The Supreme Court will hear the Director of Public Prosecution’s (DPP’s) appeal seeking the reinstatement of an arrest warrant for a convicted brothel keeper over non-payment to the State of €243,000 in criminal activity profits.
The bench warrant for Martin Morgan’s arrest was issued by the High Court in November 2020 for alleged contempt over failure to comply with the confiscation order.
The Court of Appeal (CoA) overturned the warrant and outlined an alternative procedure that could be followed by the DPP to have Morgan come before the court to explain his alleged contempt.
It held that the High Court had no jurisdiction to issue a bench warrant for his appearance before the court where he potentially faced being committed to prison over noncompliance with the confiscation order.
In principle, it remained open to the DPP, on foot of adequate evidence, to bring a “fresh and appropriately drafted” application under section 19.2 of the Criminal Justice Act of 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, the CoA said.
In appealing to the Supreme Court, the DPP submitted that clarity is needed regarding its power to seek the imprisonment of a convicted person who has failed to comply with a confiscation order.
The DPP said the CoA embarked upon a “wide-ranging review” of the law touching on many aspects of debt collecting.
The CoA erred in deciding that the application to the High Court pursuant to section 19(2) of the Criminal Justice Act of 1994 constituted the start of “separate enforcement proceedings running in parallel with [the] underlying criminal proceedings”.
The prosecution contended that all steps in enforcing the confiscation order, including any subsequent appeals on any aspect of the case, form part of one continuing set of criminal proceedings.
Proceedings for an offence shall not be concluded unless and until a confiscation order has been satisfied and all enforcement steps have been taken, the DPP submitted.
Opposing the grant of leave to appeal, Morgan said the CoA correctly applied the law and the ruling should stand.
In a determination published on Thursday, a three-judge Supreme Court panel said the issues in the DPP’s appeal have “wide implications”.
The court will consider the point at which a criminal case ends, in particular under the 1994 Act, when a confiscation order remains unsatisfied.
It will also interrogate whether a criminal case ends and a civil case begins if an application for imprisonment in default of compliance with a confiscation order is made in the High Court, rather than in a criminal court.
The 1994 Act allows for a person in contempt of a confiscation order to be imprisoned for up to three years.
Morgan, aged in his late fifties, who had operated the brothel in a Dublin apartment and in 2020 had an address on 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. He was found guilty by a jury and jailed for three years in 2008.
The Circuit Criminal Court later granted an order to confiscate €252,000 in assets based on estimations of the net profit of the business during the 22 days gardaí surveilled the apartment.
Based on this surveillance and other factors, the Supreme Court panel said, the State estimated Morgan had an annual income of €4 million.
Following Morgan’s conviction, the Criminal Assets Bureau (Cab) applied to the High Court to enforce the confiscation order. The original €252,583 order was reduced by €9,000 due to gardaí seizing this amount in cash from Morgan.
As he was no longer in the jurisdiction, an arrest warrant was sought to secure Morgan’s attendance at court.
Morgan did not attend the 2020 hearing, but his lawyers, in disputing the bench warrant process, argued he filed an affidavit a year earlier explaining his position. They submitted there had been no attempt to investigate what their client said.
The High Court issued the warrant for reasons including that he was on notice of the application and legally represented.
