Dermot Ahern (Louth, Fianna Fail)

I move amendment No. 47:

In page 10, to delete lines 15 to 26.

I have a long note so I will read it and then we can have a discussion.

The Fines Bill as discussed and as passed on Committee Stage contains a range of proposals aimed at ensuring that the level of fines imposed by the courts on persons convicted of committing offences will be affordable to the offender and, where default on payment occurs, a range of alternative sanctions is available. Briefly, in practical terms, this means that where a fine is imposed the court will be able to increase or reduce the fine within statutory limits in accordance with the offender's ability to pay. This means that payment of the fine will not cause any financial hardship to the offender or his or her dependants. In addition, the court may allow the fine to be paid in instalments over a 12-month period, which may in exceptional cases be extended for a further 12 months. Thus, the court will have an obligation to take into account the financial circumstances of the person being fined in determining the amount of the fine.

Despite the provisions for equality of impact and payment by instalment, not everyone will pay his or her fine. There will be various reasons for this. In some cases people will forget, although administrative provisions are being established to remind people of their obligations; others will not pay for reasons of principle or contrariness, while some simply could not be bothered because of general antipathy towards the law of the State and its institutions. That is why I have provided alternatives to imprisonment. The purpose of the amendments we are now discussing is to set out in more detail how they will operate in practice.

Deputies on the opposite side of the House have raised the issue of the number of bench warrants that are outstanding, many of which are for relatively small fines that are not collected. This has been a source of much complaint in recent years. There is a considerable onus on the Garda to execute those warrants, which means that in some instances a person who has forgotten to pay will find himself being taken to Mountjoy prison by a Garda under a court order, having been sentenced to seven days' imprisonment in default. In the Department we spent much time considering the provision of alternatives to imprisonment. These amendments are the way forward, although I am open to any suggestions from the Opposition.

The current draft provides for making a recovery order, the appointment of a receiver and the imposition of community service. The receiver would only have been appointed in instances of default on large fines imposed in higher courts, and the effect of the recovery order would have been to transform the non-payment of the fine into civil debt. I have decided to fuse these orders into one new recovery order, under which the court can appoint an approved person or receiver to recover the fine or its value. The use of this formula avoids the duplication of having two similar orders and having to arrange additional court hearings to effectively repeat investigating the offender's capacity to pay.

Streamlining the orders leads me to the main purpose of these amendments; instead of giving the courts power to impose imprisonment for default or to impose one of the alternative sanctions, the effect of the amendments will be to establish precisely how and when the alternative sanctions will operate. As Deputy Flanagan will know from his practice, the issue of following fines and civil debt is fairly tortuous in our courts. These amendments insert the ability of the court, in fining a person, to make a recovery order and various elements will kick into place immediately thereafter. A person can pay by instalments before that and if there is a default on those, the recovery order kicks in.

The recovery order necessitates somebody being appointed by the court, such as a sheriff, to take goods to the value of the fine. These goods fulfil the court order but if the agent does not get such goods, certain other provisions kick in with these amendments, including the obligation for community service.

The amendments in this group are a mix of substantive changes and consequential drafting changes. Section 10, setting out the period of imprisonment the courts can impose for default, and section 16, relating to the recovery order, are being deleted and their substance in amended format is being incorporated into other sections. I am also deleting the first two subsections of section 15 and replacing them with important amendments establishing the role of the courts in imposing fines.

In future, when a court imposes a fine for a criminal offence, it will also appoint a receiver to recover the fine or to seize and sell property from the offender to the value of the fine. The recovery order will only enter into force if the offender defaults on the payment of the fine and it will have effect from the time the Courts Service notifies the receiver of the default. This means the only option open to the court where a person does not pay a fine by the due date is to order the recovery of the fine and its value in property by the receiver. It is a logical first step on default to recover the fine and its value before considering other options that would result in additional cost to the State.

The system outlined will not require any additional court sittings as the recovery order is made at the time the fine is imposed and automatically enters into force on default. The reason the order will not take effect until the receiver is notified of the default by the Courts Service is to give the person in default one final opportunity to pay. The duties and responsibilities of receivers are set out in section 15 and an amendment I am making to the section is to permit a receiver to be appointed by one or more members of the Garda Síochána when carrying out his or her duties, as authorised in the court order.

What happens if the receiver is unable to recover the fine or any property belonging to the offender, as this will probably happen in a few cases? Most persons fined by the court will live in accommodation and possess goods such as televisions and so on. Approximately three quarters of fines imposed in District Courts are for road traffic offences so it is probably safe to assume the vast majority of persons so fined own cars. There will nonetheless be cases where the receiver will report to the court an inability to recover the fine or its value in property.

In such cases the Courts Service will have informed the probation service of the receiver's failure to recover the fine and the probation service will prepare a report for submission to the court on whether the offender is suitable for community service and if a place is available. Most but not all persons are suitable for community service and the probation service will try to tailor a work programme to suit the problems and needs which some offenders might have. The probation service has the capacity to manage and supervise additional supervisory community service orders.

