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Consultation Paper on the Court Poor Box

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Consultation Paper on the Court Poor Box __________ CONSULTATION PAPER ON THE COURT POOR BOX __________ (LRC CP 31 – 2004) IRELAND The Law Reform Commission 35-39 Shelbourne Road, Ballsbridge, Dublin 4 © Copyright The Law Reform Commission 2004 First Published March 2004 ISSN 1393 – 3140 ii THE LAW REFORM COMMISSION Background 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. Membership 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 iii 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 Research Staff 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) Administration Staff Project Manager Pearse Rayel iv 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 Contact Details Further information can be obtained from: The Secretary The Law Reform Commission 35-39 Shelbourne Road Ballsbridge Dublin 4 Telephone (01) 637 7600 Fax No (01) 637 7601 Email [email protected] Website www.lawreform.ie v 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. vi TABLE OF CONTENTS INTRODUCTION.......................................................................................................1 CHAPTER 1 THE APPLICATION OF THE POOR BOX SYSTEM .........5 Introduction ...................................................................................................................5 A Origins of the Court Poor Box ..........................................................................6 B The Circumstances in which the Court Poor Box is Applied by the Courts....8 (1) How the possibility of making a contribution arises in a particular case ............. 8 (2) The type of offences in respect of which the option of making a contribution to the court poor box arises ..................................................9 (3) The reasons why the option of making a contribution to the court poor box arises .................................................................................................13 (4) The application of section 1(1) of the Probation of Offenders Act 1907 ..........16 (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..............................................................................................17 C The Receipt and Distribution of Court Poor Box Funds ................................19 (1) The amounts which are paid into the court poor box .............................19 (2) The manner in which funds from the court poor box are distributed.....20 CHAPTER 2 A CRITICAL ASSESSMENT OF THE COURT POOR BOX SYSTEM............................................................................21 A Introduction......................................................................................................21 B Arguments In Favour of the Court Poor Box System (As Currently Applied) .......... 21 (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......22 (3) It enables the court to determine an appropriate outcome having regard to all of the circumstances of a case........................................................23 (4) It enables its beneficiaries to assist restorative justice............................34 (5) It provides a mechanism for countering the effects of inflation on maximum fine values ..............................................................................35 (6) Section 1(1) of the Probation of Offenders Act 1907 simpliciter may be inadequate................................................................................................36 (7) It is founded upon the exercise of the discretionary powers of the court ..........36 C Arguments Against the Court Poor Box System (As Currently Applied) .....37 (1) It provides a means of buying one’s way out of a conviction and/or a term of imprisonment ..............................................................................37 (2) It is perceived as a means of buying one’s way out of a conviction and/or a term of imprisonment................................................................38 (3) It causes offenders whose circumstances are similar to be treated differently.................................................................................................40 (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...48 (5) There are alternative means of devising an appropriate outcome ..........49 (6) It impairs confidence in the administration of justice ............................52 (7) The receipt, administration and distribution of court poor box funds form no part of the judicial function .......................................................53 vii (8) Countering the effects of inflation ..........................................................56 (9) Beneficiaries of court poor box funds.....................................................57 (10) The court poor box lacks a clear legal basis ...........................................58 (11) Revenue from fines..................................................................................58 D A Potential Alternative to the Court Poor Box ...............................................59 E Conclusions......................................................................................................62 (1) Summary of arguments in favour of the court poor box system (as currently applied).....................................................................................63 (2) Summary of arguments against the court poor box system (as currently applied) ....................................................................................................65 (3) A potential alternative to the court poor box ..........................................68 (4) Conclusion ...............................................................................................69 CHAPTER 3 THE CHARITABLE AND REVENUE IMPLICATIONS OF THE COURT POOR BOX SYSTEM......................................71 A Introduction......................................................................................................71 B Charitable Law Implications of the Court Poor Box System .........................72 (1) The “Pemsel” classification of charitable trusts .....................................72 C Appropriate Scope of Application of Court Poor Box Funds ........................80 (1) Court poor box funds and the Pemsel classification...............................80 (2) Possibility of “ring fencing” court poor
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