Title:	Owens and Dooley -v- DPP
Neutral Citation:	[2019] IESC 36
Supreme Court Record Number:	17/2018 & 18/2018
Court of Appeal Record Number:	233/2017 & 234/2017
High Court Record Number:	N/A
Date of Delivery:	05/27/2019
Court:	Supreme Court
Composition of Court:	Clarke C.J., McKechnie J., Dunne J., O'Malley Iseult J., Finlay Geoghegan J.
Judgment by:	Finlay Geoghegan J.
Status:	Approved
Result:	Appeal dismissed
Judgments by Link to Judgment Concurring Dissenting Clarke C.J. Link McKechnie J., O'Malley Iseult J. Finlay Geoghegan J. Dunne J. Link Clarke C.J., McKechnie J., O'Malley Iseult J. Finlay Geoghegan J. Link

THE SUPREME COURT

Between/

Between

1. These appeals principally raise the question of the proper interpretation of s. 1A of the Courts (No. 2) Act 1991 (“the 1991 Act”), as inserted by s. 22 of the Fines (Payment and Recovery) Act 2014 (“the 2014 Act”).

Background to High Court Proceedings and Appeals
2. On 3 July 2015, Mr. Owens was convicted in the District Court of an offence contrary to s. 56 of the Road Traffic Act 1961 and was ordered to pay a fine in the sum of €500, “to be paid within four months and in default of payment that the said accused be imprisoned for the period of five days unless the last mentioned sum be sooner paid”. Mr. Owens did not pay €500, or any other sum, and on 14 March 2016, a warrant was issued by the District Court for his committal to prison unless the sum was sooner paid.

3. On 22 July 2015, Mr. Dooley was convicted of four separate offences contrary to s. 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001. On that day, a fine in the sum of €500, to be paid within 90 days, was imposed in respect of each of these offences, and the orders provided “in default of payment that the said accused be imprisoned for a period of 60 days unless such last mentioned sum be sooner paid”. Mr. Dooley did not pay the sums within 90 days, or at all, and on 17 February 2016, a warrant was issued by the District Court for his committal to prison.

4. Each of the warrants recite the earlier hearings, conviction and orders made in July 2015 for the payment of the respective fines, with imprisonment in default, and commands the person to whom it is addressed “to lodge the accused… in the Prison at… to be detained… for a period of [60 or 5] days, unless such last mentioned sum be sooner paid”.

5. The 2014 Act was commenced in full on 11 January 2016 (Fines (Payment and Recovery) Act 2014 (Commencement) Order 2016, S.I. No. 6/2016). At that date, each of the respondents had defaulted in the payment of their respective fines within the periods specified and hence, was subject to imprisonment in accordance with the orders made on 3 July 2015 and 22 July 2015, respectively, but warrants had not yet been issued for their committal to prison.

6. Each of the respondents commenced judicial review proceedings by leave of the High Court, principally seeking orders quashing the orders of the District Court made on 14 March 2016 and 17 February 2016, respectively, for the issue of the aforesaid committal warrants. The two applications for judicial review were heard together by Eagar J., who delivered a single written judgment on 5 May 2017, in which he decided that the committal warrants issued by the District Court on 14 March 2016 and 17 February 2016 should be quashed and also that an order should be made directing the Director of Public Prosecutions to initiate proceedings under s. 7 of the 2014 Act in respect of the unpaid fines of each respondent. Orders to that effect were made by the High Court on 16 May 2017.

7. The appellants appealed both High Court orders to the Court of Appeal. Again, the appeals were heard together and on 16 November 2017, judgment was delivered by Mahon J. (with whom Birmingham J. (as he then was) and Hedigan J. concurred). The judgment dismissed the appeals, save that it quashed the orders made by the High Court directing the Director of Public Prosecutions to initiate proceedings under s. 7 of the 2014 Act in respect of the unpaid fines. The Court of Appeal determined that it remained a matter for decision by the Director to proceed as she believes appropriate, including a decision to initiate such proceedings should she so decide.

