section 2 is a minor drafting amendment to reflect the order of satisfaction in section 24. The latter section provides the necessary changes to address that position.

Amendment agreed to.
Section 2, as amended, agreed to.
Sections 3 to 5, inclusive, agreed to.
SECTION 6

Amendments Nos. 4 to 7, inclusive, are related and may be discussed together.

I move amendment No. 4:

In page 8, line 4, to delete "12 months" and substitute "24 months".

I welcome the Minister to the committee. This Bill is very much welcome, particularly in the context of the report on overcrowding in Cork Prison that was published some weeks ago. Unfortunately, many judges continue to imprison people for non-payment of fines, a practice which causes great difficulty for governors who are struggling to manage numbers. I have been impressed with every governor with whom I have engaged. They are people who take considerable pride in the public service they provide and are keen to secure a good balance in their prisons. We all want to get to a stage where people who are handed a fine by the court are able to repay it. As it stands, people know that if they fail to pay a fine they will face no more than a night in prison or, more likely, no time in prison at all because of the overcrowding problem. That is unfair to those who repay their fines. In short, the system is not working properly.

My amendments Nos. 4, 6 and 7 are straightforward, their purpose being to facilitate people in making fine repayments. Amendment No. 4 seeks to restore the position under the original Fines Act whereby people would be given 24 months to make repayment, rather than the 12 months provided for in this Bill. Our objective is to ensure the maximum possible number of people pay their fines and thus avoid either community service or prison. Allowing them 24 months to do so is entirely reasonable and affords them every opportunity to meet their obligations.

Amendments Nos. 6 and 7 are in the same vein of seeking to make the system more sustainable. The Free Legal Advice Centres and other organisations have expressed concern in this regard. These amendments seek to make the system more affordable and doable in order to achieve maximum compliance with fine payment obligations.

I will begin by dealing with my amendment No. 5 in this group of amendments. Subsection 6(3) requires a person who is in employment and who avails of the instalment process for paying a fine to provide certain information to the court. It was intended that this information would be available to the courts for use should it be necessary to make an attachment order at a later date. On reflection, having consulted further on the matter with the Courts Service, I am proposing that this requirement be deleted. The collection of the data concerned would impose an onerous burden on either the Courts Service or any agency responsible for administering the instalments system. By the time the information is used, it could very well be out of date and unreliable. Moreover, the information in question is the same information a person would be required to provide when an attachment order is being made. There is little or no advantage to be gained from collecting it earlier. In many cases, a situation will never arise where there is a need to utilise the information.

While the amendments proposed by Deputy Mac Lochlainn all stand in their own right, it is useful to consider the regime that would result from their application, namely, one under which all fines, no matter how small, would be eligible to be paid by instalment over 24 months. In addition, the administration fee that could be applied would be set at a fixed amount of up to €50 per fine.

In my view the 12-month instalment period set out in the Bill is appropriate in the circumstances. It must be remembered that section 5 requires the court to take a person's financial circumstances - where they are known - into account in determining the amount of a fine. Putting in place a period of 24 months would prolong the entire process, particularly where a person defaults and the other provisions are engaged as a result. It is not in the interests of the administration of justice that the collection of fines should drag on indefinitely. The Bill already makes provision for a quite elongated process and I am not prepared to add a further 12 months of possible delay to that.

Amendment No. 6 seeks to change the nature of the administration fee. The Bill stipulates that the fee will be set at up to 10% of the value of the fine. Deputy Mac Lochlainn wants it to be set at a monetary amount not exceeding €50. While I understand the Deputy's thinking on the matter, I am not convinced he is correct. It is true that the cost of physically collecting either a small or large fine is the same. However, this does not take into account the cost to the Exchequer of receiving a fine over 12 months rather than immediately. When one compares the 10% maximum fee in the Bill with the Deputy's €50 payment, one discovers that the former results in a smaller fee for all fines up to €500. If, for example, a person was fined €100, under the Deputy's proposal, the fee would be €50 and it would be the same for a person fined €400. In that sense, the sum involved would be disproportionate. The reason for proposing a percentage was to provide for a fairer approach. Only 10% of fines were set at more than €500 in 2012. It is interesting that the figure was as low as 10%. If the additional fee were imposed and if the statistics in future years mirrored those for 2012, an inordinately larger extra sum would be payable by 90% of people fined. This could prove to be unfair. There is also the issue of affordability. In my opinion it is better for the fine payer, and it is more likely to result in higher levels of compliance, if a percentage is charged. I hope the Deputy will reflect on that consideration.

