Category: Criminal Law

More on technicalities

From retired judge Mary Kotsonouris, in her recent book ‘Tis All Lies, Your Worship (Tales from the District Court):

‘He got off on a technicality.’ Why do we think that this excuses a badly prepared or presented case? The law is meant to protect us from tyranny, from the false accusation and the trumped-up charge. If it says I am guilty of drunken driving when I have consumed a defined amount of alcohol, within a defined time of driving a motor car, then it is up to the person who accuses me of the offence to prove that it was what I was doing. If he fails to make a connection between the time I was driving and the time the alcohol level was measured, then he has not proved his accusation. All this is written down; it is the law. It is neither advanced science nor legal devilry.

Another drink driving technicality bites the dust (for now)

Lion Intoxilyzer 6000A High Court decision delivered two weeks ago is yet another which reduces the scope for “technicality” defences to drunken driving prosecutions.

Back in January, I wrote about so-called technicality defences and quoted from the leading Irish textbook on drunken driving law by Mark de Blácam SC. He notes, as have many judges, that drunken driving prosecutions have generated an substantial volume of appeals and challenges. Retired judge Mary Kotsonouris wrote recently that the introduction of the breathalyser lead to an explosion in “technicality” defences, demonstrating the lengths people are willing to go to in order to stay on the road. These challenges are likely to continue with each change to the law, despite frequently failing.

de Blácam’s book was quoted in the case referred to above in which the defence hinged on the humidity of the room in which the breathalyser was operated. The guidelines for the machine state that the optimum operating conditions are a room temperature in the range of 15°C to 35°C and a humidity between 30 and 90 per cent. These conditions are not set out in the applicable legislation, but the test report generated by the machine (the section 17 certificate) records the temperature and humidity of the room at the time.

In this case, the room humidity was 26% and the prosecution was dismissed by the trial judge on the basis that the humidity of the room was below 30%. The prosecution stated a case to the High Court (a procedure by which the High Court is asked a series of questions in order to guide other courts and future prosecutions). One element to the case stated concerned the trial judge’s refusal to allow for an adjournment so that the prosecution could present evidence to establish that the low humidity level did not affect the test.

However, this is the key question for drink driving prosecutions:

was the trial judge correct as a matter of law in dismissing the case on the ground that the humidity level was 26%?

Somewhat surprisingly, the Director of Public Prosecutions does not seem (on the basis of the judgment) to have presented evidence as to whether or not a humidity level of 26% would affect the test. Instead, it seems to have relied on the presumption in the law that a section 17 certificate is sufficient evidence that the requirements of the legislation have been complied with.

Mr Justice Nicholas Kearns decided that the trial judge was not correct in dismissing the prosecution.

There is nothing on the face of the Section 17 certificate to suggest that the Intoxilyser was not working on the date in question. There is no requirement in either the legislation or in the regulations that the temperature and humidity be noted, much less that they be requirements for a conviction on the basis of the Section 17 certificate. No evidence was adduced by the accused to question the reliability of the Intoxilyser or the accuracy of the reading of 58 and there was no evidence before the trial court to rebut the presumption that the certificate was accurate.

So, while a temperature or humidity reading on a section 17 certificate which falls outside of the optimum ranges will still raise an eyebrow, evidence will now be required to show that the reading adversely affected the test in order for the defence to succeed.

Go to court!

As mentioned previously, most people unlucky enough to find themselves summonsed to court will find themselves before one of the State’s District Courts. If you get a summons, make sure to attend court on the date specified. Failure to do so, even when told the charge will be withdrawn, can sometimes have serious consequences.

A summons is essentially a written order requiring the attendance of an accused in court at a particular time. Despite common popular opinion, it is relatively rare to “get off on a technicality”by finding some irregularity in a summons. In general, minor errors don’t matter: the purpose of the document is to have you show up in court to answer the charge.

Sometimes, however, a driver might not have committed any offence but is convicted in absentia due to human or computer error. For example: a driver is stopped for a minor offence, such as driving while holding a mobile phone. (S)he receives a fixed charge penalty notice and pays the fine. On the day the driver was stopped, the Garda also asked to see the driver’s insurance certificate (even though a valid insurance disc was displayed on the windowscreen). The driver didn’t have this certificate in the car so the Garda asks him/her to nominate a local Garda station at which it will be produced within 10 days. A few days later, the driver visits that station and produces the certificate. Everything is in order.

