Eire: Motoring Convictions – v – The Courts Poor Box

By Tom Harrington LL B December 2015

Introduction

Driving is a privilege, not a right and it should be taken away whenever it is
abused. And quite a high number of motoring prosecutions are avoided
by making a contribution to the court poor box. Many people are
familiar with the basic concept of the court poor box system. A
person 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 intention not to re-offend. Where the charity
involved is directly related to the crime, 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, 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 (PBS). Proponents of the court PBS
argue that reform of the system could retain its inherent benefit,
whilst curing any perceived defects.
2
Although some critics of the system take the view that it would be
best to abolish the court PBS entirely. The Public Accounts Committee
(PAC) when considering the 1999 Annual Report of the Comptroller and
Auditor General, expressed concern that the court PBS operated in a
manner which may deprive the Exchequer of funds raised.
3
Against this background the Law Reform Commission (LRC) decided to
examine the court PBS as part of its Second Programme for Law Reform.

Present Situation

Almost 100 motorists are continuing to avoid penalty points in District Courts every month
by making contributions to the courts poor box, despite a High Court
ruling last year (2014) branding the practice “incorrect”.
Figures released by the Department of Justice show that 692 drivers
escaped having points added to their licence between January and July
of 2015 – an increase of 162 in just two months. Despite this
ruling in the High Court in February 2014 by Mr Justice Gerard Hogan
during a judicial review
4
hearing that stated the use of the poor box for penalty point
offences was specifically barred under the Road Traffic Act 2010.

An analysis of how the 66 district courts dealt with PPs shows the CPB was used as a
sanction for PPs offences 996 times in 2014 and 530 times in the
first five months of 2015. Under the legislation it found that the
imposition of penalty points and a fine was mandatory on conviction.
The poor box is a non-statutory system used by district courts to
impose a fine to be given to charity instead of a criminal
conviction. However, Judge Hogan ruled this legislation removed the
discretion of judges to use the poor box for penalty points offences
and said to do so was “incorrect”. Despite this judgement
being sent to all District Court judges, figures released via a
Parliamentary Question in the Dail (Parliament) show more than 1,526
drivers avoided penalty points between 2014 and May 2015 after they
made a donation.

Susan Gray, spokeswoman and founder of road safety group PARC, said she was
disappointed to see such a high rate of usage of the poor box,
against the express intentions of the legislation. She said:

We
still have too many people getting away with the court poor box
instead of having penalty points applied to their licence. The points
system was designed to act as a deterrent for those breaking road
traffic laws and to save lives. Contributions to the poor box will
never achieve this”.

Poor Box Origins

It is undisputed that the court poor box system is a long established tradition,
predating the foundations of the state.
5
It has been suggested by some that its origin can be linked to the
alms box as administered by the church in feudal times. Others
suggest that its roots can be found in the Brehon laws; Corley
describes the Brehon law as providing” the 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 this purpose; this officer was
empowered to levy a rate on landowners for the maintenance of the
“wretched and wandering poor”. Since this provision of
the Brehon law, the concept of 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 the year 1275.
7

McNamara notes that:
“since the 18
th
year of Elizabeth, 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, i.e. impose a
penalty other than a fine which could make a contribution to the
court poor box, while the judge was of the opinion that such penalty
was more appropriate.

CPB and Minor Offences

In general, the CPB is applied in respect of minor offences e.g. motoring, 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 are some
examples of the most common offences where the CPB has been used as a
disposition:

  • Public order offences

  • Offences in relation to property

  • Drugs offences

  • Offences involving animals

  • Offences against persons

  • Safety at work

The CPB is also frequently applied in relation to offences under the Road Traffic Act
(1961) as recommended and in particular offences contrary to Section
52/1(careless driving), Section 53 (dangerous driving), Section 47
(exceeding a speed limit) and Section 56 (driving without insurance).

Arguments For and Against the CPB

The following is a synopsis of the many arguments in favour of retaining the court PBS:

  • It may avoid or reduce the need to impose a conviction.

  • By subscribing to the CPB a conviction or custodial sentence may be
    avoided or reduced.

  • The permancy of a conviction could affect the accused to obtain a visa
    for travel or work abroad.

  • The offender has never previously committed the offence in question (or
    any other offence).

  • The offender is genuinely remorseful.

  • The age of the offender justifies a reduced punishment.

