Deputy Seán Sherlock is attending in the absence of Deputy Rabbitte.
SECTION 1.
Fines Bill 2009: Committee Stage.
I move amendment No. 1:
In page 3, subsection (2), line 30, after "provisions" to insert the following:
", provided that Part 2 shall come into operation in its entirety on a specified day”.
There is something of a contradiction between giving the Minister power to commence the Act in an open-ended fashion and to commence different sections at different times in section 1(2), whereas the commencement date for section 2 presupposes that the whole of Part 2 will commence on a specified single date.
The section seeks to ensure that all provisions in Part 2 relate to the increase in the value of fines coming into operation on the same date. The intention is that all of Part 2 will come into operation on the same day. That day would be as soon as I am satisfied that the courts are ready to implement the indexation provisions. The indexation provisions are unique and at first glance might appear complex. While not anticipating any problems with the implementation of Part 2 we thought it was prudent to provide in section 11 for ministerial regulations to remove any difficulties that might arise. It is a usual provision but it is prudent to have it in at my disposal in case word comes back from the courts that they are having a particular problem in implementing Part 2. The intention is that Part 2 will come into operation on the same day. We will consult the Parliamentary Counsel about this amendment and unless some unforeseen difficulty arises we will either accept this amendment on Report Stage or I will table my own amendment to cover the point made. I thank Deputy Sherlock for the amendment and, perhaps, he will withdraw it without prejudice to us submitting an amendment on Report Stage or, alternatively, to accept his amendment.
I thank the Minister for his response. I will withdraw the amendment.
Amendment, by leave, withdrawn.
Amendments Nos. 2 and 4 and related and may be discussed together.
I move amendment No. 2:
In page 3, between lines 30 and 31, to insert the following subsection:
"(3) Commencing in 2014, the Minister shall, by regulations at five yearly intervals, reproduce the tables in this Act to update the monetary amounts in the Table with the rate of inflation identified in the Consumer Price Index from year to year.".
The amendment refers to the tables in the Bill which the Minister has indicated are unique. We propose that these tables be updated and reproduced every five years by ministerial regulation. This would have the effect of ensuring that the figures which are currently contained in the table could be updated to take account of inflation or the consumer price index.
This issue was raised by the Fine Gael Party in a Private Members' Bill some years ago. Having regard to the fact that large sections of that Bill have been accepted by the Government and subsequently form part of the Fines Bill 2009 which we are debating, I ask the Minister to accept this amendment or, if not, to assure the House that we can have a mechanism that will allow for the flexibility or the updating of the tables as would be warranted. I suggest that a five-year period is not unreasonable.
Deputy Sherlock has tabled amendment No. 4.
My amendment is along the same lines as that of Deputy Flanagan. We seek a certain amount of flexibility to reflect changes in monetary values to allow the Minister of the day, by order, to amend the amounts so the Bill is not outdated in terms of the tabular form in which the fines are set out. That is the justification.
The proposals in these amendments are along the lines of what we ourselves considered when the Bill was being prepared, indeed that was our original intent. However, our legal advice is that it would be a safer option to make any amendment to the tables by way of primary legislation. This is despite the fact that, in effect, there will be no real increase in the value of fines. It is envisaged that the need for legislation will only arise every five years or so depending on the rates of inflation. Although more onerous when dealt with this way, it can be done by routine legislation. For the reasons outlined above, much as I would like to accept what the amendments seek to achieve, I have to take into account the legal advice and regret that I cannot accept the amendments. I will ask the Attorney General's office again but that is the legal advice. We would have gone this way. I said we considered it as part of the Bill but it was knocked down by the Attorney General's office originally.
I understand from what the Minister says that he does not have a difficulty with the principle involved and that, in fact, he agrees with the proposal but it is a question of finding an appropriate mechanism to facilitate such an arrangement. If that is the case I will not press the amendment. I thank the Minister for agreeing to have a look at the matter between now and Report Stage. Is he saying the legal advice is such that by not accepting the amendment in primary legislation the only manner in which this arrangement can be enshrined in law is by primary legislation at some future date? I would have thought that is cumbersome having regard to the infrequency with which the House can revisit primary legislation. On the other hand I am conscious of the fact that I would be reluctant to advance the cause of legislating by ministerial regulation. We have enough of that. I would have thought we could have some built-in mechanism for this legislation. I am mindful of what the Minister has said and if there is no more practical way to deal with the issue, we can leave it for Report Stage and have a look at it then.
I would have thought our amendment on this issue would have developed an efficiency in the system in terms of how one deals with it into the future. If it can be looked at again on Report Stage I would accept that.
I will look at it again. It was the previous Attorney General who gave the advice. Perhaps the new man will have a different view but I would hazard a guess that that would probably not be the case because there has been a significant insistence by the Office of the Attorney General that issues such as this have to be dealt with by primary rather than secondary legislation. I think we would all agree on that. The practice of using regulations to vary legislation has to a certain extent fallen into disrepute.
All right.
Amendment, by leave, withdrawn.
Section 1 agreed to.
SECTION 2.
I move amendment No. 3:
In page 4, between lines 16 and 17, to insert the following:
" "Oireachtas" includes the Oireachtas of Saorstát Éireann.".
This is a perennial issue. I raised this issue with the present Attorney General in respect of another Bill. It does not appear to be necessary as enactment is defined to include a statute that is in force in Saorstát Éireann. In any event, I will discuss it again with the Parliamentary Counsel and return to it on Report Stage.
Amendment, by leave, withdrawn.
Amendment No. 4 not moved.
Section 2 agreed to.
SECTION 3.
Amendments Nos. 5 to 8, inclusive, and amendment No. 18 are related and may be discussed together.
I move amendment No. 5:
In page 4, subsection (1), line 17, after "enacted" to insert "amended by or".