Months later, the driver is served with a summons for driving without insurance and for failure to produce a driving certificate at a Garda station. The driver contacts the Garda concerned in protest and is told that there must have been an error of some nature but that everything will be fine on re-production of the certificate. The driver dutifully visits the station a second time, produces the insurance certificate and is told, again, that everything is in order. The Garda who orginally stopped the driver tells them that they are free to go and that there is no need to attend court as the summonses will be withdrawn.

Further weeks pass and the driver, flicking through the pages of their local newspapers, is astonished to read that they have been fined hundreds of euros and have been disqualified from driving. Or worse, they receive a notice of the fine and disqualification in the post.

At this point, the driver might be forgiven for feeling trapped in a Kafkaesque conundrum. (S)he will now have to apply to the District Court for permission to appeal the conviction to the Circuit Court and will have to pay a deposit (a recognisance) for the appeal. The driver will also generally have to bear his/her own costs (including solicitor costs) relating to the appeal. To add insult to injury, if more than two weeks have passed since the original conviction the driver will remain disqualified from driving until the appeal is complete.

You might think you should be entitled to re-visit the District Court judge and have the conviction undone. Not so: a case can only be re-listed before the District Court if the defendant did not receive the summons. The fact that a member of the Gardaí told the accused that there was no need to attend court does unserve the summons.

The moral of the story? If you have received a summons to go to court, make sure you go to court. Even if you have been told that the case will not go ahead or will be withdrawn, attend on the day of the court to ensure that this is done or, at least, have a solicitor or family member attend on your behalf.

Getting off on a technicality

I’ve never liked the phrase. If an accused “gets off on a technicality” the prosecutor has failed to establish the case against the accused, who emerges without guilty verdict and is therefore innocent. So, when someone referring to a case being prepared by the Director of Public Prosecutions says that “every ‘i’ had to be dotted and ‘t’ crossed to ensure that nobody gets off on a technicality”, what they mean is that the evidence establishing guilt must be properly prepared. In this context, “technicality” is a synonym of “requirement of the law” and those requirements exist to protect the rights of citizens.

The phrase is so common that the perception exists that it can be easy to “get off on a technicality”. More often than not, it isn’t. Legislation creating a penal or taxation liability must be interpreted strictly (as held by the Supreme Court in Inspector of Taxes v. Kiernan [1981] IR 117 3 ITR 19). A consequence of this is that legal requirements (“technicalities”) must be fulfilled. The thinking is that the Oireachtas has formulated rules and it is not for the judiciary to pick and choose which of those rules should be applied, thereby usurping the role of the Oireachtas. Given that criminal law involves the application of penalties a degree of precision is expected in formulating and applying the law.

The most common source of so-called technical defences is that of drunken driving (drug driving, now a common problem, is subject to similar rules). Mark de Blácam SC, in the introduction to his book on the topic, points to the disdainful tone often used when referring to technical defences. As already indicated, a “technicality” is a requirement of the law, but these requirements are often spoken of dismissively in the case of drink driving charges. de Blácam says:

There are many other crimes which are more heinous than drunken driving, yet one cannot imagine a judge deriding an argument as a “mere murder argument” or a “typical fraud point”. For whatever reason drunken driving has become associated with lines of defence which are sometimes fatuous, “often specious” and generally technical if only in the limited sense that they are not readily intelligible to the layman.

These “technical defences” have been a feature of the Irish criminal justice system for many decades, with the result that the technical requirements have been finessed and the Gardaí have had ample experience in ensuring all requirements are met. Therefore, the possibility of circumstances giving rise to someone “getting off on a technicality” are diminished. The popularity of the concept, however, is not and a “technical defence” is sometimes hoped for in other road traffic cases.

Take this example: an individual was reported by a member of the public for dangerous overtaking. The individual apparently admitted the offence but noted a minor variance in the details of the offence when formal notification was received. The individual then hoped to “get the low down on how to dodge points” so that (s)he might “get off on a technicality as the time is incorrect”.

