Judgment
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: | Dunne J. |
Status: | Approved |
Result: | Appeal dismissed |
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| Judgments by | Link to Judgment | Concurring | Dissenting | Clarke C.J. | | McKechnie J., O'Malley Iseult J. | Finlay Geoghegan J. | Dunne J. | | Clarke C.J., McKechnie J., O'Malley Iseult J. | | Finlay Geoghegan J. | | | | |
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THE SUPREME COURT[Appeal No. 17/2018]
Clarke C.J.
McKechnie J.
Dunne J.
O'Malley J.
Finlay Geoghegan J.
BETWEEN
GAVIN OWENS
RESPONDENT
AND
THE DIRECTOR OF PUBLIC PROSECUTIONS, THE COMMISSIONER OF AN GARDA SÍOCHÁNA AND THE MINISTER FOR JUSTICE AND EQUALITY
APPELLANTS
[Appeal No. 18/2018]
BETWEEN
PATRICK DOOLEY
RESPONDENT
AND
THE DIRECTOR OF PUBLIC PROSECUTIONS, THE COMMISSIONER OF AN GARDA SÍOCHÁNA AND THE MINISTER FOR JUSTICE AND EQUALITY
APPELLANTS
Judgment of Ms. Justice Dunne delivered the 27 day of May 2019
1. The law in relation to the payment and recovery of fines was the subject of significant reform with the enactment of the Fines (Payment and Recovery) Act 2014 (hereinafter referred to as "the Act of 2014"). The Act of 2014 was commenced on the 11th January, 2016. The Act of 2014 made provision for a court to have regard to a person’s financial circumstances when considering the imposition of a fine, provided for the payment of fines by a single payment or by instalments, and provided for a further court hearing in circumstances where there had been a failure to pay the fine or any instalment of the fine. At such hearing, the court concerned is required to consider the fined person’s financial circumstances and is obliged either to make a recovery order, an attachment order or a community service order in the event of non-payment of the fine. It is only if the court is satisfied that it would not be appropriate to make such an order that the court may commit a person to prison in default of payment. It will be seen that the thrust of the legislation is to expand the options available for the recovery of fines and to reduce the number of people imprisoned by reason of their default in paying a fine imposed following court proceedings.
The proceedings
2. Mr. Owens and Mr. Dooley (hereinafter referred to as the Respondents) brought judicial review proceedings seeking to quash committal warrants issued against each of them for non-payment of fines. The High Court (Eager J.) in a judgment of the 5th May, 2017 quashed the committal warrants issued against the Respondents. They had contended that the provisions of the 2014 Act were applicable to them notwithstanding that the time for payment of their fines had expired before the commencement of the 2014 Act in circumstances where the committal warrants issued after the commencement of the 2014 Act. The High Court accepted the submissions of the Respondents and quashed the committal warrants. The appellants appealed to the Court of Appeal and that Court dismissed their appeals. The appellants then sought leave to appeal and this Court in a determination of the 10th April, 2018 granted the appellants leave to appeal in each case in respect of the following issue:
". . . whether unpaid fines that had been imposed by way of sentence before the coming into force of the Fines (Payments and Recovery) Act 2014 should, after that date, be dealt with under that measure or under the law as it stood at the time of sentence."
Background
3. The Respondents had each brought proceedings for judicial review challenging the validity of the committal warrants against them but as can be seen their cases were heard at the same time in the High Court and thereafter, given that the same issue arose for determination in each case. It would be helpful at this point to set out some details of the background in respect of each of the Respondents. Mr. Dooley was convicted on the 22nd July, 2015 of four separate offences contrary to s. 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001 and was ordered to pay fines of €500 in respect of each of the offences, within a period of ninety days. In accordance with the law then in force, (s. 2 of the Courts (No. 2) Act 1986) (hereinafter referred to as the Act of 1986) he was to be imprisoned for a period of sixty days in default of paying the fine within the time permitted.
4. Mr. Owens was convicted on the 3rd July, 2015 of an offence contrary to s. 56 of the Road Traffic Act 1961 and was sentenced to a fine of €500 to be paid within a period of four months. In his case it was provided that in default of paying the fine he was to be imprisoned for a period of five days.
