Michael McDowell (Dublin South East, Progressive Democrats)

The amendment proposes to insert an additional wording in section 40(9). Subsection (9) already provides that if at any time after the making of the enforcement order it is reported to the High Court that any sum payable under the ICC order remains unpaid, the court may order the imprisonment of the person to whom the ICC order relates. The amendment proposes that the provision will only apply in cases of sums payable under the ICC order which appear to the High Court to be a sum which might be realised by the person to whom the order is directed.

I am advised that the amendment is unnecessary. A court is not going to imprison a person if that person cannot realise his or her assets. Subsection (10) provides that no order under subsection (9) can be made unless the person to whom the ICC order relates has been given a reasonable opportunity to make representations to the court. In that context, the person can outline to the court any factors which affect his or her ability to pay in compliance with the ICC order and we believe that the capacity to make submissions to the court necessarily implies that a person who cannot realise the asset cannot be imprisoned or punished for failing to do so.

Subsection (9) is modelled on section 19(2) of the Criminal Justice Act 1994, which deals with the general enforcement of confiscation orders. In practice, it has been found that the existing wording is sufficiently flexible and that the issue raised by Senator Tuffy does not warrant an amendment.