Amendments Nos. 1, 5, 9, 13 and 17 are cognate and may be discussed together by agreement.
Seanad amendment No. 1:
Section 4: In page 4, subsection (1), line 20, to delete "after" and substitute "on or after".
Fines Bill 2009: From the Seanad
The Dáil went into Committee to consider amendments from the Seanad.
These are amendments to sections 4 to 8, inclusive, and are to ensure that a person who commits an offence under the Act enacted on the day on which this part of the Bill comes into operation will be liable on summary conviction to class A, B, C, D or E fines, respectively. The amendments arise from an amendment tabled by the Labour Party in the Dáil and the Seanad. I thank it for bringing it to my attention.
Seanad amendment agreed to.
Amendments Nos. 2, 6, 10, 14 and 18 are cognate and may be discussed together by agreement.
Seanad amendment No. 2:
Section 4: In page 4, subsection (1), lines 21 and 22, to delete "under the enactment" and substitute "under that or any other enactment".
These are technical amendments designed to ensure that the indexing provisions will apply to any enactments enacted on or after the commencement date that amend other enactments. For example, a new Act may substitute a provision to an existing Act that amends a penalty provision which can be imposed on summary conviction and these amendments will ensure that a fine will fall into one of the classes referred to in sections 4 to 8, inclusive, that is, class A, B, C, D or E. These amendments mean there will be no ambiguity as to the penalties comprehended by the indexing provisions.
That gives rise to greater clarity and I accept what the Minister said.
Seanad amendment agreed to.
Amendments Nos. 3, 4, 7, 8, 11, 12, 15, 16, 19 and 20 are cognate and may be discussed together by agreement.
Seanad amendment No. 3:
Section 4: In page 4, subsection (2), line 27, to delete "number in" and substitute "number specified in".
These are purely drafting amendments which for consistency with the drafting generally to sections 4 and 8 insert the word "specified" after the word "number" in two places in subsections (2) and (3) of sections 4 and 8. For example, where it now states where an enactment enacted during a period specified in column two of the table opposite, a particular reference number in column one. The revised wording will be where an enactment enacted during a period specified in column two of the table opposite, a particular reference number specified in column one.
Seanad amendment agreed to.
Seanad amendment No. 4:
Section 4: In page 4, subsection (3)(a), line 41, to delete “number in” and substitute “number specified in”.
Seanad amendment agreed to.
Seanad amendment No. 5:
Section 5: In page 5, subsection (1), line 26, to delete "after" and substitute "on or after".
Seanad amendment agreed to.
Seanad amendment No. 6:
Section 5: In page 5, subsection (1), lines 27 and 28, to delete "under the enactment" and substitute "under that or any other enactment".
Seanad amendment agreed to.
Seanad amendment No. 7:
Section 5: In page 5, subsection (2), line 33, to delete "number in" and substitute "number specified in".
Seanad amendment agreed to.
Seanad amendment No. 8:
Section 5: In page 5, subsection (3)(a), line 47, to delete “number in” and substitute “number specified in”.
Seanad amendment agreed to.
Seanad amendment No. 9:
Section 6: In page 6, subsection (1), line 26, to delete "after" and substitute "on or after".
Seanad amendment agreed to.
Seanad amendment No. 10:
Section 6: In page 6, subsection (1), lines 27 and 28, to delete "under the enactment" and substitute "under that or any other enactment".
Seanad amendment agreed to.
Seanad amendment No. 11:
Section 6: In page 6, subsection (2), line 33, to delete "number in" and substitute "number specified in".
Seanad amendment agreed to.
Seanad amendment No. 12:
Section 6: In page 6, subsection (3)(a), line 47, to delete “number in” and substitute “number specified in”.
Seanad amendment agreed to.
Seanad amendment No. 13:
Section 7: In page 7, subsection (1), line 26, to delete "after" and substitute "on or after".
Seanad amendment agreed to.
Seanad amendment No. 14:
Section 7: In page 7, subsection (1), lines 27 and 28, to delete "under the enactment" and substitute "under that or any other enactment".
Seanad amendment agreed to.
Seanad amendment No. 15:
Section 7: In page 7, subsection (2), line 33, to delete "number in" and substitute "number specified in".
Seanad amendment agreed to.
Seanad amendment No. 16:
Section 7: In page 7, subsection (3)(a), line 47, to delete “number in” and substitute “number specified in”.
Seanad amendment agreed to.
Seanad amendment No. 17:
Section 8: In page 8, subsection (1), line 26, to delete "after" and substitute "on or after".
Seanad amendment agreed to.
Seanad amendment No. 18:
Section 8: In page 8, subsection (1), lines 27 and 28, to delete "under the enactment" and substitute "under that or any other enactment".
Seanad amendment agreed to.
Seanad amendment No. 19:
Section 8: In page 8, subsection (2), line 33, to delete "number in" and substitute "number specified in".
Seanad amendment agreed to.
Seanad amendment No. 20:
Section 8: In page 8, subsection (3)(a), line 47, to delete “number in” and substitute “number specified in”.
Seanad amendment agreed to.