5. Neither of the Respondents appealed their sentence or challenged the proceedings in which the sentence was imposed. Each of them failed to pay the fine imposed within the periods set by the District Court. In each case the default period had elapsed prior to the commencement of the Act of 2014 on the 11th January, 2016. Committal warrants were issued on the 17th February, 2016 in the case of Mr. Dooley and on the 14th March, 2016 in the case of Mr. Owens. It is not in dispute that had the committal warrants been issued and executed prior to the commencement of the Act of 2014 each of the Respondents would have been liable to imprisonment having regard to the terms of the sentences imposed on them.
Judgments of the High Court and the Court of Appeal
6. The key issue that had to be determined by the High Court and subsequently in the Court of Appeal was whether the Act of 2014 applied retrospectively or prospectively. The Respondents contended that the Act of 2014 applied retrospectively such that its provisions applied to those sentenced, fined and in default of payment prior to the commencement of the Act while the appellants contended that the Act of 2014, having regard to the presumption against retrospectivity, should be read prospectively. In the course of his judgment the High Court judge stated at para. 27:
"This Court finds that the State has not explained how a prospective application of the 2014 Act, effectively creating two different processes for those subject to fines before and after the commencement of the 2014 Act, would not lead to unfairness and injustice. Such an application would deprive the present applicants, and society, of the benefits brought about by the 2014 Act. The committal warrants in question issued when the 2014 Act was in force."
Thus, he was satisfied that it was appropriate to quash the committal warrants.
7. The Court of Appeal (Birmingham J., Mahon J. and HediganJ) in the course of its judgment (delivered by Mahon J.) examined in some detail the legislative history preceding the Act of 2014 in relation to the enforcement of fines. Consideration was given to the purpose behind the Act of 2014 and it was noted at para. 26 of the judgment as follows:
"The introduction by the legislature of the 2014 Act was primarily prompted by a desire to reduce the extent to which defaulters of fines imposed by the Courts found themselves incarcerated in prison and, usually, in practice, because of prison over-crowding, then being freed almost immediately. The cost and inconvenience for the gardaí and the prison authorities was considered to be needlessly high. The enactment of the 2014 legislation was preceded by an almost unified political and public demand for an alternative system for the collection and enforcement of fines compared to the then existing system which was heavily reliant on imprisonment."
8. Having examined the terms of the statute itself and having considered the presumption against retrospectivity the Court of Appeal concluded that the changes brought about by the Act of 2014 were procedural in nature and that the Respondents were entitled to the benefit of the procedures introduced by the Act of 2014. It was noted by the Court at paras. 46 and 47 as follows:
"46. In the instant cases, the convictions of both respondents occurred prior to the commencement of the 2014 Act, and it was not a case of a person being found guilty of an offence created by a new piece of legislation which had not been an offence prior to the enactment of that legislation. Sanctions imposed on the respondents, being the imposition of fines, were not altered by the new legislation. What was altered was the process by which such fines would be collected. The process introduced by the 2014 Act had the prospect of imprisonment for non-payment being rendered much less likely than if that legislation had not been enacted, or if the pre 2014 Act procedure continued to apply subsequent to its commencement. The fact that the new enforcement procedure applies to fine defaulters, such as the respondents, is to their benefit.
47. It seems to me that the process provided for in the 2014 Act for the enforcement of fines is concerned with procedure. Its intent is similar to that provided for in the pre 2014 legislation procedure in that both were designed to enforce the payment of fines imposed by the Courts in respect of criminal offences. All that has happened since the commencement of the 2014 Act, and more particularly in the instant cases, is that a new, albeit more complex and lengthy procedure to collect unpaid fines has been introduced by the legislature."
The Act of 2014
9. In order to follow the arguments made in the course of the hearing it would be helpful to set out some of the provisions of the Act of 2014. In the first instance, it was provided in s. 1 of the Act of 2014 that the Act would come into operation on such day or days as the Minister may appoint. As mentioned previously, ultimately the commencement date in respect of the Act of 2014 was the 11th January, 2016. It should be noted that the entire Act was commenced on that date.
10. Section 2 of the Act is the interpretation section and insofar as the "due date for payment" it is provided that:
11. Part 2 of the Act is headed "Capacity to Pay Fine, Payment of Fine by Instalments and Failure to Pay Fine". Section 5(1) states as follows:
"The purpose of this section is to ensure, in so far as is practicable, that, where a court imposes a fine on a person, the effect of the fine on that person or his or her dependants is not significantly abated or made more severe by reason of his or her financial circumstances."
