Fall of a gold-rush petition system

THE demise of the petition system has been like witnessing what happened when the gold rush stopped in the Klondike.

Twelve years ago, an astonishing 5,000 petitions annually were being made to the Minister for Justice asking for penalties imposed by district courts to be reduced or mitigated or postponed.

Most of them succeeded. Even if they didn’t succeed, the fact that a petition had been made pushed back the D-Day for paying the fine. In some cases, they were pushed back for so many months and years, that they lapsed.

The vast majority of the petitions were either sponsored by politicians, or got a politician to write a supporting letter.

By the early 1990s, the system of parallel justice had achieved an embarrassing notoriety. Long-standing TDs of all persuasions say that almost every petition (and some politicians say every single petition) received by one former Minister for Justice, Sean Doherty, from his own county Roscommon succeeded in getting penalties reduced or remitted.

It was not only Doherty. Successive ministers for justice had used this power (and not sparingly as they were supposed to do). Fines, penalties, disqualifications and even prison sentences imposed by district court judges were long-fingered, reduced. In essence, the judgments of the judiciary were being over-ruled or voided by politicians at the stroke of a pen, without having the benefit of firsthand knowledge of the actual case.

But over the past 12 years, the petition system has dwindled to almost nothingness, as a once-rich seam has gradually been reduced to very slim pickings. In 1996, only 295 petitions were made (although some 5,000 were awaiting decision). Seven years later, in 2003, the figure had been reduced to 67. In 2004, the last years for which figures are available, only 42 were made. As has been the practice of current Justice Minister Michael McDowell, all were dealt with quickly and none were granted.

So what prompted such a radical transformation? It can be traced to a High Court decision on April 28 1995 which — to be bald about it — scuppered the system.

The petition and pardon system is an ancient one, that can trace its beginnings to the royal prerogative — the power enjoyed by the king or queen over all other subjects. After independence, those powers were vested in the President, and by proxy, the Executive. Article 13 of the Constitution provided that the President had the right of pardon and the power to commute or remit punishment.

The President alone could exercise the power to remit punishment in capital cases (such as commute a death penalty to 40 years’ imprisonment). But that power ceased in 1990 with the abolition of the death penalty.

But in lesser cases, it was the Government which decided. The Criminal Justice Act 1951 delegated those powers to the Minister for Justice. In practice, most of the cases were at the lower end of the scale, those heard at district court level. But it meant that many thousands of fines were reduced or voided over many years.

The system that grew up was indefensible. Politicians say that when it was in full flow, they would be dealing with a couple of cases each week. The minister who made the decision to remit never gave reasons for the decision or kept any records. Nor did they feel it necessary to give any information in the Dáil. That extended to refusals by successive ministers to answer parliamentary questions about the problem.

But even when not successful, a petitioner could evade or delay the payment of a fine by dint of the fact that he or she had made a petition. Progressive Democrat TD Liz O’Donnell raised this issue in a Dáil debate in 1996.

She said that many warrants had lapsed because a ministerial letter was being used as a ruse to delay the imposition of fines in the hope that it will not be renewed when lapsed.

A letter from the Minister for Justice confirming a petition could be produced in a garda station that put a practical stay on the fine. By the time, the petition process had been completed (there were huge delays), the warrant backing the fine was out of time.

What was worse, the district court judges who imposed the sentence were left totally in the dark. Not alone were they not informed that a petition had been opened against their decision, they also were never told if a petition had been successful. Nor was it open to them to challenge the order made by the minister.

Of course, of all the judiciary, district court judges are as attuned to the realities of their patch as local politicians are. And they learn — by the same process of verbal osmosis — of what is happening on the ground.

A district court judge in Mayo, Patrick Brennan, was extremely frustrated at what he considered was the overruling of his decisions by the petition process.

He took a judicial review case in the High Court relating to four cases in Mayo, where the then Minister for Justice Máire Geoghegan Quinn, upon receiving a petition, had reduced the fines he had imposed.

