Seanad debates

Wednesday, 26 February 2014

Fines (Payment and Recovery) Bill 2013: Second Stage

 

Question proposed: "That the Bill be now read a Second Time."

1:00 pm

Photo of Paddy BurkePaddy Burke (Cathaoirleach of Seanad; Fine Gael)
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I welcome the Minister of State, Deputy Tom Hayes, to the House.

Photo of Tom HayesTom Hayes (Tipperary South, Fine Gael)
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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.

1:10 pm

Photo of Denis O'DonovanDenis O'Donovan (Fianna Fail)
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I am glad to see the Minister of State, Deputy Tom Hayes, back in this fine establishment where he started his national political career. He is always welcome in this House. My party, Fianna Fáil, supports this Bill which builds on the original Fines Act introduced by the then Minister, Mr. Dermot Ahern, in 2010. The current system imposes an unsustainable administrative burden on the prison system which sees more than 7,500 imprisoned annually for non-payment of fines, which is a ridiculous situation. This strains the capacity of the prison infrastructure which should be focused on dealing with hardened criminals. It is important that sufficient IT resources are put in place to accommodate the new flexible instalment payment process. That is a critical aspect of this Bill. If that is not put in place as soon as possible, implementation of the Bill might be dragged out.

We welcome the thrust of the Bill which draws on the 2010 Act and goes a few steps further, which is important and appropriate. We believe there should be an extension of the payment instalment period beyond the 12-month timeframe to accommodate large fines and the struggle to pay in this current economic climate. Imprisonment exacts a hefty toll on the State's finances with 7,500 imprisoned annually, which is a significant cost upon the State and a personal trauma for the individuals involved. Most of these people should not see the inside of a cell for the non-payment of a fine. The instalment method should not be punished by a punitive interest rate which is mean spirited and hits those who are least able to pay the fine hardest.

An attachment of earnings order where the fine is deducted directly from wages should be a last resort. It places an unfair administrative burden on employers and will damage the working relationship between employers and the recipient of the fine. It may have the perverse and unfair effect of undermining the employment prospects, including promotion, of the recipient within his or her firm.

Community service should be welcomed where people simply do not have the means to pay the fine. It should be used to replace the imprisonment mechanism and give communities a real practical benefit from people who have committed an offence.

Statistics show that there has been a slow but progressive increase in the prison population and a sharp increase in the daily average number of persons in custody over the past decade. This appears to show a slow increase in prison numbers, which has been exacerbated by an increase in the number of people imprisoned for minor offences but which has been held back by overcrowding. In 2009, there were 10,865 committals under sentence, which represented an increase of 35% on 2008. Of those 10,865 committals, 9,216, or 85%, were for sentences of 12 months or less, which is extraordinary. By comparison, 1,667 individuals were issued with community service orders in 2009. Prison does not act as a deterrent and has a negative impact on prisoners. Research appears to indicate that short prison sentences act neither as a deterrent nor as a means of rehabilitating offenders. An article by UCD academics, entitled Recidivism in the Republic of Ireland, concludes that offenders sentenced to prison terms of less than six months have high rates of reoffending. Utilising alternative methods to reduce the prison population and administrative burden are important in the context of tackling the pressure under which the Prison Service is operating and addressing the issue of recidivism. Imprisoning people for the non-payment of fines acts as an administrative burden and fails to be an efficient deterrent. The Bill goes a long way in that regard.

Paying fines via instalments is provided for in section 6 and it is a good provision. The provisions of the Bill would give the choice to the person fined and the court has to inform such a person of his or her options. This would apply to fines of more than €100 and fines have to be paid in full within one year. The Minister can fix an administration fee generally, not individually, to fines but this fee cannot exceed 10% of the total fine. The administrative fee should not be placed as a further burden to fine levels that inflict a further punishment on recipients. This is the duty of the courts and not the Minister. The fee should reflect a realistic costs analysis of how much the new instalment system will cost to implement.

The Bill adds the new option of an attachment of earnings order. Recovery orders and community service were provided for under section 17 of the 2010 Act but the section allowing for this has not yet been commenced. The key issue is that these alternatives are employed to avoid a jail sentence. It is ridiculous that section 17 of the 2010 Act has not come into force. I wish the Bill a speedy passage through the Houses and when it is enacted I hope to see implementation sooner rather than later. Attachment of earnings orders, where the fine is deducted directly from wages, should be considered as a final effort to retrieve the fine due. It places an unfair administrative burden on employers and will damage the working relationship between employers and the recipient of the fine.