Seanad amendment No. 21:
Section 11: In page 10, subsection (1), lines 23 and 24, to delete "Minister for Justice, Equality and Law Reform" and substitute "Minister".
This amendment deletes the term "Minister for Justice, Equality and Law Reform" and substitutes the word "Minister" because the definition of the word "Minister" is already contained in section 2.
Seanad amendment agreed to.
Seanad amendment No. 22:
Section 13: In page 11, before section 13, to insert the following new section:
"13.—(1) A notification undersubsection (2) of section 15 shall be addressed to the person concerned by name, and may be so served on or given to the person in one of the following ways:
(a) by delivering it to the person;
(b) by leaving it at the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, at that address; or
(c) by sending it by post in a prepaid registered letter to the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, to that address.
(2) For the purpose of this section, a company within the meaning of the Companies Acts shall be deemed to be ordinarily resident at its registered office, and every other body corporate and every unincorporated body of persons shall be deemed to be ordinarily resident at its principal office or place of business.".
This is a standard provision found in legislation where provision is made for a notification or other document to be served on or given to a person. A recent example of such a provision is in section 9 of the Charities Act 2009. This provision is being applied to the notification required under section 15(2) of the Bill as passed by Dáil Éireann.
Section 15(2) provides that a recovery order shall not enter into force unless the person in respect of whom the order is made fails to pay a fine by the due date of payment. It further provides that where the person so fails the order shall have effect from the day immediately following the day on which the Courts Service notifies the receiver concerned in writing that person failed to pay the fine by that date. This is a critical notification as it will activate the recovery order and trigger action by the receiver when he or she is notified that a person on whom a fine has been imposed is in default. For that reason, it is important that arrangements for the service of this particular notification are clearly defined in the primary legislation. New rules of court may be made by the rules committee for the various courts to make provision in regard to the service of other documents pursuant to the new jurisdiction conferred on the courts by Part 3.
I do not have any objection to this amendment but wish to make two points on it. It appears to be a fairly standard provision referring to the service documents. If it is so standard, why was it omitted in the first instance?
There is a bigger issue here in regard to the service of documents, in particular the time honoured service of documents by registered post. We have experienced a greater level of social and economic mobility and a change to workforce patterns to the extent that a person's principal private dwelling, to which the service of documents is generally rendered, is usually unoccupied giving rise to a real issue about the service of documents, in particular registered post.
All Members will be aware that the system operated by An Post is such that if nobody is home, a slip is placed through the letter-box requesting the person to whom the notice is addressed to call to the local post office, or sorting office in the case of larger towns. That is not often done and letters may be lying around for days. Letters are returned to sender in numbers which are unprecedented. That was not the case in the past, so it is an issue.
I wonder about an alternative mode or substituted service becoming more the norm than the exception. Currently, substituted service can only be done after an application to the District Court. It is cumbersome, can take some time and it is not very straightforward. I wonder about the possibility of change in this area, notwithstanding what the Minister will say about the important nature of the service reflecting the important nature of the document.
The Minister said the rules committee is actively engaged in this. Will he ask it to look at the service of documents? The registered post is not as it was 40 years ago, or even ten years ago, and I believe it is unsatisfactory. I am conscious that the service of a document is not of the same import as the service of a birthday card or a letter. There is an issue here and I ask the Minister to ask the rules committee to look at it. Indeed, the Minister may have a view on it.
If somebody changes address, can he or she plead a certain degree of ignorance or that he or she did not receive the document? Should there be a provision whereby the onus is placed on the person to notify change of address?
Deputy Charles Flanagan raised a point about the service of documents in regard to court proceedings. There is no doubt there has been greater flexibility in recent times. However, it is best left to the rules of the various courts to decide how effective service is guaranteed. It cannot be guaranteed in all cases but prosecutions cannot proceed unless there is proof that documents were validly served on those involved. In recent times, there have been a number of incidences where people have gone into court and sworn they did not receive the documents and, therefore, the prosecution failed. Changes have been made to try to facilitate that.
In subsequent legislation, we will look at how that situation can be dealt with in such a way that somebody cannot evade prosecution simply by saying he or she did not receive something. In this instance, this is a standard provision and it is necessary because of the way in which this Act will be commenced. It is necessary to write this into the primary legislation because it will start from the time the legislation is commenced. Thereafter, it will be up to us to give the maximum flexibility to the committee which deals with the rules of court for the particular court.
Seanad amendment agreed to.
Seanad amendment No. 23:
Section 13: In page 11, subsection (3), to delete lines 27 to 30 and substitute the following:
"(3) For the purpose of this section, a court may, in making a determination undersubsection (2), impose a fine that is greater than, less than or equal to the otherwise appropriate fine, but in any case a court shall not impose a fine that is—”.
This amendment arises from an issue raised on Committee Stage. While I was unable to agree to the specific amendments put forward by the Labour Party on Report Stage in the Seanad, which would not have allowed the court to impose a fine greater than the otherwise appropriate fine after the court had taken into account the financial circumstances of the person, an official amendment comprising a new formulation for subsection (3) was made by me in the Seanad. The amendment does not alter the substance of the section but it is clear in making the linkage between subsections (1) and (3).
