Ivana Bacik (Independent)

I welcome the Minister of State to the House. I welcome the Bill on behalf of the Labour Party. We believe it to be an important reform in the system of criminal justice and it is something we have sought for a long time. Essentially, its most important purpose as I would see it is that it will reduce the numbers of people being sent to prison because they have not paid fines. That is something on which we are all agreed.

Before I talk about the Bill, I want to refer to something Senator McDonald said about the role of the District Court. Like Senator McDonald I have practised in the District Court, particularly on the criminal side, and I agree with her that we need to have a separate system of family law courts. In Dublin there is a separate District Court for family matters. Anyone who has practised in a rural area, however, will know that the District Court lists are impossible to manage. Criminal and family cases are often heard on separate days, but it is undesirable, generally, from the viewpoint of those appearing on criminal charges and those appearing on family matters and the systems need to be separated.

There is another matter of relevance to this Bill in terms of the District Court. It was very clear from my work as a practitioner that the District Court on the criminal side was dealing by and large with accused persons drawn from the most disadvantaged areas. Some years ago I, along with Trinity College colleagues in the community and health department, did a mapping study into the backgrounds of accused persons before the Dublin Metropolitan District Court in the Bridewell. We published those findings in a book called Crime and Poverty, not to give it a plug, in 1998. The disturbing finding was that not only were the majority of those appearing before the District Court being drawn from the most disadvantaged areas in Dublin, and this would be replicated throughout the country, the sentencing statistics showed they were more likely to be sent to prison than those from less disadvantaged areas for the same offences. That research gained considerable publicity at the time.

It is important to state, however, that there is a bias in the criminal justice system, particularly at District Court level where, granted, the offences are minor although statistically they comprise an enormous bulk, such that the persons being charged appear to be drawn from the more disadvantaged backgrounds. Our study also showed they were more likely to be sent to prison for the same offences. When that is coupled with the data the Minister for Justice, Equality and Law Reform gave in his speech today to the effect that more than 3,000 persons were imprisoned in the first ten months of 2009 for failure to pay a fine, one sees that the scale of the problem is enormous. Opposition Members are justified in saying that this is far too many and we have been seeking legislation for years to address this point and ensure people are not being locked up on grounds of poverty or their inability to pay. The fear is that this is what is happening currently.

The Minister, in fairness, said the number was increasing and that the rate of increase highlights the need for this legislation. While I agree with that, I would disagree with the Minister when he says the figures show our prisons are not cluttered up by persons who are there for no reason other than they did not pay their fines. I believe nearly 3,500 is a considerable number of people. Only a small number of prison places are occupied by fine defaulters on any given night, but one is still talking about 3,336 persons who have been locked up for a period of time for failure to pay their fines.

The Minister said some can afford to pay but choose not to. We do not know what proportion that amounts to. We know from our research, as I have said, that many people in serious poverty appear before the District Court. I suggest the majority of those in prison are there because they cannot pay their fines. The Minister recognises this is a problem and that is why this Bill is being brought forward.

We must also remember that behind each of those numbers is an individual who has lost out in terms of child care, housing, job opportunities and being able to keep a job. He or she may well have lost significantly. It is not just a question of losing one's liberty but also that the consequence of this may have been very significant in many instances for those in employment or who have small children or for people in rented accommodation who have to keep up rent payments and so on. We have to bear that in mind as well.

We welcome initiatives such as this Bill that will reduce the numbers of people in prison for failure to pay fines. I know that is not the only aspect of the Bill and that it also provides, as the Minister has said, for the indexation of fines. Again, we welcome that. It also provides for an approved system for assessing offenders' financial circumstances and for the payment of fines by instalments. I would see the payment of fines by instalments as being very much in line with the policy objective of trying to reduce the number of people imprisoned for failure to pay, and this is an important change. Perhaps most important, however, is the relevant part of the Bill dealing with alternatives to imprisonment where offenders default in the payment of fines.

While I want to look at that some more, I wish to raise a couple of other points first. There has been great delay in bringing forward this legislation, and I regret it has taken so long. Last year, the House debated issues surrounding default of payment and imprisonment and we were promised this reforming legislation. In fact, however, the Bill was first published in 2007 and the Law Reform Commission made recommendations as long ago as 1991. It has taken a long time to prepare and develop legislation dealing with the policy objective of reducing the number of fine defaulters in prison and ensuring a more effective fines payment system, which is dealt with in a large part of this Bill. It is a shame it has taken so long to bring it before the Houses.

A point was raised by Deputy Sherlock during the Second Stage debate on the Bill in the Dáil about the facility to pay fines by instalments, but I see that section 14(8) remains the same. The facility to pay fines by instalments only applies where the fine is greater than €100. That provision could be remedied. I do not understand why that minimum level has been set and perhaps the Minister would explain it. As Deputy Sherlock said, many people are surviving solely on income from the Department of Social and Family Affairs and every penny of their weekly income is accounted for. A fine of as little as €50 could be a considerable burden. It would be of great assistance to those people if it could be paid in €5 or smaller instalments per week.

