__________
CONSULTATION PAPER ON
THE COURT POOR BOX
__________
(LRC CP 31 –
2004)
The Law Reform Commission
35-39 Shelbourne Road, Ballsbridge,
Dublin 4
© Copyright |
The Law Reform Commission 2004 |
|
First Published |
March 2004 |
ISSN 1393 – 3140
The Law Reform Commission
is an independent statutory body whose main aim is to keep the law under review
and to make practical proposals for its reform. It was established on 20
October 1975, pursuant to section 3 of the Law Reform Commission Act 1975.
The Commission’s Second
Programme for Law Reform, prepared in consultation with the Attorney General,
was approved by the Government and copies were laid before both Houses of the
Oireachtas in December 2000. The Commission also works on matters which
are referred to it on occasion by the Attorney General under the terms of the
Act.
To date the Commission has
published seventy Reports containing proposals for reform of the law; eleven
Working Papers; thirty Consultation Papers; a number of specialised Papers for
limited circulation; An Examination of the Law of Bail; and twenty four Annual
Reports in accordance with section 6 of the 1975 Act. A full list of its
publications is contained in Appendix F to this Consultation Paper.
The Law Reform Commission
consists of a President, one full-time Commissioner and three part-time
Commissioners. The Commissioners at present are:
President
The Hon Mr Justice
Declan Budd,
High Court
Full-time Commissioner Patricia T
Rickard-Clarke,
Solicitor
Part-time Commissioners Dr Hilary A Delany, Barrister-at-Law, Senior
Lecturer in Law,
Head of Law School,
Trinity College Dublin
Professor Finbarr McAuley
Jean Monnet Professor of European Criminal Justice,
University College Dublin
Marian Shanley,
Solicitor
Secretary
John Quirke
Director
of Research Raymond
Byrne BCL, LLM (NUI),
Barrister-at-Law
Legal
Researchers Deirdre Ahern LLB, LLM (Cantab),
Solicitor
Patricia Brazil LLB,
Barrister-at-Law
Ronan Flanagan LLB, LLM (Cantab)
Glen Gibbons BA, LLB (NUI), LLM (Cantab)
Claire Hamilton LLB (Ling Franc),
Barrister-at-Law
Darren Lehane BCL, LLM (NUI)
Trevor Redmond LLB, MPhil, LLM
(Cantab)
Eadaoin Rock LLB, LLM (Cantab)
Jennifer Schweppe BCL (Euro)
Project
Manager Pearse Rayel
Legal Information
Manager
Marina Greer BA, H Dip LIS
Cataloguer
Eithne Boland BA
(Hons), H Dip Ed, H Dip LIS
Executive
Officer
Denis McKenna
Private
Secretary to
the
President
Liam Dargan
Clerical Officer
Alan Bonny
Debbie
Murray
Principal Legal Researchers on this Consultation Paper
Douglas Clarke LLB, BCL
(Oxon), LLM (Harvard),
Barrister-at-Law
Patricia
Brazil LLB, Barrister-at-Law
Further information can be
obtained from:
Website
www.lawreform.ie
ACKNOWLEDGEMENTS
The Commission would like
to thank the following people who offered advice and assistance:
Brian Battelle, Circuit & District Court Operations,
Courts Service
Paula Carter, Administrator, Horseferry Magistrates’ Court
Fund
Valerie Fallon, Department of Justice, Equality and Law
Reform
Graeme Horsburgh, Chief Registrar, Melbourne Magistrates
Court
Peter Mooney, Finance
Directorate, Courts Service
Jim McCormack, Director of
Estates and Buildings, Courts Service
Dermot O’Byrne, Finance
Directorate, Courts Service
The Hon. Mr Justice J.
Bruce Robertson, President of the New Zealand Law Commission
Noel Rubotham, Director of
Reform and Development, Courts Service
Murray Thompson, Member of Parliament for Sandringham,
Australia
The Commission would also
like to thank the members of the judiciary and the Bar who participated in
informal discussions on the issue of the court poor box. Full
responsibility for this Paper, however, lies with the Commission.
TABLE OF CONTENTS
Chapter 1...... the application of the poor box system
A...... Origins of the Court
Poor Box
B...... The Circumstances in
which the Court Poor Box is Applied by the Courts
(1) How the possibility of making a contribution arises in
a particular case
(3) The reasons why
the option of making a contribution to the court poor box arises
(4) The application of section 1(1) of the Probation of
Offenders Act 1907
C...... The Receipt and
Distribution of Court Poor Box Funds
(1) The amounts which
are paid into the court poor box
(2) The manner in
which funds from the court poor box are distributed
Chapter 2...... a critical assessment of the court poor box
system
B......... Arguments
In Favour of the Court Poor Box System (As Currently Applied)
(1) It may avoid or
reduce the need to impose a conviction. 21
(2) It may avoid or
reduce the need to impose a term of imprisonment
(4) It enables its
beneficiaries to assist restorative justice
(5) It provides a
mechanism for countering the effects of inflation on maximum fine values
(6) Section 1(1) of
the Probation of Offenders Act 1907 simpliciter may be inadequate
(7) It is founded upon the exercise of the discretionary
powers of the court
C...... Arguments Against the
Court Poor Box System (As Currently Applied)
(1) It provides a
means of buying one’s way out of a conviction and/or a term of imprisonment
(2) It is perceived
as a means of buying one’s way out of a conviction and/or a term of
imprisonment
(3) It causes
offenders whose circumstances are similar to be treated differently
(5) There are
alternative means of devising an appropriate outcome
(6) It impairs
confidence in the administration of justice
(8) Countering the
effects of inflation
(9) Beneficiaries of
court poor box funds
(10) The court poor box lacks a
clear legal basis
D...... A Potential Alternative
to the Court Poor Box
(1) Summary of
arguments in favour of the court poor box system (as currently applied)
(2) Summary of
arguments against the court poor box system (as currently applied)
(3) A potential
alternative to the court poor box
Chapter 3...... the charitable and revenue implications of
the court poor box system
B...... Charitable Law
Implications of the Court Poor Box System
(1) The “Pemsel”
classification of charitable trusts
C...... Appropriate Scope of
Application of Court Poor Box Funds
(1) Court poor box
funds and the Pemsel classification
(2) Possibility of
“ring fencing” court poor box funds
D...... Revenue Implications of
Charitable Status
(1) Non-charitable
beneficiaries and the principles of primary and secondary liability
(2) Payments to
non-charitable individuals/ certificate of discharge
(3) Small gifts
exemptions and “approved trusts”
Chapter 4...... the operation of similar or related systems
in other jurisdictions
B...... Systems Which Involve A
Payment To Charity
Chapter 5...... the need for a statutory jurisdiction for
spent convictions?
(1) Rehabilitation of
Offenders Act 1974
(2) “Breaking the
Circle” – Home Office Review of the Rehabilitation of Offenders Act 1974
Chapter 6...... reform options
(1) Abolition of the
court poor box system
(2) Retention of the
court poor box system as currently applied
(3) Reform of the
court poor box system
Chapter 7...... summary of
provisional recommendations
B...... Summary of
Recommendations
APPENDIX
A..... DRAFT SCHEME OF COURT CHARITY FUND
BILL
appendix
B..... payments to court
poor box in the district Court and circuit court (1999-2003)
appendix
F..... list of law reform
commission publications
introduction
1.
Many people are
familiar with the basic concept of the court poor box system: a person who has
been charged with a criminal offence makes a contribution to a charity through
the medium of the court as an indication of remorse and earnest of intention
not to offend again. Where the charity involved is directly related to
the crime (eg payment of a sum to the ISPCA in a case involving the use
of illegal drugs on animals), the payment achieves a measure of restorative
justice by assisting those who work to prevent the commission of similar
offences by other persons.[1]
Beyond that, however, it appears that little has been written about this aspect
of the criminal jurisdiction of the courts. Nonetheless, because of its
longstanding use, there has been much informal debate about the court poor box
system. Proponents of the court poor box argue that reform of the system could
retain its inherent benefits whilst curing any perceived defects,[2]
although some critics of the system take the view that it would be best to
abolish the poor box entirely.[3]
Concern that the court poor box system operated in a manner which may deprive
the Exchequer of funds was raised by the Public Accounts Committee in its
consideration of the 1999 Annual Report of the Comptroller and Auditor General.[4]
Against this background the Commission decided to examine the court poor box as
part of its Second Programme for Law Reform.
2.
In order to make a
critical assessment of the court poor box system, it is necessary first to
ascertain the circumstances in which the court poor box is applied. This
process is complicated by a number of factors. First, the court poor box
does not have a statutory basis. Secondly, the jurisdiction to apply the
court poor box has not been considered in any reported judgments of the
Superior Courts. Thirdly, there is a lack of information and empirical
data on the circumstances in which the court poor box is applied. Against
this background, Chapter 1 of this Paper endeavours to supply the factual
context within which an informed debate on the court poor box system can take
place. This information was obtained from a variety of sources including
informal discussions with some judges of the District Court and Circuit Court
and practitioners with whom the Commission consulted.
3.
Chapter 2 of this Paper
is intended to address critically the court poor box system as currently
applied. It addresses the arguments in favour of the present system and
those against it. It also discusses whether a combination of section 1(3)
of the Probation of Offenders Act 1907 and section 6 of the Criminal
Justice Act 1993 constitute the potential future basis for a revised court
poor box system.
4.
Chapter 3 of the Paper
outlines the charitable and revenue difficulties which arise in the context of
the current court poor box system.
5.
Chapter 4 surveys the
operation of similar or related systems in other jurisdictions.
6.
Chapter 5 considers
whether there is a need for a statutory jurisdiction providing for spent
convictions. This arises because under current law, any criminal
conviction is permanent (apart from certain situations involving children) and
the court poor box has sometimes been used to avoid the permanency of a
criminal record.
7.
Against the backdrop of
the analysis in the preceding chapters and, in particular, the critical
assessment of the present court poor box system in Chapters 2 and 3, a range of
possible reform options are outlined in Chapter 6. Finally, Chapter 7
summarises the provisional recommendations of the Commission.
8.
Appendix A outlines the draft scheme
of a Court Charity Fund Bill. Figures on the payments made into the court
poor box between 1999 to 2003 are set out in Appendix B, whilst payments made
out of the court poor box in those years are contained in Appendix C.
Appendices D and E provide a breakdown of payments made to organisations and
persons from court poor box funds in 2002 and 2003.
1.
Chapter 1
the application of the poor box system
1.01
One of the notable features of the court poor box system is the veil of
uncertainty which has tended to shroud its application.[5]
To a large extent, this has resulted from its non-statutory basis and the lack
of empirical data both in respect of the circumstances in which it is applied
and, at least until recently, the method of receipt and distribution of court
poor box funds. This Chapter attempts to address the dearth of
information in this area. Section B of this Chapter attempts to trace the
origins of the court poor box. Section C of this Chapter is concerned
with the circumstances in which the court poor box has been applied by the
courts. This issue is addressed under the following headings:
(a)
how the possibility of making a contribution arises in a particular
case;
(b)
the type of offences in respect of which the option of making a
contribution to the court poor box arises;
(c)
the reasons why the option of making a contribution to the court poor
box arises;
(d)
the relevance of section 1(1) of the Probation of Offenders
Act 1907; and
(e)
the type of offenders who seek to make a contribution to the court poor
box and who are permitted or offered the option of making a contribution to the
court poor box.
1.02
Section D of this Chapter is concerned with the receipt and distribution
of court poor box funds. In particular, it indicates the monetary amounts
which have been paid into the court poor box in recent years and provides an
overview of the manner in which court poor box funds have been distributed.
A
Origins of the Court Poor Box
1.03
The first question which should be addressed in any consideration of the
court poor box system is the precise origins of the concept. It is
incontrovertible that the court poor box system is a long established
tradition, predating the foundations of the State. It has been suggested
by some that its provenance can be linked to the alms box as administered by
the Church in feudal times. Others suggest that the roots of the concept
can be found in the Brehon laws; Corley describes the Brehon law as providing
“[t]he earliest record we have in Ireland of fines being used for the
support of the poor”.[6]
Under Brehon law, the relief of the destitute was the responsibility of a
relieving officer appointed for that purpose; this officer was empowered to
levy a rate on landowners for the maintenance of the “wretched and wandering
poor”.
1.04
Since this provision of the Brehon law, the concept of the relief of the
poor by a court poor box system has probably further evolved from a practice
of the British courts which was subsequently applied in Ireland. Corley
notes that in England, “the practice of allowing prisoners their freedom on
payment of a sum of money commenced as far back as 1275”.[7] MacNamara notes that “since the 18th
year of Elizabeth (when the first instance is found), it has been a frequent
practice to appropriate some part of the penalty to the poor of the parish
where the offence is committed”.[8]
Thus, a judge could “amerce” a defendant, ie impose a penalty other than
a fine, which could include a contribution to the court poor box, where the
judge was of the opinion that such penalty was more appropriate.
1.05
It has also been suggested that the court poor box has as its origin the
“Elizabethan Poor Law”. The statute 43 Elizabeth c. 2, 1601 “An Act for
the relief of the poor” has been described as “the legal and spiritual origin
of many aspects of English social history”.[9] Part I of the 1601 statute
concerned the imposition of the poor rate and its administration, with section
15 providing:
“That all
the surplusage which shall be remaining in the said stock of any county, shall
by discretion of the more part of the justices of the peace in their quarter
session be ordered, distributed, and bestowed for the relief of the poor
hospitals of that county, and of those that shall sustain losses by fire,
water, the sea, or other casualties, and to other charitable purposes, for the
relief of the poor, as to the more part of the said justices of the peace shall
seem convenient.”
1.06
Although it is thus possible to identify a number of possible sources
from which the court poor box system evolved, it is not possible to state with
certainty which, if any, of these sources is the antecedent. Perhaps it
may be the case that the concept evolved from an amalgam of these
sources. Nevertheless, it is beyond doubt that the practice of allowing
an offender to make a payment to the court poor box as an alternative to
conviction and sentence where, in the circumstances of the case, the court
takes the view that a conviction would be unduly harsh, is now regarded by some
judges as a familiar feature of the common law, and applied accordingly.
However, its application remains solely a matter for individual judges, and it
is beyond doubt that there is serious inconsistency in the use of the court
poor box.[10] Whilst there are many reasons for
the non-application, or limited application, of the court poor box,[11] it may well be that a factor in some
judges’ hesitation in utilising the court poor box is the somewhat uncertain
status the court poor box enjoys in Irish law.
B
The Circumstances in which the Court Poor Box
is Applied by the Courts
1.07
This section of the Paper is concerned with the circumstances in which
the court poor box is applied. This issue will be addressed under the
sub-headings referred to above.[12]
(1)
How the possibility of making a contribution arises in a particular case
1.08
The possibility of making a contribution to the court poor box arises in
a number of different ways; however, it may be said that the manner in which it
will come about ultimately depends on the particular formulation of the court
poor box jurisdiction which is applied by the individual judge. The most
frequent way in which a contribution to the court poor box arises is as a
result of a request by or more usually on behalf of an offender. In some
courts, however, a “canvassing disqualifies” policy is adopted which entails
the rejection of applications by or on behalf of an offender to make a
contribution to the court poor box.
1.09
The possibility of making a contribution also frequently arises at the
instance of the court and, in particular, as a result of:
(a)
a suggestion by the court that a contribution would be appropriate;
(b)
a request by the court that the offender should make a contribution;
(c)
a direction by the court that the offender should or must make a
contribution;[13]
(d)
an indication by the court of a willingness “to deal with the case in a
particular way” or “to adopt a certain course”; or
(e)
an indication by the court that it would dismiss a charge on condition
that the offender pay a particular sum to the court poor box.[14]
1.10
It is only on very rare occasions and only in certain courts that the
possibility of making a contribution arises as a result of a request made by
the prosecution. Some judges, however, ask the prosecuting Garda if he or
she has any comments on the proposal of making a contribution to the court poor
box.
(2)
The type of offences in respect of which the option of making a
contribution to the court poor box arises
1.11
In general, the court poor box is applied in respect of minor offences
which do not merit a custodial sentence although, on occasion, it has been
applied in relation to more culpable offences which might seem to merit a
significant fine or custodial sentence. The following is a brief overview
of the most common offences in respect of which the court poor box has been used
as a disposition.
(a)
Public order offences
1.12
The court poor box is most frequently applied in respect of public order
offences and, in particular, offences under the Criminal Justice (Public
Order) Act 1994.[15]
The most frequent offences in this regard are breach of the peace and offences
contrary to the following sections of the 1994 Act: section 4 (intoxication in
a public place), section 5 (disorderly conduct in a public place), section 6
(threatening, abusive or insulting behaviour in a public place) and section 8
(failure to comply with a direction by a member of the Garda Síochána).[16]
(b)
Offences contrary to the Road Traffic Acts
1.13
The court poor box is also frequently applied in relation to offences
under the Road Traffic Act 1961, as amended, and in
particular offences contrary to section 52(1)[17] (careless driving), section 53[18] (dangerous driving), section 47[19] (exceeding a speed limit) and section 56[20] (driving without insurance).
(c)
Offences in relation to property
1.14
The court poor box is also applied in respect of various
property-related offences. In particular, it is applied in relation to
petty larcenies and offences involving damage to property contrary to the Criminal
Damage Act 1991.[21]
Some judges restrict the application of the court poor box to cases where
compensation has been offered or paid by the offender for the damage in
question.
(d)
Drugs offences
1.15
Some courts apply the court poor box in respect of drugs offences.
The possession of cannabis for personal use contrary to section 3 of the Misuse
of Drugs Act 1977[22] is the most
frequent offence in this category.[23]
However, some courts also apply the court poor box in relation to an offence of
possession of ecstasy for personal use.
(e)
Offences involving animals
1.16
The court poor box is also applied by some courts in respect of offences
contrary to section 1 of the Protection of Animals Act 1911[24] (cruelty to animals) and section 6 of
the Animal Remedies Act 1993 (possession of an animal remedy).
Reported cases in this category include deer-poaching,[25] the injection of slurry into cattle to
obtain compensation under the TB eradication scheme[26] and the injection of illegal
growth-promoters into cattle to enhance their value.[27]
(f)
Offences against persons
1.17
The court poor box has also been applied in respect of minor
assaults. However, some judges limit its application in this regard to
circumstances where the victim has declined an offer of compensation by the
accused. On rare occasions, the court poor box has been applied in
relation to more serious offences against the person including sexual offences
against minors and offences under the Child Trafficking and Pornography Act
1998.[28]
Many judges do not apply the court poor box in respect of assaults or offences
against the person of any kind.
(g)
Safety at work
1.18
The court poor box is also sometimes applied in respect of prosecutions
under the Safety, Health and Welfare at Work Act 1989. Thus, in
the breakdown of statistics on prosecutions taken by the Health and Safety
Authority in 1998, reference is made to one case in which the Probation of
Offenders Act 1907 was applied, on condition that the defendant
contribute IR£4,000 to the court poor box.[29] Similarly, in 2001 a company which
pleaded guilty to breaches of construction regulations and a subsequent
prohibition notice was dealt with under section 1(1) of the Probation of
Offenders Act 1907 at Drogheda District Court upon payment by the company
of IR£5,000 to River Rescue Service in Drogheda.[30]
1.19
In at least one such case, however, National Authority for
Occupational Safety and Health v Town of Monaghan Co-Op Ltd,[31] the Health and Safety Authority appealed[32] the decision of the District Court judge
to strike out the charges against the defendant after it made a
contribution of €600 to the Special Olympics Fund.
1.20
Finally, in at least one case a remedy with some similarity to the court
poor box system has also been utilised in respect of Health and Safety matters
in the High Court. In 1997, Kelly J dealt with an order made under section
39 of the 1989 Act[33]
against Zoe Developments Ltd on the application of the Health and Safety
Authority, in respect of 13 breaches of health and safety regulations at a site
owned by the company at Charlotte Quay in Dublin.[34] The application had been brought
under section 39 of the 1989 Act to the High Court by the Authority following
the death of a construction worker on the site. Having heard that the
company had 12 previous convictions for breaches of health and safety
regulations at other sites, Kelly J indicated that he would allow work to
continue on the site at Charlotte Quay subject to the company continuing to
comply with an agreed health and safety plan. In order to ensure the
company understood the seriousness of the matter, Kelly J also indicated that a
contribution to local charities would be an appropriate gesture, representing a
“substantial indication of the company’s bona fides”. The company
undertook to make a £100,000 donation to charity, of which £50,000 was
allocated to the Society of St Vincent de Paul and £50,000 to Temple Street
Children’s Hospital. Whilst this case represents a high profile example
of the use of something akin to the court poor box in the High Court, it is
rare that circumstances would arise where such a disposition would be
appropriate in respect of cases appearing in the High Court. Furthermore,
because of its application outside the criminal process, the Commission
considers that this instance does not fall within the scope of the current
Consultation Paper.
(3)
The reasons why the option of making a contribution to the court poor
box arises
1.21
A variety of factors are taken into account by the courts when
determining whether to apply the court poor box in a particular case. The
most significant factors in this regard will be addressed under the following
sub-headings.
(a)
The first occasion on which the offender had committed the offence in
question (or any offence)
1.22
The most significant factor which underlies a decision to apply the
court poor box is that the offender was never previously charged with the
offence in question or was never previously charged with any other
offence. Many judges will only consider applying the court poor box in
relation to persons who satisfy this condition and, in this sense, the absence
of a prior criminal record constitutes a “prerequisite” to the application of
this method of dealing with an offender.[35] Other judges do not apply this
rule rigidly and may, for example, consider the court poor box in respect of a
person who had not offended for a very long time.
(b)
A plea of guilty by the offender
1.23
Another factor which weighs very heavily in the decision-making process
is a plea of guilty by the offender. Indeed, many judges also consider
such a plea to be a “prerequisite” to the application of the court poor box.
(c)
A concern to avoid a conviction
1.24
A concern on the part of the court to avoid a conviction is also a very
significant factor. For reasons which overlap with the other factors
outlined in this section, a court may consider that it would be inappropriate
to impose a conviction on an offender in a particular case. This
frequently occurs where a conviction would adversely affect employment
prospects or prevent an offender from securing the necessary visa to work or
travel abroad. The permanency of a conviction once recorded is another
factor in this regard.[36]
(d)
The minor or trivial nature of the offence
1.25
The minor or trivial nature of the offence with which an offender is
charged is another factor which frequently underlies a court’s decision to
apply the court poor box.
(e)
A lack of proportionality between any outcome other than a contribution
to the court poor box and the offence in question
1.26
A lack of proportionality between any outcome other than the court poor
box and the offence in question is also a significant factor.
(f)
The family circumstances of the offender
1.27
The courts frequently have regard to the family circumstances of the
offender when considering whether to apply the court poor box. Where an
outcome other than the court poor box would, in effect, also punish the members
of the family who depend for particular help and needs on the offender, the
courts are likely to take this into account as a factor which favours
application of the court poor box.
(g)
A concern to avoid an injustice
1.28
In broad terms, many of the factors considered in this section are
concerned with avoiding an injustice. Some judges, however, specifically
limit the application of the court poor box to cases in which the imposition of
a penalty provided by law would result in an unjust and disproportionately
penal outcome.
(h)
The inadequacy of the maximum fine in respect of the offence because of
the effects of inflation[37]
1.29
Some judges employ the court poor box as a means of countering the
effects of inflation over time on the maximum value of fines for particular
offences.
(i)
A concern to avoid a fine
1.30
A concern on the part of the court to avoid imposing a fine is very
rarely a factor which influences a decision to apply the court poor box.
Indeed, a majority of judges consider that the financial penalty inherent in a
contribution to the court poor box as an integral part of this approach to
dealing with an offender without the need to record a conviction but yet to
require some evidence of an earnest of good intention. Accordingly, most
judges do not apply the court poor box for the purpose of enabling an offender
to avoid paying a fine.
(j)
A concern to avoid imprisonment
1.31
Similarly, a concern on the part of the court to avoid imposing a term
of imprisonment is very rarely a factor which influences a decision to apply
the court poor box.
1.32
To the extent that it is a factor, it would appear that it is only
considered in circumstances which, in the judge’s view, merit a suspended
sentence. However, most judges do not apply the court poor box for the
purpose of enabling a person to avoid a term of imprisonment (including a
suspended sentence).
(4)
The application of section 1(1) of the Probation of Offenders Act 1907
1.33
It is also appropriate to consider the extent to which the court poor
box is applied in conjunction with section 1(1) of the Probation of
Offenders Act 1907. Section 1(1) provides as follows:
“Where
any person is charged before a court of summary jurisdiction with an offence punishable
by such court, and the court thinks that the charge is proved, but is of
opinion that, having regard to the character, antecedents, age, health, or
mental condition of the person charged, or to the trivial nature of the
offence, or to the extenuating circumstances under which the offence was
committed, it is inexpedient to inflict any punishment or any other than
a nominal punishment, or that it is expedient to release the offender on
probation, the court may, without proceeding to conviction, make an order
either –
(a)
dismissing the information or charge; or
(b)
discharging the offender conditionally on his entering into a
recognisance, with or without sureties, to be of good behaviour and to appear
for conviction and sentence when called on at any time during such period, not
exceeding three years, as may be specified in the order.”
1.34
Section 1(1) thus affords a judge an opportunity to determine the facts
and find the ingredients of the charge proved but yet ultimately to dismiss a
charge in the light of the circumstances referred to therein.[38]
Some judges believe that the court poor box option dovetails effectively with
section 1(1) because it affords a court a means of dealing with an offender in
circumstances where some financial penalty is merited but a conviction and any
other sentence would be inappropriate. It should be noted that section
1(3) of the Probation of Offenders Act 1907 allows for the payment of a
sum of money in cases where section 1(1) is applied, but this is currently
limited to €12; this provision will be considered in further detail below.[39]
1.35
The practice of individual judges varies to a significant degree; it
appears that, in some courts, the court poor box is often applied in
conjunction with section 1(1) of the 1907 Act, whilst in others, this practice
is never followed.[40]
At District Court level, a significant number of judges who utilise the court
poor box always apply it in conjunction with section 1(1). However, as
against this it should be noted that one District Court judge indicated during
informal discussions with the Commission that the court poor box is “never”
applied in conjunction with the Probation of Offenders Act; another
judge indicated that the court poor box would “very rarely” be applied in
conjunction with section 1(1).[41]
1.36
The practice of applying the court poor box in conjunction with section
1(1) appears to be less frequent in the Circuit Court.
(5)
A profile of the persons who seek to make a contribution to the court
poor box and/or who are permitted or requested to make such a contribution
1.37
In the absence of the necessary empirical data, it is difficult to
provide a firm indication of the type of persons who seek to make a
contribution to the court poor box and who are permitted or requested to make a
contribution to the court poor box. Subject to this caveat, however, the
Commission offers the following tentative observations on the general profile
of such persons on the basis of its research.
(a)
Persons who have no previous criminal record
1.38
As noted above,[42]
the most significant factor which underlies a decision to apply the court poor box
is that the offender was never previously charged with the offence in question
or was never previously charged with any other offence. It is
unsurprising, therefore, that persons who have no prior criminal record feature
very strongly in the profile of persons who are permitted or requested to make
a contribution to the court poor box.[43]
(b)
Persons who are relatively affluent
1.39
The court poor box system is contingent upon a payment by an offender to
a particular charity. At first sight, therefore, the court poor box
system would appear inherently to favour the relatively affluent. In this
light, it is perhaps unsurprising that a significant proportion of the persons
who seek to make a contribution to the court poor box appear to be relatively
affluent and in a position to afford an apparently “generous” contribution.
1.40
On one view, it is arguable that the imbalance in this regard can be
redressed by a court directing a contribution in accordance with a person’s
means, so that it is irrelevant whether a person is affluent. However,
whilst in theory such an approach might offer some redress to the inequality
argument, from a practical perspective at least many believe that under the
present system, the court poor box is more frequently availed of by or afforded
to the relatively affluent than less well off members of society.
(c)
Persons from all sections of society
1.41
Notwithstanding the foregoing, it is appropriate to indicate that most
of the judges of the District and Circuit Courts who indicated their views to
the Commission stated that the court poor box is applied in relation to persons
from all sections of society. In many respects, this is
unsurprising in view of the type of offences (eg public order offences
and road traffic offences) and the circumstances in which the court poor box is
applied (as outlined above).[44]
(d)
Students
1.42
Students are also frequently afforded the opportunity of making a
contribution to the court poor box. During informal discussions, several
judges indicated to the Commission that the court might consider using the
court poor box in respect of a student where other factors were also present
(such as a first offence, plea of guilty), on the grounds that to record
a conviction might disproportionately affect the future prospects of a student
or apprentice in terms of employment or travel.
C
The Receipt and Distribution of Court Poor Box
Funds
(1)
The amounts which are paid into the court poor box
1.43
The amounts which are paid into the court poor box vary greatly.
To a large extent, the amounts depend upon the gravity of the offence and the
means of the offender and the practice of the judge. For example, some
judges have adopted a practice of directing the payment of a particular sum in
all cases, irrespective of the means of an accused. Other judges direct
the payment of a sum within a defined range (eg €50 - €300).
Other judges determine a payment without reference to any particular range but,
rather, in view of the gravity of the offence and in accordance with the means
of the offender.
1.44
The following is an overview of the total amounts which were paid into
the court poor boxes of the District Court and the Circuit Court for the years
1999 – 2003.[45] This information was provided by
the Courts Service.
|
Year ending |
District Court |
Circuit Court |
|
1999 |
£369,029.00 |
£20,928.00 |
|
2000 |
£413,733.00 |
£14,565.00 |
|
2001 |
€577,374.56 |
€151,007.43 |
|
2002 |
€903,826.13 |
€34,581.99 |
|
2003 |
€980,330.79 |
€2,700.00 |
(2)
The manner in which funds from the court poor box are distributed
1.45
The manner in which court poor box funds are administered and
distributed varies from court to court, further compounding the inconsistencies
which have already been noted in the administration of the system. In
some cases, payments are made directly to a particular charity and, thus, do
not pass through court channels. In such cases, a receipt for payment is
generally submitted to the court. In other cases, payments are made
through the Probation and Welfare Services or through the Garda Síochána.
In most cases, however, it appears that payments are made to an officer of the
court (eg the District Court Clerk) who ultimately distributes the
monies to various charitable organisations in accordance with the judge’s
directions.
1.46
The following is an overview of the total amounts which were paid out of
the court poor boxes of the District Court and the Circuit Court for the years
1999 – 2003.[46] This information was provided by
the Courts Service.
|
Year ending |
District Court |
Circuit Court |
|
1999 |
£338,500.00 |
£8,405.00 |
|
2000 |
£408,734.00 |
£26,964.00 |
|
2001 |
€518,537.24 |
€18,014.72 |
|
2002 |
€891,157.77 |
€44,681.73 |
|
2003 |
€980,196.85 |
€4,491.55 |
1.47
A list of the organisations which benefited from court poor box payments
in 2002 and 2003 is provided in Appendices D and E to this Paper.
2.
Chapter 2
a critical assessment of the court poor box system
2.01
This Chapter provides a critical assessment of the present application
of the court poor box system. The aim here is to establish a balanced,
comprehensive account of the court poor box system which will enable an
informed decision to be made as to the merits of the arguments favouring
retention of the system, and those calling for its abolition.
Accordingly, Part B of this Chapter will set out the arguments which can be
made in favour of the court poor box system, whilst Part C will set out the
arguments which can be made against. Part D considers whether there
exists the future potential for a statutory jurisdiction to require offenders
to make a financial contribution as an earnest of intention, drawing on the Probation
of Offenders Act 1907 and the Criminal Justice Act 1993. Part E
develops some conclusions drawn by the Commission from the assessment made in
this Chapter.
B
Arguments In Favour of the Court Poor Box
System (As Currently Applied)
2.02
This section analyses the positive features of the court poor box system
as currently applied.
(1)
It may avoid or reduce the need to impose a
conviction
2.03
For a variety of reasons, a court may consider that it would be
inappropriate or unduly harsh to impose a conviction on the offender in the
circumstances of a case. A significant factor in this regard is the
permanency of a conviction once recorded.[47] As a judge of the District Court
observed in relation to cases involving young persons who were prosecuted for
acts of folly which they subsequently regretted (which he confirmed encompass a
significant number of cases before the District Court) “it seems unduly harsh
to hang the millstone of a criminal conviction around their necks for the rest
of their lives because of a few moments of excess, exuberance or
stupidity”. Another factor is the impact of a conviction on an offender’s
employment prospects and capacity to secure the necessary visa to work or
travel abroad. In this regard, one can instance the case of a person who
committed a minor public order offence while intoxicated and had planned to
travel and work abroad but for whom a conviction could preclude the obtaining
of the necessary visas.[48]
(2)
It may avoid or reduce the need to impose a term of imprisonment
2.04
The principle that imposing a term of imprisonment is a sentencing
option of last resort commands considerable international support.[49] Indeed, the principle recently obtained
statutory expression in this jurisdiction in relation to young offenders.
Section 96(2) of the Children Act 2001 provides, inter alia, that
“a period of detention should be imposed [on a child] only as a measure of last
resort.”
2.05
To the extent that it avoids the need to
impose a term of imprisonment or reduces a term which otherwise would be
imposed, it can be argued that the
court poor box system accords with the general principle of imposing a term of
imprisonment as a sentencing option of last resort. Furthermore, it can
also be said that the court poor box system broadly adheres to the principles
of restorative justice, by including a reparative element in the form of a
financial contribution, which is ultimately applied for the benefit of the
community as a whole, in the outcome reached by the court.[50]
(3)
It enables the court to determine an appropriate outcome having regard
to all of the circumstances of a case
2.06
Advocates of the court poor box argue that many of the factors which
underlie a decision to afford a person the option of making a contribution to
the court poor box highlight the intrinsic merit of a system which enables a
court to impose a penalty that does not include or depend upon a
conviction. The following are the most significant factors in this regard:
(a)
It enables the court to determine an outcome that is proportionate to
the gravity of the
offence
2.07
It is an established principle of sentencing that the punishment should
be proportionate to the crime. In State (Healy) v Donoghue[51]
Henchy J stated that the constitutional guarantees of trial in due course of
law,[52]
personal rights[53]
and personal liberty[54]
“necessarily [imply], at the very least a guarantee that a citizen shall not be
deprived of his liberty as a result of a criminal trial conducted in a manner
or in circumstances, calculated to shut him out from a reasonable opportunity
of establishing his innocence; or where guilt has been established or admitted,
of receiving a sentence appropriate to his degree of guilt and his
relevant personal circumstances.”[55]
2.08
The constitutional dimension to the proportionality principle, as
articulated by Henchy J in Healy, merits emphasis. By virtue of
the elevation of the proportionality principle to the constitutional plane and,
in particular, its locus in the guarantees of Articles 38.1, 40.3.1˚,
40.3.2˚ and 40.4.1˚, a person who has been convicted of an offence
enjoys a fundamental constitutional right to receive a sentence that is
proportionate to, inter alia, the gravity of that offence[56] and there is a concomitant obligation on
the State, including the courts, to protect and vindicate that right.
2.09
In the light of this emphasis on the importance of the principles of
proportionality, an analogy might be drawn between these sentencing principles
and the court poor box system. It can thus be argued that there may be
cases in which the most proportionate way of dealing with a particular person
before the court is not to record a conviction, but rather to allow such person
to provide a financial contribution as “an earnest of intention” and to apply
section 1(1) of the Probation of Offenders Act 1907. The court poor box,
according to this view, enables a court to achieve an outcome which is
proportionate to, inter alia, the gravity of the offence.
(b)
It enables the court to determine an outcome that is proportionate to
the personal circumstances of the person having regard to all of the
circumstances of the case
2.10
The constitutional principle of proportionality applies not simply in
relation to the gravity of the offence but also in relation to the personal
circumstances of the offender. In People (Attorney General) v
O’Driscoll,[57] Walsh J held that, in the light of the
objects of imposing a sentence,[58]
“it is … the duty of the courts to pass what are the appropriate sentences in each
case having regard to the particular circumstances of that case – not only in
regard to the particular crime but in regard to the particular criminal.”[59] In State (Healy) v Donoghue,[60] Henchy J
held that the Constitution guarantees a citizen whose guilt of a criminal
offence has been established or admitted of the right to “[receive] a sentence
appropriate to his degree of guilt and his relevant personal circumstances.”[61]
2.11
In People (DPP) v. M.,[62]
Denham J stated that “[t]he nature of the crime and the personal circumstances
of the appellant are the kernel issues to be considered and applied in
accordance with the principles of sentencing ….”.[63] Denham J continued:
“Sentencing
is a complex matter in which principles, sometimes being in conflict, must be
considered as part of the total situation. Thus, while on the one hand a grave
crime should be reflected by a long sentence, attention must also be paid to
individual factors, which include remorse and rehabilitation, often expressed inter
alia in a plea of guilty, which in principle reduce the sentence.”[64]
2.12
Denham J also reiterated the principle that sentences must be
proportionate to the crime and to the personal circumstances of the offender
and observed that “[t]he essence of the discretionary nature of sentencing is
that the personal situation of the [offender] must be taken into consideration
by the court.”[65]
2.13
Drawing an analogy with these principles of sentencing, it might be said
that there would appear to be good reason for a judge to consider the personal
circumstances of a person before the court when considering whether to apply
the Probation Act and/or to require a contribution to the court poor
box. Thus, it may be said that by virtue of its inherent flexibility, the court
poor box significantly enhances the capacity of a court to reach an outcome
which is proportionate to the personal circumstances of the person before the
court.
(c)
It enables the court to determine a monetary penalty that is
proportionate to the means of the person before the court
2.14
The principle that a court should have regard to the means of an
offender when imposing a fine was recently reaffirmed by the Court of Criminal
Appeal in People (DPP) v Redmond[66]
in the context of an appeal by the Director of Public Prosecutions for a review
of a fine pursuant to section 2 of the Criminal Justice Act 1993.
The respondent had pleaded guilty to 10 charges which related to a failure to
make tax returns in respect of a number of specified years.[67] The trial judge had imposed a fine
of £500 in respect of each of the first five charges and £1,000 in respect of
each of the next five and, thus, a total fine of £7,500. The Court of
Criminal Appeal emphasised that “regard must be had to the means of the
offender when a fine is being imposed”. [68] The Court continued:
“In
this respect, a fine imposed by a criminal court differs from a revenue
financial penalty. Unless there is specific provision to the contrary … a
Court must indeed proportion the fine to the means of the offender. A
revenue penalty, however, is generally of fixed amount (whether provided by
statute or arrived at as a result of computation) and is payable in that sum
without regard to the means of the offender subject only to such statutory
mitigation as may be possible. For example, a Court would rarely impose a
fine which would have the consequence that the defendant would have to sell his
or her house because to do so might be regarded as an extraordinary punitive
measure. A revenue penalty, on the contrary, arises in a specified amount
without regard to the means of the offender or what steps he will have to take
to pay it. And there is generally only a limited amount of mitigation
available, and that at the discretion of the Revenue Commissioners.”[69]
2.15
The Court observed that a fine of £7,500 is neither lenient nor harsh in
itself, but only in terms of the circumstances of the person who must pay it.
2.16
In the circumstances of the case and having regard to the onus of proof
on the application, the Court concluded that the matters stated by the trial
judge to have been taken into consideration were correctly so considered:
“The
fines imposed are the result of a logical process whereby the trial judge,
working with the limited and sometimes contradictory information before him,
tried to balance the gravity of the offences, the other penal consequences to
the offender, and the personal circumstances. There is no evidence that
he erred in principle.”[70]
2.17
The flexibility which inheres in the court poor box system enables a
judge to determine an outcome, such as a financial contribution to the
court poor box, which is proportionate to the means of the offender (to the
extent that his or her means can be ascertained)[71] and, thus, accords with the
proportionality principle which is applied in relation to fines, and may be
applied by analogy to the court poor box.
(d)
The offender had never previously committed the offence in question (or
any other offence)
2.18
The absence of a prior criminal record has traditionally been regarded
by the courts as a significant mitigating factor in the sentencing of an
offender. In People (Attorney General) v McClure,[72] the Court of Criminal Appeal held that
“the sole fact that this offence [of gross indecency] is the first one on the
part of a man 33 years old, and the testimony that, apart from this offence, he
bore an exceptionally high character, would alone justify our disapprobation of
the severity of the sentence”.[73]
In People (DPP) v V.,[74]
the Court of Criminal Appeal stated that the absence of previous convictions
was a matter of considerable importance and, in part on this basis, reduced the
sentence of imprisonment from nine years to seven years.
2.19
The court poor box enables a court to afford a “second chance” to
persons who have no prior convictions for the offence in question or for any
other offence but in respect of whom it would be inappropriate to apply section
1(1) of the Probation of Offenders Act 1907 simpliciter.
Some judges have indicated their view that an offender should be afforded a
second chance in these circumstances, particularly where one or more of the
other factors referred to in this section are applicable.