The Bill changes the system of community service to provide that failure to pay a fine can merit a court sentence of community service. This was envisaged in the Fines Act 2010, although section 18 of that Act was never commenced. The level of community service will be based on the scale of the fine and how much has been paid to date. It is an important part of rebalancing our justice system towards rehabilitation and making a contribution towards communities that we utilise community service rather than imprisonment. Increasing the use of community service delivers financial savings, diverts from the prison system offenders who would otherwise be imprisoned, and provides reparation in the form of unpaid work to the benefit of the community.

The Irish Penal Reform Trust has estimated that imprisoning fine defaulters costs the State more than €2 million per year in courts, Garda and prison Service resources compared with the costs of making the necessary upgrades to the courts IT system to process payments by instalment, estimated at €400,000. That amounts to a saving of €1.6 million per year, which is extraordinary. Hopefully, this IT system can be rolled out quickly. It is vital that the Government accelerates the IT upgrades necessary to facilitate the new payments structure.

The Bill is welcome and represents progression from the 2010 Act, which the Government I was involved in introduced, and I wish it every success. With regard to the imprisonment models of Norway, Sweden or Finland, I looked at a programme on television the other night when I happened to be in my son's house. Some 70% of those who went through the open prison community service system used in Norway, rather than the system of locking people up and throwing away the key, did not reoffend. As a member of the justice committee, I went to see an open prison in Finland where people could go back to college. They lived in an open environment and ran a coffee shop. They had their own bedrooms and there was no such thing as the iron bars closing. The sooner we can move from the old British prison system we inherited from the time of the Magna Carta, the better. There is a significant number of serious criminals involved in killing people and in gang warfare. They must be incarcerated and guarded carefully. They are not safe to be left on the street. They have no respect for law, for us as politicians, for the Government or for the Garda Síochána. They are a minority in the prison population of 7,500 but they must be securely incarcerated.

I came across a man brought from west Cork to Dublin and put into Mountjoy Prison for non-payment of a small fine. Four hours later, he was let out to return home. We must get away from a system where we incur the cost of hiring a taxi and of being accompanied on the journey by a garda in the case of a man who would not say "boo" to a goose to appear in court for an unpaid fine. I hope the Bill will be a success. Fianna Fáil will fully support it.

1:20 pm

Photo of Colm BurkeColm Burke (Fine Gael)
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I thank the Minister of State for stepping in for the Minister for Justice and Equality. I thank Senator O'Donovan for his constructive comments. He has experience of dealing with the District Court as a practising solicitor. I welcome the Bill, which is designed to increase the level of fines collection and to keep a number of people committed to prison for the non-payment of fines to an absolute minimum.

In 2012, the number rose to 8,300 in 2012 and these people represent a considerable proportion of those committed to Irish prisons for short periods. Legislation is already in place requiring judges to take a person's financial circumstances into account when setting a fine. The Minister of State touched on that point. When the Bill is enacted, it will be easier for people to pay a fine and, where they fail to do so, there will be sufficient alternatives available to the court to all but eliminate the need to commit anyone to prison for the non-payment of a fine. The option exists if the fine is not paid.

The Bill represents a major reform of the fine payment and recovery system in Ireland. Once the measures are in place, every person on whom a fine is imposed will be able to opt to pay the fine by instalment over 12 months. Where a person fails to pay a fine in full, including by instalment, he or she will be required to return to court and, depending on circumstances, the court may make an attachment of earnings order directing the person's employer to deduct the fine from earnings, a recovery order appointing a receiver to recover assets to the value of the fine, or a community service order. The introduction of an attachment of earnings order for unpaid fines is a commitment in the programme for Government and is likely to be applied in most cases where a fine defaulter is in employment or in receipt of an occupational pension.

In dealing with the area, it is important to consider the cost to the State. As pointed out by Senator O'Donovan, arresting someone takes up Garda time. Transport to prison and the prison process must be gone through and the person must be discharged to return home. There is a great cost to the taxpayer and reducing the cost is welcome. It is also a progressive way of dealing with matters in that it shows that, where someone has committed an offence, the person cannot abuse the system. Some people have abused the system and ignored the Garda Síochána and the courts. It makes it far more difficult for the Garda Síochána to implement the law.

