The Director of Public Prosecutions v Martin Morgan

JurisdictionIreland
CourtSupreme Court
JudgeMr Justice Peter Charleton
Judgment Date29 June 2023
Neutral Citation[2023] IESC 16
Docket NumberSupreme Court appeal number: S:AP:IE:2022:000145 [2022] IECA 148 High Court record number: 2019/11 CAB Circuit Criminal Court bill number: 1130/06
Between
The People (at the suit of the Director of Public Prosecutions)
Prosecutor/Appellant
and
Martin Morgan
Accused/Respondent

[2023] IESC 16

O'Donnell CJ

Charleton J

Hogan J

Murray J

Collins J

Supreme Court appeal number: S:AP:IE:2022:000145

Court of Appeal record number: 2020/246

[2022] IECA 148

High Court record number: 2019/11 CAB

Circuit Criminal Court bill number: 1130/06

An Chúirt Uachtarach

The Supreme Court

Crime & sentencing – Sexual offences – Prostitution offences – Forfeiture order – Criminal Justice Act 1994

Facts: The respondent had been convicted of organisation of prostitution offences in 2008 by a Circuit Court. A subsequent application was made to the High Court for a forfeiture order, which was granted but not paid. The appellant then applied for a bench warrant to secure the respondent’s attendance. The respondent appealed the grant of that warrant to the Court of Appeal, which overturned the grant. The matter now came before the Supreme Court.

Held by the Court, that the case involved multiple issues regarding the issues which arise under the power of the High Court in forfeiture proceedings under the 1994 Act. Having considered the judgments of the Court of Appeal and the High Court, the Court was satisfied that the High Court had jurisdiction to grant such a warrant but had not considered whether it was necessary to issue. On that basis the grant of the warrant would be overturned.

Appeal dismissed.

Judgment of Mr Justice Peter Charleton delivered on Thursday 29 June 2023

1

While the organisation of prostitution offences of which the accused was convicted, by a Circuit Court jury in 2008, date back as far as 2005, resulting in both imprisonment and a fine, the delay in finalising this case is, to a degree, accounted for by the subsequent application in the High Court for, and making of, a forfeiture order under the Criminal Justice Act 1994. This targeted what had been illegally earned. The legislation prescribes that failure to pay the amount forfeited may result in imprisonment, with maximum, but discretionary, penalties related to the amount. When default occurred on the part of the accused, in paying over the amount forfeited, the Director of Public Prosecutions applied, on notice to the accused, to imprison him for a term beyond that already served. Out of a surfeit of prudence, the DPP felt that the accused, though legally represented by solicitor and counsel, should be present were the High Court to add to his jail sentence and thus asked the judge to issue a bench warrant to secure his attendance. That was granted. The accused appealed the issue of that warrant to the Court of Appeal which ruled that while there may be power to order the arrest of the accused for the purpose of this process, that some lesser process, such as attachment and committal, ought to have been used, and thus overturned the High Court order for a bench warrant to secure the accused's attendance.

2

Consequently, the issues which arise concern the power of the High Court in forfeiture proceedings under the 1994 Act, where the decision is whether to add to an existing prison sentence because of monetary default, and the fixing of that sentence, to secure the attendance of the accused by issuing a bench warrant. Of the nature of this process, which adds to an existing penalty of imprisonment and fine, there has already been, firstly, a criminal trial and the imposition of a penalty and, secondly, a forfeiture amount has already been set in respect of the illegal earnings of the accused and, finally, default on the part of the accused in paying that amount.

Determination
3

In the Determination of this Court to enable a further appeal from the Court of Appeal, [2023] IESCDET 16, and the subsequent case management, the appeal has been focused on these issues:

1. When does a criminal case end, in particular under the Criminal Justice Act 1994, as amended, where a confiscation order remains unsatisfied?

2. If a criminal case is not continued in the Circuit Court but an application for imprisonment in default of compliance with a confiscation order under the 1994 Act is made in the High Court, does the case then assume the character of a civil case whereby the criminal case is brought to an end?