(e)
The offender made an early admission and pleaded guilty to the
offence(s) in question
2.20
It is an established (even if somewhat controversial)[75] principle of sentencing law that an
offender who pleads guilty to an offence is entitled to a reduction in the
sentence which otherwise would have been imposed upon a conviction after a plea
of “not guilty”.[76]
The principle was clearly articulated by Finlay CJ[77] in People (DPP) v Tiernan[78] as follows:
“A
plea of guilty is a relevant factor to be considered in the imposition of
sentence and may constitute, to a lesser or greater extent, in any form of
offence, a mitigating circumstance”.[79]
2.21
This principle has been reaffirmed by the courts in a number of decisions.
Thus, in People (DPP) v M.,[80]
Egan J stated that “the most important mitigating factor in the case [was] the
fact that the appellant admitted his guilt promptly and [had] pleaded guilty at
his trial.”[81]
Denham J stated that “a plea of guilty may be an important mitigating factor,
which is further enhanced by an early indication that it will occur”, adding
that “[t]he amount of mitigation will depend on the circumstances, including
the likelihood of conviction if there had been no plea”.[82] Denham J further observed that
“[t]here may be circumstances where a plea is discounted, for example where the
accused is caught in flagrante delicto and his conviction is not
a matter for doubt”.[83]
2.22
The principles in this area were consolidated and altered in certain
respects by section 29 of the Criminal Justice Act 1999. Section
29(1) provides that:
“[i]n
determining what sentence to pass on a person who has pleaded guilty to an
offence, other than an offence for which the sentence is fixed by law, a court,
if it considers it appropriate to do so, shall take into account
(i) the
stage in the proceedings for the offence at which the person indicated an
intention to plead guilty; and
(ii) the
circumstances in which this indication was given.”[84]
2.23
For the avoidance of doubt, section 29(2) provides that subsection (1)
“shall not preclude a court from passing the maximum sentence prescribed by law
for an offence if, notwithstanding the plea of guilty, the court is satisfied
that there are exceptional circumstances relating to the offence which warrant
the maximum sentence.”
2.24
The application of the court poor box in circumstances where an offender
has made an early admission and entered a plea of “guilty” accords with the
principles outlined above. It can be argued however, that these
principles should have little or no application to the type of offences in
respect of which the court poor box is applied: as such offences are invariably
at the less serious end of the spectrum, the objective of sparing victims from
the trauma of giving evidence against the offender and from being subjected to
cross-examination, (which forms a significant part of the rationale which
justifies a reduction in sentence in respect of an early admission and a plea
of “guilty”[85])
applies to a lesser extent in respect of such offences. Although the
recent jurisprudence has emphasised the relevance of a timely plea, it is clear
that it does not provide the sole basis for reducing a sentence in the
circumstances under consideration. As noted above, in People (DPP) v
Tiernan Finlay CJ stated that “[a] plea of guilty is a relevant factor to
be considered in the imposition of sentence and may constitute, to a lesser or
greater extent, in any form of offence, a mitigating circumstance”.[86] It is clear that the Supreme Court
considered the principle to be one of general application, albeit one that
applies with particular force in circumstances where a victim is spared
additional suffering.[87]
Moreover, it is clear from section 29(1) of the Criminal Justice Act 1999
that the applicability of the principle does not depend upon the gravity of the
offence in question. It follows, therefore, that a court may regard an
early admission of guilt and a subsequent plea of guilty as mitigating factors
in the sentencing of offenders for minor offences, notwithstanding the absence
of a victim and, accordingly, this principle is relevant by analogy in the
context of an assessment of the court poor box system.
(f)
The offender is genuinely remorseful
2.25
It is also an established principle of sentencing that a court is entitled
to consider remorse on the part of an offender as a mitigating factor in
determining a sentence. This principle was emphasised by the Court of
Criminal Appeal in People (DPP) v Naughton[88] where a relatively lenient sentence for
aggravated sexual assault[89]
was upheld on the basis of the genuine remorse of the offender. The Court
of Criminal Appeal stated that remorse was the most important single factor in
the case and observed that “everything confirmed his remorse was genuine”.[90]
2.26
The application of the court poor box in circumstances where an offender
is genuinely remorseful accords with this principle.[91]
(g)
It enables the court to arrive at an outcome for the offender without
also (or at least unduly) punishing his or her family
2.27
A court is entitled to have regard to the effect which a particular
sentence would have on the family of the offender. A similar argument may
be made by way of analogy in the case of the use of the court poor box.
2.28
The court poor box affords a court a means of punishing an offender
where an outcome other than one based upon the court poor box would, in effect,
also punish the family of that person. Thus, for example, a court may
decide to deal with a person, who earns a living from driving and who has
committed an offence under the Road Traffic Acts, by applying the court
poor box, rather than by disqualification from driving, having regard to the
exceptionally serious effect which disqualification would have on the
offender’s family.
(h)
The age of the offender justifies (at least in part) a reduced
punishment
2.29
It is clear that the age of an offender may be a ground for
mitigation. In People (DPP) v M.,[92] Denham J stated that “[a]ge is …
relevant to the concept of keeping the light at the end of the tunnel visible,
with the consequent effect on motivation and rehabilitation”.[93] In M., the appellant was 50
years of age and “would be in his final trimester of life when he was
considered for remission”[94]
and, in part for these reasons,[95]
the Supreme Court reduced the sentence that had been imposed by the trial
judge.[96]
2.30
In People (DPP) v Warren,[97]
the Court of Criminal Appeal had particular regard to the fact that two of the
appellants (who had been convicted of money laundering offences contrary to
section 31(3) of the Criminal Justice Act 1994) were 69 years of age and
the impact which a custodial sentence would have upon them. The court
stated that, inter alia, the age of Mr and Mrs Warren was among “[t]he
most obvious features of [the] case” and that “there [was] no doubt that the
custodial sentence imposed by the learned trial judge [would] impinge very
heavily on these people and cause them hurt and embarrassment and shame and be
a particular burden on an elderly couple who have not been separated in the
previous fifty years”.
2.31
The relevance of the age of an offender in determining an appropriate
sentence was recently considered by the Court of Criminal Appeal in People (DPP)
v J.M.[98]
Having reaffirmed that “in every case, the court of trial must have regard in
imposing sentence, not merely to the circumstances of the particular offence,
but also to the circumstances of the offender”, the Court observed that “[i]n
many cases, the age of the offender will not be a relevant consideration” while
“in some, it clearly will be”.[99]
2.32
In appropriate cases, the court poor box system provides a valuable
means of punishing an elderly offender in respect of whom other outcomes would
yield a disproportionate or unjust punishment.
(i)
It enables the court to achieve a just result and to avoid an unjust one
2.33
The court poor box is widely regarded by judges who apply it as an
essential component of the process by which they administer justice.[100]
On this view, and having regard to the other considerations outlined in this
section, it is clearly arguable that there are circumstances in which the court
poor box solution is the option which is most conducive to achieving a just
result and avoiding an unjust outcome.
(4)
It enables its beneficiaries to assist restorative justice
(a)
Charities
2.34
Advocates of the court poor box system point out that it enables a judge
to provide financial assistance to a charity whose work is relevant to the
circumstances of a particular case (eg the ISPCA in a case involving the
injection of illegal drugs into animals).[101] In this way, the judge achieves a
measure of restorative justice by assisting those who work to prevent the
commission of similar offences by other persons.[102]
2.35
A number of matters arising in relation to charities must however be
addressed, ranging from the legal definition of charities, to the various
revenue requirements which must be met by such organisations, and the
consequences of a failure to comply with the tax code in this regard.
These issues will be addressed below.[103]
(b)
Victims
2.36
In a similar vein, the court poor box enables a judge to benefit
organisations which represent the interests of the victim (eg Victim
Support). A particular advantage of the court poor box in this
regard is that it provides a central pool from which financial assistance can
be provided to the victims, thus obviating the need to transfer such funds
directly from an offender to the victim. In this light, the court poor
box achieves a result which, from the perspective of a victim (who may not want
money from the offender), is superior to that achieved by virtue of a
Compensation Order under the Criminal Justice Act 1993.[104]
(c)
Offenders
2.37
The court poor box has also been used to provide financial assistance to
offenders in appropriate cases. In one case, a 60 year-old man had
stolen £25 worth of groceries from a supermarket in order to feed his family of
six, which he was unable to do on his social welfare allowance. The judge
applied section 1(1) of the Probation of Offenders Act 1907 and gave him
£50 from the court poor box so that he could return to the shop to buy twice as
much food.[105]
In another case, a heroin addict who had broken the window of a social welfare
office in an effort to obtain treatment for her condition was provided with
£800 from the court poor box so that she could obtain an assessment and one
month in a private treatment centre.[106] In another case, a judge directed
the payment of £250 from the court poor box to pay for the lodgings of a boy
(for whom there was no State accommodation) until he was due to appear in the
Children’s Court.[107]
2.38
Whilst it is obviously difficult to criticise the motive underlying the
efforts of judges to grant assistance in such needy individual cases, such
practice does nevertheless raise a number of difficult questions. The
first, whether it is any part of the judicial function to engage in such
practice, will be considered further below.[108] This practice also raises queries
as to the administration of court poor box funds in terms of payments made out
of such funds, and whether there is any system of checks and balances to ensure
that such payments are made in compliance with the various Revenue
requirements.[109]
(5)
It provides a mechanism for countering the effects of inflation on
maximum fine values
2.39
The maximum fines which can be imposed for particular offences are
specified in legislation but their value is eroded over time by the effects of
inflation. As a result, even where a court imposes a maximum fine, such a
fine may not reflect the gravity of the offence in question or the true maximum
fine which the legislature had intended. Some judges have used the court
poor box system to structure a penalty which constitutes an appropriate
admonishment in respect of the particular offence with which a person has been
charged and in the light of all relevant circumstances.[110]
(6)
Section 1(1) of the Probation of Offenders Act 1907 simpliciter may be
inadequate
2.40
In some cases where a judge is satisfied that a conviction is not
merited, section 1(1) of the Probation of Offenders Act 1907 simpliciter
may be thought to be inadequate to enable the judge to achieve justice having
regard to all of the relevant circumstances. Thus, unless there is a
mechanism whereby a judge can, in effect, impose a financial penalty to reflect
the gravity of an offence (which nevertheless does not merit a conviction and
sentence), he or she may even be reluctant to apply the Probation Act even
if otherwise it would be appropriate to do so. On this view, the court
poor box fills an existing lacuna in the legislation and enhances a judge’s
capacity to achieve justice in individual cases.
(7)
It is founded upon the exercise of the discretionary powers of the court
2.41
It has been suggested in the discussion of many of the other factors outlined
in this section that the broad measure of discretion which underlies the court
poor box system is central to its effectiveness as a means of dealing with
cases which merit some form of sanction but are not such as to warrant a
conviction and/or a term of imprisonment. To the extent that one may
object to the breadth of a court’s discretion in this regard, the Irish courts
have repeatedly confirmed that such discretion is an inherent part of the
judicial function in the sentencing of offenders and, even if the court poor
box system were to be abolished, this discretion would have to be preserved in
relation to other sentencing options.[111]
C
Arguments Against the Court Poor Box System (As
Currently Applied)
2.42
This section analyses the principal arguments against the court poor box
system as currently applied.
(1)
It provides a means of buying one’s way out of a conviction and/or a
term of imprisonment
2.43
It can be argued that the court poor box provides a means of “buying”
one’s way out of a conviction or a term of imprisonment. At one level, it
is undeniable that where money is paid into the court poor box and the charge
in question is dismissed under the Probation of Offenders Act 1907, a
relationship exists between the payment of money into the court poor box and
the avoidance of a conviction and a possible term of imprisonment.
However, the existence of such a relationship does not per se mean that
the court poor box affords a means of buying one’s way out of a conviction and
a term of imprisonment. As noted above, a variety of factors typically
underlie a decision to apply the court poor box and, in any one case, they do
not necessarily include the objective of avoiding a conviction and a term of
imprisonment. Undoubtedly, however, the court poor box is applied in some
cases for the precise purpose of, inter alia, avoiding a conviction and
(to a significantly lesser extent) a term of imprisonment.
2.44
Even in such cases, however, it can be argued that the charge that the
court poor box affords a means of buying one’s way out of a conviction and a
term of imprisonment is unwarranted. In this respect, it is important to
distinguish between the objective of an offender who offers a contribution to
the court poor box and that of the judge who ultimately applies the court poor
box as the choice of disposition. Even if one assumes that the offender
is exclusively concerned with “buying” a way out of a conviction and a possible
term of imprisonment, it is only the objective of the court which is relevant
to an assessment of the court poor box in the context of the sentencing process.
It is trite law that the determination of an appropriate sentence is the
exclusive preserve of the sentencing judge. A desire on the part of an
offender to buy his or her way out of a conviction will not achieve that result
unless the sentencing judge decides to permit a contribution to the court poor
box and to dismiss the charge under the Probation of Offenders Act 1907.
Assuming that at least part of the reason for such a decision is a concern on
the part of the judge to avoid convicting the offender and imposing a term of
imprisonment, it is difficult to argue that the judge ought not to have
afforded the person the court poor box option if this forms part of an
overarching concern to determine an outcome that is proportionate to the
offence and the personal circumstances of the offender, or otherwise that
represents an appropriate outcome.
2.45
Accordingly, it can be argued that viewed from the perspective of the
sentencing judge, a contribution to the court poor box is not a means of
enabling an offender to buy his or her way out of a conviction and a possible
term of imprisonment. Rather, it may be described as a means of imposing
a financial penalty upon a person in respect of whom neither a conviction and a
term of imprisonment, on the one hand, nor a dismissal under the Probation
Act simpliciter, on the other, would be appropriate.
(2)
It is perceived as a means of buying one’s way out of a conviction
and/or a term of imprisonment
2.46
Even if the court poor box cannot reasonably be regarded as a means of
buying one’s way out of a conviction and a possible term of imprisonment, it is
likely that it will be perceived as such by the public at large, at least in
certain cases. Although this perception is most likely to exist where a
person has made a contribution to the court poor box and “escaped” a
conviction, it may also arise where a person has been convicted and sentenced
to a term of imprisonment. In the latter case, members of the public may
perceive that the contribution to the court poor box resulted in a reduction of
the sentence which otherwise would have been imposed, particularly if the
sentence is wholly or in part suspended.
2.47
Certainly, some judges have applied the court poor box at least in part
in order to avoid imposing a conviction and/or a term of imprisonment or in
order to impose a reduced sentence. To this extent, the perceptions that
the court poor box enables an offender to avoid a conviction and a term or
imprisonment or to obtain a reduced term are well-founded in some cases.
It might be argued, however, that for the reasons outlined above,[112]
this does not mean that the court poor box amounts to a process whereby
offenders can buy their way out of a conviction and a term of
imprisonment or buy a more lenient sentence than otherwise would have been
imposed.
2.48
It is also appropriate to note that the court poor box is only applied
for the purposes of avoiding a term of imprisonment or reducing a term which
otherwise would be imposed on very rare occasions and by a minority of
judges. It appears that the vast majority of judges do not apply the
court poor box in circumstances where a term of imprisonment is merited.
Nevertheless, where the court concludes, in the light of all of the
circumstances, that a term of imprisonment would not be appropriate and also
applies the court poor box, the perception that a contribution to the court poor
box was the primary or, indeed, the sole factor which caused the offender to
escape a term of imprisonment is likely to arise. This is particularly
likely where the person makes a substantial contribution to the court poor box.[113]
2.49
It may also be argued that the perception that one can make a
contribution to the court poor box and thereby avoid imprisonment and/or a fine
reduces the deterrent effect of those sanctions.[114] Arguably, the deterrent effect of
a significant proportion of fines has already been eroded by the effects of
inflation. Indeed, as noted above,[115] some courts apply the court poor box,
at least in part, for the purpose of countering the effects of inflation and
determining a financial penalty that accords with legislative intent.
Proponents of the court poor box argue that difficulties caused by this
approach will be resolved upon the enactment of legislation which indexes fines
in accordance with the recommendations of the Law Reform Commission.[116]
Furthermore, supporters of the court poor box argue that it is questionable
whether the court poor box has any adverse effect on the deterrent value of a
term of imprisonment since most judges do not apply the court poor box in
circumstances where a term of imprisonment is warranted.[117]
2.50
Nevertheless, it can strongly be argued that such perceptions, even if
at least in some respects ill-founded, are inherently damaging to the
administration of justice.[118]
Proponents of the court poor box system suggest that a potential part of the
solution in this regard may lie in promoting a greater public awareness of the
totality of the reasons which underlie a decision to apply the court poor
box. In this respect, it is suggested that the elevation of the court
poor box “jurisdiction” to the statutory plane could play an invaluable role.
(3)
It causes offenders whose circumstances are similar to be treated
differently
2.51
Viewed generally, it can be argued that the application of the court
poor box results in an inequality of treatment of offenders whose
circumstances are effectively identical. There are two principal limbs to
this argument: first, that the court poor box is applied in a manner that
discriminates between offenders based on their means and background and,
secondly, that the court poor box system is applied by judges inconsistently,
or not at all depending on the locality. Each point will be addressed in
turn.
(a)
Wealth-based discrimination
2.52
The first argument is, in effect, a wealth-based discrimination
argument. It is succinctly encapsulated in the popular critique of the
court poor box that it creates “one law for the rich and another law for the
poor”.[119]
There is undoubtedly a perception on the part of the public that an offender
who can afford to make a significant contribution to the court poor box in
respect of a particular offence is likely to avoid incarceration and probably
even a conviction. The perception is equally strong that another person
who has been charged with the same offence and whose circumstances are
identical to those of the first, save that he does not have the financial
resources to make an appropriate (or any) contribution to the court poor box,
will be exposed to the “full
rigours of the law”.
2.53
This argument raises a number of issues which merit consideration.
The first concerns the legality of distinguishing between offenders based upon
their means and, by extension, their background. In this context, it is
appropriate to consider Article 40.1 of the Constitution which provides as
follows:
“All
citizens shall, as human persons, be held equal before the law.
This shall
not be held to mean that the State shall not in its enactments have due regard
to differences of capacity, physical and moral, and of social function.”
2.54
As noted by Kelly,[120]
“Article 40.1 does not mean that any legislative scheme must present identical
features to all citizens: such a mechanical uniformity, in failing to
appreciate the existence of categories naturally different (in the senses
relevant to the purpose of the legislation) would work inequality in its
result, rather than equality”.[121]
2.55
It is clear that the sentencing powers of the courts must be exercised
in accordance with Article 40.1 of the Constitution. Thus, in State
(Keegan) v Stardust Victims’ Compensation Tribunal Henchy J “accept[ed]
that Article 40, s. 1 of the Constitution requires that people who appear
before the courts in essentially the same circumstances should be dealt with in
essentially the same manner”.[122]
2.56
In this light, it is necessary to analyse whether it is contrary to
Article 40.1 for courts to impose sentences which effectively enable affluent
offenders, but not offenders of limited means, to avoid a conviction and a
possible term of imprisonment. As O’Malley notes,[123] this question was considered with
tantalising brevity by the Supreme Court in Re McIlhagga.[124]
In that case, the Central Criminal Court had imposed a term of imprisonment of
three years on the appellant but had directed that he would be released upon
the payment of £6,655 during that period. In applying for habeas
corpus, the appellant appears to have argued that the order violated the
constitutional guarantee of equality before the law in that it favoured
well-off citizens. The Supreme Court considered that it did not have to
determine this issue as the payment in question was restitution of monies wrongfully
obtained as distinct from a fine:
“The payment in question is not the imposition of a
fine. Nor have we here a case – if such is to be supposed – where a court
in sentencing two persons of equal obloquy, one rich and the other poor, sends
the poor man to prison but lets the rich man go free on payment of a fine well
within his means … [In this case] neither in purpose nor in effect is there
discrimination as between rich and poor. A condition requiring monies
which have been fraudulently obtained to be restored to the injured parties far
from being discriminatory is, on the contrary, eminently just.”[125]
2.57
Although McIlhagga does not represent an authoritative
pronouncement on this issue, the Commission agrees with O’Malley that the Court
appeared to accept that discrimination between rich and poor of the kind which
it described would be contrary to Article 40.1 of the Constitution.
2.58
The Commission also agrees that, at the very least, the courts would
almost certainly hold that a poor defendant cannot be imprisoned simply because
he or she is unable to pay a heavy fine. As O’Malley explains,[126]
this is a valid sentencing principle for two reasons:
“First, it is the nature of the offence and the
relevant personal circumstances of the offender that count in the selection of
sentence. While poverty (as a personal circumstance) may mitigate a
sentence, it cannot in justice be treated as an aggravating factor.
Secondly, regard must be had to the means of an offender when the amount of a
fine is being determined. This rule would be violated if courts were free
to treat poverty as a justification for preferring imprisonment to a fine or to
impose a fine so clearly beyond the offender’s means that it would almost
inevitably lead to imprisonment for default.”[127]
2.59
This analysis applies with equal force to the application of the court
poor box. Accordingly, the Commission believes that it is incompatible
with Article 40.1 to deal with people who commit the same offence, and whose
personal circumstances only differ (in any material respect) in relation to
their means, in such a way that affluent persons can, by virtue of their
affluence, avoid a conviction and/or a term of imprisonment while impoverished
persons are unable to do so because of their lack of means.
2.60
In the absence of a detailed empirical study on sentencing trends, it is
very difficult to assess the extent to which the application of the court poor
box results in de facto discrimination between offenders based
upon their means and background in the manner outlined above.
Nevertheless, it is possible to offer some tentative observations.
2.61
Those who favour retention of the court poor box argue first, that most
judges are vigilant in ensuring that the court poor box is not employed as a
means of affording affluent members of society a more lenient outcome than that
to which they otherwise would be subjected. Of those judges who utilise
the court poor box, a large number have indicated that they apply the court
poor box where, having regard to the totality of the circumstances,[128]
they believe that the application of section 1(1) of the Probation of
Offenders Act 1907 simpliciter[129] would be unduly lenient.
2.62
Insofar as it is suggested that “most judges are vigilant” in ensuring
that the court poor box is not applied in a manner which allows more affluent
offenders to obtain a more lenient outcome than might otherwise apply, critics
of the court poor box might question whether such assumption is sufficient to
ensure that the system is not misapplied or abused. Nevertheless, it may
be argued that the absence of any objective or independent criteria governing
the application of the court poor box presents grave difficulties, leaving
aside the question of whether the court poor box is in fact misapplied,
but more importantly whether it is perceived as being liable to be
misapplied.[130]
2.63
Secondly, it appears, however, that a small number of judges who apply
the court poor box have a policy of requiring all persons who wish to avail of
the court poor box to make a contribution of a pre-determined fixed sum (eg €1,000).
Although the purported justification for this policy is the uniformity of
treatment of all offenders, irrespective of their financial circumstances or
social background, the Commission is strongly of the view that the application
of such a policy in dealing with offenders is contrary to Article 40.1 of
the Constitution. In many respects, such a policy exemplifies what Kelly
described as mechanical uniformity which works inequality, rather than
equality, in its result.[131]
The Commission also believes that such a policy contravenes settled principles
of sentencing – which, as noted above, also have a constitutional foundation[132]
– and, in particular, the principle that a sentence must be proportionate to the
crime and the personal and financial circumstances of the offender.[133]
It can be argued that these principles should be applied by way of analogy in
relation to the court poor box.
2.64
Thirdly, to the extent that there are residual concerns about the court
poor box system in the light of Article 40.1, there are two ways in which these
difficulties can be viewed. Advocates of retention of the court poor box
would suggest that such concerns can be addressed by a conscious application of
the court poor box in accordance with the principles of sentencing referred to
above and, in particular, the principle that a sentence must be proportionate
to the crime and the personal and financial circumstances of the
offender. Accordingly, it is argued, an affluent offender should have to
make a contribution to charity which is significantly greater than the
contribution of a person with limited means, notwithstanding that both persons
stand accused of committing the same offence. Proponents of this view
would emphasise that it is imperative that judges are vigilant in ensuring that
impoverished offenders are not denied an opportunity to “avail” of the
court poor box procedure by virtue of their limited means. In the case of
some impecunious offenders, therefore, judges will have to ensure that it is
open to the less well off to make a purely nominal payment to charity (assuming
that the person otherwise qualifies for the court poor box procedure).
2.65
Nevertheless, it may be queried whether these various difficulties are
capable of a completely satisfactory remedy. The court poor box
jurisdiction ultimately rests on the exercise of an individual judge’s
discretion, and the view that it involves some subconscious element of
preferential treatment for affluent offenders, is one which many believe has
taken root in the public mind and is difficult to fully rebut.
Ultimately, these concerns can be brought back to the intertwined issues of (a)
whether the court poor box is in fact misapplied, or applied in a
discriminatory manner, and (b) whether there is a perception that it is
so misapplied.
(b)
Variation in the extent to which the court poor box is applied by the
courts
2.66
The second limb of the argument that the application of the court poor
box results in inequality of treatment of offenders relates to the variation of
the extent to which it is applied by judges. It is undoubtedly true that
the court poor box is not applied to an equal extent by judges. Some
judges do not apply the court poor box at all. Other judges apply it to
varying degrees. In 2001, £41,906 was paid into the court poor box of Carlow District Court.[134]
In the same period, a mere £159.99 was paid into the court poor box of Galway
District Court.[135]
Clearly, therefore, some judges apply the court poor box very frequently and
generate substantial sums of money for charity as a result.[136] Indeed, in 2000, one judge
generated over £70,000 from payments to the court poor box.[137] Other judges only apply the court
poor box on a limited basis and only in respect of certain types of offences
and/or in particular circumstances.
2.67
Against this background, it is arguable that one of the effects of the
present court poor box system is that persons who have committed the same
offences are treated differently by the courts. This inequality of
treatment may be illustrated by reference to the case of two individuals who
had been involved in a rally of four cars travelling at almost 120 miles per
hour late at night. One of the drivers had been disqualified from driving for
three years and fined £400. Another of the drivers (who had appeared
before a different District Court judge) was merely ordered to pay £400 to
charity and his case was adjourned for ten months with a view to avoiding the
necessity for a conviction.[138]
Similarly, in a case involving eight persons charged with the same offence,
four were convicted of the offence and each was fined £300 while the other four
each contributed £500 to the court poor box and, thus, avoided a conviction.[139]
2.68
There are a number of cases which confirm that the constitutional
guarantee of equality is not necessarily breached if persons who have committed
the same offences receive different sentences. Thus, it may be argued by
analogy that the application of the court poor box does not necessarily result
in inequality of treatment for offenders whose circumstances are
effectively identical. In People (Attorney General) v Poyning[140]
and People (DPP) v Tiernan[141] the courts have approved the
principle that all that is required is that the sentence imposed in an
individual case represents a proportionate outcome having regard to all the
circumstances of the case, and also taking into account the background,
antecedents and character of the individual before the court in each particular
case.[142]
Thus, in Poyning, the Court of Criminal Appeal stated that if there is
found to be discrimination in the treatment of two offenders charged and
convicted of the same crime, then the court will embark upon an investigation
of that differentiation. However, the court also confirmed that it would
only find unlawful discrimination if it could be established that the disparity
in treatment was not linked to differences in the background,
antecedents and character of each individual offender.[143] Thus, in People (DPP) v. Tiernan[144] Finlay C.J. doubted the appropriateness
of an appellate court appearing to lay down any standardisation or tariff of
penalty for cases “[h]aving regard to the fundamental necessity for judges
in sentencing in any form of criminal case to impose a sentence which in their
discretion appropriately meets all the particular circumstances of the case
(and very few criminal cases are particularly similar), and the particular
circumstances of the accused.”[145]
2.69
It is clear, therefore, that the mere fact that a sentence imposed by
one judge for a particular offence appears to differ from that imposed by
another judge (or even the same judge) in respect of another (but similar)
offence is not in itself an indication that the offenders have been treated
differently by the courts. It may be that the background, character and
antecedents of a particular offender merit a sentence which is more or less
lenient than that imposed on another offender who committed the same
offence. In this light, it is appropriate to refer to the observation of
the Court of Criminal Appeal in People (DPP) v R.[146]
that one must approach media-reported cases and the analysis of the sentences
imposed therein with considerable caution. This observation applies with
particular force to reported applications of the court poor box by
newspapers. For a variety of reasons,[147] newspaper reports frequently fail to
convey the totality of the circumstances which caused the court to apply the
court poor box in a particular case.
2.70
Notwithstanding the foregoing, it is clear that, in at least one
respect, the court poor box is being applied inconsistently by
judges. This conclusion derives from the fact that, as noted above, some
judges readily apply the court poor box (in appropriate cases) while others
never apply it or only apply it in limited circumstances. As a result,
two or more offenders who commit an offence, which in principle merits
application of the court poor box, and whose relevant circumstances are effectively
identical, will be treated differently by the courts depending on whether they
are dealt with by a judge who applies the court poor box or one who does not
(or only does so in limited circumstances).
2.71
Legislation which clearly defines the circumstances in which all judges
may apply, or at least consider applying, the court poor box may be the
solution to this aspect of the inequality inherent in the court poor box system
as presently applied. However, it might be noted that even if the court
poor box were to be placed on a statutory footing, it would be highly unlikely
that such provisions would employ mandatory language. The use of the
court poor box, even under a statutory scheme, would ultimately fall within the
realm of a judge’s discretion, and critics of the court poor box system might
argue that little would ultimately change in respect of the inconsistency of
application of the court poor box. Nevertheless, it must be acknowledged
that placing the court poor box on a statutory footing would address the
complaint that the court poor box is not available on a uniform (geographical)
basis, and thus this aspect of the alleged inconsistency would be removed.
(4)
Some offences in respect of which the court poor box is applied are not
trivial and may merit significant fines and/or terms of imprisonment
2.72
At least in some cases, the court poor box may be applied in respect of
offences which are not trivial and arguably merit significant fines and/or
terms of imprisonment. For example, in the case of a person who pleaded
guilty to possessing child pornography in 2003,[148] the trial judge indicated that he had
considered imposing a term of imprisonment but ultimately decided to sentence
the convicted person to 240 hours of community service upon payment of €40,000
to a charitable cause.[149]
Other examples include the case of a driver who avoided a conviction for driving
at almost 120 miles per hour late at night by paying £400 to the court poor box
and the case of a farmer who injected his cattle with slurry in order to obtain
£29,000 in compensation under the TB eradication scheme and had a four month
sentence suspended on condition that he pay £1,000 to the court poor box and
£250 to the Irish Society for the Prevention of Cruelty to Animals.[150]
Moreover, these cases indicate that contrary to the general approach (in
which the court poor box is used where a conviction is not warranted), it has
been used on occasion where a conviction is appropriate.
2.73
The use of the court poor box in such cases may appear to be
inappropriate, and adds to the extent of the harm caused by negative
perceptions of the circumstances in which the court poor box is used and the
types of offenders who are permitted to avail of it. One possible
solution would lie in clearly stating in any statutory code that the option of
making a contribution to the court poor box should not be available where the
offence in question is not trivial and merits significant fines and/or terms of
imprisonment. The Commission will give further consideration to
this proposal below.[151]
(5)
There are alternative means of devising an appropriate outcome
2.74
A further criticism which can be levelled at the court poor box system
is that there are a variety of alternative means (which have received
legislative imprimatur) by which a judge can devise an appropriate outcome
without having to invoke the court poor box. Of particular interest in
this context are the sentencing powers conferred by the Criminal Justice (Community
Service) Act 1983, the Criminal Justice Act 1993 and the Probation
of Offenders Act 1907.
(a)
Community Service orders
2.75
The Criminal Justice (Community Service) Act 1983 applies to a
person (who is referred to in the Act as an “offender”) who is at least 16
years of age and is convicted of an offence for which, in the opinion of the
court, the appropriate sentence would be, but for the Act, one of imprisonment
or detention in Saint Patrick’s Institution, but does not apply where any such
sentence is fixed by law (for example, in the case of murder, where a life
sentence is mandatory).[152] Pursuant to sections 3 and 4 of
the Act, a court which has convicted an offender of an offence can, instead of
dealing with him in any other way, make a “community service order” in respect
of the offence if certain specified conditions are fulfilled. A community
service order obliges an offender to perform, in accordance with the Act, unpaid
work for the number of hours that are specified in the order (which will be not
less than 40 and not more than 240).[153] Before the court can impose a
community service order, it must be satisfied, after considering the offender’s
circumstances and a report by a probation and welfare officer (including, if
the court thinks it necessary, hearing evidence from such an officer), that the
offender is a suitable person to perform work under such an order and that arrangements
can be made for him to perform such work.[154] In addition, the offender must
consent to the making of a community service order.[155]
2.76
It is clear from the foregoing that the jurisdiction to impose a
community service order only arises where a person has been convicted of an
offence. To this extent, therefore, it may be argued that it does not
obviate the need for the sentencing option afforded by the court poor box
system which enables a court to punish a person who has committed an offence
but in respect of which a conviction would constitute a disproportionate
penalty.[156] However, on an alternative view,
it can be suggested that there already exists a sentencing option which enables
a court to require payment of an earnest of intention from a person without
recording a conviction, where to do so would cause an injustice; this provision
is section 1(1) of the Probation of Offenders Act 1907. As
discussed above, some judges take the view that this provision is
insufficiently flexible to deal with every case; others suggest that if this is
so, the solution is amendment of the existing legislation, rather than
resorting to the court poor box, a system which raises a number of not
insignificant difficulties.
(b)
Compensation orders
2.77
Pursuant to section 6 of the Criminal Justice Act 1993, a court,
on conviction of a person of an offence, instead of or in addition to dealing
with him or her in any other way, unless it sees reason to the contrary, can
make a “compensation order” requiring him or her to pay compensation in respect
of any personal injury or loss resulting from that offence (or any other
offence that is taken into consideration by the court in determining sentence)
to any person (referred to in the Act as the “injured party”) who has suffered
such injury or loss. The compensation payable under a compensation order must
be of such amount as the court considers appropriate, having regard to any
evidence and to any representations that are made by or on behalf of the
convicted person, the injured party or the prosecutor. However, it cannot
exceed the amount of the damages that, in the opinion of the court, the injured
party would be entitled to recover in a civil action against the convicted
person in respect of the injury or loss concerned.[157]
Nor, in the case of an order made by the District Court, can it exceed the
amount which stands prescribed for the time being by law as the limit of that
court’s jurisdiction in tort (currently €6,350).[158] In determining whether to make a
compensation order against persons and the amount of the compensation, the
court is required to have regard to their means and, where relevant, to
the means of the parent or guardian to the extent that such means appear or are
known to the court. In assessing the means of offenders, the court is
required to take into account their financial commitments.[159]
2.78
Where the court considers that it would be proper both to impose a fine
and to make a compensation order but that the convicted person has insufficient
means to pay both an appropriate fine and compensation, it can, if it is
satisfied that the means are sufficient to justify this being done, make a
compensation order and impose a fine, if it is satisfied that it is fair to do
so having regard to the means which remain after compliance with the order.[160]
2.79
Although section 6(1) of the Criminal Justice Act 1993 states
that compensation orders can only be made where a person has been
convicted of an offence, section 6(12)(b) provides that “references to
conviction of a person include references to dealing with a person under
section 1(1) of the Probation of Offenders Act 1907”. Thus, there
already exists a statutory provision allowing the court to require an offender
to make good any loss or damage caused by reason of the criminal activity which
brought about the court appearance.
(c)
The Probation of Offenders Act 1907
2.80
The jurisdiction to make an order under section 1(1) of the Probation
of Offenders Act 1907 has been considered above.[161]
In many respects, the 1907 Act provides a legitimate alternative to the court
poor box system. It is unsurprising therefore that it is frequently
applied in the precise circumstances that merit application of the court poor
box. The further potential use of an order under the 1907 Act combined with
an appropriate compensation order is discussed below.[162]
(6)
It impairs confidence in the administration of justice
2.81
The importance of public confidence in the administration of justice
cannot be overstated. This confidence hinges not merely upon the acts (or
omissions) of judges but also the public perception thereof. As Denham J
observed in Kelly v O’Neill,[163] “[w]ithin the concept of the administration of justice is the
people’s right to an independent justice system where justice is not only
done but is seen to be done.”[164] Denham J emphasised “the
importance of the perception of the administration of justice” and reaffirmed
the following passage from the judgment of Lord Hewart CJ in R. v Sussex
Justices, ex
parte McCarthy:[165]
“… a
long line of cases shows that it is not merely of some importance but is of
fundamental importance that justice should not only be done, but should
manifestly and undoubtedly be seen to be done.”[166]
2.82
Having regard to the factors considered in this section, the application
of the court poor box in particular cases may be misinterpreted or
misunderstood by the media and members of the public, thus impairing confidence
in the criminal justice system. Clearly, similar difficulties can arise
in relation to other sentencing options.[167] Nevertheless, the Commission
believes that there are certain aspects of the present court poor box system in
respect of which even an accurate assessment thereof is likely to impair
public confidence in the administration of justice. The receipt,
administration and distribution of court poor box funds by judges is one of the
most troubling aspects of the court poor box system in this regard.
(7)
The receipt, administration and distribution of court poor box funds
form no part of the judicial function
2.83
The receipt, administration and distribution of court poor box funds
raise a number of significant issues. Foremost of these, in the view of
the Commission, is the question of whether these activities are, or ought to
be, a function of the courts. In considering this question, the
constitutional context is paramount.
2.84
The concept of the judicial power is not defined in the Constitution.
Although the courts have been reluctant to attempt an exhaustive definition of
the judicial power,[168]
they have mapped out certain characteristic features of the judicial power in a
number of cases. Indeed, it might be noted that in many such cases, the
scope of the judicial power is in fact delineated by reference to matters which
fall outside its scope, rather than identifying those matters which properly
fall within its ambit. In Lynham v Butler (No. 2),[169]
Kennedy CJ (considering the ambit of the judicial power within the meaning of
Article 64 of the Constitution of the Irish Free State) described it as a
coercive power, “exercised in determining the guilt or innocence of persons
charged with offences against the State itself and in determining the
punishments to be inflicted on persons found guilty of offences charged against
them…”[170]
2.85
In McDonald v Bord na gCon,[171]
Kenny J held that the administration of justice has the following
characteristic features:
“1. a
dispute or controversy as to the existence of legal rights or a violation of
the law;
2. the
final determination or ascertainment of the rights of parties to the imposition
of liabilities or the infliction of a penalty;
3. the
final determination (subject to appeal) of legal rights or liabilities or the
imposition of penalties;
4. the
enforcement of those rights or liabilities or the imposition of a penalty by
the court or by the executive power of the State which is called in by the
court to enforce its judgment;
5. the
making of an order by the court which as a matter of history is an order
characteristic of courts in this country.”[172]
2.86
The characteristics of a judicial body enunciated by Kenny J in McDonald
were endorsed on appeal[173]
and have been reaffirmed by the Supreme Court on a number of occasions since.[174]
In State (Plunkett) v
Registrar of Friendly Societies (No. 1),[175] the Supreme Court held that all five of
the McDonald criteria must be satisfied before an activity will be held
to constitute the administration of justice. In Keady v
Commissioner of An Garda Síochána,[176] McCarthy J stated that “[i]t was
scarcely intended by Kenny J or by [the Supreme Court] to exclude from the
qualifying criteria such matters as were identified by Kennedy CJ in Lynham
v Butler (No. 2),[177]
- authority to compel appearance of a party before it, to compel the attendance
of witnesses, to order the execution of its judgments against persons and
property.”[178]
2.87
Furthermore, it should be noted that the Constitution requires not
merely that justice shall be administered by judges who are independent in the
exercise of their judicial functions but also that they shall be seen to be so.[179]
2.88
Against this background, the constitutional difficulties and dangers
inherent in the receipt, administration and distribution of court poor box
funds by judges are brought sharply into focus. Under the present system,
the extent to which a charity benefits from the court poor box fund is at the
discretion of a judge. As a result, certain charities which are favoured by a judge – or, it
may be perceived, judges generally – benefit to a greater extent than
others. The difficulties in this area are further compounded by the
absence of an approved list of charities and the inevitable questions about
whether certain organisations ought to have benefited from court poor box
funds. A list of the organisations which benefited from such funds in
2002 and 2003 is contained in Appendices D and E to this Paper.
2.89
A final difficulty which arises in this respect is linked to the fact
that payments made from court poor box funds are solely at the discretion of
the particular judge in charge of that fund. Once the decision has been
made as to the precise individual or organisation which is to benefit from the
monies, there is at present no means to ensure that the manner in which the
payment is made does not attract revenue liabilities pursuant to the tax
code. The difficulties raised by this issue will be considered in further
detail below.[180]
2.90
In the light of the foregoing, the Commission believes that the receipt,
administration and distribution of court poor box funds do not form any part of
the function of the courts and, more particularly, are inconsistent
therewith. Specifically, the Commission believes that such activities are
liable to compromise the independence of the judiciary.
