Higher fines for travelling abroad: legal imperfections

Conor White

 

Introduction

On-the-spot fines for breaches of COVID-19 restrictions were introduced late last year. The Health (Amendment) Act 2020 signed into law on 25 October 2020 gives the Gardaí discretion to issue “fixed payment notices” instead of seeking a conviction in the District Court. This appears to have made it significantly easier for the Gardaí to fine people in breach of the penal provisions of regulations.

 

The current rates of fines ranging from €80 to €500 (depending on the “fixed penalty provision”) are laid out in statutory instruments.

 

The Taoiseach said in the Dáil on Wednesday 10 February that the Government intends to increase the rate for fines for travel abroad without reasonable excuse from the current amount of €500 to €2000. Bringing about this change is not as simple as signing a new statutory instrument and could run into other difficulties I explore here.

 

Background to Fixed Payment Notices

Fixed payment notices have been a fixture of Irish law for several decades. (The terms “fixed penalty notice” and “fixed charge notice” are also used.) They arise most often with minor road traffic offences where the Gardaí opt to issue a fine to those accused of an offence instead of prosecuting the offence. It is discretionary because the option to prosecute the offence remains. Additionally, if the fine is not paid within 28 days of receiving notice, the Gardaí then seek a prosecution.

 

There are obvious advantages to this mode of enforcement, explained by McDermott J in Kinsella v DPP [2018] IEHC 474:

 

The purpose of a fixed penalty notice is to provide an erring motorist with a quick and efficient method of acknowledging his wrongdoing and submitting to a lesser penalty than that which might be imposed after conviction. In doing so the motorist also avoids prosecution and the recording of a potential conviction for a criminal offence.

 

Further, no party needs to spend time in court or incur legal expenses. Many of these features are attractive during the pandemic.

 

Arguments against on-the-spot fines are also substantial: the lack of judicial involvement, the ease in which the authorities can impose them and the potential impact especially on people with lower incomes. Some research questions the efficacy of fines in the context of COVID-19 preventative measures.

 

The fixed payment notice creates a choice for the purported offender between paying a fine which effectively guarantees no criminal conviction, or challenging the circumstances of the alleged offence and potentially receiving a conviction, a higher fine and/or imprisonment. Most opt for the former.

 

Current operation of fines for travelling abroad

S.I. No. 29/2021 requires that a person “shall not leave his or her place of residence to go to an airport or port for the purpose of leaving the State without reasonable excuse”. Among the reasonable excuses are for work-related, educational, medical and urgent family reasons. S.I. No. 30/2021 sets a rate of €500 for a fixed payment notice for breaches of this provision.

 

Difficulties with moving to €2000

 

Setting the current maximum of €500 appears to be sensible as it does not radically depart from similar statutory provisions and it seems proportionate to the rest of the legislation. I explore some of the issues with changing this here.

 

(i) Maximum of €500 by law

The Minister for Health’s power to make a specific breach subject to fixed payment notices is provided by sections 31A and 31C of the Health Act 1947, amended by the Health (Amendment) Act 2020. The maximum amount that a Minister may set for a fixed payment notice is €500. An amendment will need to be enacted to permit the Minister to increase the applicable on-the-spot fine.

 

(ii) Legislative inconsistencies

Changing the legislation to increase the ceiling for these kinds of fines will change the punishment framework the Oireachtas has adopted so far. Section 31A(12)(a) of the Health Act 1947 introduced tiers for the courts to use when applying penalties on conviction, providing that subject to paragraph (b) of the same subsection which permits the court to consider aggravating factors, the liability on conviction is:

 

(i) in the case of a first such offence, to a fine not exceeding €1,000 or imprisonment for a term not exceeding one month or both,

 

(ii) in the case of a second such offence, to a fine not exceeding €1,500 or imprisonment for a term not exceeding 3 months or both, and

 

(iii) in the case of a third or subsequent such offence, to a fine not exceeding €2,500 or imprisonment for a term not exceeding 6 months or both.

 

These are clear instructions from the Oireachtas for the courts to follow when determining penalties.

 

Clearly €2000 is greater than the maximum fines for first and second offences. It undermines the logic of the legislation for having the on-the-spot scheme which can provide an efficient compromise for offenders, the Gardaí and the courts. This could be addressed by increasing the thresholds for fines on conviction, but there does not appear to be any demand for these thresholds to be increased for any offence other than for travelling abroad.

 

The government could decide to enforce travel abroad restrictions outside of the current framework and through legislation brought through the Oireachtas. If it is that the harm to society created by unexcused travel abroad is substantially more serious, a specific enforcement regime could be established. The current system for every other offence is then preserved.

(iii) Constitutional considerations

The use of fixed payment notices in relation to offences unrelated to the pandemic  has been relatively uncontroversial in the Irish courts. With fines usually not in excess of €200, litigation is not worthwhile. Much of the case law, such as in Kinsella above, is related to disputes over the service of notice of the fine. Increasing the scope for a fine of this nature to €2000 is uncharted territory.

 

Regarding the scope for potential constitutional issues, Articles 34.1 and 38.1 are relevant, though making any prediction or conclusion in this area is impossible.

 

Article 38.1 says that “No person shall be tried on any criminal charge save in due course of law” and as result provides accused persons with rights. The authors of Kelly (2018) have noted the lack of a clear judicial statement on the difference between a “criminal charge” and one civil in nature (at [6.5.241] onwards). The Supreme Court has outlined indicia suggesting something is a criminal charge, such as it being punitive, the risk of imprisonment for default of payment and features of arrest and detention. (See Kelly for a full discussion or this 2016 LRC Issues Paper, paragraphs 2.08 to 2.14.) For present purposes, the case law does not give a clear answer.

 

Article 34.1 requires that “Justice shall be administered in court”, meaning that there is an opportunity for a fair hearing in front of a judge. David Gwynn Morgan in 2004 suggested that with such a fining mechanism an accused may choose to pursue a line of argument of being “"pressurised" into renouncing his right to a trial before a court”.

 

Final remarks

Selecting the boundaries for fines highlights the difficulties of enforcing unprecedented public health policies to change human behaviour in a democratic country. Issues of efficacy and fairness, not discussed here, are especially important too.

 

Conor White is a member of the of the COVID-19 Law and Human Rights Observatory. He holds a BCL from University College Dublin and recently completed an LLM at the University of Cambridge.

 

Suggested citation: Conor White, ‘Higher fines for travelling abroad: legal imperfections’ COVID-19 Law and Human Rights Observatory (12 February 2021) https://tcdlaw.blogspot.com/2021/02/higher-fines-for-travelling-abroad.html