The District Court Rules, which apply to most road traffic cases and other minor offences, provide that an error like this is not material for the purposes of the case. Nor is a difference between the location of the alleged offence as stated on a summons and that given in evidence at trial. The High Court has observed that “these provisions … were designed to discourage the taking of purely technical objections based on variations between the written detail of the complaint and the facts established in evidence” (DPP v. Winston [1992] IEHC 275SS). Where there is a variance between the summons and the evidence, the judge can amend the summons and proceed to hear the case. Generally, one can only argue against the amendment of the summons where the initial error has prejudiced the accused or might affect the merits of the case. The judge can, in that situation, dismiss the case but can do so without prejudice to the charge being brought again. Therefore, the Gardaí can re-issue a corrected summons (once the time for doing so has not elapsed).

PS. Many road traffic offences are now detected automatically and dealt with by fixed charge notice. The notice will sometimes require correction through no fault of the Gardaí. For example, where an individual driving a car registered to his mother is detected speeding by an unmanned camera, the notice will issue to her as registered owner. The Fixed Charge Processing Office must be informed so that the notice can be reissued in the name of the driver. Failure to notify the FCPO frequently gives rise to summonses issuing. The Gardaí have a useful FAQ on fixed charge notices.

Presuming to know the law

ignorantia juris, quod quisque scire tenator neminem excusat *

Imagine the chaos that would unfold if one were able to defend a drunken driving charge by claiming not to know of the offence. But, in light of the volume and complexity of contemporary law, is the rule that ignorance of the law is not a defence fair? Generally, the answer will be in the affirmative, but the question raises wider issues about difficulty in understanding the law.

Of course, the rule does not mean that everyone is expected to actually know the law, they are merely presumed to know it so that they cannot be excused on the basis of ignorance. Nevertheless, many laws are inaccessible; sometimes literally. Take this example concerning the Criminal Procedure Act 2010:

For reasons unknown the Act (which among other things prescribes new procedural and evidential rules applicable to all trials since enactment) has not been published by Official Publications and it is not possible to get a copy. At a murder trial in the Central Criminal Court recently the prosecution sought to rely on the 2010 Act but could not produce a copy. Did someone say Kafka?

Do not want
Legislation fail

The bulk of Irish laws, particularly acts and statutory instruments, are available online but that does not mean that they are accessible. Beyond primary law, it is amazing how many simple legal documents presented to the public remain so complicated. Below is a small example.

Around 64% of summary cases in the District Court relate to road traffic (333,161 in 2009) and given that the Road Traffic Acts 1961 to 2007 and related legislation are of such wide application, one would think them suitable for consolidation or at least restatement (bizarrely, the Attorney General’s office has restated the Tourist Traffic Acts 1939 to 2003, but not the Road Traffic Acts).

Order 15 Rule 3(1) of the District Court Rules provides:

A summons shall state shortly and in ordinary language particulars of the cause of complaint or offence alleged …

The summons for a road traffic offence will state the nature of the offence at its head; for example: “Failure to produce insurance certificate“. The body of the summons itself will set out the details:

  1. the name and address of the accused;
  2. details of the application by a member of the Gardaí for the summons to issue;
  3. the time and venue of the court at which the prosecution will be dealt with;
  4. the date and location of the alleged offence; and
  5. the law under which the offence arises.

So, what if you are served with a summons headed “Non display of disc (use)“? This could refer to a tax, insurance or NCT disc, so the final part of the summons (5) is important. In the case of the summons I have in mind, that section states that the offence was committed:

Contrary to sections 73(1) and 76 (as amended by section 63 Finance Act 1993) of the Finance Act 1976.

Huh?

Reading these sections suggests the existence of an offence and the potential penalties, but where is the plain statement of what offence is alleged? Is the accused to be prosecuted for not displaying the disc referred to at the head of the summons or for not having the licence referred to in section 73(1)? And, either way, what disc or licence are we talking about?

Section 73(1) points to section 5(5) of the Roads Act 1920, a pre-Free State statute that belongs to the statutes of the United Kingdom of Great Britain and Ireland. It has been preserved in Irish law but you won’t find it on the Irish Statute Book. It is still in force in the UK and available on their legislation directory, which is so good that it consolidates amendments. Section 5 of the Act was repealed there in 1949, but the UK government has helpfully retained the original version available here.