8. The appellants sought leave to appeal that part of the judgment and order of the Court of Appeal which refused the appeal against the decision of the High Court to quash the committal warrants which were the subject of the judicial review applications. No application for leave was made in respect of the order quashing the order of the High Court directing the Director to issue proceedings under s. 7 of the 2014 Act.

9. By a determination on 10 April 2018, this Court granted leave to appeal as sought.

Legislative Provisions Prior to 11 January 2016
10. The 2014 Act commenced on 11 January 2016 and introduced an entirely new legislative scheme in relation to the imposition of fines on summary conviction, including in relation to the amount of the fine, methods of payment and recovery and when, and in what circumstances, the Court may make orders for imprisonment or issue warrants for committal to prison where fines are unpaid.

11. One of the significant differences relevant to the appeals is that prior to 11 January 2016, the District Court had jurisdiction at the time of imposing the fine to specify the period in which it was to be paid and to make an immediate order for imprisonment in default of payment within such period. This latter jurisdiction was pursuant to s. 2 of the Courts (No. 2) Act 1986 (“the 1986 Act”). Section 2(1), insofar as relevant, provides:-

“Where on summary conviction a fine is imposed a court may order that, in default of due payment of the fine, the person liable to pay the fine shall be imprisoned for a term not exceeding the appropriate period specified in the following scale: …”

13. Where there was default in the payment of a fine within the period specified, a further application to the District Court was required for the committal of the fined person, for the period specified in the original order made pursuant to s. 2(1) of the 1986 Act. The jurisdiction of the District Court to subsequently issue such a warrant for committal of the convicted person was pursuant to s. 23 of the Petty Sessions (Ireland) Act 1851 (“the 1851 Act”) and s. 1(1) of the 1991 Act. These provide, respectively:-

“23. In all cases of summary jurisdiction, whenever an order shall be made upon the conviction of any person for an offence, the justices shall issue the proper warrant for its execution forthwith when the imprisonment is to take place immediately, or at the time fixed by the order for the imprisonment to take place where it is not to be immediate, or directly upon the non payment of any penal sum or the non performance of any condition at the time and in the manner fixed by the order for that purpose, or at furthest upon the next court date after the expiration of the time so fixed for the imprisonment, payment, or performance of a condition, as the case may be, unless the imprisonment or penal sum shall have been remitted by the Crown or other competent Authority in the interval; and whenever an order shall be made in any case of a civil nature, and the same shall not be obeyed, the justice shall issue the proper warrant for its execution at any time after the time fixed for the compliance with its directions…”

“1. (1) Subject to subsection (2) of this section, in all cases of summary jurisdiction whenever an order has been made, upon the conviction of any person for an offence, for the payment of a penal sum or the performance of a condition and the penal sum has not been paid or the condition has not been performed, a warrant of committal to imprisonment for the non payment of the penal sum or the non performance of the condition may be issued by a justice of the District Court –

(a) not later than six months from the expiration of the time fixed by the said order for the payment of the penal sum or the performance of the condition…”

Fines (Payment and Recovery) Act 2014
15. As already stated, upon its commencement, the 2014 Act introduced an entirely new legislative scheme in relation to the amount of the fines to be imposed, the potential methods of payment, their recovery and the steps which may or must be taken by a court where the fines are unpaid and the jurisdiction to make orders for committal for imprisonment of a person in respect of an unpaid fine.

16. The first set of new provisions relate to steps which must be taken by a court in determining the amount of the fine to be imposed in respect of an offence. These are set out in s. 5. It is not necessary to set out the section in full, but merely to observe firstly, that a court, in determining the amount of the fine, is obliged to take into account the person’s financial circumstances and second that there are certain other relevant limitations and steps which a court may take to ascertain the person’s financial circumstances. These are all new provisions and did not apply to the fines imposed on the respondents.

17. The next change is that s. 6 of the 2014 Act gives to the fined person an option to pay the fine in a single payment or by instalments. The person on whom the fine is being imposed must be informed of the options. Again, the respondents did not have these options available to them in July 2015. It was then a matter for the court to specify the period within which the fine was to be paid.