The purpose of this amendment is to facilitate the interpretation of the legislation amended by section 9 of the Bill. The intention of section 3(1) is that, in future, legislation will use the simple expression "class A fine" rather than the long-winded expression "class A fine within the meaning of Part 2 of the Fines Act 2009". It is important to get the terminology off to the right start.
I will raise the drafting points with the Parliamentary Counsel. The person dealing with these sections was not able to look at them between the time we received them and now. Section 14 of the Interpretation Act 2005 provides that a citation of, or a reference to, an enactment should be read as a citation of, or reference to, the enactment as amended, whether the amendment is made before, on or after the date on which the provision containing the citation or reference came into operation. I will revert to the Deputy on Report Stage and may table amendments of my own entailing consequential amendments to sections 4, 5, 6 and 7.
Amendment, by leave, withdrawn.
Amendments Nos. 6 to 8, inclusive, not moved.
Amendments Nos. 9 to 16, inclusive, are related and will be discussed together.
I move amendment No. 9:
In page 5, line 4, column 3, to delete "Less than" and substitute "Not greater than".
These are technical amendments. Deputy Sherlock's amendment also relates to the first reference to an amount of €5,000 in the third column of the table but it is necessary to make the same amendment to all the references, hence my eight amendments to the table. The maximum fine that can be imposed by the District Court is €5,000. However, the wording in the third column of the table suggests the maximum is less than €5,000. In practical terms this could be €4,999. The amendments of Deputy Sherlock and myself recognise that the maximum is €5,000.
Amendment agreed to.
I move amendment No. 10:
In page 5, line 7, column 3, to delete "Less than" and substitute "Not greater than".
Amendment agreed to.
I move amendment No. 11:
In page 5, line 9, column 3, to delete "Less than" and substitute "Not greater than".
Amendment agreed to.
I move amendment No. 12:
In page 5, line 11, column 3, to delete "Less than" and substitute "Not greater than".
Amendment agreed to.
I move amendment No. 13:
In page 5, line 13, column 3, to delete "Less than" and substitute "Not greater than".
Amendment agreed to.
I move amendment No. 14:
In page 5, line 15, column 3, to delete "Less than" and substitute "Not greater than".
Amendment agreed to.
I move amendment No. 15:
In page 5, line 17, column 3, to delete "Less than" and substitute "Not greater than".
Amendment agreed to.
I move amendment No. 16:
In page 5, line 19, column 3, to delete "Less than" and substitute "Not greater than".
Amendment agreed to.
Section 3, as amended, agreed to.
Sections 4 to 7, inclusive, agreed to.
SECTION 8.
Amendments Nos. 17 and 20 are related and will be discussed together.
I move amendment No. 17:
In page 9, subsection (1), line 21, after "the" to insert "fine or".
The amendment is designed to cover a case where the statute has a fixed fine rather than a maximum fine.
Section 8 provides a mechanism for increasing fines imposed on indictment in line with the increase in fines imposed in the District Court under the indexation system. Technically and practically it would not be possible to provide a similar form of indexation for fines imposed by higher courts. However, if some mechanism to increase fines imposed on conviction on indictment was not found it is likely that some maximum fines would be less than the updated District Court fines for the same offence. Potentially this could have the undesirable effect whereby offences triable in the District Court were tried in the Circuit Court instead.
Section 8 provides for a multiplier to be applied to the maximum fines imposed on indictment. The effect of the multiplier is to increase fines imposed on indictment by approximately the same as increases in District Court fines over similar periods. For example, if a maximum fine for an offence enacted in 1985 was €20,000, it would be multiplied by two so that the maximum under section 8 would be updated to €40,000. This is the maximum the court, in its discretion, would be able to impose in the same way as it can currently impose one of €20,000. The amount multiplied is the maximum specified in the enactment. It would not be correct, therefore, to insert the words "fine or" as proposed in the amendment.
I accept the Minister's response.
Amendment, by leave, withdrawn.
Amendment No. 18 not moved.
Amendment Nos. 19 and 21 are cognate and will be discussed together.
I move amendment No. 19:
In page 9, subsection (1), line 29, after "number" to insert the following:
"or to a fine not exceeding €10,000, whichever is the greater".
Section 7(5) of the 2007 version of this Bill sets forth a minimum fine on indictment of €10,000 prior to the commencement date. This has disappeared from the Bill although it seems an appropriate provision to maintain the hierarchy of penalties as between summary, which carry a maximum of €5,000, and indictment. The amendment proposes reinserting this.
In this newer Bill there is a completely different method of calculation and it is much easier for the ordinary person to understand. These amendments are designed to ensure that when a fine is imposed on a person on conviction on indictment for a criminal offence and the court decides an appropriate penalty is a fine, the level of the fine that can be imposed will be no less than €10,000. In practical terms, this amendment appears to make sense because very few fines are imposed in the higher courts and it is likely, though I do not have the figures, that most are for substantial sums. However, every Government Department is responsible for legislation and I have to consult each Department as to whether it would object to any of its legislation containing indictable offences having a minimum threshold as provided for in the amendment. I can consult with the Attorney General on any legal or constitutional implications of the amendment. I will revert to the Deputy on Report Stage.
Amendment, by leave, withdrawn.
Amendments Nos. 20 and 21 not moved.
Section 8 agreed to.
SECTION 9.
Amendments Nos. 22 to 24, inclusive, are cognate and will be discussed together.
I move amendment No. 22:
In page 10, subsection (1), line 7, to delete "within the meaning of Part 2 of the Fines Act 2009”.
This amendment is linked to the earlier amendment regarding the interpretation of subsequent legislation. It suggests that future legislation should not use the long-winded phrase "class A fine within the meaning of Part 2 of the Fines Act 2009".
I expect that when the Bill is passed the fines in question will be regarded as class A fines and that will be the normal terminology. The amendments seek to raise drafting points. The three Actsmentioned in the section provide for the summary trial of persons for certain offences if certain specified criteria are satisfied. Each provides for a maximum fine on summary conviction. These must be brought into line with the indexed fines provided for in this Bill. Let us take section 53 of the Criminal Justice (Theft and Fraud Offences) Act 2001 as an example. That section provides for a summary trial of offences under the Act if the accused does not object to being tried summarily and the DPP consents.