Having made it thus far, we find that section 5(5) provides:

Subject as may be prescribed, every such licence as aforesaid shall, in the prescribed manner, be fixed to an exhibited on the vehicle in respect of which it is issued.

Despite having torn out at least some hairs at this point, we appear to be near the legislative treasure so let’s search back in section 5 for the aforesaid licence; where we find that it is probably one issued under the Finance Act 1920. It is here that I throw in the towel.

The offence, for anyone still with me, is of not displaying a tax disc.

Lawyers have it easy: they will either know the offence from experience or can look up a book and find the answer in a few seconds. But you don’t necessarily need a lawyer to attend the District Court for a case of this nature and there is no reason why the summons should not state at its head “Non display of tax disc“.

It is hard to see how a cryptic summons like this, though rare, satisfies O15R3 of the District Court Rules nor is it fair or practical for such unnecessarily complex legal instruments to remain in use.

* Ignorance of the law, which everyone is presumed to know, excuses no one.

Economic traitor!?

Senator Dan Boyle wants to amend the Constitution to provide for an offence of “economic treason”. The phrase is an effective political barb, recently thrown at Brian Cowen by Eamon Gilmore in a clearly political exchange, but what does it actually mean?

 

The Execution of Guy Fawkes
Lessons from the past in dealing with traitors?

The ordinary offence of treason is punishable by a life term in prison. Deputy Gilmore and Senator Boyle appear to refer to alleged mismanagement of national affairs by the government. Senator Boyle has not gone to the effort of defining the offence with sufficient precision to understand what is actually proposed and the question arises as to why primary legislation cannot be drafted to introduce whatever nebulous offence he has in mind.

What existing aspect of constitutional law bars the creation of a new offence? Or, indeed, what deficiency exists in the current laws that requires a new law? On the evidence of the draft bill, these questions do not appear to have been considered.

The draft provision states:

Economic treason shall consist of actions that result in reputational damage for the country, an unacceptable economic cost, or a loss of economic sovereignty for the State.

The lack of precision suggests that any reputational damage done to the country (what is the country? why not the State?) constitutes an offence. Likewise, any circumstances leading to an unacceptable economic cost could constitution treason. And what, politics aside, constitutes “a loss of economic sovereignty”? The various European Union treaties ratified by the State involved some loss of economic sovereignty; are all taoisigh since Jack Lynch guilty?

Well, of course, those events happened in the past. However, the draft Article 49.3 suggests one constitutional problem which Senator Boyle wishes to overcome. It provides:

Nothing in this section shall preclude the drafting of legislation, applying these definitions retrospectively.

If this provision is to be interpreted as intending that a criminal offence of retrospective effect could be enacted, Article 15.5.1 prohibits it.

The Oireachtas shall not declare acts to be infringements of the law which were not so at the date of their commission.

One might suggest that Senator Boyle’s Article 49.3 be amended to provide that nothing in the Constitution shall preclude retrospective effect. That option is not available. Article 7 of the European Convention of Human Rights provides:

No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed.

Not only has Ireland signed and ratified the Treaty, the Government gave it direct effect under Irish law in the European Convention on Human Rights Act 2003.

It would appear, then, that the proposed amendment takes Deputy Gilmore’s soundbite and proposes to paste it into the Constitution, without any serious thought as to the possibility or consequences of doing so. It is not a serious proposal and one can only see it as a purely political stunt.

Sentencing information now online

Irish Sentencing Information System

The Irish Courts Service today launched an excellent new resource for legal practitioners which will be of interest to many in the wider population. The Irish Sentencing Information System “aims to design and develop a computerised information system, on sentences and other penalties imposed for offences in criminal proceedings, which may inform judges when considering the sentence to be imposed in an individual case.” While primarily designed for judges, the Courts Service have made the enlightened decision to make the database freely available. And why not? It is public information, after all.

As Dr. Vicky Conway, a criminology expert at Queen’s University Belfast, says “[p]reviously to do [sentencing] research would have required spending weeks in courts or at the Court Service in Dublin”.