(8)
Countering the effects of inflation
2.91
As noted above,[181]
the court poor box has been invoked in order to compensate for what are
perceived to be deficiencies in the legislative code, in this instance the
failure to ensure that the value of fines is kept in line with the rate of
inflation. Whilst judges may of course express dissatisfaction with
legislative deficiencies, they are nevertheless bound to apply the law as it
stands. A further point is that to utilise the court poor box in order to
impose a greater financial penalty than the maximum fine permitted by
legislation may operate to deprive the Exchequer of funds, a matter which has
caused some concern in recent times.[182]
2.92
It can further be suggested that the force of this argument will be
diminished upon the enactment of legislation which indexes fines in accordance
with the recommendations of the Law Reform Commission in its Report on the
Indexation of Fines: A Review of Developments. [183]
(9)
Beneficiaries of court poor box funds
2.93
Whilst it is beyond doubt that court poor box funds generate
substantial, and much needed, monies for many charities, the current system
cannot be described as fully satisfactory. As mentioned above, there is
the complaint that some charities seem to derive far greater benefit from court
poor box funds than others, with no objective criteria or mechanism by which
all charities may apply in order to receive donations from the court poor
box.
2.94
In addition to payments to charitable organisations, it has been
suggested that court poor box funds can be used for the benefit of victims by
providing a “central pool” from which financial assistance can be provided to
victims, removing any direct link between the offender and the victim in
particularly sensitive cases. However, the figures compiled by the Courts
Service indicate that such payments constitute a fraction of the total made
from court poor box funds, with the majority of payments made to organisations.
2.95
It has also been suggested that court poor box funds can be used to
provide financial assistance to offenders in appropriate cases. Although
this notion seems to have been a factor in the early conception of the court
poor box, it appears to be an increasingly rare occurrence under the modern day
court poor box. Thus, in 2002 there was a total of 82 payments made to
individual beneficiaries, and most of these were categorised as either “family
law” or “travel”. The total amount of these 82 payments was €30,380.19; when
contrasted with the total sum disbursed to charitable organisations in that
year – €480,083.21 – it is clear that alleviation of impecunious
offenders in appropriate cases is not the main priority of the court poor box
system. Finally, the practice of disbursing court poor box funds to
impecunious offenders can be subject to the further criticism that it can lead
to inequalities caused, for example, by lack of available funds in poorer
areas, (or indeed unavailability of any such funds in areas where no court poor
box is operated), variability in the method of assessment and inadequacy of
amounts to remove immediate financial pressure.
(10)
The court poor box lacks a clear legal basis
2.96
As noted above, the court poor box does not enjoy a statutory
foundation. Although it can be argued that it is deeply rooted in the
common law,[184] it may also be suggested that, in the
absence of a clear basis for the wide-ranging powers which inhere in the court
poor box system, its application and appropriateness in certain cases lacks the
element of specificity which is ordinarily part of a court’s jurisdiction.
2.97
Fines are payable to the Exchequer unless an order has been made under
section 51 of the Court Officers Act 1926 directing payment to another
body.[185]
Accordingly, it can be argued that the Exchequer is deprived of the revenue
which would otherwise be generated by the imposition of fines.[186]
The sums involved are not trivial. In 2000, over £508,000 (€645,027) was
contributed to the court poor box.[187] In 2001, over £589,000 (€747,875)
was contributed to the court poor box. Contributions to the court poor box
in 2002 totalled some €935,839.20.[188] Provisional figures for 2003 show a
slight increase in the total receipts to the court poor box of €983,030.79.[189]
D
A Potential Alternative to the Court Poor Box
2.98
It is clear from the foregoing that, irrespective of the position taken
in respect of retention or abolition of the court poor box, the system as
currently operated presents serious difficulties. Whilst the options for
reform will be fully considered in Chapter 6, it is instructive at this point
to consider whether there is a potential alternative to the court poor box
system. The Commission considers that section 1 of the Probation of
Offenders Act 1907 and section 6 of the Criminal Justice Act 1993 provide
such a potential statutory alternative.
2.99
As noted above,[190]
section 1(1) of the Probation of Offenders Act 1907 allows a court to
dispose of a case by applying the terms of the Act, after and despite being
satisfied that the charge is proved, where the court is satisfied that in all
the circumstances of the case, “it is inexpedient to inflict any punishment or
any other than a nominal punishment”. Section 1(3) of the 1907 Act
enables the court to impose an additional financial order on an offender in
respect of whom a dismissal under section 1(1) has been made, but its terms are
subject to a significant limitation which has probably led to its falling into
disuse. Section 1(3) of the 1907 Act provides as follows:
“The
court may … order the offender to pay such damages for injury or compensation
for loss (not exceeding in the case of a court of summary jurisdiction ten pounds,
or if a higher limit is fixed by any enactment relating to the offence, that
higher limit) and to pay such costs of the proceedings as the court thinks
reasonable …”[191]
2.100
The reference to £10 in the 1907 Act has not been updated since that
time and now reads €12.[192]
It is clear that a compensation order under section 1(3), limited to €12, has
little practical value and it is not surprising that it has fallen into
disuse. Indeed, it may be surmised that the increased use of the court
poor box as a disposition in conjunction with section 1(1) of the 1907 Act has
coincided with the diminishing practical value of section 1(3) of the 1907 Act.
Whatever the reason, the Commission considers that the statutory reference to
compensation orders in section 1(3) of the 1907 Act represents a significant
potential alternative basis for reform.
2.101
The Commission also notes that this area is now governed by the terms of
section 6 of the Criminal Justice Act 1993, which sets out a scheme for
compensation orders. Section 6(1) provides:
“on
conviction of any person of an offence, the court, instead of or in addition to
dealing with him in any other way, may, unless it sees reason to the contrary,
make (on application or otherwise) an order (in this Act referred to as a
"compensation order") requiring him to pay compensation in respect of
any personal injury or loss resulting from that offence (or any other offence
that is taken into consideration by the court in determining sentence) to any
person (in this Act referred to as the "injured party") who has
suffered such injury or loss”.
As noted above,[193]
section 6(12)(b) of the Act provides that “references to conviction of a person
include references to dealing with a person under section 1(1) of the Probation
of Offenders Act 1907”.
2.102
The precise interrelationship between section 1(3) of the Probation
of Offenders Act 1907 and section 6 of the Criminal Justice Act 1993 is
unclear. On one view, it might be suggested that section 6 of the 1993
Act has effectively superseded that part of section 1(3) of the 1907 Act
dealing with the payment of compensation. Alternatively, it may be the
case that the sections stand separate, on the grounds that section 6 of the Criminal
Justice Act 1993 deals with specific instances of loss or damage in cases
where there is an identifiable “victim”, whereas section 1(3) of the Probation
of Offenders Act 1907 is more wide-ranging, at least in principle, allowing
payments of compensation (limited of course to €12) as evidence of an “earnest
of intention to reform” in cases where there is no single “victim” or instances
of physical loss or damage caused.
(a)
Limitations on the Probation of Offenders Act 1907
2.103
Whatever the conclusion as to the overlap between the 1907 and 1993
Acts, a major limitation on the existing provisions of the 1907 Act is that the
amount payable pursuant to section 1(3) of the Probation of Offenders Act
1907 has never been increased from £10 (€12). The Commission is of
the view that section 1(3) of the 1907 Act comprises a potentially useful
alternative to the court poor box system, which already enjoys legislative
imprimatur and thereby avoids some of the objections which can be made in
relation to the court poor box. If amended (or recast as part of any
scheme designed to place the court poor box on a statutory footing), section
1(3) could provide a flexible and invaluable tool in the armoury of judges by
allowing the courts to require an offender either to pay an amount of
“compensation” in the generally understood sense, provide a sum of money as
evidence of an “earnest of intention” or even make a contribution towards the
costs which have arisen as a result of the case.
2.104
If it is accepted that section 1(3)
of the 1907 Act constitutes a potential and preferable alternative to the court
poor box, it would remain to amend the maximum amount payable pursuant to
section 1(3). In this respect, it might be suggested that an attractive
option would be to adopt the approach taken in section 6(2) of the Criminal
Justice Act 1993, and limit the maximum amount payable to “the amount as
may stand prescribed for the time being by law as the limit of that Court's
jurisdiction in tort.” Currently this stands at €6,350 for the
District Court and €38,100 for the Circuit Court.[194]
(b)
Limitations on section 6 of the Criminal Justice Act 1993
2.105
One final point which should be addressed in this context is the
limitations on the scheme for Compensation Orders set out in section 6 of the Criminal
Justice Act 1993. The terms of a compensation order are limited to
“requiring [the offender] to pay compensation in respect of any personal injury
or loss resulting from the offence in question … to any person … who has suffered
such injury or loss”.[195] The only definition of “injured
party” under the Act is of a person who suffered injury or loss, and on this
basis it would appear that the section is limited to requiring payment of compensation
to actual victims of criminal activity.[196] Thus, it would seem unlikely that
section 6(1) of the 1993 Act could be invoked, for example, in cases involving
public disorder where the only “victim” might be regarded as the public at
large, as taxpayers. However, consideration could be given to amending
the terms of the 1993 Act to allow a court to impose a compensation order,
which is payable to the State in cases where there is no identifiable person who
has suffered injury or loss or where the injured party is reluctant to accept
compensation from the offender. [197]
2.106
For ease of reference, it is appropriate to summarise the principal
arguments for and against the present court poor box system and the
Commission’s views in respect thereof.
(1)
Summary of arguments in favour of the court poor box
system (as currently applied)
2.107
The principal arguments in favour of the present court poor box system may be summarised as
follows.
2.108
First, the court poor box may avoid or reduce the need to impose a
conviction or custodial sentence. For a variety of reasons a court may
consider that it would be inappropriate or unduly harsh to impose a conviction
on the offender in all the circumstances of the case. A particular
concern in this regard is the permanency of a conviction and the future impact
such a record might have on the accused, as it might arise in relation to such
matters as obtaining a visa for travel or work abroad. Furthermore, it
may be said that the court poor box accords with the generally recognised
principle that a term of imprisonment should be imposed only as a last
resort. It can also be said that the court poor box accords with the
principles of restorative justice.
2.109
Secondly, it can be argued that the poor box enables the court to
determine an appropriate punishment for the commission of a criminal offence
having regard to all of the circumstances of a case. This argument
encompasses a number of specific propositions which are founded upon
fundamental principles of constitutional law and sentencing law. Thus,
the court is enabled to determine an outcome that is proportionate to the
gravity of the offence having regard to:
(a)
the personal circumstances of the offender having regard to all of the
circumstances of the case;
(b)
the means of the offender;
(c)
whether the offender had never previously committed the offence in
question (or any other offence);
(d)
whether the offender made an early admission and pleaded guilty to the
offence(s) in question;
(e)
whether the offender is genuinely remorseful;
(f)
the need to punish a person without also (or at least unduly) punishing
his or her family;
(g)
whether the age of the person justifies (at least in part) a reduced
punishment; and
(h)
the need to achieve a just result and to avoid an unjust one.
2.110
The constitutional dimension to the foregoing arguments merits
emphasis. Thus, a person who has been convicted of an offence enjoys a
fundamental constitutional right to receive a sentence that is proportionate to
the gravity of that offence and his personal circumstances and there is a
concomitant obligation on the State, including the courts, to protect and
vindicate that right. By way of analogy, it can be argued that it is
incumbent upon the State to adopt and apply a system like the court poor box
system which affords the courts a wide range of discretionary sentencing
options, thereby enhancing the capacity of the courts to reach an outcome which
is appropriate having regard to all of the circumstances of a case.
2.111
Thirdly, charities and victims of criminal offences benefit from the
payments which are made to the court poor box. In appropriate
circumstances, impoverished offenders may also benefit from such payments.
2.112
Fourthly, it can be argued that it provides a mechanism for countering
the effects of inflation on maximum fine values. The maximum fines which
can be imposed for particular offences are specified in legislation but their
value is eroded over time by the effects of inflation. As a result, even
where a court imposes a maximum fine, such a fine may not reflect the gravity
of the offence in question or the true maximum fine which the legislature had
intended. It has thus enabled judges to structure a penalty which
constitutes an appropriate admonishment in respect of the particular offence
with which a person has been charged and in the light of all relevant
circumstances.
2.113
Fifthly, the court poor box system dovetails effectively with section
1(1) of the Probation of Offenders Act 1907 because it affords the court
a means of dealing with an offender in circumstances where some financial
penalty is merited but a conviction and any other sentence would be
inappropriate. Thus, it is argued that the court poor box system enables
the court to determine an outcome which strikes an appropriate balance between
the “extremes” of an order under section 1(1) of the Probation of Offenders
Act simpliciter and a conviction and fine.
2.114
Sixthly, the court poor box system is founded upon the exercise of the
discretionary powers of the court, an integral component of a process whereby
the outcome of a prosecution is determined in the light of all of the relevant
circumstances of a case.
(2)
Summary of arguments against the court poor box system (as currently
applied)
2.115
The principal arguments against the present court poor box system may be
summarised as follows.
2.116
First, it can be argued that the court poor box affords a means of
“buying” one’s way out of a conviction and/or a term of imprisonment, but the
Commission is not persuaded by this argument.
2.117
Secondly it can be argued that the court poor box is perceived as
a means of buying one's way out of a conviction and/or a term of
imprisonment. The Commission agrees that, where the court concludes, in
the light of all of the circumstances, that a term of imprisonment would not be
appropriate and also applies the court poor box, the perception that a
contribution to the court poor box was the primary or, indeed, the sole factor
which caused the offender to escape a term of imprisonment is likely to
obtain. This is particularly likely where the offender makes a
substantial contribution to the court poor box. The Commission believes
that such perceptions, even if at least in some respects ill-founded, are
damaging to the administration of justice and constitute a serious cause for
concern.
2.118
Thirdly, it can be argued that the court poor box causes offenders whose
circumstances are similar to be treated differently, contrary to Article 40.1
of the Constitution. Put simply, one aspect of this is that it creates
“one law for the rich and another for the poor”. Although the Commission
is of the view that the majority of judges who apply the court poor box do not
in fact apply it in such a discriminatory fashion, the Commission nevertheless
confirms its view that it is incompatible with Article 40.1 to deal with
offenders who are charged with the commission of the same offence, and whose
personal circumstances only differ (in any material respect) in relation to
their means, in such a way that affluent offenders can, by virtue of their
affluence, avoid a conviction and/or a term of imprisonment while impoverished
offenders are unable to do so because of their lack of means.
2.119
To the extent that there are residual concerns about the court poor box
system in the light of Article 40.1, the Commission believes that they can best
be addressed by a conscious application of the court poor box by way of analogy
with established principles of sentencing law and, in particular the principle
that a sentence must be proportionate to the crime and the personal/financial
circumstances of the offender. Accordingly, an affluent offender should
have to make a contribution to charity which is significantly greater than the
contribution of an offender with limited means, notwithstanding that both
offenders committed the same offence.
2.120
A second aspect of inequality relates to the inconsistency with which it
is applied by judges. It is undoubtedly true that the court poor box is
not applied to an equal extent by all judges. Some judges do not apply
the court poor box at all. Other judges apply it to varying degrees: some apply
it very frequently while others only apply it on a limited basis and only in
respect of certain types of offences and/or in particular circumstances.
However, in this regard, it should be emphasised that simply because a sentence
imposed by one judge for a particular offence appears to differ from that
imposed by another judge (or even the same judge) in respect of another (but
similar) offence is not in itself an indication that the offenders have been
treated differently by the courts. It may be that the background,
character and antecedents of a particular person are such as to merit an
outcome which is more or less lenient than that imposed on another person who
committed the same offence.
2.121
Fourthly, some offences in respect of which the court poor box is
applied are not trivial and may merit significant fines or terms of
imprisonment. Many view the use of the poor box in such cases as highly
inappropriate, and this practice may add to the extent of the harm caused by
negative perceptions of the circumstances in which the court poor box is
applied, and the types of offenders in respect of whom it is
applied.
2.122
Fifthly, it can be argued that there are alternative means of dealing
with a person which obviate the need for the court poor box. It should be
noted that certain alternative measures are not available in the context of the
Probation of Offenders Act 1907 – such as community service orders,
which can only be imposed following conviction. However, this is not the
case in respect of compensation orders under section 6 of the Criminal
Justice Act 1993, which provides that for the purposes of that section, a
reference to a convicted person includes a person whose case was disposed of by
reference to section 1(1) of the Probation of Offenders Act 1907.
2.123
Sixthly, it can be argued that, because of its non-statutory basis,
judges have no defined jurisdiction to apply the court poor box. Although
it appears to be deeply rooted in the common law, it can be argued that, in the
absence of a clear statutory basis for the wide-ranging powers which inhere in
the court poor box system, its application and appropriateness in particular
cases lacks the element of specificity which is ordinarily part of a court’s
jurisdiction.
2.124
Seventhly, it can be argued that the court poor box system impairs
confidence in the administration of justice. The importance of public
confidence in the administration of justice cannot be overstated. The
application of the court poor box in particular cases may be misinterpreted or
misunderstood by the media and/or members of the public, thus impairing
confidence in the criminal justice system.
2.125
Eighthly, it can be argued that difficulties arise in relation to
beneficiaries of court poor box funds. Thus, the absence of any objective
criteria or mechanism by which charities qualify as eligible to benefit from
court poor box funds means that some charities benefit to a far greater degree
than others. In relation to application of poor box funds for the benefit
of impecunious individuals, it also appears that this particular use of the court
poor box is quite limited.
2.126
Ninthly, it can be argued that the receipt, administration and
distribution of court poor box funds should preferably form no part of the
judicial function and are inconsistent therewith. The Commission agrees with
this argument. The Constitution requires not merely that justice shall be
administered by judges who are independent in the exercise of their judicial
functions but also that they shall be seen to be so. Under the present
system, the extent to which a charity benefits from the court poor box fund is
at the discretion of a judge. The difficulties in this area are further
compounded by the absence of an approved list of charities who should benefit
from court poor box funds. In addition, there is at present no procedure
which ensures that the manner in which the payment is made does not attract
revenue liabilities pursuant to the tax code. In this light, the
Commission believes that the distribution of monies from the court poor box to
various charitable and non-charitable organisations diminishes the independence
of the courts, or at least may be perceived as doing so, and to that extent
such activities are damaging to the administration of justice.
2.127
Tenthly, the Exchequer is deprived of the revenue which otherwise may
have accrued to it from the levying of fines.
(3)
A potential alternative to the court poor box
2.128
Given the difficulties with the existing arrangements, the Commission
considers that an updated version of section 1(3) of the Probation of
Offenders Act 1907 combined with section 6 of the Criminal Justice Act
1993 provides the basis for a potential alternative statutory jurisdiction
to the court poor box system. Section 1(3) of the 1907 Act allows a court
to require an offender to provide compensation to any person who has suffered
loss or damage as a result of the offender’s activities, but the maximum amount
payable is currently fixed at €12. Section 6 of the 1993 Act sets out a
scheme for requiring an offender to pay compensation to any injured party who
has suffered loss or damage as a result of the offender’s activities. The
maximum amount payable pursuant to the 1993 Act is the equivalent of the
ceiling of the court’s jurisdiction in tort.
2.129
These sections represent a potential future alternative to the court
poor box in that they allow a court to apply section 1(1) of the Probation
of Offenders Act 1907 but still require the offender to make some “earnest
of intention” or financial contribution. Furthermore, such an alternative
would appear to avoid many of the criticisms levelled at the court poor box as
considered above.
2.130
However, it should be noted that these sections are limited; the maximum
amount payable pursuant to section 1(3) of the Probation of Offenders Act
1907 is currently capped at €12, which is too low to be of any real
effect. A more serious limitation on these sections is the fact that both
require the existence of an injured party to whom the monies are then
payable. Many of the cases which are currently disposed of by way of a
contribution to the court poor box involve “victimless crimes”, particularly in
respect of public disorder offences. The question of whether it is possible
to extend the scope of these sections to provide an expanded jurisdiction which
would replace the current court poor box system will be considered in detail in
Chapter 6.
2.131
The Commission provisionally recommends that the court poor box
system be reformed by avoiding the inappropriate features which currently
exist, but retaining its positive and important aspects. The Commission
provisionally recommends that the court poor box jurisdiction should be
replaced by a statutory scheme based on the provisions of the Probation of
Offenders Act 1907 and the Criminal Justice Act 1993 which would provide a
revised method of avoiding a conviction for minor offences while introducing an
appropriate system allowing for the making of a financial contribution akin to
an “earnest of intention”, which also accords with the principles of
restorative justice.
2.132
The Commission considers that any such scheme should not be applied
in cases where a conviction has been recorded. This arises partly from a
recognition of the underlying rationale of such a scheme, namely a concern to
avoid imposing a conviction (akin to allowing a first time offender “one
chance”). Furthermore, the Commission believes that the application of
the court poor box scheme in cases where a conviction has been recorded leads
to accusations that offenders can “buy” their way out of a prison
sentence. The Commission believes that such perceptions, although
ill-founded, are nevertheless harmful to the administration of justice, which
must not only be done, but seen to be done.
3.
Chapter 3
the charitable and revenue implications of the court poor box system
3.01
In this Chapter, the Commission considers the implications of the
operation of the court poor box system from the perspective of charity law in
general, and also in connection with the taxation system. Concern has
been expressed by the Comptroller and Auditor General that in its current state
the court poor box system deprives the Exchequer of funds.[198]
3.01
Whilst as a general rule, trusts for purposes rather than for the
benefit of persons are invalid, charitable trusts which are considered to be
for the public benefit constitute an exception to this principle.[199]
Charitable trusts are considered as being for the benefit of the public
generally or at least for an appreciable section of it and for this reason have
traditionally enjoyed a number of advantages over other types of trust.
3.02
The most significant of these advantages is the fact that charitable
trusts enjoy a number of exemptions from liability to various forms of
taxation. Sections 207 and 208 of the Taxes Consolidation Act 1997 grant
exemptions from income tax in respect of income accruing to charitable bodies
or trusts established for charitable purposes to the extent that such income is
applied for charitable purposes.[200] Corrigan notes that
“[e]xemptions available under the income tax code are also available under the
corporation tax code so that, for instance, companies limited by guarantee, a
favoured choice of charitable structure bringing with it limited liability,
also qualify for the exemption”.[201] Exemptions also apply in respect
of capital taxes, and a capital gain which accrues to a charity is not
chargeable to capital gains tax provided that it is applied for charitable
purposes.[202]
In addition, section 76(2) of the Capital Acquisitions Tax Consolidation Act
2003 provides that a gift or inheritance taken for public or charitable
purposes will be exempt from capital acquisitions tax provided that the Revenue
Commissioners are satisfied that it has been or will be applied to such
purposes. Finally, it should be noted that by virtue of section 45 of the Finance
Act 2001, charities can now reclaim the tax paid on donations made to them.
B
Charitable Law Implications of the Court Poor
Box System
(1)
The “Pemsel” classification of charitable trusts
3.03
The Irish courts rely on the classification of trusts for charitable
purposes which was set out by Lord MacNaghten in Commissioners of Income Tax
v Pemsel[203]
as a starting point in the classification of charitable trusts. In Pemsel,
Lord MacNaghten divided such trusts into four broad categories:
(i) trusts for the relief of poverty;
(ii) trusts for the advancement of education;
(iii) trusts for the advancement of religion; and
(iv) trusts for other purposes beneficial to the community.
3.04
These categories are generally understood to delineate the boundaries of
the legal recognition of trusts for charitable purposes, though it is important
to note that the categories are not mutually exclusive. As Delany notes:
“this
classification is one of convenience only and … there may be purposes which do
not fit neatly into one or other of these categories, or which fit into one or
more categories at the same time … [I]t has nevertheless over the last century
provided the basis on which the courts both in this jurisdiction and in England
have approached the question of whether a trust should be accorded charitable
status.”[204]
For the sake of completeness, a brief outline of the scope of each of
the Pemsel categories of trusts for charitable purposes is set out
below.[205]
(a)
Trusts for the relief of poverty
3.05
As Corrigan notes,
“[p]overty
in this context does not mean destitution but refers instead to the relief of
persons who have to “go short” in the ordinary meaning of the term, due regard
being had to their status in life”.[206]
Although it
is generally a prerequisite to a finding of a trust for charitable purposes
that there be an element of “public benefit” administered by the organisation
in question,[207]
it was held by Evershed MR in Re Scarisbrick’s Will Trusts[208]
that the public benefit requirement was of lesser importance in relation to
trusts for the relief of poverty on the grounds that “the relief of poverty is
of so altruistic a character that the public element may necessarily be
inferred thereby”.[209]
3.06
It should also be noted in this context that in a Revenue Precedent,
the Revenue Commissioners have stated that a gift to a narrow class of persons
for the relief of poverty is a valid charitable gift if the gift is expressly
for the relief of poverty.[210]
(b)
Trusts for the advancement of education
3.07
Trusts for the advancement[211] of education have long been afforded
charitable status.[212]
However, as Delany notes, “the concept of what is ‘educational’ in the sense of
what will be recognised as legally charitable has been widened considerably
over the last fifty years by a process of judicial interpretation”.[213]
Thus, for example, Vaisey J held in Re Shaw’s Will Trusts[214] that “education includes … not only teaching, but also
the promotion or encouragement of those arts and graces of life which are,
perhaps, the finest and best part of the human character”.[215] This approach has been confirmed in
Irish law by the judgment of Keane J in Re Worth Library, where he held
that:
“[G]ifts
for the advancement of education … would embrace, not merely gifts to schools
and universities and the endowment of university chairs and scholarships:
‘education’ has been given a broad meaning so as to encompass gifts for the
establishment of theatres, art galleries and museums and the promotion of
literature and music. In every case, however, the element of public benefit
must be present and, if the benefit extends to a section of the community only,
that section must not be numerically negligible.”[216]
3.08
Despite the generally broad scope given to the concept of “trusts for
the advancement of education” by the judiciary, it should be noted that one
important limitation was established in Bonar Law Memorial Trust v IRC,[217]
where it was decided that a trust established for the purpose of advancing
education in the area of political thought was not charitable, on the grounds
that the terms in which the gift was phrased was intended to operate to the
benefit of a particular political party.[218] However, the breadth of the scope
of the concept of “trusts for the advancement of education” was recently
confirmed by the Revenue Commissioners in a Revenue Precedent which
included references to an organisation established to foster enterprise,
cultural and educational interests between two countries, and also “a tour of
Africans in Ireland to educate the Irish public in the area of African
culture”.[219]
(c)
Trusts for the advancement of religion
3.09
It was confirmed by Walsh J in Quinn’s Supermarket v Attorney General[220]
that notwithstanding the references to the Christian nature of the State in
Article 44 of the Constitution, religion is not confined to the Christian
faith. However, Delany has suggested that “it would be unwise to
speculate unduly on the question of whether the courts in this jurisdiction
would be prepared to stretch the meaning of ‘religion’ to the extent to which
their counterparts elsewhere in the common law world have done.”[221]
3.10
The scope of this category is illustrated by Corrigan by
reference to the types of purposes which have been deemed charitable under this
category, which include the following:
(i)
donations to ecclesiastical office holders in their professional
capacity;[222]
(ii)
gifts for the celebration of masses;[223]
(iii)
gifts for the erection, upkeep, maintenance and repair of churches,
tombs, vaults and monuments;[224]
(iv)
retirement homes for priests of a particular order.[225]
3.11
Finally, it should be noted that in order to resolve some confusion
which arose as to whether or not gifts to some religious organisations
satisfied the public benefit requirement,[226] section 45(1) of the Charities Act
1961 provides as follows:
“In
determining whether or not a gift for the purpose of the advancement of
religion is a valid charitable gift it shall be conclusively presumed that the
purpose includes and will occasion public benefit.”
(d)
Trusts for other purposes beneficial to the community
3.12
The final Pemsel category of trusts for charitable purposes has
been described as “the most difficult of Lord MacNaghten’s classes of
charitable trust to define and delimit”.[227] This category includes purposes
which do not fall within any of the three categories already considered but
which are nevertheless beneficial to the community in a way recognised by the
law as charitable. This final category is not intended to act as a “catch-all
provision”, a point which was emphasised by Viscount Cave in Attorney
General v National Provincial and Union Bank of England Ltd,[228]
where he stated as follows:
“Lord
MacNaghten did not mean that all trusts beneficial to the community are
charitable, but that there were certain charitable trusts which fell within
that category; and accordingly to argue that because a trust is for a purpose
beneficial to the community it is therefore a charitable trust is to turn round
his sentence and to give it a different meaning. So … it is not enough to say
that the trust in question is for public purposes beneficial to the community
or is for the public welfare; you must also show it to be a charitable trust.”[229]
3.13
As in the case of trusts for the advancement of education, it is
informative to refer to Corrigan’s list of activities which have been deemed
charitable under this heading,[230] as follows:
(i)
bequests for the aged[231]
and sick;[232]
(ii)
a home for starving and forsaken cats;[233]
(iii)
a gift to a council to encourage and provide a means of healthy
recreation for residents of a certain area;[234]
(iv)
the improvement[235]
and the provision of a water supply[236] to a town;
(v)
the establishment of a house of rest for nurses;[237]
(vi)
the protection of lives or property of the community such as a lifeboat
or fire brigade service;[238]
(vii)
the provision of advice whether financial or legal for the benefit of
the community.[239]
3.14
Reference should be made to the types of purposes and organisations
which are deemed to fall outside the scope of trusts for other purposes
beneficial to the community. It was held in National Anti-Vivisection
Society v IRC[240]
that an anti-vivisection trust could not be regarded as charitable, on the
basis of a finding of fact made by the court that the benefits of vivisection
to the public outweighed animal suffering. Finally, it should be noted,
that “[i]t is well-established that trusts for the advancement of political
purposes are not charitable and as a result gifts for the benefit of specific
political parties will clearly not qualify for charitable status.”[241]
However, it can be difficult to identify the distinction between trusts bona
fide for the advancement of education from those which are simply disguised
as being for such a purpose and are in fact designed to promote political
purposes.[242]
(e)
Recommendations of Department of Community, Rural and Gaeltacht Affairs
3.15
Finally, for the sake of completeness, reference should be made to the
recommendations of the Department of Community, Rural and Gaeltacht Affairs in
its recent paper on Establishing A Modern Statutory Framework for Charities.[243]
This paper arose as a result of a commitment from the government to
undertake “a comprehensive reform of the law relating to charities … to ensure
accountability and to protect against abuse of charitable status and fraud”.[244]
3.16
Of interest in this context are the recommendations of the paper in
relation to the definition of “charity” under Irish law. The paper refers
to the fact that “there has been considerable criticism of the [Pemsel]
classification as being outdated and unsatisfactory”.[245] The paper proposes the
introduction of a statutory definition which would codify and replace the
current common law position, setting out clear charitable purposes of public
benefit. However, in order to ensure conformity between the new statutory
definition and the well established existing principles, the paper recommends
that the new definition should “keep in line with the interpretation of
charitable purposes as currently determined by the Revenue Commissioners”.[246]
3.17
Thus, the formulation proposed for this new statutory definition,
informed by both common law precedent and the experience of other common law
jurisdictions, is as follows:
“
‘Charitable purposes’ could cover:
§ The advancement of health, which
includes the prevention and relief of sickness, disease or of human suffering;
§ The advancement of education;
§ The advancement of community welfare, which
includes:
§ the prevention and relief of poverty,
distress or
disadvantage,
§ the care, support and protection of the aged
and
people with a disability,
§ the care, support and protection of children
and
young people, and
§ the promotion of community development;
§ The advancement of religion;
§ The advancement of the natural environment;
§ Other purposes beneficial to the community,
which include:
§ the prevention and relief of suffering
of animals;
§ the promotion and fostering of culture,
and
§ the care, preservation and protection of the
Irish
heritage.”[247]
3.18
Whilst it is clear that this new definition draws on the established
rules of the Pemsel classification, there are clearly some new elements
added, and also a certain amount of amalgamation of previously separate
categories. For example, this is clearly the case in relation to the
sub-categories under “trusts for the advancement of community welfare” which
absorbs the previously distinct category of trusts for the relief of
poverty. How these recommendations will be received, and whether they
will be adopted wholesale or with some modification, remains to be seen.
C
Appropriate Scope of Application of Court Poor
Box Funds
(1)
Court poor box funds and the Pemsel classification
3.19
Having briefly considered the scope of the Pemsel categories of
trusts which are legally regarded as trusts constituted for charitable purposes,
one question remains outstanding in relation to the court poor box as currently
administered. Given that the definition of a “trust for the relief of
poverty” has been quite tightly circumscribed by the case law, as outlined
above,[248]
is it then the case that the “court poor box” by definition should benefit only
those charities which fall under this heading of the Pemsel classification?
3.20
The question of which of the Pemsel categories should be entitled
to benefit from court poor box funds is, on one view, a simple policy choice;
however, the Commission is of the view that it is appropriate to point out that
some of the Pemsel categories could be problematic from an
administrative perspective. Specifically, the Commission is of the view
that “trusts for the advancement of education”, “trusts for the advancement of
religion”, and “trusts for other purposes beneficial to the community”, should
be excluded from the scope of potential beneficiaries of court poor box
funds.
3.21
Addressing first the concerns which might be raised in relation to
“trusts for the advancement of education”, the Commission is of the view that
this Pemsel category as elucidated by the case law is simply too broad
and indeterminate. Although the charitable status of trusts involved in
the advancement of education, as understood on a traditional, orthodox basis (eg
gifts to schools and universities, scholarships etc) can scarcely be
questioned, one can envisage some difficulty in delimiting the scope of the
category in light of the courts’ self-professed “broad meaning” approach, as per
Keane J in Re Worth Library.[249] On the basis of references
in the case law on trusts for the advancement of education to such concepts as
the “arts and graces of life”[250] and general “mind widening” purposes,[251]
the Commission is satisfied that it would be preferable that trusts for the
advancement of education be excluded from the scope of beneficiaries of court
poor box funds.
3.22
The Commission is of the view that “trusts for the advancement of
religion” should also be excluded from the pool of potential beneficiaries of
court poor box funds. The rationale behind such a view can be stated as
follows: the Commission believes it would be simply inappropriate for judges to
adjudicate between the merits of different religious organisations in terms of
neediness and worthiness, and one can all too easily envisage circumstances
where controversy would follow a decision of a judge administering court poor
box funds for the benefit of a specific religious organisation, ostensibly at
the expense of other established religious organisations.
3.23
With regard to the recommendation that “trusts for other purposes
beneficial to the community” be excluded from the pool of potential beneficiaries
of court poor box funds, it is again administrative concerns which inspire the
Commission’s views. The fourth Pemsel category remains, in spite
of a large body of case law devoted to the delineation of this class, somewhat
nebulous in scope. Its potential for the inclusion of quasi-political and
other such activities, and the difficulty in assessing whether a particular
organisation would fall within or outside the scope of this Pemsel category,
ultimately suggest that it would be best practice to circumvent any
difficulties in this regard by excluding such trusts from the scope of
application of court poor box funds.
3.24
The Commission recommends that funds generated by the court poor box,
or any replacement scheme, should be applied only for the benefit of “trusts
for the relief of poverty”. Accordingly, it is recommended that trusts for the
advancement of education, religion and trusts for other purposes beneficial to
the community should be excluded from the scope of application of court
poor box funds.
(2)
Possibility of “ring fencing” court poor box funds
3.25
One further question which arises is whether it would be possible, under
any replacement scheme for the court poor box system, to ensure that the funds
generated are “ring fenced”, that is, maintained separately from the general
pool of Exchequer funds, and applied exclusively for the benefit of charitable
organisations. Section 51(1) of the Court Officers Act 1926
provides that:
“Save as is
otherwise provided under this section, all fines, amerciaments, penalties and
forfeited recognisances imposed or levied by any court after the appointed day
shall be paid into or disposed for the benefit of the Exchequer in such manner
as the Minister for Finance shall direct and notwithstanding any enactment to
the contrary, no part of any such fine, amerciament, penalty, or recognisance
shall be paid or allowed to any prosecutor, informer, or other person or paid
into any fund.”
3.26
A legislative precedent for the ring fencing of monies for the benefit
of a specific fund is the environment fund, which was recently established to
disburse funds raised by levies on plastic bags and landfills. Section 72
of the Waste Management Act 1996[252] provides for the introduction of an
environmental levy in respect of the supply to customers of plastic bags.
The amount of the levy is fixed by statutory instrument, and is currently set
at €0.15 by Article 4 of the Waste Management (Environmental Levy) (Plastic
Bag) Regulations 2001. A similar scheme exists in respect of
landfills, pursuant to the Waste Management (Landfill Levy) Regulations
2002.
3.27
Section 73 of the Waste Management Act 1996[253] establishes the Environment
Fund. The purposes for which this fund is to be applied are set out in
section 73(9) of the 1996 Act, which specifies no less than thirteen specific
activities in the area of waste management, waste re-use, recycling and other
related environmental initiatives.
3.28
Of interest to the Commission in this regard is the manner in which the
funds, the subject of the environment levy, are collected, and “ring fenced”; ie
maintained separately from the general pool of Exchequer
receipts. Article 9 of the 2001 Regulations designates the Revenue
Commissioners as the “collection authority” for the plastic bag levy. The
Department of the Environment, Heritage and Local Government has confirmed that
once the Revenue Commissioners, as the collection authority, have collected the
levies in question, those funds are automatically transferred to the
Environment Fund which is administered by the Department of the Environment.
3.29
The question which may be asked in relation to the court poor box, or
any replacement scheme, is whether it would be possible to introduce a similar
scheme in relation to such funds. In such instance, it might be proposed
that monies generated by the court poor box would be paid into the Exchequer
but “ring fenced” in that they could be applied only for charitable
purposes. Whilst a precedent for such a scheme exists in the Environment
Fund, it should be noted that there are some differences between these schemes.
3.30
The first point to note is in relation to the role of the collection
authority. The plastic bag levy, as a type of fine, is collected by the
Revenue Commissioners and subsequently transmitted to the Environment Fund.
This is an entirely different situation to the question of whether it is
possible to maintain funds separately which are initially paid into the
Exchequer and subsequently applied for a particular purpose.
3.31
Furthermore, there is the question of the administration of poor box
funds. Whilst the Environment Fund is administered by the Department of
the Environment, Heritage and Local Government pursuant to the terms of the Waste
Management Acts, it would appear that there is currently no existing
bureaucracy capable of undertaking the administration of poor box funds.
This raises one of the fundamental problems in relation to the court poor box;
the administration of funds received and distributed appears to be a major
difficulty in the successful operation of such a system. One proposal to
remedy this difficulty is to recommend that a separate fund be established
within an appropriate government department, for example, Department of
Community, Rural and Gaeltacht Affairs, on a similar basis to the operation of
the Environment Fund by the Department of the Environment, Heritage and Local
Government. Further consideration will be given to the question of the
appropriate body for the administration of poor box funds below.[254]
D
Revenue Implications of Charitable Status
3.32
As noted above,[255] one of the most significant advantages
associated with recognition of charitable status is the fact that charitable
trusts enjoy a number of significant fiscal immunities in terms of exemptions
from liability to various forms of taxation. Whilst such advantages
include exemptions from income tax, a reduced rate of corporation tax and
possible exemption from capital gains tax, the most important exemption for
present purposes arises in relation to the Capital Acquisitions Tax code.[256]
3.33
A charge to Capital Acquisitions Tax arises where, as a result of a
disposition, any person becomes beneficially entitled in possession to any
benefit other than for full consideration in money or money’s worth, as
provided by sections 4 and 5 of the Capital Acquisitions Tax Consolidation
Act 2003. However, a gift or an inheritance which is taken for a
charitable purpose will be exempted from Capital Acquisitions Tax to the extent
that the Revenue is satisfied that it has been, or will be, applied to purposes
which are charitable in law.
3.34
In order for a charitable organisation to avail of this exemption to
CAT, an application is made to the Revenue Commissioners for a “CHY number”.[257]
In order to obtain recognition as a trust established for charitable purposes,
the organisation concerned must establish:
(a)
that it falls within one of the Pemsel categories of charitable
trust;
(b)
that the organisation has been legally established in the State and has its
centre of management and control therein;[258]
(c)
that the objects and powers of the organisation are framed so that every
object to which its income can be applied is charitable;[259] and
(d)
that the organisation is bound, as to its main objects, and the
application of its income or property, by a governing instrument (eg
Memorandum and Articles of Association in respect of an incorporated body, or
deed of trust, constitution or rules in the case of an unincorporated body).
3.35
If the Revenue is satisfied that each of these requirements has been
fulfilled, a decision will be made to grant charitable tax exemption pursuant
to section 207 of the Taxes Consolidation Act 1997. Upon this
decision, a charity reference number eg CHY 1111 will be issued. The
exemption granted is a blanket exemption to all potential capital acquisitions
tax liability; there is no obligation to renew this status on an annual basis,
although the accounts of the organisation may be inspected by the Revenue at
its discretion in order to determine that the organisation remains in
compliance with the requirements outlined above.