The amendment does not alter the substance of the section but it is clear in making the link between subsections (1) and (3). Adjustments either up or down in the level of the fine can only be made for the purpose of the section as set out in subsection (1), which ensures that the effect of a fine on a person or his or her dependents is not significantly abated or made more severe by reason of his or her financial circumstances. Our legal advice is that even without the express reference to the purpose in subsection (3), the court would be acting contrary to the section if it increased or decreased a fine for a purpose other than that set out in section (1).
In taking account of financial circumstances in determining the amount of the fine, the court is given wide scope so as to arrive at a fair assessment of the person's means. The term "financial circumstances" is defined in section 12 and comprises income, assets, liabilities, moneys owing and such other circumstances as the court considers appropriate.
I welcome the Minister's comments in regard to the assessing means in a balanced fashion and I support the amendment on that basis.
Seanad amendment agreed to.
Seanad amendment No. 24:
Section 14: In page 12, subsection (2)(b), line 37, to delete "from" and substitute "after".
A court, when directing that a fine be paid by instalments, will specify the time during which they are required to be paid. This can be 12 months or a shorter period from the time that they would otherwise have fallen due. This is called the "due date for payment." The purpose of the amendment is to ensure that, in accordance with normal practice, the period during which the fine must be paid by instalments commences the day after it would otherwise have had to be paid instead of the day itself. This is a minor drafting amendment.
Seanad amendment agreed to.
Seanad amendments Nos. 25 and 27 are related and may be discussed together by agreement.
Seanad amendment No. 25:
Section 14: In page 12, subsection (3), to delete lines 38 to 40 and substitute the following:
"(3) Upon the application of a person to whom a direction under subsection (1) applies, the court that gave the direction may, by further direction—”.
Section 14, as passed by Dáil Éireann, provides for the payment of fines by instalments. Subsection (1) permits an offender to make an application to the court which imposed the fine to use that method of payment. Subsection (7) obliges the court to inform the offender of his or her right to make such an application. It is the intention that the application can be made subsequent to the court hearing which imposed the fine. For example, a person might not have applied to pay by instalments when the fine was imposed but subsequently incurred a major expense that makes it difficult to pay a lump sum.
The Bill does not place a time limit on the making of such an application, although common sense would suggest that an application after the due date for payment would not be entertained. To prevent uncertainty, Seanad amendment No. 27 states that an application to pay by instalments must be made before the receiver is notified of the default. This is likely to be several weeks after the default because breathing space will be given to persons following a series of reminders.
Amendment No. 25 is consequential to providing that an application can be made at any time up to notifying the receiver of the default. This is because a person can make a further application for an extension of up to one year after the original application. It is necessary that the two applications are not confused. The first involves paying by instalments and the second is for an extension to the original period of payment directed by the court. These amendments clarify the time available for making an application to pay a fine by instalments where such an application was not made on the date of the court hearing at which the fine was first imposed.
Seanad amendment agreed to.
Seanad amendments Nos. 26, 42 and 44 are related and may be discussed together by agreement.
Seanad amendment No. 26:
Section 14: In page 13, lines 22 to 30, to delete subsection (6).
These are drafting amendments. The Parliamentary Counsel has decided that section 14(6), while correct, does not fit comfortably into section 14. The purpose of the subsection is to establish the appropriate period of imprisonment when a fine has been partially paid by instalments. This is already achieved in the inserted section 2A to section 17(3) of the Courts (No. 2) Act 1986 in regard to defaults on fines imposed on indictment.
A similar provision relating to fines imposed on summary conviction has now been included in the intersected subsection (1)(b) of the amended section 2 of the 1986 Act. This is a more obvious place for these amendments because the relevant provisions in section 17 already deal with appropriate periods of imprisonment, where the receiver can only recover part of the crime or the proceeds from seized goods might only satisfy part of the fine.
The same definition of "fine" is being added to section 2A of the Courts (No. 2) Act 1986 to ensure that it does not include the fees and expenses of the receiver. These are relevant solely to section 15.
This was debated extensively in the Seanad and I accept what the Minister has said.
Seanad amendment agreed to.
Seanad amendment No. 27:
Section 14: In page 13, between lines 33 and 34, to insert the following subsection:
"(8) An application referred to insubsection (1) may be made at any time before the notification of the receiver under subsection (2) of section 15.”.
Seanad amendment agreed to.
Seanad amendment No. 28:
In page 13, lines 36 to 43, to delete subsection (9) and substitute the following:
"(9) In this section "due date for payment" means, in relation to a fine, the date by which the fine would, but for a direction under this section, be required to be paid in accordance with the order of the court that imposed the fine.".
This amendment arose from an error that occurred on Committee Stage in the Dáil which was brought to our attention by Senator Regan prior to Committee Stage in the Seanad. I am grateful to the Fine Gael Party for bringing this error to my attention.
