The 2010 Act defines financial circumstances which the court has to take into account in deciding the level of a fine a person must pay. This is relevant to determining the person’s capacity to pay. It is also relevant to granting an extension of time for the payment of a fine by instalments.
The Fines (Payment and Recovery) Act 2013 further modernises the law in relation to fines. It follows from the significant 2010 legislation which rationalised fine levels. The legislation provides for new methods of recovery of unpaid fines. The provisions for instalment are available to all fine payers.
Equality of Impact
The concept of equality of impact requires that a person is not to be financially significantly more impacted by reason of his or her financial circumstances. The court is obliged that in so far as practical to inquire into the person’s circumstances.
The court is to take account of the defendant’s financial circumstances in determining the amount of the fine, if any, to impose. There is to be equality of impact where a person is convicted. This is to ensure that where a person is convicted of an offence, the effect of the fine on the person under defence will not be significantly abated or made more severe by reason of his financial circumstances.
Accordingly, a court may impose a fine that is greater than, less than or equal to another appropriate fine. It may not be more than the maximum fine specified by the relevant statute.
A fined person may either pay the fine in full by the due date for payment or by instalments. The frequency is to be set out in regulations made by the Minister. In the case of instalments, the first instalment is to be made within 42 days and the last instalment within 12 months of the date of the order imposing the fine. The option is available where the fine is at least €100.
The due date for payment of a fine is the date set by the court or where the person opts to pay by instalments, 42 days from the date the fine is imposed. In the case of instalments, the due date is the date each instalment falls due.
Where a person fails to pay a fine by the due date, the court fixes a date for hearing at which it shall make a recovery order or an attachment order or if neither is appropriate, a community service order, where the necessary conditions for the making the order are met.
If a person fails to pay an instalment by the due date, the court may decline to take action for the time being. This is a more flexible option than previously applied. The person is to provide the court with a statement of income and assets in such format as the court may decide.
Where the court decides that none of the three orders mentioned above is appropriate, it may commit the person to prison. It is an offence mainly or reckless to provide an inaccurate or incomplete or incorrect statements of income and assets.
The courts may appoint a receiver where a fine has not been paid by the due date. Before appointing a receiver, the court must conduct an inquiry into the financial circumstances of the person in default, so as to ensure that appointing a receiver would not cause undue hardship to the person or his dependents
The court may impose a community service order on a person who has not paid a fine by the due date for payment. More generally, it is an alternative to imprisonment, on conviction of an offence. On default of payment of a fine imposed on conviction and indictment, the person in default can be imprisoned for up to 12 months.
In principle, the courts have powers to recover a fine in the same manner as a civil debt. It is not clear whether these powers might still be exercised in view of the newer statutory provisions. Before making an order, the court must conduct an enquiry into the financial circumstances of the person in default so as to ensure the order would not cause undue hardship. A recovery order has the same force and effect as an execution order under the enforcement of Court Orders Act 1926.
Recovery Order and Receiver
There is a provision for the appointment of receivers and the making of recovery orders to recover unpaid fines. Property may be seized and sold. Fees and expenses of the receiver may also be recovered.
The legislation sets out the powers of the receiver in relation to seizing, holding and disposal of property of a person in respect of when recovery is ordered. The receiver may enter premises alone or accompanied by Garda Síochána, demand and take possession of property and assets of the fine payer. He is to issue a receipt for goods taken.
The receiver may delegate his functions to employees, servants, bailiffs or agents as he thinks appropriate. The receiver may apply to the court for directions in relation to the performance of his functions. A person who is in possession of property owned by the fine payer must deliver that property to the receiver if requested to do so.
There is provision for the return to the fine payer of money in excess of the amount recovered from the sale of the person’s property over the level of the fine net of fees and expenses. It is an offence to fail to comply with or obstruct or interfere with the receiver or his delegates, employees etc. in the execution of their duty.
Receivers are to be appointed by the government on the nomination of the Minister for Justice with the consent of the Minister for Public Expenditure. A Ministerial order may be made dealing with the fees and expenses of the receiver. The receiver is to record certain information and make reports to the Courts Service.
Where a fine has not been recovered by the receiver, he is to inform the court and the court on being so notified is to require the person to appear before the court. There is provision on the process by which the person is summoned before the court. At the hearing, the court may make a community service order or commit the person to prison.
