England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT LEEDS
His Honour Judge Hatton Q.C.
T20127135

		Royal Courts of Justice Strand, London, WC2A 2LL
		16/04/2013

Lord Justice Leveson :

1. On 4 October 2012, in the Crown Court at Leeds before His Honour Judge Hatton Q.C. and a jury, Karen Cosford and Carolyn Falloon were each convicted of three counts of misconduct in public office; Jacqueline Flynn was convicted of two similar counts. In each case to run concurrently, Karen Cosford was sentenced respectively to 3 years, 18 months and 2 years imprisonment; Carolyn Falloon was sentenced to 6 months, 15 months and 21 months imprisonment; and Jacqueline Flynn was sentenced to 6 months and 15 months imprisonment. They appeal against their convictions by leave of the single judge; at the conclusion of the hearing, we announced that the appeals would be dismissed; we now provide our reasons.
2. The appellants (along with Kevin Wilson who pleaded guilty to three similar counts and David Sunderland who was acquitted of misconduct in public office) were serving prison officers or nurses at H.M. Prison, Wakefield: they each had over 20 years exemplary service and were of previous good character. Working at a high security prison, they came into contact with dangerous offenders who were both deceitful and manipulative.
3. One such prisoner was Brian McBride who, between 1 January 2008 and September 2009 had served 17 years of a life sentence, having been convicted of serious sexual offences against women, including rape and buggery. He was manipulative to an unusual extent and there was evidence that he was accorded notoriety and enhanced privileges in prison, having received unreported visits to his cell from the prison governor who was alleged to have revealed sensitive information to him. He was detained in a cell within the Health Care section of the prison and enjoyed the trusted position of wing cleaner.
4. On 25 September 2009, McBride's cell was searched in his absence; subsequently, he was searched. What the search revealed was a mobile phone charger, mobile phone top up receipts, four mobile phones and a home made weapon with two razor blades taped together. There was also a love letter from Karen Cosford. There was a later search (on 5 February 2010) of the Health Care Unit: the upshot was that mobile phones, Sim cards and top up vouchers could be linked to each appellant. There was evidence from prison staff and other prisoners that McBride and Karen Cosford had been caught engaged in sexual activity (including intercourse) on at least three occasions. On one occasion Carolyn Falloon and Jacqueline Flynn admitted that they had stood outside McBride's cell whilst Karen Cosford and McBride were having intercourse inside; for her part, Karen Cosford admitted sending McBridge love letters and text messages expressing affection for him.
5. The prosecution case was that the conduct of the three women constituted misconduct in public office. In relation to Karen Cosford, a nurse employed by the prison, it consisted of engaging in a sexual relationship with McBride over several months (Count 1); failing to report the possession by McBride of a mobile phone (Count 2); and facilitating his use of the phone by purchasing 'top-up' credits for it (Count 3). For Carolyn Falloon, a prison/hospital officer carrying out a nursing role, it consisted of failing to report (and deliberately covering up) her knowledge of the sexual relationship between McBride and Karen Cosford who was her manager (Count 4); failing to report the possession by McBride of a mobile phone (Count 5); and facilitating his use of the phone by purchasing 'top-up' credits for it (Count 6). As for Jacqueline Flynn, employed as a registered general nurse (on the same basis as Karen Cosford) she admitted failing to report (and deliberately covering up) her knowledge of the same sexual relationship (Count 7); failing to report the possession by McBride of a mobile phone (Count 8).
6. The primary defence of each of the appellants was that none held a public office, each acting (and, indeed, dressing) solely as a nurse albeit in a prison environment with a different title: Karen Cosford and Jacqueline Flynn also distinguished themselves from Carolyn Falloon on the basis that she was a prison/health officer with the powers of arrest of a prison officer whereas they were employed as registered nurses. Each of the three also denied that their behaviour constituted wilful misconduct such as, in the light of their exemplary good characters, to be deserving of criminal condemnation: McBride was a dangerous and manipulative individual who had a history in the Prison Service of which they had not been warned.
7. In addition, Karen Cosford asserted that her sexual relationship with McBridge had not been consensual and that she had three times been raped by him. She had allowed this behaviour to continue, had sent love letters and messages and facilitated his use of a mobile phone because she was afraid of him and needed to "keep him sweet". He had threatened her with acid and knew details of her life outside prison. He had manipulated her and made unfulfilled promises to pay off her mortgage.
8. Carolyn Falloon also spoke of being fearful of McBride; her conduct was not so serious as to amount to a crime but justified dismissal only. McBride had information about her life outside prison; she had been scared and manipulated by him (with promises that her mortgage would be paid). Karen Cosford was her manager and friend; she and Jacqueline Flynn had wanted to protect her. Messages she had received from McBride had come from different Sim cards and aliases and had created the impression that he was being actively assisted by a network of people outside the prison, which added to her fear of him and the potential for repercussions if she did not co-operate.
9. Jacqueline Flynn's defence was that she did not want to report Karen Cosford because she was aware of her difficult domestic situation. She also believed that McBride was protected by the governors and the security department: her actions were an error of judgment, partly caused by how the prison had been run at the time: her conduct was not criminal.
10. The acts relied on by the prosecution (save as to the consensual nature of the sexual relationship with Karen Cosford) were essentially not in dispute. The issues for the jury were whether the appellants or any of them held a public office; whether each, in turn, wilfully misconducted herself in the performance of her public duties; and whether the conduct of each, in turn was such as to be deserving of criminal condemnation and sanction. The latter two questions were issues of fact for the jury; they were determined adversely to the appellants: no issue arises as to these. The issue on this appeal, in each case, is whether the appellant in question held a public office and, furthermore, whether this was an issue of fact for the jury or, given that the facts which formed the basis for any finding were not in issue, a question of law for the judge.

