Tuesday, 11 May 2010
Fines Bill 2009: Report and Final Stages
I welcome the Minister, Deputy Dermot Ahern. I remind Members that a Senator may speak only once on an amendment on Report Stage except the proposer of an amendment who may reply to the discussion on the amendment. On Report Stage each amendment must be seconded.
(2) For the purpose of this section, a company within the meaning of the Companies Acts shall be deemed to be ordinarily resident at its registered office, and every other body corporate and every unincorporated body of persons shall be deemed to be ordinarily resident at its principal office or place of business.".
The purpose of this amendment is to limit the requirement for personal service of documents or service by registered post to the notification required under section 15(2) of the Bill as passed by Dáil Éireann, instead of applying this requirement to all notices and documents to be served on or given to a person under Part 3.
Section 15(2) provides that a recovery order shall not enter into force unless the person in respect of whom their order is made fails to pay the fine by the due date of payment. It further provides that where the person so fails, the order shall have effect from the day immediately following the day on which the Courts Service notifies the receiver concerned in writing that the person has failed to pay the fine by that date.
This is a critical notification as it will activate the recovery order and trigger action by the receiver when he or she is notified that a person on whom a fine has been imposed is in default. For that reason it is important that arrangements for the service of this particular notification are clearly defined in primary legislation. New rules of court may be made by the rules committees of the various courts to make provision regarding the service of other documents pursuant to the new jurisdiction conferred on the courts by Part 3 of the Bill. It is not necessary for the Bill to prescribe the manner of service of, for instance, a direction under section 13(5) as passed by Dáil Éireann, requiring a person to attend court for the purpose of assessment of his or her financial circumstances because there is an inherent power to make rules of court where new jurisdiction is given to the court. The same applies to directions under section 14(1) of the Bill, which provides that where a person has made an application to court, the court may direct that the fine be paid by instalments. The manner of service of this direction can also be determined by court rules.
Personal service of or delivery of these latter directions by registered post would not be required in all instances. These are matters best left to court rules in order to optimise the flexibility to the Courts Service in determining the manner of service and to contain postage and other administrative expenses. I recommend the amendment to the House.
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  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.
I welcome the Minister and thank him for taking the time to consider the points I made, supported by Senator Regan, on Committee Stage. This is an important point and I do not believe the Minister's amendment No. 2 deals with the issue we raised on Committee Stage. I am aware of the Law Reform Commission recommendations. I accept that the effect of the fine should not be made more severe because of the person's financial circumstances. The difficulty lies in the power given to the court in subsection (3) to impose a fine which is greater than the otherwise appropriate fine. My alternative amendment would delete subsections (3) and (9), thereby enabling the court to take into account financial circumstances without stating it can impose a fine greater than the otherwise appropriate fine, having regard to the offender's financial circumstances.
I am conscious of Mrs. Justice Denham's words in DPP v. M, and of the emphasis she gave to the principle of proportionality which has been accepted generally in the sentencing courts. That principle is the difficulty here. The effect of the section, even with the Minister's amendment which does not make it much clearer, is that a court can determine a fine to be "otherwise appropriate" and decide that an offender who is especially wealthy should be made to pay a higher fine than that which is deemed appropriate.
In a nutshell, my difficulty is that this would treat wealth as an aggravating factor in sentencing and I am not sure that fits the principle of proportionality. It is entirely appropriate that a court should be able to impose a lesser fine than the otherwise appropriate one in ease of the accused, where the accused's financial circumstances are such that his or her own situation or his or her dependants' situation would be made more severe by reason of their financial circumstances. In other words, poverty should be allowed to mitigate but it is not necessarily a good idea, or constitutionally in keeping with the proportionality principle, to allow wealth to constitute an aggravating factor. It is as if we are saying that a judge can choose a benchline sentence and then look at the mitigating factors by which to reduce it and at the aggravating ones to increase it. Here, the offender's wealth is the only factor that will allow the court to increase a fine above what would otherwise be appropriate and I am somewhat concerned about this.
The Minister said he would look at the matter and I am grateful he has done so but am not sure his amendment will answer the difficulty. It seems a court may still impose an unreasonably larger fine, with a detrimental effect on the convicted person.
Perhaps the Minister will clarify this. The point raised by Senator Bacik may relate to people of very limited means. My literal interpretation of the amendment is that the situation is covered in that the fine can be less than the otherwise appropriate fine. I assume, therefore, the judge would have some discretion in that area.
In general, the principle is probably right. However, I mentioned, perhaps on Second Stage, that it is important this should not become the predominant issue in determining the fine. There are scales of offending which must be factored into the situation. Speeding would be a case in point where a person, depending on the speed he or she is doing can be in greater contravention of the law than a person who is only marginally over the speed limit. I would not like to think that just because the person who was marginally over the limit had good financial resources he or she would in some way be penalised unjustly in that regard. The nature and scale of the offence must form part of the judicial discretion in determining the appropriate fine.
