Summary of [2023] IESC 16

Factual and Procedural Background

In 2008, a jury in The Circuit Court convicted the Respondent of brothel-keeping and organising prostitution. He completed the custodial sentence and paid a fine. Pursuant to the Criminal Justice Act 1994 (“the 1994 Act”), the Appellant subsequently obtained a confiscation order for €243,583, representing profits from the unlawful activity. The Respondent failed to satisfy the order.

In 2019 the Appellant issued enforcement proceedings in The High Court under s 19 of the 1994 Act, seeking the Respondent’s imprisonment in default of payment and applying for a bench warrant to secure his attendance. On 18 November 2020 Judge [Last Name] granted the warrant.

The Respondent appealed to The Court of Appeal, which on 23 June 2022 ([2022] IECA 148) quashed the warrant, holding that a less intrusive procedure such as attachment and committal should have been used. The Appellant was granted leave to appeal to The Supreme Court, resulting in the present judgment of 29 June 2023.

Legal Issues Presented

1. Does a criminal case remain ongoing under the 1994 Act until a confiscation order is satisfied?
2. Does a High Court application for default imprisonment convert the matter into a civil proceeding?
3. Does the High Court possess inherent or statutory authority to issue a bench warrant for s 19 enforcement hearings?
4. What is the constitutional, common-law, or statutory source of any such power, and has it been displaced by the 1994 Act?
5. May the High Court impose a default prison term in the accused’s absence where notice and legal representation are proved?

Arguments of the Parties

Appellant's Arguments

• The criminal proceedings remain open until the confiscation order is satisfied; accordingly, the High Court retains criminal-court powers, including issuing a bench warrant.
• Personal attendance is required to ensure fairness before imposing a substantial period of imprisonment.
• The Court of Appeal erred in preferring attachment/committal as the exclusive mechanism.

Respondent's Arguments

• The enforcement phase is civil; compulsory attendance, if warranted, should occur via attachment rather than a criminal bench warrant.
• Adequate notice had been given and legal representation secured; the High Court could proceed in his absence.
• Issuing a bench warrant was a disproportionate interference with liberty and contrary to fair procedures.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court observed that s 3(16)(f) of the 1994 Act keeps criminal proceedings alive until a confiscation order is satisfied. Consequently, the High Court, when enforcing an unpaid order, exercises criminal jurisdiction and retains the ancillary powers of a criminal court, including the issuance of a bench warrant.

Section 19(3), however, only obliges that the defendant be given a “reasonable opportunity” to make representations; it does not mandate personal attendance. Comparative domestic and European case law confirms that proceedings may lawfully continue in the accused’s absence provided effective notice is given.

The Court accepted that the High Court has an inherent bench-warrant jurisdiction (State (AG) v Judge Roe; Stephens), but emphasised that the power must be exercised sparingly and only where necessary, echoing the caution in Dunphy v Judge Crowley.

Judge [Last Name] did not consider whether issuing the warrant was necessary in circumstances where notice had been served and the Respondent was legally represented. This failure constituted an error of principle. As the hearing could have proceeded in the Respondent’s absence, the warrant was unnecessary, though within jurisdiction.

Holding and Implications

APPEAL DISMISSED; BENCH WARRANT SET ASIDE

The Supreme Court confirmed that the High Court retains inherent power to issue a bench warrant in s 19 enforcement proceedings, but held that such a warrant should be issued only when demonstrably necessary. Because necessity was neither addressed nor established, the warrant was quashed. The judgment clarifies that adequate notice—not compulsory attendance—is the statutory minimum and provides guidance on the measured use of coercive powers during confiscation-order enforcement. No new substantive precedent was created, but future applications under the 1994 Act must expressly address the necessity of a bench warrant before it is granted.