Those charged with offences and faced with going to court will, understandably, want to know what penalties are facing them. Despite media reports, Ireland has a relatively low level of serious crime and few people are likely to be facing a homicide charge. However, in 2009 the District Courts dealt with 333,161 road traffic offences and 64,748 public order and assault offences. Therefore, there’s a reasonable chance over one’s lifetime that one might be brought before the District Court on a road traffic charge. The law will tell you the maximum penalty and a solicitor can make an educated guess at what penalty might be handed down based on their own experience. This can be supplemented by reports in regional newspapers, which have enabled me to keep an informal record of certain reported outcomes.

Excerpt from penalties list
An excerpt from my informal record of penalties

The ability to search an official database of such penalties is a great advance. ISIS is a pilot project and most of the information now online comes from the Dublin District and Circuit Courts. If the project is extended nationwide, it will be of huge interest to see what variances exist between districts in respect of similar offences. Many of the penalties noted on my informal list are from different districts and are of limited guidance only: the penalties handed down by the judge in your own district are the most relevant.

One wonders if practitioners will start to use ISIS in making pleas or addressing judges in relation to the severity of penalties in future. For many cases, ISIS appears to record some of the background details to each case which inevitably have an effect on sentencing. Regional newspapers remain the best source of that information, however.

Does the home defence bill clarify the law?

[Updates at end] The Minister for Justice has published the Criminal Law (Defence and the Dwelling Bill) 2010. In 2009, the Law Reform Commission published a report on general defences in criminal law which addressed the specific issue of home defence, noting:

The law surrounding these defences, as with many aspects of the criminal law, has evolved over time. The nature and scope of these defences have, in the Commission‟s view, been troubled with some inconsistencies, competing rationales and even arguments as to whether they should be abolished in certain instances. In this Report, the Commission proposes to provide a more coherent framework for the future application of the defences.

As indicated by the above statement, there is already plenty of law on the subject but, as it derives from case law it can be unpredictable and often fails the black and white certainty test called for by the media and public on certain occasions.

From the US National Archives
A reasonable defence against theft of some petrol?

Background

The Law Reform Commission suggested draft legislation to clarify the law on home defence which was not adopted by the Minister (though he might have been expected to). In reality, the new Bill has been generated as a response to the killing of John “Frog” Ward. A background to that case and the resulting prosecutions of Padraig Nally is available on Wikipedia, and the usual health warning applies.

That Mr. Nally was convicted, successfully appealed and was acquitted on re-trial evidences the lack of clarity or consistency in the law. Nevertheless, it is a strange case to act as a catalyst for new laws to strengthen the position of those who use force in self-defence. Mr. Nally was living alone at his home and appears to have been subjected to an indefensible series of incidents which led him to feel threatened in his home, but the case was not the stereotypical home defence case. It should be remembered that that:

  • Mr. Nally did not encounter the trespasser at close quarters within the home, rather he saw a trespasser exiting his home;
  • the incident took place at around 2 pm., in daylight;
  • Mr. Nally went to an outhouse where he had stored his gun;
  • he shot the trespasser, later reloaded his gun and fired another shot at the trespasser, who was now fleeing the scene; and
  • he beat him a significant number of times with a stick.

Other proposals to change the law on home defence

In response to the Nally cases, Fine Gael presented two private members’ bills on this issue in the Oireachtas, both with similar content, in 2006 and 2009. Both provided that, where a trespasser is unlawfully present in a dwelling “and remains within the dwelling”, resulting in the use of force by the occupier, that force is presumed to be reasonable unless the contrary is proven. However, nothing in either bill would have provided a defence to a charge of murder.

In addition to addressing criminal liability, both bills provided that no liability in tort would accrue to the occupier “in respect of any harm, whether serious or not, caused by his or her actions in relation to a trespasser” unless the force used is found to be unreasonable.

The Law Reform Commission’s draft bill provided, in relation to dwellings, that a person could use force (including lethal force) in the dwelling or the vicinity of it by way of defence to the threat or use of unlawful force by another person. This would only apply in the case of a threat of death or serious injury, rape or aggravated sexual assault, false imprisonment by force, unlawful entry to or occupation of the dwelling and damage to or destruction of the dwelling.

