Wednesday, 26 February 2014
Fines (Payment and Recovery) Bill 2013: Second Stage
As Members are aware, the Minister, Deputy Shatter, is detained by business in the other House today and has asked me to stand in for him in this debate. On his behalf, I am pleased to present the Fines (Payment and Recovery) Bill 2013. This is a very important item of reforming legislation that has at its core the twin objectives of ensuring to the greatest extent possible that the fines imposed by the courts are paid and that where they are not paid, there are ample alternatives to imprisonment available to the courts.
The Bill addresses these objectives in three ways. First, it ensures that fines are set at a level that the person can afford. It then makes it easier for the person to pay the fine by providing that all fines above €100 may be paid by instalments. Finally, where a fine is not paid, the court can make an attachment order, a recovery order or a community service order, rather than imprisoning the person. Of course, there may be a residual, small group who still will face imprisonment but it is expected that their number will be far less than the approximately 8,000 currently imprisoned for the non-payment of fines each year. The landmark innovation in the Bill is the introduction of attachment of earnings for unpaid fines. Attachment orders will only be made where it is appropriate to so do but where they are made, the fined person's employer will be required to deduct the amount of the fine from the person's earnings and pay it to the Courts Service. This provision will address those who, despite being employed and having sufficient resources to pay a fine, do not so do in the hope that they will never hear about it again. Underpinning the approach in the Bill is the general principle that if one has the income, cash or other assets to pay the fine, the courts will then recover the fine. The Minister asked me to mention that he will bring forward an amendment on Committee Stage requiring the court to first consider the making of an attachment order and only where it has determined it would not be appropriate to make one will the court proceed to consider making either a recovery order or a community service order.
The second major change is in respect of recovery orders. While these were provided for in the Fines Act 2010, it was in a manner that was largely unworkable. Recovery orders allow for the recovery of the fine, including by the seizure of assets that can be converted into cash. Rather than making recovery orders automatically in all cases where a fine is imposed, as provided for in the 2010 Act, a recovery order will now be one of three options open to a court when a person defaults. The Minister intends to bring forward another amendment on Committee Stage, which will refine further the provision in order that generally, only fines that are greater in value than €500 can be subject to the recovery order provisions. This is to ensure, as far as possible, that the recovery process is not invoked where small fines are concerned. Finally, under the 2010 Act, community service was only considered after a person had failed to pay a fine and a receiver had failed to recover it. In this Bill, community service will be available to the court from the point that the default provisions are engaged, subject only to the amendment I mentioned earlier, which will require the court to first consider making an attachment order. This makes community service an integral part of the fine recovery system and will reduce significantly recourse to imprisonment for the non-payment of fines.
Turning now to the Bill itself, section 1 provides for the Short Title and commencement, section 2 defines terms used in the Bill and section 3 is a standard provision dealing with the making of orders and regulations. Section 4 deals with repeals. Section 5 is an almost identical provision to section 14 of the Fines Act 2010, which was commenced in 2011. It obliges the court to take into account the person's financial circumstances in determining the amount of the fine, if any, to impose. Section 6 provides that a fined person has the option of either paying the fine in full by the due date for payment or by instalments over 12 months. Where the person chooses to pay by instalments, an administration fee of up to 10% may be imposed. Subsection (5) provides that the option of instalments is only available where a fine of at least €100 is imposed. The Minister intends to bring forward amendments on Committee Stage to delete paragraph (b) and to instead allow the court to take into account that a fine does not qualify to be paid by instalments when it fixes the due date for payment.
Section 7 provides that where a person fails to pay a fine by the due date, the court will fix a date for a hearing at which it will make a recovery order, an attachment order, or a community service order. As I stated already, the Minister intends to bring forward amendments on Committee Stage that will have the effect of requiring the court to first consider making an attachment order and to restrict recovery orders to fines exceeding €500. Where the court decides that none of the aforementioned orders is appropriate, it may commit the person to prison. Section 8 deals with the appointment of receivers and the making of recovery orders to recover unpaid fines, including by the seizure and sale of property belonging to the fined person. The main difference between this section and section 16 of the 2010 Act pertains to the making of recovery orders. In the 2010 Act this was to be done automatically, whereas this is not the case in the Bill. Otherwise the sections are almost identical. One change is in subsection (5), which allows the receiver to delegate such of his or her functions to his or her employees, servants, bailiffs or agents as he or she thinks appropriate. This is to clarify that the receiver is not obliged to personally carry out all of the functions.
Section 9 provides for the issuing of notices in electronic format. This is a new provision that is not contained in the 2010 Act. Section 10 provides for the appointment of receivers and I note section 20 of the 2010 Act contains a similar provision. Section 11 provides that where a fine has not been recovered by the receiver, the person will be brought before the court and the court has the option of making a community service order or committing the person to prison. Section 12 deals with the circumstances in which a recovery order may be terminated or revoked. Section 13 provides that moneys paid into court by a receiver are to be paid to the Minister for Finance or, where the fine is properly due to another body, to that body.