The change we are discussing this morning is welcome and long overdue.

Under the Bill every person on whom a fine is imposed can opt to pay the fine by instalments over 12 months. Where a person fails to pay a fine, the court may make an attachment order, a recovery order or a community service order, as I have already mentioned. There are a number of different options giving discretion to the court, which would apply the most appropriate method. Where an attachment or recovery order is made but the fine or part thereof remains outstanding, the court may make a community service order. If somebody has decided to make a payment by instalment but defaults, there is still an opening for the courts to apply a community service order. The Bill also creates a new offence of failure to comply with an attachment order, which would attract, on conviction, a fine of up to €2,500 or up to 12 months in prison. The courts are being given the power to deal with somebody trying to ignore the courts or the justice system, which is very important.

There was reference to a sheriff appointed under the Court Officers Act 1945 who may be a receiver, so we would not be appointing somebody new into the justice system but using the existing facilities, which is a welcome change. There is also the issue of data sharing between the Revenue Commissioners, the Department of Social Protection and the Courts Service, which is also welcome. This is about all the arms of the State working together to ensure we have an efficient system and the law is complied with by everybody.

The Minister of State may not be able to deal with the following issue but it is important to highlight it. I refer to the use of the court poor box, and a number of issues have been raised recently in the media in this regard. The court poor box is used when a judge does not want the person before him or her to have a record; a penalty as such is not imposed but the person is required to make a contribution to the court poor box in order to deal with the matter. I am not sure if the Minister of State or the District Court has dealt with this in recent weeks but there have been a number of newspaper articles on the matter. In one case a District Court judge has decided to specify how moneys for the poor box are to be used. According to the articles, that member of the District Court is designating a particular charity of which a member of the judge's family is in charge. Such action is of concern. If we have a court poor box system, there should be some regulation of it. I am a little concerned about this as such an issue does not benefit the court system. The Minister should examine it and perhaps he has dealt with it in view of the articles published over the past two or three months. The media reports have led the general public to be concerned about the way in which the matter is operated. A regulation should be put in place and the matter should be dealt with appropriately. Perhaps the Minister has dealt with it behind the scenes.

I very much welcome this Bill, as it is important we have a foolproof system in place to ensure every decision taken by the courts would be fully implemented and that there would be full compliance with the law. If there is not full compliance with the law, the system will break down. I thank the Department of Justice and Equality staff and the Minister for coming forward with this legislation and dealing with the issue as it exists on the ground. It is extremely important. This legislation can be put in place immediately and will create a far more efficient system that we badly need.

1:30 pm

Photo of Jillian van TurnhoutJillian van Turnhout (Independent)
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I also welcome the Minister of State to the House and the Bill to Seanad Éireann. It will bring about progress and I echo what previous speakers have stated about it decreasing the number of people imprisoned as a result of failure to pay fines. We know from the figures outlined by the Minister that approximately 8,000 people per year are currently imprisoned for non-payment of fines, and I hope this Bill will significantly reduce those numbers.

As outlined the Bill provides a number of options for people to pay fines and avoid serving prison time, which will reduce prison numbers. That is always welcome. It is important that the Bill allows us an appropriate alternative proportionate to the offence that has been committed. I particularly welcome the measure in section 5 which states that circumstances will be taken into account by the court before any fine is imposed; this ensures that no harsh or unfair measures will be introduced. I also welcome the provision for an option to undertake community service, as it can benefit society and individuals and is an alternative remedy to the position in which they find themselves. In difficult financial times, people are making tough choices and very often they are made on behalf of children and the family. It is not something people design, and we know that many instances of families breaking up arise from financial issues. We encourage people to pay fines but if that is impossible, we must find appropriate alternatives proportionate to the offence. The majority of people are imprisoned in Ireland because of minor offences, so we must find other ways to deal with matters in an appropriate justice system, especially when people simply cannot pay fines because of financial difficulties. The Bill provides alternatives, such as community services or garnishing of salaries.

We can also consider benefits to the State, including a reduction in prison numbers and the processes through which the State must go. I look at this Bill in how it can help families, as it provides a way out, which is why I wholeheartedly welcome the legislation. It is an appropriate way for us as a State to deal with the issue.