18. It is important to note at this stage that, where a court imposes a fine in accordance with ss. 5 and 6 of the 2014 Act, those provisions do not envisage or make provision for an order to be made at the time of imposition of the fine for imprisonment in default of payment. The first section dealing with what is to occur if a person fails to pay the fine by the “due date for payment” is s. 7. “Due date for payment” is defined as follows in s. 2(1) of the 2014 Act:-

“(a) if the fined person has opted to pay the full fine under section 6(1)(a)(i), the date by which the fine is required to be paid in accordance with the order of the court that imposed the fine, and

(b) if the fined person has opted to pay the fine by instalments under section 6(1)(a)(ii), in respect of each such instalment, the date by which the instalment is required to be paid;”

“7.–(1) Subject to subsections (3) and (5), where a fined person fails to pay the fine by the due date for payment, the court shall, at the sitting of the court on the date specified in the notice concerned under subsection (4) served on the person (unless the person has paid the fine on or before that date) -

(a) subject to subsection (2), make a recovery order,

(b) make an attachment order, or

(c) make a community service order if section 4 of the Act of 1983 has been complied with.


(2) The court shall not make a recovery order in respect of the fined person (not being a body corporate) unless the fine or, as may be appropriate, that part of the fine that remains unpaid -

(a) exceeds such amount greater than €500 as may be prescribed, or

(b) if no such amount stands prescribed, exceeds €500.


(3) Where a fined person who has exercised his or her option under section 6(1)(a)(ii) to pay the fine by instalments fails to pay any such instalment (in this subsection referred to as the 'relevant instalment') by the due date for payment, it is not necessary for the court to take action under this section in respect of the failure unless -

(a) there are 2 other failures by the fined person to pay that fine by instalments by the due date for payment, or

(b) the relevant instalment has still not been paid when all other instalments have been paid.


(4) The appropriate court official concerned shall, by notice in writing served on the fined person, require the person to appear before the court on the date and at the time specified in the notice, and to provide to the court a statement in writing of his or her financial circumstances.

(5) (a) The court shall, after considering a statement provided to it pursuant to subsection (4) in deciding what order to make under subsection (1) -

(i) first, give consideration to making an attachment order in respect of the fined person, and

(ii) second, if it is satisfied that it would not be appropriate for it to make an attachment order in respect of the fined person, give consideration to making, subject to subsection (2), a recovery order or community service order in respect of the fined person.

(b) Where the court is satisfied that it would not be appropriate or it to make an attachment order, recovery order or community service order in respect of the fined person, it may commit the person to prison in accordance with section 2 or 2A of the Act of 1986.

(6) A notice under subsection (4) shall -

(a) inform the fined person of the orders that the court may make under subsection (1) in respect of the person and of the court’s power under subsection (5) to commit the person to prison, and

(b) state that a warrant may be issued for the arrest of the fined person if he or she fails to appear before the court as required by the notice.

(7) Where a fined person fails, without reasonable excuse, to appear before the court as required by a notice under subsection (4), the court shall, if satisfied that the notice was served on the person -

(a) issue a warrant for the arrest of the person, or

(b) if the court thinks it appropriate in all the circumstances, cause a further notice under subsection (4) to be served on the person specifying a new date for the person to appear before the court, and to provide it with the statement referred to in that subsection.


(8) A fined person arrested under subsection (7)(a) shall be brought before the next sitting of the court.

(9) A fined person who knowingly or recklessly makes a statement, in purported compliance with a notice under subsection (4), that is false or misleading in any material respect shall be guilty of an offence and shall be liable, on summary conviction, to a class B fine or imprisonment for a term not exceeding 6 months, or both.

(10) Rules of court shall prescribe the form of a statement referred to in subsection (4).”

21. Sections 8-13 of the 2014 Act, inclusive, include supplemental provisions in relation to recovery orders which may involve the appointment of an approved person or sheriff to effectively act as a receiver. Similarly, ss. 14-18, inclusive, are supplemental provisions in relation to the attachment order which may be made pursuant to s. 7(1) of the 2014 Act and s. 19 makes amendments to the Criminal Justice (Community Service) Act 1983 for the purpose of the community service orders which may be made pursuant to s. 7(1)(c) of the 2014 Act.