The court must also be of the opinion that the facts proved or alleged constitute a minor offence fit to be tried in a summary way. The maximum fine on conviction is €1,500. Section 9(3) of the Bill substitutes a class A fine for that. It does not do it by amendment, but by substitution. In other words, it inserts "class A fine" into the 2001 Act and the reference to "class A fine" forms part of that Act. The 2001 Act makes no references to the Fines Act 2009. Therefore, a reference to that Act must be inserted into the amendment. We believe the drafting of this section is correct. There must be references to the Fines Act 2009 in the three enactments mentioned. Accordingly, while I accept that the amendments are a genuine attempt to correct a perceived error in the Bill, we do not think the Bill is incorrect as drafted.
Amendment, by leave, withdrawn.
Amendments Nos. 23 and 24 not moved.
Section 9 agreed to.
SECTION 10.
Question proposed: "That section 10 stand part of the Bill".
I have a problem with the period of imprisonment. I have a difficulty with sending people to prison for non-payment of fines unless every effort is made to ensure that this is a last resort. The Minister will be aware of practical difficulties where fines are handed down by the court without reference to the person's ability to pay. It has given rise to a serious situation where hardship ensues, such as where a person does not attend the court for a very good reason on the occasion of the hearing. Fines of a very serious import are often imposed, and the only mechanism available to the person against whom the fine is levied is an appeal to the Circuit Court. This can be a very expensive process in itself, as the appeal often costs more than the actual fine.
God be with the days when we had petitions.
I do not dismiss what the Minister is saying. There is a difficulty here that has not been adequately addressed. We all agree that there were problems with the petition system. There is a very interesting article in today's edition of The Irish Times on the system.
I did not read it, because once I saw what it was getting at, I decided not to read it.
It was a little unfair to generalise, having regard to the fact that public representatives often act as a port of call for people with no other recourse and who have genuine difficulties, and they are treated by public representatives of all political persuasions and none in the same manner. However, there is a difficulty regarding the ultimate collection of the fine, namely, the execution of the warrant by the Garda Síochána. There is no element of flexibility involved. If a person is fined €1,000 and he or she has collected €999 under very difficult circumstances and with some sacrifice, the executing officer will not accept it. Ultimately, that person might end up behind bars.
I am reluctant not to oppose the section, but the Minister should look at the matter from the point of view of the hardships imposed that are often not brought to the attention of the sitting district judge on the occasion of the hearing. Prison is for serious crimes and its purpose is to take serious criminals out of society because they are a danger to other persons. I hope that there can be a different way of looking at things.
I entirely agree with Deputy Flanagan on the petition issue. As practising solicitors in our previous lives, we are conscious of people who did not appear in court for whatever reason and received a substantial fine. Going into the Circuit Court to mount an appeal at huge cost is not worth their while. The petition system may have been used too much, but my record shows that I have hardly ever used it as it is a matter for the Judiciary to make decisions. At the same time, there were anomalies or hard cases.
We all agree that prison should be used as a last resort. The Deputy raises the issue of bench warrants in his parliamentary questions. He does it somewhat tongue in cheek, because many of the bench warrants that are not enforced are because they relate to the non-payment of fines. There must be a better way for the State to collect fines. They should be collected on the basis of ability to pay and must be done in such a way that prison is the very last resort. There were many people in prison over the years who had never been in a prison before but were hauled off to prison by gardaí for non-payment of fines. They were brought to prison and found themselves in a very difficult environment, yet were released inside 24 hours due to a lack of space and other priorities in the prison system. My strong view is that we should look at other ways of enforcing the payment of fines.
For Deputy Sherlock's amendments Nos. 28 to 32, inclusive, I will suggest an amendment whereby if a court imposes a fine of a few hundred euro, if the offender consents to a community service order and it is found that he or she is suited to that order, then that will be the first option on default. If he or she does not consent, then either a recovery order or imprisonment will be the alternative options. Where the fine is less than a couple of hundred euro, I will be suggesting that the only option is a recovery order. In other words, if it is a relatively low fine and it is not paid, imprisonment would not be an option. I will be trying to ensure in this Bill that no person will be imprisoned for default due to genuine inability to pay. The amendments are being drafted at the moment and the Attorney General is looking at them. We hope to have them on Report Stage. It is the fairest way of dealing with this situation.
Civil debt is an issue. As I stated on Question Time recently, since the summer no person has been imprisoned because of failure to comply with a court order for civil debt. With fines we should get to a stage where we would use many interim solutions before we use the last one, which is imprisonment. These people are obliged to pay and it is very important to note that they have committed a crime of whatever type, some minor and some pretty serious. Fines have been put down and if people do not pay them they must accept the consequences.
Our probation and various other services that feed into our courts are such that we can use alternative methods to get people to comply with court orders. Deputy Flanagan will know from practising in the District Court that if a judge makes an order of a fine of €1,000 and three months in the case of default, in future we will get to the stage where it will be a €1,000 fine and a community service order in substitution of default. We should be getting to that position as it may solve a number of issues, not least the societal problem of having non-habitual criminals in prison. It would also ease prison population issues as it would keep those out of prison who should not really be there but who should pay the fines nonetheless.
I welcome what the Minister has said and look forward to revisiting the issue on Report Stage or later in the context of my amendments and those of Deputy Sherlock. I was suggesting that there would be an element of flexibility that would not interfere in any way with a judicial ruling.
The reality is that last year over 2,000 people served time in prison for non-payment of fines and the figures for the first six months of the year show that almost 2,000 people have served time already. If that trend continues for the second part of the year, there will be a significant increase in the number.