Photo of Ivana BacikIvana Bacik (Independent)
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I welcome the Minister of State, Deputy Tom Hayes, to the House. As other speakers have done, I very much welcome the Bill, which fits well in a welcome general trend in criminal justice policy to try to reduce reliance on imprisonment and ensure people are not committed to prison for convictions for minor offences and cases where a fine has been imposed but not paid. Others have already mentioned the large numbers of people still being committed to prison, and there were 8,304 committals to prison for fine default in 2012, including 1,687 female committals. There is real concern because the Irish Penal Reform Trust has indicated that the large number of women committed to prison in 2012 for fine default represented a five-fold increase on the 2008 figure, when 339 women were imprisoned for fine default. As we know, there is serious overcrowding in the Dóchas Centre and we do not have an open prison for women; all convicted women are sent to the closed prisons of the Dóchas centre or the Limerick prison. It is a matter of grave concern that so many women are being committed to prison for non-payment of fines.

Others have pointed out how this builds on the Fines Act 2010, which was introduced by the previous Government. The real concern is that the 2010 legislation, which had the same admirable and welcome objective, never took effect, with significant numbers of people still being committed to prison every year for fine default. The reason for the non-implementation of the Fines Act is that the court ICT systems have not received the necessary upgrade to process payment of fines by instalment. The legislation is very welcome and the new Bill repeals Part 3 of the 2010 Act but replicates and improves it.

The real concern is whether the infrastructure will be available to ensure that the Bill is implemented so that the aim that we all agree with can in fact be put in place and that we will see a dramatic reduction in the number of people committed to prison for fine default. I accept people are generally committed for very short periods of time. It can be a matter of days or sometimes only hours but nonetheless they are clogging up the prison system. Being committed to prison has a considerable detrimental impact on those concerned and their families, in addition to the considerable cost to the State. There is a social and economic cost. We are all in agreement that the situation needs to be remedied and we very much hope the Bill will do so.

The Bill has been broadly welcomed, not only by parties on both sides in the other House and in this House, but also by NGOs. The Irish Penal Reform Trust has very much welcomed the Bill and has made some constructive points on it. I wish to raise those with the Minister of State, who might perhaps pass them on. The Bill provides for instalments to be paid over a 12-month period. The Fines Act 2010 had allowed greater flexibility with instalments to be paid over 24 months in some cases. I wonder if that could be considered in the Bill. It has been indicated that the Minister will bring forward useful and important amendments on Committee Stage in this House. We welcome that but he might consider an amendment also along the lines I outlined.

The administration charge of up to 10% on a person paying a fine by instalments might also be reconsidered. The suggestion is that perhaps a flat administration fee or a capped administration fee would be preferable, in particular as the Bill provides for fines payable on indictment for convictions that follow an indictable offence. We could see quite large administration charges if they are based on a percentage amount.

Fines of more than €100 came up also in the context of the 2010 Act. I accept there are issues around the cost of administration if one is talking about fines of less than €100 becoming payable in instalments but nonetheless €100 may represent significant hardship for certain individuals. I question whether it would be possible to reduce that to €50 or €75.

Prior to the debate, Senator Colm Burke and I were discussing a more general issue, namely, the change to ensure that people will not be sent to prison as a first option where they have defaulted on a fine and that community service orders, CSOs, would instead be imposed. That was also in the 2010 Act. There was always a concern that the use of the CSO would amount to net widening, that in other words people who would never have been sentenced to prison might now be sentenced to a community service order, which when it was introduced in 1983 was supposed to be an alternative to imprisonment rather than an alternative to a fine. The Bill strikes the right note because it should not be too easy for a judge to impose a CSO where somebody is in default of a fine because that would make it appear as if a community service order was equivalent to a fine. It is important that a procedure is in place whereby people would be brought back to court for consideration as to whether a CSO would be imposed where they have been in default. It is only as an alternative to imprisonment in cases where people would otherwise have been imprisoned for non-payment of a fine. The concern that both the Free Legal Advice Centres and the Irish Penal Reform Trust have raised is that we might see people being put on community service who would never have been contemplated for imprisonment and that it would therefore widen the net in terms of serious penalties for minor offences.

