Attorney General’s Reference (No 3 of 2003): CACD 7 Apr 2004

Police Officers had been acquitted of misconduct in public office. They had stood by in a police station custody suite as a prisoner lay on the floor and died.
Held: The trial took place before R -v- G which had overruled Caldwell. The standard of recklessness to be show was that laid down in Cunningham. For the offence of misconduct in public office, the defendant must be a public officer acting as such, there must be a breach of duty by the officer. It may consist of an act of commission or one of omission. The conduct must be wilful: ‘There must be an awareness of the duty to act or a subjective recklessness as to the existence of the duties. The recklessness test will apply to the question whether in particular circumstances a duty arises at all as well as to the conduct of the defendant if it does. The subjective test applies both to reckless indifference to the legality of the act or omission and in relation to the consequences of the act or omission’. The element of culpability ‘must be of such a degree that the misconduct impugned is calculated to injure the public interest so as to call for condemnation and punishment.’ The action should have been without reasonable excuse or justification.
In future, in similar cases a charge of misconduct in public office should not be routinely added.
The court declined to define a public officer, however, but said: ‘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 present purposes, constitutes a public office.’

Mr Justice Hughes, Lord Justice Pill, Justice Aikens
Times 22-Apr-2004, [2004] EWCA Crim 868, [2005] QB 73, [2004] 2 Cr App Rep 23, [2004] 3 WLR 451, [2005] 4 All ER 303
England and Wales
CitedCommissioner of Police v Caldwell HL 19-Mar-1981
The defendant got drunk and set fire to the hotel where he worked. Guests were present. He was indicted upon two counts of arson. He pleaded guilty to the 1(1) count but contested the 1(2) charge, saying he was so drunk that the thought there might . .
CitedRegina v G and R HL 16-Oct-2003
The defendants, young boys, had set fire to paper and thrown the lit papers into a wheelie bin, expecting the fire to go out. In fact substantial damage was caused. The House was asked whether a conviction was proper under the section where the . .
CitedRegina v Dytham CACD 1979
A constable was 30 yards away from the entrance to a club, from which he saw a man ejected. There was a fight involving cries and screams and the man was beaten and kicked to death in the gutter outside the club. The constable made no move to . .
CitedRegina v Sheppard HL 1981
The section made it an offence for anyone having care of a child to wilfully neglect the child ‘in a manner likely to cause him unnecessary suffering or injury to health’.
Held: The section speaks of an act or omission that is ‘likely’ to . .
CitedRegina v Bowden (T) CACD 24-Feb-1995
The defendant, a maintenance manager, was accused of misconduct in public office. He had caused works to be carried out by other employees of the local authority on premises occupied by a friend when such works were not required under the . .
CitedRegina v Cunningham CCA 1957
Specific Intention as to Damage Caused
(Court of Criminal Appeal) The defendant wrenched a gas meter from the wall to steal it. Gas escaped. He was charged with unlawfully and maliciously causing a noxious thing, namely coal gas, to be taken by the victim.
Held: Byrne J said: ‘We . .
CitedCrouther’s case 1599
A constable was indicted for refusing to make a hue and cry after notice of a burglary committed in the night. . .
CitedRex v Wyat 1705
Where an officer [a constable] neglects a duty incumbent upon him, either by common law or statute, he is for his default indictable. . .
CitedRex v Bembridge 1783
The defendant was an accountant in the office and place of receiver and paymaster general. The court was asked whether he held a public office.
Held: A man who holds a public office is answerable criminally to the king for misbehaviour in that . .
CitedRex v Borron 1820
A criminal information was applied for against a magistrate.
Abbott CJ said: ‘They [magistrates] are indeed, like every other subject of this kingdom, answerable to the law for the faithful and upright discharge of their trust and duties. But, . .
CitedRegina v Llewellyn-Jones CACD 1968
The Registrar of a County Court was convicted of offences of misconduct in public office. The indictment charged ‘misbehaviour in a public office, contrary to common law’ and alleged that court orders had been made ‘with the intention of gaining . .
CitedLloyd v McMahon HL 12-Mar-1987
The district auditor had issued a certificate under the 1982 Act surcharging the appellant councillors in the sum of 106,103, pounds being the amount of a loss incurred or deficiency caused, as the auditor found, by their wilful misconduct.
CitedGraham v Teesdale and Another 1981
The case concerned the audit of local authority accounts by a district auditor. The court considered the meaning of ‘wilful misconduct’ within the section.
Held: Wilful misconduct means ‘deliberately doing something which is wrong knowing it . .
CitedThree Rivers District Council and Others v Governor and Company of The Bank of England HL 18-May-2000
The applicants alleged misfeasance against the Bank of England in respect of the regulation of a bank.
Held: The Bank could not be sued in negligence, but the tort of misfeasance required clear evidence of misdeeds. The action was now properly . .

Cited by:
CitedAttorney General’s Reference (Number 8 of 2004) (Dawson and Others) CANI 15-Apr-2005
Defendants had been convicted of offences involving supply of cannabis and cocaine, including the evasion of import controls and conspiracy. The sentences were appealed as too lenient.
Held: Where a prosecutor was aware that a plea of guilty . .
CitedWatkins v Home Office and others HL 29-Mar-2006
The claimant complained of misfeasance in public office by the prisons for having opened and read protected correspondence whilst he was in prison. The respondent argued that he had suffered no loss. The judge had found that bad faith was . .
CitedRegina v W CACD 2-Mar-2010
The defendant appealed against his conviction for misconduct in public office. As a police officer he had used an official credit card to pay for personal items. He said that he believed this was allowed where he intended to discharge the debt. He . .
CitedABC and Others, Regina v CACD 26-Mar-2015
Several defendants sought to appeal against convictions. They were public officials accused of having committed misconduct in public office in the sale of information relating to their work to journalists. The journalists were convicted of . .
CitedMonica, Regina (on The Application of) v Director of Public Prosecutions Admn 14-Dec-2018
Deception as to identity did not undermine consent
The claimant had been an environmental campaigner. She had had a sexual relationship with a man who was unknown to her an undercover police officer. She now challenged the decision not to prosecute him for rape.
Held: Her claim failed. Case . .
CitedBall v Johnson 29-May-2019
Summons granted for political lies allegation
(Westminster Magistrates Court) The court gave its reasons for acceding to a request for the issue of a summons requiring the defendant to answer a charge for three offences alleging misconduct in a public office.
Held: There was prima facie . .
CitedJohnson v Westminster Magistrates’ Court Admn 3-Jul-2019
Public Office Misconduct – Acting As not While
The claimant sought judicial review of a decision to issue a summons against him alleging three offences of misconduct in public office. He was said to have issue misleading statements in support of the campaign leading up to the Referendum on . .

Lists of cited by and citing cases may be incomplete.


Leading Case

Updated: 10 November 2021; Ref: scu.195493