Consideration might be given to a position where if a substantial amount of the fine had been made available for recovery by the executing officer, and the person in question is unable to raise the balance of the money because of personal circumstances, the matter might be revisited by the court in summary form. The balance of the fine might be served by way of community service order under a court regime. It may well be cumbersome but at the same time it would ensure an element of fairness that would recognise the reality of the matter for many, particularly in cases where fines are handed down on a regular basis by the courts without any reference to an examination of the means of the person against whom the fine is set.
I thank the Minister for his comments and recognise the importance which the Minister places on the issue. I would like to see an initiative in this regard on Report Stage.
Question put and agreed to.
SECTION 11.
Question proposed: "That section 11 stand part of the Bill."
I put it to the Minister that this is a most extraordinary section dealing with regulations to remove difficulties and regulations in anticipation of difficulties. I have been a Member of this House for a considerable period and I cannot recall such a wide-ranging section being included in any legislation. Reference was made to it in the very informative digest produced by the Oireachtas Library and Research Service and I assume the Bill anticipates problems.
This section of the Bill anticipates problems in its execution and in the application by judges of the new indexation scheme. The Bill states "the Minister for Justice, Equality and Law Reform may, by regulations, do anything which appears to him or her to be necessary or expedient for removing that difficulty, for bringing that provision into operation or for securing or facilitating its operation, and any such regulations" approved by the Houses of the Oireachtas. The Minister spoke earlier about legislating by regulation and I would have thought this power is so wide-ranging that it would obviate the need for many sections of this Bill to be subject to a commencement order.
I remind the Minister of the Supreme Court decision of Cooke v. Walsh, which dealt with a personal injuries matter and the matter of the costs being secured by a plaintiff in a personal injuries issue where reference was made to medical costs under the GMS, which would in normal circumstances be free. It also concerned eligibility for hospital inpatient services. The case made the point that the Minister had acted by way of ministerial regulation in an ultra vires manner. I would have thought there is potential for a similar difficulty in the application of this section.
What advice did the Attorney General proffer in the application of this very broad and wide-ranging section, which gives the Minister power virtually at the stroke of a pen to amend, change or interfere in a manner that the Minister might in the confines of his or her private office deem prudent? It seems extraordinary but if there is precedent I would like to hear of it. It is somewhat surprising.
It is based on legal advice and the prompting of the Attorney General, mainly because this legislation is groundbreaking and unique in the history of the State. It will probably be used more often than any other piece of legislation that we will pass in this House in that it will be in use every day of every sitting of the District Court and higher courts. What has been suggested is that given the uniqueness of this indexation issue, and if there are any unforeseen difficulties, it would be prudent to include a section along these lines.
I am told it is unusual but not unique. We are not aware of how unusual it is but I can try to find some information on that between now and Report Stage. The strong advice from the Attorney General is that it would be remiss of us if we did not consider the possibility of difficulties arising and needing to take corrective action pretty quickly rather than waiting for primary legislation.
I accept what the Minister has said in that it is unusual but he has not ruled out the possibility of this being unique. If that is the case, it is somewhat frightening. I was minded to oppose the section, although there is merit in parts of it. I find the sweeping powers retained or conferred by the legislation on the Minister to be extraordinary. Were I to oppose the section, it would have the opposite effect. The wording of it is such that it is difficult to draft an appropriate amendment that might meet a certain balance. I ask the Minister to dig out a precedent.
I will give a little more information on Report Stage.
I would find it disturbing if, as it seems to me, this was unique in criminal law. I ask the Minister to allay my anxiety between now and the passing of the legislation. I find extraordinary the breadth of power conferred on the Minister by us as legislators.
The section is limited to the provision in this part, the indexation, and is not related to any other matter in the Bill. It is because the indexation is new ground that we have put in a saver clause so that we can deal with any difficulties that arise.
I speak as a layman, not a solicitor or lawyer. Forgive my seeming ignorance, but the Minister says the section addresses indexation. In the case of earlier amendments relating to inflation, the Minister said they must be dealt with by primary legislation. Does this section override that?
We were dealing with a different part of the Bill earlier. What we are saying here is if any difficulty arises in bringing any provision of this part into operation or in relation to the operation of any such provision, the Minister may make regulations where it is necessary or expedient for removing that difficulty. I do not envisage the provision will be used that often but if, for example, some challenge was mounted in the District Court and we had to await primary legislation before the matter was adjudicated on, it would be better and preferable to cut our losses and amend the difficulty by regulation. That is the reason behind the provision.
The Minister will come back with a fuller explanation on Report Stage.
He will, but when he is in contact with the Attorney General, will he ask him to deal with a potential issue of ultra vires in the regulatory framework? I remind the Minister that on the issue of ultra vires, the Supreme Court, in the case of Cooke v. Walsh, held that it is necessary, in accordance with the presumption of constitutionality, that the provisions of any Act be interpreted in a manner that would absolve us as Members of the Oireachtas from any intention to delegate our exclusive power of making or changing the law to the Minister. I ask that the Minister put this specific point to the Attorney General, namely, the manner by which we are delegating power to interpret or change this legislation in a way that may be seen to be ultra vires, along the lines laid down by the Supreme Court in Cooke v. Walsh.
I will raise that specific point and get a response. However, this provision was prompted on the basis of legal advice we received and we were told it was permissible within the jurisprudence.
Question put and agreed to.
SECTION 12.
Amendments Nos. 25 to 27, inclusive, are related and will be discussed together.
I move amendment No. 25:
In page 11, line 13, after "income" to insert the following:
"and the amount and nature of the person's annual outgoings".
I will address the three amendments. The Minister has stated the ultimate aim is to try and keep as many people out of prison as possible. That is the aim of these amendments also. The Minister speaks with some sympathy of the need to ensure that people's circumstances are taken into account. What we seek through these amendments is to try and get as full a picture as possible of an individual's circumstances, before a decision is made as to the sanction to be applied. Amendment No. 25 proposes the court should be required to consider an offender's outgoings as well as income. The purpose of amendment No. 26 is to ensure the court considers all assets, not just real or personal property, and debts due to the person. There could be other assets that do not fall within the provisions of the Bill as drafted. These might include intellectual property, for example. The purpose of amendment No. 27 is to delete paragraph (d) because an earlier amendment proposes to amalgamate that paragraph with a general paragraph, (b), dealing with assets.
