Thursday, 10 April 2014
Fines (Payment and Recovery) Bill 2013: From the Seanad
These amendments deal with the value of fines eligible to be paid in instalments under the Bill. In the Bill as it stands only fines greater than €100 in value can be paid by instalment. However under section 6(5)(b) where more than one fine is imposed at a court sitting these fines can be added together and if the total exceeds €100 they can be paid by instalment. Having considered this provision in further consultation with the Courts Service I proposed replacement of section 6(5)(b). Seanad amendments Nos. 1 and 2 provide instead that where a number of fines are imposed which do not qualify to be paid by instalment the judge can take this fact into account when fixing the due date for payment. If a fine of less than €100 is imposed there is no change and it cannot be paid by instalment, but if two €60 fines are imposed the judge can fix a later due date for payment than he or she would otherwise have fixed if only one fine of €120 was ordered which could be paid by instalment.
Seanad amendment No. 2:Section 6: In page 10, to delete lines 2 to 4 and substitute the following:"(b) Where 2 or more fines are imposed on a person at a court sitting and the option to pay any one or more of those fines by instalments is not available because of the operation of paragraph (a), the court may, in its order specifying the date by which such a fine is required to be paid in respect of which such option is not available, specify, if it thinks it appropriate in all the circumstances, a date that is later than the date it would have specified if that option had been available in respect of that fine but not taken by the fined person.".
Seanad amendment No. 3:Section 7: In page 10, to delete lines 16 to 21 and substitute the following:“(a) subject to subsection (2), make a recovery order, (b) make an attachment order, or (c) make a community service order if section 4 of the Act of 1983 has been complied with.(2) The court shall not make a recovery order in respect of the fined person (not being a body corporate) unless the fine or, as may be appropriate, that part of the fine that remains unpaid—(a) exceeds such amount greater than €500 as may be prescribed, or (b) if no such amount stands prescribed, exceeds €500.”.
These three amendments concern recovery orders and amend sections 7 and 20 of the Bill. Seanad amendment No. 3 has the effect of limiting the making of recovery orders to fines greater than €500 except where the fined person is a company. This would have the effect of excluding 90% of fines imposed from the recovery provisions. Recovery is a relatively cumbersome procedure and to my mind should only be used where it makes sense to do so. Dispatching receivers to people's houses to recover property worth €100 does not make much sense, which is why I propose the new higher threshold for the making of such orders.
Seanad amendment No. 4 addresses the sequence in which the court is to consider which order to make in default. Under the Bill as passed in this House the court was first to consider making either an attachment order or a recovery order and only to proceed to consider a community service order where it determined that neither of the other orders should be made. Seanad amendment No. 4 changes this sequence and instead a court will first have to consider making an attachment order. If it decides against making an attachment order it then moves to consider making either a recovery order or a community service order. The court has a free choice in deciding whether to impose a recovery or community service order except, following Seanad amendment No. 3, if the fine is less than €500 the court may only make a community service order assuming it is able to do so.
Seanad amendment No. 6 is a consequential amendment to Seanad amendment No. 3 on the making of recovery orders where the fined person is a body corporate. Under section 2(2) of the Courts (No. 2) Act 1986 where a company defaults of a fine the fine is to be recovered by the seizure and disposal of the company's goods. Seanad amendment No. 6 repeals this provision so companies will now be dealt with in accordance with the provisions of section 7 which allows for the appointment of a receiver to recover the fine. Without this amendment two systems would effectively be in place to deal with default by bodies corporate.
To put it simply, the overall effect of Seanad amendments Nos. 3, 4 and 6 is to exclude the making of recovery orders in respect of small fines, to prioritise the making of attachment orders where a person is in employment and to put recovery and community service orders on an equal footing so a court can impose whichever it decides is the more appropriate in any particular case. These three amendments improve the Bill and will avoid the making of recovery orders where it would be better for all concerned if the person was required to do some community service which would benefit the person and the community. These changes are in line with changes I detailed to be under consideration when the Bill was before the House.
