DPP v Morgan
| Jurisdiction | Ireland |
| Judge | Mr Justice Edwards |
| Judgment Date | 23 June 2022 |
| Neutral Citation | [2022] IECA 148 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record No: 2020/246 |
[2022] IECA 148
Edwards J.
McCarthy J.
Kennedy J.
Record No: 2020/246
THE COURT OF APPEAL
JUDGMENT of the Court delivered by Mr Justice Edwards on the 23rd of June, 2022.
This is an appeal against a decision of the High Court on the 18th of November 2020, to issue a bench warrant in the exercise of the inherent jurisdiction of that court, to secure the attendance of the appellant before a sitting of the High Court at which he potentially faced being committed to prison for non-payment of a sum of €243,583 due on foot of a confiscation order made under s.9(1) of the Criminal Justice Act 1994 (“the Act of 1994”).
The point at issue is a net one, and concerns whether the High Court in fact had jurisdiction to issue a bench warrant in those circumstances.
On the 22nd of February 2008, the appellant was convicted by a jury in the Dublin Circuit Criminal Court of managing a brothel contrary to s.11(a) of the Criminal Law (Sexual Offences) Act, 1993 (“the Act of 1993”), and further of organising prostitution contrary to s.9 of the Act of 1993, in the period from August to October, 2005. On the evidence, the appellant had operated an extensive commercial brothel, with numerous employees and properties involved, including an apartment at 322 Bachelor's Walk which had been placed under garda surveillance. The Dublin Circuit Criminal Court had received evidence from a prosecution witness to the effect that, extrapolating from records and documents seized during the investigation into the appellant's crimes, the appellant's annual net income from his criminal sex trade operations was an estimated €4,000,000.
On the 7th of March 2008, the appellant was sentenced to three years' imprisonment and fined €24,000. The appellant appealed his conviction to the Court of Criminal Appeal but was unsuccessful.
On the 28th of June 2013, following the Court of Criminal Appeal's dismissal of the appellant's appeal against his convictions, the Dublin Circuit Criminal Court made a confiscation order pursuant to s.9 of the Act of 1994, requiring the appellant to pay to the State the sum of €252,980.33, this being the amount of benefit, calculated on the basis of documents and records seized during the garda investigation, believed to have accrued to the appellant during a 22 day period during which his brothel at 322 bachelor's Walk in Dublin 1 was under active garda surveillance.
On the 31st of July 2018, the Court of Appeal dismissed an appeal brought by the appellant against the confiscation order. See this Court's judgment bearing the neutral citation [2018] IECA 282. However, the amount of benefit found was varied to €243,583 to reflect the confiscation of €9,397.02 in the form of cash receipts earned by the brothel at the time of arrest.
On the 28th of May 2019, an Originating Notice of Motion was issued by the respondent, returnable for the 24th of June 2019, wherein the respondent sought to report to the High Court that the said sum of €243,583 being due and enforceable on foot of the said confiscation order remained unpaid. The respondent requested the High Court in exercise of its power pursuant to s.19(2) of the Act of 1994, to order that the appellant be imprisoned for a term of three years for non-payment of the sum due on foot of the said confiscation order. The said motion was grounded upon an affidavit of Garda Sean Walsh, sworn on the 28th of May 2019, deposing to most of the essential facts. He omitted, however, to explain that the sum the subject matter of confiscation had been varied from €252,980.33 to €243,583 by the Court of Appeal. This omission was addressed in a supplemental affidavit sworn on the 9th of June 2019, by the said Garda Sean Walsh, and subsequently filed.
The application for the reliefs sought in the Originating Notice of Motion of the 28th of May 2019, did not proceed on the 24th of June 2019 (the reason is unstated), and the application appears to have been adjourned.
On the 15th of October 2019, a further Notice of Motion was issued in the same matter, this one returnable for the 21st of October 2019, wherein the DPP sought an order for the attachment of the appellant, and in the alternative, an order directing the issue of a bench warrant. There was no separate affidavit grounding this motion, which stated that it was grounded on the affidavits of Garda Sean Walsh of the 28th of May 2019 and the 9th of June 2019 (alluded to at paragraph 7 above). Ostensibly this motion was seeking the attachment order/bench warrant prayed for therein, in further support of the earlier motion. Again, this further motion did not proceed on its stated return date, but rather was also adjourned.
