England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		9 November 2010

1. LORD JUSTICE GROSS: On 9 March 2010 at the Newport Crown Court before HHJ Hetherington, following a ruling by the judge on elements of the offence, the applicant pleaded guilty to misconduct in a public office. The relevant count on the indictment is headed: "Statement of Offence, Misconduct in a Judicial or Public Office". The particulars of the offence are that the applicant between the 1st day of October 2008 and the 6th day of April 2009 while acting as a public officer, namely a member of the Independent Monitoring Board, wilfully misconducted herself by developing personal and inappropriate relationships with serving prisoners at HMP Parkhurst.
2. On 31 March 2010, before another judge, she was sentenced to a suspended sentence order comprising four months' imprisonment, suspended for two years, with a supervision requirement of 12 months. Her application for leave to appeal against conviction has been referred to the Full Court by the registrar. We, as already indicated, have granted leave to appeal.
3. The sole point, which arises on this appeal, is whether the judge was correct to determine, as he did, in his pre trial ruling ("the ruling"):

"There is no requirement in law that someone must be remunerated in order to be a public officer".

4. We say that this is the sole point on this appeal, because although the judge expressed some doubt that the appellant (as we shall now refer to her) held a public office, the matter which the judge said, rightly or wrongly, ought to go to the jury, the appellant pleaded guilty in the light of his ruling as to remuneration. In those circumstances it does not seem to us that any further point is open to the appellant, whether concerning the question of her holding a public office, or any other point, a number of which were hinted at by Mr Germain in the course of his submissions.
5. We add only this: in the light of the materials available to us we are reassured as to the matter upon which the judge ventilated his doubts, and we shall indicate why in due course. However, we cannot avoid saying that the preparation of the matter before the judge, upon which he commented, left, with respect, something to be desired.
6. We turn to the underlying facts of the matter simply to put the ruling in context. The appellant was a 22-year-old volunteer with the Independent Monitoring Board. She was of good character. She was appointed in May 2008 and was a prison visitor. Her role included visiting inmates and listening to any problems that they were encountering.
7. On 6 April 2009, the appellant attended HMP Parkhurst and was searched and found to be in possession of her mobile telephone and a SIM card. She was arrested. Her home address was searched and two further mobile telephones were seized, as was correspondence with prison inmates. The telephones were interrogated. There was a volume of innocuous text messaging, however on one that had been seized from her home address the police found a series of familiar and sexually explicit messages and photographs to a serving prisoner identified by the initials "JP".
8. In interview the appellant stated that she had a full-time job as a brain injury rehabilitation nurse at a care home, but that she also worked as a volunteer for the Independent Monitoring Board at Parkhurst prison, which was an unpaid position to get experience and to enhance her curriculum vitae. She attended the prison that day as expected, but, for whatever reason, she was flustered and had completely forgotten that she still had her phone and SIM card in her pocket. She explained that in November of the previous year she had visited an internet chat forum "fast flirts" and had made contact with a man called Stuart. They exchanged telephone numbers and began contacting each other.
9. A month or two later Stuart informed the applicant that he was a serving prisoner. Stuart asked her to engage in "phone sex" with him, which included passing explicit photographs of herself via her phone to his, and she had agreed. Stuart then asked her to bring drugs into the prison and when she had refused he had become aggressive. She had accepted money from Stuart on two occasions in sums of £100 and £500. In the end she started to ignore telephone calls from Stuart's phone or others asking her to get back in touch with him.
10. A further male, this time JP, texted her and she began a relationship with him. JP told the applicant that it was his telephone that Stuart had been using and that they were both in fact in Parkhurst Prison. He also asked her to bring drugs into prison, but when she had refused he was not insistent and they continued contact. She accepted she had ignored the rules and regulations that she knew about her position. She had met Stuart once in passing in prison and she had met JP. She further admitted a relationship with a prisoner named Justin through 2008 and 2009, which involved mainly correspondence, although she met him twice as a prison visitor.
11. We turn, without more, to the ruling. The judge commented on the lack of clarity in evidence as to the authority, establishment and purpose of the Independent Monitoring Board ("IMB"). Hence his concern that there was in fact no office of which the appellant could be a holder. He then considered the authorities to which he, and indeed we, have been referred, and to which we shall come. He then made the ruling (the subject of this appeal) on, as he put it, "the very narrow point" and otherwise declined to make any ruling.
12. On the material available to us the position of the IMB and its volunteer members is as follows: In a witness statement, dated 23 August 2010, and hence fresh evidence, which is before this court by consent, a Miss Stephens, who describes herself as the Acting Deputy Head of the Secretariat (which provides advice and support on behalf of the Secretary of State for Independent Monitoring Boards), said this:

"IMBs provide an independent oversight to the care and treatment [of] offenders and detainees on behalf of the Secretary of State. That involves members visiting HM Prisons and establishments in the immigration detention estate, usually on a weekly basis to monitor the regime and take applications ... from prisoners and detainees.