12. The Court of Appeal in its judgment at para. 26 observed:
"The introduction by the legislature of the 2014 Act was primarily prompted by a desire to reduce the extent to which defaulters of fines imposed by the Courts found themselves incarcerated in prison and, usually, in practice, because of prison over-crowding, then being freed almost immediately. The cost and inconvenience for the gardaí and the prison authorities was considered to be needlessly high. The enactment of the 2014 legislation was preceded by an almost unified political and public demand for an alternative system for the collection and enforcement of fines compared to the then existing system which was heavily reliant on imprisonment."
It is undoubtedly the case that the Act set out to provide alternative methods for the payment and recovery of fines by means of new methods of collection long since available in areas of civil debt collection such as payment by instalments, the appointment of receivers, and the making of attachment orders together with the alternative of making community service orders in default of payment of the fine. It is clear that in enacting the legislation the intention of the Oireachtas was to reduce the number of people imprisoned by reason of non-payment of fines.
13. Section 7 of the Act sets out the procedure to be followed in the event that there has been a failure to pay the fine by the due date. It provides as follows:
"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 -
(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 -
(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 for 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)."
At the heart of the arguments in this case is a contention on behalf of the Respondents that they are entitled to avail of the procedures provided for in s. 7 as they are persons who have failed to pay a fine.
14. Section 19 makes a number of amendments to the Criminal Justice (Community Service) Act 1983 and s. 20 of the Act of 2014 makes a number of amendments to the Courts (No. 2) Act 1986. It is not necessary at this stage to set out in detail the provisions of those two sections of the Act. The final section to which I wish to refer is s. 22 of the Act of 2014 which contains the following amendment of the Courts (No. 2) Act 1991 (hereinafter referred to as "the Act of 1991"):
"The Courts (No. 2) Act 1991 is amended by inserting the following section after section 1:
“Restriction of operation of section 1 and of section 23 of Petty Sessions (Ireland) Act 1851
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.”
15. Given that the provisions of s. 22 of the Act of 2014 have been the subject of much discussion in the course of the hearing before this Court and before the Court of Appeal, it would also be useful to set out the provisions of s. 1 of the Act of 1991 which was amended by s. 22 by the addition of s.1A. Section 1 of the Act of 1991 provides as follows:
"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 nonpayment of the penal sum or the nonperformance of the condition may be issued by a justice of the District Court -
(2) This section shall apply notwithstanding either -
An observation
16. The Court of Appeal in its judgment at para. 39 made reference to the amendment to the Petty Sessions (Ireland) Act 1851 brought about by the Act of 1991 in the following terms:
"Section 23 of the 1851 Act was amended by s. 1 of the 1991 Act by providing for a period of not more than six months after the expiration of the time provided for the payment of the fine in which a warrant may be issued. Section 1 of the 1991 Act also provided for retrospectivity in respect of Court orders made prior to its enactment. In respect of such orders s. 1(1)(b) of the 1991 Act effectively provided an additional six month period for the issue of a warrant for the non payment of a fine where the period directed for the payment of the fine had not expired between the 1st July 1989 and the date of passing of the 1991 Act, being the 16th July 1991. Section 1 of the 1991 [Act] provided clarity as to retrospectivity and its extent."
17. It might be observed at this stage that the Act of 2014 could not be described as having provided "clarity as to retrospectivity and its extent" as contrasted with the provisions of the Act of 1991, as noted by the Court of Appeal.
Submissions and discussion
18. Leaving aside for a moment certain specific criticisms made by the appellants of the judgment of the Court of Appeal, the arguments of both the Appellants and the Respondents centre on the interpretation of the provisions of s. 22 of the Act of 2014 which inserted s.1A into the Act of 1991.
19. The relevant phrases at issue in s. 1A are the phrases "any penal sum" and "such penal sum" as used therein. The Court of Appeal accepted the argument of the Respondents to the effect that the reference in s. 1A to "to such penal sum" as used in s. 1A is one and the same as the term "any penal sum" referred to in the first part of s. 1A. The Court of Appeal rejected the argument of the Appellants to the effect that the reference to "such penal sum" could not refer to a fine imposed prior to the commencement of the Act of 2014 in circumstances where "the orders for the imposition of such fines carried a term of imprisonment in default in the absence of payment". The Court of Appeal was of the view that if that interpretation was correct, then s. 22 of the Act of 2014 was superfluous. It was on that basis that the Court of Appeal came to the conclusion that there was no explanation for the inclusion of s. 22 of the Act of 2014 other than for the purposes of creating retrospectivity.
