This article was originally published on the School of Law blog https://criminaljusticeinireland.wordpress.com.
Article by Eoin Guilfoyle, Ph.D. Candidate, Centre for Crime Justice and Victim Studies, School of Law, University of Limerick // Original post
Of the 12,489 offenders sentenced to imprisonment in Ireland in 2013, 8,121 were imprisoned for failing to pay a fine. In an attempt to reduce the number of fine defaulters being imprisoned each year policy makers passed the Fines (Payment and Recovery) Act 2014. The Act, which was only implemented in January of this year, made a number of changes to the laws governing the payment and recovery of fines in Ireland. Many of these changes are extremely positive (allowing fines to be paid by instalment for example) and the Act should go some way towards reducing the overall number of fine defaulters who ultimately end up in prison each year.
The focus of this post, however, will not be on the entire Fines Act but rather on just one particular provision contained in the Act. It will focus exclusively on section 19, the provision which allows judges to impose a Community Service Order (CSO) as an alternative to imprisonment for non-payment of a fine. Proponents of the Act have advocated that this provision will divert a substantial portion of fine defaulters away from prison. When one looks at in isolation, it appears almost certain to be capable of achieving this goal. Judges will now have the option to impose a CSO where previously they had no option but to impose a sentence of imprisonment. However, once this provision is placed within the existing Irish criminal justice system, where it has to interact and comply with other existing laws and legislation, then a different picture starts to emerge. When this is done, the capability of the provision becomes much more uncertain. It also gives rise to two further concerns. The first being that in trying to divert fine defaulters from prison it could potentially result in the most vulnerable of fine defaulters serving far longer periods in prison than they would have prior to the implementation of the Act. The second being that it could have a negative impact on the use of the CSO in the wider criminal justice system. Each of these issues will be discussed separately below.
Doubts about the ability of the provision to divert fine-defaulters from prison
Prior to the implementation of the Fines Act, when imposing a fine, a judge would not only state the level of the fine that was to be imposed and the date by which it had to be paid but would also state what the sentence of imprisonment would be if the person failed to pay the fine by the due date. If the fine was imposed summarily this would range from 5 days up to 90 days imprisonment. If the fine was imposed on indictment, it could be as high as 12 months. In reality though, where a person was imprisoned for failing to pay a fine they would not serve anywhere near the actual sentence handed down by the court. In some cases a person might serve a few days in prison but in the vast majority of cases a fine defaulter would be released within 24 hours (Dáil Debates, Written Answer No. 546, January 15, 2014). The Minister for Justice, Alan Shatter (as he then was) when speaking in the Dáil about the Fines Bill, accepted that ‘imprisonment, in any real sense, for the non-payment of fines is now a rarity and only the unlucky spend even a night in prison’.
Since the implementation of the Fines Act the maximum period of imprisonment which can be given to a person who has defaulted on a fine, imposed summarily, has reduced from 90 days to 30 days (section 20). Furthermore, section 19 now gives judges the power to impose a CSO as an alternative to imprisonment for non-payment of a fine. When looked at in isolation it appears almost certain that this change will be capable of diverting a substantial portion of fine defaulters away from prison. But what happens when it is required to operate within the current Irish criminal justice system?
Under the Criminal Justice (Community Service) (Amendment) Act 2011, the legislation which governs the use of the CSO in Ireland, 240 hours community service is, in a broad sense, benchmarked against 12 months imprisonment. This same benchmark is used in the Fines Act when dealing with non-payment of a fine imposed on indictment. Judges can, under the Act, impose a prison sentence of up to 12 months or as an alternative a CSO of up to 240 hours. However, when dealing with a person who has defaulted on a fine imposed summarily in the District Court, where the vast majority of fines are imposed, the Fines Act uses a different benchmark. In these cases the Act allows the court to impose a prison sentence of up to 30 days or as an alternative a CSO of up to 100 hours. So straight away it can be seen that the CSO, when used under the Fines Act for non-payment of a fine in the District Court, is significantly more punitive. 100 hours community service is now being benchmarked against 30 days imprisonment.