Those minor caveats aside, we all very much welcome the Bill. We welcome the context in which it is introduced where we are seeing an attempt to reduce our reliance on imprisonment. A number of Senators who are members of the Joint Committee on Justice, Equality and Defence were involved in the penal reform report the committee produced last year in which we specifically called for a reduction in the use of imprisonment for a policy of penal moderation or decarceration to be adopted where we would see fewer people being sent to prison each year and a particular approach taken to people convicted of minor non-violent offences whereby they would have sentences commuted to community service rather than having to serve terms of imprisonment. I see the Bill as part of a general policy of penal moderation and I very much welcome it in that context. We all very much hope that we will see a very small number of people only being committed to prison for non-payment of fines in the future. The key issue is whether the infrastructure will be available to ensure the Bill will be effective in practice.

1:40 pm

Photo of Feargal QuinnFeargal Quinn (Independent)
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The Minister of State, Deputy Tom Hayes, is very welcome back to the House of which he was a Member some time ago. On a previous occasion I referred to the fact that he had been demoted to the other House.

I welcome the Minister’s moves to help to ensure that fewer people are jailed for non-payment of fines. It has been interesting listening to the speakers who recognise the aim, objective and, I hope, the success of the Bill. We have an antiquated system and I am pleased the Minister is doing something about it. A measure such as allowing people to pay fines in instalments is a very sensible move. However, I have some questions and concerns on the Bill that I would like to raise.

The first is the right to enter a person’s property and to remove items. I have major concerns about section 8 which 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”. In particular, section 8(3) sets out the powers of the receiver on the seizure, holding and disposal of the property of a person in respect of whom a recovery order is made by the court, that is, for the non-payment of a fine. The receiver has the power to enter a premises, including a dwelling - alone or accompanied by a member of the Garda - and to demand, and take possession of the property of the fine payer. I am very concerned by this part of the Bill.

First, it has the potential to worsen how our fines system operates as it increases fear. We could have the situation where persons have no income, cannot pay the fine and the next thing they know is that they have a stranger, with a legal right, entering their property demanding and indeed taking away something that could be precious to them. It will be an offence to stop such a person from taking away one’s property. That is extraordinary and must at the very least be contrary to a person's basic human rights. At worst, it may be unconstitutional, in particular in terms of Article 40 of the Constitution. Article 40(5) of the Constitution reads: “The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law.” Section 6(2) of the Criminal Law Act 1996 allows entry and search of any premises, including dwellings, for the Garda to make an arrest in certain circumstances in relation to a very specific criminal matter. Non-payment of a fine does not have any relation whatever to those clauses. By enacting the legislation as it stands, it is eroding the power of the Garda as it is giving other persons more power to enter property which is something that is also of concern. The provision should be re-examined.

The Seanad must stand up against such a proposal. It is not correct to give such massive powers to act against someone for the very small offence of non-payment of a fine. This part of the Bill should be significantly changed, or if that is not possible, then it should be deleted in its entirety. I urge the Minister to consider the matter again. In this country, it is quite difficult for a member of the Garda to enter a person's property and a warrant is usually required. The Bill changes the situation and means that a receiver now has the right to violate the dwelling of a citizen for what could be a comparatively trivial matter. I am sure those who fought for the foundation of the State would be wholly opposed to such a move. For that and many other reasons, I object to the provision in the Bill. I do not think anyone should be allowed to enter premises without a member of the Garda and to seize property. That is unprecedented. It is worse than being in a police state – it is the privatisation of police powers legalised by the Government. I would like my concerns to be addressed. I call on other Senators to examine that part of the Bill extremely closely.

Another concern relates to the extensive new obligations on employers. I also have major concerns about sections 14, 15 and 16 which deal with deducting earnings from a person. I have some concern with the State directly interfering in a person’s personal finances. However, it has done that already through measures such as the pension levy. My real concern in this area is that 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. That is a private matter and I do not agree that a person’s employer should become yet another party in the matter of a fine.

We are working hard to encourage employers to take on more people and to encourage business start-ups. Every little step we take that makes it more difficult for an employer makes it less likely that the employer will take on more people. Britain had a rule that if a new law was introduced an old law had to be removed. That rule has now been changed whereby for each new law that is introduced, two laws, which are usually out of date, must be removed. Every time we introduce something extra, particularly if it hinders or stifles the ability of an employer to take on more people, we have to question whether it is necessary or if there is an alternative that we can avoid. Certainly, this is one other obstacle to an employer creating more jobs.

I welcome the whole tenor of the Bill. I know the effort that has gone into it. It has a very worthy objective and a worthy motive but it can be improved and I would like to see that improvement take place on Committee Stage.