In a landmark judgment, Mr Justice Geoghegan said that the minister had not properly exercised her power of remission, that it should only be exercised in the most exceptional circumstances.

Mr Justice Geoghegan also ruled that there was a duty and onus on the minister to fully record and retain the reasons for her or his decision to remit a fine.

Moreover, the district court judge should be entitled to challenge successful petitions in the court. That decision effectively sprung a trapdoor for the petitions system. In the mid- and late-1990s, cases were still succeeding on petitions. But what was once a formality was no longer so.

Petitions could now only succeed in the most exceptional cases. In fact, during the course of his written judgment, Mr Justice Geoghegan suggested that it may even be nigh impossible for a petition to succeed.

“It would seem to me, therefore, that it would be only in the rarest of circumstances (and I cannot conceive of what they might be) that the minister can modify a district court judge’s order imposing a fine on the basis that he or she thought that the decision was wrong,” he wrote.

Present Minister for Justice Michael McDowell has followed that line of reasoning to the letter of the law. Since becoming minister, not a single petition has been successful. And many of the TDs and senators who opened, or supported, petitions on behalf of constituents in 2004, say they no longer go down that route.

So why do politicians still persist in supporting petitions when they know they have little to no chance of succeeding? Several of the politicians who have submitted petitions contend that there is still a place for them.

The Irish Examiner spoke to seven of the 13 Oireachtas members who supported petitions in 2004. All of them stressed that they made no attempt to reduce fines or to have a decision of the district court overturned.

Most said that what they sought was some leeway or latitude in terms of the time scale for paying the fines. Paul Connaughton, Jimmy Deenihan, Peter Kelly, Joe McHugh and Seamus Kirk all said that the people whose petitions they supported were all in fairly poor financial circumstances and what they had sought was an extension of time, or some form of staged payments, to pay the fines.

In the case in which Trevor Sargent became involved, he pointed to the fact that person who was fined for not having a TV licence lived some distance away from the court and was not able to attend on the day of the hearing because of family responsibilities.

He argued that in cases like that, it is sometimes hard for a judge — who hears many cases each day — to be in a position to take into account all the circumstances of each case, through no fault of their own.

Sometimes, he says, there are factors at play that are not heard on the day because the defendant is unable to be present, and does not have the financial wherewithal or understanding of the system to explain their circumstances.

Similarly, Paul Connaughton, the Fine Gael TD for Galway East, says that there are cases where there is financial hardship, where some slack should be given to allow the person pay the fine by instalment.

IN AN overall context, he says he approves of the change that has taken place. “Years ago, there was a lot more of this and we would be dealing with dozens each year. I’m sure that in some cases, the system was being abuses.

“In more recent years I have received very few. A few of my constituents would insist on submitting a petition, though I point out to them that fines are never reduced.

“My own personal view is that nobody is in a better position to judge than the actual judge. He has the evidence and can see all sides,” he says.

Kerry North Fine Gael TD Jimmy Deenihan says that he has supported very few. “It’s not so much to reduce the fines but to get an easier method of payment, perhaps by instalment,” he says. “There should be no tampering with the fine itself.”

The Fianna Fáil TD for Louth, Seamus Kirk, questions what has become, in practice, a blanket ban on the petition systems.

“What worries me about its demise is that it was a safety net for issues that were not captured in the court setting.

“There are family circumstances, where the financial position is poor and a fine will impact on the food for children.

“It’s not just a question of running a petition for the sake of putting one in. An influencing factor for me is when the financial circumstances are such that the payment of the full fine within a short period will impose severe hardship on the family.

“We have got to remember that public representatives are on the ground. They know the individual circumstances of a family.”

In practice, the powers conferred by Article 13 of Bunreacht na hÉireann and the Criminal Justice Act 1951 have become defunct, to all intents and purposes.

And while all politicians agree that before that seminal 1995 ruling, the system was abused, some argue that the minister may be defining the “exceptional circumstances” rule too strictly.

Petitions continue to trickle in. But it seems that they raise a different question — whether or not those in very straitened financial circumstances should be given some leeway to pay fines by instalment.