20. The Appellants in their submissions contends that the interpretation of the Court of Appeal ignores the latter part of s. 1A which requires the operation of s. 1 of the Act of 1991 and of s. 23 of the Act of 1851 to 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 . . . ". In other words, it is contended that there is a limitation created by the words of the section by the use of the phrase "in so far as those provisions relate to such penal sum". It is contended on behalf of the Appellants that the interpretation of the Court of Appeal in respect to the phrase "any penal sum" and "such penal sum" cannot be correct in circumstances where periods of imprisonment in default had already been determined and the period for payment had passed prior to the commencement of the Act of 2014. It was pointed out that the provisions of the Act of 2014 could not have been complied with when the sentences were imposed on the Respondents, or when the sentences of imprisonment became operative given that the Act was not then in force. It is further argued that as all of the steps that require to be taken from the determination of the fine, the means of enforcement and the imposition of a sentence of imprisonment have changed by virtue of the Act of 2014. It is said that those provisions cannot relate to fines imposed and default periods of imprisonment fixed prior to the commencement of the Act. Therefore it is contended that s. 1A cannot be applicable to a warrant issued in respect of non-payment where the default of payment occurred prior to the commencement of the Act. Any other interpretation would necessarily involve a different sentence of imprisonment being imposed in default of payment in circumstances where there is no question as to the invalidity of the period of default previously imposed.
21. Finally, the Appellants dispute the characterisation of the process contained in the Act of 2014 for the enforcement of fines as being simply concerned with procedure. They say this characterisation is incorrect. It is contended that the steps required by the Act of 2014 before the imposition of a fine are matters of substance, which in the event of default and non-payment, can lead to imprisonment.
22. The Respondents take issue with the submissions of the Appellants in respect of the interpretation of s. 1A. They are critical of the fact that the Appellants have now put forward lengthy arguments as to the interpretation of s. 1A in circumstances where no such argument was advanced in the Court of Appeal. In effect, they say that the argument now being made on behalf of the appellants is a circular argument to the effect that s. 1A provides that fines subject to the Act of 2014 shall be subject to the provisions of the 2014 Act. This is characterised by the Respondents as stating the obvious. Such an interpretation would, as considered by the Court of Appeal, render the inclusion of s. 22 in the Act of 2014 meaningless. The main contention on the part of the Respondents is that s. 1A provides that any fine subject to the operation of the Acts of 1991 and 1851 is intended to be subject to the provisions of the Act of 2014 from the commencement of s. 7. They point out that this is why there is a connection between the phrase "any penal sum" and "such penal sum" in the section. It is argued that the phrase "any penal sum" describes a fine subject to the Acts of 1991 and 1851 whereas the use of the word "such" makes it clear that this is the category of fines being referred to in the section once more. It is pointed out that the explanation for this use of language is because the Acts of 1991 and 1851 only applied to fines imposed by summary courts whereas the Act of 2014 as a whole applies to fines imposed in the District Court and on indictment. Accordingly, it is argued that the use of the words "insofar as those provisions relate to such penal sum" simply limits the adaptation of the provisions of the Acts of 1991 and 1851 to summary fines as opposed to those imposed on indictment. Based on this interpretation of the provisions of s. 1A of the Act of 2014, it is contended that the purpose of s. 1A as inserted in the Act of 1991 is to ensure that the provisions of the 2014 Act apply to pre-existing fines previously imposed.
23. Having regard to the arguments made on behalf of the parties, it would be helpful to refer briefly once again to the provisions of s. 1 of the Act of 1991. The first thing to note is that it applies "in all cases of summary jurisdiction whenever an order has been made for the payment of a penal sum and the sum has not been paid". In those circumstances after the period of time fixed for the payment of the penal sum has elapsed without payment, a warrant of committal to imprisonment for non-payment may be issued by the District Court. Specifically, s. 1 limits the possibility of issuing such a warrant to a period not later than six months from the expiration of the time fixed for payment. Section 1 of the Act of 1991 was an amendment of s. 23 of the Petty Sessions (Ireland) Act 1851 which did not contain the same specific time limit as to when a warrant could be issued but, rather, provided that in the case of non-payment of a penal sum could be issued "directly" or "at furthest upon the next court date after the expiration of the time so fixed for the . . . payment". Thus, two things are clear. First, s. 23 of the Act of 1851 and s. 1 of the Act of 1991 expressly apply to cases of summary jurisdiction only. Second, the Act of 1991 imposed a period of six months after the expiration of the time for payment within which to issue the warrant. Thereafter, a warrant could not be issued.