22. Section 20 of the 2014 Act makes significant amendments to the prior jurisdiction of the District Court, pursuant to s. 2 of the 1986 Act, to make orders for imprisonment in default of payment of fines. It does so by inserting the new provisions, ss. 1A and 2A, and by amending s. 2 by substituting a new subs.(1), and inserting new subss. (1A) and (1B) and making further consequential amendments to the remainder of s. 2 of the 1986 Act. Those include a new table of the permitted periods of imprisonment by reference to the amount of the fine. Where a fine is not greater than €500, the period is 5 days. Hence, the order made under s. 2 of the 1986 Act in July 2015 that Mr Dooley be imprisoned for 60 days could not now be made. Section 2(1), as substituted, is:-

“(1) Where a court is satisfied that—

(a) at the sitting of the court on the date specified in the notice concerned under section 7(4) of the Act of 2014—
(i) a person on whom a fine has been imposed consequent upon his or her summary conviction of an offence has not paid the fine by the due date for payment, and

(ii) it would not be appropriate to make a recovery order or attachment order in respect of that person,

(b) at the sitting of the court on the date specified in the notice concerned under section 11(2) of the Act of 2014, a receiver has been unable to recover—
(i) a fine imposed on a person consequent upon his or her summary conviction of an offence, or

(ii) a sum or sums from the proceeds of the sale of property belonging to that person sufficient to pay that fine,

or

(c) at the sitting of the court on the date specified in the notice concerned under section 16(3) of the Act of 2014, an attachment order made in respect of the earnings of a person has not resulted in the collection of a fine imposed on a person consequent upon his or her summary conviction of an offence,


and is also satisfied that, in relation to that person, the provisions of section 4 of the Criminal Justice (Community Service) Act 1983 have not been complied with, it may make an order committing the person to prison for a term not exceeding the appropriate period of imprisonment specified in the Table.”

24. The final relevant provision of the 2014 Act is s. 22, which inserts a new s.1A in the 1991 Act:

“1A. The operation of section 1 of this Act, and of section 23 of the Petty Sessions (Ireland) Act 1851, in so far as they relate to any penal sum referred to therein, shall, from the commencement of section 7 of the Fines (Payment and Recovery) Act 2014, be subject to the operation of the provisions of the Fines (Payment and Recovery) Act 2014 in so far as those provisions relate to such penal sum, and such section 1 and such section 23 shall, with all necessary modifications, be construed accordingly.”

26. In the courts below, there were submissions made and considered in relation to the principles according to which a legislative provision will be given a retrospective interpretation, including whether or not the changes made by the 2014 Act were substantive or procedural. It does not appear to me necessary to consider those, as s. 22 of the 2014 Act expressly addresses the operation of s. 1 of the 1991 Act and s. 23 of the 1851 Act in relation to a penal sum or fine after the commencement of s. 7 of the 2014 Act. The issue is how that provision should be interpreted.

Discussion and Decision
27. The principles applicable to the interpretation of a statutory provision such as s. 1A of the 1991 Act, as inserted by s. 22 of the 2014 Act, are well established. The Court must give effect to the ordinary and natural meaning of the words used by the Oireachtas in the context of the scheme and purpose of the relevant statutory provision: Howard v. Commissioner of Public Works [1994] 1 I.R. 101 and Charles McCann Ltd. v. Ó Culacháin (Inspector of Taxes) [1986] I.R. 196 per McCarthy J. at p. 201. In the context of the submissions made, another relevant principle is that effect must be given, if possible, to all the words used by the Oireachtas, as they are not considered to legislate in vain: Goulding Chemicals Limited v. Bolger [1977] I.R. 211 per O’Higgins C.J. at p. 226 and the authorities referred to therein.