The Approach at the Trial

11. Whether these appellants held public office was ventilated twice during the trial. First, an application was made pursuant to Sched. 3 of Part 2(2) of the Crime and Disorder Act 1988 to dismiss the charges after they had been sent from the magistrates specifically on this ground. Counsel argued that Karen Cosford and Jacqueline Flynn were independent medical practitioners, no different to any RGN working in a GP surgery within the NHS. Although Carolyn Falloon was an SRN within the prison, her duties did not warrant the label of public officer: reliance was placed on the need strictly to confine the position of public office.
12. His Honour Judge Kearl Q.C. rejected the applications. As for Carolyn Falloon (and Kevin Wilson), he said that prison officers were acting as public officers when carrying out their duties. He explained:

"They hold powers similar to those of a police constable in respect of arrest. They are performing their duties within a secure prison environment and are subject to the provisions of the Official Secrets Act. They are able to search prisoners and prison cells. They have access to all areas of the prison in order to perform their duties. They are appointed by HM Prison Service and are trusted to perform their duties in the public service under the National Offender Management Service. They swear allegiance to the Sovereign."

13. Judge Kearl reached a similar conclusion in relation to Karen Cosford and Jacqueline Flynn also employed by Her Majesty's Prison Service, now the National Offender Management Service. He explained:

"They were subject to the provisions of the Official Secrets Act and required security vetting and clearance in order to perform their duties. Each was working within the secure environment of a high security prison at the time of these events. They were in a position of trust in relation not only to their employment and employers but also the public as a whole. Public safety depended on the performance of their duties in an environment in which security was a matter of high priority. Their duties went beyond those of a nurse operating within the NHS in a hospital or a GP surgery. They were issued with prison keys and cell keys. They had unsupervised access to the prisoners and had a power of search attached to their duties. This leads me to the conclusion that the level of trust and responsibility placed in those working within the prison environment was far in excess of that of a nurse working in the public sector. They have the trust of the public and are paid by the public to perform their duties within that specific, secure environment."

