Dermot Ahern (Louth, Fianna Fail)

): I am pleased to present the Fines Bill 2009 to the Seanad. It has taken some time to prepare but I am confident that Senators will, when I outline its many innovative provisions, agree it is at the cutting edge of law reform. The Bill will update all existing fines that can be imposed in the District Court with equal increases to those fines that can be imposed in the higher courts, ensure persons can afford to pay fines imposed on them without causing undue hardship to them or their dependants, provide alternatives to imprisonment where a fine is not paid by the due date and ensure that those alternatives will always take precedence over imprisonment.

I will outline the Bill under three main headings, namely, indexation of fines, an improved system for the assessment of offenders' financial circumstances and for payment of fines by instalments and the question of providing practical and viable alternatives to imprisonment where offenders default on payment of their fines. Any approach to the complex exercise of updating fines must be underpinned by two fundamental realities. First, because the District Court is a court of summary jurisdiction which deals only with minor offences, there must be an upper limit to the level of fine that can be imposed by it which reflects its limited jurisdiction. Second, the updated fines in the District Court cannot be greater than the maximum fines that could be imposed in the higher courts for the same or similar offences.

The indexation of fines scheme is based on the Law Reform Commission report of 1991 and a review of developments on the indexation of fines published by the commission in 2002. The LRC undertook an indepth examination of the effect over time of inflation on the integrity of the imposition of fines as a penalty by the courts. It also looked at systems in operation in other jurisdictions. The commission identified two possible avenues of reform, the standard fine system and the variable fine system. The standard fine system provides updated fine maxima for all existing fine maxima. The variable fine system, which is also known as a unit fine or day fine system, provides for the imposition of fines in terms of units of gravity where the monetary value in each case is dictated by the means of the offender.

The commission initially recommended the introduction of the standard fine system. In its review of developments in 2002, it confirmed its earlier recommendation. The commission further examined the experience of jurisdictions in which unit fine systems were adopted and recommended caution in respect of the adoption of such a system in this jurisdiction. It considered that it would be inappropriate to adopt such a system and that many of the positive features of such a system could be achieved by adopting its recommendations. This Bill gives effect to commission's main recommendations by introducing a standard fine system and placing an obligation on the courts to consider an offender's financial circumstances before deciding on the level of fine to impose.

I will explain the features of the Bill in more detail. Sections 4 to 8, inclusive, introduce a standard fine system for the District Court with five classes or categories. The monetary values of existing fines are being brought up to date in order that they will now regain the value they had when first introduced or last updated. Tables of relative money values exist prior to 1922 although, as the Law Reform Commission pointed out, they become less reliable as one goes further back and, in any case, in the century before 1914 prices were very stable. The tables proposed in the Bill are, accordingly, based on a 1914 index of 100.

If one wanted to be exact, it would be necessary to take a particular fine and increase its value in line with increases in the consumer price index since the fine was created. This would require a separate calculation to be done for every fine imposed in the District Court, and I am sure Senators will agree that would not be practicable. However, that level of exactitude is not necessary. Instead, I have accepted the recommendation of the LRC to have a limited number of possible maximum fines. The LRC recommended between three and five classes and the I have opted for five, which are set out in section 3 . Fines not exceeding €5,000 will in future be described in legislation as class A fines, class B fines will be fines not exceeding €4,000, class C fines will be fines not exceeding €2,500, class D fines will be fines not exceeding €1,000 and class E fines will be fines not greater than €500.

When new legislation is published after the commencement of the indexation provisions of this Bill, maximum fines will not be described in such legislation in monetary terms but instead by the class to which they belong. Existing fines will be assigned to their appropriate classes when updated in accordance with increases in the consumer price index. In this way, all fines will have regained the value they had when first created or last updated by statute. The clearest way to illustrate how the system will work is by giving examples.

