202304395 B2 - [2025] EWCA Crim 1150

The submissions to this court:

In support of his first ground of appeal (see paragraph 19 above), Mr Csoka drew attention to the facts that, unlike a prison officer, an OSG has no power of arrest and (save in emergencies) has no right to search a prisoner, use force against a prisoner or enter a cell. He submitted that an OSG therefore has no greater powers than, for example, a civilian employed as a secretary in a prison. Acknowledging that a prison officer could rightly be held to be a public officer, Mr Csoka submitted that the same status could not be given to an OSG, and that the scope of the offence should not be extended simply because the prison authorities found it financially expedient to give more functions to those in an auxiliary role. Mr Csoka pointed to the distinction drawn by the case law between responsibilities owed to an individual and those owed to the public at large. He argued that when checking on a prisoner subject to an ACCT plan, an OSG owed a responsibility only to that prisoner. The appellant, he submitted, had no responsibility towards the many other prisoners in the block beyond carrying out a roll call. Mr Csoka accepted that security in a prison is always a matter of public interest, but argued that there was no public interest in the welfare or health care of an individual prisoner.

Mr Csoka made clear that he did not criticise the judge’s directions of law, but did criticise the terms in which the law had come to define the elements of the offence. He submitted that the third question in the judge’s flow chart (see paragraph 15 above) in effect invited the jury to consider a matter relating to the welfare of prisoners on which there could be a range of views. He argued that the jury were doing no more than reflecting their personal outlooks. On that basis, he submitted that the third question could never properly have been answered in the affirmative.

In support of his second ground of appeal, Mr Csoka pointed to the judge’s finding that the jury could not be sure that any breach of duty by the appellant had caused Mr Olgun’s death. He submitted that there was therefore no basis on which the jury could find that any breach of duty by the appellant was sufficiently serious to constitute the offence. He drew a comparison with the decision of the trial judge at first instance in R v Travers (Central Criminal Court, 26 January 2018), that on the facts of that case no reasonable jury, properly directed, could find the defendant guilty of misconduct in public office if they had found him not guilty of manslaughter by gross negligence.

As to the third ground of appeal, Mr Csoka submitted that there was no evidence as to what consequences were likely to have flowed from any neglect by the appellant, and the judge’s direction (see paragraph 17 above) therefore opened the door to speculation by the jury. He argued that in the circumstances of this case, the potential consequences were not obvious: the introduction by the judge of an issue of likelihood therefore compounded what was in any event the absence of any rational basis on which the jury could have answered ‘Yes’ to the third question in the flow chart. Mr Csoka submitted that the judge should have directed the jury only to consider the issue of neglect and not to consider any possible consequences of neglect. On that basis, he argued that if ground 2 failed, ground 3 should succeed.

Mr Atkinson, in response to the submissions on ground 1, drew attention to the distinction drawn in Cosford at [36] between nurses in a general hospital (whose responsibilities were to individual patients for whom they were caring), and nurses in a prison setting (who were also “responsible to the public for, so far as it is within their power to do so, the proper, safe and secure running of the prison in which they work”). He submitted that the appellant as an OSG was the only member of staff responsible overnight for a large number of prisoners: the appellant was the only route by which any of those prisoners could raise any problem; he had to deal with any issue which might arise; and his duties included the proper, safe and secure running of the block and the taking of the steps which the ACCT plans identified as necessary for three vulnerable prisoners.

Mr Atkinson further submitted that the judge had applied the correct test in accordance with Cosford and Mitchell. He submitted that the fact that an OSG is paid significantly less than a prison officer was irrelevant: a person may hold a public office even though he or she receives no pay at all.

Mr Atkinson drew attention to Cosford at [38], where the court emphasised that the decisions as to whether particular persons were public officers were decisions of law:

“If there had been an issue as to the facts (either of the relationship or the duties), the decision as to the facts would have been for the jury. The existence or otherwise of a public office as for the judge: the position is identical to that which obtains in relation to the existence or otherwise of a duty of care in gross negligence manslaughter … . The judge’s decision to leave this question to the jury was overfavourable to the appellants.”

As to ground 2, Mr Atkinson submitted that the judge’s decision, and the directions which he gave to the jury, were correct: misconduct in public office is a conduct offence, and there is no requirement that the prosecution must prove that the accused’s misconduct or breach of duty caused harm.

Similarly as to ground 3, Mr Atkinson submitted that the judge’s decision, and the directions which he gave to the jury, were correct. He argued that the appellant’s falsification of the records would inform future measures taken to secure the safety of the vulnerable prisoners, and the jury were correctly directed that they could consider the consequences that may have flowed from the appellant’s conduct. Mr Atkinson submitted that juries often are called upon to make a qualitative judgement, and the fact that the jury had to do so in this case does not render the conviction unsafe.

We are grateful to all counsel for their very helpful written and oral submissions.