Evans v R: OSGs Can Be Public Officers; Likely Consequences, Not Proven Harm, Define Seriousness in Misconduct in Public Office

Introduction

In Evans v R ([2025] EWCA Crim 1150), the Court of Appeal (Criminal Division) addressed two recurrent fault-lines in the common law offence of misconduct in public office (MIPO): (i) who is a “public officer” and (ii) what kind of misconduct suffices, particularly where no harm is proved. The appellant, an Operational Support Grade (OSG) at HMP Hewell with a record of distinguished public service, was convicted of MIPO after failing to perform mandatory checks on three prisoners subject to ACCT (Assessment, Care in Custody and Teamwork) plans and falsifying records to suggest compliance. One of the prisoners, Mr Mesut Olgun, later died by suicide, though at trial the judge ruled there was insufficient evidence that the appellant’s breach substantially contributed to the death. The manslaughter count was withdrawn at half-time; the MIPO count was left to the jury and resulted in conviction.

On appeal, the appellant contended: (i) an OSG is not a “public officer” for the purpose of MIPO; (ii) absent proof of an adverse event caused by the breach, no jury could conclude the misconduct met the criminal seriousness threshold; and (iii) the jury direction on the relevance of the suicide risk allowed wrongful reliance on the death to inflate gravity. The Court (Holroyde LJ giving judgment) dismissed the appeal and set out detailed reasons that refine and extend existing MIPO doctrine.

Summary of the Judgment

Public officer status: Applying the three-stage test in R v Mitchell [2014] EWCA Crim 318, the Court held that an OSG with overnight responsibility for a prison block—including responding to cell calls, implementing ACCT checks, and accurately recording them—can be a “public officer.” The decisive focus is on the individual’s duties and whether they fulfill governmental responsibilities in which the public has a significant interest (paras 38–41).
Judge vs jury on public officer status: Although the trial judge left the public-officer question to the jury, the Court of Appeal stated that in this case the judge could properly have decided as a matter of law that the appellant was a public officer (para 42, reaffirming Cosford).
No causation requirement: MIPO is a conduct offence. The prosecution need not prove that the misconduct caused harm. Juries may assess gravity by reference to the likely consequences of the neglect (paras 21, 44–46).
Jury directions: The direction that jurors could consider the likely consequences of neglect was correct, and the judge sufficiently insulated the jury from using the death itself as a basis for gravity (paras 46–47).
Outcome: All grounds failed; conviction safe; appeal dismissed (para 48).

Analysis

Precedents Cited and Their Influence

The Court anchored its reasoning in a settled line of authority that it also carefully extended to the prison OSG context.

1) Attorney General’s Reference (No 3 of 2003) [2004] EWCA Crim 868:

Set out the canonical elements of MIPO (para 21): a public officer, acting as such, who wilfully neglects duty/misconducts himself, to such a degree as to amount to an abuse of the public’s trust, without reasonable excuse.
Emphasised that in gauging whether conduct crosses the criminal threshold, courts may consider the likely consequences of the breach (para 21, esp. [59]–[61]). Evans relies directly on this to validate the trial direction on “likely consequences” (paras 46–47).

2) R v Cosford [2013] EWCA Crim 466:

Rejected a narrow, status-led confinement of “public officer.” The key is the nature of the duty: does it represent the fulfilment of a responsibility of government such that the public has a significant interest in its discharge? (para 23).
Distinguished healthcare roles in prisons from those in general hospitals, underscoring the public dimension of prison settings (para 30 referencing Cosford [36]). Evans extends that logic to OSGs, despite their more limited coercive powers compared to prison officers.
Confirmed that the public-officer determination is ordinarily a matter of law for the judge, with any factual disputes going to the jury (para 32; echoed in Evans at para 42).

3) R v Mitchell [2014] EWCA Crim 318:

Supplied the three-stage analytical test: identify (i) position; (ii) the duties in that position; and (iii) whether fulfilment of those duties is the fulfilment of governmental responsibility in which the public has a significant, general interest, beyond the interests of those directly affected (para 24).
Emphasised focus on the individual’s actual duties, not the employer’s general functions (para 25). Evans adopts and applies this test closely (paras 37–41).

4) Law Commission Report No 397 (2020):

Cited for the difficulty of defining “public officer” in the common law offence. Although the report critiques the offence and proposes reform, the Court applies the existing common law framework, using Mitchell/Cosford as practical tools for determinacy (paras 11, 21–25, 37).

5) R v Travers (Central Criminal Court, 26 January 2018):

Defence invoked the trial judge’s view in Travers that a MIPO conviction could not co-exist with an acquittal on gross negligence manslaughter on the same facts. Evans distinguishes and declines that logic, reaffirming that MIPO has no causation-of-harm requirement (para 28; see also paras 33–34, 44–46).