First, an Act passed later this year might create an offence triable summarily with a maximum fine on conviction of, say, €4,000. As can be seen from the definitions, a fine falls into class B where the amount of the fine does not exceed €4,000. Therefore, the Act would state something along the lines of: "A person found guilty of an offence under this section shall be liable on summary conviction to a class B fine". In the example I have given, the maximum fine within the appropriate class is €4,000. The actual fine a court could impose could be that amount or any amount less than the court, in its discretion, would consider appropriate. This system imposes no restrictions on the discretionary power of the court to impose the fine it considers appropriate in a particular case apart from the fact that a maximum is specified as at the current time.

I will now give some examples of how to find the appropriate level of an existing fine that has been updated to its real value. Not to update existing fines in line with inflation since they were first introduced or last increased would be to defeat the intention of the Houses of the Oireachtas which in days gone by had decided on the appropriate maximum fine for a particular offence. The first example I will give is of an Act of 1935 which created an offence with a maximum fine on summary conviction of, in modern currency value, €200. To find the current value of that fine one has to study the tables by reference to the year and the amount. The first reference is to the year, which is reference number 7, that is, the years 1915 to 1944. The relevant amount is greater than €127 in the class A table. Accordingly, it will be a class A fine which has a maximum value of €5,000. Another example would be a fine of €500 in 1940 which was increased by statute to €1,000 in 1990. The reference number this time is 2, that is, between 1990 and 1996. It cannot be a class A fine as it is not greater than €2,769, the amount opposite reference number 2. Similarly, it cannot be a class B fine as it is not greater than €1,731. In fact, it will be a class C fine as the most recent level of the fine was not greater than €1,731 but greater than €692. Therefore, the maximum fine is now €2,500, that is, a class C fine.

The courts will quickly become accustomed to operating the indexation provisions. However, if any difficulties arise in implementing the indexation provisions, they can be addressed in regulations made under section 11. I do not foresee any difficulty in implementation that would require me to make regulations to remove the difficulty but, as this is ground-breaking legislation with no precedent, it is prudent to be prepared.

Ideally, the tables in sections 4 to 8, inclusive, could be amended periodically in regulations to take account of inflation. However, our advice has been that such amendments might be open to challenge in the courts. Rather than take a risk, amending the figures in the tables will have to be done by way of primary legislation. There is nothing to stop Ministers at any time substantively raising fines for offences in legislation for which they have responsibility. That would also have to be done by way of primary legislation and in practical terms it would mean, for example, changing a class D fine to a class C fine, if that was what was required.

At the outset, I mentioned two issues that are fundamental to the indexation of fines. As a court of summary jurisdiction, there must be a relatively low ceiling on the maximum fines the District Court can impose when dealing with minor offences. The Attorney General has agreed that for the current time the maximum fine that can be imposed by a court of summary jurisdiction is €5,000. Therefore, in the definition in section 3, the maximum fine that can be imposed in the District Court will be a class A fine, that is, a fine not exceeding €5,000. This can be increased by means of legislation in line with inflation when the fines generally are being updated.

It would not be feasible to provide similar tables for fines that the higher courts can impose. Those courts can impose huge fines of many millions of euro or even unlimited fines. Such fines would not lend themselves to such indexing. However, higher court fines could not be ignored in the preparation of this legislation. To have done so would have meant that where an offence was triable either way, the District Court fine might be higher than the maximum fine a higher court could impose.

Other anomalies could also arise. One particular danger which could arise is that the courts might be inclined to declare that a particular offence was no longer a minor one fit to be tried summarily but had become a serious offence that must be tried on indictment. This would be undesirable. One of the factors that a court takes into account when deciding whether an offence is a minor one fit to be tried summarily is the level of fine for which a person would be liable if convicted of the offence. The elimination of any appreciable difference between the maximum summary fine and the maximum fine on conviction on indictment, or the fact of the maximum summary fine exceeding the maximum indictable fine in the same statute, would be likely to weigh heavily with a court in determining whether the offence concerned had ceased to be a minor offence fit to be tried summarily.

The position of the higher court fines was a conundrum for which there was no easy, obvious or ideal answer. The system of indexing higher court fines that has been agreed with the Attorney General is based on a multiplier system. Section 9 has a table of seven time periods and any fines of determinate amount that were provided for or updated during each time period is multiplied by an amount based on the increase in District Court fines for the same periods. The reason there are not eight time periods, unlike the other tables, is because the most recent would be multiplied by one so there would be little point in providing for it in the table.