1:50 pm

Photo of Maurice CumminsMaurice Cummins (Fine Gael)
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I welcome the Bill. I have been campaigning for a Bill such as this for many years. The current system, where fines are concerned, is an absolute farce. We all know that. Given that many fines cannot be collected, a mechanism should be put in place where people who want to do so can pay by instalments. There are quite a number of people who will not pay, irrespective of whether they can or not. These people are with us. A few years ago I recall suggesting an attachment of earnings order and so on and I was accosted in the street by a guy who said:


The cheek of you, trying to take money out of my pocket. I have been in jail several times. I will never pay a fine.
There are people who will go jail for payment of fines. They go through the courts system. They are taken by taxi or some other means to Mountjoy Prison and are incarcerated for a couple of hours or a day and their fines and debts are all written off.

Photo of Maurice CumminsMaurice Cummins (Fine Gael)
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We need to address that issue. The Bill goes some way to addressing the issue. The Bill represents a major reform of the fine payment and recovery system. Once these measures are in force, every person on whom a fine is imposed will be able to opt to pay the fine by instalments over 12 months. Where a person fails to pay the fine in full, including by instalments, he or she will be required to return to the court, depending on his or her circumstances. The court will make either an attachment of earnings order, directing the person's employer to deduct the fine from the person's earnings, a recovery order appointing a receiver to recover assets to the value of the fine - I am aware Senator Feargal Quinn has reservations in that regard - or a community service order. The introduction of an attachment of earnings order for unpaid fines is a commitment in the programme for Government and is likely to be applied in most cases where a fine defaulter is in employment or in receipt of an occupational pension. What about people on social welfare who can afford it? Are such persons exempt? Perhaps the Minister would clarify that issue.

The Bill is designed to increase the level of fines for collection and to keep the numbers of people committed to prison for non-payment of fines to an absolute minimum. We should aim to have as few people as possible in prison for the non-payment of fines because it costs the State a huge amount. As Senator Colm Burke said, the numbers increased to 8,300 in 2012. Those people represent a considerable proportion of those committed to Irish prisons for short periods.

Legislation is already in place requiring judges to take a person's financial circumstances into account when settling a fine. When the Bill is enacted it will be easier for people to pay a fine and if they fail to do so there will be sufficient alternatives available to the courts to all but eliminate the need to commit any person to prison for non-payment of fines. The option, however, will remain.

The Bill also contains a number of administrative changes that will improve the court's capacity to ensure that fines are paid. When the legislation is enacted I hope we will be in a position to implement its provisions in early course. There is no point in enacting legislation if we do not have all the mechanisms in place to implement it. What measures are being considered? How soon can we expect the Bill and the administrative changes included therein to be implemented?

Photo of Trevor Ó ClochartaighTrevor Ó Clochartaigh (Sinn Fein)
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Ba mhaith liom fáilte a chur roimh an Aire Stáit. Tá áthas orm bheith in ann labhairt ar an mBille seo inniu. Gan dabht, aontaíonn muid ar fad leis an bprionsabal nár chóir na príosúin a úsáid ach amháin sa chás is measa ó thaobh an chóras coiriúlachta. Labhair muid faoi sin tráthnóna inné sa Teach seo. I ndáiríre, níor cheart daoine nach n-iocann fíneálacha a chur i bpríosún.

This Act came into being in 2010 and three years later we are amending it. Why has it only ever been partially commenced? Surely, there is a better way to legislate than this. That aside, I welcome the Bill which strives to modernise the courts' fine system in Ireland and offers an important alternative to imprisonment. If effective, the Bill will ensure there are fewer prisoners in our jails serving short sentences for non-payment of fines. The differences between imprisoning people versus imposing community service on them are striking. The Irish Penal Reform Trust, IPRT, informs us that there were 8,304 committals to prison for fines default in 2012 which is a very significant number. What is even more striking is that more than 85% of persons imprisoned for non-payment of fines returned to prison within four years. Unfortunately, this highlights that some people prefer to serve time in prison than to pay a fine. For those who have already spent some time in prison, being sentenced to a day or, in some cases, a couple of hours in prison, is no deterrent when it comes to the non-payment of fines. The system in its current form is not working and needs reform.

