The Court of Appeal dismissed Martin Morgan’s challenge to a confiscation order arising from his conviction for managing a brothel and organising prostitution, but reduced the amount to €243,583 after accounting for €9,397 seized from him.
The appeal concerned a €252,980.33 order made by Dublin Circuit Criminal Court on 28 June 2013 under section 9 of the Criminal Justice Act 1994. Morgan had been convicted by a jury in 2008. The Court of Appeal judgment, delivered by Mr Justice Hedigan on 31 July 2018, records that the offending took place in 2005 and involved premises on Bachelor’s Walk in Dublin.
Morgan argued that the trial judge had not properly considered whether the full amount could be realised from his assets when the order was made. He relied on section 9(6), which caps recovery at the lower of the benefit obtained and the amount that might be realised at the time of the order. His submissions included that he had spent €57,550 on travel to meet bail conditions, had significant legal expenses and had no money. He also argued that €9,397 seized at his arrest should have been deducted.
The Director of Public Prosecutions argued that Morgan had to provide evidence that his assets were worth less than the benefit attributed to him. The prosecution also opposed deducting legal, travel and other expenses, saying those costs did not reduce the benefit figure and mattered only if evidence showed they left insufficient realisable assets.
The Court of Appeal said the benefit figure of €252,980 was not disputed on appeal. It held that once the prosecution established the benefit, the burden shifted to the convicted person to show, on the balance of probabilities, that he had no realisable assets or that their value was below that figure. The court said assets from lawful sources could also be used to meet the order.
The court upheld the trial judge’s refusal to set off expenses incurred in committing the offences, defending the prosecution or meeting bail conditions against the benefit. It noted that the €9,397 deduction was effectively conceded. The appeal was dismissed, but the confiscation amount was varied to €243,583. The judgment states that failure to pay could expose Morgan to a prison term of up to three years; it did not impose a new prison sentence.