I mentioned that the Law Reform Commission also recommended in its 2002 report that the court, in determining the level of a fine in a particular case, should have the ability to take into account the financial circumstances of the offender and the burden the payment of the fine would have on the offender and his or her dependants. The commission further recommended that a court should have regard to such matters, irrespective of whether the effect of so doing would be to increase or reduce the amount of the fine so as to convey the principle of equality of impact upon offenders of different means. The commission reiterated those recommendations in a further report in 2003.

Section 13 gives effect to those recommendations. The purpose of section 13 is to ensure that, as far as practicable, the effect of a fine on a person or his or her dependants is not significantly abated or made more severe by reason of his or her financial circumstances. For that reason the offender will be obliged to provide information on his or her financial circumstances and the court may then impose a fine that is higher or lower than, or equal to, the otherwise appropriate fine. The otherwise appropriate fine is the fine the court would have imposed but for section 13, having regard to all the circumstances of the case. In the District Court no fine can exceed the €5,000 maximum that can be imposed in that court and, in the case of individual fines, the fine cannot exceed the maximum for the offence for which it was imposed. In the rare cases where there is a minimum fine the fine cannot be less than that minimum.

Section 14 introduces another ground-breaking initiative that will greatly facilitate a smoother and more efficient collection of fines by providing for payment of fines by instalments. This initiative was recommended in the Comptroller and Auditor General's report on the collection of fines in 2000 as a way of increasing the level of payment of fines, in particular, where the offender had limited means. The high level group report on the collection of fines to the Committee of Public Accounts in 2001 also recommended that the facility of payment of fines by instalments be introduced as a necessary prerequisite to the introduction of harder hitting enforcement methods such as attachment of earnings. The section gives effect to these recommendations. It gives the courts power to direct that a fine be paid by instalments if it is satisfied that requiring a person to pay the full amount up-front by the due date would place that person or his or her dependants under undue financial hardship.

A scheme for paying fines by instalments will pose an administrative challenge for the Courts Service. It has been decided that the payment by instalments system will only apply to fines in excess of €100 to lessen the burden. As soon as the system is up and running smoothly, that amount can, if necessary, be reviewed. However, for the present it is a prudent but relatively minor limitation on the operation of the scheme. It is also prudent to place a time limit for the full payment of the fine. The norm will be for the instalments to be spread over one year. However, the person on whom the fine has been imposed may apply to the court for an extension of time and the court may grant the extension for a period of not more than a further year. In other words, there are no circumstances where the payment of the fine by instalments can be spread beyond two years.

The third major policy initiative in the legislation provides the courts with new options as alternatives to imprisonment when a person defaults on the payment of a fine. There is a perception that the prisons are cluttered up by persons who are there for no other reason than they did not pay a fine, but that is not true. A total of 3,366 persons were imprisoned in the first ten months of 2009 for that reason, which was well up on the number imprisoned the previous year. That the number is increasing at such a rate highlights the need for this legislation and, in particular, the additional initiatives I will shortly outline. However, on any given night, only a small number of prison places are occupied by fine defaulters, some of whom, for their own reasons, can afford to pay but choose not to do so. While these provisions, with the equality of impact and payment by instalments initiatives, should reduce the figures further, that is not the only reason I propose to provide alternatives to imprisonment. It is socially desirable that prison be an option for fine defaulters only in the most exceptional circumstances such as where someone has a malign reason for refusing to pay the fine.

Section 15 will allow the courts to appoint a receiver to recover the fine or seize property belonging to a fine defaulter and recover from the sale of the property a sum equivalent to the value of the fine or any unpaid part of it. The order will be made by the court at the time the fine is imposed but will only be activated when the offender has not paid by the due date for payment and the receiver has been informed of the default by the Courts Service. This will be the only option open to the court on default. If the receiver cannot recover the fine or its value in property, the court will be able to make a community service order if the offender consents and is suitable for community service. Imprisonment will become an option if the offender does not consent to community service, cannot comply with the conditions for community service, no place is available or fails to carry out the community service.