These three amendments act as a precursor to later amendments, Nos. 28, 29 and 32. We believe that if the purpose of the legislation is to try and keep as many people out of prison as possible, the State must try and create the necessary conditions by which that can occur. Statistically, one does not find many rich people in prison as a result of non-payment of fines. Those in prison are mainly those people who are more marginalised. While I agree some sanction is necessary, I ask the Minister to ensure we create a situation whereby their financial circumstances are taken into account to a greater degree than in the Bill as drafted.
What we tried to draft in subsections (a) to (e), particularly in subsection (e) which includes a catch-all phrase, were provisions that would take everything into account. Perhaps in some instances the Deputies amendments make things a little clearer. If the Deputy withdraws the amendments, we will come back to the issue on Report Stage.
Amendment, by leave, withdrawn.
Amendments Nos. 26 and 27 not moved.
Section 12 agreed to.
SECTION 13.
Amendments Nos. 28, 29 and 32 are related and will be discussed together.
I move amendment No. 28:
In page 11, between lines 32 and 33, to insert the following subsection:
"(3) Without prejudice to the generality of subsection (2), where a person is convicted of an offence for which a fine or a sentence of imprisonment, or both, may be imposed, the court—
(a) shall consider whether a fine is appropriate to meet the circumstances of the case;
(b) shall, if satisfied that a fine is appropriate to meet the circumstances of the case, take into account the person’s financial circumstances in determining the amount of the fine to impose in respect of the offence;
(c) shall not, if satisfied that a fine is appropriate to meet the circumstances of the case but that, having regard to the person’s financial circumstances, undue hardship would be caused by the imposition of a fine of any amount greater than a nominal amount, impose a sentence of imprisonment in lieu of such a fine if a sentence of imprisonment would not be appropriate to meet the circumstances of the case, but may in that event direct the payment of the fine by instalments for such period as the court shall fix, but without prejudice to the power of the court to impose a sentence of imprisonment in lieu of payment of a fine in such amount as the court considers is within the capacity of the defendant to pay.”.
This amendment strengthens the amendments we put forward earlier. We suggest that where a person of full age is convicted of an offence, the court shall, in determining the amount of the fine, if any, to impose in respect of the offence, take into account the person's financial circumstances or difficulties, as is most likely the case. The purpose of the amendment is to address the situation where fine and-or imprisonment are available to the court and to ensure that imprisonment is not imposed simply because the defendant does not have the means to pay what would otherwise be an appropriate fine. We ask for some leniency for those most impoverished who find themselves before the courts that their circumstances be taken into account. That is the justification for that amendment.
The Deputy should be aware that we are discussing amendments Nos. 29 and 32 as well.
Amendment No. 29 seeks to insert section 15(3) into a more logical place in the Bill. The purpose of amendment No. 32 is to make clear that imprisonment should not be imposed for failure to pay a fine which is caused by the inability of a person to pay the fine. If people are not able to pay and can prove they are unable to pay then they should not be sentenced to imprisonment.
My strong view on this legislation when I came into this office was that we should adopt a position whereby people are not put into prison merely for the non-payment of a fine. Much of it is obviously motivated. From a societal point of view it is not correct and it was never envisaged that people who are not habitual criminals would end up in prison. Obviously they have a duty to pay the fine and that is what is being proposed by the court. We have to look at devising other ways of keeping them out of prison, such as recovery orders, instalment orders, etc., as are envisaged in the Bill.
Deputy Sherlock's amendments are trying to bring together in one section the provisions already in the Bill aimed at providing a more socially acceptable way of dealing with fine defaulters and reducing the reliance on imprisonment where there is default. We are drafting amendments along the lines of the last two amendments proposed by Deputy Sherlock. One of the issues being discussed in the Department is the question of imposing a community service order on people to do local work in the community rather than pay a fine or, if they do not pay the fine, that they would be forced to do it. I am considering how to gauge that, given that if the level of the fine was too low, people could be let off scot free. One could say that below a certain level, people will not be imprisoned and that it will only be done through recovery orders or instalments overseen by the courts. If the fine is over a certain level there would be the possibility, ultimately, of imprisonment if people did not do anything. For example, it would be better to give the court the ability to impose a community service order on the basis that a person is suitable, capable and consents to fulfilling such an order. For medical, psychological or psychiatric reasons a person may not be able to fulfil a community service order. In that case one has to look at the other options such as a recovery order through instalments and, ultimately, prison. These amendments are being drafted by the Attorney General's office and I will revert to them on Report Stage.
I accept that. For what type of offence does the Minister envisage that a community service order would be carried out? Does he envisage it would be for a specific type of offence?
It would be non-payment of a fine.
I accept that. If a person reneges on a fine would the community service order be for X number of hours?
Yes. Instead of the judge saying that he or she will fine a person €1,000 for being three months in default, which is the usual phrase one will hear in the District Court, the judge will impose a community service order of, say, not less than 20 hours.
I agree with the amendments and particularly amendment No. 32 in the name of Deputy Sherlock. Part of amendment No. 28 appears to be covered in section 13. Amendment No. 32 is important. I too ask the Minister to have a serious look at this matter between now and Report Stage. On the basis that the Bill does not provide for a routine assessment of means on a compulsory basis, I remind the Minister of what this committee stated by way of a report seven or eight years ago in a document entitled Alternatives to Fines and the Uses of Prison. On that occasion the committee recommended in its report a full means inquiry in all cases where a financial penalty was considered. That would ensure that the fines were arranged to meet the defendant's ability to pay.