14. The facts described by Judge Kearl were not in issue and, at the close of the prosecution case, the question was revisited as one strand of a submission of no case to answer. By then, the totality of the unchallenged evidence was to the following effect:

i) Each of the appellants was at the material time a civil servant and an employee of Her Majesty's Prison Service under the umbrella of the National Offender Management Service.

ii) Karen Cosford and Jacqueline Flynn were employed as Prison Service Nurses; Carolyn Falloon was employed as a Healthcare Officer, that is a Prison Officer who was also a trained nurse (which had involved her swearing an oath to the sovereign concerning her discharge of the office in which she was employed).

iii) The appellants each worked within a maximum security prison which housed many of the most dangerous offenders in the prison system. All members of prison service staff, including the appellants, knew that security was a fundamental consideration to the Prison Service and that they were expected to behave in a fashion that did not jeopardise security.

iv) The appellants were each subject to the provisions of the Official Secrets Act and had signed a declaration to that effect on taking up employment; they had been vetted for National Security Clearance.

v) Each of the accused was issued with prison keys and individual cell keys and was permitted unsupervised access to the prisoners in a manner over and above that of other members of prison service staff.

vi) Each of the accused knew that in the course of their employment within the prison they had a duty to raise issues that might compromise security with the security department and, as a matter of fact, in the course of their employment each of the accused had raised security concerns using the Security Information Report (SIR) procedure.

vii) The appellants all knew (and accepted in evidence) that the possession of mobile telephones by prisoners was prohibited and represented a gross breach of security and that they had a duty to report the same. Equally, they knew that entering into a sexual relationship with a prisoner was prohibited and represented a gross breach of security and that they had a duty to report the same.

viii) Each of the accused was reviewed on an annual basis against criteria set out in a Staff Performance and Development Record. That included 'treating security as a matter of high priority' and required the accused to 'accurately and urgently report incidents and breaches'.

15. Judge Hatton Q.C. analysed the law and the submissions. He repeated some of the features mentioned by Judge Kearl and observed:

"There is evidence before me which clearly demonstrates that each defendant was entrusted with and had responsibilities and duties which were of substantial importance to the public at large and went beyond the ordinary duties and responsibilities of nurses out of the environment in which these defendants had chosen to accept employment. They were engaged in a high security prison where dangerous men were housed. The public clearly had an acute interest in the maintenance of order and security in that establishment. Security in that place was of high priority and clear to all staff, including these defendants. The staff themselves were subjected to stringent security procedures. They held keys and had access to all parts of the prison. They had access to cells and, in the Health Care Centre at least, had powers which were exercised for locking and unlocking cells.

It is of importance that there was in place a system in the prison whereby staff could and indeed had a responsibility to report matters of concern involving security and other matters, both involving prisoners and colleagues. To that end, there existed what were called security information reports; documents which were stated, on their face, as being to provide security intelligence. Something considered important to the Prison Service and something of importance, in my judgment, to the public. Each defendant was, accordingly, responsible for playing his or her important role in the maintenance of good order and security as part of their duties. Each defendant accepted that responsibility as part of their duty and three of them [including these appellants] in fact completed such reports from time to time. …

I find that each accepted "an office of trust concerning the public" to use the words of Lord Mansfield and … "is answerable criminally to (the King) for misbehaviour" in that office. In the words of Best CJ repeated almost verbatim in Regina v Whitaker and repeated also by Hirst LJ, each was "appointed to discharge public duties" and was, in my judgment, therefore, constituted a public officer."

16. Judge Hatton was then persuaded to leave the question of public office to the jury, which, before describing the evidence which is summarised in his ruling, he did in these terms:

"A person holding a public office for these purposes is someone who discharges a duty or who is entrusted with the discharge of a duty in which the public at large – of which you are members – have an interest. Does the public at large – of which you are representative members – have an important interest to be served such as to be entitled to place its – that is your – trust in and reliance on the person performing the role? Every person who is appointed to discharge such a public duty is constituted a public officer."