(1)
Non-charitable beneficiaries and the principles of primary and secondary
liability
3.36
As noted above, section 5 of the Capital Acquisitions Tax
Consolidation Act 2003 provides that a charge to CAT will arise “where,
under or in consequence of any disposition, a person becomes beneficially
entitled in possession … to any benefit … otherwise than for full consideration
in money or money’s worth …”. Liability to CAT may arise either directly,
on the basis of a primary liability; or indirectly, as a secondary
liability. According to the principle of primary liability, the person on
whom the burden of discharging the liability to CAT falls is the person
receiving the gift. This is clear from section 45(1) of the Capital
Acquisitions Tax Consolidation Act 2003, which provides that “[t]he person
primarily accountable for the payment of tax shall be … the donee”.
3.37
However, in the event of the person bearing the primary liability
failing to discharge the amount owed to the Revenue, the terms of the CAT Acts
make provision for this scenario by virtue of the principle of secondary
liability. This arises from the wording of the relevant provisions of the
Capital Acquisitions Tax Consolidation Act 2003. Section 45(2) of
the 2003 Act provides:
“ …
the following persons shall also be accountable for the payment of any amount
of the tax for which the persons referred to in [section 45(1)] are made
primarily accountable-
(a) in the
case of a gift-
(i) the
disponer …
(ii) every trustee, guardian, committee,
personal representative, agent or other person in whose care any property
comprised in the gift or the income from any such property is placed at the
date of the gift or at any time after that date and every person in whom the
property is vested after that date, other than a bona fide purchaser or
mortgagee for full consideration in money or money’s worth, or a person
deriving title from or under such a purchaser or mortgagee”. [Emphasis added].
3.38
Section 2 of the Capital Acquisitions Tax Consolidation
Act 2003 defines a disponer as follows:
“
‘disponer’, in relation to a disposition, means the person who, for the purpose
of the disposition, directly or indirectly provided the property
comprised in the disposition …”.[260] [Emphasis added]
3.39
It is worth pointing out in the context of the court poor box system
that under this broad definition, persons who might be found secondarily liable
in the event of non-payment of CAT by the person bearing the primary
responsibility,[261]
include not only the offender who made the contribution (under the broad
definition of “disponer” outlined above), but potentially also the judge of the
relevant district or circuit who has ultimate responsibility for the
administration of the court poor box fund (as a result of the wide category of
other accountable persons in section 45(2)(a)(ii), also considered above).[262]
3.40
To summarise, difficulties could arise as a result of the combination of
the definition of “disponer”/ “accountable persons” and the principle of
secondary liability in the following way:
3.41
Thus, it would appear that the effect of the legislation is that at
present, either/both the offender or the judge could in fact be liable for the
undischarged amount of CAT. The rate of CAT chargeable in respect of all gifts
or inheritance taken after 1 December 1999 is 20%.[264]
3.42
Finally, in addition to the question of primary and secondary liability
to CAT, sections 45 and 46 of the Capital Acquisitions Tax Consolidation Act
2003 also places an obligation on “accountable persons”[265] to make returns, keep records and
deliver returns in accordance with the provisions of the Act. The issue
of the compliance of the current court poor box system with this obligation may
also be queried.
(2)
Payments to non-charitable individuals/ certificate of discharge[266]
3.43
The above consideration of secondary liability to CAT refers primarily
to situations where the beneficiary in question is an organisation, potentially
eligible to be assigned a CHY number by the Revenue Commissioners. Whilst
CHY numbers are assigned by the Revenue Commissioners to bodies which satisfy
the requirements for charitable status, the procedure is somewhat different in
respect of individuals. There is no analogous Revenue procedure for
payments to individuals; instead, where a gift is made to an individual and the
disponer wishes to ensure that no taxation liability arises in respect of that
gift, the procedure to be followed is for the individual beneficiary in
question to issue a certificate of personal discharge[267] to the disponer.
3.44
Thus, the difficulties in relation to secondary liability to CAT as set
out above apply equally to payments made from court poor box funds for the
benefit of individuals. Where no certificate of discharge has been issued
by the individual who is taking the benefit of the gift, and the gift is in
fact liable to a payment of CAT,[268] either/both the offender who made the
payment into the court poor box, or the judge who administers the court poor
box, could be secondarily liable for the non-payment of the resulting
liability.
(3)
Small gifts exemptions and “approved trusts”
3.45
It is also appropriate to refer briefly to the issue of the “small gifts
exemption” and “approved trusts”, both of which arise in relation to the
administration of the court poor box system. There has traditionally been an
exemption available for small gifts in respect of capital acquisitions
tax. Although the amount of this exemption had until recently been
€1,270,[269] section 149 of the Finance Act 2003 raised
the amount of this exemption to €3,000, effective from 28 March 2003.
3.46
The issue of the small gift exemption is relevant to this discussion in
that it would apply to certain non-charitable organisations and individuals who
benefit from the court poor box.[270] Thus, CAT is chargeable at the
rate of 20% on the excess amount of any gift above the threshold of €3,000.
3.47
In discussing the issue of small gift exemptions for non-charitable
organisations and individuals, reference should be made to the concept of the
“approved trust”. The development of “approved trusts” came about as a
result of situations where informal trust funds were established in a
particular locality for the benefit of a local person who had in some way
suffered a physical disability as a result of an accident. Although such
trusts do not enjoy charitable status, the Revenue in recent years has granted
exemptions to “approved trusts” subject to such trusts satisfying a number of
stipulations, for example:
(i)
that the trustees are
not relatives of the beneficiary of the fund;
(ii)
any surplus remaining
in the fund must be applied for charitable purposes.
3.48
It may be that some of the individual trust funds which benefit from
court poor box funds could constitute “approved trusts”, but as mentioned
above, discussions with the Courts Service have established that no inquiries
are made in relation to the status of beneficiaries prior to the payment of monies
from the court poor box. This could therefore once again raise the question of
secondary liability of the disponer if a payment is made to an individual trust
fund which does not enjoy charitable status and which also fails to satisfy the
Revenue conditions for exemption of “approved trusts”.
E
Accounting and Accountability Difficulties
Arising From the Receipt, Administration and Distribution of Court Poor Box Funds
3.49
One final difficulty which should be addressed relates to the accounting
procedures involved in the administration of the court poor box system, and
also the question of accountability in the receipt, administration and
distribution of poor box funds.
3.50
Dealing first with the accounting requirements, information provided by
the Courts Service suggests that the present accounting requirements are
somewhat rudimentary. The first point to note is that there is no
“central fund” into which court poor box funds are paid, and from which
payments to organisations are subsequently made. Rather, the system
operates on the basis of each district or circuit having its own account into
which the court poor box funds are lodged. The procedure followed at the
local level is that receipts are credited to the cash accounts of the relevant
district or circuit and, when a sufficient amount has accumulated – usually
once or twice a year – a direction is sought from the judge of that district or
circuit as to the disbursement of the funds. Each district or circuit is
required to submit a quarterly statement of accounts which would include the
details of court poor box funds, if any,[271] in that district or circuit.
Statistics on those accounts are then compiled by the Courts Service on an
annual basis.
3.51
Although the Courts Service is satisfied that there is no “black hole”
in relation to court poor box funds, that is, that the account statements are
complete and correct, one major problem which arises is the fact that the only
role of the Courts Service in relation to court poor box funds is to compile
the annual statistics on those accounts. There is at present no inquiry
made either at a local level or by the Courts Service, for example, as to
whether or not court poor box funds are administered in a tax compliant manner.[272]
This is a significant issue, as inevitably some payments from the court poor
box accounts could attract liability to Capital Acquisitions Tax unless the
beneficiaries in question are entitled to avail of the exemption granted to
organisations which are recognised by the Revenue Commissioners as having
charitable status.[273]
The failure of the accounting and accountability procedures to oversee such
issues as tax compliance means that, in this respect at least, this constitutes
one area in the administration of court poor box funds which is not currently
subjected to scrutiny and verification to ensure all relevant rules and
requirements have been complied with.
3.52
It then falls to be considered how best to remedy this difficulty.
Supporters of the court poor box might argue that although this lacuna in the
procedures at present does constitute a problem, it can be remedied by the
implementation of the necessary procedures. Critics of the court poor
box, however, would question whether in fact this is possible. The
problem here can be stated as follows: in the absence of any body overseeing
such issues as tax compliance in the administration of court poor box funds,
the question falls as to who should bear this responsibility. If the
decision is made to continue the operation of the court poor box system on a
local level, the issue of tax compliance would fall to be dealt with by the
clerk of each district or circuit. As a matter of practicality, it is
highly questionable whether already overburdened registrars could meet all the
requirements in this regard.
3.53
The other option would be to operate a centralised court poor box fund,
which would have a dedicated staff to ensure such matters as compliance with
the relevant revenue requirements. However, the establishment of any such
centralised fund would inevitably involve the incurring of not insignificant
costs. Whether the means can be made available to provide for such costs
is one question. Another question is who the appropriate body would be to
administer such a centralised fund. Although the Courts Service might
seem a likely candidate, the wisdom of imposing such a burden on that
organisation for what represents a relatively small fund is again an issue to
bear in mind in the context of the necessary allocation of resources.[274]
3.54
Another suggestion of an appropriate body to administer court poor box
funds on a centralised basis is the Commissioners of Charitable Donations and
Bequests for Ireland. This organisation was established in Ireland in
1844. As Delany notes, “[i]ts role is now governed by the provisions of
Part II of the Charities Act 1961 and its jurisdiction and powers are set out
in Chapter II of Part II of the Act of 1961 as amended by the Charities Act 1973.”[275]
The commissioners have the power to advise trustees of charitable organisations
in relation to the administration of trusts and can authorise the compromise of
any proceedings brought by or against such trustees. In addition to various
other powers set out in the Acts, the commissioners also have powers in
relation to the investment of funds held on charitable trusts. It might
be suggested that as a result of this aspect of the administration of charitable
funds, the commissioners might be an appropriate body to administer a
centralised court poor box scheme. However, the distribution of funds to
charitable organisations is very different from the investment of funds on
behalf of a specified list of charities, and it is again questionable as to
whether or not the Commissioners, who operate on a voluntary basis, could
assume such a burdensome role in addition to their existing onerous
obligations.[276]
3.55
Finally, it might be recommended that funds generated under the court
poor box system, or any replacement scheme, be transferred to the Exchequer
pursuant to section 51 of the Courts Officers Act 1926 subject to a
legislative scheme similar to that which governs the Environment Fund.
Thus, monies generated might be “ring fenced” and applied for the benefit of
appropriate charitable organisations. Such administration might be
carried out, for example, by the Department of Community, Rural and Gaeltacht
Affairs, as the Department which is currently responsible for charities.
Payments out of the Fund might be preceded by consultation with relevant
bodies, such as the National Crime Council.
3.56
It is clear that there currently exist some serious difficulties in
relation to the accounting and accountability aspects of the receipt,
administration and distribution of court poor box funds. It would appear
that whether such a system was to be operated on a localised basis, as at
present, or on the basis of a centralised scheme, some difficulties
remain. As has been noted above, whether it is possible to ensure such
matters as full revenue compliance in a locally administered scheme is highly
unlikely.
3.57
The Commission is of the view that since the current operation of the
poor box system may not fully comply with all tax legislation and that the
receipt, administration and distribution of court poor box funds form no part
of the judicial function, any funds generated by the court poor box system, or
any replacement scheme, should be transferred to the Exchequer pursuant to
section 51 of the Court Officers Act 1926.
3.58
Having regard to the benefits derived by the many worthwhile
charities which currently receive donations from court poor box funds, the
Commission further recommends that consideration be given to putting in place a
scheme providing for the “ring fencing” of monies generated by such a scheme on
a similar basis to the operation of the Environment Fund. One possibility
would be to recommend that such a separate fund be established within an
appropriate government department, for example Department of Community, Rural
and Gaeltacht Affairs, which would administer any funds raised by the replacement
court poor box scheme. However, the Commission recognises that to an
extent, this is uncharted territory, and as such submissions on the
administration and distribution of such funds, and in particular the
appropriate body to be designated responsible for this role, would be welcomed.
4.
Chapter 4
the operation of similar or related systems in other jurisdictions
4.01
This Chapter provides an overview of sentencing systems in other
jurisdictions the characteristics of which are similar to those of the court
poor box system or certain aspects thereof.
B
Systems Which Involve A Payment To Charity
4.02
A scheme which has strong parallels with the Irish court poor box system
is the diversion scheme which is applied in New Zealand. Diversion was
introduced in New Zealand after a pilot scheme was completed in Wellington in
1987.[277]
The scheme, which does not appear to have any statutory basis,[278]
is applied both by the police and by the courts in circumstances where a
conviction would be inappropriate but some form of punishment other than a term
of imprisonment is merited. Typically, the punishment entails a contribution to
a charity by the offender. In addition, or in the alternative, the
offender may have to make an apology and reparation to the victim, avail of
counselling, engage in community work and/or attend at an alcohol or drug abuse
programme.
4.03
The scheme is generally restricted to first-time offenders who admit
their guilt and accept responsibility for their actions. According to a
1996 study on diversion, a primary objective of the scheme is “to provide first
offenders with a second chance”.[279] Other objectives include: (a)
addressing the needs of victims (offenders are frequently expected to apologise
for their offending and to pay reparation where appropriate); (b) providing
those who are at risk of committing further offences with an opportunity to be
rehabilitated early in their offending careers; and (c) saving of court
resources (since the use of diversion reduces the number of defended hearings).
4.04
The type of offences in respect of which the scheme is applied include
the following: public disorder,[280] careless driving, minor thefts,[281]
minor assaults,[282]
indecent exposure[283]
and certain drugs offences.[284]
In a study of the diversion scheme in Auckland and Manukau in 1992 and 1994,
the majority of diversions were for shoplifting or other theft, possession or
use of cannabis, minor assaults, property damage, and disorderly or offensive
behaviour.[285]
4.05
Where the diversion scheme is applied, the offender avoids obtaining a
conviction. Indeed, a concern to avoid recording a conviction, with all
its damaging and long lasting effects, is frequently central to a decision to
apply the diversion scheme.[286]
4.06
Although some commentators have raised questions about the application
of the scheme in respect of certain offences,[287] it would appear to command a very broad
level of support.[288]
Spiller, who studied the operation of the scheme in Christchurch, concluded
that it is a humane way of dealing with persons who have committed minor
offences.[289]
Laven, who studied the scheme in Auckland and Manukau, concluded that diversion
“can be an appropriate sanction in carefully selected cases – provided that the
victim agrees to the diversion and both parties are appropriately supported during
the process.”[290]
4.07
Germany also has a scheme with parallels to the Irish court poor box
system. In contrast to the current Irish and New Zealand systems,
however, the German system has a statutory basis in that it derives from the German Code of Criminal Procedure.
Section 153 of the Code is
concerned with the non-prosecution of petty offences and provides as follows:
“(1)
If a less serious criminal offence is the subject of the proceedings, the
public prosecution office may dispense with prosecution with the approval of
the court competent for the opening of the main proceedings if the
perpetrator’s culpability is considered to be of a minor nature and there is no
public interest in the prosecution. The approval of the court shall be
not required in the case of a less serious criminal offence which is not
subject to an increased minimum penalty and where the consequences ensuing from
the offence are minimal.
(2) If
charges have already been preferred, the court, with the consent of the public
prosecution office and the indicted accused, may terminate the proceedings at
any stage thereof under the conditions in subsection (1). The consent of
the indicted accused shall not be required if the main hearing cannot be
conducted for the reasons stated in section 205, or is conducted in the cases
of section 231(2) and sections 232 and 233 in his absence. The decision
shall be given in a ruling. The ruling shall not be contestable.”[291]
4.08
Section 153a of the Code is concerned with the provisional termination
of proceedings and provides as follows:
“(1)
In a case involving a less serious criminal offence, the public prosecution
office may, with the consent of the court competent to order the opening of the
main proceedings and with the consent of the accused, dispense with preferment
of public charges and concurrently impose a condition upon the accused:
(a)
to make a certain contribution towards reparation for damage caused by
the offence,
(b)
to pay a sum of money to a non-profit-making institution or to the
Treasury,
(c)
to perform some other service of a non-profit-making nature,
(d)
to comply with duties to pay maintenance at a certain level, or
(e)
to participate in a seminar pursuant to section 2b(2), second sentence,
or section 4(8), fourth sentence, of the Road Traffic Act, if such
conditions and instructions are of such nature as to eliminate the public
interest in criminal prosecution and if the degree of culpability does not
present an obstacle. The public prosecution office shall set a time limit
within which the accused is to comply with such conditions and instructions,
and which, in respect of the cases referred to in numbers 1 to 3 and 5 of the
first sentence, shall be a maximum of six months and, in respect of the cases
referred to in number 4 of the first sentence, a maximum of one year. The
public prosecution office may subsequently revoke the conditions and
instructions and may extend the time limit once for a period of three months;
with the consent of the accused it may subsequently impose or change conditions
and instructions. If the accused complies with the conditions and instructions,
the offence can no longer be prosecuted as a less serious criminal
offence. If the accused fails to comply with the conditions and
instructions, there shall be no compensation for such contribution as he has
made towards compliance. Section 153(1), second sentence, shall apply mutatis
mutandis in the cases referred to in the first sentence, numbers 1 to 4.
(2) If the
public charges have already been preferred, the court may, with the consent of
the public prosecution office and of the indicted accused, provisionally
terminate the proceedings up until the end of the main hearing in which the
findings of fact can last be examined, and concurrently impose the conditions
and instructions referred to in subsection (1), first sentence, on the indicted
accused. Subsection (1), second to fifth sentences, shall apply mutatis
mutandis. The decision pursuant to the first sentence shall be given
in a ruling. The ruling shall not be contestable. The fourth
sentence shall also apply to a finding that conditions and instructions imposed
pursuant to the first sentence have been met.
(3) The
running of the period of limitation shall be suspended for the duration of the
time limit set for compliance with the conditions and instructions.
4.09
It is also appropriate to refer to section 153b of the Code which
provides as follows:
“(1)
If the conditions exist under which the court may dispense with imposing a
penalty, the public prosecution office may, with the consent of the court which
would have jurisdiction over the main hearing, dispense with preferment of
public charges.
(2) If
charges have already been preferred the court may, with the consent of the
public prosecution office and of the indicted accused, terminate proceedings
prior to the beginning of the main hearing.”
4.10
A recent high profile
case which appears to have been determined under section 153(a) of the Code concerned
a 53-year old man who was obsessed with Formula One motor racing champion
Michael Schumacher and stole his helmet (which was worth $90,000) but presented
it to a priest two days later.[292] The Berlin court ordered the man,
who was undergoing psychiatric treatment, to pay almost $4,000 to a charity and
gave him a suspended jail sentence.
(a)
Basis of the Victoria Magistrates’ Fund
4.11
There is also a jurisdiction similar to the Irish court poor box system
operated by the Magistrates’ Court of Victoria, Australia. The
Magistrates’ Court is the lowest tier of Victoria’s court hierarchy,
established by the Magistrates’ Court Act 1989.[293] The court fund operated in
Victoria is a non-statutory scheme allowing the payment of money into court
which is disbursed into various welfare organisations in the community.
The circumstances in which a payment to the court fund may be ordered bear many
similarities to the current operation of the court poor box in Ireland.
Thus, magistrates may order a payment to be made to the court fund as an
alternative to recording a conviction, generally in respect of minor offences
committed by first time offenders, who are genuinely remorseful, or where the
magistrate is satisfied that the offences was not intended or there is little
chance of it being repeated.[294]
(b)
Payments to impecunious individuals
4.12
The objective of the Magistrates’ court fund was originally to assist
people with immediate financial needs, such as food, clothing, shelter and
urgently required medicines. Previously, funds were disbursed to needy
individuals who applied to court for assistance, sometimes filling in
questionnaires and providing documentation to establish their immediate
needs. Magistrates’ funds were also disbursed to welfare agencies who
would then distribute the funds to the needy.
4.13
Originally, poor box
funds in Victoria were “utilised primarily as emergency assistance to people in
necessitous circumstances who had dealings with a Court”.[295] Such assistance was provided to
deserted wives and children during the initial stages of maintenance
proceedings, to defendants or witnesses at Court, for travelling expenses and
towards the cost of issuing fees on documents prepared by court
officials. In a small number of cases, impecunious individuals applied
for, and received, direct assistance from the court. However, “most
emergency relief was provided through traditional welfare channels, with little
demand on the poor box from outside the court system”.[296]
4.14
However, by the
mid-1980s there had been a massive increase in demand for emergency assistance,
and welfare organisations in Victoria were unable to meet the demands with
their own limited resources. As a result, such organisations developed a
practice of referring persons to the court fund for assistance, although this
was said to occur only as a “last resort”.
4.15
The manner in which impecunious individuals could obtain assistance from
the Magistrates’ fund appears to have varied somewhat in respect of the precise
procedures to be followed. There were no established guidelines to assist
clerks when considering applications by impecunious individuals for relief from
the court fund, with no limits on the levels of assistance which could be
provided. Payments were, however, “confined to meeting the immediate
financial needs of the person being assisted within the limits of the funds
available”.[297]
As a matter of practice, the person seeking assistance was asked to provide
some detail in order to verify the extent of financial need, with some courts
requiring applicants to complete a questionnaire for this purpose. In
some cases, documentation provided by welfare agencies was used to determine
and expedite the assistance required.
4.16
Criticisms of the scheme of disbursing court funds to needy individuals
included the inconsistency and inadequacy of donations, lack of available funds
in poorer court areas, limited awareness in the community of the funds
available, lack of accessibility of funds to non-English speaking people
and great variability in the methods of assessment.
(c)
Payments to welfare agencies
4.17
In addition to payments to impecunious individuals, some payments from
the Magistrates’ fund were also authorised to welfare organisations which were
active within the particular court area and which worked in co-operation with
the court system. In some court areas, local welfare agencies would
assign staff to the court in order to provide liaison between applicants and
clerks of court.
4.18
Amongst the criticisms of the disbursement of funds to welfare agencies
is the fact that the funding is not consistent. The amount of money
contributed to the fund varies significantly each month, and the designated
charities therefore cannot rely on regular funding. Concern was also
voiced by the Law Department of Victoria in 1985 that the:
“apparent
inter-relationship between the Courts Poor Box and the demand for welfare
assistance was … problematic … Poor Box monies were never intended to be
a substitute for income security provision, and it was considered that should
they be seen as such, that Magistrates may cease the orders for contributions
to the Poor Box Fund”.[298]
(d)
Present operation of Magistrates’ Fund
4.19
As a result of particular difficulties in the system of making payments
directly to impecunious individuals, the poor box funds are no longer directly
disbursed by the court, but rather are distributed to welfare agencies on a
monthly basis,[299]
which in turn pass on the funds to needy individuals. Lack of
accountability in the disbursement of court funds to welfare agencies had
previously been a cause of concern.[300] Addressing this issue in 1985,
the Law Department of Victoria recommended greater co-ordination between the
Magistrates’ Court and the Victorian Council on Social Service [VCOSS] and the
Victorian Emergency Relief Committee [VERC].[301] The Law Department Report
recommended that advances to welfare agencies should be approved by the VERC.[302]
It would appear that the issue of charitable status and related questions of
revenue law have not been considered in relation to the operation of the
Victoria Magistrates’ Fund.
4.20
Contributions to the court fund are now paid into an account maintained
at Magistrates’ Court for that purpose, from which cheques are drawn and given
to various welfare agencies.[303]
The Magistrates’ Court does not deduct any money from the Fund for
administrative expenses. However, a report by the Law Department of
Victoria in 1985 estimated the administrative costs to the court per year were
approximately $175,000.[304]
(e)
Conclusions
4.21
As noted above, the court poor box scheme in Victoria is a non-statutory
scheme administered by Victorian judges according to their discretion.
However, it is of interest to note that the appropriateness of this manner of
dealing with offenders has also been subjected to recent scrutiny. The
Law Reform Committee of Victoria held an inquiry into legal services in rural
Victoria in 2000,[305]
during the course of which it was revealed that in the Ballarat Magistrates’
Court a direction was made that the court fund had to cease and that any such
payments as might be ordered by a judge were in future to be made by way of
fines.
4.22
Nevertheless, the continued operation of the Magistrates’ Court fund in
Victoria is testament to its popularity, particularly amongst the magistrates
who regard this form of disposition as a way of “temper[ing] justice with a
degree of mercy by ordering contributions to the poor box, to avoid a
conviction”. Some magistrates in Victoria also traditionally valued their
discretion in the disbursement of court funds as a flexible means of offering
assistance to those who need it with the minimum of “bureaucratic
red-tape”. However, as in Ireland, it should be noted that the Victoria
Magistrates’ fund is not without its detractors, as evidenced by the direction
to magistrates in Ballarat to cease to order payments to the court fund.[306]
4.23
The philosophy of the New Zealand diversion scheme is strikingly similar
to that of the court poor box system.[307] Of particular significance in
this regard are the objectives of providing first-time offenders with a second
chance and avoiding the imposition of a conviction.
4.24
Germany also has a scheme with parallels to the Irish court poor box
system. In contrast to the present Irish and New Zealand systems,
however, the German system has a statutory basis. The non-custodial
sentencing options which are provided by section 153a of the German Civil Code
are notable. They include the following:
(a)
making a certain contribution towards reparation for damage caused by
the offence;
(b)
paying a sum of money to a non-profit-making institution or to the
Treasury; and
(c)
performing some other service of a non-profit-making nature.
4.25
The most similar scheme to the current operation of the Irish court poor
box is to be found in the magistrates’ fund as operated in Victoria. It
is interesting to note that some of the difficulties which have been identified
in the current Irish system have also been raised in relation to the Victoria
court fund, particularly concerns in relation to accountability. However,
the Irish and Victoria poor box practices diverge somewhat in respect of the
distribution of funds raised. Whilst the court poor box funds in Ireland have
traditionally been disbursed to charitable organisations which have as their
object the relief of poverty generally (in addition to a small number of
payments to impecunious individuals), the Victoria magistrates’ funds appear to
be applied on a slightly narrower basis, ie to welfare organisations who
have as their specific task the alleviation of poverty of individuals who seek
assistance. Nevertheless, it is instructive to note the continued
existence of this jurisdiction in the Victoria magistrates’ court, which
appears to be broadly comparable to the Irish court poor box.
4.26
The evolution, existence and growth of diversion schemes, the German
civil code provisions and the disposition of cases pursuant to a court poor box
jurisdiction as in Melbourne, Australia may be seen as indicative of the
utility of a disposition which enables a case to be dealt with on the basis of
an offence being proven or admitted but with the court having a discretion in
appropriate cases, particularly where the entry of a conviction and the long
term consequences of a criminal record would be disproportionately severe, so
as to allow an earnest of intention to be given together with other terms and
conditions.
5.
Chapter 5
the need for a statutory jurisdiction for spent convictions?
5.01
The factors which underlie a decision to apply the court poor box in a
particular case were outlined in Chapter 1.[308] One of the most significant
factors in this regard is a concern to avoid imposing a conviction.
Having regard to the permanency of a conviction once recorded, a court may
consider that its imposition would constitute a disproportionately severe
penalty and, therefore, decide to dismiss the charge and direct a payment to
the court poor box. By enabling the court to devise an outcome which does
not depend upon a conviction, the court poor box system mitigates the harshness
of a criminal justice system in which a conviction is “for life”. Against
this background, it is appropriate to consider whether the law should allow for
the “deletion” of convictions in respect of adults after a particular period of
time, either as an alternative or as an adjunct to the court poor box
system. In this regard, it is appropriate to refer to Irish legislation
which has introduced such a scheme in relation to persons under 18, and also
the provisions of the British Rehabilitation of Offenders Act 1974.
5.02
Although there is at present no jurisdiction allowing for the deletion
of convictions in respect of adults, section 258 of the Children Act 2001
introduced a provision governing the non-disclosure of offences committed by
persons below the age of 18 after a period of three years. It is
clear that section 258 of the 2001 Act is based on analogous provisions in the Rehabilitation
of Offenders (Northern Ireland) Order 1978,[309] which was modelled directly on the
British Rehabilitation of Offenders Act 1974. The 1974 Act is
discussed below.
5.03
Section 258(1) of the 2001 Act provides as follows:
“Where a
person has been found guilty of an offence whether before or after the
commencement of this section, and—
(a) the offence was committed before the person
attained the age of 18 years,
(b) the offence is not an offence required to
be tried by the Central Criminal Court,
(c) a period of not less than 3 years has
elapsed since the finding of guilt, and
(d) the person has not been dealt with for an
offence in that 3-year period,
then, after
the end of the 3-year period or, where the period ended before the commencement
of this section, after the commencement of this section, the provisions of
subsection (4) shall apply to the finding of guilt.”
5.04
Section 258(4)(a) provides that a person to whom the section applies
shall be treated for all purposes in law as a person “who has not committed or
been charged with or prosecuted for or found guilty of or dealt with for the
offence or offences which were the subject of the finding of guilt”.
Furthermore, the subparagraph provides that:
(i) no evidence shall be admissible in any proceedings
before a judicial authority to prove that any such person has committed or been
charged with or prosecuted for or found guilty of or dealt with for any offence
which was the subject of that finding, and
(ii) a person shall not, in any such proceedings, be
asked, and, if asked, shall not be required to answer, any question relating to
his or her past which cannot be answered without acknowledging or referring to
a finding or findings to which section 258 refers or any circumstances
ancillary thereto.
5.05
The Explanatory Memorandum to the Children Bill 1999 described
what became section 258 of the 2001 Act as providing a “limited clean slate” in
respect of offences committed by children. It also stated that:
“It [will
not be] possible to say an offence never took place; what this section does is
to limit as far as possible the effects of a finding of guilt by treating the
person for all purposes in law as a person who has not committed, been charged
with, prosecuted for, found guilty or dealt with for an offence.”[310]
5.06
It should also be noted that the 2001 Act contains a further potential
limitation on the operation of this “clean slate” jurisdiction by providing in
section 258(4)(d) that:
“The
Minister may by order make such provision as in his or her opinion is
appropriate—
(i) for
excluding or modifying the application of either or both of subparagraphs (i)
and (ii) of paragraph (b) in relation to questions put in such circumstances as
may be specified in the order”.
Thus, it would appear that the Minister may by order exclude from the
operation of section 258 serious offices such as, eg, child molestation
or paedophilia, where justifiable concern might well arise as to the ability of
a person convicted of such offences to rely on this statutory regime of
non-disclosure.
5.07
As a result of the stipulation contained in this section that three
years must have elapsed in order for the principle of non-disclosure to apply,
it is not yet possible to assess the operation of this section in practice.
(1)
Rehabilitation of Offenders Act 1974
5.08
As already noted, the essential elements of section 258 of the Children
Act 2001 mirror those of the British Rehabilitation of Offenders Act
1974 and the Rehabilitation of Offenders (Northern Ireland) Order 1978 which
provide for, inter alia, the rehabilitation of offenders who have not
been convicted of any serious offence for a particular period. Where an
individual has been convicted of any offence or offences and certain conditions
are satisfied, he or she is treated, after the expiration of a particular
period, as a “rehabilitated person” for the purposes of the Act and the
conviction in question is treated as spent.[311] The conditions referred to are as
follows: (a) a sentence which is excluded from “rehabilitation under the Act”[312]
was not imposed on the person; and (b) in respect of a subsequent conviction
during the rehabilitation period applicable to the first-mentioned conviction,[313]
a sentence which is excluded from rehabilitation under the Act was not imposed
on the person.[314]
A person cannot become a rehabilitated person for the purposes of the Act in
respect of a conviction unless he or she has served or otherwise undergone or
complied with any sentence imposed on him or her in respect of that
conviction. However, the following cannot prevent a person from becoming
a rehabilitated person for these purposes:
(a)
failure to pay a fine or other sum adjudged to be paid by or imposed on
a conviction, or breach of a condition of a recognizance or of a bond of
caution to keep the peace or be of good behaviour;
(b)
breach of any condition or requirement applicable in relation to a
sentence which renders the person to whom it applies liable to be dealt with
for the offence for which the sentence was imposed, or, where the sentence was
a suspended sentence of imprisonment, liable to be dealt with in respect of
that sentence (whether or not, in any case, he or she is in fact so dealt
with);
(c)
failure to comply with any requirement of a suspended sentence
supervision order.[315]
5.09
Pursuant to section 4(1), a person who has become rehabilitated in
respect of a conviction within the meaning of the Act must be:
“treated
for all purposes in law as a person who has not committed or been charged with
or prosecuted for or convicted of or sentenced for the offence or offences
which were the subject of that conviction; and notwithstanding the provisions
of any other enactment or rule of law to the contrary, [but subject to sections
7 and 8 of the Act]:
a. no
evidence shall be admissible in any proceedings before a judicial authority[316]
exercising its jurisdiction or functions in Great Britain to prove that any
such person has committed or been charged with or prosecuted for or convicted
of or sentenced for any offence which was the subject of a spent conviction;
and
b. a
person shall not, in any such proceedings, be asked, and, if asked, shall not
be required to answer, any question relating to his past which cannot be
answered without acknowledging or referring to a spent conviction or spent
convictions or any circumstances ancillary thereto.”[317]
5.10
However, section 4(1) does not affect: (a) any right to grant a free
pardon, to quash any conviction or sentence, or to commute any sentence; (b)
the enforcement by any process or proceedings of any fine or other sum adjudged
to be paid by or imposed on a spent conviction; (c) the issue of any process
for the purpose of proceedings in respect of any breach of a condition or
requirement applicable to a sentence imposed in respect of a spent conviction;
or (d) the operation of any enactment by virtue of which, in consequence of any
conviction, a person is subject, otherwise than by way of sentence, to any
disqualification, disability, prohibition or other penalty the period of which
extends beyond the rehabilitation period applicable in accordance with section
6 of the Act to the conviction.[318]
5.11
Where a question seeking information with respect to a person’s previous
convictions, offences, conduct or circumstances is put to them or to any other
person otherwise than in proceedings before a judicial authority, the questions
must be treated as not relating to spent convictions or to any circumstances
ancillary to spent convictions,[319] and the answers thereto may be framed
accordingly.[320]
In addition, the person questioned cannot be subjected to any liability or
otherwise prejudiced in law by reason of any failure to acknowledge or disclose
a spent conviction or any circumstances ancillary to a spent conviction in his
answer to the question.[321]
5.12
Any obligation imposed on any person by any rule of law or by the
provisions of any agreement or arrangement to disclose any matters to any other
person cannot extend to requiring him or her to disclose a spent conviction or
any circumstance ancillary to a spent conviction (whether the conviction is his
or her own or another’s).[322]
A conviction which has become spent or any circumstances ancillary thereto, or
any failure to disclose a spent conviction or any such circumstances, cannot be
a proper ground for dismissing or excluding a person from any office,
profession, occupation or employment or for prejudicing him or her in any way
in any occupation or employment.[323]
5.13
The Act also prohibits the unauthorised disclosure of spent
convictions. It is an offence for any person who, in the course of his or
her official duties, has or at any time has had custody of or access to any
official record or the information contained therein, and, knowing or having
reasonable cause to suspect that any specified information[324] he or she has obtained in the course of
those duties is specified information, discloses it, otherwise than in the
course of those duties, to another person.[325]
5.14
One further point concerns the interaction between the provisions of the
Rehabilitation of Offenders Act 1974 and the freedom of expression of
the media. As Robertson and Nicol note, “[t]he provisions of the Act are
complex, but they have little effect on media freedom.”[326] Section 8 of the Rehabilitation
of Offenders Act 1974 provides that the media may publish details of
“spent” convictions and, if sued, can plead the defence of justification or
fair comment, unless the claimant can show that the publication was actuated by
malice.[327]
As Robertson and Nicol point out, it would be extremely difficult to establish
such malice “since there can be no dishonesty involved in stating the truth”;
thus, in order for a claimant to succeed it must be established that the
motivation for publishing details of the conviction was not a desire to inform
the public, but rather “an overwhelming desire to injure the claimant”.[328]
(2)
“Breaking the Circle” – Home Office Review of the Rehabilitation of
Offenders Act 1974[329]
5.15
The Home Office recently conducted a review of the Rehabilitation of
Offenders Act 1974 in a Green Paper entitled Breaking the Circle: A
Report of the Review of the Rehabilitation of Offenders Act. The
original aims of the 1974 Act were reaffirmed by the Review Group, namely
resettlement of offenders in the wider community as a key element in crime
reduction strategies, with employment in turn seen as a key element of
resettlement. An effective scheme allowing for “spent convictions” should
facilitate these aims, but the Review concluded at the outset that the 1974 Act
no longer met all of these aims; as the report states, the legislation “is not
achieving the right balance between resettlement and protection”.
5.16
Amongst the specific criticisms levied at the 1974 Act were the fact
that the scheme was seen as confusing to both offenders and employers; the
failure to explain the terms of the Act in the sentencing process was the
subject of criticism, and it was also noted that “many employers know little or
nothing about the [Rehabilitation of Offenders Act]”.[330] Compounding the difficulties
caused by the lack of proportionality[331] and clarity in the operation of the Act
is the many changes which have taken place in the criminal justice system since
the time of the enactment of the Act.[332] The Review also pointed to the
effects of “sentence inflation”[333] which has had the effect of restricting
the application of the 1974 Act.
5.17
In order to address these difficulties, the Review Group made several
wide-ranging recommendations. With regard to the aim of protecting the
general public, the Review accepted that “certain types of posts, professions
and licensing bodies should continue to be excepted from the disclosure
scheme”. Thus, positions which involve an issue of national security, or
where the employee would hold a position of trust, particularly in positions
involving contact with children and vulnerable adults, are specifically excluded
from the scope of application of the Act. Furthermore, it was recommended
that a new discretion should be afforded to the judiciary in relation to the
fixed disclosure periods. Thus, if a judge decided in a particular case
that there was a “particular risk of significant harm”, the standard disclosure
period under the scheme could be disapplied.
5.18
Amongst the proposals aimed at ensuring offenders’ understanding of the
operation of the scheme, the Review recommended that rules relating to
disclosure should be explained to offenders as part of the pronouncement of
sentence. However, this recommendation was criticised by a number of
consultees, and the British government’s response to submissions on the Green
Paper ultimately rejected this recommendation.[334]
5.19
The Review also suggested that clear guidance on the operation of the
scheme should be made available through statutory agencies, and other
organisations involved with the rehabilitation and resettlement of offenders.
In order to ensure full awareness of the scheme among employers, and compliance
with its terms, the Review proposed the development of a voluntary code of
practice to govern disclosures in the recruitment process, along with sanctions
for an applicant or existing employee who loses a job on the grounds of a
previous conviction which they were not required to disclose.
5.20
Specific recommendations regarding the revision of the 1974 Act included
the recommendation that the disclosure scheme should be based on fixed periods,
which were regarded as the best way to simplify the scheme. The Review
suggested that these fixed periods should be based on sentence, with different
periods applying to custodial and non-custodial sentences. Furthermore,
the disclosure periods should comprise the length of the sentence plus an
additional “buffer” period, which would cover the period of the greatest risk
of re-offending.[335]
5.21
The Review also contained proposals designed to widen the scope of
application of the scheme. Thus, it was recommended that “the scheme
should apply to all ex-offenders who have served their sentence”.[336]
Thus, the current 30 month cut-off should be removed so that the scheme applies
to all offenders who have served their sentence. The English government
accepted this recommendation, but took into account concerns expressed in
considering the appropriate buffer periods for custodial sentences of four
years and over. It further accepted the recommendation that the new
arrangements should be applied retrospectively to bring this group within the
protection of the scheme without delay.
5.22
In regard to the appropriate “buffer periods” to be applied, the review
sought submissions on the appropriate length of such periods to be applied to
custodial and non-custodial sentences, “in order to ensure that they represent
an appropriate balance between the needs of protection and the needs of
resettlement”.[337]
The periods proposed in the report were one year for non-custodial sentences
and two years for custodial sentences. It was stated that these very
short periods of disclosure were deliberately chosen in order to provide those
with previous convictions with the best chance of “breaking the circle of their
offending behaviour”.[338]
However, the proposals attracted some criticism, with a number of consultees
complaining of the failure to differentiate between shorter custodial sentences
in relation to minor offences, and longer sentences in respect of more serious
crimes.
5.23
The issue of the appropriate length of buffer periods was clearly the
most controversial aspect of the proposed reforms, and the British government
ultimately accepted that in the interest of proportionality, it would be
preferable to differentiate between custodial sentences of less than four
years, and those of four years or over.[339] The government thus proposed that
the disclosure periods for adults will be as follows:
(a)
For non-custodial sentences, the period of disclosure will be the period
of the sentence plus an additional buffer period of one year;
(b)
For custodial sentences of less than four years, the period of
disclosure will be the period of the sentence as ordered by the court[340]
plus an additional buffer of two years; and
(c)
For custodial sentences of four years or more, the period of disclosure
will be the period of the sentence as ordered by the court plus an additional
buffer period of four years.
5.24
The proposed reforms clearly require primary legislation, and the
summary of the views of the consultees and the government’s response indicated
that a draft Bill would be published as soon as parliamentary time allowed.
