Fines Bill 2009
Fines Bill 2009: Second Stage
Senator Ivana Bacik:
Before I talk about the Bill, I want to refer to something Senator McDonald said about the role of the District Court. Like Senator McDonald I have practised in the District Court, particularly on the criminal side, and I agree with her that we need to have a separate system of family law courts. In
There is another matter of relevance to this Bill in terms of the District Court. It was very clear from my work as a practitioner that the District Court on the criminal side was dealing by and large with accused persons drawn from the most disadvantaged areas. Some years ago I, along with
It is important to state, however, that there is a bias in the criminal justice system, particularly at District Court level where, granted, the offences are minor although statistically they comprise an enormous bulk, such that the persons being charged appear to be drawn from the more disadvantaged backgrounds. Our study also showed they were more likely to be sent to prison for the same offences. When that is coupled with the data the Minister for Justice, Equality and Law Reform gave in his speech today to the effect that more than 3,000 persons were imprisoned in the first ten months of 2009 for failure to pay a fine, one sees that the scale of the problem is enormous. Opposition Members are justified in saying that this is far too many and we have been seeking legislation for years to address this point and ensure people are not being locked up on grounds of poverty or their inability to pay. The fear is that this is what is happening currently.
The Minister, in fairness, said the number was increasing and that the rate of increase highlights the need for this legislation. While I agree with that, I would disagree with the Minister when he says the figures show our prisons are not cluttered up by persons who are there for no reason other than they did not pay their fines. I believe nearly 3,500 is a considerable number of people. Only a small number of prison places are occupied by fine defaulters on any given night, but one is still talking about 3,336 persons who have been locked up for a period of time for failure to pay their fines.
The Minister said some can afford to pay but choose not to. We do not know what proportion that amounts to. We know from our research, as I have said, that many people in serious poverty appear before the District Court. I suggest the majority of those in prison are there because they cannot pay their fines. The Minister recognises this is a problem and that is why this Bill is being brought forward.
We must also remember that behind each of those numbers is an individual who has lost out in terms of child care, housing, job opportunities and being able to keep a job. He or she may well have lost significantly. It is not just a question of losing one’s liberty but also that the consequence of this may have been very significant in many instances for those in employment or who have small children or for people in rented accommodation who have to keep up rent payments and so on. We have to bear that in mind as well.
We welcome initiatives such as this Bill that will reduce the numbers of people in prison for failure to pay fines. I know that is not the only aspect of the Bill and that it also provides, as the Minister has said, for the indexation of fines. Again, we welcome that. It also provides for an approved system for assessing offenders’ financial circumstances and for the payment of fines by instalments. I would see the payment of fines by instalments as being very much in line with the policy objective of trying to reduce the number of people imprisoned for failure to pay, and this is an important change. Perhaps most important, however, is the relevant part of the Bill dealing with alternatives to imprisonment where offenders default in the payment of fines.
While I want to look at that some more, I wish to raise a couple of other points first. There has been great delay in bringing forward this legislation, and I regret it has taken so long. Last year, the House debated issues surrounding default of payment and imprisonment and we were promised this reforming legislation. In fact, however, the Bill was first published in 2007 and the Law Reform Commission made recommendations as long ago as 1991. It has taken a long time to prepare and develop legislation dealing with the policy objective of reducing the number of fine defaulters in prison and ensuring a more effective fines payment system, which is dealt with in a large part of this Bill. It is a shame it has taken so long to bring it before the Houses.
A point was raised by Deputy Sherlock during the Second Stage debate on the Bill in the Dáil about the facility to pay fines by instalments, but I see that section 14(8) remains the same. The facility to pay fines by instalments only applies where the fine is greater than €100. That provision could be remedied. I do not understand why that minimum level has been set and perhaps the Minister would explain it. As Deputy Sherlock said, many people are surviving solely on income from the Department of Social and Family Affairs and every penny of their weekly income is accounted for. A fine of as little as €50 could be a considerable burden. It would be of great assistance to those people if it could be paid in €5 or smaller instalments per week.
Indeed, if one is fined €100, section 14 will not apply. It only applies to fines that are greater than €100. Countless numbers of fines of €100 are imposed in the District Court. It is a significant amount if one must account for every penny of one’s income and has outstanding obligations, for example, to pay back a moneylender, pay for children’s food, rent and so forth. Will the Minister consider changing that minimum figure? He was asked to do so in the Dáil but I ask him again to consider it. A €100 fine is a standard fine figure that is imposed with routine regularity in the District Court, yet a €100 fine will not be capable of being paid in instalments. Only fines greater than €100 will qualify under section 14 for the facility for instalment payment. That is a pity given the overall purpose of the Bill, with which we all agree, and the very progressive changes the Bill generally makes to the fine payment system.