In 2002, another report on imprisonment for fine default on civil debt, commissioned by the Department of Justice, Equality and Law Reform, explicitly stated that "inquiries in the court process about offenders' means and capacity to pay fines would appear to be non-existent or, at best, cursory". I do not have any reason to believe the situation has improved since then. Obviously the capacity of the person to pay the fine is important and, ultimately, that capacity can determine whether a person goes to prison, which is precisely the point my colleague, Deputy Sherlock, has made and I agree with him.
I ask the Minister to have a look at how best we can meet the points being made, having regard to the fact that the purpose of section 13 is to ensure that, as far as practicable, the effect of the fine does not severely impact on the person or his or her dependants in terms of ability to pay. I would have thought that we might have had a compulsory regime for an examination. The Minister could say that in the heat of the District Court with things moving quickly, that might indeed be impracticable but it would certainly be fair. Fines imposed by the District Court can often be regarded as unfair having regard to the fact that little examination takes place, which is not merely anecdotal evidence but evidence included in a report commissioned by the Minister's Department. We will have to come back to this issue on Report Stage to meet the point made by Deputy Sherlock's amendment in a way that is more satisfactory than that contained in the Bill.
I take it that the Minister will revisit amendment No. 32.
Yes.
I appreciate that.
We might all look at the fines system through rose-tinted glasses. The fact is that there are serial defendants who thumb their nose at the judicial system and the criminal justice system. Whatever provision is put in place, it musts take into account their ability to pay. Equally, whatever is put in place in the interim between the judgment date and imprisonment, must be a robust regime to ensure these people pay their debt to society for committing the offence. We would all like to see people who have the ability to pay comply with a recovery order or an arrangement to pay by instalments. However, if they continue to refuse, then they would have to go to prison. I think we would all like to see them do community service work but not everyone is suitable. Reasonably law-abiding citizens will repay their debt in that way but equally there may be those who are serial criminals who have been fined on a regular basis over years and they may not be the most suitable for community service work. We will aim to strike a balance and I will return to this on Report Stage.
Amendment, by leave, withdrawn.
Amendment No. 29 not moved.
Amendments Nos. 30 and 31 are related and may be discussed together by agreement.
I move amendment No. 30:
In page 12, lines 6 to 10, to delete subsection (5) and substitute the following:
"(5) For the purposes of subsection (2), the court may, by direction in writing, require the person convicted to attend before the court and provide the court with all such information as the court may require in relation to his or her financial circumstances.”.
During my discussions with my officials I raised the question of the fact that checking out the person's ability to pay could become an incredibly cumbersome process clogging up the court with adjournments. It is not the intention that when considering the person's capacity to pay for the purpose of imposing a fine, the court would adjourn the case to another day. This may occasionally arise and there is nothing in the Bill to prevent it. However, I would expect it would be normal for the case to be heard in one sitting. Any large number of adjournments could have serious consequences for the efficient operation of the court.
Sections 13(5) and 13(6) include the phrase, "a court conducting an inquiry". This may give the impression that the court will, as a matter of routine, conduct a formal time-consuming inquiry into a person's financial circumstances in every case. This is not the intention. The words, "provide the court with all such information as the court may require", takes nothing away from the purpose of section 13 and how it will operate in practice but will more closely reflect how it should operate.
I refer to my previous comments on Deputy Sherlock's amendments. I agree this amendment in some way deals with this issue although it leaves the matter to the discretion of the sitting judge on the basis that he or she may or may not do so, by direction in writing. However, it deals in some way with the lack of a framework for a mandated assessment of means and this is to be welcomed. It would be interesting to see the frequency with which the courts engage with this particular section but I welcome what the Minister has done and it is helpful.
The amendment goes some way towards addressing the issue of a person's outgoings, assuming that any such information with regard to financial circumstances is made available to the court and assuming that a person's outgoings can be included in that particular provision. If that is the case it lends weight to the idea that an overall view is taken of a person's circumstances before a decision is made. I welcome the amendment.
Amendment agreed to.
I move amendment No. 31:
In page 12, subsection (6), lines 13 and 14, to delete all words from and including "conducting" in line 13 down to and including "section" in line 14 and substitute the following:
"discharging its function under subsection (2) concerning a person’s financial circumstances”.
Amendment agreed to.
Amendment No. 32 not moved.
Question proposed: "That section 13, as amended, stand part of the Bill."
I cannot think of any legislation that would facilitate me in asking this question. I refer to subsection 13(8) where it is stated the section does not apply to the imposition of a fine where the court has no discretion in the determination of that amount of fine. These are non-discretionary fines imposed by way of mandatory fine. I ask the Minister to ascertain from his officials and send me a note on this issue. It would seem to me that with regard to regulations imposed on road traffic weights and measures issues and technical breaches, the court does not have a discretion. The same is the case in Revenue issues. I ask for a note as to the reasoning and the frequency with which this appears to have been progressively introduced in recent years. Dare I call it a kind of creeping mandatory fines regime that does not appear to be the subject of debate here and yet is impacting on the court system in a way that does not allow for discretion and that will not be subject to many of the sections in this Bill related to ability or inability to pay? It would appear to go against the general thrust of the Bill, introducing a regime that would ultimately see thousands of people being imprisoned on an annual basis without recourse to alternatives that would appear to be an option that the Minister regards as worthy.
I will supply a note to the Deputy on the reason behind this. The idea of subsection (8) is to exclude fixed fines because in those instances the court does not have discretion. There is no point giving the court power under section 13 to ——
If more and more fines are being imposed in which the court does not have discretion, then the import of this Bill is less than that which we intend it to be.
I would imagine it is a relatively small number. I am not conscious of it.
I do not know but I would like to know.
I have no doubt that the Judiciary would be very quick to say we are taking any discretion away from its members. Equally I would have thought that as a message with regard to particular offences it would be preferable to have a defined punishment for an offence.
Question put and agreed to.
SECTION 14.
Amendments Nos. 33 and 34 are related and may be discussed together by agreement.
I move amendment No. 33:
In page 12, subsection (1), line 36, after "fine," to insert "or upon the court's own motion,".
