An application seeking the imprisonment of a convicted brothel keeper for default on a payment to the State could have proceeded in his absence as he was notified and legally represented, the Supreme Court has ruled.
The five-judge court refused the Director of Public Prosecution’s (DPP’s) appeal asking it to reinstate an arrest warrant for Martin Morgan, which was issued in November 2020 by the High Court over his non-payment to the State of €243,000 in criminal activity profits.
This warrant, issued to ensure Morgan would personally attend at court for the DPP’s application for his imprisonment for default on the payment, was struck down by the Court of Appeal.
The Supreme Court said the warrant should be quashed, but for different reasons than those identified by the Court of Appeal.
Giving the court’s judgment on Thursday, Mr Justice Peter Charleton said the warrant fell down because the High Court did not consider if it was necessary to issue it and, the Supreme Court found, it was not necessary to issue it.
Morgan, who in 2020 had an address on Highbury Road, London, was legally represented, so his physical presence was not required under the Constitution or the European Convention on Human Rights, the judge said.
Morgan, aged in his late 50s, denied organising prostitution and running the brothel in an apartment in Bachelors Walk, Dublin, 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. The State estimated Morgan had an annual income of €4 million.
In May 2019, the DPP applied to the High Court for an order of imprisonment over the non-payment of €243,000 of the order. The forfeiture sum had been reduced due to gardaí having seized €9,000.
Believing the accused should be physically present as his further imprisonment was at stake, the DPP sought Morgan’s attachment or the issuing of a bench warrant for his arrest.
Morgan did not attend the 2020 hearing of the DPP’s application, 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 judge issued the bench warrant, saying: “Considering the fairness to the defendant, his personal attendance should be secured”.
Mr Justice Charleton, for the Supreme Court, said the “clear intention” of the Oireachtas was that the inherent powers of a criminal court would continue for a High Court judge considering sending an accused to prison for default of a confiscation order. Therefore, a bench warrant could have been issued but only where it is necessary to secure justice.
The judge said Morgan, represented in the Supreme Court by Ferry Solicitors, was entitled to be notified about the process whereby default in paying might result in imprisonment under the Criminal Justice Act of 1994. He could answer the process through his lawyers, Mr Justice Charleton said, adding: “Whether that was effective or not was a matter for him.”
The judge also found there was no contempt of any court order in Morgan deciding to be legally represented and not to appear personally.
Chief Justice Donal O’Donnell, Mr Justice Gerard Hogan, Mr Justice Brian Murray and Mr Justice Maurice Collins all agreed with the judgment.