Although the 2003 Queen’s Speech[341] referred to a proposed Criminal Justice
Act “to ensure the effective punishment of dangerous and persistent offenders”,
there was no reference to the implementation of the recommended reforms of the Rehabilitation
of Offenders Act 1974.
5.25
The Commission is aware that comparable provisions exist in a number of
other common law jurisdictions, including Queensland,[342] the Commonwealth of Australia,[343]
Western Australia,[344]
New South Wales,[345]
and Northern Territory of Australia.[346] These legislative schemes broadly
resemble the provisions of the United Kingdom Rehabilitation of Offenders
Act 1974 as considered above.
5.26
One of the most significant factors which underlies a decision to apply
the court poor box is a concern to avoid imposing a conviction. Having
regard to, inter alia, the permanency of a conviction once recorded, a
court may consider that the imposition of a conviction would constitute a
disproportionately severe penalty and, therefore, decide not to record a
conviction despite accepting that the charge is proved and instead direct a
payment to the court poor box. By enabling the court to reach a satisfactory
method of disposing of the case which does not depend upon a conviction, the
court poor box system mitigates the harshness of a criminal justice system in
which a conviction is “for life”.
5.27
Despite the arguments in favour of a spent convictions jurisdiction,
there are a number of drawbacks associated with such schemes. A key
problem is that it is clear from the British Review of the 1974 Act that the
complexity of the British scheme has caused confusion as to its scope.
Moreover, the “wiping clean” of certain offences, even in limited cases, may
give rise to fears that legitimate employment checks may be stymied. This
also raises the question (though not strictly related to spent conviction
schemes) of the use, and deletion, of criminal intelligence gathered by police
forces. The failure of various English police forces and social services
agencies to disclose that Ian Huntley had been suspected of a string of sexual
offences against minors prior to his employment as a caretaker at Soham
community college illustrate this issue.[347] The failure to disclose this
crucial information has been attributed to a misunderstanding of the provisions
of the Data Protection Act,[348] and is currently the subject of the
Bichard Inquiry.[349]
5.28
The Commission believes that there are many complex issues which must
be considered in any comprehensive discussion of the merits and demerits of
“spent conviction” schemes, and that such debate ultimately falls outside the
scope of this Consultation Paper. However, the Commission may consider
this matter in greater detail at a future date. The Commission would welcome
submissions on the issue of spent convictions from any interested bodies or
persons, with a view to a future publication dedicated to a full consideration
of whether such a scheme should be introduced in this jurisdiction.
6.
Chapter 6
reform options
6.01
This Chapter analyses possible options for reforming the court poor box
system in the light of the critical appraisal in Chapter 2 and also the survey
of comparable or related systems in other jurisdictions in Chapter 4.
(1)
Abolition of the court poor box system
6.02
One option is the abolition of the court poor box system in its
entirety. This raises the question of whether legislation is necessary to
achieve this result. Arguably, since the court poor box does not have a
statutory basis, the desired reforms could be achieved by the issuing of
directions to judges from the Presidents of their respective courts indicating
that the court poor box jurisdiction is not to be exercised. The Commission
believes, however, that this argument fails to have sufficient regard to the
fact that the court poor box is deeply rooted in the common law and in court practice.
Accordingly, the Commission considers that any proposed reforms in this area
should be addressed in legislation enacted by the Oireachtas.
6.03
Against the background of the critical assessment of the court poor box
system in Chapter 2 and, in particular, the positive features of this system,
the Commission is of the view that it should not be abolished in its
entirety, although submissions on this point are welcome.
6.04
The Commission is provisionally of the view that the court poor box
should not be abolished in its entirety but welcomes submissions on this point.
(2)
Retention of the court poor box system as currently applied
6.05
A second option is the retention of the court poor box system as it is
currently applied. It is clear from the analysis of the present system in
Part B of Chapter 2 that there are aspects of the current system which are
commendable. Thus, it might be suggested that the court poor box ought to
be retained as currently applied in order to afford judges the maximum
discretion to reach an outcome in a case which is proportionate to the offence
and to the personal circumstances of the offender. The constitutional
dimension to the fundamental principles of sentencing law, and the analogies
which can be made in the context of the court poor box system, have been
considered above. Notwithstanding the force of this argument, the
Commission is unable to overlook the negative features of the present system as
outlined in Part C of Chapter 2. The Commission therefore considers that
it would be inappropriate simply to retain the court poor box system as
currently applied.
6.06
The Commission provisionally recommends that the court poor box
system as currently applied should not be retained.
(3)
Reform of the court poor box system
6.07
A third avenue of reform considered by the Commission is to replace the
court poor box with a statutory scheme which would retain the positive features
of the court poor box system as currently applied, whilst removing the
problematic elements of that system. The Commission has provisionally concluded
that this is the most appropriate option for reform.
6.08
The Commission provisionally recommends that the court poor box
should be reformed in order to preserve the positive aspects of the court poor
box jurisdiction whilst removing the problematic aspects of the current system.
6.09
A number of separate issues merit consideration in this context.
(a)
Re-naming the court poor box jurisdiction
6.10
At the outset, it is appropriate to consider whether, in the context of
the proposal to replace the court poor box system, that system ought to be
renamed. The present description is somewhat misleading since some
contributions to the court poor box are transmitted to organisations which are
charitable but not involved in alleviating the plight of the poor.[350]
Moreover, having regard to the problematic aspects of the present court poor
box system and the reforms which are proposed below, it might be regarded as
preferable, at least in terms of nomenclature, to distance the proposed system
from the present one, and to make a change to a more appropriate modern name.
6.11
To a large extent, the determination of an appropriate name
hinges on the nature and extent of that jurisdiction. For example,
if the system of making payments to a charitable organisation is to be
retained, it may be appropriate to rename the court poor box the “Court Charity
Fund”. As noted above, the Commission recommends provisionally that
trusts for the relief of poverty should benefit from court poor box funds in
the event of the poor box system being retained. For ease of reference,
the reformed court poor box will be referred to herein as the “Court Charity
Fund”.
6.12
The Commission is of the opinion that, in the event of reform of the
court poor box system, it should be renamed. The Commission
considers that “Court Charity Fund” is an appropriate title.
(b)
Circumstances in which the court charity fund can be applied
6.13
The Commission believes that the circumstances in which the Court
Charity Fund can be applied should be defined by legislation.
Nevertheless, it is important to emphasise that any such legislation must
preserve the discretionary powers of the judge to determine an outcome which is
proportionate to the offence in question and to the personal circumstances of
the offender. The Commission considers that the factors which are
currently taken into account in the application of the court poor box[351]
could form the basis of the Court Charity Fund.
6.14
The Commission recommends that the factors to be taken into account
in the application of the Court Charity Fund could include the following:
(a) the nature of the offence and,
in particular:
(i)
whether, having
regard to all relevant circumstances, the offence is of a trivial nature;
(ii)
whether the
offender caused any injuries to other persons and, if so, the nature and extent
of such injuries;
(iii)
whether the
offender caused any injuries to animals and, if so, the nature and extent of
such injuries; or
(iv)
whether the
offender caused any damage to property and, if so, the nature and extent of
such damage; and
(b)
the personal
circumstances of the offender and, in particular, his or her:
(i)
character;
(ii)
family
circumstances;
(iii)
age; or
(iv)
health; and
(c)
the need to avoid an injustice, whether to the offender or to any victim.
6.15
A further point which must be addressed is the question of whether to
limit the scope of the Court Charity Fund to cases where no conviction has been
recorded. As considered above,[352] it may be argued that the application
of the court poor in cases where a conviction has been recorded is inconsistent
with the fundamental philosophy underpinning this jurisdiction, namely the
concern to avoid recording a conviction in certain cases. Once a
conviction has been recorded, a full range of sentencing options is available
to the court, including custodial sentence, suspended sentence, fine, community
service order, or compensation order. Furthermore, the Commission is of the
view that the application of the court poor box post-conviction is liable to
damage public perception in relation to the proper administration of the court
poor box.
6.16
The Commission recommends that the Court Charity Fund should not be
available in cases where a conviction has been recorded.
(c)
The monetary amount
6.17
It is also appropriate to consider whether reforming legislation should
limit the amount of a contribution which may be accepted by the court as a
contribution to the Court Charity Fund. One option in this regard would
be to limit the monetary amount to the maximum amount of the fine to which a
person would be liable if convicted of the offence with which he has been
charged.
6.18
In its favour, it can be argued that it would reduce the scope for
affluent persons to make apparently generous contributions and, thus, evade a
conviction and/or a term of imprisonment. Even if, for the reasons
outlined above,[353]
the Court Charity Fund would not afford affluent persons such an opportunity,
the perception that it does so may nevertheless exist; in this respect
also, a limitation on the maximum permissible contributions arguably would
serve a valuable function since it would diminish the basis for such a
perception.
6.19
However, it can also be argued that a limitation on the maximum
permissible contribution would operate to the advantage of the affluent and
that, without that constraint, a court would be better placed to determine a
monetary amount which is proportionate to the means and circumstances of the
offender. Clearly, a monetary limitation would not in itself preclude a
court from having regard to the means and circumstances of an offender in
determining an appropriate contribution. Nevertheless, the fact that
contributions could not exceed a prescribed limitation would diminish the
capacity of a court to determine appropriate contributions from affluent
offenders. Arguably, this problem also exists in relation to fines and
ought not, therefore, to be addressed in isolation. In this context,
however, a number of additional factors merit consideration.
6.20
First, the value of fines is eroded over time by the effects of
inflation and, accordingly, even where a court imposes a maximum fine, it may
not reflect the gravity of the offence in question or the true maximum fine
which the legislature had intended. Against this background, it is
questionable whether it would be appropriate to limit contributions to the
Court Charity Fund in accordance with maximum permissible fines. Indeed,
as noted above,[354]
some courts apply the court poor box, at least in part, for the purpose of
countering the effects of inflation and determining a penalty which is
appropriate in all the circumstances. The force of this argument will be
diminished, however, upon the enactment of legislation which indexes fines in
accordance with the recommendations of the Law Reform Commission.[355]
6.21
Secondly, parity between a contribution to the Court Charity Fund and a
fine may be inappropriate in that the punishment encompassed in the latter
includes not simply a monetary payment but also a conviction; under the
proposed reforms, a contribution to the Court Charity Fund is premised on the
avoidance of a conviction.
6.22
Thirdly, it can be argued that the flexibility which inheres in the
present court poor box system in relation to the determination of the amount of
the contribution ought to be retained as an integral part of any reformed
system.
6.23
In the light of the foregoing, it would appear that it is inappropriate
for maximum permissible fines to be used as benchmarks for determining the
amount of a contribution to the Court Charity Fund.
6.24
It is thus necessary to return to the original question of the
appropriateness of setting any limitations on the maximum amount a
person may be required to contribute to the Court Charity Fund. On one view,
judges should be at liberty to determine a monetary penalty which is
proportionate to the offence and the personal circumstances (including the
means) of the offender. Another view would have as an alternative
proposal the setting of a cap on the amount which the court can require an
offender to pay in any case in order to combat the perception that the
Court Charity Fund allows affluent offenders to avoid the recording of a
conviction against them by offering generous contributions to the fund.
6.25
The Commission recommends that there should be a limit on the maximum
amount an offender may be requested to contribute to the Court Charity Fund.
6.26
The question of the scope of such appropriate limitation on
contributions must also be addressed. This issue will be addressed below.[356]
(d)
Receipt, administration and distribution of the court charity fund
6.27
The Commission believes that in the event of reform and replacement of
the court poor box system, it is imperative to provide for transparency and
accountability in relation to the receipt, administration and distribution of
the Court Charity Fund. In this regard, there are three recommendations for
consideration
6.28
First, it might be proposed that a particular court officer should be
designated with responsibility for the receipt and administration of monies
which are paid to the Court Charity Fund. In the case of the District
Court, for example, it may be appropriate to designate the District Court Clerk
as the officer with this responsibility.
6.29
Secondly, monies paid to the Court Charity Fund should not be
distributed by or at the direction of judges. For the reasons outlined in
Chapter 2 of this Paper,[357]
it is submitted that from the aspect of public perception it is desirable that
the distribution of such monies should not form a part of the judicial
function.
6.30
Thirdly, in the light of the foregoing, it is necessary to consider how
payments to the Court Charity Fund should be disbursed.[358] One option in this regard would
be to provide for the transmission of the monies to a central fund from which
they could be disbursed by an appropriate body to designated charities.
6.31
As has been noted in Chapter 3, the existence of a fully transparent and
accountable procedure is essential to the proper administration of the Court
Charity Fund. The question of the receipt and distribution of funds is at
the heart of this issue, and presents significant difficulties in the
formulation of an acceptable replacement scheme.
(e)
Options in respect of administration and allocation of the court charity
fund
6.32
The Commission is of the view that since the current operation of the
poor box system may not fully comply with all tax legislation and that the
receipt, administration and distribution of court poor box funds should
preferably form no part of the judicial function,[359] any funds generated by the Court
Charity Fund should be transferred to the Exchequer pursuant to section 51 of
the Court Officers Act 1926.[360]
6.33
Having regard to the benefits derived by the many worthwhile charities
which currently receive donations from court poor box funds, the Commission
further recommends that consideration be given to putting in place a scheme
providing for the “ring fencing” of monies generated by such a scheme on a
similar basis to the operation of the Environment Fund. One possibility
would be to recommend that such a separate fund be established within an
appropriate government department, for example Department of Community, Rural
and Gaeltacht Affairs, which would administer any funds raised by the Court
Charity Fund in consultation with appropriate bodies. However, the
Commission recognises that to an extent, this is uncharted territory, and as
such submissions on the administration and distribution of such funds, and in
particular the appropriate body to be designated responsible for this role,
would be welcomed.
(f)
Basis of the court charity fund scheme
6.34
One final issue remains
to be considered, namely the precise mechanism by which the replacement of the
court poor box system is to be achieved.
6.35
It was noted in Chapter 2 that, in addition to the options of retention
and reform of the court poor box, there were a number of existing statutory
provisions which provided the kernel of a jurisdiction to require offenders to
make a financial contribution in certain circumstances. Thus, it was
suggested that in the provisions of section 1(3) of the Probation of
Offenders Act 1907 and section 6 of the Criminal Justice Act 1993,
there exists some basis of a reformed system which allows a court to require a
person to make a financial contribution which might be viewed either as an
“earnest of intention” (ie undertaking to reform), or a compensatory
payment to any victim(s) in respect of damages for loss caused by the
offender. These provisions can be employed in respect of persons who have
not been convicted, but who have received the benefit of section 1(1) of the Probation
of Offenders Act 1907.[361]
6.36
However, these provisions at present do not constitute a complete or
viable alternative to the court poor box system, and there are a number of
further issues which must be addressed.
(g)
Current limitations on the scope of existing statutory provisions
6.37
The first problem to be addressed is the maximum amount a court can
require the offender to contribute. The maximum amount payable under the
terms of section 1(3) of the 1907 Act is €12.[362] The failure to amend this
provision since the time of its enactment has rendered the potential effect of
this power nugatory. If this existing statutory jurisdiction is to be
employed as an alternative to the court poor box system, it is clear that the
maximum amount payable would have to be increased substantially.
6.38
A further difficulty with the provisions of both section 1(3) of the Probation
of Offenders Act 1907 and section 6 of the Criminal Justice Act 1993
Act is that, in relation to the restitutionary aspect of these
provisions, both require the existence of an identifiable “victim” to whom the
compensation is payable. This raises a difficulty in that many cases
which currently result in the application of section 1(1) of the Probation of
Offenders Act 1907 in conjunction with a payment to the court poor box are
effectively “victimless crimes”, such as public order offences, where the
community is afflicted rather than a specific person. The requirement of an
identifiable victim thus limits the applicability of these provisions by
excluding such cases from their potential scope of application.
6.39
One further issue which was also highlighted above[363] is the precise nature of the inter-relationship
between section 1(3) of the Probation of Offenders Act 1907 and section
6 of the Criminal Justice Act 1993. Furthermore,
it would appear that the provisions of section 6 of the Criminal Justice Act
1993 are somewhat narrower in scope than those of section 1(3) of the 1907
Act. This arises as a result of the requirement in section 6 that there
be an identifiable victim who has suffered loss or damage as a result of the
actions of the offender. Although there was a similar provision in
section 1(3) of the 1907 Act, section 1(3) also allowed the court to require
the offender to make a contribution to the costs of the case in addition to or
as an alternative to a payment of compensation. No such equivalent
provision exists in relation to the scheme for compensation orders in section 6
of the Criminal Justice Act 1993.
6.40
In terms of the appropriate limitation on the maximum contribution which
an offender may be requested to make to the Court Charity Fund,[364]
the Commission considers that an attractive option would be to adopt the
approach taken in section 6(2) of the Criminal Justice Act 1993, and
limit the maximum amount payable to “the amount as may stand prescribed for the
time being by law as the limit of that Court's jurisdiction in tort.”
Currently this stands at €6,350 for the District Court and €38,100 for the
Circuit Court.[365]
These limits would apply in respect of the reformed Court Charity Fund and
should not affect the jurisdiction to award compensation or costs.
6.41
The Commission recommends that the maximum amount payable by an
offender under the Court Charity Fund should be limited to “the amount as may
stand prescribed for the time being by law as the limit of that Court’s
jurisdiction in tort”.
(h)
Guidance for application of compensation orders
6.42
Given that the proposed Court Charity Fund scheme draws in part on the
provisions of the Criminal Justice Act 1993 in respect of compensation
orders, it is also appropriate to consider the circumstances in which
compensation orders may be made. The scheme for compensation orders in this
jurisdiction was introduced by the Criminal Damage Act 1991.[366]
The 1991 Act was amended in 1993 in order to take account of problematic
aspects of the original provisions, giving rise to the current regime contained
in the Criminal Justice Act 1993. Despite the fact that the scheme
for compensation orders has therefore been available under Irish law for over a
decade, anecdotal evidence suggests that this scheme has generally been little
used. Although official statistics on the number of compensation orders made
annually are not available, inquiries with practitioners and the Courts Service
have confirmed that such orders are infrequently made. One possible
reason for the infrequency of use of these provisions may be the absence of any
guidance as to the circumstances in which a court may impose a compensation
order upon an offender.
6.43
The 1993 Act is based on comparable provisions now included in the
English Powers of Criminal Courts (Sentencing) Act 2000, ss. 130-132.[367]
The English courts have enunciated several principles in relation to the making
of compensation orders; one of the leading cases in this regard was R. v
Miller.[368]
The seven principles deduced from the case law on the circumstances in which a
compensation order may be made under the Act are summarised by Boyle and Allen[369]
as follows:
(a)
A compensation order is not an alternative to sentence.
(b)
Such an order should only be made where the legal position is clear.
(c)
The power to order compensation should only be used for dealing with
claims in straightforward cases.[370]
(d)
An order should not be made unless the sum claimed by the victim is
either agreed or has been proved.[371]
(e)
In considering whether or not to make a compensation order, it is not a
relevant consideration for the court to consider whether or not the offender
has profited from the offence. The proper question for the court to
consider is the extent of the loss suffered by the victim.
(f)
In determining whether to make a compensation order against any person,
and in determining the amount to be paid by such person, the court shall have
regard to the offender’s means.[372]
6.44
Other principles which can be derived from the English case law include
the fact that the order “must be precise: it must be related to an offence of
which the offender has been convicted or to an offence which he has asked to be
taken into consideration, and the total amount and the instalment amount must
be specified in the order”.[373]
Elaborating on the relevance of the means of the offender, the English courts
have stated that, as a general rule, a compensation order should not be made
against an offender on the assumption that the order will be paid by third
parties: R. v Mortimer.[374] Where it is proposed to make a
compensation order against an offender on the assumption that the funds may be
raised by the sale of an asset, it has been held that it is vital that there
should be a proper valuation of the asset presented to the court before such an
order is made.[375]
6.45
The relationship between compensation orders and length of sentence is
precisely stated by Archbold as follows:
“Inability
to pay compensation is not a matter which should affect the length of …
sentence. The significance of an offer to pay compensation is that it
might be taken as some token of remorse on the defendant’s behalf as well as
redressing the victim’s loss. To that extent and no further it
features in the sentencing exercise: compensation orders are otherwise
wholly independent of that exercise”.[376] [Emphasis added]
6.46
Given that section 6 of the Criminal Justice Act 1993 is based on
the English legislation in this area, the Commission is of the view that the
principles set down by the English courts on the circumstances in which a court
may make a compensation order, and the matters suggested to be considered (or
indeed not considered) in reaching that decision, may be of some assistance to
the courts in this jurisdiction when considering making an order pursuant to
the 1993 Act.
C
Conclusions
6.47
The Commission provisionally recommends the introduction of
legislation establishing a Court Charity Fund to replace the current court poor
box system. A draft scheme of a Court Charity Fund Bill is contained in
Appendix A.
7.
Chapter 7
summary of provisional recommendations
7.01
In the light of the foregoing chapters, the principal recommendations of
the Commission may be summarised as follows.
B
Summary of Recommendations
7.02
The Commission provisionally recommends that the court poor box system
be reformed by avoiding the inappropriate features which currently exist, but
which retain its positive and important aspects. The Commission
provisionally recommends that the court poor box jurisdiction should be
replaced by a statutory scheme based on the provisions of the Probation of
Offenders Act 1907 and the Criminal Justice Act 1993 which would
provide a revised method of avoiding a conviction for minor offences while
introducing an appropriate system allowing for the making of a financial
contribution akin to an “earnest of intention”, which also accords with the principles
of restorative justice. [paragraph 2.131]
7.03
The Commission believes that any such scheme should not be applied in
cases where a conviction has been recorded. This arises partly from a
recognition of the underlying rationale of such a scheme, namely a concern to
avoid imposing a conviction (akin to allowing a first time offender “one
chance”). Furthermore, the Commission believes that the application of
the court poor box scheme in cases where a conviction has been recorded leads
to accusations that offenders can “buy” their way out of a prison
sentence. The Commission believes that such perceptions, although
ill-founded, are nevertheless harmful to the administration of justice, which
must not only be done, but seen to be done. [paragraph 2.132]
7.04
The Commission recommends that funds generated by the court poor box, or
any replacement scheme, should be applied only for the benefit of “trusts for
the relief of poverty”. Accordingly, it is recommended that trusts for the
advancement of education, religion and trusts for other purposes beneficial to
the community should be excluded from the scope of application of court poor
box funds. [paragraph 3.24]
7.05
The Commission is of the view that since the current operation of the
poor box system may not fully comply with all tax legislation and that the
receipt, administration and distribution of court poor box funds form no part
of the judicial function, any funds generated by the court poor box system, or
any replacement scheme, should be transferred to the Exchequer pursuant to
section 51 of the Court Officers Act 1926. [paragraph 3.57]
7.06
Having regard to the benefits derived by the many worthwhile charities
which currently receive donations from court poor box funds, the Commission
further recommends that consideration be given to putting in place a scheme
providing for the “ring fencing” of monies generated by such a scheme on a
similar basis to the operation of the Environment Fund. One possibility
would be to recommend that such a separate fund be established within an
appropriate government department, for example Department of Community, Rural
and Gaeltacht Affairs, which would administer any funds raised by the replacement
court poor box scheme. However, the Commission recognises that to an
extent, this is uncharted territory, and as such submissions on the
administration and distribution of such funds, and in particular the
appropriate body to be designated responsible for this role, would be welcomed.
[paragraph 3.58]
7.07
The Commission believes that there are many complex issues which must be
considered in any comprehensive discussion of the merits and demerits of “spent
conviction” schemes, and further believes that such debate ultimately falls
outside the scope of this Consultation Paper on the Court Poor Box.
However, the Commission may consider this matter in greater detail at a future
date. The Commission would welcome submissions on the issue of spent
convictions from any interested bodies or persons, with a view to a future
publication dedicated to a full consideration of whether such a scheme should
be introduced in this jurisdiction. [paragraph 5.28]
7.08
The Commission is provisionally of the view that the court poor box
should not be abolished in its entirety but welcomes submissions on this
point. [paragraph 6.04]
7.09
The Commission provisionally recommends that the court poor box system
as currently applied should not be retained. [paragraph 6.06]
7.10
The Commission provisionally recommends that the court poor box should
be reformed in order to preserve the positive aspects of the court poor box
jurisdiction whilst removing the problematic aspects of the current
system. [paragraph 6.08]
7.11
The Commission is of the opinion that, in the event of reform of the
court poor box system, it should be renamed. The Commission considers
that “Court Charity Fund” is an appropriate title. [paragraph 6.12]
7.12
The Commission recommends that the factors to be taken into account in
the application of the Court Charity Fund could include the following:
(a) the nature of the offence and, in
particular:
(i) whether, having regard to all relevant
circumstances, the offence is of a trivial nature;
(ii) whether the offender caused any injuries
to other persons and, if so, the nature and extent of such injuries;
(iii) whether the offender caused any injuries
to animals and, if so, the nature and extent of such injuries; or
(iv) whether the offender caused any damage to
property and, if so, the nature and extent of such damage; and
(b) the personal circumstances of the offender
and, in particular,
his or her:
(i) character;
(ii) family circumstances;
(iii) age; or
(iv) health; and
(c) the need to avoid an injustice, whether to
the offender or to any victim. [paragraph 6.14]
7.13
The Commission recommends that the Court Charity Fund should not be
available in cases where a conviction has been recorded. [paragraph 6.15]
7.14
The Commission recommends that there should be a limit on the maximum
amount an offender may be requested to contribute to the Court Charity
Fund. [paragraph 6.25]
7.15
The Commission recommends that the maximum amount payable by an offender
under the Court Charity Fund should be limited to “the amount as may stand
prescribed for the time being by law as the limit of that Court’s jurisdiction
in tort”. [paragraph 6.41]
7.16
The Commission provisionally recommends the introduction of legislation
establishing a Court Charity Fund to replace the current court poor box system.
A draft scheme of a Court Charity Fund Bill is contained in Appendix A. [paragraph
6.47]
APPENDIX
A DRAFT SCHEME OF COURT CHARITY FUND BILL
General
Note
This draft
scheme of a Bill is intended as a guide only as to the shape of any proposed
replacement of the Court Poor Box, taking account of the advantages and
disadvantages of the current arrangements identified in the Consultation Paper.
The current arrangements reflect general principles of restorative justice and
provide a method of avoiding a conviction primarily in the case of first-time
minor offenders. These elements and the criteria identified in the Consultation
Paper have been incorporated in the draft scheme. The disadvantages in the
current arrangements include lack of universal availability of the Court Poor
Box, the inappropriateness of judicial involvement in administering funds,
revenue-compliance difficulties and the potential diversion from the Exchequer
of what might otherwise be collected in fines. The draft scheme aims to avoid
these disadvantages while incorporating the commendable features underlying the
court poor box disposition.
Section
1
Dismissal
of summary charge subject to payment of earnest of intention
(1) Where:
(a) a person is charged with an offence
which may be tried summarily,
and
(b) the Court is satisfied that
the charge has been proved but considers that, having regard to the matters set
out in section 2 it would not be appropriate to proceed to convict the person,
the Court may dismiss the charge, subject to:
(i)
the payment by the
person charged, in accordance with section 3, of such sum by way of earnest of
intention as the Court may order, and
(ii)
such other Order
or Orders (if any) as the Court may make under sections 5 and 6.
(2) In
this section, ‘the Court’ means the District Court and the Circuit Court.
(3)
Where a disposition under this section has been made by the District Court, the
person charged may appeal against that disposition to the Circuit Court and the
Circuit Court may exercise the same jurisdiction as the District Court.
(3)
Where a disposition under this section has been made by the Circuit Court, the
person charged may appeal against that disposition to the High Court and the
High Court may exercise the same jurisdiction as the Circuit Court.
[Note to
section 1. This is an updated version of section 1(1) of the Probation of
Offenders Act 1907, but in this version, the distinction between the full
dismissal in s.1(1)(a) and the conditional discharge in s.1(1)(b) has been
merged. In this updated version, it is clear that the scheme is not available
if a criminal conviction is recorded and it also allows for the Court to impose
no or some conditions to the dismissal. The draft scheme is not intended
as a replacement for section 1(1) of the 1907 Act; the appropriate use of the
conditional discharge is outside the scope of this Paper]
Section
2
Matters
to be considered in dismissal of summary charge
In the
exercise of the discretionary power conferred by section 1, the Court is to
have regard to the following matters:
(a) the nature of the offence and, in
particular:
(i) whether, having regard to all relevant
circumstances, the offence is of a trivial nature;
(ii) whether the offender caused any injuries
to other persons and, if so, the nature and extent of such injuries;
(iii) whether the offender caused any injuries
to animals and, if so, the nature and extent of such injuries; or
(iv) whether the offender caused any damage to
property and, if so, the nature and extent of such damage; and
(b) the personal circumstances of the offender
and, in
particular, his or her:
(i) character;
(ii) family circumstances;
(iii) age; or
(iv) health; and
(c) the need to avoid an injustice, whether to
the offender or to any victim.
[Note to
section 2. This places in statutory form the factors currently taken into
account where the Court Poor Box is applied. ]
Section
3
Earnest
of intention
(1) In determining the amount of the
earnest of intention that is to be paid under section 1, the Court is to take
into consideration:
(i)
whether any
person has suffered any injury or loss resulting from the circumstances
surrounding the charge;
(ii)
whether the
offender caused any injuries to animals and, if so, the nature and extent of
such injuries; or
(iii)
whether any
property has been damaged resulting from the circumstances surrounding the
charge.
(2) Where no personal injury or loss, or injury
to animals or damage to any property can be identified by the Court as
resulting from the circumstances surrounding the charge, the Court may, in
determining the amount of the earnest of intention, take into consideration all
costs incurred in the prosecution of the offender.
(3) In determining the amount of the earnest of
intention the Court is to take into consideration the means of the offender.
(4) The amount of the earnest of intention is
not to exceed the amount as may stand prescribed for the time being by law as
the limit of the Court's jurisdiction in tort.
[Note to section 3. This specifies that, in determining the level of the
earnest of intention, the Court must take into account whether there has been
any personal injury, injury to animals or property damage. Where these do not
arise, for example in a public order offence, the Court may also take into
account the costs of the prosecution, reflecting some elements of section 1(3)
of the 1907 Act. The Court must also take into account the person’s means.
Finally, the amount of the earnest is limited to the Court’s tort jurisdiction
(this is the element taken from the Criminal Justice Act 1993 to update
the reference to £10 in the 1907 Act).]
Section 4
Court Charity Fund
(1) The earnest of intention to be paid under
section 1 is to be paid into a fund to be known as the Court Charity Fund,
which is to be established, managed and controlled by the Minister for
Community, Rural and Gaeltacht Affairs.
(2) From time to time (and at least annually),
the Minister, having consulted with any relevant body, is to pay out of the
Court Charity Fund such amounts of money as he or she considers appropriate for
the purposes of promoting or assisting any trust established for the relief of
poverty.
[Note to section 4. This provides that the earnest of intention is to be
made to the Court Charity Fund, modelled on the Environment Fund established
under the Waste Management (Amendment) Act 2001. This avoids the
inappropriateness of judicial involvement in administering funds, revenue-compliance
difficulties and the potential diversion from the Exchequer of what might
otherwise be collected in fines. The Department referred to is currently
responsible for charity matters. Payments out of the Fund are to be limited to
assist trusts for the relief of poverty. Consultation by the Minister prior to
making payments out could involve a relevant or appropriate body, for example,
the National Crime Council.]
Section 5
Further Orders
Where the Court dismisses a charge under
section 1 it may apply any of the following Orders to the person charged:
(a) a Community Service Order;
(b) a Probation Order (including
mandatory Intensive Community Supervision by the Probation and Welfare
Service);
(c) a Recognisance Order, with or
without sureties, requiring the person charged to be of good behaviour for a
period, not exceeding three years;
(d) a Treatment Order;
(e) a Mediation Order;
(f) a Reparation Order; or
(g) a Counselling Order.
[Note to
section 5. These dispositions are based on the list contained in the Final
Report of the Expert Group on the Probation and Welfare Service (Pn
7324) (Department of Justice 1999). The Report recommended that the Criminal
Justice (Community Service) Act 1983 be amended to provide that a Community
Service Order be available as both an alternative to imprisonment and
as a sanction in its own right and this is reflected in section 5(a).
This view was also expressed by the Commission in its Report on Sentencing (LRC
53-1996). It should be noted that the orders referred to in (e) to (g)
are not currently available as orders under Irish law.]
Section
6
Compensation
Order
(1) Where the Court dismisses a charge
under section 1 it may, instead of or in addition to making any Order under
section 5, impose a Compensation Order on the person charged.
(2) A Compensation Order requires the
person charged to pay compensation in respect of any personal injury or loss,
or damage to property, resulting from the circumstances surrounding the charge
to any person who has suffered such injury, loss or damage to property (the
injured party).
(3) In determining the amount to be paid
under a Compensation Order, the Court is to take into consideration the means
of the person charged, including any earnest of intention paid under section 1,
and that the sum involved is agreed to and proved by the injured party.
(4) The amount to be paid under a
Compensation Order is not to exceed the amount as may stand prescribed for the
time being by law as the limit of the Court's jurisdiction in tort.
[Note to
section 6. This is modelled on the terms of the Criminal Justice Act 1993.
It clarifies that the making of a Compensation Order is separate from an
earnest of intention, which replaces the contribution to the Court Poor Box, as
well as the other dispositions under section 5.]