28. The Court of Appeal laid emphasis on the fact that s. 1A of the 1991 Act refers to the operation of s. 1 of the 1991 Act and s. 23 of the 1851 Act “insofar as they relate to any penal sum referred to therein” (emphasis added). However, the appellants submit that the interpretation of s. 1A by the Court of Appeal fails to give effect to the subsequent words used by the Oireachtas in that section which make the operation of s. 1 of the 1991 Act and s. 23 of the 1851 Act subject to the operation of the provisions of the 2014 Act “in so far as those provisions relate to such penal sum”.

29. The interpretation of s. 1A of the 1991 is not without difficulty. I have considered carefully the draft judgment of Dunne J. which reaches a different conclusion on the interpretation of s. 1A of the 1991 to that in this judgment. I respectfully disagree with the conclusion she reaches for the reasons next set out.

30. There are, I would suggest, three features of the new s.1A, as inserted by s. 22 of the 2014 Act, with which the interpretation given it by the Court of Appeal and Dunne J. is not consistent. First, and most important, is that in accordance with the words used it only makes the operation of s. 1 of the 1991 Act and s. 23 of the 1851 Act subject to the provisions of the 2014 Act, insofar as “the provisions of the 2014 Act relate to such penal sum”. Secondly it is only s. 1 of the 1991 Act and s. 23 of the 1851 Act which are to be construed with “all necessary modifications”. Section 1A does not provide for the provisions of the 2014 Act to be operated in relation to the penal sums or fines in question with “all necessary modifications”. It would have to be applied in accordance with its express terms. Thirdly, I would draw attention to the fact that it only applies from the commencement of s. 7 of the 2014 Act, as distinct from the commencement of other sections of the 2014 Act, and in particular sections 5 and 6.

31. Of these three features, as stated, the most important is that words used by the Oireachtas which, in my view, have not been given effect to by the decision of the Court of Appeal are contained in the limiting phrase, “insofar as those provisions relate to such penal sum”. “[T]hose provisions” are the 2014 Act. Hence the issue is whether or not in February / March 2016, the 2014 Act applied to the fines imposed on the respondents. It is only if it does that the jurisdiction of the District Court under s. 1 of the 1991 Act and s. 23 of the 1851 Act is made subject to the operation of the 2014 Act.

32. A “penal sum” is not defined in the 1991 Act, nor in the 1851 Act. It is not a term used in the substantive provisions of the 2014 Act. However, it was not suggested nor submitted on these appeals that it has a meaning other than one which includes the fines which had been imposed on each of the respondents. It may also potentially include costs, but that is not relevant here.

33. Section 7 of the 2014 Act was commenced on 11 January 2016. Prior to that date, final orders had been made by the District Court which are not subject to any challenge in these proceedings in respect of (1) the amount of the penal sum or fine to be paid by each of the respondents; (2) the period during which it had to be paid and (3) the term of imprisonment to be served by each in default of payment of the fines in the specified period. Those orders had been made in July 2015. They are not challenged in this proceedings. All those orders were made under prior provisions and not under the 2014 Act or even s.2 of the 1986 Act as amended by the 2014 Act.

34. The issue is whether or not the provisions of the 2014 Act “relate to” the fines imposed on the respondents in July 2015, within the meaning of s. 1A of the 1991 Act, as inserted by s. 22 of the 2014 Act. My conclusion is that there is no provision of the 2014 Act which could, in accordance with its terms, have been considered in February or March 2016 to relate to the fines imposed on either of the respondents in July 2015 or indeed, to what steps may or should be taken in 2016 in relation to such unpaid fines, by reason of the prior July 2015 orders specifying the amount of the fine, the then expired period for payment and the term of imprisonment to be served upon default.