The Submissions

17. Mr Andrew Stubbs Q.C., for Karen Cosford and Jacqueline Flynn, argued that the judge had approached the issue of 'public office' in such general terms that he ignored the strictures contained within the authorities for the group who fell within that definition to be "strictly confined". He submits that although the older cases suggest a wider approach, a proper consideration of the authorities demonstrates that there has to be reposed in the individual a degree of authority over the citizen or a fiduciary duty to the citizen before someone can be said to be the holder of a public office and that the office had to be of a type that endures and has an existence independent of the person who holds it at any one time.
18. In reality, he submitted that his clients were no different from nurses employed by the National Health Service and their possession of keys or the other accoutrements that flowed from their employment within a high security prison setting did nothing to evidence the requisite degree of trust or authority required before a criminal sanction could be applied to any misconduct arising from their position as nurses. He also noted that, by the time of the trial, although suspended from duty, their employment had been transferred to a private contractor and argued that the location of their employment explained only certain conditions under which they worked: it did not change their status from employee to public officer.
19. Mr Adrian Keeling for Carolyn Falloon adopted these arguments. He recognised that his client was, in fact, a prison officer before becoming a hospital officer but submitted that when she was appointed (before the other appellants) it was obligatory to follow that route in order to work as a nurse in a prison. Her work and responsibilities were identical to those of Jacqueline Flynn; Karen Cosford was her line manager. In the circumstances, he argued that it would be wrong to distinguish between them simply by reason of the accident of the timing of her appointment, and that it would be remarkable if Carolyn Falloon were held to hold a public office by virtue of her status as a prison officer if her superior Karen Cosford did not.
20. Mr Richard Wright, for the Crown, argued that the Judges Kearl and Hatton were right for the reasons that they gave. As for the submission made by Mr Stubbs that the offence should be strictly confined, he adopted Judge Hatton's approach which was expressed in these terms:

"Mr Stubbs' fear that large portions of the population will be exposed to potential criminal liability for misconduct in their office, absent their post being a specific enduring post of identifiable authority seems to me to be misplaced. First, they may only do so if their office is one of trust concerning the public. Second, the misconduct committed in the performance of that office must, itself, touch upon the public interest as the conduct impugned must be of such a degree and seriousness as to call for criminal condemnation. Misconduct that infringes other substantive criminal laws which will in many, if not most cases, be the case, will almost [always] be pursued pursuant to that law."

21. Mr Wright recognised that each case turned on its own facts but he formulated a general proposition as to the nature of the office. It was that the office must be one of trust concerning the public or involving the discharge of a duty in which the public have an interest; remuneration is not determinative but, if paid, there is no requirement that payment be provided by a public body provided it is an office in the discharge of which the public has an interest and invests its trust.
22. In order to assess these competing submissions, it is necessary to consider the authorities, bearing in mind the need not to be over-influenced by language more suited to a different time but, rather, to reflect modern conditions. It is to these that we now turn.

The Law

23. In order fully to understand the present state of the law, it is, once more, necessary to trawl through the relevant authorities. The starting point is R v. Benbridge (1783) 99 ER 679, in which Lord Mansfield decided (at 681):

"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; this is true, by whomever and in whatever way the officer is appointed".

24. In Henly v The Mayor and Burgesses of Lyme (1828) 5 Bing 91, Best CJ was concerned with the responsibilities of the local authority in connection with the repair of sea walls. He said (at page 107):

"Now I take it to be perfectly clear, that if a public officer abuses his office, either by an act of omission or commission, and the consequences of that, is an injury to an individual, an action may be maintained against such public officer. The instances of this are so numerous that it would be a waste of time to refer to them. Then, 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."