Both motions ultimately proceeded and were heard together on the 18th of November 2020, before Coffey J. in a remote hearing conducted by video link. During this hearing counsel for the appellant disputed that the court had jurisdiction to make an order for attachment, or in the alternative, to issue a bench warrant, in circumstances where there was no statutory power to do so. However, the trial judge acceded to the application in an ex-tempore ruling and opted to grant a bench warrant in the exercise of what he considered to be his inherent jurisdiction.
There is no transcript of the proceedings, or indeed of the trial judge's ex tempore ruling. However, there is a brief note of that ruling, agreed by counsel. The note is in the following terms:
“I am going to accede to the application to grant a bench warrant. This application has been brought on notice to the respondent and the respondent is represented. The respondent has not brought an application to reduce the sum as determined by the Circuit Court and on appeal. There is a prima facie entitlement on the DPP to bring enforcement proceedings. Considering the fairness to the defendant, his personal attendance should be secured and so I am going to avail of my inherent jurisdiction.”
The appellant now appeals against the granting of the bench warrant.
The appellant rests his appeal on the following grounds:
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(i) The jurisdiction to issue a bench warrant does not extend to proceedings in the nature of the proceedings before the Court.
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(ii) The issue of a bench warrant relates to the conduct of criminal proceedings. The appellant is not the subject of criminal proceedings.
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(iii) The appellant was not in breach of any requirement to attend court such as would warrant the issue of a bench warrant.
The alternative reliefs sought from the trial judge were (i) the issuance of a bench warrant (ii) an order of attachment (the relevant Notice of Motion sought them in reverse order, but nothing turns on that). We think the best way of addressing the issues arising on this appeal in this case is to proceed as follows. First, we will consider the applicable legislative framework to determine the legal context in which these alternative reliefs were sought and offer some preliminary observations. Secondly, we will consider the nature of a bench warrant and the circumstances in which it may be granted. Thirdly, we will consider the nature of an order of attachment and the circumstances in which it may be granted. Fourthly, as it may bear upon the appropriateness of the relief, we will then consider whether the powers of the High Court under s.19(2) of the Act of 1994 involve the exercise of civil or criminal jurisdiction, and fifthly, we will examine the appropriateness of the relief that was actually granted.
The legislation at the centre of this case is the Criminal Justice Act 1994. The long title to that act provides that it is:
“An Act to Make Provision for the Recovery of the Proceeds of Drug Trafficking and Other Offences, to Create an Offence of Money Laundering, to Make Provision for International Co-operation in Respect of Certain Criminal Law Enforcement Procedures and for the Forfeiture of Property Used in the Commission of Crime and to Provide for Related Matters.”
The scheme of the act is that it is divided into 8 parts, each designated by the Roman numerals I to VIII. Part I is concerned with “Preliminary Matters”, Part II is concerned with “Confiscation”, Part III is concerned with “Enforcement, etc. of Confiscation Orders”, and Parts IV to VIII, inclusive, are concerned with “Money Laundering”, “Drug Trafficking Offences at Sea”, “Drug Trafficking Money Imported or Exported in Cash”, “International Co-operation” and “Supplementary matters”. While we must have regard to the Act as a whole, and will do so, it is clear that those parts of it that are directly relevant to these proceedings are Parts I, II, and III, respectively.
Within Part I, s.3 comprises a lengthy interpretation section which sets forth detailed definitions of various terms that appear in the Act. We will have regard to these definitions to the extent necessary. However, s.3 (16)(f) may potentially be relevant, the respondent expressly placing reliance on it in supplemental written submissions filed in relation to the appeal, and it provides:
“3.-(16) The following provisions shall have effect for the interpretation of this Act, namely,
(f) proceedings for an offence are concluded—
(i) (I) when the defendant is acquitted on all counts, or
(II) where the provisions of section 23 of the Criminal Procedure Act 2010 apply to the proceedings –
(A) when the time period for an appeal under that section has expired and no appeal has been made,
(B) where an appeal has been made but no re-trial is ordered, at the conclusion of the appeal proceedings under the section, or
(C) where a re-trial has been ordered, at the conclusion of the...
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The Director of Public Prosecutions v Martin Morgan
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