appendix
B payments to court poor box in the district Court and
circuit court (1999 - 2003)[377]
|
District Courts |
1999 (£) |
2000 (£) |
2001 (£) |
2002 (€) |
2003 (€) |
|
|
Athlone |
7,700.00 |
6,970.00 |
18,045.00 |
10,992.00 |
8,045.03 |
|
|
Ballina |
1,804.56 |
6,740.00 |
9,075.00 |
N.A. |
12,225.00 |
|
|
Ballinasloe |
7,750.00 |
3,208.00 |
1,960.00 |
N.A. |
7,875.00 |
|
|
Bray |
2,410.00 |
7,545.00 |
5,750.00 |
4,602.64 |
2,513.65 |
|
|
Carlow |
38,430.88 |
39,771.00 |
41,906.00 |
46,094.50 |
16,690.00 |
|
|
Ck-on-Shn |
128.04 |
0.00 |
0.00 |
13,097.38 |
0.00 |
|
|
Castlebar |
3,130.00 |
6,045.00 |
13,916.31 |
17,386.12 |
15,610.00 |
|
|
Cavan |
200.00 |
1,355.00 |
0.00 |
0.00 |
0.00 |
|
|
Clonakilty |
N.A. |
32,165.00 |
94,574.00 |
132,556.94 |
145,515.46 |
|
|
Clonmel |
5,738.51 |
9,140.00 |
11,455. 00 |
28,804.29 |
14,833. 80 |
|
|
Cork |
12,770.04 |
7,857.00 |
2,173.02 |
5,862.33 |
0.00 |
|
|
Derrynea |
0.00 |
0.00 |
0.00 |
N.A. |
N.A. |
|
|
Donegal |
0.00 |
6,730.00 |
5,751.04 |
5,023.95 |
10,050.00 |
|
|
Drogheda |
3,936.27 |
3,199.00 |
2,250.00 |
834.87 |
4,800.00 |
|
|
Dundalk |
2,621.17 |
3,484.00 |
3,532.89 |
3,425.00 |
4,828.49 |
|
|
Ennis |
0.00 |
0.00 |
0.00 |
6,955.00 |
14,335.00 |
|
|
Fermoy |
890.00 |
2,300.00 |
995.00 |
3,242.79 |
6,707.90 |
|
|
Galway |
600.00 |
400.00 |
159.99 |
N.A. |
4,240.00 |
|
|
Gorey |
3,125.00 |
2,520.00 |
3,870.00 |
6,610.28 |
0.00 |
|
|
Kilkenny |
5,300.00 |
6,229.00 |
3,775.00 |
5,432.00 |
150.00 |
|
|
Killarney |
210.00 |
225.00 |
0.00 |
0.00 |
0.00 |
|
|
Letterkenny |
0.00 |
0.00 |
0.00 |
0.00 |
9,145.00 |
|
|
Limerick |
8,495.88 |
15,614.00 |
23,135.00 |
31,376.75 |
43,089.00 |
|
|
Listowel |
1,180.00 |
1,005.00 |
2,645.00 |
3,021.95 |
1,030.00 |
|
|
Longford |
4,388.00 |
4,290.00 |
9,694.47 |
5,515.00 |
3,100.00 |
|
|
Mallow |
1,400.00 |
1,765.00 |
415.00 |
0.00 |
0.00 |
|
|
Monaghan |
1,310.00 |
3,690.00 |
7,072.26 |
11,582.39 |
10,043.20 |
|
|
Mullingar |
10,680.00 |
3,760.00 |
3,770.00 |
934.87 |
1,350.00 |
|
|
Naas |
0.00 |
2,350.00 |
1,160. 00 |
5,200.00 |
2,275.00 |
|
|
Nenagh |
27,435.60 |
5,425.00 |
3,434.69 |
9,124.92 |
7,444.80 |
|
|
Portlaoise |
41,548.27 |
38,160.00 |
5,900.00 |
15,185.23 |
14,590. 00 |
|
|
Roscommon |
3,050.00 |
260.00 |
1,065.00 |
600.00 |
900.00 |
|
|
Sligo |
7,556.59 |
6,582.00 |
6,630.00 |
17,207.51 |
14,000.00 |
|
|
Swords |
935.19 |
6,127.00 |
9,937.10 |
70,037.53 |
62,720. 00 |
|
|
Thurles |
11,365.00 |
8,900.00 |
6,350.00 |
7,956.97 |
13,563.00 |
|
|
Tralee |
0.00 |
0.00 |
0.00 |
0.00 |
0.00 |
|
|
Trim |
50.00 |
0.00 |
600.00 |
0.00 |
5,000.00 |
|
|
Tuam |
470.00 |
1,145.00 |
0.00 |
2,590.00 |
4,350.00 |
|
|
Tullamore |
11,705.00 |
8,825.00 |
5,890.00 |
817.43 |
300.00 |
|
|
Waterford |
8,760.00 |
7,090.00 |
5,870.00 |
N.A. |
1,520.00 |
|
|
Youghal |
10,479.00 |
6,635.00 |
11,445.00 |
11,839.69 |
7,470. 00 |
|
|
DMD Fines Office |
94,514.15 |
133,856.00 |
232,159. 00 |
375,909. 71 |
462,779.79 |
|
|
DMD – Dun Laoghaire |
8,822.00 |
7,091.00 |
14,735.46 |
27,822.51 |
32,021. 00 |
|
|
DMD – Children’s Court |
N.A. |
N.A. |
N.A. |
N.A. |
4,536. 00 |
|
Circuit Courts |
1999 (£) |
2000 (£) |
2001 (£) |
2002 (€) |
2003 (€) |
|
Carlow |
0.00 |
200.00 |
0.00 |
0.00 |
0.00 |
|
Ck-on-Shan |
75.00 |
300.00 |
0.00 |
13,097.38 |
1,850.00 |
|
Castlebar |
8,185.26 |
0.00 |
0.00 |
0.00 |
0.00 |
|
Cavan |
0.00 |
0.00 |
0.00 |
2,800. 00 |
0.00 |
|
Clonmel |
2,000.00 |
175.00 |
400.00 |
515.00 |
300.00 |
|
Cork |
0.00 |
0.00 |
0.00 |
0.00 |
N.A. |
|
Dublin |
0.00 |
0.00 |
0.00 |
0.00 |
N.A. |
|
Dundalk |
0.00 |
0.00 |
0.00 |
0.00 |
N.A. |
|
Ennis |
0.00 |
0.00 |
0.00 |
6,955.00 |
0.00 |
|
Galway |
6,817.98 |
4,250.00 |
0.00 |
N.A. |
0.00 |
|
Kilkenny |
1,300.00 |
0.00 |
0.00 |
350.00 |
0.00 |
|
Letterkenny |
0.00 |
2,350.00 |
11,700.00 |
7,784.87 |
550.00 |
|
Limerick |
0.00 |
0.00 |
0.00 |
N.A. |
N.A. |
|
Longford |
0.00 |
0.00 |
0.00 |
N.A. |
N.A. |
|
Monaghan |
100.00 |
200.00 |
0.00 |
2,100.00 |
0.00 |
|
Mullingar |
1,900.00 |
0.00 |
0.00 |
N.A. |
N.A. |
|
Naas |
0.00 |
0.00 |
0.00 |
N.A. |
N.A. |
|
Portlaoise |
1,900.00 |
0.00 |
0.00 |
0.00 |
0.00 |
|
Roscommon |
0.00 |
0.00 |
0.00 |
N.A. |
N.A. |
|
Sligo |
0.00 |
0.00 |
0.00 |
N.A. |
N.A. |
|
Tralee |
0.00 |
0.00 |
0.00 |
N.A. |
N.A. |
|
Trim |
350.00 |
0.00 |
0.00 |
0.00 |
0.00 |
|
Tullamore |
0.00 |
0.00 |
0.00 |
0.00 |
0.00 |
|
Waterford |
0.00 |
7,090.00 |
0.00 |
N.A. |
0.00 |
|
Wexford |
200.00 |
0.00 |
30.00 |
979.74 |
0.00 |
|
Wicklow |
0.00 |
0.00 |
0.00 |
N.A. |
N.A. |
appendix c payments
out of the court poor box in the district court and circuit court (1999-2003)[378]
|
District Courts |
1999 (£) |
2000 (£) |
2001 (£) |
2002 (€) |
2003 (€) |
|
Athlone |
8,050.00 |
6,970.00 |
18,045.00 |
10,992.47 |
8,045. 03 |
|
Ballina |
2,154.00 |
500.00 |
18,815.00 |
7,728.95 |
12,225.00 |
|
Ballinasloe |
8,161.00 |
3,808.00 |
300.00 |
N.A. |
7,875. 00 |
|
Bray |
100.00 |
8,359.00 |
13,040.00 |
5,500.00 |
295.00 |
|
Carlow |
38,385.00 |
39,771.00 |
41,906.00 |
46,094.50 |
16,690.00 |
|
Ck-on-Shn |
670.00 |
258.00 |
0.00 |
0.00 |
0.00 |
|
Castlebar |
3,130.00 |
6,045.00 |
13,916.31 |
17,386.12 |
15,610.00 |
|
Cavan |
200.00 |
1,355.00 |
0.00 |
0.00 |
0.00 |
|
Clonakilty |
N.A. |
22,125.00 |
43,545.00 |
113,975. 33 |
144,858. 00 |
|
Clonmel |
7,115.00 |
6,060.00 |
11,950.00 |
20,927.26 |
16,950.00 |
|
Cork |
12,524.00 |
7,950.00 |
1,370.00 |
5,650.00 |
0.00 |
|
Derrynea |
0.00 |
0.00 |
0.00 |
0.00 |
N.A. |
|
Donegal |
0.00 |
6,730.00 |
5,751.04 |
5,023.95 |
10,050.00 |
|
Drogheda |
3,500.00 |
800.00 |
2,800.00 |
3,950.00 |
2,000.00 |
|
Dundalk |
3,071.00 |
3,084.00 |
3,532.89 |
2,925.00 |
5,328.49 |
|
Ennis |
0.00 |
0.00 |
0.00 |
1,000.00 |
50.00 |
|
Fermoy |
0.00 |
1,650.00 |
300.00 |
2,375.27 |
6,200.00 |
|
Galway |
0.00 |
583.00 |
1,149.99 |
N.A. |
0.00 |
|
Gorey |
3,085.00 |
2,630.00 |
0.00 |
0.00 |
0.00 |
|
Kilkenny |
5,450.00 |
6,229.00 |
3,775.00 |
5,432.00 |
150.00 |
|
Killarney |
210.00 |
225.00 |
0.00 |
0.00 |
0.00 |
|
Letterkenny |
0.00 |
0.00 |
0.00 |
0.00 |
9,145.00 |
|
Limerick |
12,825.00 |
11,500.00 |
19,920.00 |
26,104.00 |
44,417.00 |
|
Listowel |
1,808.50 |
300.00 |
3,350. 00 |
3,021.95 |
1,030.00 |
|
Longford |
5,052.85 |
4,027.00 |
4,886. 81 |
10,502.28 |
1,841.99 |
|
Loughrea |
4,745.00 |
50.00 |
3,683. 00 |
9,430. 00 |
2,650.00 |
|
Mallow |
230.00 |
3,165.00 |
415.00 |
0.00 |
0.00 |
|
Monaghan |
1,400.00 |
4,529.00 |
3,918. 77 |
10,763.31 |
10,218.20 |
|
Mullin-gar |
9,600.00 |
3,610.00 |
4,725. 00 |
1,650.00 |
1,500.00 |
|
Naas |
0.00 |
2,350.00 |
1,160. 00 |
4,701.97 |
2,275.00 |
|
Nenagh |
25,625.60 |
9,060. 00 |
4,040. 91 |
8,652.73 |
6,544.80 |
|
Portlaoise |
41,859.20 |
38,700. 00 |
5,950. 00 |
15,185.23 |
15,000.00 |
|
Roscommon |
3,050.00 |
260.00 |
1,065.00 |
600.00 |
900.00 |
|
Sligo |
7,556.59 |
6,582.00 |
6,630.00 |
17,207.51 |
14,000.00 |
|
Swords |
528.89 |
6,306.00 |
10,356.50 |
68,740.70 |
61,885.00 |
|
Thurles |
11,365.00 |
9,450.00 |
6,000.00 |
7,956.97 |
12,145.00 |
|
Tralee |
0.00 |
0.00 |
0.00 |
0.00 |
N.A. |
|
Trim |
50.00 |
0.00 |
600.00 |
0.00 |
5,000. 00 |
|
Tuam |
470.00 |
1,145.00 |
0.00 |
2,590.00 |
4,350.00 |
|
Tullamore |
12,765.00 |
7,300.00 |
590.32 |
2,720.39 |
1,000.00 |
|
Waterford |
8,200.00 |
7,420.00 |
6,220.00 |
N.A. |
1,300.00 |
|
Wexford |
400.00 |
8,800.00 |
5,420.00 |
5,300.00 |
16.00 |
|
Youghal |
85.00 |
11,770. 00 |
2,560. 00 |
18,133.67 |
21,200.00 |
|
DMD Fines Office |
79,702.96 |
137,084.00 |
230,000.00 |
380,569. 59 |
478,381.34 |
|
DMD Dun Laoghaire |
8,180.00 |
7,091.00 |
11,519.70 |
28,761.68 |
34,535.00 |
|
DMD - Children’s Court |
N.A. |
N.A. |
N.A. |
N.A. |
4,536. 00 |
|
Circuit Courts |
1999 (£) |
2000 (£) |
2001 (£) |
2002 (€) |
2003 (€) |
|
Carlow |
0.00 |
0.00 |
0.00 |
67.00 |
2,091.55 |
|
Ck-on-Shan |
75.00 |
300.00 |
0.00 |
13,097.38 |
1,850.00 |
|
Castlebar |
0.00 |
10,744.00 |
0.00 |
0.00 |
0.00 |
|
Cavan |
0.00 |
0.00 |
0.00 |
2,800.00 |
0.00 |
|
Clonmel |
0.00 |
175.00 |
0.00 |
16,745.65 |
0.00 |
|
Cork |
0.00 |
0.00 |
0.00 |
N.A. |
N.A. |
|
Dublin |
0.00 |
0.00 |
0.00 |
N.A. |
N.A. |
|
Dundalk |
0.00 |
0.00 |
0.00 |
N.A. |
N.A. |
|
Ennis |
0.00 |
0.00 |
0.00 |
1,000.00 |
0.00 |
|
Galway |
5,500.00 |
4,250.00 |
3,450.00 |
N.A. |
0.00 |
|
Kilkenny |
1,300.00 |
0.00 |
0.00 |
350.00 |
0.00 |
|
Letterkenny |
0.00 |
2,350.00 |
2,350.00 |
7,784.87 |
550.00 |
|
Limerick |
0.00 |
0.00 |
0.00 |
N.A. |
N.A. |
|
Longford |
0.00 |
0.00 |
0.00 |
N.A. |
N.A. |
|
Monaghan |
600.00 |
200.00 |
200.00 |
2,100.00 |
0.00 |
|
Mullingar |
580.00 |
0.00 |
0.00 |
N.A. |
N.A. |
|
Naas |
0.00 |
0.00 |
0.00 |
N.A. |
N.A. |
|
Portlaoise |
0.00 |
0.00 |
0.00 |
736.83 |
0.00 |
|
Roscommon |
0.00 |
0.00 |
0.00 |
N.A. |
N.A. |
|
Sligo |
0.00 |
0.00 |
0.00 |
N.A. |
N.A. |
|
Tralee |
0.00 |
0.00 |
0.00 |
N.A. |
N.A. |
|
Trim |
350.00 |
0.00 |
0.00 |
0.00 |
0.00 |
|
Tullamore |
0.00 |
0.00 |
0.00 |
0.00 |
0.00 |
|
Waterford |
0.00 |
7,090.00 |
7,420.00 |
N.A. |
N.A. |
|
Wexford |
0.00 |
0.00 |
2,500.00 |
0.00 |
0.00 |
|
Wicklow |
0.00 |
0.00 |
0.00 |
N.A. |
N.A. |
|
Charitable Organisation |
Total No. of Payments made to Org. |
Total Value of Payments made to Org. |
Average Payment made to Org. |
|
St Vincent de Paul |
96 |
78,939.04 |
822.28 |
|
Sight Savers International |
2 |
30,000.00 |
15,000.00 |
|
Garda Benevolent Fund |
51 |
25,457.44 |
499.17 |
|
North West Hospice |
34 |
24,031.13 |
706.80 |
|
Victim Support |
10 |
14,597.79 |
1,459.78 |
|
Amnesty International |
1 |
10,000.00 |
10,000.00 |
|
Concern |
3 |
8,650.00 |
2,883.33 |
|
Goal |
1 |
7,500.00 |
7,500.00 |
|
Trocaire |
1 |
7,500.00 |
7,500.00 |
|
Fr Peter McVerry |
14 |
6,770.00 |
483.57 |
|
Focus Ireland |
10 |
6,750.00 |
675.00 |
|
Aidan C O’Sullivan Trust Fund |
1 |
6,500.00 |
6,500.00 |
|
Swords Drug Awareness |
10 |
6,190.00 |
619.00 |
|
Chernobyl Children’s Project |
2 |
6,000.00 |
3,000.00 |
|
John Paul Carnay Trust Fund |
1 |
5,000.00 |
5,000.00 |
|
Merchant’s Quay Project |
4 |
4,974.74 |
1,243.69 |
|
Darndale Holiday Fund |
13 |
4,925.00 |
378.85 |
|
Probation Welfare Service |
17 |
4,772.73 |
280.75 |
|
Simon Community |
14 |
4,612.76 |
329.48 |
|
Hope House Foxford |
25 |
4,343.76 |
173.75 |
|
Irish Cancer Society |
5 |
4,230.00 |
846.00 |
|
Down Syndrome Ireland |
6 |
3,903.95 |
650.66 |
|
Aislinn Centre |
2 |
3,869.74 |
1,934.87 |
|
Garda Welfare Service |
1 |
3,000.00 |
3,000.00 |
|
Alone |
5 |
2,987.90 |
597.58 |
|
Active Age |
7 |
2,850.00 |
407.14 |
|
Kinsale Community Centre |
3 |
2,650.00 |
883.33 |
|
Irish Wheelchair Association |
5 |
2,564.49 |
512.90 |
|
Trust Charity |
5 |
2,500.00 |
500.00 |
|
West Cork Youth Development Fund |
1 |
2,500.00 |
2,500.00 |
|
Donegal Hospice |
4 |
2,484.87 |
621.22 |
|
Alzheimers Association |
6 |
2,400.00 |
400.00 |
|
Carlow Women’s Aid |
1 |
2,298.35 |
2,298.35 |
|
Poor Clare Convent |
1 |
2,150.00 |
2,150.00 |
|
Balbriggan Drug Awareness |
7 |
2,040.00 |
291.43 |
|
Ballinahassig Parish Fund |
2 |
2,000.00 |
1,000.00 |
|
Friends of St Theresa’s Hospice Movement |
2 |
2,000.00 |
1,000.00 |
|
Special Olympics Ireland |
2 |
2,000.00 |
1,000.00 |
|
Aureila Trust Fund |
1 |
2,000.00 |
2,000.00 |
|
Samaritans |
8 |
1,956.98 |
244.62 |
|
Rape Crisis Centre |
2 |
1,934.86 |
967.43 |
|
Holy Family Centre |
2 |
1,703.95 |
851.98 |
|
Rutland Centre |
5 |
1,670.00 |
334.00 |
|
South Tipperary Hospice |
2 |
1,500.00 |
750.00 |
|
Barnardos |
1 |
1,500.00 |
1,500.00 |
|
Friends of Nenagh Hospital |
1 |
1,500.00 |
1,500.00 |
|
NAPBS |
1 |
1,500.00 |
1,500.00 |
|
Nenagh Mental Health Association |
1 |
1,500.00 |
1,500.00 |
|
Wicklow Meals-on-wheels Committee |
1 |
1,500.00 |
1,500.00 |
|
Cope Foundation |
2 |
1,450.00 |
725.00 |
|
Kildare Carer’s Association |
1 |
1,434.96 |
1,434.96 |
|
Stop Drugs Now Campaign |
1 |
1,431.74 |
1,431.74 |
|
Sunshine House |
7 |
1,390.00 |
198.57 |
|
Capuchin Friary |
1 |
1,380.00 |
1,380.00 |
|
Jack & Jill Foundation |
5 |
1,350.00 |
270.00 |
|
Athlone Chernobyl Aid Project |
1 |
1,300.00 |
1,300.00 |
|
Brothers of Charity – Barnmore |
1 |
1,300.00 |
1,300.00 |
|
Fr Gerry Daly |
1 |
1,300.00 |
1,300.00 |
|
Limerick Youth Service |
1 |
1,300.00 |
1,300.00 |
|
Social Services Centre Limerick |
1 |
1,300.00 |
1,300.00 |
|
Sr Conselio Limerick |
1 |
1,300.00 |
1,300.00 |
|
St Gabriel’s School & Centre |
1 |
1,300.00 |
1,300.00 |
|
Westmeath Hospice |
1 |
1,300.00 |
1,300.00 |
|
Harold’s Cross Hospice (Our Lady’s) |
5 |
1,250.00 |
250.00 |
|
Bandon Hyperbaric Charity Fund |
1 |
1,250.00 |
1,250.00 |
|
Bantry Care for the Aged |
1 |
1,250.00 |
1,250.00 |
|
Go Action West Cork |
1 |
1,250.00 |
1,250.00 |
|
Irish Heart Foundation |
1 |
1,250.00 |
1,250.00 |
|
Irish Red Cross Society |
1 |
1,250.00 |
1,250.00 |
|
West Cork Pets Fund |
1 |
1,250.00 |
1,250.00 |
|
St Catherine’s Social Services Centre |
1 |
1,220.00 |
1,220.00 |
|
Aware |
3 |
1,213.95 |
404.65 |
|
Nenagh Day Care Centre |
2 |
1,200.00 |
600.00 |
|
Scoil Mhuire Ballymany |
2 |
1,150.00 |
575.00 |
|
Zambia Relief Fund |
5 |
1,055.00 |
211.00 |
|
Meals on Wheels |
3 |
1,050.00 |
350.00 |
|
Tabor Lodge Treatment Centre |
1 |
1,050.00 |
1,050.00 |
|
Cahercalla Hospice |
4 |
1,000.00 |
250.00 |
|
Grow Community Mental House |
2 |
1,000.00 |
500.00 |
|
North Tipperary Hospice |
2 |
1,000.00 |
500.00 |
|
Ballyrourney Community Alert |
1 |
1,000.00 |
1,000.00 |
|
Bantry Inshore Rescue |
1 |
1,000.00 |
1,000.00 |
|
Carrick on Suir – Neighbourhood Youth Project |
1 |
1,000.00 |
1,000.00 |
|
Castletownbere Business Dev Assn |
1 |
1,000.00 |
1,000.00 |
|
Cork Carer’s Association |
1 |
1,000.00 |
1,000.00 |
|
Cork Women Against Violence |
1 |
1,000.00 |
1,000.00 |
|
Durrus Community Alert |
1 |
1,000.00 |
1,000.00 |
|
Guardian Angel Pre-School |
1 |
1,000.00 |
1,000.00 |
|
Macroom Neighbourhood Watch |
1 |
1,000.00 |
1,000.00 |
|
St Vincent’s School, Lismagry |
1 |
1,000.00 |
1,000.00 |
|
The Cottage Lodge Lighthouse |
1 |
1,000.00 |
1,000.00 |
|
Parent Line |
1 |
826.97 |
826.97 |
|
Glencastle Special School |
2 |
800.00 |
400.00 |
|
Adapt House |
1 |
800.00 |
800.00 |
|
Corpus Christi School |
1 |
800.00 |
800.00 |
|
Marymount Hospice |
1 |
800.00 |
800.00 |
|
Milford Hospice |
1 |
800.00 |
800.00 |
|
Mullingar Lion’s Club |
1 |
800.00 |
800.00 |
|
Carers Association |
3 |
780.00 |
260.00 |
|
St Brigid’s Hospice & Home Care |
1 |
775.00 |
775.00 |
|
Irish Foster Care Association |
2 |
750.00 |
375.00 |
|
ISPCA |
2 |
750.00 |
375.00 |
|
Anchology Dept (Mid-Western Health Board) |
1 |
750.00 |
750.00 |
|
Mid-West Hospitals Development Trust |
1 |
750.00 |
750.00 |
|
Sr Consilio Cuan Mhuire |
1 |
700.00 |
700.00 |
|
Irish Epilepsy Association |
1 |
650.00 |
650.00 |
|
Lavanagh Centre |
1 |
650.00 |
650.00 |
|
Ballyglass Life Boat |
3 |
640.00 |
213.33 |
|
Lions Club – Dun Laoghaire |
1 |
635.00 |
635.00 |
|
Mountain Rescue Team |
1 |
634.87 |
634.87 |
|
Thurles Mental Health Association |
1 |
626.97 |
626.97 |
|
Payments to needy individuals |
5 |
612.50 |
122.50 |
|
Athlone Lions Club |
1 |
600.00 |
600.00 |
|
Athlone Sub Aqua Club |
1 |
600.00 |
600.00 |
|
Esker House Refuge Centre |
1 |
600.00 |
600.00 |
|
Joe Farrell Community Worker |
1 |
600.00 |
600.00 |
|
Martina Keogh Family Support Worker |
1 |
600.00 |
600.00 |
|
Mayo Mountain Rescue |
1 |
600.00 |
600.00 |
|
McAuley Pre-school |
1 |
600.00 |
600.00 |
|
Moyross Development Fund |
1 |
600.00 |
600.00 |
|
North Tipperary Community Services |
1 |
600.00 |
600.00 |
|
Order of Malta |
1 |
600.00 |
600.00 |
|
Rainbows |
1 |
600.00 |
600.00 |
|
Sharon Murphy – Limerick |
1 |
600.00 |
600.00 |
|
St Mary’s Youth Ministry |
1 |
600.00 |
600.00 |
|
Crosscare |
2 |
575.00 |
287.50 |
|
Waterford Probation Residence |
1 |
560.00 |
560.00 |
|
Ann Curley – Sponsor a Child Holiday Scheme |
2 |
550.00 |
275.00 |
|
Irish Kidney Association |
2 |
525.00 |
262.50 |
|
Francis B Taffe & Co |
1 |
507.90 |
507.90 |
|
Refund on Appeal |
1 |
507.90 |
507.90 |
|
Ballina Tidy Towns |
2 |
500.00 |
250.00 |
|
Sligo Social Services |
2 |
500.00 |
250.00 |
|
Athy Travellers Club |
1 |
500.00 |
500.00 |
|
Carmelites |
1 |
500.00 |
500.00 |
|
Colomban Missionary Sisters |
1 |
500.00 |
500.00 |
|
Community Care SEHB |
1 |
500.00 |
500.00 |
|
Donegal Protestant Orphan Society |
1 |
500.00 |
500.00 |
|
Finbarr O’Brien |
1 |
500.00 |
500.00 |
|
IHCPT (Nenagh Branch) |
1 |
500.00 |
500.00 |
|
Irish Guide Dog Association |
1 |
500.00 |
500.00 |
|
Jim Rhatigan – Limerick |
1 |
500.00 |
500.00 |
|
Kilcrohane Community Alert |
1 |
500.00 |
500.00 |
|
Life Line |
1 |
500.00 |
500.00 |
|
Nenagh Lions Club |
1 |
500.00 |
500.00 |
|
North West Parents and Friends of Mentally Handicapped |
1 |
500.00 |
500.00 |
|
Protestant Aid |
1 |
500.00 |
500.00 |
|
Ross Pioneer Total Abstinence Association |
1 |
500.00 |
500.00 |
|
Schull & Dist Community Alert |
1 |
500.00 |
500.00 |
|
Sick Poor Society – South Parish Cork |
1 |
500.00 |
500.00 |
|
Southill Community Services |
1 |
500.00 |
500.00 |
|
Sr Loyola O’Donovan Home Work Scheme |
1 |
500.00 |
500.00 |
|
St John’s Cathedral Refurbishment |
1 |
500.00 |
500.00 |
|
St Lazarian’s School |
1 |
500.00 |
500.00 |
|
St Patrick’s Missionary Society |
1 |
500.00 |
500.00 |
|
St Raphael’s Centre |
1 |
500.00 |
500.00 |
|
Thurles Social Service |
1 |
500.00 |
500.00 |
|
Tullamore Mental Health Association |
1 |
500.00 |
500.00 |
|
Coolmine Therapeutic Comm |
3 |
450.00 |
150.00 |
|
Muscular Dystrophy |
2 |
450.00 |
225.00 |
|
Portroe Over 60’s club |
1 |
450.00 |
450.00 |
|
Kerry Diocesan Youth Service |
1 |
401.95 |
401.95 |
|
Ballina Hospital |
2 |
400.00 |
200.00 |
|
Crumlin Children’s Hospital |
2 |
400.00 |
200.00 |
|
Killybegs Hospital – x-ray unit |
2 |
400.00 |
200.00 |
|
Aiseiri Treatment Centre |
1 |
400.00 |
400.00 |
|
Cando Limited |
1 |
400.00 |
400.00 |
|
Darndale / Belcamp New Life for Youth |
1 |
400.00 |
400.00 |
|
Hospitaller Order of St John of God |
1 |
400.00 |
400.00 |
|
IHCPT (Birr Branch) |
1 |
400.00 |
400.00 |
|
Kinnity Care of the Elderly |
1 |
400.00 |
400.00 |
|
New Ross Community Workshop |
1 |
400.00 |
400.00 |
|
Our Lady of Fatima School |
1 |
400.00 |
400.00 |
|
Rehab Foundation – Wexford |
1 |
400.00 |
400.00 |
|
St Helen’s Family Resource Centre |
1 |
400.00 |
400.00 |
|
St Patrick’s Special School |
1 |
400.00 |
400.00 |
|
Western Care |
1 |
400.00 |
400.00 |
|
Wexford Hospice Homecare |
1 |
400.00 |
400.00 |
|
Wexford Lions Club |
1 |
400.00 |
400.00 |
|
Carlow / Kilkenny Home Care Team |
1 |
380.94 |
380.94 |
|
St Frances’ Welfare Home |
1 |
375.00 |
375.00 |
|
St Carthage’s House Lismore, Co Waterford |
1 |
363.49 |
363.49 |
|
ISPCC |
1 |
356.00 |
356.00 |
|
National Council for the Blind |
2 |
350.00 |
175.00 |
|
Carers Resource Centre |
1 |
350.00 |
350.00 |
|
New Ross No-Name Club |
1 |
350.00 |
350.00 |
|
Newtown Senior Citizens |
1 |
350.00 |
350.00 |
|
St Kieran’s School |
1 |
350.00 |
350.00 |
|
Carlow Tidy Towns Community |
1 |
317.43 |
317.43 |
|
Sisters of Charity |
1 |
317.43 |
317.43 |
|
Mayo Roscommon Hospice |
3 |
300.00 |
100.00 |
|
BEAM |
1 |
300.00 |
300.00 |
|
CARI Foundation |
1 |
300.00 |
300.00 |
|
Catherine McAulay School |
1 |
300.00 |
300.00 |
|
Cavan Hospice |
1 |
300.00 |
300.00 |
|
Curlew Trust Ltd |
1 |
300.00 |
300.00 |
|
Dundalk Arch Club |
1 |
300.00 |
300.00 |
|
Granard Resource Centre |
1 |
300.00 |
300.00 |
|
North Louth Hospice |
1 |
300.00 |
300.00 |
|
West Waterford Hospice |
1 |
296.78 |
296.78 |
|
New York Fire Fighters |
1 |
253.95 |
253.95 |
|
Arthritis Foundation |
1 |
250.00 |
250.00 |
|
Carlow Carers’ Association |
1 |
250.00 |
250.00 |
|
Friends of St Camilla’s Hospital |
1 |
250.00 |
250.00 |
|
Irish Pilgrimage Trust |
1 |
250.00 |
250.00 |
|
Kileen Basketball Club |
1 |
250.00 |
250.00 |
|
O’Dwyer’s Cheshire Home |
1 |
250.00 |
250.00 |
|
Secular Franciscan Order |
1 |
250.00 |
250.00 |
|
West Offaly Partnership |
1 |
250.00 |
250.00 |
|
Cuan Mhuire |
2 |
200.00 |
100.00 |
|
Crumlin Children’s Medical and Research Foundation |
1 |
200.00 |
200.00 |
|
Donegal Women’s Refuge |
1 |
200.00 |
200.00 |
|
Medical Missionaries of Mary |
1 |
200.00 |
200.00 |
|
Sgt JP Murphy – Limerick |
1 |
200.00 |
200.00 |
|
Sr Emmanuel, St Fiacs House |
1 |
200.00 |
200.00 |
|
Rights for the Elderly |
1 |
170.39 |
170.39 |
|
Teach Tearminn, Women’s Refuge |
3 |
151.00 |
50.33 |
|
ACCORD |
2 |
150.00 |
75.00 |
|
Cystic Fibrosis |
1 |
150.00 |
150.00 |
|
Friends of Lourdes |
1 |
150.00 |
150.00 |
|
Hanley Centre |
1 |
150.00 |
150.00 |
|
Pat’s Gift – c/o Limerick Prison |
1 |
150.00 |
150.00 |
|
St Anne’s Special School |
1 |
150.00 |
150.00 |
|
Thurles Pregnancy Counselling Services |
1 |
150.00 |
150.00 |
|
Tullamore Traveller Movement |
1 |
150.00 |
150.00 |
|
Ark Project |
1 |
127.00 |
127.00 |
|
Elizabeth Miller – Limerick |
1 |
127.00 |
127.00 |
|
Angela Frokeun – Laligan |
1 |
100.00 |
100.00 |
|
Bridget Byrnes – Limerick |
1 |
100.00 |
100.00 |
|
Bridget O’Donoghue – Limerick |
1 |
100.00 |
100.00 |
|
Cork Association for Autism |
1 |
100.00 |
100.00 |
|
Doohoma School Band |
1 |
100.00 |
100.00 |
|
Edel Reeves – Limerick |
1 |
100.00 |
100.00 |
|
James Kelly – Limerick |
1 |
100.00 |
100.00 |
|
Ken King Children Helping Children |
1 |
100.00 |
100.00 |
|
Madeline Kelly – Limerick |
1 |
100.00 |
100.00 |
|
Phyllis Reeres – Limerick |
1 |
100.00 |
100.00 |
|
RSPCA |
1 |
100.00 |
100.00 |
|
St Luke’s Hospital |
1 |
100.00 |
100.00 |
|
Susan Kelly – Limerick |
1 |
100.00 |
100.00 |
|
Tom O’Connell – Limerick |
1 |
100.00 |
100.00 |
|
Multiple Sclerosis Society |
1 |
80.00 |
80.00 |
|
Ballina Festival |
1 |
70.00 |
70.00 |
appendix
E organisations which benefited from the court poor box
funds in 2003 (Ranked in order of total value of payment)[379]
_______________________________________________________
|
Charitable Organisation |
Total No. of Payments to Org. |
Total Value of Payments to Org. |
Average Payment made to Org. |
|
St Vincent de Paul Society |
430 |
159,629.03 |
371.23 |
|
Focus Ireland |
37 |
120,773.49 |
3,264.15 |
|
Fr. McVerry, Centre |
524 |
84,819.12 |
161.87 |
|
Victim Support |
209 |
76,615.00 |
366.58 |
|
Sightsavers |
2 |
67,000.00 |
33,500.00 |
|
Garda Benevolent Fund |
138 |
46,888.34 |
339.77 |
|
Merchant Quay Drugs Project |
55 |
27,705.00 |
503.73 |
|
Harolds Cross Hospice, Our Ladys Hospice |
60 |
26,110.00 |
435.17 |
|
Guido Nasi Appeal |
20 |
24,260.00 |
1,213.00 |
|
Dublin Simon Community |
53 |
24,160.00 |
455.85 |
|
Chuain Mhuire |
18 |
20,467.50 |
1,137.08 |
|
Citywise |
26 |
19,340.00 |
743.85 |
|
Special Olympics |
38 |
18,466.24 |
485.95 |
|
Alone |
138 |
16170.00 |
117.17 |
|
Bridge Project |
13 |
15,236.88 |
1,172.07 |
|
Rhuhama Womens Project |
38 |
15,050.00 |
396.05 |
|
Marist Rehabilitation Centre |
14 |
13,750.00 |
982.14 |
|
Jack & Jill Foundation |
34 |
13,064.00 |
384.24 |
|
Cuan Mhuire |
15 |
11,500.00 |
766.67 |
|
Focus Extension |
30 |
10,610.00 |
353.67 |
|
Donegal Hospice |
37 |
9,945.00 |
268.78 |
|
Concern |
4 |
9,500.00 |
2,375.00 |
|
Crumlin Childrens Hospital, Our Ladys |
56 |
8,796.00 |
157.07 |
|
Trocaire |
4 |
8,700.00 |
2,175.00 |
|
Goal |
5 |
8,500.00 |
1,700.00 |
|
Alice Leahy Trust |
74 |
8445.00 |
114.12 |
|
Temple Street Hospital |
23 |
7,770.00 |
337.83 |
|
Aurelic Trust Fund |
2 |
7,500.00 |
3,750.00 |
|
Boltar |
1 |
7,500.00 |
7,500.00 |
|
North West Hospice |
25 |
7,290.00 |
291.60 |
|
Community Project (An Garda Siochana) |
12 |
7,080.00 |
590.00 |
|
Capuchin Fathers |
21 |
5,510.00 |
262.38 |
|
Irish Cancer Society |
10 |
5,210.00 |
521.00 |
|
Kerry Parents & Friends Assoc. |
1 |
5,000.00 |
5,000.00 |
|
Muir O'Connell Trust Fund |
1 |
5,000.00 |
5,000.00 |
|
Navan Rehab |
1 |
5,000.00 |
5,000.00 |
|
Probation & Welfare Service |
11 |
4,920.00 |
447.27 |
|
Accord |
12 |
4800.00 |
400.00 |
|
Simon Community |
11 |
4,325.00 |
393.18 |
|
Aware |
4 |
4,250.00 |
1,062.50 |
|
An Halladubh |
14 |
4,170.00 |
297.86 |
|
St. Cartages Home, Lismore |
3 |
4,000.00 |
1,333.33 |
|
Cavan Hospice |
15 |
3,910.00 |
260.67 |
|
The Samaritans |
8 |
3,700.00 |
462.50 |
|
Sligo Social Services |
10 |
3,585.00 |
358.50 |
|
Guide Dogs for the Blind |
9 |
3,450.00 |
383.33 |
|
Tabor Lodge |
5 |
3,320.00 |
664.00 |
|
O'Devaney Gardens Project |
8 |
3,210.00 |
401.25 |
|
Stop Drugs Now (Cork) |
6 |
3,160.00 |
526.67 |
|
St. Marys Club |
11 |
3,080.00 |
280.00 |
|
Irish Heart Foundation |
1 |
3,000.00 |
3,000.00 |
|
ISPCA |
5 |
3,000.00 |
600.00 |
|
Alzheimers Society |
11 |
2,950.00 |
268.18 |
|
Hope House Foxford |
12 |
2,900.00 |
241.67 |
|
Holy Family School, Cooteheill |
6 |
2,770.00 |
461.67 |
|
Irish Wheelchair Association |
6 |
2,750.00 |
458.33 |
|
ISPCC |
6 |
2,550.00 |
425.00 |
|
Poor Clare Sisters |
3 |
2,500.00 |
833.33 |
|
The Wilderness Youth & Community Centre |
1 |
2,500.00 |
2,500.00 |
|
Bond Project |
5 |
2,300.00 |
460.00 |
|
Parentline |
4 |
2,250.00 |
562.50 |
|
Stoneybatter & Areas Service (Senior Citizens) |
9 |
2,250.00 |
250.00 |
|
Threshold |
8 |
2,150.00 |
268.75 |
|
Mayo Roscommon Hospice |
3 |
2,050.00 |
683.33 |
|
Drogheda Garda Senior Citizens Xmas Party |
1 |
2,000.00 |
2,000.00 |
|
Kilcrahene Community Alert |
2 |
2,000.00 |
1,000.00 |
|
Dorset Street Project |
3 |
1,950.00 |
650.00 |
|
Balbriggan Drug Awareness |
7 |
1,900.00 |
271.43 |
|
Rape Crisis Centre |
6 |
1,900.00 |
316.67 |
|
Active 8 |
9 |
1850.00 |
205.56 |
|
Motor Neurone Disease Fund |
4 |
1,850.00 |
462.50 |
|
Harristown House Fund |
2 |
1,800.00 |
900.00 |
|
C.O.F.F.A. |
2 |
1,750.00 |
875.00 |
|
Travellers Support Group |
2 |
1,750.00 |
875.00 |
|
Veritas |
1 |
1,700.00 |
1,700.00 |
|
The Carers Association |
3 |
1,650.00 |
550.00 |
|
Homeless Girls Society Ltd |
14 |
1,550.00 |
110.71 |
|
R.N.L.I. Ireland |
4 |
1,550.00 |
387.50 |
|
G.R.O.W. |
2 |
1,500.00 |
750.00 |
|
Guardian Angel Pre School |
1 |
1,500.00 |
1,500.00 |
|
Honan Home |
1 |
1,500.00 |
1,500.00 |
|
Lavanagh Centre |
1 |
1,500.00 |
1,500.00 |
|
Trust Charity |
2 |
1,500.00 |
750.00 |
|
Wheelchair Assoc |
2 |
1,500.00 |
750.00 |
|
Salvation Army |
3 |
1,490.00 |
496.67 |
|
Kilimanjaro Climbers Fund |
1 |
1,450.00 |
1,450.00 |
|
Sunshine Homes |
3 |
1,450.00 |
483.33 |
|
St. Christopher's Hospice |
7 |
1,420.00 |
202.86 |
|
Mountpellier |
6 |
1,380.00 |
230.00 |
|
Chernobyl Children's Appeal |
2 |
1,300.00 |
650.00 |
|
St. Michaels CBS (House) |
2 |
1,300.00 |
650.00 |
|
Bandon Charitable Trust |
1 |
1,250.00 |
1,250.00 |
|
Bantry Care for the Aged |
1 |
1,250.00 |
1,250.00 |
|
Co-Action West Cork |
1 |
1,250.00 |
1,250.00 |
|
Irish Red Cross |
1 |
1,250.00 |
1,250.00 |
|
West Cork Peto Fund |
1 |
1,250.00 |
1,250.00 |
|
Alcoholics Anonymous |
8 |
1245.00 |
155.63 |
|
Dun Laoghaire Lions Club |
2 |
1,235.00 |
617.50 |
|
Anna Liffey Drug Project |
1 |
1,200.00 |
1,200.00 |
|
Cheshire House |
2 |
1,200.00 |
600.00 |
|
Barnardos |
3 |
1,195.00 |
398.33 |
|
Ballinasloe Junction Project |
1 |
1,175.00 |
1,175.00 |
|
Aisling Clinic, Crumlin |
3 |
1,150.00 |
383.33 |
|
Multiple Sclerosis Society |
2 |
1,150.00 |
575.00 |
|
St. Lukes Hospital |
3 |
1,150.00 |
383.33 |
|
Ballymun Charities |
2 |
1,100.00 |
550.00 |
|
Order of Malta Ambulance Corps. |
4 |
1,100.00 |
275.00 |
|
Downs Syndrome Association |
4 |
1,050.00 |
262.50 |
|
Loughrea SVDP |
2 |
1,050.00 |
525.00 |
|
Whiteoaks Rehabilitation Centre |
5 |
1,050.00 |
210.00 |
|
Irish Kidney Association |
3 |
1,015.00 |
338.33 |
|
Aid Cancer Treatment Fund |
1 |
1000.00 |
1000.00 |
|
Amnesty International |
1 |
1,000.00 |
1,000.00 |
|
Ballinasloe Lions Club |
1 |
1,000.00 |
1,000.00 |
|
Bandon Youth Project |
1 |
1,000.00 |
1,000.00 |
|
Belarus Project |
1 |
1,000.00 |
1,000.00 |
|
Bluebell Summer Project |
2 |
1,000.00 |
500.00 |
|
Caheragh Community Alert |
1 |
1,000.00 |
1,000.00 |
|
Carrick-on-Suir Neighbourhood Youth Project |
1 |
1,000.00 |
1,000.00 |
|
Cois Abhann, Youghal |
1 |
1,000.00 |
1,000.00 |
|
Cope Foundation Clonakilty |
1 |
1,000.00 |
1,000.00 |
|
Cork Spina Bifida |
1 |
1,000.00 |
1,000.00 |
|
Cuan Saor Women's Refuge |
1 |
1,000.00 |
1,000.00 |
|
Focus Outreach |
10 |
1,000.00 |
100.00 |
|
Gallowglass Theatre Company |
1 |
1,000.00 |
1,000.00 |
|
Holy Family Boys National School |
1 |
1,000.00 |
1,000.00 |
|
Mercy Sisters |
1 |
1,000.00 |
1,000.00 |
|
Nenagh Day Care Centre |
1 |
1,000.00 |
1,000.00 |
|
Nenagh Mental Health Assoc |
1 |
1,000.00 |
1,000.00 |
|
Nenagh Tipperary Community Services |
2 |
1,000.00 |
500.00 |
|
Rehab Foundation |
1 |
1,000.00 |
1,000.00 |
|
Rivermount Summer Project |
1 |
1,000.00 |
1,000.00 |
|
Security of the Elderly |
2 |
1,000.00 |
500.00 |
|
SEHB Social Work Team |
1 |
1,000.00 |
1,000.00 |
|
Sesame Pre-School, Dungarvan |
1 |
1,000.00 |
1,000.00 |
|
Skibbereen Geriatrics Society |
1 |
1,000.00 |
1,000.00 |
|
Social Innovations |
1 |
1,000.00 |
1,000.00 |
|
South Tipperary Hospice |
1 |
1,000.00 |
1,000.00 |
|
Store Street Old Folks Centre |
2 |
1,000.00 |
500.00 |
|
St. John of Gods Organisation |
1 |
1,000.00 |
1,000.00 |
|
St. Theresa's Hospice, Clogheen |
1 |
1,000.00 |
1,000.00 |
|
The Lalor Centre, Baltinglass |
1 |
1,000.00 |
1,000.00 |
|
Youth Initiative |
1 |
1,000.00 |
1,000.00 |
|
West Waterford Hospice |
1 |
1,000.00 |
1,000.00 |
|
Youghal Hospice |
1 |
1,000.00 |
1,000.00 |
|
Youth Development Fund |
1 |
1,000.00 |
1,000.00 |
|
Tallaght Area |
2 |
984.00 |
492.00 |
|
St. Aidans Boxing Club |
1 |
950.00 |
950.00 |
|
St. Marks Scouts |
1 |
950.00 |
950.00 |
|
Dun Laoghaire Community Workshops |
1 |
930.00 |
930.00 |
|
Barrettstown Gang |
1 |
900.00 |
900.00 |
|
Nenagh Lions Club |
1 |
894.80 |
894.80 |
|
St Vincents National School |
6 |
815.00 |
135.83 |
|
Crosscare Aftercare |
2 |
800.00 |
400.00 |
|
Diabetes Federation of Ireland |
4 |
800.00 |
200.00 |
|
Gardai - North Central Division |
1 |
800.00 |
800.00 |
|
Laois MABS |
2 |
800.00 |
400.00 |
|
McAuley Pre School |
1 |
800.00 |
800.00 |
|
North Central Division Charities |
1 |
800.00 |
800.00 |
|
O'Dwyer Cheshire Home |
1 |
800.00 |
800.00 |
|
Pearse Street Project |
1 |
800.00 |
800.00 |
|
Presentation Sisters, Portlaoise |
1 |
800.00 |
800.00 |
|
Scoil Christ Ri |
1 |
800.00 |
800.00 |
|
Unicef Ireland |
2 |
800.00 |
400.00 |
|
Alona Centre - Dun Laoghaire |
2 |
750.00 |
375.00 |
|
Headway Ireland |
2 |
750.00 |
375.00 |
|
IHCPT |
2 |
750.00 |
375.00 |
|
Irish Carers Association |
1 |
750.00 |
750.00 |
|
Mayo Mountain rescue |
1 |
750.00 |
750.00 |
|
Caramona Services (St John of God) |
1 |
700.00 |
700.00 |
|
Hanley Centre |
3 |
700.00 |
233.33 |
|
Kerrigan Family Appeal Fund |
1 |
700.00 |
700.00 |
|
Meals on Wheels |
3 |
700.00 |
233.33 |
|
Rutland Centre |
5 |
680.00 |
136.00 |
|
Carers Association |
2 |
650.00 |
325.00 |
|
Fan Project |
4 |
650.00 |
162.50 |
|
North Tipp Hospice |
1 |
650.00 |
650.00 |
|
Spina Bifida Assoc |
1 |
650.00 |
650.00 |
|
Thurles Lions Club |
1 |
650.00 |
650.00 |
|
Thurles Social Services |
1 |
650.00 |
650.00 |
|
Western Care Association |
3 |
650.00 |
216.67 |
|
Athlone Chernobyl Aid Fund |
1 |
600.00 |
600.00 |
|
Athlone Lions Club |
1 |
600.00 |
600.00 |
|
Athlone Sub Aqua |
1 |
600.00 |
600.00 |
|
Ballyraggett/Ballyouskill Invalid Fund |
1 |
600.00 |
600.00 |
|
Portarlington Senior Citizens |
1 |
600.00 |
600.00 |
|
Rathiniskas NS- Parents Council |
1 |
600.00 |
600.00 |
|
Stepping Out Programme |
1 |
600.00 |
600.00 |
|
Westmeath Hospice |
1 |
600.00 |
600.00 |
|
Galway Hospice |
4 |
570.00 |
|
|
Cardonagh Hospital |
4 |
550.00 |
137.50 |
|
Coolmine Drugs Centre |
2 |
550.00 |
275.00 |
|
Enable Ireland |
2 |
550.00 |
275.00 |
|
Friends of Sacred Heart Hospital |
1 |
550.00 |
550.00 |
|
Holy Angels Day Care Centre |
2 |
550.00 |
275.00 |
|
Sr Stanislaus, Stanhophe Centre |
3 |
525.00 |
175.00 |
|
Monaghan Neighbourhood Youth Project |
5 |
522.70 |
104.54 |
|
Abode |
1 |
500.00 |
500.00 |
|
Ascend |
1 |
500.00 |
500.00 |
|
Athy Town AFC |
1 |
500.00 |
500.00 |
|
Bow Lane |
1 |
500.00 |
500.00 |
|
Brainwave (Irish Epilepsy Assoc) |
3 |
500.00 |
166.67 |
|
Cappagh Hospital - Day Centre |
1 |
500.00 |
500.00 |
|
Care of Survivors of Torture |
1 |
500.00 |
500.00 |
|
Carlow Network on Violence against women |
1 |
500.00 |
500.00 |
|
Childrens Holiday Fund |
1 |
500.00 |
500.00 |
|
Clondalkin Carers Association |
1 |
500.00 |
500.00 |
|
Colbumben Missionery Sisters |
1 |
500.00 |
500.00 |
|
Community Mediation Works |
1 |
500.00 |
500.00 |
|
Cope Foundation Maroon |
1 |
500.00 |
500.00 |
|
Finglas Youth Service |
1 |
500.00 |
500.00 |
|
Garda Motorcycle Club |
1 |
500.00 |
500.00 |
|
Lisdel House, Swords |
1 |
500.00 |
500.00 |
|
Laois Diabetic Association |
1 |
500.00 |
500.00 |
|
Laois Down Syndrome Association |
1 |
500.00 |
500.00 |
|
Lourdes Day Care Centre |
1 |
500.00 |
500.00 |
|
Loughrea Lions Club Food Appeal |
1 |
500.00 |
500.00 |
|
Mary McLoughlin Family Support |
1 |
500.00 |
500.00 |
|
National Parks & Wildlife Service |
1 |
500.00 |
500.00 |
|