The purpose of this amendment is to allow the court to impose a fine by instalment on its own motion, without the individual having to make an application. In the absence of our amendment the court must first impose a blanket fine and the defendant would have to apply for an instalment order. The court would then make the instalment order. The court is not permitted to make an instalment order from the outset. This is unduly cumbersome and we suggest the court be given that discretion.
The purpose of amendment No. 34 is to set a lower threshold for the court in making an instalment order. We contend that for the court to be satisfied would involve quite a high level of proof. The amendment proposes that it appears to the court as a more satisfactory test. That is a self-explanatory justification for the amendments.
Section 14 provides that if a person wishes to pay a fine by instalments he or she may apply to the court to do so. The amendment proposes to give the court additional power to order, of its own motion, the payment of a fine by instalments. Whether the person applied or the court decided on its own motion to direct that the fine by paid by instalments, the test of the court would be, "as it appears to the court", instead of, "the court is satisfied". It is the function of the court to decide on the penalty it will impose when it finds a person guilty of an offence. Where the court imposes a fine it is a further function to determine the level of that fine. The amount of the fine will be the appropriate amount, taking into consideration the person's income, outgoings, responsibilities, etc., as set out in section 12. This means that the fine should be payable without causing hardship. If the offender still considers that paying the fine in a lump sum could cause difficulty, he or she can apply to the court to pay the fine by instalments. The court may direct that the fine be paid by instalments where it is satisfied that the payment of the fine in a lump sum would cause undue financial hardship to the person or his or her dependants.
Having taken the financial circumstances into account in determining the appropriate level of the fine to impose, it would be illogical in our view for the court to then, in effect, say that it did not think the person could pay the fine in one lump sum. The only person who can determine that he or she can afford to pay a fine in a lump sum even after the court has exercised its function under the equality of impact provisions is the person on whom the fine has been imposed. That person is entitled to make the case that paying the fine in full before the due date for payment would cause hardship. I do not agree that it is the function of the court to make the case for that person or attempt to second guess the person's wishes or circumstances.
If the amendment giving the court the power to initiate a direction on the payment of a fine by instalments was acceptable, the amending wording of "it appears to the court" would be appropriate. In the context of the first of these amendments to section 14 not being acceptable, the standard wording used in subsection (1) we believe is appropriate. Therefore, we cannot accept the amendment.
Deputy Flanagan in the next group of amendments proposes that the court would be obliged to inform the offender of his or her right to apply for the payment of the fine by instalments. I think I can give an undertaking to consult the Office of the Attorney Generals on that amendment.
I see the logic of the Minister's response. On that basis, I will withdraw my amendment.
Amendment, by leave, withdrawn.
I move amendment No. 34:
In page 12, subsection (1), line 36, to delete "the court is satisfied" and substitute "it appears to the court".
Amendment, by leave, withdrawn.
Amendment No. 35 is in the name of the Minister. Amendments Nos. 36 to 38, inclusive, and amendment No. 40 are related, so amendments Nos. 35 to 38, inclusive, and amendment No. 40 will be discussed together.
I move amendment No. 35:
In page 12, lines 40 to 44, to delete subsection (2) and substitute the following:
"(2) Where a court gives a direction under subsection (1)——
(a) the amounts of the instalments and the intervals at which they are to be paid shall, without prejudice to paragraph (b), be specified in the direction, and
(b) the person to whom the direction applies shall, subject to subsection (3), pay the final instalment of the fine concerned not later than one year, or such shorter period as the court may specify, from the due date for payment.”.
My amendment to Deputy Sherlock's amendment to delete subsections (6) and (7) serves the same purpose and Deputy Flanagan's amendment also appears to serve that purpose, namely, to remove from the Courts Service the power to determine the amounts of the instalments and the intervals at which they will be paid. The reason I am proposing my amendment is to take the unnecessary administrative burden off the Courts Service. The court itself when it directs that a fine be paid in instalments will state how much will be paid in each instalment and the number of instalments and their interval. For example, the court may impose a fine of €300 and on the application of the offender to pay in instalments, will state that it will be paid in ten equal instalments of €30 each on a monthly basis over ten months.
This proposed power of the Courts Service raised an interesting legal question as to whether we were giving a judicial function to an administrative body. The legal advice we received stated that was not the case. The level of fine and directing that it be paid in instalments is a judicial function, deciding on the amounts of each instalment and their intervals for payment could have been carried out administratively. The other amendments I am proposing simply give to the courts the power being taken from the Courts Service along with a consequential amendment to subsection (8). While Deputy Sherlock has not addressed these issues, my advice is that they would also need to be addressed so as to clearly set out the duties of the courts when directing that a fine be paid in instalments.
Deputy Flanagan's amendment appears to make the same point, although the wording is different. The amendment also places a duty on the court to advise the offender of his or her right to make an application to pay the fine in instalments. This is a little different from the previous amendment where the court on its own motion could direct that a fine be paid in instatements. Again I will look at this aspect before Report Stage and consult with the Office of the Attorney General.
I welcome the Minister's remarks. From what he has said, I do not think there is a great deal separating us. If the Minister provides a wording on Report Stage which he feels meets what we are trying to achieve, then I will gladly wait.
Does Deputy Sherlock wish to speak on his amendments?
No. I agree with the thrust of Deputy Flanagan's comments. It is fine by me.
Amendment agreed to.
I move amendment No. 36:
In page 12, lines 45 to 50, to delete subsection (3) and substitute the following:
"(3) Upon an application made in accordance with this section by a person to whom a direction under subsection (1) applies, the court that imposed the fine concerned may---
(a) extend the period for payment of the fine for such period as it considers appropriate provided that such period shall expire not later than 2 years after the due date for payment, and
(b) in consequence of that extension (but without prejudice to paragraph (a)), vary the amounts of the instalments concerned and the intervals at which they are to be paid”.
Amendment agreed to.