24. What then is the effect of s. 1A on the provisions of s. 1 of the Act of 1991? It appears to me that the effect of s. 1A on s. 1 of the Act of 1991 is best seen by looking at what the two provisions seek to achieve. S. 1 of the Act of 1991 is not repealed. Its operation has been modified by the insertion of s. 1A into the Act of 1991 by the Act of 2014. As has been pointed out, s. 1 allows a court of summary jurisdiction to issue a warrant of committal to imprisonment for non-payment of the penal sum when the time for payment has expired. As a result of the insertion of s.1A, the issuing of a warrant is, from the date of commencement, subject to the operation of the provisions of the Act of 2014 insofar as those provisions relate to a penal sum and s. 1 "with all necessary modifications" shall be construed accordingly. It should be noted that s. 1 refers not only to the payment of penal sums but also made provision for imprisonment in the case of a person convicted of an offence who is required to perform a condition and has not done so. Therefore, looking at the provisions of s. 22 which inserted s. 1A into the Act of 1991, it seems to me that the effect of s. 22 is that s. 1A applies from the date of commencement of the 2014 Act to those cases where a fine has been imposed but not paid prior to the commencement of the Act of 2014. In my view, and indeed as is apparent from the heading of s. 1A as inserted by s. 22 of the Act of 2014, the purpose of s. 1A was to restrict the operation of s. 1 of the Act of 1991. I cannot see what other purpose could be achieved by the insertion of s. 1A. Thus, a court of summary jurisdiction cannot now issue a committal warrant without first applying the provisions of the Act of 2014. It follows that I accept the arguments of the Respondents in relation to the meaning of the phrases “any penal sum” and “such penal sum” found in s. 1A.
25. Such an interpretation is not without difficulty. Under the sentences originally imposed on the Respondents, Mr. Dooley was to be imprisoned for a period of sixty days in default of paying the relevant fines. Mr. Owens was to be imprisoned in default to a period of 5 days. Given that Mr. Owens or Mr. Dooley, did not comply with the sentence of the District Court, to what extent are they covered by the provisions of the Act of 2014? As pointed out on behalf of the Appellants, the period of imprisonment for which they can now be imprisoned in default has been altered significantly by the amendment brought about by s. 20 of the Act of 2014 to s. 2 of the Act of 1986. It is clear, having regard to the provisions of the Act of 2014 as a whole, that before any such term of imprisonment can be imposed on a person who has not paid a fine, following the commencement of the Act of 2014, the process set out in s. 7 of the Act of 2014 must be complied with. None of these requirements of the Act of 2014 would have been applicable to the Respondents when the fines on them were imposed. Nevertheless, I find it difficult to disagree with the contention put forward on behalf of the Respondents to the effect that such an outcome was intended by the legislature by its use of the phrase which is to be found in s. 1A "with all necessary modifications". If the provisions of s. 22 of the Act of 2014 in inserting a new s. 1A into the Act of 1991 have the effect of ensuring that the new provisions envisaged by the Act of 2014 apply to fines imposed before the commencement of the Act, but in respect of which a warrant has not yet been executed on foot of a default, then it may be that one of the necessary modifications is a modification to the period of imprisonment that can be required to be served notwithstanding that there was in existence a valid order of the District Court imposing a longer default period. In any event, a necessary modification is the requirement to comply with the provisions of s. 7 of the Act of 2014 before a warrant can issue Therefore, it seems to me that the phrase “with all necessary modifications” imposes an obligation on the District Court prior to issuing a warrant under s. 1 of the Act of 1991 and s. 23 of the Petty Sessions (Ireland) Act 1851 to operate the provisions of the Act of 2014 in respect of a person fined and in default, notwithstanding that the period of default expired before the commencement of the Act of 2014.