The Government’s Bill

The Minister’s Bill provides that it will not be an offence to use force within a dwelling against another person or their property where

  • (s)he believes the other person has entered or is entering the dwelling as a trespasser for the purpose of committing a criminal act; and
  • the force used is only such as is reasonable in the circumstances as he or she believes them to be (i) to protect from injury, assault, detention or death caused by a criminal act; (ii) to protect property from appropriation, destruction or damage caused by a criminal act, or (iii) to prevent the commission of a crime or to effect or assist in effecting, a lawful arrest.

The substance of the Bill provides much scope for debate, not least because the Fine Gael proposal did not provide a defence for a murder charge: the Minister’s Bill does. The criteria for reasonableness are in need of greater scrutiny but the provision on civil liability raises new questions.

Section 5 of the Bill provides that a person who uses force as permitted by the Bill shall not be liable in tort “in respect of any injury, loss or damage arising from the use of such force.” Such a provision could block claims like those taken by Mr. Ward’s widow against Mr. Nally. It will be interesting to see how this provision will work. The criminal justice system requires proof of guilt beyond reasonable doubt; the civil requirement is a lesser threshold of satisfying the balance of probabilities. If the user of force is acquitted on the basis of a section 2 defence, does that determine the matter for a judge hearing the civil trial? Or will the judge hearing the civil trial have to consider the issue, for example where no prosecution is brought against the user of force? If that judge determines that the force used was not permissible, will a prosecution result? It would certainly seem that cases of this sort should be excluded from the operation of the Injuries Board, which will hardly be in a position to determine the issue, but the Bill is silent on this.

Fine Gael’s 2009 Bill referred to harm caused “in relation to a trespasser”; an imprecise  phrase but one assumes that it absolves the user of force from civil liability to the trespasser. The Minister’s 2010 Bill is not so limited, allowing for the potential that a lawful resident, guest or neighbour who might be injured as a result of the force directed at the trespasser will be barred from taking action against the user of force. Alternatively, a guest in the home could use lawful force against a trespasser but injure the home owner. Section 5 appears to absolve that guest from all civil liability.

Does this Bill clarify the law?

The first draft of this Bill is likely to be a source of further confusion and ambiguity. It certainly does not tie up loose ends. While it is presented as legislation that “clarifies” the law, it is more accurate to say that it merely updates or amends the law. Sections 2(3) and (4), along with other aspects of the Bill, arguably do not advance the clarity of the  law on this topic. Despite frequent complaints from the public (and lawyers) that legislation is difficult to understand, those subsections are barely comprehensible. It is baffling that a simpler way could not be found to express some aspects of this Bill.

However, given that it resembles the Fine Gael bills at the high level, it could attract a good deal of cross-party support and pass through the Oireacthas without detailed scrutiny of its wording. This happened recently with the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, Part 15 of which did not receive significant textual scrutiny despite criticisms from leading academics that the provisions on cohabitants’ rights were poorly drafted, contained anomalies and could do more harm than good.

Updates

  • Sinéad Ring discusses the Bill on the Human Rights in Ireland blog.
  • Vincent Browne says that the Bill “serves only nasty political ends”. As noted by the Law Reform Commission and others, reform of the law was necessary but the Bill does not resolve the issues and it is hard to disagree with Browne’s political assessment of the legislation:

Now a Bill has been introduced whose only purpose seems to be to respond to that vibe of five years ago, thereby neutralising any opportunist point-scoring in that arena by Fine Gael, while, incidentally, reminding Fianna Fáil TDs that there is a strong man around, should they be looking for same between now and the election.

Fines Act 2010: paying fines or doing time?

Today’s Irish Times editorial says that prison is not always the answer.

ON OCCASION, popular policies are simply wrong. The practice of locking people up for relatively minor offences has been hugely expensive and largely counter-productive.

This is certainly true in the case of minor offences and non-payment of fines.

Do not pass go

The Fines Act 2010 has been signed into law by the President but will not be commenced by the Minister for Justice and Law Reform until the Courts Service is ready to facilitate implementation. The most high-profile aspect of the Act is to provide alternatives to imprisonment for non-payment of fines, but it also increases the maximum fines that can be imposed for many offences.