Indeed, if one is fined €100, section 14 will not apply. It only applies to fines that are greater than €100. Countless numbers of fines of €100 are imposed in the District Court. It is a significant amount if one must account for every penny of one's income and has outstanding obligations, for example, to pay back a moneylender, pay for children's food, rent and so forth. Will the Minister consider changing that minimum figure? He was asked to do so in the Dáil but I ask him again to consider it. A €100 fine is a standard fine figure that is imposed with routine regularity in the District Court, yet a €100 fine will not be capable of being paid in instalments. Only fines greater than €100 will qualify under section 14 for the facility for instalment payment. That is a pity given the overall purpose of the Bill, with which we all agree, and the very progressive changes the Bill generally makes to the fine payment system.

Another point raised by Deputy Sherlock, which is a hobby-horse of mine, deserves mention. We must monitor the effect of the Bill to ensure we are not still sending thousands of fine defaulters to prison every year. We must monitor sentencing practices. It would have been nice to see a provision in the Bill providing for statistical analysis of sentences. It is a real concern for anybody who is examining the criminal justice system or trying to map out the impact of criminal legislation that we still do not have a coherent system for gathering data on sentences. The Central Criminal Court provides very clear data, but it deals with only a tiny fraction of criminal cases. They are generally the most high profile cases, involving murder and rape. The vast bulk of criminal business is carried out in the District Court, in particular, and the Circuit Court for trials on indictment. In the case of these trials, their outcomes and particularly the outcome of the guilty pleas - 80% of criminal proceedings, and 90% in some cases, are dealt with by way of guilty plea - we do not have a coherent system for gathering the data on sentences that is necessary if we are to monitor the impact of this Bill and ensure it meets its policy objective of reducing the number of impecunious offenders being subjected to imprisonment because they cannot pay fines. The sentence is the fine but the alternative currently is imprisonment.

There is a need for careful monitoring of sentencing practice. To do it, however, there must be a system in place for gathering sentencing data. I have plenty of colleagues in the academic criminal and criminological area who have tried to do this for specific offences but they have done so through all sorts of means, including looking at newspaper reports of sentencing for sexual assault and rape. Clearly, that is not an ideal way to gather scientific data on sentencing. The Central Statistics Office, CSO, has taken over the role of the Garda in assembling crime statistics, while the annual prison reports also provide data. There are different sources from which data can be gathered. As I said earlier, the Central Criminal Court is a very good source of data from that court. However, we must put some type of system in place to provide a central repository of sentencing information so we can monitor whether persons are being routinely sent to prison for non-payment of fines after this legislation comes into effect.

I will turn to provisions in the Bill for alternatives to imprisonment for default of fine payments, which I very much welcome. They will permit, for the first time, a real alternative to deal with default. Section 15 allows the court to appoint a receiver to recover a fine or seize property belonging to a fine defaulter in order to recover from the sale of the property a sum equivalent to the value of the fine or any unpaid part of it. That is important because it will cover a situation where somebody has begun paying in instalments but has been unable to complete the payments. It will not just apply where there is an outright default. That is welcome. The order is made at the time the fine is imposed but is only activated when the offender has not paid by the due date and the receiver has been informed of the default by the Courts Service.

It is important to note that the receiver provision is not the final step. There is also the facility for the court to make a community service order if the offender consents and is suitable for community service, which is the usual provision where community service is being ordered. I fully support this. For a long time I and many others on this side of the House have argued for the need to give courts the facility to impose community service orders instead of imprisonment as the default where somebody does not pay a fine. It is welcome that the community service order will be the alternative to a fine, rather than imprisonment. It would be preferable if community service was the default rather than imprisonment, although I am not sure that will be the impact of this Bill.

For too long prison has been seen as the standard option in sentencing practice in this country. Community service and probation orders are the poor relations. We talk about alternatives to custody rather than seeing the alternative as the main sanction and custody simply a sanction of last resort, as it should be. I am struck by the figures that have been produced by the Minister. The probation service supervised only 1,667 community service orders in 2009. Considering that 3,366 persons were imprisoned for fine default in the first ten months of 2009 alone, it is troubling that in the full 12 months community service orders were imposed on considerably less than 2,000 people. We should be using the community service order more extensively.

Two final points should be made about community service orders. The research available shows there is remarkable divergence in practice in the imposition of community service orders across Ireland. It depends on the individual District Court judge. That should not continue. There should be far greater consistency in the application of community service orders and judges should be encouraged to use them rather than imprisonment. There is over-use of imprisonment, particularly at District Court level. To do that and to ensure this Bill has a full effect in terms of keeping people out of prison for fine default there must be adequate resourcing of the probation service. Probation officers supervise community service orders, including the community service orders where persons cannot pay fines and have no property that may be recovered to pay their fines.

There is a problem with the resourcing of the probation service. It is under-resourced and that is partly the reason that many District Court judges are reluctant to impose community service orders. That is the practical reality. However, the cost of keeping somebody in prison, even for one or two nights, is far greater than the cost of having them on probation and having a working and efficient probation service. There is clearly a financial imperative to increasing the use of community service and the resources for the probation service. However, I welcome the Bill.