Ho-Shing v Crown Prosecution Service

On an appeal by case stated, the High Court does not decide afresh whether a costs threshold was met. It asks whether the lower court erred in law or approach, or reached a conclusion unavailable on the evidence. Under Prosecution of Offences Act 1985, an award of costs for an unnecessary or improper act or omission requires the exceptional threshold identified in Evans. Whether an error is sufficiently clear and stark is a fact-sensitive evaluative question. Where the statutory scheme confers a discretion, the appellate court must respect the lower court’s exercise of that discretion unless it was legally flawed. The appeal was dismissed because the magistrates’ court’s reasons were intelligible, coherent and sufficient, and its conclusion was open to it.

The appellant was prosecuted for failing to provide a specimen for analysis contrary to section 7(6) of the Road Traffic Act 1988. She contended that she had been asleep when asked to provide the specimen. The prosecution was discontinued after CCTV footage was disclosed.

She applied for costs under section 19 of the Prosecution of Offences Act 1985. The district judge found that the failure to review the CCTV earlier was a clear and stark omission in principle, but held that no costs had been incurred as a result because the appellant’s costs had been incurred before her first appearance. The application was refused.

On appeal by case stated, the central issue was whether the district judge had erred in concluding that the Crown’s conduct before the first appearance did not satisfy the statutory costs test.

1. Appeal dismissed. The question on an appeal by case stated was whether the district judge had erred in law or approach, or reached a decision that was not open to him on the evidence. It was not whether the High Court would itself have decided the statutory question differently.
2. Section 19 of the Prosecution of Offences Act 1985 permits regulations authorising costs awards for an unnecessary or improper act or omission. The applicable threshold, as stated in Evans, is high. Successful applications against a public prosecutor are generally confined to exceptional cases involving bad faith or a clear and stark error causing compensable costs.
3. The district judge accepted that an error had occurred before the first appearance, but treated the question whether it was a clear and stark error as a fact-sensitive evaluative issue. He concluded that the relevant threshold was crossed only 28 days after the first appearance, when the significance of the CCTV had become clear.
4. That reasoning was intelligible, coherent and sufficient. The charging decision had been made by the police, so the CPS Guidance on Charging did not directly apply. The district judge was well placed to assess the evidential context and had a statutory discretion. Its exercise was for him, not the appellate court, and disclosed no error of law or approach.
5. In any event, the district judge found that the appellant’s costs had all been incurred by the first appearance and therefore were not incurred as a result of the later omission. The third stage of the discretionary analysis was consequently unnecessary.

• Bromley Magistrates’ Court: District Judge Kumar refused the appellant’s application for costs under section 19 of the Prosecution of Offences Act 1985.
• High Court (Administrative Court): The appeal by case stated was dismissed. The district judge had made no error of law or approach, and his conclusion was properly open to him.