The key issue in the context of whether the period is 12 months, 18 months or two years or whether a percentage is charged is that something contained in the original legislation which applies to the ordering of all fines was not present until relatively recently in a legal context. In the past fines were imposed by the courts without judges being obliged to have regard to the income assets of individuals. Cases would be heard and where people were convicted, fines would be levied on the basis of what the particular judge considered to be the appropriate amount in circumstances were a fine was imposed rather than the case being disposed of in some other way. No consideration was given to the financial circumstances of the individual being fined. When the Bill before the committee comes into force, the courts will, when imposing fines, be obliged to consider people's income situations. The latter is, of course, relevant if a fine is going to be paid over a 12-month period. Judges will have to consider what is an appropriate fine to impose having regard to the nature of a case and the level of fine it is appropriate to impose in light of the financial position of the person being fined. This settles, to a great extent, the issue with regard to whether the period should be two years or 12 months.

Whereas there will be a computer programme put in place in respect of the administration of fines, individual staff will be obliged to check whether this is working and whether people are meeting their obligations. As such, there will be an amount of engagement involved. I do not believe that individuals who are given small fines will need two years in which to discharge them in circumstances where there has already been a court adjudication to the effect that the level of such fines is reasonable in the context of their incomes.

Amendment No. 7 proposes the deletion of section 6(6). This would have the effect of allowing all fines, no matter how small, to be paid by instalment. In 2012, ten fines in the amount of €1 were imposed. I am sure Deputy Mac Lochlainn is not suggesting that fines of that level should be paid over 12 or 24 months, which would be the effect of the amendment. There is a threshold for the value of fines covered by the instalment provisions below which the system is dragged into disrepute. In my opinion that level of €100 or €2 per week. Anything less would result in greatly increased administration costs and would risk bringing this new and very liberal system of instalments into disrepute. The general public would find it very difficult to understand why someone who receives a fine of €10 or €15 should pay it in very small instalments. I do not want the system to be brought into disrepute. Rather, I want it to work in a manner which seems to provide for a degree of common sense. I also want the system to be administratively efficient and I do not want it to be unfair in the context of the individuals who have had very low fines imposed on them being subjected to high charges. The relationship between the level the fine and the additional sum paid is reasonable. In a sense the latter is a fee with has regard to the administration required. When the Bill is enacted, there will be nothing to prevent any individual from making a single payment. I would have thought that there will be many people who may be fined €100 or less by the courts who, because of their financial circumstances, will prefer to make a single payment rather than being obliged to discharge their fines by instalments.

Amendment put and declared lost.

I move amendment No. 5:

In page 8, to delete lines 6 to 16.

Amendment agreed to.

Where stands amendment No. 6?

The Minister made a legitimate point with regard to the unintended implications involved so the amendment needs to be reworded. I will not move the amendment but I will resubmit a reworded version on Report Stage.

Amendment No. 6 not moved.

I move amendment No. 7:

In page 8, to delete lines 24 to 35.

I take on board the fact that if a person is the subject of a 1 cent fine, it clearly cannot be repaid over a period of 24 months. However, there are individuals who may be fined €100 and who would not have the ability to pay upfront. I accept the Minister's point with regard to extending the period to 24 months and, as a result, I intend to withdraw the amendment and submit a reworded version on Report Stage.

I wish that those in our society who have lots of money and who are very powerful would pay the fines imposed on them and that they would not be let off scot free. The latter is happening at present and that is an absolute disgrace.