26. Undoubtedly, such a view would imply that the Act of 2014 has retrospective effect in respect of those individuals who were fined prior to the commencement of the Act and in respect of whom a warrant for committal in default of payment of the fine had not issued prior to the commencement of the Act.
27. The parties have put before the Court a number of authorities in relation to the issue of retrospectivity. Both parties have referred to a decision of this Court in which I give judgment in the case of Rowan v. Kerry County Council [2018] IESC 2 where I stated at para. 15:
"There is a large measure of agreement between the parties as to the principles applicable to the question as to whether legislation can apply retrospectively. Further, neither party disagrees with the proposition that the same approach should apply to a change brought about by a constitutional amendment. Thus, it is agreed that a statute may have retrospective effect either as a consequence of an express provision to that effect or where the change brought about by the legislation is procedural and does not affect or impair vested rights."
28. One might say that in this case there is also little in the way of dispute between the parties on the legal principles as to retrospectivity and the constitutional presumption against retrospectivity. There is dispute as to the application of the principles. The appellant contends that the changes brought about by the Act of 2014 are substantive rather than merely procedural. The appellants note the finding by the Court of Appeal that the effect of the Act of 2014 was to bring into being a more benign enforcement procedure and it is said that that cannot avail the Respondents as their cases had reached a substantive determination before the commencement of the Act of 2014. They go on to say in the written submissions as follows:
"Retrospectivity would require the clearest indication from the Oireachtas that such application was intended. No such intention can be gleaned from the 2014 Act. In fact, it runs counter to the general provisions and procedures of the Act and to the manner in which the changes to the 1986 and 1991 Acts (as amended and substituted) are now structured. The fact in addition that the 2014 Act does not affect any vested right of the respondents, a matter admitted by them, is neither here nor there. They argue for retrospectivity characterising the issue as one only involving a procedural matter i.e. the means of enforcing a fine. What precludes retrospectivity however in this case is the absence of statutory intention to do just that and the fact that what the respondents are in truth calling for is retrospective application of substantive provisions/measures and not merely the application of purely procedural provisions."
29. It is certainly the case that the provisions of s. 22 of the Act of 2014 could have been expressed with greater clarity. The contrast between the provisions of s. 22 and the previous amendment to the Act of 1991 have already been referred to. The presumption against retrospective legislation was articulated in a number of cases including Chestvale Properties Limited v. Glackin [1993] 3 I.R. 35 in which it was said at p. 43:
"Legislation is said to operate retrospectively where it 'takes away or impairs a new obligation, or imposes a new duty, or attaches a new disability in respect to transactions or considerations already past'. This definition has been accepted and applied by the Supreme Court in Hamilton v. Hamilton [1982] I.R. 466."
Reference was also made to a number of authorities including Cork County Council and Froggat & Ors. v. Slattery Pre Cast Concrete & Ors. [2008] IEHC 291, DPP v. McDermott [2005] 3 I.R. 378, and Toss Limited v. District Court Justice Ireland [1987] 11 J.I.C. 2401.
30. It was suggested by the Respondents that the effect of the amendment brought about by s. 22 of the Act of 2014 did not alter the underlying fine imposed by the District Court. The amendment, it was suggested, related only to the mechanism by which the obligation is enforced.
31. I think it is fair to say that the underlying obligation of the Respondents, i.e. to pay a fine, has not been altered in any way by the provisions of the Act of 2014 but it is undoubtedly the case that significant changes have been brought about to the mechanism for enforcing payment. It is clear that the purpose behind the amendment is to lessen the likelihood of persons who do not pay fines imposed within the time provided being committed to a period of imprisonment. It seems to me that the intention of the Oireachtas to give retrospective effect to the provisions of the Act of 2014 is discernible from the terms of s. 22 albeit that it might have been helpful if the matter had been expressed more clearly. In this context it would be useful to refer to one other passage from the decision in Chestvale Properties Limited. v. Glackin [1992] 3 I.R. 35 at p. 43where it was said:
"At common law there was a presumption, a strong presumption, that a statute is intended by Parliament to operate prospectively and not retrospectively. This presumption is based on the proposition that, ordinarily, the retrospective operation of a statute would cause injustice and that Parliament could not be presumed to have intended such a consequence."
