Dáil debates

Wednesday, 31 May 2006

International Criminal Court Bill 2003: Report Stage (Resumed) and Final Stage.

 

12:00 pm

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour)

I move amendment No. 52:

In page 31, line 1, after "order" to insert the following:

"which appeared to the High Court to be a sum which might be realised by the person to whom the order is directed".

This is an important amendment which relates to the issue of circumstances in which a person may be imprisoned for failure to pay a fine. There are strong international legal prohibitions on the imprisonment of individuals for inability to pay monetary sums.

This section is adapted from the Criminal Justice Act 1994 and relates to imprisonment for failure to pay confiscation orders made following conviction for drug trafficking offences. However, the critical feature of the imprisonment system under the Criminal Justice Act is that a confiscation order may be made only for such amount as the court thinks might be realised, in other words, according to the ability of the individual to pay as opposed to the total sum of profit from drug trafficking. For example, where a person makes a profit of €10,000 from trafficking drugs but spends €5,000 of it on feeding his or her own habit, the remaining €5,000 is the realisable sum, in other words, under the Criminal Justice Act a person is not liable to be imprisoned for failure to comply with a confiscation order in circumstances where he or she is palpably unable to comply with the order because the money or resources are not available to him or her. For that reason, under the Criminal Justice Act there should be no question of imprisonment for simple inability to pay where that is clear to the court.

This safeguard is conspicuous by its absence from section 39. Under the section, particularly under section 39(9), the High Court is empowered to order a person to pay the full amount of the ICC order, with the person facing imprisonment for up to ten years where he or she is in default of that order. This is a worrying principle and, according to the advices available to me, may be constitutionally infirm — we have enough experience of constitutional infirmity in recent times. Accordingly, I suggest the insertion of a qualifier that the amount must be one the court considers is realisable.

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