One of the effects of the several amendments that were made to section 14 in the Dáil was that the expression "new date for payment" was rendered unnecessary but that definition remained due to an oversight. The Parliamentary Counsel is satisfied that the only definition now necessary in section 14 is the original definition of "due date for payment". There is no need to copy the definition because it appears in other sections and the only difference is a cross-reference to section 14.
Seanad amendment agreed to.
Seanad amendment No. 29:
Section 15: In page 14, subsection (1), lines 1 to 4, to delete paragraphs (a) and (b) and substitute the following:
"(a) recover—
(i) the fine, or, as may be appropriate, that part of the fine that, upon the notification of the receiver undersubsection (2), remains unpaid, and
(ii) the fees of the receiver and the expenses reasonably incurred by the receiver in the performance of his or her functions, or
(b) seize and sell property belonging to the first-mentioned person and recover from the proceeds of the sale of that property a sum equal to the amount of—
(i) the fine, or, as may be appropriate, that part of the fine that, upon the notification of the receiver undersubsection (2), remains unpaid, and
(ii) the fees of the receiver and the expenses reasonably incurred by the receiver in the performance of his or her functions.".
Where a receiver is notified by the Courts Service that a person has not paid a fine by the due date, the recovery order made by the court which imposed the fine takes effect. That gives the receiver power to recover the fine or seize and sell property belonging to the offender equal to the amount of the fine. It may be the case that part of the fine was paid by instalments.
One of the purposes of this amendment is to give the receiver power in such circumstances to recover either the part of the fine that remains unpaid or to seize and sell property equal to its value. While the implication may be that the receiver can only recover money or property to the value of the unpaid part of the fine, it is desirable to make that clear in the Bill.
The other purpose of the amendment is to permit the receiver to recover the fees and expenses reasonably incurred in the performance of his or her functions. The appropriate fees will be set out in a fees order and a record of the expenses will have to be maintained and supplied to the Courts Service every six months. Any overcharging for expenses can have implications for the contract between the Courts Service and the receiver as well as a possible criminal offence under the legislation.
Seanad amendment agreed to.
Seanad amendment No. 30:
Section 15: In page 14, subsection (2), line 9, to delete "notify" and substitute "notifies".
This is a drafting amendment which acknowledges that the Courts Service is singular and not plural.
Seanad amendment agreed to.
Seanad amendment No. 31:
Section 15: In page 14, subsection (3), line 25, to delete paragraph (e) and substitute the following:
"(e) insure the property, and”.
This is a drafting amendment that adds the word "and" to the end of paragraph (e) in section 15(3) as passed by Dáil Éireann. Subsection sets out the rights and responsibility as a receiver as authorised in a recovery order made by the court.
Seanad amendment agreed to.
Seanad amendments Nos. 32 to 39, inclusive, are related and will be discussed together.
Seanad amendment No. 32:
Section 15: In page 14, subsection (4), lines 33 to 36, to delete all words from and including "court" in line 33 down to and including "functions." in line 36 and substitute "court.".
On Report Stage I introduced a list of amendments which set out how the provisions relating to the receiver would operate in practice and how receivers would be appointed. The purpose of these amendments is to put on a statutory basis the necessary measures to ensure that the fees and expenses which receivers can claim are open, transparent and reasonable.
Seanad amendment No.32 removes the requirements relating to vouching of expenses. Instead of placing the time consuming burden of vouching every expense on the Courts Service, I am putting the onus on receivers to maintain a record of their expenses and fees which will be forwarded to the Courts Service at regular intervals.
In regard to Seanad amendment No. 33, section 15(4) obliges a receiver to perform his or her functions subject to directions or conditions specified in the recovery order, including any directions or conditions in respect of the receiver paying amounts received by him or her into the court. This amendment allows the receiver to apply to the court for directions relating to the performance of his or her functions. Receivers will have to contend with a variety of circumstances while performing their functions, ranging from recovering small to very large amounts, and it is wise to give them power to apply to the court for directions in specific cases.
Seanad amendment No. 34 sets out what will happen if the receiver recovers and sells property of greater value than the amount of the fine or the unpaid part thereof.
It repeats the provisions under which the receiver will be obliged to return to the offender as much of the proceeds of the sale as exceeds the fine or the unpaid part of it. For the purposes of this provision, the normal definition of fine is amended to include the fees of the receiver and the expenses reasonably incurred by him or her. This is because when a fine is imposed, it will not at that stage be known what the exact amount of the receiver's expenses will be and they will thus not form part of the fine. This also entails the deletion of the current definition of fine in amendment No. 38 for the purpose of this section. The definition of fine in section 12 will apply to the section.
Seanad amendment No. 35 deals with the making of a fees order by the Minister for Justice, Equality and Law Reform with the consent of the Minister for Finance. I envisage that the fees order made under this provision will operate in a similar manner to the fees orders for Revenue sheriffs, the work the receivers will perform being essentially the same as that of the sheriffs.
