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Law Society Gazette: 'Prison should only ever be the last resort'

11th March 2011

Imprisonment should only be reserved for the most serious offences and for those offenders who present an ongoing risk to society. This is one of the core messages of the Irish Penal Reform Trust, and to that end, we welcomed moves by the outgoing Government to end the practice of imprisoning people for failure to pay court-ordered fines, and, more recently, the introduction of legislation aimed at reducing imprisonment for minor offences. 

Fines Act 2010

The Fines Bill 2009 was passed by the Dáil on 2nd March, 2010 and signed into law by the President, Mary McAleese on 2nd June 2010; and the Criminal Justice (Community Service)(Amendment) Bill 2011, which would require judges to consider community service for those offences which would normally receive a custodial sentence of 6 months or less, was published on 12th January 2011. These moves are in line with international recognition that short sentences do more harm than good; the moves would also release pressure on a chronically overcrowded, costly and currently ineffective prison system.

However, earlier this month, it was revealed in a Dáil question asked of the current Minister for Justice and Law Reform, Brendan Smith, that a shocking 6,681 people had been imprisoned for fines default in 2010 – despite the enactment of the Fines Act 2010.(The exact figure is subject to change as statistics are currently being finalised by the Irish Prison Service for their annual report.) It became clear that eight months after the legislation was signed into law by the President, and almost 11 months after the Fines Bill was passed by the Dáil, the fines legislation – which had been welcomed by all parties and agencies as urgent, necessary and a common sense response to fines default – was still not yet fully commenced. The reason cited is that the Courts Service ICT System is not yet ready to facilitate the payment of fines by instalment, provided for in Section 15 which allows for the payment by instalment of a fine over a 12-month period (and, exceptionally, over a 2 year period).  In the meantime, thousands continue to be imprisoned where trial judges have determined the initial offence to merit only a financial penalty. Section 14 of the Act, which requires the court to take into account the person’s financial circumstances before determining the amount of the fine has, however been commenced.

Imprisonment for fines has soared in recent years, from 1,335 in 2007 to 4,806 in 2009, to 6,681 in 2010. Of course, in the context of chronic overcrowding, most fine defaulters are released after only a short time in prison and do not make up more than 30 of the 4,500 prisoners in prison on any given day. In many cases, they are not counted in temporary release figures as their fines are mitigated shortly after arrival in prison. This all amounts to a redundant exercise that is extremely costly to the taxpayer, and wasteful in terms of Court Services, Garda and Prison Service resources. While there is not yet a final figure for the total number committed to prison last year, the figures suggests that as many as half of the number of people who enter prison under sentence are there for fine default. Furthermore, the futility of this practice is further underlined by the fact that 85% of those sentenced to imprisonment for fine default return to prison within 4 years, putting further future burden on a prison system already in crisis. In effect, individuals are being committed to our overcrowded and unsafe prisons in cases where judges have already determined that prison sentences are not appropriate.

Although the Irish Penal Reform Trust had broadly welcomed the Fines Act, we did seek amendments which we felt necessary to make it more robust. We believe that the legislation as passed does not provide a system in which imprisonment is only ever used as a measure of last resort in relation to fine default. IPRT considers that in cases of non-payment of fines, Community Service Orders or other community-based sanctions should be used as a default sanction. The Act states that the power to make a Community Service Order (CSO) does not impair the power of the court to imprison upon default. Also, while IPRT welcomed the introduction of payment by instalments, the limit of one year from the imposition of fine (two years on application) should be made more flexible to enable Courts to take into consideration individual circumstances of the defendant.Finally, we felt that the limit (€100) below which a fine cannot be paid in instalments should be removed.

Short Prison Sentences

IPRT has long been calling for a review of sentencing practice with regard to the associated problem of the high number of short custodial sentences handed out for less serious offences. A shocking 70% of sentenced committals in 2009 were for sentences of 6 months or less, which is not only contributing to the chronic overcrowding in Irish prisons but is also disproportionately damaging to families and communities. Non-custodial sanctions, such as CSOs, are proven to be more cost-effective responses to more minor offences, resulting in lower reoffending rates and demonstrable payback to the community. The Department of Justice and Law Reform projected savings of €14m to €17m, not factoring in the financial value of the work carried out in the community, through the passing of the Criminal Justice (Community Service)(Amendment) Bill 2011.

IPRT has previously suggested that to remove or restrict the sanction of custodial sentences from the District Court level would be a straightforward way to put this in practice. When Dermot Ahern first announced that he intended to bring forward legislation requiring judges to consider community service sanctions as an alternative to imprisonment for minor offences, IPRT was initially hopeful that this would amount to an outright presumption against imprisonment for minor offences (as applied to juvenile offenders under section 96 of the Children act 2001).  As it stands, the Criminal Justice (Community Service)(Amendment) Bill 2011 does not go as far as IPRT had hoped, since it merely requires judges to consider imposing a community service order instead of a prison sentence. It would be preferable if judges who decided against imposing a CSO were obliged to state their reasons for opting for imprisonment and why other means of addressing offending behaviour would not be sufficient in a particular case.

As the new Government sets out its programme for government, IPRT believes that any programme of reform in the area of penal policy needs to be underpinned by a clear political commitment to reduce imprisonment.  Ideally this should be underpinned by “imprisonment as a last resort” legislation. A political decision must be made towards the use of community sanctions as the default penal sanction for less serious offences and the Government should commit itself to the promotion of community sanctions throughout the whole criminal justice system as a replacement for imprisonment. 

A version of this article appeared in the March 2011 issue of the Law Society Gazette

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