202304395 B2 - [2025] EWCA Crim 1150

The criminal proceedings:

The appellant was charged on an indictment containing two counts. Count 1 alleged an offence of manslaughter by gross negligence. Count 2 alleged an offence of misconduct in public office. The particulars of that offence alleged that the appellant, whilst acting as a public officer, had wilfully misconducted himself by wilfully neglecting to perform his duty by failing to undertake checks as required under the ACCT plans for the three prisoners, and by making entries in the log relating to Mr Olgun “purporting to have undertaken the required checks when he had not”.

The appellant stood trial in the Crown Court at Worcester, before Pepperall J and a jury, in November 2023. The appellant was represented by Mr Csoka KC, the respondent by Messrs Atkinson KC and Harris.

At the conclusion of the prosecution evidence, Mr Csoka made a submission of no case to answer in relation to both counts. The submission was successful in respect of count 1: the judge ruled that the evidence was insufficient for a reasonable jury, properly directed, to be sure that any breach by the appellant of his duty of care to Mr Olgun had made a substantial contribution to Mr Olgun’s death.

In relation to count 2, the judge considered case law including R v Cosford [2013] EWCA Crim 466 and R v Mitchell [2014] EWCA Crim 318. He observed that the Law Commission, in its 2020 report on the common law offence of misconduct in a public office (Law Commission No 397), had described the exact parameters of “a public officer” as being notoriously difficult to define.

The judge noted that in Cosford, at [38], this court had said that the question of whether the accused was a public officer was a matter of law for the trial judge. He doubted whether there was any real question of fact which should lead him to take a different course in this case. However, he accepted that a dispute of fact might emerge from defence evidence, and that “at this stage” he should therefore approach the matter as a jury question.

The judge was satisfied that a jury properly directed would be entitled to find that the appellant was a public officer and was acting as such in performing his duties at HMP Hewell at the material time. He accepted the submission of the prosecution that the jury, applying the three-stage test identified in Cosford and Mitchell, could properly find that the appellant was acting as a public officer in undertaking the ACCT observations on the three prisoners, and in maintaining a log of such observations. The judge therefore refused the submission of no case to answer on count 2.

The trial accordingly proceeded on count 2. The appellant gave evidence.

In his directions of law, the judge provided the jury with a flow chart which required them to consider the following five questions:

Are you sure that the defendant was a public officer?

Are you sure that the defendant (a) failed to undertake checks as required under the ACCT plans for [the three prisoners]; and/or (b) made entries in Mr Olgun’s log of required checks that had not been undertaken?

Are you sure that the defendant, acting as a public officer, thereby wilfully neglected to perform his duty?

Are you sure that the defendant wilfully neglected his duty to such a degree that his conduct is worthy of condemnation and punishment so as to amount to a breach of the public’s trust in him?

Are you sure that the defendant did so without reasonable excuse or justification?

The jury were directed that if they answered each of those questions in the affirmative, they would find the appellant guilty.

In relation to the fourth question, the judge directed the jury:

“While the prosecution has not in this case proved that any neglect by Mr Evans caused the death of Mr Olgun, and you must not go behind that ruling that I gave, there is no requirement for the prosecution to prove that the defendant’s neglect led to harm, and you can properly take into account the consequences that would have been likely to have flowed from any proven neglect.”

The appellant was convicted. At a later hearing, the judge imposed a suspended sentence of imprisonment with an unpaid work requirement, and ordered the appellant to pay £7,500 towards the prosecution costs.