Section 14 deals with the making of an attachment order. Subsection (1) states that where the fined person is in employment or in receipt of an occupational pension, the court may make an order directing the person's employer to deduct the fine from the person's earnings and to pay the sums deducted in the manner specified in the order.
Subsection (2) provides that the amounts deducted must be sufficient to ensure the fine is paid within 12 months of the date the order was made but gives the court discretion to require a shorter period, for example, where a considerable portion of the fine has already been paid by instalments. Subsection (3) sets out the information to be included in the attachment order, including the amounts to be deducted and the frequency at which deductions are to be paid over to the Courts Service.
Section 15 deals with compliance with an attachment order. It provides in subsections (1) and (2) for the service of the attachment order on the person's employer or on any person who subsequently becomes the person's employer, at his or her residence or place of business or by sending the order or a copy of it by registered pre-paid post to either. Subsection (3) requires the employer to comply with the order but states that he or she is not liable for non-compliance during the first ten working days. This is to allow for the situation where the employer is not the person's employer in which case, under subsection (5), the employer is required to notify the court accordingly.
Subsection (4) requires the employer to advise the court where the person's earnings are, for whatever reason, insufficient to meet the order. Subsection (6) requires an employer who ceases to be the person's employer to notify the court within ten working days of his or her ceasing to be the person's employer. The employer is also required to pay over to the court any moneys already deducted from the employee under the attachment order. Subsection (7) requires the employer to give the person a statement of the total amount of every deduction made in compliance with the order.
Section 16 deals with notification of changes in employment and employment status and sets out what is to happen where the person is no longer in employment or where he or she has moved to a new employer. Section 17 states that an attachment order will cease to have effect on payment in full of the fine. Where a person ceases to be in employment, the order will be revoked. Section 18 makes similar provisions to section 13 in regard to attachment orders. Section 19 amends the Criminal Justice (Community Service) Act 1983 to insert into that Act provision for the making of community service orders in regard to the non-payment of fines. Unlike the situation in regard to community service orders generally, it will not be an offence to fail to comply with a community service order.
Section 20 amends the Courts (No. 2) Act 1986 to provide that the court may commit a person to prison where he or she has failed to pay a fine in full or where the fine or part thereof remains outstanding following the appointment of a receiver or the making of an attachment order. The court may also commit a person to prison where it is not possible to make a community service order because either the person does not consent or the probation service does not consider the person suitable for community service. The Act is also amended to provide that the court shall commit a person to prison where the person has failed to comply with the terms of a community service order.
The Bill makes different provisions depending on whether the fine was imposed summarily or on indictment. A table is inserted into the 1986 Act setting out different numbers of days, ranging from five to 30, to be served depending on the amount of the fine outstanding. Where the fine is imposed on indictment, a prison sentence of up to 12 months may be imposed.
Section 21 deals with the method by which notices referred to elsewhere in the Bill are to be served. Section 22 amends the Courts (No. 2) Act 1991 to provide that in so far as section 1 of that Act or section 23 of the Petty Sessions (Ireland) Act 1851 are concerned, penal sums are to be dealt with in accordance with the Bill once section 7 has been commenced.
Section 23 provides for data sharing and exchange for the purposes of assisting the courts in the collection of fines. The Revenue Commissioners, the Minister for Social Protection, and any other person prescribed by the Minister under section 3 shall provide the court with any information in their possession or control which the court may require in order to fulfil its functions in regard to the payment and recovery of fines. Section 24 sets out the order of satisfaction where a person part-pays a fine and the balance is not recovered.
In this Bill, we are making it easier for people to pay fines and we are providing extensive alternatives to imprisonment where people default. There will be no excuse for people not paying a fine in the future. It will be set at an affordable level and then they can pay it over 12 months but if they fail to do so, the full rigours of this law will apply. Depending on their circumstances, the court will either attach their earnings, appoint a receiver to recover the fine or put them on community service. In the unlikely event that no order can be made or where they fail to comply with a community service order, they will face imprisonment.
This Bill revolutionises the fines payment and recovery system in Ireland. It goes some way towards ensuring that the disrespect shown for the law by some is neither ignored nor rewarded but is instead challenged and defeated. It sweeps away a fines system designed for the 1800s and replaces it with a modern statute that is in tune with the realities of 21st century Ireland. It is amenable to the deployment of the latest technologies and is at one with the shift towards the use of non-custodial alternatives in the criminal justice system. This is a Bill for our times and it is my privilege, on behalf of the Minister, Deputy Shatter, to commend it to the House.