It should also be made clear at this point that under the existing legislation which governs the use of the CSO, a court can only impose a CSO where the person has given their consent to the imposition of the sanction. If a person refuses to consent to performing community service, then the court cannot impose a CSO. With CSOs now becoming more punitive under the Fines Act a question arises as to what impact the increased punitiveness will have on offenders when deciding whether or not to consent to community service. At this stage, with the Act having only been implemented in January of this year, it remains unclear. One could put forward an argument that when a person is faced with 30 days imprisonment, 100 hours community service will still be viewed as a reasonable alternative and therefore it will not significantly increase the portion of offenders who refuse to consent to performing community service. However, as highlighted above, where a person is sentenced to imprisonment for non-payment of a fine, in reality they serve only a small fraction of the actual sentence handed down by the court and in most cases are released within 24 hours. This is not a well-kept secret that is known by only a select few high ranking criminal justice officials. This is a well-known fact that regularly receives national media attention (most recently following the imprisonment and immediate release of Deputies Mick Wallace and Clare Daly). The proper question therefore, is not will fine defaulters view 100 hours community service as a reasonable alternative to 30 days imprisonment but rather will they view 100 hours community service (or any amount of hours community service for that matter) as a reasonable alternative to a prison sentence of less than 24 hours? If for a significant portion the answer is no and they refuse to consent to the imposition of a CSO, then the ability of this provision to divert fine defaulters away from sentences of imprisonment is weakened. Furthermore, if this were to occur, and a system emerged whereby offenders were regularly refusing to perform community service and instead choosing to go to prison knowing that they will be released within 24 hours, it could cause significant damage to criminal justice system and to the authority of the courts.
The obvious solution to this would be for the government to ensure that when a person is sentenced to prison for failing to pay a fine that they would serve that actual sentence handed down by the court or at least a significant portion of it. This would incentivise people to consent to the imposition of a CSO. If this approach is taken though, and it looks likely that it will to some extent, then it too will give rise to some serious concerns. The most worrying being that it could lead to a situation whereby it is the most vulnerable of individuals who will be at the greatest risk of serving longer prison sentences.
The most vulnerable fine defaulters could end up serving longer prison sentences
Ensuring that fine defaulters serve longer periods in prison than the current average of less than 24 hours will likely result in the majority of fine defaulters consenting to the imposition of a CSO. However, there will inevitably be some individuals who will still refuse to consent, some of whom will have legitimate reasons for refusing to do so (an illness, disability or some other personal circumstance). If fine defaulters are going to be required to serve much longer periods of time in prison where they refuse to consent to a CSO, than it is likely going to be these fine defaulters (those with illnesses, disabilities etc.) that will be most negatively impacted. It will likely be these individuals who will end up serving sentences far greater than the ones they would have served prior to the implementation of the Fines Act.
To avoid this happening it is vital that all individuals are placed in an equal position at the point at which they are offered a CSO as an alternative to imprisonment. For this to happen there would need to be suitable community service projects available all across the country for all individuals regardless of their characteristics, abilities or circumstances. For the Probation Service to find such projects is not an impossible feat but it is an extremely difficult one. Whether or not it will be achieved remains to be seen.
The potential negative impact on the use of the CSO in the wider criminal justice system
As mentioned above, the Fines Act is now benchmarking 100 hours community service against 30 days imprisonment. If this equation is brought into the wider criminal justice system then, 240 hours, the maximum number of hours that can be imposed on an offender under current community service legislation would equate to a prison sentence of less than two and a half months. If judges are, on a regular basis, valuing CSOs in this way, as set out in the Fines Act (in 2015 nearly 10,000 individuals were imprisoned for failing to pay a fine) then can we reasonably expect judges to view even the maximum 240 hours as an adequate alternative to a prison sentence of, say, 12 or 15 months when sentencing offenders for other offences (a burglary or assault for example)? Yet this is exactly what policy makers are asking of judges. Therefore, the concern is that over time the CSO will become devalued in the minds of judges, due to them regularly having to value the CSO in accordance with the Fines Act, and as a result this will impact how CSOs will be used by judges when sentencing offenders for other offences in the wider criminal justice system. That CSOs will become more punitive and will primarily be used on a lower level of offender than is currently the case, with judges becoming less inclined to impose a CSO as an alternative to a prison sentence where the sentence of imprisonment is approaching 12 months or beyond.
Over the last decade the number of people being sentenced to imprisonment for failing to pay a fine has continuously risen. Few would dispute that this is a major problem. The Fines Act was introduced to address this and as a whole the Act should go some way towards doing so. This post is not a criticism of the entire Fines Act and it most certainly is not a criticism of what it is seeking to achieve. The post does however seek to highlight that an important part of the Act, the provision which gives judges the power to impose a CSO as an alternative to imprisonment for failing to pay a fine, may not be as straightforward as it first appears. While the abstract idea of using CSOs as an alternative to imprisonment for fine defaulters may be a good one, once placed within the existing Irish criminal justice system the provision becomes complex and its outcome far more uncertain than has been portrayed to date.