Brian Hayes (Dublin South West, Fine Gael) | Oireachtas source

I thank Senator Quinn for proposing amendment Nos. 1 and 4. Before I respond to the amendments, I wish to apologise on behalf of the Minister for Justice and Equality, Deputy Shatter, who is unable to attend today.
I thank Senator Quinn for raising this issue and for the very constructive way in which he has approached the matter. His amendments focus on his main concern, as I understand it, which is the possible seizure and disposal of real property on foot of a recovery order. Before I address these specific points, it is worth recalling the purpose of the Bill. Its primary aim, as Senators will be aware, is to provide alternatives to the imprisonment of people for non-payment of fines. It does this by requiring the court to take a person's financial circumstances into account when fixing the fine, by allowing the person to pay the fine by instalments over 12 months and by providing a number of alternatives to imprisonment where a person defaults.
It is also worth recalling the history of the recovery provisions, as these are not new. Section 16 of the Fines Act of 2010 provides that a court shall, in all cases in which it imposes a fine, make a recovery order. The recovery order provided for in the 2010 Act is exactly the same as the recovery order in this Bill. Part 3 of the 2010 Act, which contains section 16, is being repealed and those provisions will not appear in this Bill. It was never the intention to change these provisions except to the extent required by the introduction of attachment of earnings orders, which was a commitment given in the programme for Government. It is also worth saying that the only impact of the changes being made in this Bill in so far as the recovery provisions in the 2010 Act are concerned is to make it less likely that recovery orders will actually be made. They will now only be made where the court decides against making an attachment order, where a fine is more than €500 or where the court decides in a particular case that it would be more appropriate to make a recovery order rather than a community service order.
Turning now to amendments Nos. 1 and 4, the result of which, were they accepted, would be to remove the possibility of real property, that is, land and buildings, being seized and disposed of by a receiver where a person fails to pay a fine. It is to be noted that recovery orders come at the end of a process that starts with the conviction of a person for an offence and the fixing of a fine. Subsection (1) of section 5 of the Bill, which largely replicates section 14 of the Fines Act of 2010, sets out the purpose of the section as follows:

The purpose of this section is to ensure, in so far as is 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.

Subsection (2) states:

Where a person of full age is convicted of an offence, the court shall, in determining the amount of the fine (if any) to impose in respect of the offence, take into account the person’s financial circumstances.

If the case is heard in the District Court, the maximum fine is €5,000. Senators may be interested to note that since section 14 of the Fines Act 2010 was commenced in January of 2011, fines imposed have been generally small and far less than the value of almost any house.

For the three years since 2011, more than 99.9% of fines imposed were less than €5,000. In the first nine months of last year, only 41 fines out of a total of 63,000 were greater than €5,000 and the only one more than €20,000, which was the highest fine, was for €27,500. In 2012, of the 95,000 fines only 58 were more than €5,000; 12 were more than €10,000; and none was more than €20,000. Of course, a person who feels the fine is too harsh can appeal it.

I do not doubt that the information before me is correct. The reality is that these fines are for much smaller amounts than in cases where obtaining the amount through the disposal of a property would be considered. From the information the Department has been able to glean in the time available, large fines of €10,000 or more are almost exclusively imposed on companies and on the State. A sample revealed no default other than in one case where the company had ceased to trade. Larger fines in respect of which the possibility of the seizure of real property might arise are not the ones being defaulted on.

The amendment to the provisions on recovery orders made in the Fines Act 2010 means that recovery can only apply to a small minority of fines. The 2010 Act provides for recovery orders to be made every time a fine is imposed. Under the Bill, recovery orders will only fall to be considered where the fine exceeds €500 and where the court has decided it would not be appropriate to make an attachment order. The court will then have a choice between making a recovery order and a community service order. As just 10% of fines are for more than €500, recovery orders will only even be considered in a small minority of cases - possibly no more than 3%.

I hope this will assure Senators that fines are not imposed at a level that would in the normal course give rise to the seizure or disposal of property. However, that is not an argument for excluding that possibility in the appropriate case. The recovery provisions are most likely to apply to the self-employed and to companies. If land were removed from the recovery provisions as proposed in the amendments, in extreme cases of serious white-collar crime, including environmental, health and safety offences, we would be making the law dramatically more liberal than it currently is. At the moment, if a large fine is imposed on an individual for environmental damage and the person fails to pay the fine, he or she can be imprisoned for a period at the discretion of the court. Whereas the maximum period of imprisonment for default for a summary offence is 90 days, there is no such limit for an indictable offence.

Under the provisions of the Bill that person's assets, including land, could be seized and disposed of to meet the fine in question. However, if land was excluded as Senator Quinn proposes in the amendments and land comprises the only asset that could satisfy the fine, the only option open to the courts would be community service. Amendments Nos. 1 and 4 could inadvertently result in perpetrators of serious offences, in respect of which and having taken into account their financial circumstances the court had imposed a very large fine, serving between 40 and 240 hours of community service rather than having to pay the fine or face a jail term, as is the case today. Albeit this arises only in a very small number of cases, would that be fair? If a person in employment was in a similar situation, his or her earnings could be attached and the fine collected, whereas this person could avoid paying the fine even though he or she has the assets to do so.

The Bill is not intended to make life easier for the asset-rich criminal, including those convicted of white-collar crime or others who refuse to pay fines. While it is intended to keep people out of prisons, it must not encourage wealthy individuals on whom, and institutions on which, large fines are imposed to start defaulting on them. We can all agree that would be a perverse outcome.

Orders under the Bill will be made by the Judiciary. We trust judges to exercise their powers with constitutional fairness and proportionality. There is nothing to suggest that they will deal with this law any differently than they have thus far in other provisions where they have been required to exercise their judicial discretion on these matters.

Section 5 ensures that fines take account of a person's financial circumstances. Fines in general are far smaller than would justify the seizure and sale of a person's house or property. There may be cases where the disposal of real property may be justified and it would be wrong, when we are establishing primary law in this area, to exclude that possibility. Judges apply the law fairly and proportionately. We should trust them to do so regarding the provisions of the Bill, as we do in countless other cases that come before the course.

I appreciate the Senator's remarks and his constructive approach. It is appropriate to air the issue. His raising the matter has afforded me the opportunity to put on the record of the House the rationale for not accepting the amendment. That is ultimately important in terms of proceedings that might come before the courts because, in trying to understand what the Oireachtas had in mind when a Bill was passed, the courts can read the transcripts of the proceedings in this House and the other House. However, for the reasons I have set out we cannot accept either amendment.