If the offender consents and is suitable for community service and a place is available, a community service order will be imposed. Only if the offender does not consent and other conditions are not met does the question of imprisonment arise. The amendments to section 18 give effect to the changes to the community services aspects of the scheme in this group of amendments. Currently, the minimum number of hours of community service that can be imposed by a court is 40 hours and there is a maximum of 240 hours. This will also be the case where a person defaults on payment of a fine imposed on conviction on indictment. On summary conviction, where the fines are generally modest - with an average fine of approximately €300 - the minimum number of hours will be 30 hours and the maximum 100 hours.

Section 18 sets out the maximum terms of imprisonment for failure to pay on time a fine imposed on conviction on indictment. I am replacing this with provisions taking the place of it and section 10, which I have already indicated is being repealed. The amount of any fine or value of the property recovered, if any, will be taken into account in calculating the number of days imprisonment to be served on default. Failure to comply with the requirements of the community service order will also result in imprisonment in accordance with the scales set out in the section. There would be little point in imposing a fine for failure to carry out a community service order when the community service order was imposed in the first place for failure to pay a fine on time.

Section 20 sets out the procedure for the appointment of receivers. Such a person or persons will be nominated by the Minister for Justice, Equality and Law Reform with the consent of the Minister for Finance and approved by the Government.

I have spoken at length on this grouping of amendments but they represent a genuine and important policy change with regard to fining defaulters. The traditional policy of imprisonment is no longer viable or socially desirable. It also places a significant financial burden on the State and uses prison places that should be available for serious criminals. The proposals in my amendments will result in fewer offenders failing to pay fines as who would want a receiver knocking on the door, in front of neighbours, and removing property?

Where default occurs I propose a cost-effective way of recovering for the State the fine or its value in property. If that does not work - in such cases there would be very few defaulters - the probation service has the capacity to manage additional community service orders without any increase in allocation. Underlying my proposals is determination to keep the need for additional court sittings to a minimum so at a relatively low cost the Exchequer will gain substantially and prison will only be a real option in a tiny number of cases. I very much recommend these important amendments to the House.

As I mentioned we have spent much time considering the issue to ensure a position where people fined in court for offences make recompense in a cost-effective way. I am conscious of the position of people who are not habitual offenders and who are fined. For some reason such people may not pay the fine and in a couple of months a local garda would look to take them to Mountjoy. If this happens such people must go through a fairly significant bureaucracy and great difficulty is created in the prison because space must be found and so on. The family of the this person may pay the fine shortly afterwards and he or she is then released. This involves much bureaucracy and wastes Garda and prison time as well as prison space.

We are looking to save time for the Garda and the Prison Service. Quite properly, the overriding view of me and my Department is that in this day and age, people who are not habitual offenders should not be put in prison. It is unfair on such people as although they may have committed an offence, it might be the only offence they will ever commit.

Deputy Flanagan knows that a judge may impose a €1,000 fine and seven days in default but this will now be a €1,000 fine and a recovery order, which will dictate provisions on default of instalment payments or the full fine by a due date. The receiver will go to the premises in question and look for the person, demanding goods to the value of the fine. The receiver will have the power to sell, if necessary. A total of 75% of the fines in the District Court are for road traffic offences, so if the person who has offended owns a car then that could be taken in lieu of the fine.

If the receiver comes back without the value of the goods, then we propose that the person be examined for the possibility of carrying out a community service order. The person will have to consent and will have to be suitable before carrying out the community service order hours. We already have had detailed discussions with the Probation Service about its capacity, and its officials have assured me that they are able even to quadruple the number of hours to be taken on. This is because when offenders are doing community service, they usually only do it one at a time, so the Probation Service can easily double up. Anybody who is interested in this should look at the last annual report of the Probation Service and the section that deals with community service orders. It shows that individual community groups around the country have benefitted from community service orders. I am talking here about things like graffiti removal, working with tidy towns groups and so on. Local community groups will be able to avail of extra help from the ramping up of the community service position.

We looked at other possibilities before putting people into prison, for example creating a threshold under which somebody would not go to prison at all. However, we found that people who were fined under the threshold could thumb their nose at the system and get away without paying, as there was no other reasonable way to enforce the fine. If people were cute, they would not consent to a community service order, would not pay by instalments and make it difficult for the receiver to take any goods, all of which would mean they would get away with it. In consultation with the Office of the Attorney General and with my own Department, it was decided that we would not create that threshold for no imprisonment.

The options move along from fine, instalments, receiver, community service order and then imprisonment. Amendment No. 79 allows the Courts Service to publish a list of names of persons who fail to pay fines on time. That is an added incentive for people to pay their fines, as it effectively names and shames those who refuse to pay. Some people will be aghast at the possibility that their names will appear for not paying fines, while others will not care if their names appear. Ultimately, we still have to keep imprisonment as the final option, but the Bill is designed to ensure that as few people as possible are imprisoned for defaulting on fines. Therefore, I strongly recommend these amendments to the House.

See this speech in context