IMBs submit an annual report to the Secretary of State, reporting on their concerns and good practice, within the establishment they monitor.

IMB members are unpaid volunteers & are not employed.

IMB members are appointed by the Secretary of State on the recommendation of a Selection Panel comprising of two IMB members of the board the applicant is seeking to join and a third member from another IMB. When selected the applicant is appointed to a specific prison."

13. Miss Stephens then exhibits a section of the Prison Act 1952, to which we shall turn in a moment, and extracts from the Prison Rules 1999 and various other documentation.
14. Section 6 of the Prison Act 1952 provides, in so far as it is material, for Visiting Committees and Boards of Visitors. By subsection (2) provision is made for the Secretary of State to appoint for every prison a board of visitors. Subsection (3) provides that:

"the Board of visitors may, at my time, enter the prison and shall have free access to every part of it and to every prison."

15. The Prison Rules 1999 (as amended), and so far as material, provide as follows. By rule 75 of the rules, that visitors, subject to various other provisions in the rules, "hold office" for three years or such lesser period as the Secretary of State may appoint. There is provision made for the Secretary of State to terminate the appointment on various grounds. There is provision made under rule 77 for the general duties of boards of visitors. They are to satisfy themselves, for instance, as to the state of the prison premises, the administration of the prison and the treatment of the prisoners. They are to inquire into and report upon any matter into which the Secretary of State asks them to inquire. By rule 79 members of the boards of visitors for a prison shall visit the prison frequently. Furthermore, by rule 79(2):

"A member of the board shall have access at any time to every part of the prison and to every prisoner, and he may interview any prisoner out of the sight and hearing of officers".

16. In a document headed "Welcome to the Independent Monitoring Board" the new appointee, as a volunteer member, is told various things. Amongst these are that the member must, or is expected to, undertake training within 12 months of his or her appointment. Specific attention is drawn to confidentiality and the Official Secrets Act 1989. Again, the appointee's detention is specifically drawn to criminal convictions, conflicts of interest and to the need for appropriate conduct. Although the members are volunteers, provision is also made for the payment to them of reasonable travelling expenses and subsistence. A time commitment is provided in a sense that they are expected to attend, or required to attend, at least nine out of the 12 monthly board meetings held in the establishment every year.
17. Against this background, although not a matter for us, we can understand why the appellant did not seek to take the point before the jury that there was no office of which she could have been a holder, subject to the point on remuneration, which is of course before us. We also record that it was common ground before us that the reference to visitor or visitors, in both the Act and the rules, relates, for present purposes at least, to the Independent Monitoring Board and its members. For the avoidance of any doubt it does not follow from either of these observations, or anything else said in this judgment, that every volunteer on every "quango" will hold public office. Each case must turn on its own facts.
18. Today Mr Germain, for the appellant, advanced his submissions as follows: he referred to the authorities, to which we shall come, and submitted that they supported his case that on the ground of lack or absence of remuneration, the appellant was not the holder of a public office. He accepted, as we understood his oral submission, that although there were cases where volunteers do hold public office, the court should take this opportunity to confine the offence of misconduct in a public office to those holders of public offices who were remunerated. Mr Germain's submission was that this offence was and remained a common law offence, given the difficulties of any statutory definition. There was authority that the offence should be narrowly confined. It was wrong to prosecute a volunteer and the offence should be confined accordingly.
19. For the Crown (the respondent today) Mr Feest submits that the authorities show, if anything, that the learned judge was correct in his ruling. The sole point before us was the remuneration point. There was no doubt, Mr Feest submitted, in the light of the statute, the rules and the other material going to IMB members, that they were appointed to an office and had duties accordingly. Mr Feest summarised his submission in these terms: remuneration was indicative of the holding of an office, but was not determinative either of the holding of the office or of liability to prosecution for the offence of misconduct in a public office. We have summarised counsel's submissions shortly, but we hope that is a fair and convenient way of describing the outline of the argument before us today.
20. We turn, as briefly as we can, to the authorities to which we have been helpfully referred. The first goes back to 1783: R v Charles Bembridge [1783] 3 Dougl 327, 99 ER 679. The defendant was an accountant in the office and place of receiver and paymaster general. We need not delve into the facts. It is the statement of principle by Lord Mansfield, which has been repeatedly cited in subsequent cases to which we look. Lord Mansfield said this at page 332, that is of the Douglas Report:

"that a man accepting an office of trust concerning the public, especially if attended with profit, is answerable criminally to the king for misbehaviour in his office".

Pausing there, what Lord Mansfield is saying is that a man who holds a public office is answerable criminally to the king for misbehaviour in that office, especially if he is paid. What is not being said is that it is only if he is paid that he is answerable to the particular charge.

21. We move forward in time to the decision in Henly v the Mayor and Burgesses of Lyme (1828) 5 Bing New Cases 91, 130 ER 1995. This was a civil case concerning damage or loss suffered by the individual in consequence of the decay of sea walls. There was no issue as to the defendants in the case being paid, hence anything said by the court on the point before us today is, as it seems to us, obiter. However, what was said at page 107 of the report was this:

"What constitutes a public officer? In my opinion every one who is appointed to discharge a public duty, and receives a compensation in whatever shape, whether from the Crown or otherwise, is constituted a public officer."

Understandably Mr Germain relies on the word "and". He says this points to the court treating remuneration as a separate and necessary requirement for the holding of a public office. For our part we understand why Mr Germain seeks to rely on this case, but in our judgment the observation is indeed obiter for the reason we have already indicated.

22. Moving into the 20th century there is the case of

R v Whitaker (1914) 10 Cr App R 245. Colonel Whitaker was the commanding officer of the Yorkshire Light Infantry stationed at Malta. In his capacity as colonel it was his duty to determine the form in which the canteen should be operated. Unfortunately his relations with those who contracted to run the canteen were not what they should have been, and Colonel Whitaker found himself convicted on indictment and sentenced to a term of imprisonment. The relevance of the case, for present purposes, is the observation of the court, in a judgment given by AT Lawrence J, at page 252 as follows:

"We think a public officer is one who discharges any duty in which the public is interested, and more particularly if he receives payments from public money."

We read that observation as to the same effect as the observation of Lord Mansfield, to which we have already referred. The court did not say that it was only if a person received payment from public money that he could be a public officer.

23. We were further referred to the case of R v Llewellyn-Jones [1967] 51 Cr App R 2004 concerning a County Court Registrar. With respect we do not get anything more from this case than the reluctance of the court, for entirely understandable reasons, to venture an exhaustive definition of what is covered by misbehaviour in a public office.
24. The case of R v Bowden [1996] 1 Cr App R 104 concerned an employee of a local authority acting as a maintenance manager. It was held that the common-law offence of misconduct in a public office applied, amongst others, to him. The judgment of this court was given by Hirst LJ and he reviewed, inter alia, the various authorities, to which we have been referred. We are not, with respect, of the view that anything said in that case takes today's argument further, save that Hirst LJ, in a sentence which has resonance, said this:

"In our judgment the theme which runs through all these cases over the past 200 years is..."

Then he cited the words of Lord Mansfield, to which we have already referred.

25. Finally in the authorities, we come to Attorney General's Reference (No 3 of 2003) [2004] EWCA Crim 868, [2004] 2 Cr App R 23. That was a case where the trial judge had directed the jury to acquit all the defendant police officers on, amongst others, the charge of offence of misconduct in a public office. The Attorney General referred to the Court of Appeal the following questions:

"(1)'What are the ingredients of the common law offence of misconduct in a public office?

(2) In particular is it necessary, in proceedings for an offence of misconduct in a public office, for the prosecution to prove 'bad faith' and, if so, what does bad faith mean in his context?'"