I think we all agree with Deputy Finian McGrath on that score.

Amendment, by leave, withdrawn.
Section 6, as amended, agreed to.
SECTION 7
Question proposed: "That section 7 stand part of the Bill."

I wish to seek permission to submit an amendment on Report Stage. I am of the view that increased use of the system of community service should be encouraged. The Bill favours the use of recovery and attachment orders and the use of community service appears to be the final alternative to imprisonment. I am giving notice, therefore, that I will be tabling an amendment to reverse the position in this regard.

Does the Minister wish to comment.

No, other than to state that the Deputy is entitled to table an amendment.

I think he is wrong about the legislation. There are circumstances in which the court will have options to make community service orders. I agree with the Deputy. I would like the community service order system to be used by courts. Our courts are independent and must make the decisions they deem appropriate with regard to sentencing. As the Deputy will recall, we passed legislation in 2011 to require judges when considering the imposition of a sentence of 12 months or less to look at imposing or prescribing community service orders to a far greater extent than has been the case so far. In 2013, there was a reduction in the number of people sentenced to terms of imprisonment. We are having a look back and I expect to know shortly whether there was an increase in the number of community service orders made over the 12-month period at the start of the new year. It will be interesting to see in the context of the 2011 Act having bedded down whether there has been a real increase in the number of community service orders. I believe it is appropriate that the community service order system be used to the maximum extent but there are circumstances where a community service order may be an excessive way of dealing with the matter given the nature of the offence committed. I noted that the vast majority of fines are less than €500. A small fine may often be an appropriate indicator of the right penalty to apply to a minor offence rather than requiring an individual to engage in community service. It is very important that the judges who hear the individual cases have a discretion to exercise in that area. I await with interest any amendment the Deputy may table and will obviously give it very careful consideration. If we can improve the Bill in some way, I am happy to do so.

Community service should not be seen simply as a form of punishment but as something positive. It would not do any of us any harm to do community service. I will bring forward an amendment on Report Stage.

Question put and agreed to.
SECTION 8

I move amendment No. 8:

In page 10, line 42, to delete "may" and substitute "shall".

Amendment No. 8 amends section 8(3) in respect of the powers of the receiver when a recovery order is made. The Bill says that the court may give the receiver the powers listed in section 8(3). The intention is that the receiver will be given all the powers concerned so for the avoidance of doubt, the word "may" is being replaced with the word "shall".

I reserve the right to bring forward amendments to this section on Report Stage.

Amendment agreed to.
Section 8, as amended, agreed to.
SECTION 9
Question proposed: "That section 9 stand part of the Bill."

I reserve the right to bring forward amendments to this section on Report Stage.

That is no problem. It is something to look forward to.

Question put and agreed to.
SECTION 10
Question proposed: "That section 10 stand part of the Bill."

I reserve the right to bring forward amendments to this section on Report Stage.

Question put and agreed to.
SECTION 11
Question proposed: "That section 11 stand part of the Bill."

I reserve the right to bring forward amendments to this section on Report Stage.

Question put and agreed to.
SECTION 12
Question proposed: "That section 12 stand part of the Bill."

I reserve the right to bring forward amendments to this section on Report Stage.

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

I reserve the right to bring forward amendments to this section on Report Stage.

Question put and agreed to.
SECTION 14

I move amendment No. 9:

In page 16, line 4, to delete "Where" and substitute "Subject to subsection (4), where".

Amendment agreed to.

I move amendment No. 10:

In page 16, line 15, after "to" to insert "subsection (4) and".

Amendment agreed to.

I move amendment No. 11:

In page 16, between lines 35 and 36, to insert the following:

"(4) Where the court is given a notice under section 15(4) by the employer of the fined person, it may, as appropriate—

(a) make an order ("variation order") varying the attachment order concerned to take account of what is stated in the notice and, in any such case—

(i) the appropriate court official shall cause the variation order to be served on that employer, and

(ii) subsection (3) of section 15 shall apply to the attachment order as so varied as if the reference in that subsection to "but is not liable for non-compliance before 10 working days have elapsed since the service of the order" were a reference to "but is not liable for non-compliance before 10 working days have elapsed since the service of the variation order",

or

(b) revoke the attachment order concerned and, in any such case, the appropriate court official shall give notice in writing to the employer of such revocation.".

