The Court of Appeal has overturned a warrant for the arrest of a convicted brothel keeper for alleged contempt over non-payment of €243,000 profits to the State.
The bench warrant for Martin Morgan’s arrest was issued by the High Court two years ago for alleged contempt over failure to pay €243,000 to the State from profiting from his criminal activity.
The appeal court signalled that an alternative procedure might be followed by the Director of Public Prosecutions (DPP) to have Morgan come before the court to explain his alleged contempt.
In the circumstances of the case, the High Court had no jurisdiction to issue a bench warrant in November 2020 in a bid to have him appear before it where he potentially faced being committed to prison over the non-payment, the three-judge COA ruled on Thursday.
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Because it had not been demonstrated Morgan was in default of a process that had commanded his attendance in court, the decision to issue a bench warrant for his arrest to secure his attendance was not appropriate, the court ruled.
Mr Justice John Edwards stressed it remains open to the DPP, in principle, and on foot of adequate evidence, to bring a “fresh and appropriately drafted” application under section 19.2 of the Criminal Justice Act 1994 to have Morgan attached and brought before the High Court to explain why he should not be found in contempt, and committed to prison, for noncompliance with the confiscation order.
The law, the judge outlined, prevents a debtor being jailed for non-payment of a debt but a debtor might conceivably be jailed for committing a contempt of court in debt related proceedings.
Proceedings by the DPP under section 19.2 seeking the imprisonment of a person alleged to have failed to comply with a confiscation order are, in substance, proceedings for criminal contempt, he said.
The general rule is the method used to secure an accused person’s attendance before a court should be least restrictive of their liberty, he said. There was no evidence Morgan was requested to attend before the High Court voluntarily, whether it was possible or practical to do so and no evidence of any process commanding his attendance that he was in default of.
Morgan, aged in his late fifties, who had operated the brothel in a Dublin apartment and in 2020 had an address in Highbury Road, London, previously claimed he had spent the benefits of his criminal activity on business expenses.
He denied organising prostitution and running the brothel in the Bachelors Walk apartment between August and October 2005 but was found guilty by a jury and jailed for three years in 2008.
The Circuit Criminal Court later granted an order to confiscate some €252,000 in assets based on calculations of what the net profit of the business was likely to have been during the 22 days under which the apartment was under Garda surveillance.
During Morgan’s failed appeal in 2018 against the confiscation order, the COA heard the State at one stage alleged the brothel was generating some €4 million profits a year.
The Criminal Assets Bureau (Cab) subsequently applied to the High Court to enforce the confiscation order. While the original order had been €252,583, that was reduced by €9,000 in cash seized by gardaí from Morgan and forfeited to the State.
It was argued section 19.2 of the 1994 Criminal Justice Act provides for jail of up to three years for noncompliance with a confiscation order requiring a defendant to pay up to €250,000. As Morgan was no longer in the jurisdiction, it was sought to first secure his attendance at court through an arrest warrant which could be used to extradite him.
Morgan did not attend the 2020 hearing where his lawyers, in disputing the bench warrant process being pursued, argued he had filed an affidavit a year earlier explaining his position and there had been no attempt to investigate what he said other than the State not accepting it.
The High Court agreed to issue a bench warrant to secure Morgan’s attendance for reasons, including he was on notice of the application and represented by legal advisers.