Seanad amendment No. 37 obliges the receiver to make and maintain a written record of the fees deducted and the expenses incurred and deducted from the sum recovered or the proceeds of any sale of property pursuant to a recovery order. At least every six months the receiver will give the Courts Service a written record of fees and expenses, and the making of any false or misleading entry in the record will be a criminal offence. I decided to create this offence, with severe penalties, because where false and misleading information is given there is potential for considerable amounts of money to be involved. In addition, I envisage that the contract between the receiver and the Courts Service will be drawn up in such a way that in such circumstances, the contract will immediately be terminated.
Seanad amendments Nos. 36 and 39 are largely drafting amendments. Amendment No. 36 deletes section 15(8), while amendment No. 39 inserts a new section providing for the addition of the receiver's fees to the moneys that can be subtracted from the moneys to be paid into the Exchequer as a result of the appointment of the receiver. These amendments complete the scheme proposed for the operation of the receiver provisions. In the course of the debates on the legislation, and particularly on Report Stage, the role of the receiver was revised and brought more centrally into how the default provisions will work. The revised role of the receiver made it important that the fees and expenses provisions be fully thought through and included in the Bill rather than left for administrative action or rules of court. That will facilitate the smoother operation of the receiver provisions as well as obliging receivers to maintain proper records of their expenses.
I support these amendments because I accept the principle of the Minister's objectives in terms of the appointment, operation and day-to-day engagement of the receiver. However, I am anxious that the message should go from this House that whatever expenses are incurred by way of professional fees, travel expenses and so on must be kept to a minimum. We are dealing with people who, for one reason or other, are unable to pay a fine. If they were in a position to pay the fine and to do so promptly there would be no need for a receiver.
The Minister draws a parallel between the receiver and the Revenue sheriff or bailiff. However, there are often difficulties in terms of the costs added on to instalments that are due, having regard to the fact that these are almost exclusively people in financial difficulty. I am aware of cases where Revenue sheriffs are setting up standing engagements to visit debtors perhaps twice a week in order to extract payments. I am not saying these payments are not lawfully due; rather that on occasion, due regard may not be given to the person's ability or inability to pay. If a receiver decides to travel, on notice, 50 or 60 miles to visit a fine defaulter on a Monday — being a regional receiver as I am sure will be the case — and return on the Wednesday or Friday, we will have a situation where the expenses of the receiver may well exceed the amount of the fine and could run to hundreds if not thousands of euro. My understanding is that the receiver will have first call in so far as his or her expenses will be discharged out of whatever sale of goods or chattels takes place.
I do not have an immediate solution to this problem but I am anxious that the Minister make a clear statement in the House that this system will not be a money-making exercise for receivers and that costs and expenses will be held within specific limits. There are already concerns at the ease with which a Revenue sheriff can clock up considerable expenses which take precedence over the sum sought in the first instance.
It is a cause for concern that there may be industrious and imaginative people who see this provision as a potential mine for economic gain. Deputy Charles Flanagan has summed up the issue well. We must prevent situations where the cost of recovery of the fine exceeds the fine itself. It would be dangerous to allow that type of culture to emerge. Seanad amendment No. 35 is quite vague in this regard, indicating that the Minister may specify the "rates at which fees that may be so deducted shall be calculated". There must be clarity in order to prevent the system being undermined in any way.
We are dealing with a new procedure. The purpose of this Bill is twofold. The first is the indexation of fines in order to bring all existing fines up to today's values. The second is to ensure the payment of fines and to obviate the need for people to be imprisoned because of a failure to pay relatively small amounts of money. There have been instances over the years where people were hauled off to prison only to be released within hours after paying the money due, both fine and costs, as ordered by the court. Others are released after a period of confinement in order to free up spaces. As I said in recent days, because of the changes in legislation we have implemented both on the civil side and the criminal side, people will no longer be imprisoned for the non-payment of civil debt or criminal fines unless they have the means and are purposely refusing to pay.
Under the current system, if a person is fined €500 in the District Court for a motor traffic offence, for example, he or she is liable to seven days in prison in case of default. In other words, if the money is not paid within a week, that person will eventually get a knock on the door from a garda to be told that he or she will be going to Mountjoy if the money is not paid. In future, however, what will happen is that the court will impose a fine and will nominate a receiver who will, if the person does not pay within the due date and where an application has not been made and granted for payment by instalments, approach the person and take property in lieu of the fine.
Obviously, there are costs involved. The issue is addressed in the primary rather than secondary legislation because during discussion of the Bill in both Houses, Members indicated this approach would be preferable.
To continue with the sequencing, if the receiver returns to find there are no goods available to take in lieu of the fine, a community service order may be made, whereby the person can repay his or her debt to the community by doing a number of hours of community service. If this sanction is not applied or the person cannot participate in community service, the final option is prison.
The concept of equality of impact is built into the legislation. In other words, there is a statutory onus on members of the Judiciary, in imposing a fine on a person within the limits laid down for the offence in question, to take into account the financial circumstances of the person on whom the fine is imposed. The first check and balance is that the fine is not unduly unfair to the person given his or her financial circumstances.
The next stage is the receiver. It is reasonable that the receiver should obtain the costs and expenses incurred in seeking to secure property in lieu of a fine. In the intervening period, the person can make an application to pay by instalments and provided the instalments are paid, there is no question that a receiver will be dispatched.