Alternatives to jail

It may seem bizarre to jail someone for not paying for their TV licence, although imprisonment for non-payment of fines is somewhat more complicated than that. In reality, the jail term is imposed for ignoring a court order (to pay the fine), rather than for the original offence.

Though they were not specifically required to do so in the past, District Court judges generally inquire into the financial position of a defendant before setting the level of fine and the time in which it may be paid. Someone on a low-income with a number of dependents might be given a small fine and a period of months in which to pay it. When setting the penalty, the judge sets a number of days ‘in default’: this is the period of imprisonment that will result for non-payment.

The Fines Act includes a statutory requirement to enquire into the means of a defendant and, importantly, provides for payments by instalment and alternatives to imprisonment for non-payment. This area of the law has been the subject of extensive research, including the Nexus report and the Law Reform Commission’s report on penalties for minor convictions. The main points of the new system are:

  • When convicted, the judge must take into account the defendant’s financial circumstances before setting a fine. This is known as equality of impact: the impact of a fine should not be made more or less severe as a result of the defendant’s financial circumstances.
  • If a requirement to pay the full fine by a particular date would cause financial hardship, the judge can order that it be paid in instalments. However, the full amount will generally have to be paid within 12 months.
  • If a fine remains unpaid, a receiver can be appointed to recover the fine by seizing and selling the defendant’s property. A judge can also order that a fine be recovered as if it were a civil debt.
  • A judge will now be able to order community service instead of imprisonment for non-payment. Previously, community service could only be ordered as an alternative to a prison sentence (ie. not in place of a fine).

[Update] It has been reported that the average cost of keeping inmates in prison has fallen to €77,222, a drop of 17%. However, that still works out at €212 per day in prison. Take again the example of the individual who fails to pay for their TV licence: the State loses €160 in revenue for the licence. It must then bear the cost of prosecution, which could reach a few thousand euros. Say the defendant is punished at the extreme end of the scale, receives the maximum fine of €1,000 and is jailed for 10 days for non-payment.

Not including the cost of prosecution, the State is at a loss of €3,280. With the cost of prosecution included, the full cost will be around €5,000. In 2009, 60 people were jailed for this offence and 3,500 were jailed in total for non-payment of fines. Obviously, there is a financial incentive for using the alternative provisions of the Fines Act in future.

Penalty fines

The Act also contains a more straightforward system for setting the maximum fines for offences. From now on, all new legislation  covering minor offences (ie. on summary conviction) must categorise the fine in accordance with the Act. Until now, each individual penalty fine has been set in the relevant legislation as a punt or euro amount and, if the level of the fine was to be changed, it had to be done individually for each specific offence.

The Fines Act sets out a new system of categorised fine for minor offences:

  • Class A: maximum fine of €5,000
  • Class B: maximum fine of €4,000
  • Class C: maximum fine of €2,500
  • Class D: maximum fine of €1,000
  • Class E: maximum fine of €500

Existing offences are retrospectively classified. This could lead to significant increases in maximum fines for old offences that have not been amended in recent decades. Fines for more serious offences will also be increased by a multiplier: for example, a fine for a serious offence set between 1965 & 1975 will be multiplied by 10.

Here are two examples, albeit by reference to relatively obscure offences:

  • The offence of indecent exposure carries a maximum fine of £500 (€634.87). Under the Fines Act, that will become €1,000.
  • It is an offence to make a false statement when applying for a lottery licence or permit, punishable by a fine of up to £100 (€127). Under the Fines Act, the maximum penalty will be €2,500.

These examples illustrate that the increase might be of a few hundred euro, or a few thousand. If there is a Class A offence out there that has not been updated since 1914, the maximum penalty could go from around €100 to €5,000.  The explanatory memorandum (from when the Act was at bill stage) says that the increases

will not represent a real increase in the amount of the fine, it will simply maintain its value and ensure that the intentions of the Oireachtas when passing the legislation are respected.

The latter part of that sentence may be true but the increase will be very real for someone convicted under an old piece of legislation.

Nevertheless, the new system of fines is practical as the classes of offences can be changed without the necessity of amending every piece of legislation on the books. In addition, lawyers and judges can now refer to penalties by class, rather than having to remember or keep note of a wide variety of maximum penalty for different offences.