I wish to avail of the opportunity to speak briefly about the great work undertaken by the Joint Committee on Justice, Defence and Equality in its report on penal reform in March 2013. I fully supported all the recommendations contained in the report and look forward to working towards implementing them with my party colleagues. The first two recommendations of the report were a reduction in prison numbers via a decarceration strategy which would reduce the prison population by one third over a ten-year period and, second, that all sentences of less than six months, in respect of non-violent offences, should be commuted and replaced with community service orders.

In 2012, 272 people were jailed for non-payment of television licence fees, according to the Irish Prison Service. This is a prime example of where community service can be used as an alternative. We do not want a situation where people, particularly elderly people, are facing prison sentences for non-payment of television licences. I cannot let the occasion pass without stating again my support for Margaretta D'Arcy who has found herself imprisoned and is in the Dóchas Centre located in Mountjoy Prison at present, ostensibly for highlighting lapses in our international policy regarding flights by military planes into Shannon Airport. I hope the Minister will intervene with a view to a conclusion on that issue and to raise the issue to which Margaretta D'Arcy has drawn attention.

I welcome section 5 of the Bill which ensures that the court will impose a fine based on a person's ability to pay and take into consideration the impact of payment on a person's dependants. However, in the first instance, the system should take into account a person's ability to pay a fine. There was huge anger at the way the property tax was introduced, the methods put in place and the mechanisms given to the Revenue Commissioners to delve into people's accounts to pay that tax. The issue was not the fact that the tax had to be paid but that it did not take into consideration the ability of people to pay in many situations. They find that the property tax has been taken out of their bank accounts and they are short in other areas of their life, be that to pay the mortgage, keep food on the table and so on. The ability to pay clause is absolutely essential.

I would like the Minister to clarify whether there is a possibility that debt may be recovered via repossession of the family home. The Minister of State might speak on that. This may be something on which I will submit amendments on Committee Stage.

Section 6(2) makes a change to the Fines Act 2010 with which I do not agree. I would appeal to the Minister to retain the 24-month period as opposed to changing it to 12 months. This makes sense, as I said previously, given the current financial climate.

There is also a suggestion from the Irish Penal Reform Trust and other NGOs that a flat administration fee or a cap be put on fines as opposed to the 10% charge which is set out in the Bill. I would like to hear the Minister's reasoning behind this 10% charge. This also may be something I will seek to amend on Committee Stage.

With regard to section 6(6), it is regrettable there is no instalment option for fines of less than €100. For many individuals and families today, €100 is a significant amount of money.

Regarding section 8, the Irish Penal Reform Trust recommended that consideration be given to setting out a maximum level or proportion of receivers' fees where property is seized, and I agree with this. I would also concur with the concerns raised by Senator Quinn. I will discuss with my party colleagues the issue of giving powers to persons to enter the home to seize the goods of somebody who has been seen not to be in payment of the fine. There may be questions which we will certainly discuss and, maybe, come back to on Committee Stage also. In terms of section 11, it is worth querying where there is a failure to recover assets if community service or attachment will be an option pursued as opposed to imprisonment.

In conclusion, I reiterate my support for this Bill and commend the Minister for bringing it forward. The Bill is a step in the right direction. However, I have concerns around some aspects of it as I indicated throughout my speech and I will be submitting amendments on Committee Stage to strengthen the Bill where needed.

2:00 pm

Photo of Michael MullinsMichael Mullins (Fine Gael)
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I welcome the Minister of State, Deputy Tom Hayes, to the House.

In welcoming the Bill, it would be appropriate to compliment the Minister for Justice and Equality, Deputy Shatter, for bringing much innovation to his Department since assuming office a little under three years ago. This is another commitment in the programme for Government that is being delivered.

As has been said, it is a straightforward piece of legislation to provide for the introduction of a system of attachment of earnings as a means of collecting unpaid fines with the intention of substantially reducing the numbers being committed to prison for non-payment of fines. It is quite obvious that many in this country decide they will not pay a fine imposed on them because they know that even if they are given a custodial sentence for non-payment, they are likely to serve little, if any, time. Senator Cummins mentioned that those who get a short custodial sentence are back home later that night, and sometimes before the gardaí who brought them there in the first place, and I see it happen in my town on a regular basis. This is happening because of a shortage of space in the prison system. However, it came as a big surprise to me that 8,300 persons went to prison last year for non-payment of fines at a cost to the State of over €2 million.

