R v Higgins (Kevin)
| Jurisdiction | Northern Ireland |
| Judge | Girvan LJ |
| Judgment Date | 23 June 2014 |
| Neutral Citation | [2014] NICA 47 |
| Year | 2014 |
| Court | Court of Appeal (Northern Ireland) |
| Date | 23 June 2014 |
1
Neutral Citation No: [2014] NICA 47
Ref:
GIR9258
Judgment: approved by the Court for handing down
Delivered:
23/06/2014
(subject to editorial corrections)*
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
________
THE QUEEN
v
KEVIN HIGGINS
Appellant
________
Before GIRVAN LJ, COGHLIN LJ and TREACY J
________
GIRVAN LJ (delivering the judgment of the court)
Introduction
[1] This is an application for leave to appeal against a confiscation order made on
12 August 2013 at Belfast Crown Court in the sum of £16,068.36 to be paid within 6
months. This case raises a number of important issues relating to the proper
procedures to be followed in relation to applications for confiscation orders arising
out of criminal convictions; to the responsibilities and duties of counsel representing
defendants in such cases; and to the effect of the limitations apparently imposed by
the Legal Services Commission in relation to the provision of legal aid for
confiscation applications. It also raises issues relating to the adverse consequences
which flow from delay in the judicial process.
[2] On the hearing of the application Ms Lynch appeared on behalf of the
applicant and Mr Steer appeared on behalf of the Crown. We are indebted to both
counsel who presented admirable written submissions and made helpful oral
submissions with care and tenacity. As the arguments developed it became clear
that the case raised more complex issues than appeared from the case at first sight.
History of the proceedings
[3] Each of the counts with which the applicant was charged related to the
unlawful keeping of controlled waste without a waste management licence. On 13
2
November 2008, the applicant was arraigned and pleaded not guilty to counts 1, 4
and 5. On 4 March 2009 he was arraigned and he pleaded not guilty to counts 2 and
3. He was also re-arraigned and pleaded not guilty to counts 1, 4 and 5. On 9 March
2009 he was re-arraigned and pleaded guilty to counts 1 to 4. He was on the same
date convicted on counts 1 to 4 and count 5 was left on the books. On that day the
judge (“the sentencing judge”) sentenced the applicant to 4 months’ imprisonment
concurrent on each count 1 to 4 and the sentences were suspended for 2 years. The
sentencing judge imposed a fine of £1,000 on each of the counts, amounting to a total
fine of £4,000.
[4] On the day of sentencing the prosecution applied to have a confiscation
hearing under the Proceeds of Crime Act 2002 (“the 2002 Act”). The sentencing
judge purported to postpone the confiscation hearing. The confiscation hearing did
not take place until 5 August 2013 at Belfast Crown Court before a different Crown
Court judge (“the confiscating judge”). The applicant had no counsel or solicitor
representing him at the confiscation hearing. The confiscating judge made a
confiscation order in the sum of £16,068.36 on 12 February 2014 and directed that
any period of custody to be served in default of payment was to be consecutive to
any term imposed in respect of the substantive offences. He directed payment of the
sum within 6 months. He did not specify the default period of imprisonment in the
event of non-payment nor did he make any finding in relation to the available
amount.
[5] The applicant, representing himself, applied for leave to appeal. His
application was considered by the single judge, Maguire J. The applicant sought
leave to appeal primarily on the basis that the calculation of tonnage that gave rise to
the assessment of the monetary figure was erroneous. The confiscating judge fixed
the sum at £16,068.36 on the basis that the landfill tax which had not been paid
related to 6,837.6 tonnes of controlled waste for which tax should have been payable
at the rate of £2 per tonne together with VAT. It is not clear on what basis the
confiscating judge decided that VAT was due on the sum of £2 per tonne which
reflected unpaid landfill tax which would have fallen due as a tax. VAT is not
normally payable on a tax.
[6] In his ruling in relation to the application for leave to appeal Maguire J stated:
“(9) At the hearing on 5 August 2013 there was some
exploration of the issues but it is rather inconclusive. In
respect of the tonnage issue the applicant at one point
was asked by the judge whether he had any comment to
make on the estimated tonnage of 6,837.6. The applicant
however replied `I never really got a chance to work this
out’. There is also some discussion of planning
permissions but it lacks focus. At the end of the hearing
the judge indicated that he would give his decision `very
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