Amendment agreed to.

I reserve the right to bring forward amendments to this section on Report Stage.

Section 14, as amended, agreed to.
SECTION 15

I move amendment No. 12:

In page 17, between lines 4 and 5, to insert the following:

"(4) Where, at any time while the attachment order is in force, it comes to the attention of the employer to whom it is directed that the fined person’s earnings are, for whatever reason, insufficient to meet one or more than one deduction required to be made from those earnings in compliance with the order, the employer shall give notice in writing of that fact (including the circumstances which gave rise to that fact) to the court within 10 working days from the date that it comes to the employer’s attention that the fined person’s earnings are so insufficient.".

Amendment agreed to.

Section 15, as amended, agreed to.
SECTION 16

I move amendment No. 13:

In page 17, to delete line 48, and in page 18, to delete lines 1 to 9, and substitute the following:

"(2) Where—

(a) the fined person advises the court that he or she is no longer in employment in accordance with subsection (1)(a)(ii)(II),

(b) the employer of the fined person to whom the attachment order is directed advises the court that the fined person has ceased to be in the employment of the

employer, or

(c) the attachment order which relates to the fined person is revoked under paragraph (b) of section 14(4),

subsection (3) shall apply (unless the fined person has elected to pay the remaining balance of the fine to the court under section 17(1) or the court decides otherwise in the interests of justice).".

Amendment agreed to.
Section 16, as amended, agreed to.
SECTION 17

I move amendment No. 14:

In page 19, to delete lines 5 and 6 and substitute the following:

"(b) when the employer is given a notice under subsection (1),

(c) subject to section 15(4), if the employer is not the fined person’s employer at the time when the service of the order is effected, or".

Section 18 agreed to.

Amendment agreed to.
Section 17, as amended, agreed to.
SECTION 19
Question proposed: "That section 19 stand part of the Bill."

I wish to delete section 19(1)(c)(i).

The Deputy can only indicate that he will bring forward amendments on Report Stage.

What subsection does the Deputy wish to delete?

Section 19(1)(c)(i)

Question proposed: "That section 20 stand part of the Bill."

Question put and agreed to.
SECTION 20

I reserve the right to bring forward amendments to this section on Report Stage.

Question put and agreed to.
SECTION 21

I move amendment No. 15:

In page 26, line 1, to delete "in a prepaid registered letter".

The amendment sets out in section 21 the manner in which notices under the Bill are to be served. In section 1(c), there is reference to a notice being sent by registered post. This amendment deletes the reference to registered post. The effect of this is that the Courts Service may send notices by ordinary post or by registered post as it sees fit. This will reduce costs. Where a notice is issued by ordinary post, section 25 of the Interpretation Act 2005 applies to it.

Amendment agreed to.
Section 21, as amended, agreed to.
Sections 22 and 23 agreed to.
NEW SECTION

I move amendment No. 16:

In page 26, after line 32, to insert the following:

"Application of monies where only part of fine is paid

24. Where monies applied towards the payment of a fine are insufficient to pay the fine in full, the monies shall be applied in the following order:

(a) first, towards the payment of that part of the fine which is the costs referred to in the definition of "fine" in section 2(1);

(b) second (if any monies remain), towards the payment of that part of the fine which is the compensation referred to in that definition;

(c) third (if any monies remain), towards the payment of that part of the fine which is the expenses referred to in that definition; and

(d) fourth (if any monies remain), towards the payment of the remainder of the fine.".

Amendment agreed to.

Title agreed to.

I again thank the Minister and his officials for attending.

I thank the members of the committee for their co-operation, assistance and constructive comments in trying to tease out certain aspects of the Bill.

Bill reported with amendment.