The Probation Service supervised 1,667 community service orders in 2009. It has the capacity to substantially increase the number of community service orders it can supervise by increasing the number of offenders on each work programme. For example, owing to the number of orders being made by the courts, a particular programme of, say, graffiti removal might have only one or two offenders on it. This could be increased to four or five without significantly altering the level of supervision.

Receivers will be appointed by the Government following nomination by the Minister for Justice, Equality and Law Reform with the agreement of the Minister for Finance. Persons will be invited by the Courts Service to tender for the job of receiver and the service will manage the contract arrangements and administer the scheme. Receiver fees will be in accordance with scales provided for in a fees order. The procedures for the appointment of receivers, their fees and erms and conditions will be similar to those for Revenue sheriffs and sheriffs.

I will summarise the sequence of events when a fine is imposed in the courts. When a fine is imposed, instead of the district justice saying he or she is fining someone €1,000 or handing down a term of imprisonment for seven days if the person defaults, a recovery order will be made appointing a receiver to recover the fine or its equivalent in property. The order will enter into force only if the fine is not paid by the due date for payment and will have effect from the date the Courts Service informs the receiver of the non-payment of the fine. If the receiver cannot recover the fine or its value in property, the court will make a community service order if the offender consents and the other conditions are complied with. Only then will the question of imprisonment arise. What I have outlined represents a logical sequence of events when a fine is imposed and not paid by the due date for payment. It will reduce the pressure on prison spaces and greatly reduce the time gardaí spend executing court warrants. Additional duties for the Probation Service will be performed largely from within existing resources. Discussions have been taking place with the Courts Service on the additional burden that will be placed on the service.

My final initiative is the name and shame provision under section 19. This will give the Courts Service the power to publish the names of people who default on fines. It represents a further incentive to persons to pay their fines. While some persons are incorrigible, most will not like receivers turning up at their door, in front of neighbours, to recover property and they will not want their names and addresses to be published for all to see for non-payment of a fine imposed by a court on conviction for committing an offence.

While this is a relatively short Bill, it will quickly be seen to be important reforming legislation. It may appear complex, in particular, in regard to the indexing provisions, but that is a worthwhile and necessary price to pay for what will be achieved because failure to index fines could lead to ridiculous fines being imposed and failure to maintain the values of fines imposed years ago would only serve to frustrate the efforts of our predecessors in the Oireachtas who would have given much thought to what they considered to be the appropriate financial penalties for breaches of the offences they were creating.

I will table amendments on Committee Stage. These will mainly be of a drafting or technical nature or intended to elaborate on the provisions of Part 3. I commend the Bill to the House. It is ground-breaking legislation. I have spent a great deal of time with my officials teasing out the basis on which the Bill should be framed to ensure people will not be sent to prison, as they have been in recent times, for failing to pay their dog or television licence fee. However, they should not get off scot-free. That is why I have inserted a series of steps to be taken before someone who fails to pay for a dog licence and is clearly thumbing his or her nose at the court that has imposed the fine is sent to prison, particularly where he or she has the means to pay the fine through instalments or otherwise but will not do so. Similar provisions were introduced in civil law following a recent High Court decision to ensure a prison sentence would only be used as a last resort for non-payment of civil debts. When we pass the Bill, coupled with the legislation we have passed and to which we will probably add in the near future in the civil area, we will reach a stage where we will not have the ludicrous position whereby ordinary citizens who have only come into contact with the law perhaps once in their lives but who may have forgotten to pay a fine are dragged off to Mountjoy. That involves the creation of a significant amount of paperwork and bureaucracy in terms of bringing persons to prison and finding the necessary space for them only to find that they are let go the next day when they have paid the fine. The enactment of the Bill will change the situation experienced by many in the past. It will also free up a relatively small number of places in prison. Given that the prison population is rising dramatically and that while in comparison with other OECD countries we have a relatively small prisoner population, it is increasing and it is necessary to use prison only in cases where it is warranted. In many cases that have occurred in the past it has not been warranted to send people to prison. When the excellent legislation is passed it will stand the test of time.