32. The presumption against retrospectivity has been stated strongly and repeatedly in a number of the authorities to which I have referred previously. This is not a case where the effect of the retrospective legislation will create any injustice for the Respondents who, after all are the parties who would be affected by it, but on the contrary, will benefit from a more benign regime as was pointed out by the Court of Appeal. Thus this is far removed from the situation that the retrospective operation of the statute would cause injustice. This is a relevant factor in considering the issue of retrospectivity.
33. A further issue concerns the debate between the parties as to whether the change brought about by s. 22 of the Act of 2014 could be described as substantive rather than procedural. For my part, I would be of the view that the modifications made to the provisions of s. 1 of the Act of 1991 by the insertion of s. 1A are substantive rather than procedural given that one of the effects of the modifications is to reduce the period of imprisonment that can be served in default of payment. Having said that, in circumstances where the legislation is retrospective in effect but far from creating an injustice, brings about a more benign approach to the enforcement procedures for non-payment of fines, I cannot see how the presumption against retrospectivity could be applicable.
34. I have had the opportunity of reading in draft from the judgment about to be delivered by Ms. Justice Finlay Geoghegan. As will be seen, we have come to different conclusions on the outcome of this appeal. In her judgment she places significant reliance on the provisions of s.20 of the Act of 2014 which amended the provisions of s. 2 of the Act of 1986 by substituting a new s. 2 in the Act of 1986. It would be helpful to set out s. 2 of the 1986 Act as it was before the substitution of the new provision contained in s. 20 of the Act of 2014:
“S. 2 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.”
S2. As amended by s. 20 of the Act of 2014 now reads as follows:
"2(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-
(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-
(c) At the sitting of the court on the date specified in the notice concerned under s. 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 appropriate period of imprisonment specified in the Table.”
There are a number of observations to be made at this point. Under the provisions of s. 2 prior to its amendment, the court, on a summary conviction when it was imposing a fine, gave time for the payment of the fine and at the same hearing, specified the period of imprisonment to be served in default of payment in accordance with the Table set out therein. Clearly, the warrant could not issue until there had been a default. To give effect to the term of imprisonment, a warrant of committal had to be issued to give effect to the order of the Court. The form of Warrant to be used was set out in the District Court Rules 1997 at Form no 25.5 in accordance with O. 25, r. 2 (a) of the District Court Rules 1997.
It will be noted that s. 2 of the Act of 1986 now provides that the court “may make an order committing the person to prison…” Thus, it would now appear that a court may use the provisions of s.2 of the Act of 1986 not just to order the imprisonment of a person in default but to commit the person to prison, provided the measures referred to in the Act of 2014 have failed to result in the recovery of the fine imposed. This is reflected in the Rules brought in to give effect to the Act of 2014.(S.I.19/2016 District Court (Fines) Rules). These Rules have amended the 1997 by way of substitution so that Order 25 r. 2 of the 1997 Rules as amended now reads as follows:
"2(1) In all cases of summary jurisdiction whenever an order has been made upon the conviction of any person of an offence under s. 2(1) of the Courts (No. 2) Act 1986 or s. 1 of the Criminal Justice Administration Act 1914 committing a person to prison, the Court may issue a warrant of committal to imprisonment forthwith at any time not later than six months from the date on which the said order was made.
(2) In all cases of summary jurisdiction whenever an order has been made upon the conviction of any person of an offence for the performance of a condition and that condition has not been performed, the Court may, upon the application of the prosecutor, issue a warrant of committal to imprisonment for the non-performance of the condition (Form 25.7 Schedule B) at any time not later than six months from the expiration of the time fixed by the said order for the performance thereof."
The warrant of execution to commit in default of payment of penalty provided in the 1997 District Court Rules prior to their amendment by the 2016 Rules were headed: "Warrant of Execution (to commit in default of payment of penalty)" and no reference was made to the statutory basis upon which the warrant issued. It is interesting to note that in considering the basis of the jurisdiction for the warrant under the previous Rules, Woods on District Court Practice and Procedure in Criminal Cases at page 265 contains the following observation under the heading "Warrant for non-payment of fine or non-performance of a condition":
"The Courts (No. 2) Act 1991, s. 1(1) provides that 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 prison for the non-payment of the penal sum or the non-performance of the condition may be issued 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."
