Ivana Bacik (Independent)

I wish to tease this out because it is an important point. I am trying to put myself in the shoes of a court or a district judge who is trying to reach a figure for a fine and considering the terms of section 13. I note that section 13(8) states this only applies where the court has discretion in determining the amount of the fine. Section 13(9) states:

"otherwise appropriate fine" means the fine that the court would impose on the person in respect of the offence ... if, in determining the amount of the fine, it were not required to take into account the person's financial circumstances.

If one then considers section 13(1), it states:

The purpose of this section is to ensure as far as practicable that, where a court imposes a fine on a person, the effect of the fine on that person or his or her dependants is not significantly abated or made more severe by reason of his or her financial circumstances.

Similarly, section 13(2) specifies that in determining the amount of the fine, the court must take into account the person's financial circumstances, while section 12 gives guidance to the court on the criteria to be used in determining the financial circumstances. However, section 12(3) appears to undermine all of these good intentions and purpose by stating a "court may, in making a determination under subsection (2)", in other words, in considering the amount of the fine taking into account the financial circumstances and deciding on a level it considers to be appropriate, impose a fine that is greater than the maximum fine.

I note that the purpose of section 13(3) is to give the court power to impose a fine that is greater than what would otherwise be appropriate if it considers that the person has sufficient assets to pay it. However, the Irish Penal Reform Trust has made the point that were this power to be included, it should only be capable of being exercised in exceptional circumstances and when an explanation was given because it appears to lead to a potential injustice, given the stated purpose as outlined in section 13(1). I have a concern in this regard because it allows the court to impose a fine that is greater than what would otherwise be appropriate if it did not consider financial circumstances because someone has plenty of assets, yet the courts also are being told to ensure there is no significant adverse effects on the person or his or her dependants. Consequently, will the Minister consider inserting a proviso to the effect that if the courts do this, they should at least be obliged to explain the reason they are so doing and that they should do so only in exceptional circumstances? I refer to the scenario in which a court was to impose a fine greater than the otherwise appropriate fine.