Seanad amendment No. 4:Section 7: In page 10, to delete lines 35 to 38 and substitute the following:"(4) (a) The court shall, after considering a statement provided to it pursuant to subsection (3)in deciding what order to make under subsection (1)—(i) first, give consideration to making an attachment order in respect of the fined person, and (ii) second, if it is satisfied that it would not be appropriate for it to make an attachment order in respect of the fined person, give consideration to making, subject tosubsection (2), a recovery order or community service order in respect of the fined person.(b) Where the court is satisfied that it would not be appropriate for it to make an attachment order, recovery order or community service order in respect of the fined person, it may commit the person to prison in accordance with section 2 or 2A of the Act of 1986.".
This amendment corrects an error in the Bill where there is an incorrect cross-reference to subsection 4 at the start of section 8(1)(a). The amendment corrects the reference which should be to section 7(2).
I thank Deputies for the support they have given to the Bill since its publication and the highly constructive discussions on it in the House. I also thank Senators for the discussions in the other House. In so far as possible, I have tried to take on board comments and suggestions made and believe the Bill, as amended, is the better for it. When work started on it, the initial intention was to amend the Fines Act 2010 simply to provide for the making of attachment of earnings orders. However, as work progressed, it became clear that the entire fines payment and recovery system needed to be reviewed to ensure all of the pieces worked together as an integrated whole. With the passage of the Bill, all of the provisions are now to be found in one place and I am confident that the Bill will provide an appropriate response to the twin problems of the refusal or failure of some people to pay fines imposed on them and the inappropriateness of imprisonment as the automatic response where this happens.
This reform has been necessary for a great many years. There will now be a system in place that is logical and proportionate. Fines will be set at a level that takes into account a person's financial circumstances. All fines of more than €100 can be paid by instalments. Where a person defaults, he or she will be brought back to court where the judge will, first, consider making an attachment of earnings order. Where it is not appropriate to make such an order, the judge will be able to either make a recovery order where the fine is more than €500 or a community service order. Where either an attachment order or a recovery order is made and the fine is still not recovered in full, the court will still have available to it the possibility of making a community service order. Ultimately, imprisonment will only apply where it is not possible to make a community service order or one has been made and the individual required to undertake community service fails to comply with the order made.
Last year more than 8,000 people were imprisoned for the non-payment of fines. I am confident that with the changes to the fines system that will flow from the implementation of this Bill, this number will be greatly reduced. Moreover, as everyone is aware, a system developed during the years under which, in practical terms, few people served any lengthy sentence for the non-payment of fines. The continuation of the current system would bring the law into disrepute and is unfair to individuals who comply with their legal obligations. There will now be in place comprehensive provisions that guarantee the integrity of court orders made, which uphold the justice system in a manner that is appropriate and which seek to ensure individuals who are fined and fail to comply with their legal obligations ultimately will be required to so do. No individual should, through financial difficulty, have a major problem in discharging a fine in circumstances where the level of fine imposed must take into account his or her financial circumstances and in circumstances where fines of more than €100 can be paid by way of instalments.
This is a comprehensive reform of a law that had remained substantially unchanged for well over 150 years in practical terms. It is bringing modern thinking and mechanisms into play, particularly the attachment of earnings process that has proved successful for many years in the family law area where individuals default on maintenance payments, as well as the community service order system in order that those who fail to comply with the law in meeting their financial obligations to pay a fine will be required to pay back to the community something for the crime for which they have been convicted by way of undertaking community service. This will save Garda resources, as well as resources within the Irish Prison Service, and be a far more efficient and effective method to ensure the integrity of court orders when fines are imposed. It is my intention that the provisions of the Bill will become operational as soon as possible. The Courts Service expects to be in a position to accept instalment payments in the autumn and the other provisions such as attachment, recovery and community service will kick in once the default provisions are engaged, probably towards the end of the year or early next year. In the context of implementing the Bill, software and computer changes are being made in the Courts Service to be able to track fine orders made and instalments resulting therefrom.
This is an historic day for the fines payment system. As I stated, for well over a century one either paid a fine or one went to prison for default. That system will end once the Bill is signed by the President and commenced. It will be replaced by a system that is in tune with contemporary Ireland, amenable to the deployment of the latest technologies and, above all, effective.
I again thank Members of this House for the constructive contributions they have made to the debate and the discussions that took place on the Bill. I also thank members of the Oireachtas justice committee for their contributions on Committee Stage and look forward to the Bill coming fully into force.