It would appear therefore that the basis of the jurisdiction to issue a warrant of committal, prior to the commencement of the 2014 Act and the amendment brought about by s. 20 thereof, was pursuant to the 1991 Act. It is interesting to note the comments of Walsh on Criminal Procedure (2nd Ed.) at paragraph 24 -70 where he states:
"There is provision in cases of summary jurisdiction for the issue of a warrant of committal to imprisonment where a fine or condition imposed on conviction has not been paid or performed more than six months after it was imposed. Insofar as they relate to the payment of any penal sum, however, they are subject to the operation of the provisions of the 2014 Act."
In this regard he cites as authority the provisions of s. 22.
Finlay Geoghegan J. in the course of her judgment observed at para. 36 that:
“Prior to the commencement of the 2014 Act, such jurisdiction was given the District Courts by s. 23 of the 1851 Act and s. 1 of the 1991 Act. Thus, the scheme of the 2014 Act does not appear to preserve, in relation to fines to which the 2014 Act applies, the exercise of a jurisdiction pursuant to these sections. It rather appears that the full jurisdiction to commit a person in respect of unpaid fines is now ultimately contained in s. 2 of the 1986 Act, albeit as substituted by s.20 of the 2014 Act.”
I have no difficulty with that statement insofar as it sets out the position that now applies following the commencement of the 2014 Act. What I find I cannot agree with is the later view expressed at paragraph 39 of the judgment of Finlay Geoghegan J. to the effect that one potential purpose of s. 22 may have been to deal with the possibility that some sections of the 2014 Act might have been commenced prior to the commencement of s. 7 of the 2014 Act. To my mind, this interpretation renders s. 22 redundant. Rather, it seem to me that s. 22 was intended to provide the regime created by the 2014 Act to fines imposed prior to the commencement of the 2014 Act, which were in default of payment. Prior to the commencement of the 2014 Act, the power to commit to prison came from the provisions of the 1991 Act. Those provisions have now been restricted and cannot now be availed of to commit a fined person in default of payment without being subject to the provisions of the 2014 Act. I have come to the conclusion that it was intended by the Oireachtas that a person who previously could have been imprisoned in default of payment would not now be imprisoned on foot of a warrant of committal without affording them the opportunity to avail of the regime provided for in s. 7 of the Act notwithstanding that the fine was imposed prior to the commencement of s. 7 of the 2014 Act. For that reason, I have respectively come to a different conclusion to my colleague.
One final observation. In the course of the judgment in the High Court the following observation was made at para. 27:
"This Court finds that the State has not explained how a prospective application of the 2014 Act, effectively creating two different processes for those subject to fines before and after the commencement of the 2014 Act, would not lead to unfairness and injustice. Such an application would deprive the present applicants, and society, of the benefits brought about by the 2014 Act. . . .
29. Counsel for the [appellant] have failed to show how a prospective reading of the legislation would be practically workable. They have not adequately dealt with the administrative difficulties that would arise if the Court were to read the legislation prospectively. They have not responded to counsel for the [respondents’] submissions that such a reading would in effect create a two-tiered process. It has not been argued how any such reading would be constitutionally sound. In light of counsel for the [appellants] choosing not to refer to section 1A, where explicit provision was made for the retrospective application of this legislation, this Court finds itself in accord with counsel for the [respondents], in describing the State’s arguments as somewhat of a forensic confection."
Counsel for the appellants has taken issue with these passages and I would simply make this observation. The fact that the Act of 2014 could, if the arguments of the appellants had been successful, give rise to a "two-tiered" system would not in my view of itself have amounted to unfairness and injustice. There are many circumstances in which, by reason of amending legislation, different procedures, processes and outcomes may apply to persons depending on when legislation has been enacted and depending on which statutory provision is applicable to them be it the old or the new provision. This is something that can happens when legislation is amended and there is nothing per se wrong in this.
Conclusions
35. I have come to the view that the provisions of s. 22 of the Act of 2014 insofar as they insert a new s. 1A are retrospective in effect and are applicable to the Respondents herein. The Respondents are entitled to avail of the procedures provided for under the Act of 2014 in circumstances where the procedure for the collection of fines has been altered significantly by the Act of 2014. The commencement of the Act of 2014 took place before any warrant was sought to be issued in the District Court in respect of the default periods of imprisonment provided for. That being so it seems to me that the meaning of s. 1A requires that they be processed as if they had been fined under the Act of 2014. No injustice is caused by the retrospective effect of the legislation.
36. Accordingly, in all the circumstances I would dismiss the appeal.