202304395 B2 - [2025] EWCA Crim 1150

The legal framework:

Misconduct in a public office is a common law offence. As the case law shows, it may be committed in a wide variety of circumstances. In Attorney General’s Reference, no. 3 of 2003 [2004] EWCA Crim 868 this court at [54] to [60] considered the nature of the offence, emphasising at [59] that it will normally be necessary to consider the likely consequences of an accused’s breach of duty in considering whether his conduct fell so far below the standard of conduct to be expected of him as to constitute the offence. At [61] the court summarised the elements of the offence as follows (omitting internal references to earlier paragraphs):

A public officer acting as such (2) wilfully neglects to perform his duty and/or wilfully misconducts himself (3) to such a degree as to amount to an abuse of the public’s trust in the office holder (4) without reasonable excuse or justification. As with other criminal charges, it will be for the judge to decide whether there is evidence capable of establishing guilt of the offence and, if so, for the jury to decide whether the offence is proved.”

We were referred to a number of sentence appeals in cases in which an appellant had pleaded guilty to an offence of misconduct in public office committed whilst acting as an OSG in a prison. However, it does not appear that this court has previously had to determine a contested issue as to whether an OSG in a prison, acting as such, was a public officer.

The decisions of this court in Cosford and Mitchell are relevant in this regard. In Cosford the court considered dicta in earlier cases to the effect that the offence should be strictly confined, and held at [34]:

“Nothing in the authorities justifies the conclusion that the ‘strict confinement’ should be to the position held by whomsoever should be carrying out the duty: rather, it should be addressed to the nature of the duty undertaken and, in particular, whether it is a public duty in the sense that it represents the fulfilment of one of the responsibilities of government such that the public have a significant interest in its discharge extending beyond an interest in anyone who might be directly affected by a serious failure in the discharge of the duty.”

In Mitchell at [16] the court stated:

“In our judgment, the proper approach is to analyse the position of a particular employee or officer by asking three questions. First, what is the position held? Second, what is the nature of the duties undertaken by the employee or officer in that position? Third, does the fulfilment of those duties represent the fulfilment of one of the responsibilities of government such that the public have a significant interest in the discharge of that duty which is additional to or beyond an interest in anyone who might be directly affected by a serious failure in the performance of that duty? If the answer to this last question is ‘yes’, the relevant employee or officer is acting as a public officer; if ‘no’, he or she is not acting as a public officer.”

The court went on to emphasise, at [17], that the focus must be on the duties and responsibilities of the individual who is accused, not on the overall responsibility of the organisation or body by which the individual is employed.