Another point raised by Deputy Sherlock, which is a hobby-horse of mine, deserves mention. We must monitor the effect of the Bill to ensure we are not still sending thousands of fine defaulters to prison every year. We must monitor sentencing practices. It would have been nice to see a provision in the Bill providing for statistical analysis of sentences. It is a real concern for anybody who is examining the criminal justice system or trying to map out the impact of criminal legislation that we still do not have a coherent system for gathering data on sentences. The Central Criminal Court provides very clear data, but it deals with only a tiny fraction of criminal cases. They are generally the most high profile cases, involving murder and rape. The vast bulk of criminal business is carried out in the District Court, in particular, and the Circuit Court for trials on indictment. In the case of these trials, their outcomes and particularly the outcome of the guilty pleas - 80% of criminal proceedings, and 90% in some cases, are dealt with by way of guilty plea - we do not have a coherent system for gathering the data on sentences that is necessary if we are to monitor the impact of this Bill and ensure it meets its policy objective of reducing the number of impecunious offenders being subjected to imprisonment because they cannot pay fines. The sentence is the fine but the alternative currently is imprisonment.
There is a need for careful monitoring of sentencing practice. To do it, however, there must be a system in place for gathering sentencing data. I have plenty of colleagues in the academic criminal and criminological area who have tried to do this for specific offences but they have done so through all sorts of means, including looking at newspaper reports of sentencing for sexual assault and rape. Clearly, that is not an ideal way to gather scientific data on sentencing. The Central Statistics Office, CSO, has taken over the role of the Garda in assembling crime statistics, while the annual prison reports also provide data. There are different sources from which data can be gathered. As I said earlier, the Central Criminal Court is a very good source of data from that court. However, we must put some type of system in place to provide a central repository of sentencing information so we can monitor whether persons are being routinely sent to prison for non-payment of fines after this legislation comes into effect.
I will turn to provisions in the Bill for alternatives to imprisonment for default of fine payments, which I very much welcome. They will permit, for the first time, a real alternative to deal with default. Section 15 allows the court to appoint a receiver to recover a fine or seize property belonging to a fine defaulter in order to recover from the sale of the property a sum equivalent to the value of the fine or any unpaid part of it. That is important because it will cover a situation where somebody has begun paying in instalments but has been unable to complete the payments. It will not just apply where there is an outright default. That is welcome. The order is made at the time the fine is imposed but is only activated when the offender has not paid by the due date and the receiver has been informed of the default by the Courts Service.
It is important to note that the receiver provision is not the final step. There is also the facility for the court to make a community service order if the offender consents and is suitable for community service, which is the usual provision where community service is being ordered. I fully support this. For a long time I and many others on this side of the House have argued for the need to give courts the facility to impose community service orders instead of imprisonment as the default where somebody does not pay a fine. It is welcome that the community service order will be the alternative to a fine, rather than imprisonment. It would be preferable if community service was the default rather than imprisonment, although I am not sure that will be the impact of this Bill.
For too long prison has been seen as the standard option in sentencing practice in this country. Community service and probation orders are the poor relations. We talk about alternatives to custody rather than seeing the alternative as the main sanction and custody simply a sanction of last resort, as it should be. I am struck by the figures that have been produced by the Minister. The probation service supervised only 1,667 community service orders in 2009. Considering that 3,366 persons were imprisoned for fine default in the first ten months of 2009 alone, it is troubling that in the full 12 months community service orders were imposed on considerably less than 2,000 people. We should be using the community service order more extensively.
Two final points should be made about community service orders. The research available shows there is remarkable divergence in practice in the imposition of community service orders across
There is a problem with the resourcing of the probation service. It is under-resourced and that is partly the reason that many District Court judges are reluctant to impose community service orders. That is the practical reality. However, the cost of keeping somebody in prison, even for one or two nights, is far greater than the cost of having them on probation and having a working and efficient probation service. There is clearly a financial imperative to increasing the use of community service and the resources for the probation service. However, I welcome the Bill.
Fines Bill 2009: Report and Final Stages (
Senator Ivana Bacik: 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.
Senator Ivana Bacik: 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.
Senator Ivana Bacik: 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.