I movement amendment No. 37:
In page 13, lines 21 to 33, to delete subsections (6) and (7).
Amendment agreed to.
I move amendment No. 38:
In page 13, subsection (8), lines 36 and 37, to delete all words from and, including "or" where it secondly occurs in line 36 down to and including, "subsection (6)” in line 37.
Amendment agreed to.
I move amendment No. 39:
In page 13, lines 44 and 45, to delete subsection (9)
Subsection (9) prohibits the courts from allowing payment by instalments in relation to a fine of €100 or less. However, in our view there would be many people who would find it difficult to pay fines of €100 or less at one time and may require that the payment be made in instalments. In this amendment, we are trying to provide for those people who are issued with a fine of €100 or less to pay it off in instalments.
The reason for the threshold of €100 for a fine which the court cannot direct be paid by instalments is to reduce the pressure on the Courts Service of implementing the instalment provisions. It is difficult to estimate the number of applications that will be made to pay by instalments and their impact on the workload of the courts. Taking a conservative estimate of 10,000 such directions annually, that is less than 10% of the total number of fines imposed. If each direction averaged ten instalments that would come to an additional 100,000 transactions. No matter how efficiently the instalment system works, the number of additional transactions would be significant. In the circumstances I think it is reasonable not to over-burden the Courts Service at least until the system is up an running effectively.
It can reasonably be asked whether this threshold would impact mostly on the poorest and most deprived members of society. The answer is "No". The group in society on whom the €100 fine threshold would have most impact are persons convicted of road traffic offences. Persons from all walks of life own and drive their own cars and they have one thing in common, they can afford to own and drive cars and therefore should be able to afford to pay what is a modest fine of less than €100 in a lump sum.
The percentage of fines for road traffic offences that result in a fine of less than €100is 71%. The equity of impact provisions apply to all fines imposed by the courts so that even where a person is fined for a road traffic offence, his or her capacity to pay will determine the amount of the fine. I maintain that the low threshold of €100 will not impact to any significant extent on persons who are fined, but the ability of the Courts Service to administer the instalment provisions would be greatly enhanced and it would be well worth having a threshold, albeit a low threshold if it results in an earlier and more efficient introduction of the instalment provisions. I accept that in the real world there should be no need for a threshold but we do not operate in a real world and certain realities must be taken into account.
The reason we tabled that amendment is that I know people who are in arrears with the local authority for refuse charges to the tune of €200 to €300, which on the grand scale of things seems quite a small amount, but who are paying the local authority as little as €5 per week to reduce that debt. There will be instances where fines are imposed on people in similar circumstances who are most likely to carry multiple debts, for whom €100 will be a significant amount.
I understand the point the Minister made about striking the balance between the fine being instigated in the first instance and the need to pay it. If the Minister would look at this issue again before Report Stage with a view to ensuring that for fines of €100 or less, there could be a minimum or maximum number of instalments to bear out the point he made about the number of transactions vis-à-vis the Courts Service. I want to ensure that the Minister takes cognisance of the very small proportion of people for whom fines of €100 or less will be quite significant.
We can look at this again. Any change we would subsequently have to make would be by primary legislation so we have to get it right from the beginning. The main fear is of setting up a huge logistical nightmare for the Courts Service around payment of instalments and instalments coming in at different times or not on due dates. I worry that not setting a threshold would cause the system to collapse. Some 71% of fines are under €100. Most fines for road traffic offences are €100 and most small fines relate to road traffic offences.
I ask the Minister to look at it again and come back to us with the exact statistics.
I will do that.
The Minister cannot say the vast majority of fines relate to road traffic offences.
Amendment, by leave, withdrawn.
Section 14, as amended, agreed to.
SECTION 15.
Amendment No. 40 not moved.
Amendments Nos. 41 and 42 are related and will be discussed together.
I move amendment No. 41:
In page 14, subsection (5), line 43, after "section" to insert the following:
"(including any directions or conditions with regard to the receiver's paying amounts received by him or her into court and the vouching for expenses incurred by the receiver and otherwise with regard to ensuring a satisfactory account being rendered by the receiver to the court for the performance of those functions)".
These amendments will ensure that all moneys received by the receiver will be paid into court, less expenses, and paid to the Minister for Finance for the benefit of the Exchequer.
Amendment agreed to.
I move amendment No. 42:
In page 15, between lines 31 and 32, to insert the following subsection:
"(11) Monies paid into the court or otherwise received by it as a result of the appointment of a receiver under this section shall, after any disbursements have been made therefrom on account of the receiver's expenses, be paid to the Minister for Finance and such monies shall be paid into or disposed of for the benefit of the Exchequer in such manner as the Minister for Finance may direct.".
Amendment agreed to.
Question proposed: "That section 15, as amended, stand part of the Bill."
I have a question on section 15(3). The imposition of a fine of some magnitude may cause undue financial hardship not only to the person involved but to his or her dependants. What is the status of the dependants in the process? In practical terms a person against whom a large fine is about to be imposed will make the case that financial hardship will accrue not only to himself or herself but to members of his or her family. What are the legal implications of involving dependants? Are we running the risk that a court might wish to take into consideration the means of persons who are in no way party to the proceedings? While I can see the principle of such an approach where there is financial hardship to a person's dependants, I also see a court inquiring into the ability of persons who have nothing to do with the proceedings to withstand hardship. Will the Minister drop a note to me on the matter?
I will talk to the Attorney General and drop a note to the Deputy. Sections 15(2) and 15(3) are related and have a twofold purpose. There is no point appointing a receiver when the person in default has insufficient property or funds to make the appointment worthwhile and likely to succeed. Even where a person has some property, recovery might cause some hardship to the person or his or her dependants. An example might be income derived from rented property used to house elderly relatives. I accept the Deputy's point that the scope of the provision is wide and may lead to difficulties and I will look at it again before Report Stage.
Question put and agreed to.
Sections 16 to 19, inclusive, agreed to.
Title agreed to.
Bill reported with amendments.