Dermot Ahern (Louth, Fianna Fail)

As I mentioned in my speech on Second Stage, the indexation of fines scheme is based on the Law Reform Commission report of 1991 and a review of the developments on the indexation of fines published by the commission in 2002. In 2002 the commission recommended that the court should have the ability to take into account, in determining the level of a fine in a particular case, the financial circumstances of the offender and the burden the payment of the fine would have on the offender or his or her dependants. The commission further recommended that a court should have regard to such matters irrespective of whether the effect of so doing would be to increase or to reduce the amount of the fine. This is in order to convey the principle of equality of impact upon offenders of different means. The commission reiterated those recommendations in a further report in 2003.

The concept of equality of impact is a central tenet of the Law Reform Commission's recommendations and of the Bill. This issue has been closely examined by the Office of the Attorney General and the drafter has looked at it again since Committee Stage. In late 2003, the Attorney General advised that, in light of the dictum of Mrs. Justice Denham in the DPP V. M [1994] 3 IR 306, he could foresee no difficulty with a provision which provides for a court increasing or reducing a fine, after the financial circumstances of the offender have been taken into account. In that case, Mrs. Justice Denham stated at page 316:

However sentences must also be proportionate to the personal circumstances of the appellant. The essence of the discretionary nature of sentencing is that the personal situation of the appellant must be taken into consideration by the court.

The concept of equality of impact can broadly be described as the principle that penalties should be so calculated as to impose an equal impact on the offenders subjected to them. This effectively means that fines should be capable of adjustment to reflect the means of offenders so as to ensure that the hardship imposed by the fine has equal impact whatever the means of the offender. This would accord with the policy that the State should have regard to differences in capacity.

The purpose of the section, as outlined in subsection (1), is to ensure that the effect of a fine on a person or his or her dependants is not significantly abated or made more severe by reason of his or her financial circumstances. Subsection (3) expressly refers to the purpose of the section, which is set out in subsection (1), and could in no way be construed as giving the court an unfettered discretion. Even without such express reference, the court would be acting contrary to the section if it increased or decreased a fine for a purpose other than that set out in subsection (1).

While I cannot accept the amendments of the Labour Party Senators, I would like to try to allay concerns by substituting the proposed new formulation I have outlined for subsection (3). While it does not alter the substance of the section, it is clearer in making more definite the linkage between subsection (1), which specifies the purpose of the section, and subsection (3), which provides that the court, having assessed the person's financial circumstances, may impose a fine that is greater or less than, or equal to, the otherwise appropriate fine.