New Day Counselling Service |
1 |
500.00 |
500.00 |
|
Portroe Over 60's Club |
1 |
500.00 |
500.00 |
|
Prevention of Cruelty to Animals. Laois |
1 |
500.00 |
500.00 |
|
Raheen Senior Citizens |
1 |
500.00 |
500.00 |
|
St. Andrews Boxing Club |
1 |
500.00 |
500.00 |
|
St. Angus School |
1 |
500.00 |
500.00 |
|
St. Brigids AFC |
1 |
500.00 |
500.00 |
|
St. Cecelias School |
1 |
500.00 |
500.00 |
|
St. Christophers School, Longford |
1 |
500.00 |
500.00 |
|
St. Francis Hospice |
1 |
500.00 |
500.00 |
|
St. James Camino Network |
1 |
500.00 |
500.00 |
|
St. Josephs Accordian Band |
1 |
500.00 |
500.00 |
|
St. Patricks Missionery Society |
1 |
500.00 |
500.00 |
|
The Carmelites |
1 |
500.00 |
500.00 |
|
Carrigaline Youth Club |
1 |
450.00 |
450.00 |
|
Castlebar Tidy Towns |
1 |
450.00 |
450.00 |
|
Donegal Special Olympics |
2 |
450.00 |
225.00 |
|
Educational Trust Fund |
2 |
403.00 |
201.50 |
|
Amen |
1 |
400.00 |
400.00 |
|
Cari Foundation |
1 |
400.00 |
400.00 |
|
Darndale Children's Fund |
1 |
400.00 |
400.00 |
|
Foster Parents Group (Portlaoise) |
1 |
400.00 |
400.00 |
|
Kinnitty Care of the Aged |
1 |
400.00 |
400.00 |
|
Newtown Senior Citizens |
1 |
400.00 |
400.00 |
|
Open Door |
1 |
400.00 |
400.00 |
|
Ossory Youth, Kilkenny |
1 |
400.00 |
400.00 |
|
Portlaoise Senior Citizens |
1 |
400.00 |
400.00 |
|
Irish Guide Dogs for the Blind |
2 |
350.00 |
175.00 |
|
North Louth Hospice |
2 |
350.00 |
175.00 |
|
Raheny Hospice |
3 |
350.00 |
116.67 |
|
Wicklow Challenge |
2 |
340.00 |
170.00 |
|
Abbeyleix Women's Group |
1 |
300.00 |
300.00 |
|
Achill Life Boat |
1 |
300.00 |
300.00 |
|
Arch Project |
1 |
300.00 |
300.00 |
|
Arva Hall Committee |
1 |
300.00 |
300.00 |
|
Borrisokane SVDP |
1 |
300.00 |
300.00 |
|
Carlow Womens Aid |
2 |
300.00 |
150.00 |
|
Carrick-on-Shannon Youth Project |
1 |
300.00 |
300.00 |
|
Cystic Fibrosis Assoc. |
1 |
300.00 |
|
|
Portumna SVDP |
1 |
300.00 |
300.00 |
|
Rainbows |
1 |
300.00 |
300.00 |
|
Sligo Diabetics Assoc. |
1 |
300.00 |
300.00 |
|
Special Needs Home Bundoran |
1 |
300.00 |
300.00 |
|
The Elderly |
2 |
300.00 |
150.00 |
|
Western Alzheimers Foundation |
1 |
300.00 |
300.00 |
|
Womens Aid |
1 |
300.00 |
300.00 |
|
Friends of St. Ita's Community Hospital |
1 |
280.00 |
280.00 |
|
Monaghan Senior Citizen Group |
1 |
275.00 |
275.00 |
|
Candle Community |
1 |
250.00 |
250.00 |
|
Carlow Suicide Bereavement Group |
1 |
250.00 |
250.00 |
|
Castledermot Community Services |
1 |
250.00 |
250.00 |
|
Cavan Monaghan Community Services |
1 |
250.00 |
250.00 |
|
Medical Research Fund |
1 |
250.00 |
250.00 |
|
Stewards Foundation Ltd |
1 |
250.00 |
250.00 |
|
St. John's Ambulance Brigade |
1 |
250.00 |
250.00 |
|
Travellers Club, Athy |
1 |
250.00 |
250.00 |
|
Stanhope Centre |
1 |
240.00 |
240.00 |
|
Castleblayney Cancer Society |
1 |
210.00 |
210.00 |
|
Birr Lions Club |
1 |
200.00 |
200.00 |
|
Buncrana Community Playgroup |
1 |
200.00 |
200.00 |
|
Cedar House |
1 |
200.00 |
200.00 |
|
Childrens Medical Research |
1 |
200.00 |
200.00 |
|
Dochas |
1 |
200.00 |
200.00 |
|
Irish Sudden Infant Death Association |
1 |
200.00 |
200.00 |
|
Keel Day Care Centre |
3 |
200.00 |
66.67 |
|
Nelson Trust |
1 |
200.00 |
200.00 |
|
Marymount Hospice |
1 |
200.00 |
200.00 |
|
Miltown Respite Care Centre |
1 |
200.00 |
200.00 |
|
Monaghan Addiction Resource Centre |
2 |
200.00 |
100.00 |
|
Muscular dystrophy |
2 |
200.00 |
100.00 |
|
North West Cancer Support Group |
1 |
200.00 |
200.00 |
|
Venture Scouts |
1 |
200.00 |
200.00 |
|
Cloncollig Celtic |
1 |
175.00 |
175.00 |
|
Foroige (Tullamore) |
1 |
175.00 |
175.00 |
|
The Cavan Centre |
1 |
175.00 |
175.00 |
|
The Irish Pilgrimage Trust |
1 |
175.00 |
175.00 |
|
Tullamore Schoolboys Soccer Club |
1 |
175.00 |
175.00 |
|
Aids Help North West |
1 |
150.00 |
150.00 |
|
Cats & Dogs Home |
1 |
150.00 |
150.00 |
|
Crumlin Cancer Research |
1 |
150.00 |
150.00 |
|
Galway Branch RSPCA |
1 |
150.00 |
150.00 |
|
St. Claires Pre-School |
1 |
150.00 |
150.00 |
|
Ballymun Drugs T.K. |
1 |
105.00 |
105.00 |
|
Abbey Street Hostel |
1 |
100.00 |
100.00 |
|
Access For Disabled |
1 |
100.00 |
100.00 |
|
Convent of Mercy Granard |
1 |
100.00 |
100.00 |
|
Drugs Treatment Centre |
1 |
100.00 |
100.00 |
|
Friends of Nenagh Hospital |
1 |
100.00 |
100.00 |
|
Hope Foundation |
1 |
100.00 |
100.00 |
|
Russia |
1 |
100.00 |
100.00 |
|
Sancta Maria House |
1 |
100.00 |
100.00 |
|
Sgt.Murphy.xm |
1 |
100.00 |
100.00 |
|
St Catherines Community Services Centre |
1 |
100.00 |
100.00 |
|
St. Francis School |
1 |
100.00 |
100.00 |
|
The McVerry Charity |
1 |
100.00 |
100.00 |
|
Village Project |
1 |
100.00 |
100.00 |
|
Walter Stevenson |
1 |
100.00 |
100.00 |
|
Bay Project |
1 |
50.00 |
50.00 |
|
Cahervalla Hospice |
1 |
50.00 |
50.00 |
|
Neighbourhood Youth Project |
1 |
50.00 |
50.00 |
|
NRS Association |
1 |
50.00 |
50.00 |
|
Sligo Mentally Handicapped Assoc |
1 |
50.00 |
50.00 |
appendix
F list of law reform commission publications
|
First Programme for Examination of Certain Branches of the Law with a View to their Reform (December 1976) (Prl 5984)
|
€0.13 |
|
Working Paper No 1-1977, The Law Relating to the Liability of Builders, Vendors and Lessors for the Quality and Fitness of Premises (June 1977)
|
€1.40 |
|
Working Paper No 2-1977, The Law Relating to the Age of Majority, the Age for Marriage and Some Connected Subjects (November 1977)
|
€1.27 |
|
Working Paper No 3-1977, Civil Liability for Animals (November 1977)
|
€3.17 |
|
First (Annual) Report (1977) (Prl 6961)
|
€0.51 |
|
Working Paper No 4-1978, The Law Relating to Breach of Promise of Marriage (November 1978)
|
€1.27 |
|
Working Paper No 5-1978, The Law Relating to Criminal Conversation and the Enticement and Harbouring of a Spouse (December 1978)
|
€1.27 |
|
Working Paper No 6-1979, The Law Relating to Seduction and the Enticement and Harbouring of a Child (February 1979)
|
€1.90 |
|
Working Paper No 7-1979, The Law Relating to Loss of Consortium and Loss of Services of a Child (March 1979)
|
€1.27 |
|
Working Paper No 8-1979, Judicial Review of Administrative Action: the Problem of Remedies (December 1979)
|
€1.90 |
|
Second (Annual) Report (1978/79) (Prl 8855)
|
€0.95
|
|
Working Paper No 9-1980, The Rule Against Hearsay (April 1980)
|
€2.54 |
|
Third (Annual) Report (1980) (Prl 9733)
|
€0.95 |
|
First Report on Family Law - Criminal Conversation, Enticement and Harbouring of a Spouse or Child, Loss of Consortium, Personal Injury to a Child, Seduction of a Child, Matrimonial Property and Breach of Promise of Marriage (LRC 1-1981) (March 1981)
|
€2.54 |
|
Working Paper No 10-1981, Domicile and Habitual Residence as Connecting Factors in the Conflict of Laws (September 1981)
|
€2.22 |
|
Fourth (Annual) Report (1981) (Pl 742)
|
€0.95 |
|
Report on Civil Liability for Animals (LRC 2-1982) (May 1982)
|
€1.27 |
|
Report on Defective Premises (LRC 3-1982) (May 1982)
|
€1.27 |
|
Report on Illegitimacy (LRC 4-1982) (September 1982)
|
€4.44 |
|
Fifth (Annual) Report (1982) (Pl 1795)
|
€0.95
|
|
Report on the Age of Majority, the Age for Marriage and Some Connected Subjects (LRC 5-1983) (April 1983)
|
€1.90 |
|
Report on Restitution of Conjugal Rights, Jactitation of Marriage and Related Matters (LRC 6-1983) (November 1983)
|
€1.27 |
|
Report on Domicile and Habitual Residence as Connecting Factors in the Conflict of Laws (LRC 7-1983) (December 1983)
|
€1.90
|
|
Report on Divorce a Mensa et Thoro and Related Matters (LRC 8-1983) (December 1983)
|
€3.81 |
|
Sixth (Annual) Report (1983) (Pl 2622) |
€1.27 |
|
Report on Nullity of Marriage (LRC 9-1984) (October 1984)
|
€4.44 |
|
Working Paper No 11-1984, Recognition of Foreign Divorces and Legal Separations (October 1984) |
€2.54 |
|
Seventh (Annual) Report (1984) (Pl 3313)
|
€1.27
|
|
Report on Recognition of Foreign Divorces and Legal Separations (LRC 10-1985) (April 1985)
|
€1.27 |
|
Report on Vagrancy and Related Offences (LRC 11-1985) (June 1985)
|
€3.81 |
|
Report on the Hague Convention on the Civil Aspects of International Child Abduction and Some Related Matters (LRC 12-1985) (June 1985) |
€2.54
|
|
Report on Competence and Compellability of Spouses as Witnesses (LRC 13-1985) (July 1985)
|
€3.17 |
|
Report on Offences Under the Dublin Police Acts and Related Offences (LRC 14-1985) (July 1985) |
€3.17 |
|
Report on Minors’ Contracts (LRC 15-1985) (August 1985)
|
€4.44 |
|
Report on the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (LRC 16-1985) (August 1985) |
€2.54
|
|
Report on the Liability in Tort of Minors and the Liability of Parents for Damage Caused by Minors (LRC 17-1985) (September 1985)
|
€3.81 |
|
Report on the Liability in Tort of Mentally Disabled Persons (LRC 18-1985) (September 1985)
|
€2.54 |
|
Report on Private International Law Aspects of Capacity to Marry and Choice of Law in Proceedings for Nullity of Marriage (LRC 19-1985) (October 1985)
|
€4.44 |
|
Report on Jurisdiction in Proceedings for Nullity of Marriage, Recognition of Foreign Nullity Decrees, and the Hague Convention on the Celebration and Recognition of the Validity of Marriages (LRC 20-1985) (October 1985)
|
€2.54 |
|
Eighth (Annual) Report (1985) (Pl 4281)
|
€1.27 |
|
Report on the Statute of Limitations: Claims in Respect of Latent Personal Injuries (LRC 21-1987) (September 1987) |
€5.71
|
|
Consultation Paper on Rape (December 1987) |
€7.62
|
|
Report on the Service of Documents Abroad re Civil Proceedings -the Hague Convention (LRC 22-1987) (December 1987)
|
€2.54 |
|
Report on Receiving Stolen Property (LRC 23-1987) (December 1987)
|
€8.89 |
|
Ninth (Annual) Report (1986-1987) (Pl 5625)
|
€1.90
|
|
Report on Rape and Allied Offences (LRC 24-1988) (May 1988)
|
€3.81
|
|
Report on the Rule Against Hearsay in Civil Cases (LRC 25-1988) (September 1988)
|
€3.81 |
|
Report on Malicious Damage (LRC 26-1988) (September 1988)
|
€5.08
|
|
Report on Debt Collection: (1) The Law Relating to Sheriffs (LRC 27-1988) (October 1988)
|
€6.35 |
|
Tenth (Annual) Report (1988) (Pl 6542)
|
€1.90 |
|
Report on Debt Collection: (2) Retention of Title (LRC 28-1989) (April 1989)
|
€5.08
|
|
Report on the Recognition of Foreign Adoption Decrees (LRC 29-1989) (June 1989)
|
€6.35 |
|
Report on Land Law and Conveyancing Law: (1) General Proposals (LRC 30-1989) (June 1989)
|
€6.35 |
|
Consultation Paper on Child Sexual Abuse (August 1989) |
€12.70
|
|
Report on Land Law and Conveyancing Law: (2) Enduring Powers of Attorney (LRC 31-1989) (October 1989)
|
€5.08 |
|
Eleventh (Annual) Report (1989) (Pl 7448)
|
€1.90 |
|
Report on Child Sexual Abuse (LRC 32-1990) (September 1990)
|
€8.89
|
|
Report on Sexual Offences against the Mentally Handicapped (LRC 33-1990) (September 1990)
|
€5.08 |
|
Report on Oaths and Affirmations (LRC 34-1990) (December 1990)
|
€6.35
|
|
Report on Confiscation of the Proceeds of Crime (LRC 35-1991) (January 1991)
|
€7.62
|
|
Consultation Paper on the Civil Law of Defamation (March 1991)
|
€25.39
|
|
Report on the Hague Convention on Succession to the Estates of Deceased Persons (LRC 36-1991) (May 1991)
|
€8.89
|
|
Twelfth (Annual) Report (1990) (Pl 8292)
|
€1.90
|
|
Consultation Paper on Contempt of Court (July 1991)
|
€25.39 |
|
Consultation Paper on the Crime of Libel (August 1991)
|
€13.97
|
|
Report on the Indexation of Fines (LRC 37-1991) (October 1991)
|
€8.25
|
|
Report on the Civil Law of Defamation (LRC 38-1991) (December 1991)
|
€8.89
|
|
Report on Land Law and Conveyancing Law: (3) The Passing of Risk from Vendor to Purchaser (LRC 39-1991) (December 1991); (4) Service of Completion Notices (LRC 40-1991) (December 1991)
|
€7.62 |
|
Thirteenth (Annual) Report (1991) (PI 9214)
|
€2.54
|
|
Report on the Crime of Libel (LRC 41-1991) (December 1991)
|
€5.08
|
|
Report on United Nations (Vienna) Convention on Contracts for the International Sale of Goods 1980 (LRC 42-1992) (May 1992)
|
€10.16 |
|
Report on the Law Relating to Dishonesty (LRC 43-1992) (September 1992) |
€25.39
|
|
Land Law and Conveyancing Law: (5) Further General Proposals (LRC 44-1992) (October 1992)
|
€7.62
|
|
Consultation Paper on Sentencing (March 1993) |
€25.39
|
|
Consultation Paper on Occupiers’ Liability (June 1993)
|
€12.70 |
|
Fourteenth (Annual) Report (1992) (PN 0051) |
€2.54
|
|
Report on Non-Fatal Offences Against The Person (LRC 45-1994) (February 1994)
|
€25.39
|
|
Report on Contempt of Court (LRC 47 -1994) (September 1994)
|
€12.70 |
|
Fifteenth (Annual) Report (1993) (PN 1122)
|
€2.54
|
|
Report on the Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents (LRC 48-1995) (February 1995)
|
€12.70
|
|
Consultation Paper on Intoxication as a Defence to a Criminal Offence (February 1995)
|
€12.70
|
|
Report on Interests of Vendor and Purchaser in Land during the period between Contract and Completion (LRC 49-1995) (April 1995) |
€10.16
|
|
An Examination of the Law of Bail (LRC 50-1995) (August 1995) |
€12.70
|
|
Sixteenth (Annual) Report (1994) (PN 1919)
|
€2.54
|
|
Report on Intoxication (LRC 51-1995) (November 1995)
|
€2.54 |
|
Report on Family Courts (LRC 52-1996) (March 1996) |
€12.70
|
|
Seventeenth (Annual) Report (1995) (PN 2960) |
€3.17
|
|
Report on Sentencing (LRC 53-1996) (August 1996) |
€10.16
|
|
Consultation Paper on Privacy: Surveillance and the Interception of Communications (September 1996) |
€25.39
|
|
Report on Personal Injuries: Periodic Payments and Structured Settlements (LRC 54-1996) (December 1996)
|
€12.70 |
|
Eighteenth (Annual) Report (1996) (PN 3760)
|
€7.62 |
|
Consultation Paper on the Implementation of The Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, 1993 (September 1997)
|
€12.70 |
|
Report on The Unidroit Convention on Stolen or Illegally Exported Cultural Objects (LRC 55-1997) (October 1997)
|
€19.05 |
|
Report on Land Law and Conveyancing Law; (6) Further General Proposals including the execution of deeds (LRC 56-1998) (May 1998)
|
€10.16
|
|
Consultation Paper on Aggravated, Exemplary and Restitutionary Damages (May 1998)
|
€19.05 |
|
Nineteenth (Annual) Report (1997) (PN 6218)
|
€3.81 |
|
Report on Privacy: Surveillance and the Interception of Communications (LRC 57-1998) (June 1998)
|
€25.39
|
|
Report on the Implementation of the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, 1993 (LRC 58-1998) (June 1998)
|
€12.70 |
|
Consultation Paper on the Statutes of Limitation: Claims in Contract and Tort in Respect of Latent Damage (Other Than Personal Injury) (November 1998)
|
€6.35 |
|
Twentieth (Annual) Report (1998) (PN 7471)
|
€3.81 |
|
Consultation Paper on Statutory Drafting and Interpretation: Plain Language and the Law (LRC CP14-1999) (July 1999)
|
€7.62 |
|
Consultation Paper on Section 2 of the Civil Liability (Amendment) Act, 1964: The Deductibility of Collateral Benefits from Awards of Damages (LRC CP15-1999) (August 1999)
|
€9.52 |
|
Report on Gazumping (LRC 59-1999) (October 1999)
|
€6.35
|
|
Twenty First (Annual) Report (1999) (PN 8643)
|
€3.81 |
|
Report on Aggravated, Exemplary and Restitutionary Damages (LRC 60-2000) (August 2000)
|
€7.62 |
|
Second Programme for examination of certain branches of the law with a view to their reform: 2000-2007 (PN 9459) (December 2000)
|
€6.35 |
|
Consultation Paper on the Law of Limitation of Actions arising from Non-Sexual Abuse Of Children (LRC CP16-2000) (September 2000)
|
€7.62 |
|
Report on Statutory Drafting and Interpretation: Plain Language and the Law (LRC 61-2000) (December 2000)
|
€7.62 |
|
Report on the Rule against Perpetuities and Cognate Rules (LRC 62-2000) (December 2000)
Report on the Variation of Trusts (LRC 63- 2000) (December 2000)
|
€10.16
€7.62 |
|
Report on The Statutes of Limitations: Claims in Contract and Tort in Respect of Latent Damage (Other than Personal Injury) (LRC 64-2001) (March 2001)
|
€7.62 |
|
Consultation Paper on Homicide: The Mental Element in Murder (LRC CP17-2001) (March 2001)
|
€6.35
|
|
Seminar on Consultation Paper: Homicide: The Mental Element in Murder (LRC SP 1-2001)
|
|
|
Twenty Second (Annual) Report (2000) (PN 10629)
|
€3.81 |
|
Consultation Paper on Penalties for Minor Offences (LRC CP18-2002) (March 2002)
|
€5.00 |
|
Consultation Paper on Prosecution Appeals in Cases brought on Indictment (LRC CP19-2002) (May 2002)
|
€6.00 |
|
Report on the Indexation of Fines: A Review of Developments (LRC 65-2002) (July 2002)
|
€5.00 |
|
Twenty Third (Annual) Report (2001) (PN 11964)
|
€5.00 |
|
Report on the Acquisition of Easements and Profits à Prendre by Prescription (LRC 66-2002) (December 2002)
|
€5.00 |
|
Report on Title by Adverse Possession of Land (LRC 67-2002) (December 2002) |
€5.00
|
|
Report on Section 2 of the Civil Liability (Amendment) Act 1964: The Deductibility of Collateral Benefits from Awards of Damages (LRC 68-2002) (December 2002)
|
€6.00 |
|
Consultation Paper on Judicial Review Procedure (LRC CP 20-2003) (January 2003)
|
€6.00 |
|
Report on Penalties for Minor Offences (LRC 69-2003) (February 2003)
|
€6.00 |
|
Consultation Paper on Business Tenancies (LRC CP 21-2003) (March 2003)
|
€5.00 |
|
Report on Land Law and Conveyancing Law: (7) Positive Covenants over Freehold Land and other Proposals (LRC 70-2003) (March 2003)
|
€5.00 |
|
Consultation Paper on Public Inquiries Including Tribunals of Inquiry (LRC CP 22-2003) (March 2003) |
€5.00
|
|
Consultation Paper on Law and the Elderly (LRC CP 23-2003) (June 2003)
|
€5.00 |
|
Consultation Paper on A Fiscal Prosecutor and A Revenue Court (LRC CP 24-2003) (July 2003) |
€6.00 |
|
|
|
|
Consultation Paper on Multi-Party Litigation (Class Actions) (LRC CP 25-2003) (July 2003) |
€6.00 |
|
|
|
|
Consultation Paper on Corporate Killing (LRC CP 26-2003) (October 2003) |
€6.00 |
|
|
|
Consultation Paper on Homicide: The Plea of
Provocation (LRC CP 27-2003) (October 2003)
€6.00
Seminar on Consultation Paper: Law and the
Elderly (LRC SP 2-2003) (November
2003)
-
Twenty
Fourth (Annual) Report (2002)
€5.00
(PN 1200)
Consultation Paper on General Law of Landlord
and Tenant (LRC CP 28 – 2003) (December
2003)
€10.00
Report on Judicial Review Procedure (LRC 71 –
2004) (February 2004) €10.00
Consultation Paper on the Establishment of a
DNA Database (LRC CP 29 – 2004) (March
2004)
€10.00
Consultation
Paper on Judgment Mortgages
(LRC CP 30
– 2004) (March 2004)
€6.00
[1]
See generally von Hirsch et al Restorative Justice and Criminal
Justice (Hart 2003) and paragraph 2.34 below.
[2]
See eg Hannon “Poor box system
under threat as probe launched into courts system” The Irish Examiner 29 March 2001.
[3]
See eg Coulter “Review to consider abolishing the court poor box” The
Irish Times 30 March 2001 and Hannon “Department considering abolition of
court poor box” The Irish Examiner 30 March 2001.
[4]
29 March 2001. A transcript of this meeting of the PAC is available at www.irlgov.ie/committees-01/c-publicaccounts/010329/Page1.htm.
[5]
Although the court poor box is applied in open court with the reasoning for its
application being explained, this “veil of uncertainty” refers to the lack of
countrywide uniformity in respect of the types of cases in which the court poor
box may be applied, the amount of contributions which may be required, and the
methods by which payments are made.
[6]
Corley “The Court Poor Box” Westmeath Independent 27 April 2001.
[7]
Corley op cit.
[8]
Paley (H.T.J. MacNamara ed) Law and Practice of Summary Jurisdiction [Under
the Summary Jurisdiction Acts 1848-1884] (5th ed 1866 London
Sweet Maxwell Stevens Butterworths) at 278-279. MacNamara refers to the
adoption of this practice into specific statutes, eg statute 5 Anne c
14, which provided that where a person was convicted under that statute, half
the penalty was to be paid over to the poor of the parish where the offence was
committed.
[9]
See the Courts Management Change Program (of Victoria, Australia) Report on
the Administration of Court Poor Box Funds (Project No 7 1985) Appendix B.
[10]
Whilst each and every mode of disposition is a matter for the individual judge
in our system, it is nevertheless the case that there is a lack of uniformity
in the use and availability of the court poor box on a geographical
basis.
[11]
Further consideration to this issue will be given infra at paragraphs
2.42-2.97.
[12]
Supra
at paragraph 1.01.
[13]
See eg The Irish Times 12 September 2002 (“[the accused] was
ordered to pay €100 into the Court Poor
Box by [the court]”).
[14]
See eg
The Irish Times 13 November 1997 (“The judge … said he would strike out
the charge [of breach of the peace] on condition that £200 was paid into the
court poor box”).
[15]
See eg
The Irish Times 13 November 1997.
[16]
See Public
Order Offences in Ireland (Report by the Institute of Criminology,
University College Dublin for the National Crime Council 2003), which considers
the breakdown of court disposals of public order offences at pp. 74-75.
The statistical evidence establishes that between the period January 2000 to
March 2002, a contribution to the court poor box accounted for 4% of disposals
of offences under the Criminal Justice (Public Order) Act 1994.
This may be contrasted with the number of cases disposed of by the application
of section 1(1) of the Probation of Offenders Act 1907, which amounted
to 1% for the same period.
[17]
As amended
by section 51 of the Road Traffic Act 1968 and section 3 of the Road
Traffic (Amendment) Act 1984.
[18]
As amended
by section 51 of the Road Traffic Act 1968 and section 3 of the Road
Traffic (Amendment) Act 1984.
[19]
As amended
by section 26 of the Road Traffic Act 1968.
[20]
As amended
by section 41 of the Road Traffic Act 1994.
[21]
See eg The Irish Times 9 February 1999. (A person released
a fire extinguisher causing water to land on the coat of another person and was
charged with causing malicious damage to the coat. The judge applied the Probation
of Offenders Act and ordered the offender to pay £100 into the court poor
box. It is significant to note that the charge related to the damage of
the coat rather than interfering with fire equipment, the latter being far less
likely to be characterised as “trivial”.)
[22]
As amended
by section 2 of the Misuse of Drugs Act 1984.
[23]
A high
profile example of the use of the court poor box in this context is the case of
Adam Clayton, a member of U2, who appeared before the Dublin District Court on
1 September 1989. The initial charge of possession of cannabis with
intent to supply was reduced to a charge of possession for personal use.
Mr Clayton pleaded guilty to this lesser charge and the charge was ultimately
dismissed without conviction by the application of section 1(1) of the Probation
of Offenders Act 1907, but only on condition that Mr Clayton pay a sum of
£25,000 to the Women’s Aid Refuge Centre. See The Irish Times 2 September
1989. No doubt a conviction might have had a devastating effect on the
musician’s capacity to travel as a member of U2 in view of difficulties in
obtaining visas.
[24]
As amended
by the Protection of Animals Act 1965 and section 20 of the Control
of Dogs Act 1986.
[25]
See The
Irish Times 15 October 1998.
[26]
See The
Irish Times 1 December 2000.
[27]
See The
Irish Times 9 February 1999.
[28]
See eg The
Irish Times, The Irish Independent and The Irish Examiner on
17 January 2003, discussing the prosecution of Tim Allen under the 1998 Act.
[29]
Health and
Safety Authority Annual Report 1998 Appendix 2: “HSA Prosecution
Outcomes 1998”.
[30]
19 October 2001. See Health and Safety Authority Annual Report 2001
at p. 72.
[31]
Monaghan
District Court, 26 November 2002. The defendant pleaded guilty to
breaches of sections 12(3), 12(4) and 48(17) of the Safety, Health and
Welfare at Work Act 1989 and Regulation 17(1)(a) of the Safety, Health
and Welfare at Work (General Application) Regulations 1993. The case arose
after a milk tanker driver was crushed against a wall by a reversing milk
tanker lorry, resulting in serious injury. See Health and Safety
Authority Annual Report 2002 at p. 52. This case is under appeal
at the time of writing.
[32]
Pursuant to the specific power to appeal against decisions of the District
Court granted by section 52 of the 1989
Act.
[33]
Under which
the High Court may order closure of a place of work.
[34]
See Carolan
“Judge warns Zoe to comply with safety plan” The Irish Times 25 November
1997.
[35]
Many of the
judges who participated in the Commission’s informal discussions on the matter
described this factor as a “prerequisite”.
[36]
The issue of
deleting or expunging spent convictions will be considered in further detail
below in Chapter 5.
[37]
See
generally the Report by the Law Reform Commission entitled The
Indexation of Fines – a Review of Developments (LRC 65 – 2002).
[38]
See
generally, in relation to section 1 of the Probation of Offenders Act 1907,
Osborough ‘Dismissal and discharge under the Probation of Offenders Act 1907’
(1981) Ir Jur 1; Osborough ‘Probation in Northern Ireland’ (1974) Ir
Jur 233. See also O’Donoghue v Morris (1918) 52 ILTR 25; McLelland
v Brady [1918] 2 IR 63; and Gilroy v Brennan [1926] IR 482.
[39]
At
paragraphs 2.98-2.105.
[40]
Comprehensive empirical data is not available as a result of the somewhat ad
hoc manner in which the court poor box is applied in individual
courts. However, it may also be argued that the idiosyncratic application
is not the reason for lack of data; until recently there has been a paucity of
information recorded about dispositions in the District Court. See the
recommendations of the Fennelly Report in respect of the need to improve the
recording and collection of information: Working Group on the Jurisdiction of
the Courts The Criminal Jurisdiction of the Courts (Courts Service 2003)
at paragraph 834.
[41]
Another
response from a District Court judge indicated that the court poor box, when
applied, is akin to giving the offender “one chance”, and the matter is
normally struck out.
[42]
Supra
at paragraph 1.22.
[43]
See eg
The Irish Times 27 March 2001 (A musician who had no previous convictions
and pleaded guilty to charges of being drunk and disorderly and using abusive
and threatening language was afforded the Probation of Offenders Act 1907
upon paying £3,000 to charity).
[44]
Supra
at paragraphs 1.21 et seq.
[45]
It should be
noted that the figures for 2003 are provisional.
[46]
Figures for
2003 are provisional.
[47]
The issue of deleting or expunging convictions is considered further below at
Chapter 5.
[48]
See
eg The Irish Times 3 March 1999. (A person who intended to travel
to Australia was involved in a bottle-throwing incident while intoxicated in a
night club; if convicted of the offence with which he had been charged, he
would have been unable to obtain a visa. The judge directed the offender
to pay £100 to the court poor box and to enrol in an alcohol awareness programme.)
[49]
See eg Law Reform Commission Report on Penalties for Minor Offences
(LRC 69-2003) at 28-29 (noting that there is now widespread international
assent to the principle of restraint in the use of imprisonment); Bacik ‘The
practice of sentencing in the Irish courts’ in O’Mahony (ed) Criminal
Justice in Ireland (Institute of Public Administration 2002) (noting that
“[w]hatever rationale for sentencing may be adopted, those groups and experts
who have reviewed the Irish penal system over the years have all recommended
less use of imprisonment….”); O’Malley Sentencing Law and Practice
(Round Hall Press 2000) at 147 et seq (noting that “[t]he principle that
imprisonment should be a punishment of last resort has been acknowledged as
part of the common law in other jurisdictions”); Ashworth Sentencing and
Criminal Justice (Butterworths 2000) at 80-81 and 237 (noting that there is
now widespread international acceptance that imprisonment should be used with
restraint). See also Final Report of the Expert Group on the
Probation and Welfare Service (Pn.7324) (Department of Justice, 1999) at p.
23, where it approves the Report of the National Crime Council (1998)
that imprisonment is a punishment of last resort.
[50]
For an outline of the principles of restorative justice, see O’Malley op cit
at paragraphs 1-14-1-15, and Von Hirsch et al Restorative Justice and
Criminal Justice (Hart 2003).
[51]
[1976] IR 325.
[52]
Article 38.1 of the Constitution.
[53]
Articles 40.3.1˚ and 40.3.2˚ of the Constitution.
[54]
Article 40.4.1˚ of the Constitution.
[55]
[1976] IR 325 at 353. (Emphasis added). See also People (DPP) v W.C. [1994]
1 ILRM 321.
[56]
The
right also embraces an entitlement to receive a sentence that is proportionate
to the personal circumstances of the offender.
[57]
(1972) 1
Frewen 351.
[58]
Walsh J
stated that “[t]he objects of passing sentence are not merely to deter the
particular criminal from committing a crime again but to induce him in so far
as possible to turn from a criminal to an honest life and indeed the public
interest would be best served if the criminal could be induced to take the
latter course”. Ibid at 359.
[59]
(1972) 1 Frewen
351 at 359. (Emphasis added).
[60]
[1976] IR
325.
[61]
Ibid at
353. (Emphasis added).
[62]
[1994] 3 IR 306.
[63]
Ibid at
317.
[64]
Ibid at
318.
[65]
Ibid at
316.3
[66]
[2001] 3 IR
390.
[67]
The ten charges
were virtually identical. The first alleged:
“That [the accused] within the State, being a chargeable person knowingly or
wilfully failed to deliver a return in the prescribed form of [his] income,
profits or gains, or of the sources of [his] income, profits or gains, to the
appropriate Inspector of Taxes for the year of assessment 1989/90 on or before
the specified return date for that chargeable period, that is to say 31
December 1989, as was required by section 10 of the Finance Act 1988,
contrary to section 94(2)(e)(i) of the Finance Act 1983, as amended.”
[68]
Citing O’Malley
Sentencing Law and Practice (Round Hall Press 2000).
[69]
[2001] 3 IR
390 at 404.
[70]
Ibid at
406.
[71]
See in this context the Law Reform Commission Report on Penalties for Minor
Offences (LRC 69-2003) at Chapter 5.
[72]
[1945] IR
275.
[73]
Ibid
at 278.
[74]
Court of
Criminal Appeal 16 January 1995.
[75]
See eg People
(DPP) v Bambrick [1996] 1 IR 265.
[76]
See eg People (DPP) v Tiernan [1988] IR 250.
[77]
With
whom the other members of the Supreme Court (Walsh, Henchy, Griffin and McCarthy JJ) concurred.
[78]
[1988] IR
250.
[79]
Ibid
at 255.
[80]
[1994] 3 IR
306.
[81]
Ibid
at 313.
[82]
Ibid
at 319.
[83]
Ibid.
[84]
In section
29, the expression “fixed by law” in relation to a sentence for an offence
means “a sentence which a court is required by law to impose on a person of
full capacity who is guilty of the offence”: section 29(3).
[85]
See eg per
Denham J in People (DPP) v M. [1994] 3 IR 306 at 319:
“Even with modern legal procedures the trauma of anticipating and ultimately
going to court are serious concerns for children and it is a sound policy to
shield them, if appropriate, from the necessity of the court procedure
including, as it does, cross-examination. Thus, a plea of guilty may be an
important mitigating factor, which is further enhanced by an early indication
that it will occur.”
[86]
[1988] IR
250 at 255. (Emphasis added).
[87]
Finlay CJ
considered that “an admission of guilt made at an early stage in the
investigation of the crime which is followed by a subsequent plea of guilty,
can be a significant mitigating factor” because “it necessarily makes it
possible for the unfortunate victim to have early assurance that she will not
be put through the additional suffering of having to describe in detail her
rape and face the ordeal of cross-examination.” [1988] IR 250 at 255.
[88]
Court of
Criminal Appeal 18 May 1999.
[89]
The
offender had been sentenced to imprisonment for a period of three years.
The assault was a particularly serious one: as the Court noted, it entailed not
simply a threat to kill but also an attempt to choke the victim.
[90]
As O’Malley
observes, this approach may be justified on the ground that a truly remorseful
offender is less likely to re-offend and may be more willing to take steps to
deal with his own behavioural problems: see O’Malley ‘Principled discretion: towards the development of a sentencing
cannon’ (2002) Bar Review 135 at 139 (citing Posner Frontiers of
Legal Theory (Harvard 2001)).
[91]
See eg
The Irish Times 12 September 2002 (a person who engaged in a
streaking incident during the interval of a football game while drunk was
ordered to make a contribution to the court poor box after the
prosecuting Garda informed the court that the offender was regretful and
remorseful).
[92]
[1994] 3 IR 306.
[93]
Ibid
at 319.
[94]
Per Denham
J at 319. See also the judgment of Egan J at 314.
[95]
The Supreme
Court also had regard to the accused’s early admission of guilt, his plea of
guilty and the fact that the offender was unlikely to re-offend upon release
from prison.
