Supreme Court dismisses appeals holding Fines Act 2014 partially retrospective for pre-implementation defaults.

THE SUPREME COURT

[Appeal No. 17/2018]

Clarke C.J.

McKechnie J.

Dunne J.

O'Malley J.

Finlay Geoghegan J.

BETWEEN

GAVIN OWENS

RESPONDENT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS, THE COMMISSIONER OF AN GARDA SÍOCHÁNA AND THE MINISTER FOR JUSTICE

AND EQUALITY

APPELLANTS

[Appeal No. 18/2018]

BETWEEN

PATRICK DOOLEY

RESPONDENT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS, THE COMMISSIONER OF AN GARDA SÍOCHÁNA AND THE MINISTER FOR JUSTICE

AND EQUALITY

APPELLANTS

Judgment of Mr. Justice Clarke, Chief Justice, delivered the 27th of May, 2019

1. I agree with the judgment about to be delivered by Dunne J. My principal reason for writing this concurring judgment is to make

some observations on the type of issue which has arisen on this appeal.

2. As appears from the judgments of both Dunne J. and Finlay Geoghegan J., the issue which arises concerns the question of whether

the statutory arrangements in respect of the payment of fines, which was introduced when the Fines (Payments and Recovery) Act

2014 (“the Fines Act”) (“the new regime”) came into force on the 11th January 2016, applies to persons such as the respondents in

these two proceedings.

3. The essential changes brought about by the Fines Act was to replace the previous regime (“the old regime”), whereby a court

imposing a fine typically imposed a period of imprisonment which was required to be served if the relevant defendant did not pay the

fine imposed within a stipulated period, with a range of measures which were principally designed to prevent persons automatically

going to prison in default. The simple question which arises on this appeal is as to whether the new regime applies to persons such as

the respondents who were sentenced under the old regime but where the default provisions of the orders made against them had not

been implemented prior to the coming into force of the Fines Act.

4. In passing it should be noted that problems have been encountered in respect of the implementation of the Fines Act but those

issues are not relevant to this appeal. Rather, the simple question is as to whether the Fines Act is retrospective in the limited sense

that it applies in cases where the original fine and default occurred while the old regime was in place.

5. It is clear from the judgments of both Dunne J. and Finlay Geoghegan J. that this apparently straightforward question gives rise to

very difficult questions of interpretation. As Dunne J. points out in her judgment, the interpretation which she places on the legislation

is not itself without difficulty. There are, in my view, difficult questions with reconciling either proposition fully with the text of the

legislation. However, I have, on balance, come to the view that the legislation is partially retrospective for the reasons identified by

Dunne J. in her judgment.

6. But the real point which I wish to emphasise in this judgment is that a court should not really be left with a difficult question of

construction such as this which has the potential to affect the rights and obligations of many individuals. This was not a case where

unusual and unforeseen circumstances arose which had, perhaps, not been envisaged when legislation was passed and where a court

is faced with the difficult task of attempting to apply legislation in such circumstances. Rather it was abundantly clear that there

would be cases, such as the ones which arise on these appeals, where persons were sentenced and in default under the old regime

and where the question of whether the new regime was to apply to them would arise. It would have been a very simple matter for the

legislation to have said, in clear and unambiguous terms, whether it was intended that the new regime was to apply in such

circumstances. But the legislation did not do so. The Court was left with the difficult task of attempting to infer the answer to the

questions which arise on these appeals from various provisions in the legislation and to test the competing propositions by reference

to the question of whether they were consistent with certain sections of the Act. In such cases the Court has to do the best it can

but it is surely not too much to ask that a straightforward question, such as whether new legislation like the Fines Act is to apply

retrospectively, be addressed in a straightforward manner in legislation so as to leave no doubt as to whether the new regime is to

apply in cases initially dealt with under the old regime.

7. That being said I have, as I have indicated earlier, come to the view that the least bad interpretation of the legislation is along the

lines identified in the judgment of Dunne J. I would, therefore dismiss the appeals.