35. In reaching this conclusion, I have had regard to the provisions, firstly, of ss. 5 and 6 of the 2014 Act, which relate to the fines which may be imposed by a court under those sections. As already set out, those sections address both the amount of the fine which may be imposed and most particularly, give to a convicted person an option of whether they will pay the fine in a single amount or by way of instalments. Secondly to s. 7 and subsequent extensive provisions in relation to what a court must consider and steps it may be required to take before it reaches a point of making an order for the imprisonment of the fined person by reason of an unpaid fine or deciding on the term of imprisonment. None of these provisions applied at the time at which the July 2015 orders imposing the fines, specifying amounts, periods for payment and terms of imprisonment in default were made. The orders for specified terms of imprisonment in default of payment were made pursuant to s. 2 of the 1986 Act, prior to its amendment. The execution of those orders in the sense of committal to prison had not occurred. This required the issue of warrants pursuant to s. 23 of the 1851 Act and s. 1 of the 1991 Act to commit the respondents to serve the terms of imprisonment already imposed.

36. There is no provision in the 2014 Act which applies to the issue of a warrant for committal for unpaid fines where the term of imprisonment has already been determined as was the position of the respondents in February / March 2016.

37. Accordingly, I have concluded that the provisions of the 2014 Act did not apply in 2016 to the fines imposed on the respondents and hence s. 1A of the 1991 does not make the exercise by the District Court of its jurisdiction pursuant to s.1 of the 1991 Act and s. 23 of the 1851 Act subject to the operation of the 2014 Act.

38. I would make two further observations, First, the submissions made on behalf of the respondent, and one of the matters relied upon by the Court of Appeal, was a concern as to the purpose of s. 22 of the 2014 Act inserting s. 1A to the 1991 Act, if it was not intended to apply to the operation of s. 1 of the 1991 Act and s. 23 of the 1851 Act in relation to the issue of warrants in respect of fines imposed and unpaid and orders for imprisonment made prior to the commencement of the 2014 Act.

39. One such potential purpose to s. 1A of the 1991 Act may have been as follows. Whilst the Minister, as it happens, commenced the entire of the 2014 Act on one date, s. 1(2) of the 2014 Act permitted the Minister to appoint different days for the commencement of different sections. If the Minister had, for example, commenced ss. 5 and 6 (and any other relevant sections, including s. 20 amending s. 2 of the 1986 Act ) in relation to the determination of amounts of the fine and payment method in advance of commencing s. 7, which relates to what is to occur where there is a default in payment, then the modification made to s. 23 of the 1851 Act and s. 1 of the 1991 Act by s. 1A of the 1991 Act, as inserted by s. 22 of the 2014 Act, may have been necessary and would have applied in respect of fines which had been determined under ss. 5 and 6 of the 2014 Act but prior to the date upon which s. 7 was commenced. Without such a provision, it may have been open to argument that, as the fine imposed and date specified under ss. 5 and 6 occurred prior to s. 7 coming into force, if there was a default in payment on the date specified by the option exercised in s. 6 of the 2014 Act, a court had the option of issuing a committal warrant under s. 23 of the 1851 Act and s. 1 of the 1991 Act, rather than dealing with the matter under s. 7 of the 2014 Act. That purpose is, I think, made clear by the reference in s. 1A of the 1991 Act to the commencement of s. 7 of the 2014 Act, rather than to the commencement of the 2014 Act in full, or any part which includes ss. 5 and/or 6 thereof.

40. The second observation I wish to make is to query, if contrary to what I have concluded the jurisdiction exercised by the District Courts pursuant to s. 23 of the 1851 Act and s. 1 of the 1991 Act to issue warrants for the committal of the respondents to prison on 14 March 2016 and 17 February 2016, respectively, was subject to the provisions of the 2014 Act which provision of the 2014 Act then applied to the respondents and how? The High Court sought to resolve this by an order directing the Director of Public Prosecutions to initiate proceedings under s. 7 of the 2014 Act in respect of the unpaid fines of each respondent. The Court of Appeal vacated that order and said it was a matter for the Director to proceed as she believes appropriate. I have not been able to identify any application which could be made by the Director under the 2014 Act in relation to the respondents having regard to the July 2015 Orders and unpaid fines.

41. Accordingly, I would allow the appeals and vacate the orders of the Court of Appeal and the High Court quashing the orders made in the District Court on 14 March 2016 and 17 February 2016 for the issue of warrants for the committal of the respondents to prison as set out in those warrants.