[96]
The trial
judge had imposed sentences of eighteen years penal servitude in respect of
each of three counts of buggery, four years imprisonment in respect of one
count of indecent assault, nine years imprisonment in respect of each of two
counts of indecent assault and eighteen years in respect of each of two counts
of sexual assault. The sentences were expressed to run concurrently. The
Supreme Court reduced the sentences of eighteen years to twelve years, nine
years to seven years and four years to three years respectively.
[97]
Court of
Criminal Appeal 5 July 1999.
[98]
[2002] 1 IR 363.
[99]
Ibid
at 368.
[100]
It is
a separate question as to whether certain aspects of the court poor box system
– and in particular the receipt, administration and distribution of court poor
box funds – form part of the administration of justice within the meaning of
Articles 34.1 and 37.1 of the Constitution and this question is addressed below
at paragraphs 2.83 et seq.
[101]
See The
Irish Times 1 December 2000.
[102]
In this
context, see generally von Hirsch et al Restorative Justice and
Criminal Justice (Hart 2003).
[103]
See Chapter
3.
[104]
In this
context, see paragraphs 2.77-2.105 below.
[105]
See The
Irish Times 3 July 1993.
[106]
See The
Irish Times 19 May 1997.
[107]
See The
Irish Times 16 August 1999.
[108]
At
paragraphs 2.83-2.90.
[109]
The various
Revenue requirements will be dealt with in further detail below in Chapter 3.
[110]
This factor
also highlights the need for the enactment of a standard fine system which
would maintain the value of fines by reference to a price index. See
generally the report by the Law Reform Commission entitled The
Indexation of Fines – a Review of Developments (LRC 65 – 2002).
[111]
See eg
People (DPP) v Aylmer [1995] 2 ILRM 624.
[112]
Above at
paragraph 2.43.
[113]
See eg the
payment of £25,000 in 1989, and of €40,000 in 2003, discussed at
paragraphs 1.15 and 2.72.
[114]
See People
(AG) v O’Driscoll (1972) 1 Frewen 351 at 359; State (Stanbridge) v Mahon
[1979] IR 214 at 218. See generally the Law Reform Commission Report
on Sentencing (LRC 53-1996).
[115]
See
paragraph 2.39.
[116]
See
generally the Report by the Law Reform Commission entitled The
Indexation of Fines – a Review of Developments (LRC 65-2002).
[117]
But see the
examples referred to at paragraphs 2.72-2.73.
[118]
See
paragraphs 2.81-2.82.
[119]
See eg
The Irish Times, The Irish Independent and The Irish Examiner
on 17 January 2003 (below at paragraph 2.72).
[120]
Hogan and
Whyte (eds) Kelly The Irish Constitution (4th ed LexisNexis
Butterworths 2003).
[121]
Ibid
at 1363.
[122]
[1986] IR
642, 658 (citing McMahon v Leahy [1984] IR 525).
[123]
O’Malley Sentencing
Law and Practice (Round Hall 2000) at 111.
[124]
Supreme
Court 29 July 1971.
[125]
Ibid.
[126]
O’Malley Sentencing
Law and Practice (Round Hall Press 2000).
[127]
Ibid
at 112.
[128]
See in this context, the factors which underlie a decision to apply the court
poor box, outlined above at paragraphs 1.21-1.31.
[129]
That is,
without probation conditions.
[130]
See
paragraphs 2.46-2.49.
[131]
Hogan and
Whyte (eds) Kelly The Irish Constitution (4th ed LexisNexis
Butterworths 2003) at 1363.
[132]
See
paragraphs 2.07- 2.09
above.
[133]
See
paragraphs 2.07-2.13.
[134]
This
information was provided by the Courts Service.
[135]
Ibid.
[136]
See
generally the tables in Appendix B to this Paper which contain a detailed
breakdown of the payments to the court poor box in the District Court from
1999-2003.
[137]
See The
Irish Times, 30 March 2001.
[138]
Ultimately,
the first driver succeeded, on appeal, in having the disqualification quashed
on the basis of the more lenient sentence that had been imposed upon the second
driver. (See The Irish Times 22 November 2000).
[139]
See The
Irish Times, 5 August 1999 (letter from Patrick J Brennan (retired District
Court Judge) to the Editor).
[140]
[1972] IR
402.
[141]
[1988] IR
250.
[142]
For a full
consideration of the principles of proportionality in this context, see
paragraphs 2.07-2.09.
[143]
[1972] IR
402, 408-409 (per Walsh J).
[144]
[1988] IR
250.
[145]
[1988] IR
250, 254 (per Finlay CJ). [Emphasis added]
[146]
Court of Criminal
Appeal 15 March 1999.
[147]
Including
constraints of space, a lack of readership interest in the subtleties of the
court’s reasoning and/or an incomplete statement by the judge of his or her
reasoning.
[148]
Contrary to
section 6 of the Child Trafficking and Pornography Act 1998.
[149]
See The Irish
Times, The Irish Independent and The Irish Examiner on 17
January 2003.
[150]
See The Irish
Times 1 December 2000.
[151]
See paragraph
6.15.
[152]
Criminal
Justice (Community Service) Act 1983, section 2.
[153]
Ibid
section 3(2).
[154]
Ibid
section 4(1)(a).
[155]
Ibid
section 4(1)(b).
[156]
Eg because
it would preclude the opportunity of working and/or travelling abroad.
See generally paragraphs 1.21-1.31 above. The Commission also notes that
reform of the 1983 Act to allow community service orders to be made in minor
cases and not just as an alternative to imprisonment has been suggested in its Report
on Sentencing (LRC 53-1996) and the Final Report of the Working Group on
the Probation and Welfare Service (Pn 7324) (Department of Justice 1999).
[157]
Criminal
Justice Act 1993, section 6(2).
[158]
See section
77A of the Criminal Justice Act 1924 as carried forward by section 33 of
the Courts (Supplemental Provisions) Act 1961 and amended by section 4
of the Courts Act 1991. This limitation was to increase to €20,000
under the terms of the Courts and Court Officers Act 2002, but as yet
the relevant sections have not been commenced.
[159]
Ibid
section 6(13).
[160]
Ibid
section 6(8).
[161]
See
paragraphs 1.33-1.34 above.
[162]
See paragraphs
2.98-2.105.
[163]
[2000] 1 IR 354. The court confirmed
that prejudicial comments made after conviction but before sentencing could
amount to contempt of court.
[164]
Ibid
at 366. (Emphasis added).
[165]
[1924] 1 KB 256.
[166]
Ibid
at 259.
[167]
See paragraph
2.69.
[168]
See eg State (Shanahan) v Attorney General [1964] IR 239 at 247 (where
Davitt P stated that he “certainly
[had] no intention of rushing in where so many eminent jurists have feared to
tread, and attempting a definition of judicial power ….”) and Keady v
Commissioner of An Garda Síochána [1992] 2 IR 197 at 204 (where McCarthy J
“share[d] the reluctance of Davitt P in State (Shanahan) v Attorney General to attempt a definition of judicial power” and
observed that “it is easier, if intellectually less satisfying, to say in a
given instance whether or not the procedure is an exercise of such power,
rather than to identify a comprehensive check-list for that purpose”).
[169]
[1933] IR 74.
[170]
Ibid.
(Emphasis added.) Cited with approval by McCarthy J in Keady v
Commissioner of An Garda Síochána [1992] 2 IR 197 at 202-203.
[171]
[1965] IR 217.
[172]
Ibid at
231.
[173]
Ibid at
244.
[174]
See Keady
v Commissioner of An Garda Síochána [1992] 2 IR 197 at 203; Goodman International v Hamilton
(No. 1) [1992] 2 IR
542 at 589; and State (Plunkett) v Registrar of Friendly Societies (No. 1)
[1998] 4 IR 1 at 5.
[175]
[1998] 4 IR
1.
[176]
[1992] 2 IR
197.
[177]
[1933] IR 74.
[178]
[1992] 2 IR
197 at 204.
[179]
See further
paragraphs 2.81-2.82.
[180]
See Chapter 3.
[181]
See paragraph
2.39.
[182]
See Annual
Report of Comptroller and Auditor General and Appropriation Accounts (29
March 2001) where the Comptroller and Auditor General noted: “The committee had
concerns about the poor box centring around the fact that the way the system
operated may be depriving the Exchequer of fines which should ordinarily be
imposed. It could be seen as involving the imposition of an alternative penalty
to that provided by law”. Available at www.irlgov.ie/committees-01/c-publicaccounts/010329/Page1.htm
[183]
LRC 65-2002.
See also the Government’s legislative programme for the Dáil session commencing
on 27 January 2004, which states that draft heads of a Bill giving effect to
this Report are expected to be published in 2004; see http://www.taoiseach.gov.ie/index.asp?locID=186&docID=-1.
[184]
See the discussion
of the origins of the court poor box above, at paragraphs 1.03-1.06.
[185]
In this context,
see Woods District Court Practice and Procedure in Criminal Cases (Woods
1994) at 236-238.
[186]
Concerns in this
respect were raised by the Public Accounts Committee in its consideration of
the 1999 Annual Report of the Comptroller and Auditor General, 29 March
2001. A transcript of this meeting is available at www.irlgov.ie/committees-01/c-publicaccounts/010329/Page1.htm.
[187]
See The
Irish Times 30 March 2001.
[188]
This information
was provided by the Courts Service; see further paragraph 1.44 and Appendix B
for a statement of payments made into the court poor box for these years.
[189]
See Appendix B.
[190]
See paragraph
2.80.
[191]
As noted above,
the remaining part of this provision dealing with offenders under the age of
sixteen was repealed by the terms of the Children Act 1908, (in turn
replaced by the Children Act 2001) but the passage of the section cited
here remains in force.
[192]
See the Euro
Changeover (Amounts) Act 2001.
[193]
See paragraph
2.79.
[194]
The Courts and
Courts Officers Act 2002 provides that these limits be raised to €20,000
and €100,000 respectively, but commencement orders for these changes have not
been made to date.
[195]
Section 6(1) of
the Criminal Justice Act 1993. Reference should also be made to section
6(3) which deals with loss or damage to property, providing:
“Where the commission of the offence by the convicted person involved the taking
of property out of the possession of the injured party and the property has
been recovered, any loss occurring to the injured party by reason of the
property being damaged while out of his possession shall be treated for the
purposes of subsection (1) as having resulted from the offence, irrespective of
how the damage was caused or who caused it.”
[196]
See sections 1 and
6 of the Criminal Justice Act 1993.
[197]
A further
possibility in cases where there is no identifiable “victim” is to require the
offender to make a contribution towards the costs of the case. Provision
for this exists in section 1(3) of the Probation of Offenders Act 1907.
[198]
1999 Annual Report of the Comptroller and Auditor General, delivered to the
Public Accounts Committee on 29 March 2001. Transcript available at http://www.irlgov.ie/committees-01/c-publicaccounts/010329/Page1.htm
[199]
Delany Equity and the Law of Trusts in Ireland (3rd ed Round
Hall Sweet & Maxwell 2003) at 291.
[200]
See Corrigan Revenue Law (Round Hall Sweet & Maxwell 2000) at
paragraphs 8-161 – 8-162.
[201]
Ibid
at paragraph 8-161.
[202]
Section 611 of the Taxes Consolidation Act 1997. Section 611(1)(b)
provides that if such property subsequently ceases to be subject to charitable
trusts any gain arising will be chargeable and will be calculated as if the
property had been sold for its market value on that date.
[204]
Delany op cit at 297.
[205]
See also Law Society Report Charity Law: The Case for Reform (2002) at
p. 41, and Department of Community, Rural and Gaeltacht Affairs Establishing
a Modern Statutory Framework for Charities (Consultation Paper 2003) at
paragraph 3.15.
[206]
Corrigan Revenue Law (Round Hall 2000) at paragraph 8-165. The
reference to persons who “go short” is drawn from the judgment of Evershed MR
in Re Coulthurst [1951] Ch 661.
[207]
As Delany
has noted,
“An examination of the various judicial interpretations of the types of trust
which are legally charitable show that there are in effect two hurdles to be
overcome, first, an element of benefit, e.g. the relief of poverty and
secondly, an element of public benefit.” As Viscount Simonds commented in IRC
v Baddeley [1955] AC 572, 592, it is necessary to
distinguish “between a form of relief extended to the whole community, yet by
its very nature advantageous only to a few and a form of relief accorded to a
selected few out of a larger number equally willing and able to take advantage
of it.”
[208]
[1951] Ch
622.
[209]
Ibid at
639.
[210]
Revenue
Precedent: TCA 1997, s. 207, Income Tax – Charitable Exemptions. See
also Corrigan op cit at paragraph 8-165.
[211]
Note that
the definition of the term “advancement” as proposed in the Department of
Community, Rural and Gaeltacht Affairs Establishing a Modern Statutory
Framework for Charities (Consultation Paper 2003) includes “protection,
maintenance, support, research, improvement or enhancement”; at p. 8.
[212]
See, for
instance, the terms of the Preamble of the Statute of Charitable Uses
(Ireland) 1634, which refers to “the erection, maintenance or support of
any college, school lecture in divinity, or on any of the liberal arts or
sciences, the building, re-edifying or maintaining in repair any college [or]
school”.
[213]
Delany op
cit at 308.
[214]
[1952] 1 All ER 49.
[215]
Ibid at
55.
[216]
[1995] 2 IR
301, 336.
[217]
(1933) 17 TC
508.
[218]
The issue of
gifts with a potential political dimension will be returned to below in the
context of “gifts for other purposes beneficial to the community”, with a
consideration of the appropriateness of payments being made out of the court
poor box where the benefit may ultimately be applied for a political or
quasi-political purpose.
[219]
Revenue
Precedent: TCA 1997, s. 207, Charitable Exemption, referred to in Corrigan op
cit at paragraph 8-168.
[220]
[1972] IR 1.
[221]
Delany op
cit at p. 318.
[222]
Re
Davidson [1909] 1 Ch 567.
[223]
Attorney
General v Delaney (1875) IR 10 Ch 104; O’Hanlon v Logue [1906] 1 IR
247.
[224]
Re
Vaughan (1886) 33 Ch D 275. See also section 50 of the Charities
Act 1961.
[225]
Revenue
Precedent: TCA 1997 s. 207, Income Tax – Charitable Exemption.
[226]
This issue
arose in the context of the status of gifts to cloistered religious
orders. For a consideration of the leading cases on this issue, including
the English decision of Cocks v Manners (1871) LR 12 Eq 574, and the
Irish decisions of Maguire v Attorney General [1943] IR 238, Munster
and Leinster v Attorney General [1940] IR 19, and Bank of Ireland
Trustee Co. Ltd v Attorney General [1957] IR 257 see Delany op
cit at 324-327.
[227]
Delany op
cit at p. 329.
[228]
[1924] AC
262.
[229]
Ibid at
265.
[230]
Corrigan op
cit at paragraph 8-170.
[231]
Re
Robinson [1951] Ch 198.
[232]
Re
McCarthy’s Will Trusts [1958] IR 311.
[233]
Swifte v
Attorney General [1912] 1 IR 133.
[234]
Shillington
v Portadown Urban Council [1911] 1 IR 247. Corrigan also notes in
this context that the Revenue Commissioners also regard “Tidy Towns”
organisations as charitable : see Revenue Precedent: TCA 1997, s. 207 –
Charitable Exemption.
[235]
Attorney
General v Heelis (1824) 2 Sim & St 67.
[236]
Jones v
Williams (1767) Amb 651.
[237]
Re
White’s Will Trusts; Tindall v Board of Governors of the United Sheffield
Hospital [1951] 1 All ER 528.
[238]
See Revenue
Precedent: TCA 1997, s. 207 – Charitable Exemption.
[239]
Ibid.
[241]
Delany op cit at p. 350.
[242]
In Re Trusts
of the Arthur McDougall Fund [1957] 1 WLR 81, a trust for the teaching of
political theory was accepted as being educational in nature and in Re
Koeppler’s Will Trusts [1986] Ch 423 a bequest to fund the holding of
conferences with political themes was also upheld. However, these decisions can
be contrasted with the decision in Bonar Law Memorial Trust v IRC,
referred to above at paragraph 3.08.
[243]
(Consultation Paper, December 2003). A copy of this paper can be obtained
from http://www.pobail.ie/en/CharitiesRegulation/ccp-en.doc.
[244]
Agreed
Programme for Government, June 2002.
[245]
Op cit
at 6.
[246]
Ibid.
[247]
Op cit at
7. It should be noted that “advancement” is taken to include protection,
maintenance, support, research, improvement or enhancement.
[248]
At
paragraphs 3.05-3.06.
[249]
[1995] 2 IR
301, 336. For the context in which this approach was set out, see full
quote at paragraph 3.07.
[250]
Per Vaisey
J in Re Shaw’s Will Trusts [1952] 1 All ER 49, considered above at
paragraph 3.07.
[251]
This phrase
was used in the English decision of Re Lopes, Bence-Jones v Zoological
Society of London [1931] 2 Ch 130, referred to in Corrigan Revenue Law (Round
Hall Sweet & Maxwell 2000) at paragraph 8-167.
[252]
As inserted
by section 9 of the Waste Management Amendment Act 2001.
[253]
As inserted
by section 12 of the Waste Management Amendment Act 2001.
[254]
See
paragraphs 6.27-6.31.
[255]
Ibid at paragraph 3.02.
[256]
This arises
because many payments to the court poor box would be classified as gifts
pursuant to the CAT code, and thus not dealt with under Income Tax, as the payments
are generally made on a “one- off” basis and are not in the nature of
continuing payments.
[257]
For a full
statement of Revenue guidelines on the application process for CHY numbers, see
Revenue Commissioners Applying for Relief From Tax on the Income and
Property of Charities (CHY1 2003) at pp. 2-3. This paper is available
at http://www.revenue.ie/pdf/chy1.doc.
[258]
There must
also be a minimum of three directors/officers/trustees, the majority of whom
must be resident within the State, and the organisation must have a permanent
establishment and some operations therein. It should be noted, however,
that the requirement that the jurisdictional limitations in respect of availing
of charitable exemptions which apply, eg, to the income tax code, do not
apply to the Capital Acquisitions Tax code.
[259]
On the issue
of the severability of non-charitable objects, reference should be made to the
decision of Hanna J in Pharmaceutical Society of Ireland v Revenue
Commissioners [1938] IR 202, where it was held that the Pharmaceutical
Society of Ireland had not been established for charitable purposes only and
thus could not avail of the exemption. This decision was based on the
fact that, although the main object of the society was to provide competent and
qualified chemists for the benefit of the public (which Hanna J accepted as a bona
fide charitable purpose under the fourth Pemsel category), the
second main object of the organisation –namely “the establishment of a
professional or vocational society to maintain a high standard of knowledge
among pharmaceutical chemists by examination and teaching and to secure that
only those having such high standards should be permitted to keep open shop for
the sale of poisons and the compounding of prescriptions” – could not be
regarded as a charitable object.
[260]
It should
also be noted that section 2 defines “disposition” as including “the payment of
money”.
[261]
Ie the
donee, namely the person in whose favour the payment from the court poor box
funds was made.
[262]
Note however
the potential application of the principle of judicial immunity. The
point here is not intended to suggest that judges will in future be pursued for
secondary liability to CAT, but rather as a graphic illustration of the breadth
of the provisions of the Capital Acquisitions Tax Consolidation Act
2003.
[263]
In that the
organisation does not have a CHY number (as referred to infra), and no
certificate of discharge is obtained. This issue will be considered
below.
[264]
Capital
Acquisitions Tax Act 1976, Schedule 2, paragraph 3(b), as inserted by
section 145 of the Finance Act 2000.
[265]
Defined in
section 45 of the 2003 Act; considered above at paragraph 3.37.
[266]
The issue of payments to individuals who do not qualify for the exemptions
available to charitable organisations, and the need to obtain a certificate of
discharge from such persons, presupposes that the person in question may not
avail of the “small gifts exemption”; this issue will be considered in further
detail below, at paragraphs 3.45-3.47.
[267]
Pursuant to Form
CA44, which is a
Certificate of Personal Discharge from CAT. It is issued to secondarily liable
persons eg executor, trustees, provided all taxes (if any) in respect of
the primarily liable beneficiaries have been discharged.
[268]
This presupposes that the small gifts exemption is not available in the instant
case; the issue of small gifts exemptions is considered below.
[269]
Section 53
of the Capital Acquisitions Tax Act 1976, first amended by section 44 of
the Finance Act 1978 to £500. Subsequently amended by section 204
of the Finance Act 1999 to £1,000, now governed by section 69 of the Capital
Acquisitions Tax Consolidation Act 2003.
[270]
The tables
of beneficiaries provided by the Courts Service include numerous examples of
such organisations and individuals benefiting from payments out of the court
poor box.
[271]
This refers
to the fact that not all district or circuit court judges operate a court poor
box system; as noted below,
[272]
The issue of
potential liability to CAT is considered above, at paragraphs 3.32-3.48.
[273]
This refers
to the requirement to ascertain that a legally recognised charity, which is
entitled to avail of the exemptions to CAT, has a CYC number, which denotes
revenue recognition of such exemption. If the organisation in question
has no such exemption, then a certificate of discharge should be obtained.
See further paragraphs 3.32-3.48.
[274]
It is
informative to note that the Courts Service is responsible for funds currently
estimated to be worth approximately €900 million. The court poor box
generates an annual amount of approximately €1 million; see the table of
amounts generated by the court poor box at paragraph 1.46.
[275]
Delany Equity
and the Law of Trusts in Ireland (3rd ed Round Hall 2003) at
294.
[276]
Furthermore,
it should be noted that any such proposal would also require legislative
amendment to the jurisdiction and powers of the Commissioners, as set out in
Part II of the Charities Act 1961 (as amended by the Charities Act
1973).
[277]
Triggs Crime to Sentence: Trends in Criminal Justice 1986 to 1998 (Ministry
of Justice Reports 1998).
[278]
The scheme is subject to police guidelines, see Police Pre-Trial Diversion
Guidelines (1994) now contained in the Manual of Best Practice compiled by
the Commissioner of the New Zealand Police. For background on these
guidelines, see the judgment of Panckhurst J in Thompson v Attorney General [2000]
NZAR 583.
[279]
See Laven The Police Adult Diversion Scheme: Trends in the use of diversion
– 1992 to 1994, Wellington Central and Manukau Districts and beyond (Crime
Prevention Unit Wellington 1996).
[280]
See eg The Wellington Post 16 March 2001 (charges of disorderly
behaviour and intentional damage against two anti-capitalist protesters were
withdrawn on the basis that one of the offenders paid $100 to charity and the other paid the $60
cost of removing a sticker he had allegedly placed on a bank’s doors during the
protest). See eg The Wellington Evening Post 15 January
2000 (a charge of offensive behaviour against a man who had urinated in public
was withdrawn because the man had completed his diversion).
[281]
See eg The Waikato Times 13 March 1997 (theft of a chocolate bar
from a supermarket).
[282]
See eg The New Plymouth Daily News 5 September 2000 (a teenager who engaged in a prank which caused injury
to another teenager was given the benefit of the diversion scheme after she
admitted the assault and apologised to the victim).
[283]
See eg The New Plymouth Daily News 17 January 2002 (two students who ran
naked through a department store had to pay $250 to a charity through the
police diversion scheme).
[284]
See eg The Southland Times 17 December 2002 (a judge ordered two
Queenstown high school students who had been charged with the cultivation and
possession of cannabis and admitted the offences to pay $750 each to charity
and dismissed the charges. The judge noted that overseas travel could be
greatly restricted by a conviction.)
[285]
See Laven The Police Adult Diversion Scheme: Trends in the use of diversion
– 1992 to 1994, Wellington Central and Manukau Districts and beyond (Crime
Prevention Unit Wellington 1996).
[286]
See eg
The Wellington Dominion 8 April 2000 (A senior university lecturer who
assaulted a person was discharged without conviction on condition that he paid
$2,500 to charities. The judge noted that a conviction would have
significant consequences, including the loss of a possible professorial
position and difficulties in relation to future employment in teaching and
research.)
[287]
See eg
Gill ‘Court’s diversion offers a better deal, but who for?’ The Waikato
Times 13 March 1997 (noting two high profile cases involving domestic
violence in which the police granted diversion).
[288]
See eg
Gill ‘Court’s diversion offers a better deal, but who for?’ The Waikato
Times 13 March 1997 (“Putting aside the concern about domestic violence
diversions, the scheme itself seems to have met with universal support.
Police like it, lawyers were slow to come around but by and large now support
it, judges are happy because it doesn’t clog up their courtrooms, victims get
the apology many always wanted, and the offenders get a second chance.”)
[289]
Cited
in Gill op cit.
[290]
See Laven The
Police Adult Diversion Scheme: Trends in the use of diversion – 1992 to 1994,
Wellington Central and Manukau Districts and beyond (Crime Prevention Unit
Wellington 1996).
[291]
Section
231(2) concerns “absence because of disorderly conduct”, section 232 addresses
the holding of the main hearing despite the failure of the accused to appear,
whilst section 233 deals with allowing applications by a defendant to be
released from the obligation to attend the hearing.
[292]
See The
Sydney Sunday Telegraph 13 October 2002.
[294]
The
Commission is indebted to Murray Thompson, Member of Parliament for
Sandringham, Victoria for providing information on the operation of the
magistrates’ court fund in Victoria.
[295]
See Law
Department Victoria Report on the Administration of Court Poor Box Funds (Project
No 7 1985) at paragraph 2.10.
[296]
Ibid at
paragraph 2.11.
[297]
Ibid at
paragraph 2.23.
[298]
Ibid at paragraph 2.17.
[299]
Examples of
such welfare organisations who benefit from court funds in Victoria include the
Salvation Army and the Society of St Vincent de Paul.
[300]
See Law
Department Victoria Report on the Administration of Court Poor Box Funds (Project
No 7 1985) at Chapter 4, which outlines various options for reform of the
manner in which the magistrates’ fund was operated at that time. The
Report ultimately recommended retaining the arrangements which existed at the
time (ie the system of payments to needy individuals) but that clerks of
courts should be better trained to handle applications for assistance in a more
appropriate manner and to collaborate more closely with local welfare agencies,
with a major focus on establishing necessary accountability mechanisms.
However, discussions with the Registrar at the Melbourne Magistrates’
Court in October 2003 indicate that the current administration of poor
box funds in Victoria no longer involves the making of applications for
assistance by individuals directly to the court. Payments are now made
from the court fund to local welfare agencies who satisfy accountability criteria,
and these agencies are then responsible for the disbursement of funds on a case
by case basis. Thus, it would appear that the magistrates no longer have a role
in the allocation of the funds to the ultimate recipients of such funds.
[301]
The VERC
comprised representatives from a range of welfare agencies who met at VCOSS on
a monthly basis to discuss a range of issues associated with the provision of
emergency relief.
[302]
Law
Department Victoria Report on the Administration of Court Poor Box Funds (Project
No 7 1985) at paragraph 5.2.
[303]
No payments
are made from the magistrates’ court fund by cash.
[304]
Law
Department Victoria Report on the Administration of Court Poor Box Funds (Project
No 7 1985) at paragraph 2.28.
[305]
Law Reform
Committee of Victoria “Inquiry into legal services in rural Wodonga” 13
June 2000.
[306]
See also
transcript of the meeting of the Law Reform Committee of Victoria “Inquiry into
legal services in rural Wodonga” 13 June 2000 at p. 2, where Mr A.J.
McIntosh (member of the Law Reform Committee) suggested it had been indicated
by the CEO of the Magistrates’ Court that “the court fund is diminishing in
value … the sentencing magistrate does not have the flexibility or the
disposition to order money to be put into the court poor box”.
[307]
However, a
distinction which can be made is that the New Zealand diversion scheme can be
operated by the police as well as the courts, so that a person dealt with by
way of diversion may never actually appear before the court. In this
respect, the operation of the New Zealand scheme differs significantly from the
Irish practice.
[308]
Supra
at paragraphs 1.21-1.31.
[309]
On the Committee Stage of the Children Bill 1999, before the Select Committee on Justice, Equality, Defence and Women’s Rights
(5 April 2001), the Minister of State for Children, Mary Hanafin, noted that
what became s.258(4)(d) of the 2001 Act ‘is similar to an analogous provision’
in the Rehabilitation of Offenders (Northern Ireland) Order 1978.
The debate is available at: http://www.irlgov.ie/committees-01/c-justice/010405/Default.htm
[310]
Children Bill 1999, Explanatory Memorandum.
[311]
Rehabilitation of Offenders Act 1974, section 1(1).
[312]
Pursuant to section 5(1) of the Act, the following sentences are excluded from
rehabilitation under the Act: (a) a sentence of imprisonment for life; (b) a
sentence of imprisonment or corrective training for a term exceeding thirty
months; (c) a sentence of preventive detention; (d) and a sentence of detention
during Her Majesty’s pleasure or for life, or for a term exceeding thirty months
passed under section 53 of the Children and Young Persons Act 1933 or
under section 57 of the Children and Young Persons (Scotland) Act 1937
(young offenders convicted of grave crimes). Any other sentence is a
sentence subject to rehabilitation under the Act.
[313]
The
rehabilitation periods under the Act are set out in section 5. They range
from a period of ten years for a sentence of imprisonment or corrective
training for a term exceeding six months but not exceeding 30 months to a
period of six months for, inter alia, an order discharging a person
absolutely for an offence.
[314]
Rehabilitation
of Offenders Act 1974, section 1(1).
[315]
Ibid
section 1(2).
[316]
For
the purposes of section 4 and also section 7, “proceedings before a judicial
authority” include, in addition to proceedings before any of the ordinary
courts of law, proceedings before any tribunal, body or person having power to
determine any question affecting the rights, privileges, obligations or
liabilities of any person, or to receive evidence affecting the determination of
any such question, which said power arises: (a) by virtue of any enactment,
law, custom or practice; (b) under the rules governing any association,
institution, profession, occupation or employment; or (c) under any provision
of an agreement providing for arbitration with respect to questions arising
thereunder. Ibid., section 4(6).
[317]
Rehabilitation
of Offenders Act 1974, section 4(1).
[318]
Ibid
section 7(1). See also section 7(2) which provides that section 4(1) does
not affect the determination of any issue, or prevent the admission or
requirement of any evidence, relating to a person’s previous convictions or to
circumstances ancillary thereto: (a) in any criminal proceedings before a court
in Great Britain; (b) in any service disciplinary proceedings or in any
proceedings on appeal from any service disciplinary proceedings; (c) in any
application for a sex offender order; (d) in any proceedings relating to
adoption or to the guardianship, wardship, marriage, custody, care or control
of, or access to, any minor, or to the provision by any person of
accommodation, care or schooling for minors; (e) in any proceedings under the Children
Act 1989; (f) any proceedings relating to the variation of a supervision
order; (g) in any proceedings in which he is a party or a witness, provided
that, on the occasion when the issue or the admission or requirement of the
evidence falls to be determined, he or she consents to the determination of the
issue or, as the case may be, the admission or requirement of the evidence
notwithstanding the provisions of section 4(1).
[319]
For the
purposes of section 4 and section 7, the following are circumstances ancillary
to a conviction:
(a) the offence or offences which were the subject of that conviction;
(b) the conduct constituting that offence or those offences; and
(c) any process or proceedings preliminary to that conviction, any sentence
imposed in respect of that conviction, any proceedings (whether by way of
appeal or otherwise) for reviewing that conviction or any such sentence, and
anything done in pursuance of or undergone in compliance with any such
sentence. Ibid., section 4(5).
[320]
Rehabilitation
of Offenders Act 1974, section 4(2). This provision is subject to any
order made by the Secretary of State under section 4(4) of the Act.
[321]
Ibid.
[322]
Ibid
section 4(3).
[323]
Ibid.
There are some important exceptions for certain professions (for example
medical practitioners, lawyers and child care workers) and offices (for example
judicial appointments and others involved in law enforcement).
[324]
For the
purposes of section 9, “specified information” means information imputing that
a named or otherwise identifiable rehabilitated living person has committed or
been charged with or prosecuted for or convicted of or sentenced for any
offence which is the subject of a spent conviction: Ibid section 9(1).
[325]
Rehabilitation
of Offenders Act 1974, section 9(2).
[326]
Robertson
& Nicol Media Law (4th ed Penguin 2002) at 118.
[327]
Defined by
Griffiths LJ in Herbage v Pressdram [1984] 2 All ER 769 as “published
with an irrelevant, spiteful or improper motive”.
[328]
Ibid.
[329]
Home Office,
17 July 2002. A copy of this paper is available at http://www.homeoffice.gov.uk/docs/breakcircle.pdf.
[330]
Ibid at 5.
[331]
Between the
need to protect the public (by excluding certain specific offences and
offenders from the application of the non-disclosure scheme) and the competing
aim of the rehabilitation of offenders and all that entails.
[332]
Ibid at
5-6.
[333]
The Review
gives an example based on samples extracted from the Offenders Index based on
Standard List offences, which showed that “whereas 3,537 offenders were
sentenced to custody for over 30 months in 1974 (and therefore unable to
benefit from the protection of the [1974 Act]), the number had risen to over
11,000 by the year 2000”. It is further noted that this difficulty is
underlined by the fact that “the total number of offenders has not increased
greatly between 1974 and 2000”. Ibid at 6.
[334]
Home Office Breaking
the Circle: A Summary of the Views of Consultees and the Government Response to
the Report of the Review of the Rehabilitation of Offenders Act 1974 (April
2003), available at http://www.homeoffice.gov.uk/docs/roaresponse.pdf
[335]
Ibid at
7. It should also be noted that the Review suggested that separate
disclosure periods should be set for young offenders (aged 10-17); provision
for such offenders has already been made in this jurisdiction in the Children
Act 2001, considered above at paragraphs 5.02-5.07.
[336]
Ibid at
8. It would appear that the limitations prescribed by section 5(1) of the 1974
Act (set out above) are not affected by this recommendation.
[337]
Ibid at
9.
[338]
Home Office Breaking
the Circle (17 July 2002) at 30. A copy of this paper is available at http://www.homeoffice.gov.uk/docs/breakcircle.pdf.
[339]
Home Office Breaking
the Circle: A Summary of the Views of Consultees and the Government Response to
the Report of the Review of the Rehabilitation of Offenders Act 1974 (April
2003), available at http://www.homeoffice.gov.uk/docs/roaresponse.pdf
at 10. This proposal mirrors the arrangements in place in England for
young offenders, where a split has been made between custodial sentences of
less than 24 months, and 24 months and over.
[340]
Including
“that part served in prison and that part served on licence in the community”: ibid
at 10.
[341]
Delivered on
the opening of parliament, 26 November 2003. Full text available at http://www.number-10.gov.uk/output/Page4897.asp.
[342]
Criminal
Law (Rehabilitation of Offenders) Act 1986.
[343]
Part VIIC of
the Crimes Act 1914, giving effect to the recommendations of the
Australian Law Reform Commission Report on Spent Convictions (Report No.
37 1987).
[344]
Spent
Convictions Act 1988.
[345]
Criminal
Records Act 1991.
[346]
Criminal
Records (Spent Convictions) Act 1992.
[347]
Ian Huntley
was convicted at the Old Bailey on 17 December 2003 of the murder of Holly
Wells and Jessica Chapman. For further information, see http://www.bichardinquiry.org.uk/about.
[348]
It is
important to note that the provisions of the Rehabilitation of Offenders Act
1974 governing spent convictions were not relevant to the Huntley
case as he had not been convicted of the offences in question.
Nevertheless, the point remains that the complexity of non-disclosure schemes,
whether in relation to allegations of criminal wrongdoing or actual criminal
records, can lead to confusion as to the extent of the obligation of
non-disclosure and ultimately to the misapplication of such legislative
schemes.
[349]
Launched on
18 December 2003 by the Home Secretary. The full terms of reference of
the Bichard Inquiry are: “Urgently to enquire into child protection procedures
in Humberside Police and Cambridgeshire Constabulary in the light of the recent
trial and conviction of Ian Huntley for the murder of Jessica Chapman and Holly
Wells. In particular to assess the effectiveness of the relevant
intelligence-based record keeping, the vetting practises in those forces since
1995 and information sharing with other agencies, and to report to the Home
Secretary on matters of local and national relevance and make recommendations
as appropriate”. For further information see http://www.bichardinquiry.org.uk.
[350]
See the list of organisations which obtained funds from the court poor box in
2002 and 2003 in Appendices D and E to this Paper. For a discussion of
the definition of “charities” and the different categories of trusts for
charitable purposes, see paragraphs 3.01-3.24.
[351]
See paragraphs 1.21ff.
[352]
See paragraphs 2.81.
[353]
See paragraph 2.43.
[354]
See paragraph 1.29.
[355]
See generally the report by the Law Reform Commission entitled The
Indexation of Fines – a Review of Developments (LRC 65 – 2002). The Government’s legislative
programme for the Dáil session commencing on 27 January 2004 states that draft
heads of a Bill are expected to be published in 2004; see the statement of Mary
Hanafin TD, Chief Whip, at http://www.taoiseach.gov.ie/index.asp?locID=186&docID=-1.
[356]
See paragraph 6.40.
[357]
See paragraphs 2.83-2.90.
[358]
It should be reiterated that there are significant difficulties in relation to
the formulation of an appropriate mechanism for ensuring that such
disbursements are done in an objective, accountable, and tax compliant, manner.
See further paragraphs 3.32-3.48.
[359]
See
paragraphs 2.83-2.90.
[360]
See
paragraph 3.25.
[361]
Section
6(12)(b) of the Criminal Justice Act 1993 provides that: “references to
conviction of a person include references to dealing with a person under
section 1(1) of the Probation of Offenders Act 1907”.
[362]
See
paragraph 2.130.
[363]
At
paragraphs 2.98-2.105.
[364]
See paragraph
6.25.
[365]
The Courts
and Courts Officers Act 2002 provides that these limits be raised to
€20,000 and €100,000 respectively, but commencement orders for these changes
have not been made to date.
[366]
Section 9 of
the Criminal Damage Act 1991 provided: “On conviction of any person of
an offence under section 2 of damaging property belonging to another, the
court, instead of or in addition to dealing with him in any other way, may, on
application or otherwise, make an order (in this Act referred to as a
"compensation order") requiring him to pay compensation in respect of
that damage to any person (in this section referred to as the "injured
party") who, by reason thereof, has suffered loss (other than
consequential loss).” The inclusion of this compensation provision was
based on the recommendation of the Law Reform Commission in its Report on
Malicious Damage (LRC 26-1988).
[367]
Replacing
section 35(1) of the Powers of Criminal Courts Act 1973 as substituted
by section 67(1) of the Criminal Justice Act 1982.
[368]
(1979) 68 Cr
App R 56. Much of the analysis of the principles set out in this decision
are drawn from the commentary by Boyle & Allen Sentencing Law and
Practice in Northern Ireland (SLS Publications 1983) at 97-101. The
Northern Ireland courts are also empowered to make compensation orders on the
basis of comparable statutory provisions, now contained in the Criminal
Justice (Northern Ireland) Order 1994.
[369]
Ibid at
97.
[370]
This was
confirmed in R. v White [1996] 2 Cr App R (S) 58, where the Court of
Appeal discouraged criminal courts from embarking on complicated investigations
which might require the court to embark on a prolonged course of hearing
evidence in order to determine questions as to the fact or the amount of
loss. See Archbold Criminal Pleading, Evidence and Practice (London
Sweet & Maxwell 2003) at 5-411 – 5-430.
[371]
Thus, it has
been confirmed that if property is stolen and recovered undamaged, it is not
open to the court to make a compensation order in respect of the value of the
goods: R. v Hier 62 Cr App R 233, R. v Boardman 9 Cr App R (S)
74, R. v Tyce 15 Cr App R (S) 415.
[372]
This
principle was placed on a statutory footing by section 130(11) of the Powers
of Criminal Courts (Sentencing) Act 2000. Archbold notes that “[a]
compensation order should not be made unless it is ‘realistic’ in the sense
that the court is satisfied that the offender either has the means available,
or will have the means to pay the compensation within a reasonable time”: ibid
at paragraph 5-423.
[373]
Boyle &
Allen op cit at 99. This principle is confirmed by Archbold, see
paragraph 5-416.
[374]
[1977] Crim
LR 624, applying the decision of the Court of Appeal in R. v Inwood 60 Cr
App R 70.
[375]
R. v Chambers 3 Cr App R (S) 318. However, the English courts have
generally discouraged the making of compensation order on the basis that the
offender will raise the funds by selling the family home, particularly if his
or her family will be made homeless as a result: R. v Butt 8 Cr App R
(S) 216, R. v Hackett 10 Cr App R (S) 388.
[376]
Archbold Criminal
Pleading, Evidence and Practice (London Sweet & Maxwell 2003) at 5-429.
[377]
It should be noted that the figures for 2003 are provisional. Details of
payments made to the court poor box may not include details of “direct
payments” made to charities at the direction of the Court.
[378]
It should be noted that the figures for 2003 are provisional. Details of
payments made to the court poor box may not include details of “direct
payments” made to charities at the direction of the Court.
[379]
It should be noted that these figures are provisional. This Appendix may
not include details of payments where the monies were paid directly to a
particular charity at the direction of the Court.