I agree with Senator Bacik on this point. It is unfortunate that, although the Government made an amendment, it did not see fit to reformulate the wording in question. What is appropriate is what is proportionate, fair and reasonable. It is not to speak about what is "otherwise appropriate" and then make changes. I can see the intent. We all agree on that, namely, to provide for the mitigation of a fine because of financial hardship. One can also apply a higher fine in the reverse direction. However, the wording, "appropriate or otherwise appropriate", is where the problem lies.
This is all based around the concept of equality of impact which works both ways. Obviously, the judge cannot impose a fine of more than €5,000, the overall limit for the District Court. Equally, in individual cases judges cannot impose a fine greater than the maximum that pertains to the particular offence. However, the intention is to allow discretion to the judge to take into account the personal circumstances.
The recommendations of the Law Reform Commission state:
The reforming legislation should also provide that when a court is determining the amount of a fine it should, in so far as is practicable, have regard to, amongst other factors, the financial circumstances of the offender and the nature of the burden that payment of a particular fine will impose upon the offender and his dependants. In this regard the legislation should also provide that a court should have regard to such matters irrespective of whether the effect of so doing would be to increase or reduce the amount of the fine.
Clearly, the view always was that this fine could go up or down and that it was entirely a matter for the discretion of the judge to determine the otherwise appropriate fine. I have tried to deal with this. We reformulated the subsection and that is why a Government amendment was tabled. The original subsection was that with which Senators found fault.
As proposer, I believe I can speak on this one more time. In answer to Senator Walsh, I have no problem with the idea that a fine should be less than what would be otherwise appropriate because that is in ease of the defendant. The principle of interpretation of a criminal statute is that what is in favour of the accused or the defendant would apply. That is not the difficulty which, as Senator Regan noted, is not that the court can impose a greater fine by virtue of the accused's financial circumstances but the fact that the fine is greater than what would otherwise be appropriate. What would otherwise be appropriate, by applying the principle in DPP v. M and that adopted by sentencing courts generally, is the reasonable and proportionate fine. The danger is that the current formulation allows a court to impose an unreasonably and disproportionately high fine simply because an offender has greater means. That may be a difficulty.
As Senators Regan and Walsh stated, we all agree with the Law Reform Commission's principle of equality of impact and the idea that financial circumstances be taken into account. However, in proposing that we amend the section by taking out subsections (3) and (9), I am simply trying to ensure the court stays within current parameters of sentencing in having regard to the financial circumstances of an accused.
I make a brief intervention. When the Minister quoted the judgment of Mrs. Justice Denham, he spoke about coming to determine the appropriate fine and that one should have regard to the financial circumstances. The way in which coming to a determination of the appropriate fine is formulated in this Bill, however, is that one first determines the appropriate fine and then juggles with it in accordance with the offender's financial means. I do not believe that was how Mrs. Justice Denham formulated the approach. The appropriate fine has regard to the financial means. One should not decide on the appropriate fine and then mess about with it.
I have one brief comment. How will the judge determine the financial position of the person before him or her? Many people who were very wealthy some years ago may now be quite poor and perhaps even in negative equity between their assets and liabilities. How will the judge be aware of that in order to make a determination when it may not be public knowledge? I have a small concern as to how the judge can adjudicate on a person's ability to pay a higher fine when such a judgment might depend on a perception.
I cannot put it any other way other than reiterating the point that it was always envisaged, when the Oireachtas was passing legislation, that a judge had discretion as to the maximum fine to impose. We are putting into law a much more definite regulation, in effect, and obligation on a court to determine the personal financial circumstances of people before it. I accept the point made by Senator Bacik but, to a certain extent, what she has suggested does not happen. A judge will not purposely impose a fine on a person because he or she regards them as more financially able to pay a fine. A fine would not be based on financial circumstances.
This is geared to answer Senator Walsh's query about how the judgment is determined. It is determined on the basis of section 13, which 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." The judge would have to hear evidence on the amount of the person's annual income, the average value of property, real and personal, and the average amount of liabilities. We had discussions on that before. This is designed to deal with circumstances where, for example, three people are before the court on similar offences. The financial circumstances would be taken into account in all three cases to ensure the people were able to afford the appropriate fine as decided by the judge. The formulation we have arrived at clearly links the new subsection (3) to the purpose of this section. 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."