25. In the House of Lords (reported as Lyme Regis Corporation v Henley 6 ER 1180; [1824-34] All ER Rep 503) Lord Brougham LC and Lord Wynford sought the opinion of 12 judges who attended the House when the case was argued. That opinion was given by Park J who said:

"We do not go to the length of saying that a stranger can take advantage of an agreement between A and B, nor even of a charter granted by the King, where no matter of general and public concern is involved, but where that is the case, and the King, for the benefit of the public, has made a certain grant imposing certain public duties, and that grant has been accepted, we are of the opinion that the public may enforce the performance of those duties by indictment, and individuals peculiarly injured, by action."

26. The matter next arose in R v. Whitaker [1914] 3 KB 1283 which concerned the activities of the colonel of a regiment who accepted from a firm of caterers sums of money to induce him to accept their representative as tenant of the regimental canteen. He was convicted of bribery and conspiracy. As to the argument that the appellant was not a 'public and ministerial officer', Lawrence J observed:

"A public officer is an officer who discharges any duty in the discharge of which the public are interested, more clearly so if he is paid out of a fund provided by the public. If taxes go to supply his payment and the public have an interest in the duties he discharges, he is a public officer."

27. Moving to the more recent jurisprudence, R v Bowden [1995] 4 All ER 505 concerned a middle manager in the maintenance department of Stoke Council who had dishonestly caused maintenance works to be carried out by local authority employees at premises occupied by one of his friends when such works were not required by the council's repairing policy. He argued that his was too lowly a position to be a public office for the purposes of this offence. The judge rejected this submission as a matter of law, whereupon he pleaded guilty. On appeal, the court (Hirst LJ, Hidden and Mitchell JJ) cited Bembridge and Henly and said of the latter (at page 509) that :

"even though it was a civil case, a public office is correctly defined as embracing – 'everyone who is appointed to discharge a public duty, and receives compensation in whatever shape whether from the Crown or otherwise' (see Bing 91 at 107, 130 ER 995 at 1001). (Our emphasis.)"

28. Dealing with the specific argument that the appellant could not be described as an officer, Hirst LJ went on (at page 509):

"He was responsible to his employers, the city of Stoke-on-Trent for the upkeep of their council housing and in that capacity was accountable for the receipt of disbursements of public money derived by the city council either from the rates (or their modern equivalent) or from central government grants. Moreover, his salary was paid from the same public funds. He thus, in our judgement, falls squarely within the definition of 'public officer' laid down in the authorities and we are unable to accept the submission that, with these responsibilities, his position was too lowly to qualify.

29. This language, from a modern case, is undeniably wide and the conclusion is binding upon this court. That is not the case in relation to the decision upon which Mr Stubbs and Mr Keeling place considerable reliance, namely Attorney General's Reference (No 3 of 2003) [2005] QB 73 which concerned a challenge by the Attorney General to the decision of Roderick Evans J that misconduct in a public office could not be founded on the basis of recklessness by five police officers as to the risk to the welfare of a man in custody. It was not suggested that a police officer was not a public officer and the case turns entirely on the characterisation of misconduct and the necessary mens rea for the offence. Indeed, Pill LJ made clear that although the defendant must be a public officer acting as such, "in the absence of submissions on those ingredients", the court "did not propose to elaborate upon them".
30. The dicta upon which these appellants rely come from a different point being made by counsel for the respondent to the reference. Pill LJ said (at page 92):

"Mr Baker for the defendants at the trial, raised the point that public functions are now frequently carried out by employees in private employment, for example those concerned with security at courts and the transport of defendants. There is an unfairness and illogicality, he submits, if those holding a public office, such as police officers, are to be liable to a sanction not applicable to those in private employment who do similar work. This potential unfairness adds weight, in our view, to the conclusion that the offence should be strictly confined but we do not propose to develop the point or to consider further the question of what, for the present purposes, constitutes a public office'"

31. This decision was cited in R v Belton [2011] QB 934 [2010] EWCA Crim 2857 which concerned a volunteer member of the Independent Monitoring Board of a prison which is an unpaid position governed by the Prison Act 1952. She also had an inappropriate relationship with serving prisoners. When the judge ruled that the offence of misconduct in public office was not restricted to office holders in receipt of remuneration, she pleaded guilty. On appeal, the sole point was whether the judge was correct to conclude as he had: it was held that remuneration was not 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.
32. Giving the judgment of the court, Gross LJ made it clear (at para. 17) that each case would turn on its own facts and later cited the observations of Pill LJ that the offence should be strictly confined observing (at para. 28):

"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."

