Kathleen Lynch (Cork North Central, Labour)

The Deputy will appreciate that I am not in a position to comment on any particular case that is before the courts and that the comments I have to make are about policy in the law at present, the recent changes that have been made and, in line with the programme for Government, the examination that is taking place in my Department with a view to improving the operation of the law where possible.

The commitments in the programme for Government regarding the alternatives to custody generally are that we will fully implement the Fines Act 2010 and extend the use of community service orders. Where a member of the Judiciary is considering the imposition of a prison sentence of one year or less, he or she will be required by legislation to consider first the appropriateness of community service orders as an alternative to imprisonment. We will end the practice of imprisoning people who cannot pay fines and debts and introduce a system which takes a small amount of money from wages or social welfare by "attachment order" to pay off a fine or debt over time, as an alternative to imprisonment for people who refuse to pay.

At the outset, it may be important to establish that, in a civil matter, a court is asked to adjudicate on a dispute between two or more parties. Such disputes can arise in cases of recovery of debt, including maintenance debt, performance of a contract, trespass and interference with property. These matters are determined by the courts on a daily basis. The court will make its decision on the basis of the facts involved and the rights of the parties. Such rights may be constitutional, statutory or common law rights or they may arise under the European Convention on Human Rights.

In deciding the matter, the court may order an appropriate remedy. This could involve payment of damages, restoration of the status quo or an injunction to either carry out an action or to desist from an action. The court does not have the power in civil cases to impose a custodial sentence as part of its remedy in favour of one of the parties. However, it is a critical feature of our legal system that court judgments should be obeyed by those to whom they are directed. If the person or persons concerned refuse to obey the order or implement the judgment of the court, then the issue of a court sanction may well arise. The sanction may take the form of imprisonment. Civil contempt in the context of such a refusal may lead the judge to order the imprisonment of the party or parties until the contempt is purged, that is, until the party agrees to implement or abide by the order. This imprisonment is not a punishment nor does it replace the necessity to comply with the order of the court. This misunderstanding of the situation has perhaps arisen most often in recent years in the context of actions by creditors to recover debts owed.

A particular concern in this regard was the very significant social requirement that maintenance orders made by the court should be respected. New legislation has been introduced on seeking to reduce the incidence of imprisonment with regard to non-payment of court orders for debt and maintenance payments. While the Debtors Act (Ireland) 1872 abolished imprisonment for debt, it permits the imprisonment of debtors who have the means to pay but refuse to or neglect to obey a court order in respect of the debt. However, the Enforcement of Court Orders Acts 1926 to 2009 provide the District Court with jurisdiction to make instalment orders where a debtor has defaulted on the debt. The court directs the debtor to pay off the sum owed in fixed instalments over a set period. Where the debtor fails to comply with the terms of the instalment order, the Acts set out the circumstances where a person may be imprisoned.

Imprisonment only arises where a person fails to comply with the court order. The Civil Law (Miscellaneous Provisions) Act 2011 introduced provisions to strengthen the existing provisions in the law for enforcement of orders of the court to pay maintenance. The Act addresses difficulties which have arisen consequent on the judgment of the High Court in the McCanncase of 2009 concerning the enforcement of orders for the recovery of civil debt.

Additional information not given on the floor of the House

The High Court found that the Enforcement of Court Orders Act 1940 lacked a number of necessary safeguards in circumstances where a person is at risk of imprisonment. Following this judgment, the Enforcement of Court Orders (Amendment) Act 2009 inserted a series of amendments designed to protect debtors and impose obligations on the creditor. However, the Act of 2009 created some difficulties regarding the payment of maintenance arrears by spouses on foot of court orders. The Civil Law (Miscellaneous Provisions) Act 2011 imposes a new regime whereby the law is based on the fact that the court has already deliberated on and determined an appropriate level of maintenance, and if the debtor breaches this order without a significant change in his or her circumstances, this breach will constitute a contempt of court.

The majority of the Fines Act 2010 has been commenced. Section 14, which was commenced last year, places an obligation on the court to take account of the defendant's financial circumstances before a fine is imposed. The definition of "financial circumstances" is very wide and includes, for example, the aggregate amount of the person's liabilities to provide financially for his or her family. It also includes the aggregate amount of moneys owed to the person, the date they fall due for payment and the likelihood of their being paid. As a result of this provision, no person can be sent to prison for default solely for the reason that he or she cannot afford to pay a fine.

Implementation work is continuing on two key sections of the Act. Section 15 provides for the payment of fines by instalment. There are a number of practical and technical issues required to commence this provision. As the House will appreciate, the current system of payment allows for only a single payment in respect of each fine to be made within a specified period, and this payment is recorded on the Courts Service IT system. In order to allow for a fine to be paid by instalments over a year, or in certain circumstances longer, as the Act provides, it is necessary for the IT system to be substantially modified to allow for the payment of instalments and to ensure that such instalments are accurately recorded and tracked. The Courts Service has put in place a structure to oversee the implementation of the necessary modifications. I am informed that, assuming the necessary funding is available, it will take approximately 12 months to complete the administrative and technical modifications required.

Section 16 of the 2010 Act will require a judge, consequent on determining that a fine is to be imposed, to make an order appointing an "approved person", commonly referred to as a receiver, to recover the fine in the event of default. Again, some IT enhancements will be necessary in order to allow for the electronic transfer of recovery orders and data exchange with the receivers. I am informed this work will take approximately six months to complete and will be done concurrently to that mentioned above.

The Fines Act 2010 also includes provision for the use of community service as a sanction where a receiver has been unable to recover a fine or its value in seized goods. These provisions will be commenced when the necessary arrangements have been made to implement the receiver or recovery order provisions. The work that has been done on implementation of the Fines Act 2010 is of relevance to the question generally on what can be done by way of alternatives to custodial sentences associated with civil cases, because similar considerations arise as to the practicalities of what is involved. In so far as the further commitments in the programme for Government are concerned on possible alternatives to custodial sentences in civil cases, I have asked my Department to carry out the necessary examination with a view to bringing forward practical proposals.

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