Joanna Tuffy (Labour)

I move amendment No. 15:

In page 31, subsection (9), line 38, 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 concerns the circumstances in which a person may be imprisoned for failure to pay a fine. There are strong international legal prohibitions against the imprisonment of individuals for the inability to pay monetary sums. This section is adapted from the provisions in the Criminal Justice Act 1994 with regard to imprisonment for failure to pay confiscation orders made following convictions for drugs trafficking offences. However, the critical feature of the imprisonment system under that Act is that a confiscation order may only be made for such amounts as the court thinks might be realised, as opposed to the total amount of profit gained from the drug trafficking. For example, where a person makes a profit of €10,000 from drug trafficking but spends €5,000 on drugs for his or her own use and is left with €5,000 in realisable assets, the Circuit Court can only make a confiscation order for the €5,000 which is capable of being realised. In other words, under the Criminal Justice Act 1994, a person is not liable to be imprisoned for failure to comply with a confiscation order in circumstances where he or she is unable to comply with the order because he or she has spent or otherwise used the money. There should therefore be no question under the Criminal Justice Act of imprisonment because of inability to pay.

However, this safeguard is conspicuous by its absence from section 39. Under subsection 39(9), the High Court is empowered to order a person to pay the full amount of an ICC order with imprisonment of up to ten years for default. As this is objectionable in principle and raises concerns with regard to constitutional implications, we propose the insertion of a qualifier so that the amount would have to be an amount which the court considers to be realisable.