  • The court can determine an appropriate punishment for the commission of
    a criminal offence having regard to all the circumstances of a case.

  • Charities of victims of criminal offences benefit from the payments which are
    made to the CPB.

Again the following is a synopsis of the principal arguments against the present court
PBS:

  • The CPB lacks a clear legal basis.

  • It impairs confidence in the administration of justice.

  • It causes offenders whose circumstances are similar to be treated
    differently.

  • The court PBS affords a means of “buying” one’s way
    out of a conviction and/or a term of imprisonment.

  • The court PBS causes offenders whose circumstances are similar to be
    treated differently, contrary to Article 40.1 of the Constitution.
    9
    Put simply, one aspect of this is that it creates “one law for
    the rich and another for the poor”.

  • Also, some offences are not trivial and may merit significant fines or
    terms of imprisonment.

  • There are alternative means of devising an appropriate outcome e.g.
    Community Service Orders; Compensation Orders and the probation of
    Offenders Act 1907.

Recommendations by the LRC

The Law Reform
Commission provisionally recommends that the court PBS be reformed by
avoiding inappropriate features which currently exist but retaining
its positive and important aspects. It also provisionally recommends
that the CPB 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 contribution” which also
accords with the principles of restorative justice.

CPB Benificaries

A total of 800
charities benefited from the fund of the CPB last year, with overseas
charities the biggest winners, mainly thanks to the direction by the
Kerry district court judge James O’Connor.

Offenders in Kerry
contributed €883,527 – almost half the total contributed
by 40 court offices around the country. International charities
received almost €700,000 of the above amount contributed to the
poor box in Kerry.

Conclusion

One of the most
significant factors which underlie a decision to apply the CPB is a
concern to avoid imposing a conviction. Having regard to,
inter
alia,

the permancy 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 CPB. By enabling the court to reach a satisfactory
method of disposing of the case which does not depend on a
conviction, the CPB system mitigated the harshness of a criminal
justice system in which a conviction is “for life”.

In local district
courts, it is evident that the CPB is a very popular method of
avoiding a conviction by making a contribution. There are good
arguments for and against the continued use of the CPB system. The
CPB is a long established tradition predating the foundations of the
state. By the CPB monies going to charities (at the discretion of the
judge) the exchequer is losing out on considerable revenues. The
recommendations by the Law Reform Commission to introduce a statutory
scheme based on the POA and the CJA should ‘modernise’
the system. It will also, deter wealthy and recidivist criminals
getting away with a ‘fine’ as opposed to a proportional
custodial sentence. In relation to minor motoring offences, many
argue that the CPB system is a fair and equitable means of making
retribution.

The cumulative
effect of penalty points works. The fear of being put off the road
having reached the limit (12 PPS over three years) on one’s
driving licence is a highly preventative measure. Not to enforce it
by an arbitrary and non-statutory practice like the CPB donation,
rides a ‘coach and four’ through our laws and the
governments road safety strategy. Public confidence requires that
justice be dispensed fairly and equitably; the CPB should not be an
option in the gift of the judges, especially when a High Court
judicial review hearing deemed it to be “incorrect”.

1
See generally Von Hirsch
et
al,
Restorative
Justice & Criminal Justice

(Hart 2003).

2
See e.g. Hannon
,”Poor
box system under threat as probe launched into court system”,

Irish Examiner 29 March 2001.

3
23 March 2001. A transcript of the meeting of the PAC is available
at www.irlgov.ie/committees-01/C-publicaccounts/010329/Page1.htm.

4
A judicial review is a way for the High Court to supervise the lower
courts, tribunals and other administrative bodies to ensure that
they make their decisions properly and in accordance with the law.

5
The Irish Free State comprising four fifths of Ireland was founded
in 1921. The Free State came to an end in 1937, when the citizens
voted by plebiscite to adopt a new Constitution. Under the new
Constitution the Irish Free State was named Ireland.

6
Corley.
“The
Court Poor Box”

Westmeath Independent 27 April 2001.

7
Corley
op cit. 2001.

8
Paley (McNamara Ed.)
Law
& Practice of Summary Jurisdiction [under the Summary
Jurisdiction Acts 1848-1884] 5
th
ed. 1866.
London
Sweet, Maxwell, Stevens and Butterworth at 278-279.

9
Fundamental/Personal Rights.
All
citizens shall, as human persons, be held equal before the law.

5

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