202304395 B2 - [2025] EWCA Crim 1150

Analysis:

The first and second grounds of appeal challenged the judge’s decision that there was a case for the appellant to answer on count 2. The question for this court, accordingly, was whether the judge was correct to find that a reasonable jury, properly directed, could on one view of the evidence find all the elements of the offence proved. The third ground of appeal challenged one aspect of the judge’s directions of law to the jury. The question for this court, accordingly, was whether the conviction was unsafe because the judge fell into error of law in that one respect.

The categories of activity which may be held to be a public office are not closed; but the elements of the offence of misconduct in a public office are in our view clearly established by the case law which we have summarised at paragraphs 21 to 25 above. In particular, we respectfully regard paragraph [16] of the judgment of the court given by Sir Brian Leveson P in Mitchell (quoted at paragraph 24 above) as a clear and helpful indication of the approach to be taken when considering the question which lay at the heart of this appeal.

Applying that approach to the circumstances of the present case, the answers to the first and second of the three questions were not in dispute. The appellant was employed as an OSG in prison. On the night in question, he was responsible for all of the large number of prisoners held in the block, was required to answer any calls for assistance which any of those prisoners might make, was required to carry out the checks which had been identified in the ACCT plans as necessary for the safety of each of the three vulnerable prisoners, and was required to keep an accurate record of his performance of those checks.

As to the third question, the proper performance by the appellant of those duties would represent the fulfilment of the responsibility of government for the safety and security of persons whom the state had deprived of their liberty. The appellant was responsible for the proper, safe and secure running of the block in which he was employed. On the night in question, he was the one person present in the block who held a position of responsibility towards all the prisoners in that block; the one person who was immediately able to assist if a prisoner’s health and safety was for any reason compromised; and the one person who was immediately able to ensure compliance with the ACCT plans which had been designed to secure the safety and welfare of the three vulnerable prisoners. With respect to Mr Csoka’s typically able submissions, we found it impossible to regard the appellant’s duties and responsibilities as being no more than three discrete duties of care owed to three individual prisoners.

As was rightly accepted by Mr Csoka, there is a strong public interest in the safety and security of prisoners. The public therefore had a significant interest in the appellant’s properly discharging his duties, which went well beyond the interest of an individual prisoner such as Mr Olgun who might be directly affected by a serious failure in the appellant’s performance of his duties.

It followed, in our view, that the judge was plainly correct to rule that a reasonable jury properly directed could be sure that the appellant was a public officer acting as such at the material time.

Although it is not necessary to our decision, we would add that in the circumstances of this case, the admitted role and duties of the appellant were such that the judge could properly have directed the jury as a matter of law that the appellant was a public officer, and that the first of the five questions (see paragraph 15 above) must therefore be answered in the affirmative.

We should emphasise that in reaching our decision that the first ground of appeal should be rejected, our focus was necessarily on the admitted duties and responsibilities of the appellant on the night in question. It is possible that the application of the three-part test to other OSGs employed in prisons, with different roles at different times, would yield a different result.

As to the second ground of appeal, the admitted fact was that the appellant failed to make about two-thirds of the required number of checks in relation to Mr Olgun, a high-risk prisoner, and about half of the required number of checks in relation to each of the other two vulnerable prisoners. If the appellant had made four checks on Mr Olgun each hour, it would still have been possible for Mr Olgun to have taken his own life during one of the permissible intervals between those checks: the submission of no case to answer on count 1 was therefore successful, and the judge rightly gave the jury the direction (which we have quoted in paragraph 17 above) not to go behind that ruling. But it did not follow that the jury could not consider the potential consequences of the appellant’s very substantial failure to carry out his duties towards the three prisoners, and his covering up of that failure by falsifying the records. The jury were entitled to take into account that compliance with the ACCT plan would have protected Mr Olgun against self-harm by limiting his opportunities and by increasing the likelihood that any attempted self-harm would be detected in time to prevent, or reduce, serious harm. Nor did it follow that the jury could not properly have found that the appellant was guilty of misconduct so serious that it merited condemnation and punishment as a crime.

The judge was therefore correct to rule that a reasonable jury, properly directed, could find that the appellant’s misconduct was so serious as to constitute the offence. We accordingly rejected ground 2.

As to the third ground of appeal, the judge’s direction, that the jury could properly take into account the likely consequences of any proven breach of duty, was correct in law: see paragraph 21 above.

We did not accept the submission that the judge failed to say enough to prevent the jury from wrongly relying upon Mr Olgun’s suicide to determine the gravity of the breach of duty. The judge told the jury in terms that the prosecution had not proved that any neglect by the appellant had caused Mr Olgun’s death, and he expressly directed them not to go behind his ruling in that regard. There was no reason to think the jury would disregard those clear instructions, and we did not think it was incumbent on the judge to say any more than he did. Ground 3 accordingly failed.

It was for those reasons that we rejected each of the grounds of appeal and dismissed the appeal.