26. The judgment of the court was given by Pill LJ and included, with respect, a most helpful survey of the now familiar authorities, together with Australian authority. It is perhaps of interest to note that in paragraph 36 of the judgment Pill LJ referred to the case of R v Borron (1820) 3 B (and) Ald 432 - a case where a criminal information was applied for against a magistrate. The court in Borron dismissed the charge because it said that the magistrate, even if he had been in error, had not been culpable in the sense of dishonesty, oppression or corrupt motive. It was held that the standard which the charge had to meet would not be satisfied simply by way of an error when the defendant was engaged in "gratuitous exercise of a public trust". That passage, if we may say so, is striking because neither in the case of Borron, nor in the judgment of Pill LJ, was any observation made that a defendant could not be prosecuted or convicted of misconduct in public office because they had not been remunerated. It is appropriate in our judgment to make that observation, despite acknowledging that the defendant in Borron was facing a somewhat different charge.
27. Mr Germain said, and accepted, that if a magistrate was prosecuted today he could be charged on exactly the same count as that which the appellant faced, though he said that in fact the wording could be shortened to misconduct in a judicial rather than public office. However, it does, at least to us, seem anomalous if a volunteer magistrate could be convicted of such a charge, but not some other volunteer holding a public office.
28. Continuing with the judgment of Pill LJ, he said this as to the ingredients of the offence (in para 61):

"The circumstances in 0which the offence may be committed are broad and the conduct which may give rise to it is diverse. A summary of its elements must be considered on the basis of the contents of the preceding paragraphs. The elements of the offence of misconduct in a public office are:

(1) 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 ..."

Very shortly afterwards Pill LJ said that the offence should be strictly confined. However, he said that not in any sense with regard to remuneration but with regard to the standard of misconduct required for the offence - and, for that matter, with regard to the fact that some public functions are now carried out by employees in private employment, whereas others are carried out by those holding public office. There was a potential for unfairness and illogicality if those holding a public office were subject to a sanction which was not applicable to those in private employment doing similar work. We do not think that anything said in that judgment assists Mr Germain's valiant efforts.

29. We come to our conclusions, which we can state relatively briefly:

(1) There is no exhaustive definition of this common law offence.

(2) There is good reason to confine it strictly, or within proper grounds for the reasons canvassed by Pill LJ in Attorney General's Reference (No 3 of 2003), which we have just cited. However, that observation, as we have already remarked, has nothing to do with whether the office holder is remunerated or not.

(3) The central theme of the authorities now running back for some 200 years is encapsulated in the observation of Lord Mansfield: that a man accepting an office of trust concerning the public is answerable criminally for misbehaviour in his office. If conduct is so serious as to impact on the public trust, then a prosecution may follow. That, of course, is especially the case if the person concerned is remunerated.

(4) We do not see remuneration as an indispensable requirement either for the holding of a public office, or for liability to prosecution for the offence of misconduct in a public office. We say that because firstly, nothing in authority so confines the offence. To the contrary, the observations both in Bembridge and Whitaker point the other way. So far as concerns Henly, we see it as a very different case in a very different context, and the point was not in issue. Secondly, as a matter of logic, we cannot see why remuneration should be required as a condition for holding public office or liability to prosecution. Thirdly, if regard is had to the duties placed on a visitor, or member of an Independent Monitoring Board, they are indeed of serious moment. Not least, the visitor is, as provided by the Prison Act and the rules to which we have referred, entitled to visit any place in a prison and to interview any prisoner. It seems most improbable that a person would be given such an entitlement if not the holder of a public office, or otherwise, under some suitable contractual arrangement with the prison. Fourthly, in those circumstances we cannot see why, if there is a serious breach on the part of the office holder, they should not be liable to prosecution simply on the ground that they were not remunerated.

(5) There are, and we do not understand Mr Germain realistically to dispute this, a variety of others who plainly hold judicial or public offices and are not remunerated. These must, as we see it, include magistrates, special constables, perhaps local councillors and high sheriffs. All, as it seems to us, hold public office.

(6) The fact that a person is a volunteer, as opposed to a person remunerated, may have a bearing - for example in a case of an omission - in determining whether there has been wilful misconduct; but it does not follow that remuneration is an essential precondition either to holding an office or wilful misconduct in a public office.

30. We agree with Mr Feest's way of putting it: remuneration is indicative but not determinative. In the circumstances, and for the reasons we have given, this appeal must be dismissed. That the case is unfortunate and that something went very seriously wrong, may well be right - but it must be by the by in the determination of this appeal.