Appeal

Defendants being convicted of misconduct in public office offences - Defendants appealing

R v Cosford and others: Court of Appeal, Criminal Division: 16 April 2013

The defendants, KC, CF and JF were serving prison officers or nurses at a prison. As part of their job working in a high-security prison, the defendants came into contact with dangerous offenders, one being BM who was serving a life sentence. In September 2009, BM's cell was searched in his absence and a mobile phone charger, mobile phone top-up receipts, four mobile phones, a home-made weapon and a love letter from KC were found.

A further search in February 2010 linked mobile phones, sim cards and top up vouchers to each defendant. They were charged with committing offences of misconduct in public office. There was further evidence from prison staff and other prisoners which stated that BM and KC had been caught engaged in sexual activity at least three times. Further, CF and JF admitted that they had stood outside BM's cell whilst KC and BM were having intercourse inside. Furthermore, KC admitted sending BM love letters and text messages. The prosecution case had been that the conduct of the three defendants constituted misconduct in public office (see [5] of the judgment).

The primary defence of each of the defendants was that none of them held a public office, each acting solely as a nurse albeit in a prison environment with a different title. KC and JF distinguished themselves from CF on the basis that she was a prison/health officer with the powers of arrest of a prison officer whereas they had been employed as registered nurses. The defendants also denied that their behaviour constituted wilful misconduct such as, in the light of their exemplary good characters, to be deserving of criminal condemnation. The issues for the jury had been whether: (i) any of the defendants held a public office; (ii) each defendant in turn wilfully misconducted herself in the performance of her public duties; and (iii) the conduct of each in turn had been such as to be deserving of criminal condemnation and sanction. Subsequently, KC and CF were each convicted of three counts of misconduct in public office and JF was convicted of two similar counts. In each case to run concurrently, KC was sentenced respectively to three years, 18 months and two years' imprisonment; CF was sentenced to six months, 15 months and 21 months' imprisonment; and JF was sentenced to six months and 15 months' imprisonment. The defendants appealed against their convictions.

It fell to be determined, in each case, whether the defendant in question held a public office and, furthermore, whether that had been an issue of fact for the jury or, given that the facts which formed the basis for any finding had not been in issue, a question of law for the judge. The appeals would be dismissed.

Nothing in the authorities justified the conclusion that the 'strict confinement' of the understanding of public duty had to be to the position held by whomsoever was carrying out the duty: rather, it must be addressed to the nature of the duty undertaken and, in particular, whether it was a public duty in the sense that it represented the fulfilment of one of the responsibilities of government such that the public had 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 (see [34] of the judgment).

In the present case, the aphorism adopted that a 'nurse is a nurse' did not start to do justice to the task which the defendants undertook. The responsibilities of a nurse in a general hospital were to the patients for whose case they were responsible; the responsibilities of a nurse (whether trained as a prison officer or not)n in a prison setting were not only for the welfare of the prisoners (their patients); they were also responsible to the public for, so far as it was within their power to do so, the proper, safe and secure running of the prison in which they worked. The duties of the defendants more than amply fulfilled the requirements of a public office.

Further, that decision had been a decision of law. If there had been an issue as to the facts (either of the relationship or duties), the decision as to the facts would have been for the jury. the existence or otherwise of a public office had been for the judge (see [14], [36] and [38] of the judgment). Lyme Regis Corpn v Henley [1824-34] All ER Rep 503 considered; R v Whitaker [1914] 3 KB 1283 considered; R v Bowden [1995] 4 All ER 505 considered; A-G's Reference (No 3 of 2004) [2004] All ER (D) 111 (Apr) considered; R v Evans [2009] All ER (D) 33 (Apr) considered; R v Belton [2010] All ER (D) 88 (Nov) considered.

Per curiam: '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' (see [37] of the judgment).

Andrew Stubbs QC (instructed by the Registrar of Criminal Appeals) for KC and JF; Adrian Keeling QC (instructed by the Registrar of Criminal Appeals) for CF; Richard Wright (instructed by the Crown Prosecution Service) for the Crown.

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