33. Gross LJ was not reaching an independent conclusion in this regard; he said that this observation did not assist the appellant. As a conclusion, intended to do no more than summarise his view of the authorities, he recognised (at para. 29) that there was good reason to confine the offence "strictly or within proper grounds" for the reasons given by Pill LJ but he went on:

"The central theme of the authorities now running back for some 200 years is encapsulated in the observations of Lord Mansfield CJ: 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'"

34. Nothing in the authorities justifies the conclusion that the 'strict confinement' should be to the position held by whomsoever is 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 performance of the duty. This is consistent with Lord Mansfield's observation in Bembridge referring to "an office of trust concerning the public".
35. This approach is underlined by a list of those who have been held to be in a public office for the purposes of the offence. They include police officers (AG's Reference (No 3 of 2003) above) including officers in a period of suspension (Knox [2011] EWHC 1629, (Admin) [2011] 2 Cr App R 21) and former officers doing part-time police work (DL [2011] EWCA Crim 1259, [2011] 2 Cr App R 14); others working for the police including community support officers (Amar Iqbal [2008] EWCA Crim 2066) and those in charge of computer systems including a civilian call handler (Gallagher and others [2010] EWCA Crim 3201); prison officers (Ratcliffe [2009] EWCA Crim 1468; McDade [2010] EWCA Crim 249; Olawale Jibona [2010] EWCA Crim 1390; Wright [2011] EWCA Crim 1179); prison visitors (Belton above); magistrates (Pinney (1832) 3 B & Ad 947); county court registrars (now district judges) (Llewellyn-Jones [1968] 1 QB 429); local councillors (Speechley [2004] EWCA Crim 3067); some local authority employees (Bowden above); army officers (Whitaker above); immigration officers (John-Ayo (Mofeyishola) [2008] EWCA Crim 1651); DVLA employees (Attorney General's Reference (No.140 of 2004) [2004] EWCA Crim 3525).

Application of the Law

36. In the light of the above analysis, we turn to the facts of this case. In our judgment, the aphorism from the evidence adopted by Mr Stubbs that "a nurse is a nurse" does not start to do justice to the task which these appellants undertook. The responsibilities of a nurse in a general hospital are to the patients for whose care they are responsible; the responsibilities of a nurse (whether trained as a prison officer or not) in a prison setting are not only for the welfare of the prisoners (their patients); they are 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. The duties described in para. 14 above more than amply fulfil the requirements of a public office: the rulings of Judge Kearl and Judge Hatton were correct.
37. We add this. Although counsel for the respondents in AG's Reference (No 3 of 2003) expressed concern that there should be no distinction between those who hold a public office and those who are in private employment who do similar work, in the context of the prison system, we see no distinction. Whether the prison is run directly by the state or indirectly through a private company paid by the state to perform this function does not alter the public nature of the duties of those undertaking the work: the responsibilities to the public are identical.
38. Furthermore, these decisions 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 was 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: see R v Evans [2010] 1 All ER 13, [2009] EWCA Crim 650). The judge's decision to leave this question to the jury was overfavourable to the appellants.
39. It is for these reasons that these appeals are dismissed. As to the future, however, we recognise that it is unsatisfactory that each of the recent decisions in this area has required the court to trawl through the authorities to try to discern a thread which accurately represents the true position and can be translated into modern employment conditions. In this regard, it is entirely laudable that the Law Commission intends to revisit the ambit of the offence of misconduct in public office, commencing work in early 2014 with a consultation in the following year.