3. During an application under the 1994 Act in the High Court, is there an inherent power in the court, be that the court of trial or the court where a default imprisonment order may be made on non-payment of a confiscation order, to order the accused arrested under warrant to make answer in person before the court?

4. If there is such a power, what is the origin of that power, under the Constitution and fair procedures, or under common law, and, if it is a power at common law, has that been superseded and thus abolished by the provisions of the 1994 Act or is there an inherent power in the High Court to order that someone who may be imprisoned for a substantial period be brought before the court under arrest to answer and give explanation in respect of default?

5. Could the High Court, notice of the application being proved, and the accused being represented for the purpose, it seems, of protesting jurisdiction, proceed in the absence of the accused to imprison him for up to 3 years?

Steps in the proceedings
4

On 22 February 2008 the accused was convicted in the Dublin Circuit Court of running a brothel contrary to s 11 of the Criminal Law (Sexual Offences) Act 1993 and also of organising prostitution under s 9 of the same legislation. On the basis of the evidence accepted as leading to this verdict, it had been proved that the accused had operated a large commercial brothel, with numerous sex-workers in various forms of accommodation, including an apartment on Bachelor's Walk in the city centre. This premises had been placed under garda surveillance. At the time of sentencing for the crimes the DPP also indicated an intention to also seek a confiscation order. The accused appealed his conviction to the Court of Criminal Appeal. This was unsuccessful. See the judgment given by Finnegan J of 5 July 2011; [2011] IECCA 36. The accused asserted that a point of law of exceptional public importance arose from his conviction and sought leave to appeal to the Supreme Court but that was refused – judgment given by Finnegan J on 21 December 2011; [2011] IECCA 98. By this stage the accused had already served the period of imprisonment imposed on him.

5

That, absent the intervention of the Criminal Justice Act 1994, would ordinarily end the criminal proceedings against the accused. About 18 months after the last ruling of the Court of Criminal Appeal, however, in June 2013 on the application of the DPP, the Dublin Circuit Criminal Court assessed the level of return to the accused from his illegal operations and consequently made a confiscation order in the sum of €252,980.33. An unsuccessful appeal was then brought by the accused to the Court of Appeal against that decision; though in the judgment of Hedigan J, of 31 July 2018, the confiscation amount was varied downwards to €243,583 giving credit for cash funds seized in the brothel at the time of arrest; [2018] IECA 282. Matters now shifted to the High Court, as the 1994 Act envisages.

6

On 28 May 2019, the DPP issued an originating notice of motion in respect of the failure of the accused to pay the €243,583, or any sum thereof, and seeking an order for his imprisonment in respect of that default. Those papers were served on and accepted by the solicitors acting for the accused. That was normal; they were on record in the proceedings. Further to that, on 15 October 2019, the DPP issued a subsequent motion seeking an order for the attachment of the accused or, in the alternative, an order directing the issue of a bench warrant. Both of these, if granted, would compel the attendance of the accused in the High Court for the hearing of the assessment of how much, if any, further of a term of imprisonment the accused should serve due to default of payment. Counsel and solicitors acting for the accused attended at the High Court, answering to the motion on behalf of the accused. On 18 November 2020, Coffey J acceded to the application of the DPP to issue a bench warrant. It is uncertain, beyond the fact that both the DPP and the accused were represented, as to what submissions were made to the High Court. It suffices that Coffey J, in a concise ruling, considered that he had the power to issue a bench warrant and that, in the circumstances, should do so:

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.

7

That decision was appealed by the accused. On 23 June 2022 the Court of Appeal, judgment of Edwards J, allowed the appeal, ruling that rather than a bench warrant some less intrusive or burdensome form of compulsion should have been used. The judgment also makes it clear that it remained open to the DPP to bring a further application for the attachment of the accused; [2022] IECA 148.

8

Before considering the reasoning of the Court of Appeal, it is appropriate to set out the legislative provisions whereby the 1994 Act enabled the trial court following conviction to make a confiscation order in addition to a prison sentence or fine in respect of certain offences, usually in the Circuit Court, and moved the jurisdiction of imposing an additional penalty in default of payment of that confiscation order, to the High Court.

Legislative overview
9

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