Joanna Tuffy (Labour)

I move amendment No. 6:

In page 31, line 38, after "may," to insert the following:

"if it appears to the Court that the sum or any part of it is a sum which might be realised by the person to whom the order is directed,".

This important amendment relates to the issue of 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 inability to pay monetary sums.

This section is taken and adapted from the Criminal Justice Act 1994 which relates to imprisonment for failure to pay confiscation orders made following convictions for drug trafficking offences. However, the critical feature of the imprisonment system under the Criminal Justice Act 1994 is that a confiscation order may be made only for such amount as the court thinks might be realised, as opposed to the total profit 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 own consumption and is left with only €5,000 in cash or 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 the person is unable to comply with it because he or she has spent 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 40 of this legislation. Under section 40(9), the High Court is being empowered to order a person to pay the full amount of an ICC order with imprisonment for up to ten years in default. This is objectionable in principle and constitutionally and, accordingly, we suggest the insertion of a qualifier that the amount would have to be an amount which the court considers could be realised. We have reworded the amendment following Committee Stage to make clearer that the court must be satisfied that the sum can be realised so that, in other words, the person will not be imprisoned for mere inability to pay