More power is needed to fix Ireland’s expensive and futile fines system

Picture: Andrii Yalanskyi

People who receive a fine for a criminal offence but who fail to pay up are, in the vast majority of cases, getting away with it and the Courts Service believes the costly enforcement system is increasingly futile, writes Security Correspondent Cormac O’Keeffe.

At first glance, you’d think the fines system appeared to be working quite well.

Over the last three years, between 70,000 and 74,500 fines were handed down by the courts every year. The average value of these fines per year was around €23.8m.

Some 64% of the money due in 2016 was paid, 68% in 2017 and 72% in 2018. So far this year, some 91% of the fines have been paid.

The figures relate to the Fines Act 2014, which came into force in January 2016.

The fines are imposed by the courts on offenders as a sanction for a criminal offence and are a less severe option than community service and imprisonment.

A system allowing the payment of fines by installment was a key innovation of the Fines Act and was seen as a way of ending the mass committal to prison of people unable to pay their fines in one go.

These committals created a massive administrative burden, in terms of cost and resources, on the prison system, and also on gardaí, with the bulk of those committed released within hours or the following day.

Numbers soared over a 10-year period, from 1,089 in 2006 to a peak of 9,883 in 2015.

Since the introduction of the installment system, committals have collapsed, from a height of 9,883 committals in 2015 to 2,261 in 2017 and to 455 in 2018.

Courts Service figures show that 2,286 fines were paid by installment in 2016, rising to 3,240 in 2017 and dropping to 2,908 in 2018.

The value of fines imposed, in the respective years, was €991,000, €1.3m and €1.26m.

Ironically, the percentage on installment fines paid is significantly less than with fines paid in full, with 14% of the money due in 2016 paid, 15.5% in 2017, rising to 34% in 2018.

So far in 2019, 70% of money due has been paid.

Scot free

But this is only one part of the story. Documents provided to the Irish Examiner by the Courts Service show the flip side.

This relates to how those who fail or who refuse their fines — they are, in the vast majority of cases, getting away scot free.

Official figures show only 10% of those who refuse to pay their fines show up at enforcement hearings and that less than 7% receive any kind of sanction.

Figures show that a total of 34,767 enforcement notices (involving 25,474 people) have been issued since January 2016 to those who have failed to pay fines (there is no sub-breakddown for those who failed to pay fines by installments).

But only 2,424 of these enforcement hearings — a mere 7% of all cases — ended up in any sanction being imposed on the offender.

These comprised of 1,571 prison orders, 773 community service orders, 65 attachment of earnings orders (where money is deducted from income at source) and 15 recovery orders (where assets are seized and sold to pay the value of the fine).

But, in the remaining of hearings, the offender is untouched.

This includes 3,000 cases where the matter is adjourned, many of them because the offender has not turned up.

The figures show that in 33% of cases (11,526 notices) the matter is stuck out, meaning the case is dismissed, often because no prosecutor has turned up to prosecute the case.

In a further 31% of cases (10,835 notices) a bench warrant is issued for the offender.

The documents show the extent to which the fines enforcement system has been causing alarm within the Courts Service, which, in turn, has been informing the Department of Justice, for years now.

Plan of action

In December 2017, Courts Service head of operations for the circuit and district court John Coyle told Kevin Condon of the Department of Justice that almost 57,000 fines were awaiting enforcement as of October 31, 2017.

This figure was increasing by around 3,000 fines a month, he warned.

“Having considered this position in consultation with the President of the District Court, we are now of the view that we must commence addressing this backlog of fines awaiting enforcement,” Mr Coyle wrote.

He said they had devised an enforcement strategy, which, he said, had been agreed in principle with the president of the district court, subject to the availability of judges, and, in Dublin, of courtrooms.

The strategy would require special court sittings, particularly in Dublin, Cork and Limerick.

Mr Coyle said that if the strategy was successful more than 43,000 enforcement notices would be listed for hearing and that by the end of 2018, the backlog would be cut to around 38,000.

He said the likely number of bench warrants that would be issued at these hearings would probably put a “serious strain” on garda resources.

But by the summer of 2018 the strategy had hit rocky waters.

An email from Margaret O’Neill, circuit and district court operations, to Mr Condon pointed out that special court sittings had been put in place where there was high demand, such as Dublin, Cork and Galway.

But Ms O’Neill said that the president of the district court, Rosemary Horgan, had told them she would no longer provide judges for special sittings as she was “very short of judges”, with at least three on sick leave and one vacancy.

In addition, a judge in Cork was questioning the Court Service’s right to issue enforcement notices in light of a Court of Appeal ruling.

Ms O’Neill also said that a judge in the Court of Criminal Justice had struck out 125 cases over two days after they were previously adjourned.

Complete nonsense and futility

Ms O’Neill said bench warrants were causing “major problems”:

  • Some judges were issuing bench warrants that included a provision for station bail — ie, allowing gardaí to release the individual on station bail rather than bring them straight to court but when the new court date was set and the fined person didn’t show up a further bench warrant had to be issued;
  • Gardaí in Galway appeared to have told local court offices that they “will not execute any bench warrants” which didn’t have a date of birth of the person. Ms O’Neill said that if the prosecutor, often the gardaí, give court officials a date of birth on the summons application it will be on the warrant. If they don’t, the Courts Service has no way of getting one;
  • Some gardaí were “demanding” an out of hours courts to execute enforcement of bench warrants, which, Ms O’Neill said, was “complete nonsense”. She told Mr Condon that there was still one judge who was striking out cases for lack of someone to present them.

She said one judge was insisting that notices be reissued by registered post to those who don’t appear for the hearing.

