O-Shing v Crown Prosecution Service
| Jurisdiction | England & Wales |
| Judge | Mr Justice Chamberlain |
| Judgment Date | 03 November 2022 |
| Neutral Citation | [2022] EWHC 3137 (Admin) |
| Docket Number | No. CO/1908/2022 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 3137 (Admin)
Mr Justice Chamberlain
No. CO/1908/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Miss A Fendrich (instructed by Shearman Bowen) appeared on behalf of the Appellant.
Mr P Grieves-Smith (instructed by Crown Prosecution Service) appeared on behalf of the Respondent.
This is an appeal by case stated from a decision of District Judge Kumar, sitting at Bromley Magistrates' Court, refusing an application for costs by the appellant, Alicia Ho-Shing. The facts appear from the case as follows.
On 22 May 2021, at 12.30 a.m., in the car park of the Odeon Cinema in Bromley, Ms Ho-Shing was arrested on suspicion of being drunk in charge of a motor vehicle, having given a roadside sample of breath measuring 57mg of alcohol per 100ml. She was taken to the custody suite at Croydon Police Station. At 3.30 a.m. she was in a cell when a police officer asked her to provide two samples of breath for analysis. She did not respond. On the afternoon of the same day, she was charged with failing to provide a specimen for analysis contrary to s.7(6) of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act 1988.
Prior to her first appearance before the Magistrates' Court Ms Ho-Shing entered into an agreement with a solicitors firm in which they agreed to represent her for a fee payable in two instalments; £800 plus VAT immediately and a further £800 plus VAT becoming due upon her solicitor's first attendance at the first appearance. This was the entirety of the fee.
Prior to the first appearance Ms Ho-Shing received details of the prosecution case, including a witness statement from Police Sergeant Nelis, who said this:
“I later went to the cells to see if she would engage with the drink drive process at about 0328 hours. I am aware that at this time she was on rouse checks, so was responding to commands and questions from the cell door wicket. The DP [the detained person] did not respond to any questions about her consumption of substances post-arrest and made no reply when, at 0330 hours, I asked her to provide two samples of breath for analysis.”
At the first appearance on 21June 2021, Ms Ho-Shing made clear that her defence would be that at the time of the request for a specimen she was asleep and so had a reasonable excuse for failing to provide one. At the time, the police had CCTV footage of the cell showing that she was, indeed, asleep. The police did not provide this to the CPS.
Ms Ho-Shing served her defence statement on 5 July 2021. On 6, 20 and 28 July 2021, the PCS made requests to the police for the CCTV footage. On 17 August 2021, they sent a proposed noticed of discontinuance, noting the lack of CCTV footage. There was a case management hearing on 18 August 2021. On 19 August, the police served the CCTV footage on the CPS. On 23 August, the CPS reviewed it and served it on the defence. On 25 August, the CPS sent another proposed notice of discontinuance to the police. On 26 August there was another case management hearing and on 31 August the CPS discontinued the case.
On 6 October 2021, Ms Ho-Shing applied for her costs. That application was heard on 25 January 2022 and refused on 28 January 2022 with written reasons. The judge noted that there was no distinction to be drawn between the CPS and the police for the purposes of s.19 of the Prosecution of Offences Act 1985, which confers the power to make regulations authorising costs awards where one party to criminal proceedings has incurred costs as a result of an unnecessary or improper act or omission by or on behalf of another party to the proceedings. The judge set out the case law to which he had been referred ( Evans v Serious Fraud Office [2015] EWHC 263 QB; Singh, R (on the application of) v Ealing Magistrates' Court [2014] EWHC...
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