The Dail Divided:
For the motion: 29 (Dan Boyle, Martin Brady, Larry Butler, Ivor Callely, James Carroll, John Carty, Donie Cassidy, Maria Corrigan, Mark Daly, Mark Dearey, John Ellis, Geraldine Feeney, Camillus Glynn, John Gerard Hanafin, Terry Leyden, Marc MacSharry, Lisa McDonald, Paschal Mooney, Niall Ó Brolcháin, Brian Ó Domhnaill, Labhrás Ó Murchú, Francis O'Brien, Fiona O'Malley, Ned O'Sullivan, Ann Ormonde, Kieran Phelan, Jim Walsh, Mary White, Diarmuid Wilson)
Against the motion: 22 (Ivana Bacik, Paul Bradford, Paddy Burke, Jerry Buttimer, Ciarán Cannon, Paudie Coffey, Paul Coghlan, Maurice Cummins, Frances Fitzgerald, Dominic Hannigan, Fidelma Healy Eames, Nicky McFadden, Rónán Mullen, David Norris, Joe O'Toole, Phil Prendergast, Feargal Quinn, Eugene Regan, Shane Ross, Brendan Ryan, Liam Twomey, Alex White)
Tellers: Tá, Senators Niall Ó Brolcháin and Diarmuid Wilson; Níl, Senators Ivana Bacik and Dominic Hannigan
Amendment declared carried
I thank the Leas-Chathaoirleach and those Senators who contributed to the debate. The Bill is at the cutting edge of law reform. The indexation of fines will result in a dramatic change to the way in which the District Court, in particular, does its business. The Bill will place a large onus on them in the initial phases. It will ensure the monetary value of existing fines will be brought up to date and that their real value when introduced will be regained.
I am glad to have introduced these provisions which I hope will ensure the majority of those fined in court will not, following a knock on their door, be hauled off to Mountjoy Prison. Not only will the Bill stop this occurring, but ordinary people who might never have had the law after them will also be dealt with more humanely. We must also ensure, however, that those who clearly can pay but refuse to do so will be punished. If individuals who can pay do not comply with a court order, they can be imprisoned. This is a much more humane way of operating and it will assist us in dealing with the exaggerated claim that the majority of those in our prisons are there for the non-payment of fines.
I thank Members, the staff of the Houses and my officials for the work they have done in assisting the Bill's passage through the House.
I welcome the fact that the Bill which is long overdue is about to be passed. The first report on indexation was published by the Law Reform Commission in 1991. Fine Gael published a number of Bills dealing with this issue, but each of them was voted down. The Minister is correct to state the Bill contains a number of important innovations. The provision relating to a structured indexation of fines is normal in nature. However, providing for payment in instalments and taking into account the financial means of persons found to have committed offences are good and welcome innovations. The Bill will have a significant effect in reducing the numbers needlessly committed to prison. It is these individuals who are clogging up the prison system.
I also welcome the passage of the Bill, particularly the changes it makes in allowing the courts to impose community service orders where persons default on fines, empowering them to make provision for payment by instalment, etc. As previous speakers stated, it is to be hoped this will reduce the shocking numbers who are imprisoned for defaulting on fines and clogging up the prison system at great human, social and economic cost.
I thank the Irish Penal Reform Trust for briefing us on the Bill and providing its views on it. I welcome the fact that we are passing legislation which will go some way towards reducing our over-reliance on imprisoning people and, by increasing the use of community service orders, make imprisonment a genuine penalty of last resort.
I also welcome the passage of the Bill. The Minister has made significant improvements in the imposition of fines. Their indexation is good and probably long overdue. There have been considerable increases in the consumer price index both during times of significant economic growth and at times when such growth did not occur. As a result of their not being index-linked during such periods, the deterrent effect of fines was eroded to a serious degree.
I welcome the fact that it will now be possible to pay fines by instalments. However, I would like the legislation to have gone further in respect of attachments. In that context, attachments to earnings could assist in overcoming many of the difficulties in this regard. As the Minister indicated, the thrust of the legislation is to avoid sending people to prison which, apart from anything else, is an extremely costly exercise for owing small amounts of money. Comparisons are often made with white collar crime in this regard and it is stated those who are better off are able to escape due process. There are those who will always endeavour to pay their bills, even if it causes them significant personal difficulty and leads to their making sacrifices. However, there are others, including people with good earnings and also certain individuals on social welfare payments, who believe the world owes them a living and who, as a consequence, are not forthcoming when it comes to paying fines. In such circumstances attachments to earnings and social welfare payments should be considered. Such attachments would provide a means by which we might tackle the non-payment of fines. For the first time we are setting down in legislation that people's financial circumstances and means should be considered as a factor in the judicial discretionary process. This will enable judges to deal with those who take advantage of the situation rather than trying to make a genuine attempt to pay the fines imposed upon them.
I agree with Senator Bacik on the use of community service orders. However, I retain a strong, lingering concern about the interpretation of financial circumstances contained in the Bill. This matter should be monitored closely, particularly as there is potential for an injustice to be visited upon individuals. The current economic climate has transformed the financial circumstances of many individuals, some of whom were, by any standards, significantly wealthy. Now, however, they find themselves at the opposite end of the scale. Many of those to whom I refer will find it difficult, either for reasons of confidentiality or pride, to provide in open court a full list of the value of all their properties, income, liabilities and moneys owing to others, etc. The provision of such information will give rise to problems for some, particularly in view of the fact that their cases will be heard in the District Court. Newspapers in their localities will be glad to publish articles containing the information to which I refer and which might emerge in court. As stated, the position in this regard will have to be monitored because of the potential for an injustice to be visited upon someone. I do not know how it might be possible to carry out such monitoring, but it must be done. The provision of confidentiality for those to whom I refer should also be considered.