The objective is to ensure the costs of the receiver mirror the costs of the sheriff. The costs are set down in the fees orders and are reasonable in the circumstances. The Department must liaise with the Courts Service in this respect. The manner in which returns are made is laid down in the primary legislation. It is a criminal offence if the person who secures the contract deviates from it or takes more than is required. In such circumstances, the contract would also be terminated. I assure Deputies the fees will be as reasonable as possible in the circumstances and will be aligned to the current fees orders that are made in respect of sheriffs when they do their business.
Seanad amendment agreed to.
Seanad amendment No. 33:
Section 15: In page 14, between lines 36 and 37, to insert the following subsection:
"(5) A receiver may, at any time after receiving a notification undersubsection (2), apply to the court that made the recovery order under which he or she was appointed for directions in relation to the performance of his or her functions under this Act.”.
Seanad amendment agreed to.
Seanad amendment No. 34:
Section 15: In page 14, lines 41 to 45, to delete subsection (6) and substitute the following:
"(6) (a) Where the receiver sells property belonging to the person in relation to whose property the receiver has been appointed and the proceeds of the sale exceed the amount of the fine or the amount of the fine remaining unpaid, as the case may be, the receiver shall pay to the person so much of those proceeds as exceeds that amount.
(b) In this subsection “fine” includes the fees of the receiver and any expenses reasonably incurred by the receiver in the performance of his or her functions.”.
Seanad amendment agreed to.
Seanad amendment No. 35:
Section 15: In page 15, between lines 7 and 8, to insert the following subsection:
"(8) (a) The Minister may, by order, specify—
(i) the fees that a receiver may deduct from any sum or sums recovered by him or her, or obtained from the proceeds of the sale of any property by him or her, in accordance with this section, or
(ii) the rates at which fees that may be so deducted shall be calculated.
(b) The Minister shall not make an order under this subsection without the consent of the Minister for Finance.”.
Seanad amendment agreed to.
Seanad amendment No. 36:
Section 15: In page 15, lines 8 to 13, to delete subsection (8).
Seanad amendment agreed to.
Seanad amendment No. 37:
Section 15: In page 15, between lines 13 and 14, to insert the following subsections:
"(9) The receiver shall make and maintain a record in writing of—
(a) the fees deducted, and
(b) the expenses incurred and deducted,
by him or her from the sum or sums recovered, or the proceeds of the sale of any property sold, by him or her pursuant to a recovery order.
(10) The receiver shall, not later than 6 months after the performance by him or her of his or her functions pursuant to a recovery order, give to the Courts Service the record required to be made and maintainedunder subsection (9) relating to that recovery order.
(11) If a receiver makes, or causes to be made, an entry in a record required to be made and maintained undersubsection (9) that—
(a) is false or misleading in any material respect, and
(b) he or she knows to be false or misleading, he or she shall be guilty of an offence and shall be liable—
(i) upon summary conviction to a class A fine or imprisonment for a term not exceeding 12 months or both, or
(ii) upon conviction on indictment to a fine not exceeding €50,000 or imprisonment for a term not exceeding 5 years or both.
(12) A record required to be made and maintained undersubsection (9) shall be in such form as the Courts Service shall determine.”.
Seanad amendment agreed to.
Seanad amendment No. 38:
Section 15: In page 15, subsection (9), to delete lines 21 and 22.
Seanad amendment agreed to.
Seanad amendment No. 39:
Section 16: In page 15, before section 16, to insert the following new section:
"16.—Monies paid into the court or otherwise received by it as a result of the appointment of a receiver undersection 15 shall be paid to the Minister for Finance and such monies shall be paid to, or disposed of for the benefit of, the Exchequer in such manner as the Minister for Finance may direct.”.
Seanad amendment agreed to.
Seanad amendments Nos. 40, 41 and 43 are related and may be discussed together. Seanad amendment No. 40:
Section 16: In page 15, subsection (1), lines 25 to 27, to delete paragraph (a) and substitute the following:
"(a) by the insertion of the following definitions in subsection (1) of section 1:
"‘Act of 2010' means the Fines Act 2010;
‘fine' has the same meaning as it has in section 2 (amended by subparagraph (iii) of section 17(a) of the Act of 2010) of the Courts (No. 2) Act 1986;”,”.
The purpose of amendment No. 40 is to ensure the definition of "fine" is properly inserted in the Criminal Justice (Community Service) Act 1983 and that the reference to the Fines Act 2010 is correct. Under the 1983 Act, community service can only be imposed by a court as an alternative to imprisonment. In this legislation I am extending the possibility of community service being imposed to circumstances in which a fine has not been paid by the due date and a receiver has been unable to recover the fine or its value in property. Therefore, by inserting in the 1983 Act provisions where the word "fine" is used, it is necessary to define "fine" for the purposes of that Act. The definition being inserted is the standard definition of "fine" as used in the Courts (No. 2) Act 1986 which it is proposed to amend by way of amendment No. 43 to section 17.
