Monday 22 July 2013 by Dr Nicholas Dobson

To most people (who, surprisingly to some, include lawyers) occupation of premises connotes actual physical possession of the land in question or its use.

But what if a charitable organisation takes a lease of commercial premises and installs one or more Wi-Fi transmitters (each similar in size to domestic broadband units and using a minimal amount of physical space) to provide free broadband access to those within range, and also to broadcast Bluetooth messages on crime prevention and public safety themes to those with a Bluetooth-enabled mobile phone?

The equipment in question operates without human assistance (except for occasional maintenance visits) with the premises otherwise unused. Would such occupation afford relief from non-domestic rates on the ground that the organisation is a charity in occupation of the relevant hereditament (the unit of property used for rating purposes), and that the hereditament is 'wholly or mainly used for charitable purposes', per section 43(6)(a) of the Local Government Finance Act 1988?

That was what Sales J in the Administrative Court had to decide on 14 May in three appeals by case stated from the magistrates' court, involving the Public Safety Charitable Trust (the trust) and Milton Keynes Council, South Cambridgeshire District Council and Cheshire West and Chester Borough Council ([2013] EWHC 1237 (Admin)). The scheme in question involved the trust taking a lease of relevant premises for a nominal or peppercorn rent, subject to a short notice period. The landlord pays the trust a 'reverse premium' in respect of its occupation, and the saving in apparent relief from liability for non-domestic rates is shared between both landlord and the trust with, as Sales J pointed out, 'the loser being the public purse'.

However, the scheme foundered in the Administrative Court, Sales J taking the view that: 'In the context of this legislation and having regard to the language used, it is reasonable to infer that parliament intended that the substantial mandatory exemption from rates for a charity in occupation of a building should depend upon the charity actually making extensive use of the premises for charitable purposes (that is, use of the building which is substantially and in real terms for the public benefit, so as to justify exemption from ordinary tax in the form of non-domestic rates), rather than leaving them mainly unused.'

So, in this case ordinary, intuitive notions of what would reasonably constitute occupation also aligned with legal principle. Good news for cash-strapped local authorities, particularly since the trust had apparently taken out some 2,000 such leases across the country. But bad news for the trust, particularly since on 8 July the Companies Court in London ordered that it be wound up (following a petition by South Cambridgeshire District Council) and the trust must repay outstanding business rates to the council. It also seems that many other councils will similarly be raising claims against the trust.

Time travel

If Mrs Beeton, in her celebrated 1861 Book of Household Management, were to have written a recipe for the common law offence of misconduct in public office, she would no doubt have started by stipulating: 'First find your public office.' But while there was no mention of Isabella Beeton in the Court of Criminal Appeal on 16 April, the nature of 'public office' was very much in issue (see R v Cosford and others [2013] EWCA Crim 466 (Lord Justice Leveson, Mr Justice Mitting and Mr Justice Males)).

This concerned three female employees of Wakefield Prison who had been so convicted. Prison nurse Karen Cosford (pictured) had a sexual relationship with a prisoner, failed to report his possession of a mobile phone and purchased top-up phone credits for him. Carolyn Falloon, a prison/hospital officer, had failed to report the relationship and phone possession and similarly purchased top-up phone credits. Registered general nurse Jacqueline Flynn had also failed to report Cosford's relationship and the prisoner's possession of a mobile phone.

Following Attorney General's Reference No 3 of 2003 [2004] EWCA Crim 868, the offence of misconduct in public office occurs where: (i) without reasonable excuse or justification; (ii) a public officer acting as such; (iii) wilfully neglects to perform his duty and/or wilfully misconducts himself; (iv) to such a degree as to amount to an abuse of the public's trust in the office holder. The primary defence of each appellant was that none held a public office since they were acting solely as nurses, albeit in a prison environment and with a different title.

Leveson LJ (now free from the fetters of inquiry duties) gave the judgment of the court. In reviewing relevant jurisprudence he noted various authorities. These included Henly v The Mayor and Burgesses of Lyme (1828) 5 Bing 91, where Best CJ had expressed the opinion that: '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.' And in R v Whitaker [1914] 3 KB 1283, Lawrence J observed that: '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.'

And in R v Belton [2011] QB 934, Gross LJ said: '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.'

In the instant case, the court saw no distinction between those holding public office and those in private employment doing similar work. For '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'. In the circumstances, the appeals were dismissed.

However, bearing in mind the lengthy time-travel through layers of jurisprudence to elicit the law in the modern context, Leveson LJ said it was 'entirely laudable' that the Law Commission intends to start work early in 2014 on revisiting the ambit of misconduct in public office.

Dr Nicholas Dobson is a lawyer specialising in local authority law and governance