She said that on the day she was sending her email that a man had turned up for an enforcement hearing and had paid his fine just before the court.

“The judge asked him what he had paid as he was going to strike it out,” Ms O’Neill said. “He told him to lodge an appeal.”

Concluding, Ms O’Neill said: “Overall, an enormous amount of time, both court and office, is being taken up on issuing, processing and resulting these cases for no benefit to anyone.

“Very few of the outstanding fines are being paid and, because the majority of people are not turning up for the enforcement hearing, no penalty at all is being applied.”

She added: “The whole process is increasingly futile and needs to be reviewed urgently.” 

In a follow-up email in September 2018, she told Mr Condon that “over 70%” of enforcement notices are accounted for by either a bench warrant or a strike out.

If we add in the ‘adjourned’ which have to come back before the courts to be finalised most probably as bench warrants or strike outs, the figure goes above 85%.

She said that attachment of earning orders, community service orders and recovery orders account “for less than 2%” of all enforcement notices and “just barely 1% of fined persons”.

She said: “The waste of Court/Judicial time and Courts Service time and resources is incalculable for a collection rate of barely 10%”.

By December 2018, instead of cutting the backlog to a target of 38,000, the number of outstanding fines awaiting enforcement stood at 57,850, higher than the number at the close of 2017.

Documents also show the minutes of meetings of a “high level working group”, comprising officials from the courts policy division of the Department of Justice, the Courts Service, An Garda Siochána, the Irish Prison Service, the Attorney General, the DPP and the Probation Service.

The purpose of the group as set out in the minutes of the December 2018 meeting was to propose “immediate stabilisation and improvement measures” to be taken in the first quarter of 2019 to deal with the “serious issues” that had arisen in relation to the enforcement of unpaid fines.

Updates from the agencies noted the “poor attendance” in court, with approximately 10% of fined persons attending court hearings on foot of enforcement notices, a total of 12,742 bench warrants being issued and a backlog of 57,850 district court fines awaiting enforcement.

It said since the commencement of the Fines Act in January 2016 there had been “a significant drop in fines revenue”.

An Garda Siochána told the meeting they were “not prepared for the volume of bench warrants” they were getting from the courts.

Gardaí said warrants arrived in paper format and had to be inputted into the garda system manually, with data quality being an issue.

The minutes said that while non-appearance in court was considered to be the “biggest issue” it was clear that the absence of a prosecutor/presenter was a “huge problem” for the judiciary.

The group was told that Judge O’Leary in Cork had taken a case regarding the absence of a prosecutor/presenter in enforcement hearings.

The Courts Service advised that with the case pending an increase in adjournments should be expected.

It said the Courts Service had stated that the enforcement system was “not working at all” and wondered if some “legislative tweak” might help, such as giving judges the power to issue a penal (prison) warrant to a fined person who does not engage with the process.

The minutes said it was also felt that not having a provision in the act to allow for “attachment to social welfare payments” was a problem, a loophole that was identified and publicly aired at the time of the Fines Act.

The Probation Service noted that because enforcement notices were issued by regular post there was no proof of receipt, resulting in strike outs by judges.

Calls for more powers

At a further meeting of the group last January, it was suggested that a recorded delivery project on the next batch of notices would be useful, although it was acknowledged it would be expensive.

Gardaí wondered if a notice was accepted at an address was it legally deemed to have been served. Gardaí were concerned about the lack of data available to ensure the proper person is served.

The minutes said the group felt it was unlikely that the President of the District Court would agree to proposals for special court sittings to help deal with the backlog.

Gardaí again said they were not prepared for the volume of bench warrants being received.

Some legislative proposals were suggested, including an offence for non-appearance at an enforcement hearing, a contempt power for a second non-appearance and an increase of fine and possibly a penal warrant where the fined person does not engage.

The meeting was told it would be several months before Judge O’Leary’s case was heard – with the Courts Service advising that pending the decision an increase in adjournments and/or strike outs should be expected.

In an email on January 18 to Peter Mullan, head of circuit and district court operations, Tom Ward, principal officer at the CCJ, said the use of bailiffs to enforce court-imposed fines was a regular feature in other jurisdictions.

“If its the intention to solve this problem, I think it should now be on the table that if the fine isn’t paid within 3 months and they don’t avail of staged payments, it’s given to a debt collection agency to seize goods to the value of the fine,” Mr Ward said.

Mr Mullan forwarded that email to Ann Hopkins in the department.

In his email, Mr Mullan commented on a proposal for a recovery order in cases of a second non-appearance at an enforcement hearing.

But he explained that this was “not an option” under the Fines Act.

He added: “The only options available to the court when a fined person fails to appear is to issue a bench warrant or a further enforcement notice”.

The law

The Fines (Payment and Recovery) Act 2014 was enacted in April 2014, but the provisions did not come into force until January 2016.

The act provides for the payment and recovery of fines imposed on people convicted of offences in the courts.

The act requires the courts, in imposing any such fine, to take into account the person’s financial circumstances.

The act introduced a number of new features including the ability for people to pay fines by instalment.

Where fines are not paid, judges have a range of legal options, including attachment of earning orders (where money is deducted by employers at source); recovery orders (where receivers can take the property of the person fined and sell it to pay the fine), community service and ultimately, imprisonment.

Implementing the act, the Courts Service said it had three main objectives: To support the administration of justice when fines were imposed; to ensure that the fines imposed by the courts were collected; and to reduce, to the minimum possible, the number of people committed to prison each year for the non-payment of a fine.

The Courts Service put in place a competitive procurement tender for the payment process, which was awarded to An Post.

A second award, for printing and distribution legal documents, was awarded to PrintPost Ltd.

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