This is a compassionate piece of legislation in that it takes into account that many of those who find themselves on the wrong side of the law may have limited means at their disposal. With this in mind, the Bill repeals Part 3 of the Fines Act 2010 to provide for a new payment and recovery system. The key features of that are that it takes into account the level of a person's income when a fine is being imposed and when a person is fined, he or she can opt to pay in instalments over a 12-month period with an administration fee of 10%. Where a person fails to pay a fine, the court can make an attachment order or recovery order. I welcome that when either of these options is not feasible the court can make a community service order, which can also kick-in when fines are not paid in full.

It is also appropriate that we introduce a new offence of failure to comply with an attachment order which will attract on conviction a fine of up to €2,500 or 12 months in prison. There must be suitable deterrents to discourage one from failing to comply with attachment orders.

The Bill provides for the collection of fines from wages, salaries and occupational pensions, but in my view, there is a deficiency in the Bill in that there is no provision to collect fines through the social welfare system. We all will be aware that in some instances there are significant incomes going into some homes through the social welfare system. Over the weekend there were newspaper accounts of where in some situations there was in excess of €75,000 being paid to some families. Given that every person has a PPS number, surely it should be administratively possible to use the attachment order. All that would be required is for the court to communicate the name, PPS number and the amount of the attachment order to the Department of Social Protection. In my view, this discriminatory element in the Bill should be addressed.

Like Senator Quinn, I have concerns about the administrative costs that will be incurred, particularly by small businesses, in collecting the attachment orders. I wonder whether it would be possible for an employer to receive some small recompense for the administration costs associated with collecting moneys for the State, and I ask the Minister to look at that.

I am pleased to support the Bill. In my view, it is a fair system. It will reduce significantly the costs incurred by the State by keeping those concerned out of prison. It will reduce Garda time spent on trivial enough matters and free up the police force for policing duties in the community. Most importantly, it ensures that only in cases of serious crime will persons be deprived of their freedom.

I compliment the Minister and wish him well in his efforts to modernise much outdated legislation in this country. Today is a good start and I compliment the Minister on his efforts.

Photo of Tom HayesTom Hayes (Tipperary South, Fine Gael)
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I thank Members for their good contributions and welcome their agreement with the Bill.

There were many aspects to the Bill and, although I am not the Minister for Justice and Equality, I certainly would agree with the thrust of it. I am delighted to be here to help to bring a Bill before the House. It is an issue I, personally, would have spoken about. Senator Cummins has spoken on this issue on several occasions. Indeed, I thank all the Members for all the issues that they raised.

Senator O'Donovan raised a question of resources. The Minister has already provided resources to the Courts Service and it is expected, assuming early passage of the Bill, that its provision will be operational in the second half of this year. I will pass on Senator O'Donovan's comments on the instalment and administration fees to the Minister.

Senator Colm Burke raised the issue of the poor box system. I understanding the Minister intends to reform the system, but I will also raise that issue with the Minister.

Senators Bacik and Cummins made the same point in relation to the IT infrastructure being available and when it could be put in place once the law is enacted. I am advised that the IT infrastructure will be in place to allow the system to be operated as soon as the Bill is enacted. For Senator Bacik, I will raise the question on a number of instalments and the administration fee, and the question of the €100 limit in instalments, with the Minister. I am advised that community service will only arise in cases of default where other options are not available to the court.

Senator Quinn welcomed the Bill. As regards recovery orders, these will only be made where a person has failed or refused to pay a fine and where he or she declared to the court assets that are sufficient to pay the fine. These provisions are already in the Fines Act 2010, but I will relay the Senator's comments to the Minister.

While speaking in support of the Bill, Senator Cummins asked whether people in receipt of social welfare benefits would be subject to recovery and community service provisions. If a person in receipt of social welfare benefits has cash or other assets, a recovery order will be made. In response to Senator Ó Clochartaigh, there is no question of a person's family home being seized. However, the Minister will consider whether it is necessary to explicitly exclude the family home from the recovery process, and that can be done. Overall, that is it. As for the other points raised by Members, I note the presence of the departmental officials and these points will be related back to the Minister. I thank Members for this opportunity.

Question put and agreed to.

2:10 pm

Photo of Paschal MooneyPaschal Mooney (Fianna Fail)
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When is it proposed to take Committee Stage?

Photo of Maurice CumminsMaurice Cummins (Fine Gael)
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Next Tuesday.

Committee Stage ordered for Tuesday, 4 March 2014.

Sitting suspended at 2.30 p.m. and resumed at 3 p.m.