Section 2 of the Courts (No. 2) Act 1986 deals with the consequences of not paying a fine by the due date for payment. It applies only to fines imposed in the District Court. Amendments Nos. 41 and 43 give the proper reference in the Courts (No. 2) Act 1986 to the Fines Act 2010 and provide for a new definition of "fine" in subsection (2) of the 1986 Act that excludes the fees and expenses of the receiver. This is necessary because the 1986 definition includes a reference to expenses, which could be confused with the receiver's expenses. The receiver's fees and expenses are dealt with separately in section 15.
Seanad amendment agreed to.
Seanad amendment No. 41:
Section 17: In page 17, line 23, to delete "Act of 2010" and substitute "Fines Act 2010”.
Seanad amendment agreed to.
Seanad amendment No. 42:
Section 17: In page 18, paragraph (a), to delete lines 5 to 11 and substitute the following:
"(1B) For the purposes of determining the appropriate period of imprisonment specified in the Table, the amount of the fine shall be the fine less—
(a) any sum or sums paid by the person on whom the fine was imposed in satisfaction of part of the fine, and
(b) any sum or sums recovered (whether from the proceeds of the sale of property belonging to the person or otherwise) by the receiver appointed under section 15 of the Fines Act 2010.”,”.
Seanad amendment agreed to.
Seanad amendment No. 43:
Section 17: In page 18, paragraph (a), between lines 11 and 12, to insert the following:
"(iii) the insertion, after the words "ordered to be paid", in the definition of "fine" in subsection (4), of the following ", but does not include the fees of, or expenses incurred by, a receiver appointed undersection 15 of the Fines Act 2010”,”.
Seanad amendment agreed to.
Seanad amendment No. 44:
Section 17: In page 19, to delete lines 20 to 27 and substitute the following:
"(b) any sum or sums recovered (whether from the proceeds of the sale of property belonging to the person or otherwise) by the receiver appointed under section 15 of the Fines Act 2010.
(4) In this subsection ‘fine' has the same meaning as it has in section 2 (amended bysubparagraph (iii) of section 17(a) of the Fines Act 2010) of this Act.”.”.
Seanad amendment agreed to.
Seanad amendments Nos. 45 and 46 are related and may be discussed together.
Seanad amendment No. 45:
Section 19: In page 19, lines 40 to 43, to delete subsection (2) and substitute the following:
"(2) In any particular case—
(a) the Courts Service shall not publish a person’s name and address pursuant to this section before the notification of the receiver under subsection (2)of section 15 of the person’s failure to pay the fine by the due date for payment, and
(b) the Courts Service shall not publish a person’s name and address in accordance with this section if, after the due date for payment but before the person’s name and address are so published, the person pays the fine concerned.”.
Section 19 provides a name and shame provision for persons who fail to pay their fines by the due date of payment. It is an additional measure which will encourage most persons to pay their fines. The Courts Service will be responsible for publishing the list of fine defaulters and the service will decide on the most appropriate means of so publishing. If it chooses the Internet, there will be a permanent record of the default.
The purpose of amendment No. 45 is to ensure that if the person pays the fine after the due date of payment but before his or her name and address are published, the name and address will not be published. In the case of publication on the Internet, amendment No. 46 will oblige the Courts Service to erase the reference to the default in any particular case after eight weeks or if and when the fine has been paid, whichever is the sooner. For example, as soon as the offender has failed to pay by the due date, his or her name could be published as a fine defaulter. However, a period of approximately eight weeks will elapse before the receiver is sent notification of the default by the Courts Service. During that period, more efforts will be made to have the fine paid through a series of reminders. If the offender pays within the eight week period, his or her name will at that point be removed from the list and if he or she still does not pay, the name and address will be removed in any case after eight weeks.
The Minister referred to electronic publication on the Internet. Will the information be published in national or local newspapers? What form of publication is it intended to use?
Section 19(1) states: "The Courts Service may, from time to time, publish in such manner as it considers appropriate (including on the internet) a list of the names and addresses of persons who have failed to pay fines imposed on them by the due date for payment." While this matter is entirely a matter for the Courts Service, I anticipate that it will proceed by means of a rolling publication on the Internet which would be available for perusal. I am not sure it will choose to place advertisements in newspapers because to do so would give rise to considerable costs. While that option could be considered, the likelihood is that publication will proceed by electronic means.
Seanad amendment agreed to.
Seanad amendment No. 46:
Section 19: In page 19, between lines 43 and 44, to insert the following subsection:
"(3) The Courts Service shall remove the name and address of a person published in a list referred to insubsection (1) on the internet—
(a) not later than 8 weeks after they were so published, or
(b) if the person pays the fine concerned before the expiration of that period, upon the payment by the person of the fine, whichever occurs earlier.”.
Seanad amendment agreed to.
The Minister has indicated his intention to ask the Chair to direct the Clerk to make a correction under Standing Order 136.
I would be obliged if, in accordance with Standing Order 136, the Ceann Comhairle would direct the Clerk of the Dáil to make the following verbal change to amendment No.44(4), where "in this subsection" should read "in this section".
Is that agreed? Agreed. I will advise the Ceann Comhairle accordingly.
