Fergus O'Dowd (Louth, Fine Gael) | Oireachtas source

I thank the Senators for their comments and views and I understand the concerns. I suppose the proportionality of the action is key, and the Senator is concerned that if the action is not proportionate to the initial offence, there will be a significant adverse impact.

Section 8 provides for the appointment of receivers under a recovery order made by the court. Recovery orders will be made under section 7(1) and receivers will be able to recover the fine or seize and dispose of assets to recoup the fine. Section 8(3) sets out the powers and duties of the receiver, with section 8 allowing the receiver, assisted if necessary by the Garda Síochána, to enter a person's premises, including the dwelling, to take possession of property. The Senator opposes section 8 and the recovery order provisions. It is worth recalling that these provisions are already on the Statute Book and the provisions contained in this Bill are not as onerous as those which already exist.

Under the 2010 Act, recovery orders were to be made every time a fine was imposed and activated once a person defaulted on paying a fine. This meant that, had the Minister commenced the relevant provisions of the 2010 Act, every fined person risked the appointment of a receiver to recover the fine. Under this Bill there is a less onerous provision. Instead, recovery orders will only be made after a person has had a year to pay a fine and where the court decides that it would not be appropriate to make an attachment order. Even then, the court has a free hand to make either a recovery order or a community service order, and following amendment No. 3, it can only make a recovery order if the fine exceeds €500.

I appreciate the Senator's concerns regarding the question of entry into a premises. These provisions relating to receivers are similar to those relating to sheriffs of the Revenue Commissioners. Receivers must be appointed by the Government and, critically, they will operate in accordance with a recovery order made by the court. Nobody can act without the orders of a court and only after due and proper consideration.

We must not lose sight, however, of what we are talking about. We are dealing with people who have the cash or other assets to pay a fine and have refused or failed to do so. The court would have formed the opinion that these parties have the required assets. They would have provided the court with a statement of their financial circumstances and the court would have decided it was appropriate to make a recovery order and appoint a receiver. This is not a draconian provision, as it would be used after due consideration and after a fine of more than €500 had not been paid for at least a year. The provision is balanced and fits with the overall tenor of this Bill. The approach is to set fines at a level that people can afford to pay, and it is to make it as easy as possible for them to pay by making instalments available to everyone. Where a person fails to pay the fine, this puts in place alternatives to imprisonment. As has been noted, more than 8,000 people went to jail last year for reasons that could have been avoided.

The Minister's intention is to ensure there are alternatives in place so as to avoid such imprisonment. The Government believes it has a role to play in a comprehensive approach to the recovery of fines, through recovery orders, albeit a lesser role than that provided for in the 2010 Act. Therefore, its view is that section 8 should stand part of the Bill.

Senator Barrett made a point earlier to which I would like to respond. It has been drawn to my attention - I stand corrected by the Senator's superior knowledge - that where the receiver makes or causes to be made an entry into a record, if that record is false or misleading in any material respect and if he or she knows it to be false or misleading, he or she shall be guilty of an offence. It is the receiver who goes to jail in this case. On summary conviction, a receiver will be subject to a class A fine, imprisonment for a term not exceeding 12 months, or both, or on conviction on indictment can face a fine of €50,000, imprisonment for a term not exceeding five years, or both. This refers to the receiver, not the offender. I hope this is helpful to the Senator.