A person may elect to pay the remaining balance of the fine at any time and if the payment is made other than to the receiver, the recovery order is deemed to be revoked and the Courts Service will advise the receiver accordingly. The recovery order is to cease to have effect on payment into court of the fine and to the receiver his or his fees and expenses.
Where the receiver has notified the court, the recovery order will continue in force in relation to part of the fine recovered but not paid into court before notice is given. The recovery order continues in relation to any property seized but not sold before the notice was given and any proceeds from the sale of the property not paid into court when the notice was given,.
Monies paid into court by a receiver are paid to the Minister for Finance. Where the fine is properly due to another body, it is to be paid to that body.
Where a 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 pay the sums in the manner specified. The amounts deducted must be sufficient to ensure the fine is paid within 12 months.
The court has the discretion to require a shorter period. There is provision for information to be included in the attachment order including the amounts to be deducted and the frequency of deductions to be paid over.
The attachment order is to be served on the person’s employer or any person who subsequently becomes his employer at his place of business or residence by registered post. The employer must comply with the order. He is not liable during the first 10 working days.
An attachment order will cease to have effect on the payment of the fine in full. Where a person ceases to be in employment, the order is revoked. The employer remains bound by the order in so far as any instructions are made after the order is revoked and any deductions made at any time by the employer.
Monies paid into court on foot of an attachment order paid to the Minister for Finance or other appropriate body.
There is provision for sharing of data between the Revenue Commissioners and the Department of Social Protection for the purpose of fine collection.
Where an employer ceases to be the person’s employer, he is obliged to notify the court within 10 days of the person ceasing to be the employer. He must also pay over to the court any monies already deducted from the employee under the attachment order.
The employer must give the person a statement of the total amount of every deduction made in compliance with the order. It is an offence for an employer without reasonable cost to fail to comply with the terms of an attachment order.
There is provision for notification of changes in employment and employment status. Where a person ceases to be in employment, he must notify the court within 10 working days. He must advise the court whether he or she is in new employment or is no longer in employment. Where the person changes employer a new attachment order is to be issued to the new employer.
Where the court has been advised that the person has a new employer, the court shall issue, an attachment order to that new employer. The court has the discretion to increase the period over which the remainder of the fine is to be recovered to allow for any interval.
Where a court is advised by either the person or their employer that he is no longer in employment and the person does not pay off the balance of these fine, the court shall fix a date for hearing unless the court otherwise decides.
There is provision for issuing a notice requiring a person to attend court in order to determine if a community service order should be made. The notice is to set out the options open to the court at the hearing. The summons will state that the person may be arrested if he fails to appear before the court. At the hearing, the court will either make a community service order or commit the person to prison.
Community Service Order
A community service order may be made where the fine has not been recovered in full following the making of an attachment order or recovery order. A community service order may be made where the court does not consider it would be appropriate to make either a recovery order or attachment order in the event of default. A court may make a community service order where the person is willing to comply with the order and is considered suitable by the probation service.
The Community Service Act provides the hours of work specified in relation to non-payment of a fine or additional to any other hours, which the court has already imposed on the person. In determining the number of hours to be worked, the court is to take account of sums already paid by the person by instalments or recovery on foot of a recovery order or attachment order.
Where a fine is in respect of a conviction on indictment, the order may provide for between 40 and 240 hours of community work. In the case of summary conviction, the period is between 30 and 100 hours of community work.
The court may commit a person to prison where he has failed to pay a fine in full or where the fine or part remains outstanding following the appointment of a receiver or 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 the person does not consent to or the probation service does not consent of the person suitable for community service order.
The court will commit a person to prison where the person has failed to comply with the terms of a community service order.
Important Notice! This website is provided for informational purposes only! It is a fundamental condition of the use of this website that no liability is accepted for any loss or damage caused by reason of any error, omission, or misstatement in its contents.
Draft Articles; The articles on this website are in draft form and are subject to further review for typographical errors and, in some cases, updating and correction. It is intended to include references to the sources of materials and acknowledgements in the final version. The content of articles with [EU] in the title and some of the articles in the section on Agriculture are a reproduction of or are based on European or Irish public sector information.