I would like to say a few words about the Bill. I welcome its passing and the assistance we got from the Opposition in the Seanad and the Dáil. I said in the Seanad that if there was a case for its retention, then I would have to point out that considerable amendments were made, and a good teasing out of the Bill occurred in that House. It made life that little bit easier for us in the Dáil when we brought forward the Bill in its final format. It has changed considerably since it was originally drafted. Many efforts were made before, and a Member pointed out on the Order of Business recently that we have been waiting for this Bill for some time. It is a very dramatic reform of the way in which fines are levied, paid and followed up by the courts and the Garda Síochána.
The core of the Bill is about ensuring that someone will end up in prison for non-payment of criminal fines only as a last resort. This view that there are thousands of people languishing in prisons because they have not paid fines is wrong. Only about 1% of the prison population at any given time is in prison for non-payment of fines, but even that is too much. In my own experience as a solicitor and as a public representative, there are people who are hauled off to prison by the Garda. When the Opposition validly raises the question of the number of bench warrants that are not executed, a reaction happens whereby the Garda follow up on those bench warrants. I am not blaming Deputy Flanagan for the fact that gardaí knock on doors all over the country and haul people off to prison, but when the issue of the number of bench warrants is raised here in the Chamber, people feel that there are criminals running around the country who should be in jail. The vast majority of the thousands of bench warrants that are not executed at any given time are for the non-payment of fines. I can recall that when the issue was raised in the Dáil, the Garda subsequently launched a significant campaign around the country to reduce the number of bench warrants, which ultimately meant that people were hauled into prison for the non-payment of dog licences, television licences and so on. These were outstanding bench warrants and they had to be executed.
Since we passed legislation on civil debt, nobody has gone to jail for non-payment of such debts. When we pass this Bill, very few people will go to prison for non-payment of fines. If they do go to prison, it is because they had the resources and they resolutely refused to pay. We have done a good day's work in this area today, but also in the context of the indexation of these fines. The equality of impact principle is also built into the Bill, whereby the courts have to take into account the means of a person before them before they levy a fine.
I thank the Opposition spokespersons for their input. I thank the staff of the Oireachtas as well as my own staff for the work they have done in this area.
I would like to acknowledge what the Minister has done. It is a very important Bill and I acknowledge the manner in which he has put the Bill through the House. I am sure it will be signed by the President soon.
There is a real need for this Bill. The Minister somewhat downplayed the figures when he said that a mere 1% of prisoners at any one time are in jail for defaulting on fines. That can be 400 people, which represents a lot of our citizens at any one time.
That would be 10%.
That would make it 40 people at any one time. The reality is that 3,500 people were imprisoned last year for the non-payment of fines. That is a lot of people. I know that fewer than 200 of those were imprisoned for non-payment of civil debt, but it is quite preposterous that so many people should be in jail for non-violent offences. It has given rise to a serious overcrowding problem in our prisons.
This Bill is welcome and it is important we recognise that there are more practical solutions. I regret that the attachment of earnings order has not been extended. I feel that is an area that we must revisit. It is absolutely essential that greater use is made of community service orders and that we develop further the concept of restorative justice in practice. The pilot areas and the studies will show that this is an effective means of dealing with societal problems without putting people behind bars.
This Bill is important at a time when people are struggling to make ends meet and when families are suffering from the ravages of unemployment and the economic downturn. If the State imposes fines lawfully, it is welcome that there are arrangements in place other than taking a person's liberty away.
I wish the Bill well and I acknowledge the Minister's initiative in this area.
In fairness, we must acknowledge a decent Bill when it comes before us. We in the Labour Party sought to ensure that the Minister would take into account a person's earnings and means when making a decision on imprisonment. I am glad that has happened.
I take the Minister's point about the small percentage of those who are in prison as a result of non-payment of fines. However, this Bill is only one part of a jigsaw that needs to be examined, because the overall prison service must also be examined. The recent departure of Kathleen McMahon and John Lonergan is significant and we must take cognisance of what Ms McMahon was saying in respect of the governance procedures that dictate how the prison system is run.
There is an issue of overcrowding and there are scenarios where we have three or four people in a cell. The former governor of Mountjoy Prison has spoken extensively about the humane treatment of prisoners. The idea of a prisoner slopping out in this day and age is ludicrous. If we take the Fines Bill as one part of the jigsaw, then there is no doubt that we will have fewer people in prison as a result of this legislation, which is welcome. However, common sense must speak to the issue of overcrowding in prisons and the governance procedures for the prison service. We need to ask whether somebody like Ms Kathleen McMahon could have stayed within the system if she had been allowed a greater deal of autonomy to allow her to progress the agenda upon which she had embarked. There is also the issue of the Dóchas centre. There is overcrowding and there seems to be a shortage of prison places. The Minister recently stated in this House that Kilworth prison is still on the agenda. In real terms there is no sign of that prison and the creation of extra places. A wider debate needs to take place on this issue. We support the Bill, which we hope will reduce the number of people in prison. We hope a qualitative and quantitative approach taken to how the prison system is run.
Seanad amendments reported.