Legal Reasoning

1) Public Officer Status of an OSG

Applying Mitchell’s three questions, the Court first mapped the appellant’s position and duties (paras 38–39). It was undisputed that the appellant was:

the sole staff member on duty in the block overnight;
the first and only immediate route for prisoner assistance;
responsible for implementing ACCT checks on three vulnerable prisoners; and
required to keep accurate records of those checks.

The third Mitchell question—whether these duties implement governmental responsibilities in which the public has a significant, general interest—was answered affirmatively. The Court reasoned that ensuring the safety and security of prisoners—persons deprived of liberty by the state—is a core responsibility of government. The OSG’s overnight stewardship of a prison block, particularly the operationalisation of ACCT measures and accurate record-keeping, directly serves that responsibility and the public interest in secure, safe prisons (paras 39–41). Importantly, the Court rejected the attempt to collapse the OSG role into three discrete person-to-person duties owed only to identified vulnerable prisoners (paras 39–40).

The Court added that, on these facts, the trial judge could have ruled as a matter of law that the appellant was a public officer, leaving no jury room on that issue (para 42; consistent with Cosford at [38]). However, the Court also cautioned that different OSG roles at different times may lead to different outcomes; the analysis remains duty-specific and fact-sensitive (para 43).

2) Gravity Without Proven Harm: “Likely Consequences” Are Relevant

The Court reaffirmed that MIPO is a conduct offence: the prosecution need not prove that the misconduct caused harm (paras 21, 33, 46). The gravity threshold—“to such a degree as to amount to an abuse of the public’s trust”—is a qualitative assessment for the jury, and in making that assessment juries may consider what consequences were likely to flow from the neglect (paras 21, 44–46).

Here, the appellant failed to perform two-thirds of the required checks on a high-risk prisoner and about half of the checks for two other vulnerable prisoners, and then falsified the logs to indicate compliance (paras 7, 44). Even though manslaughter by gross negligence failed at half-time (no proof that the breach substantially contributed to death), the jury could lawfully conclude that the likely protective function of ACCT checks—limiting opportunity for self-harm and enabling timely intervention—was gravely compromised. Falsifying records compounded the breach by subverting a core safety mechanism intended to drive real-time risk management and subsequent safeguarding measures (paras 44–45).

3) Jury Directions: Keeping Likely Consequences Distinct from Proven Causation

The trial judge used a five-question flow chart that neatly tracked the Attorney General’s Reference elements (para 15). On gravity, he properly directed that there was no requirement to prove harm and instructed jurors not to go behind his ruling that causation of death was not proved. He also indicated that jurors could consider the likely consequences of the neglect (paras 17, 46–47). The Court approved these directions: they adhered to authority, adequately avoided prejudice from the death, and properly guided the jury’s evaluative task (paras 46–47).

Impact and Implications

A. Defining “Public Officer” in the Prison Context

Evans extends the reach of MIPO to OSGs whose functions embed them in the discharge of core governmental responsibilities for the control, safety and welfare of those in custody. Formal powers (e.g., arrest) are not determinative; functional responsibility and public interest are (paras 26–31, 39–41).
The judgment provides a practical roadmap for future cases: courts should closely examine the real duties actually undertaken by the accused at the material time. Outsourced, auxiliary, or lower-paid staff may still be public officers if their duties meet the Mitchell test (para 31).
Important limit: the Court cautions against a blanket rule. Different OSG roles might not qualify; everything turns on the duties and the public-interest dimension at the relevant time (para 43).

B. Seriousness Assessment Without Proof of Harm

Evans robustly reaffirms that MIPO does not require proof that misconduct caused harm; juries may assess gravity by considering likely consequences of neglect. This helps avoid a gap in accountability where dangerous neglect is present but causation of a tragic outcome cannot be proved to the criminal standard (paras 21, 44–46).
For prison cases, this matters especially for suicide-prevention regimes (e.g., ACCT). Falsifying safeguarding logs may itself amount to serious misconduct because it distorts decision-making and undermines protective systems, irrespective of whether a death or injury is linked (paras 44–45).

C. Trial Management and Directions

Public-officer status is ordinarily for the judge as a question of law, not the jury, save where factual disputes exist about relationship or duties (Cosford at [38]; Evans para 42). Expect more assertive judicial rulings on that gateway issue where facts are clear.
Directions must separate causation (not required) from likely consequences (relevant to gravity). Evans approves a simple, structured set of questions for jurors to avoid conflation (paras 15–17, 46–47).

D. Practical Compliance for Prisons and Public Bodies

Staff with day-to-day operational responsibilities for detainee safety—whether civil servants, contractors, healthcare workers in custodial settings, or volunteers—should assume potential exposure to MIPO where duties intersect core government responsibilities and there is a significant public-interest dimension.
Accuracy in safeguarding records is critical. Falsification will be treated as a distinct and aggravating facet of misconduct because it corrupts protective systems and future risk responses (paras 34, 44–45).
Systemic failings (e.g., missed ligature points) do not absolve individual wilful neglect where duties are clear; but they may contextualise culpability and sentencing. The Court carefully distinguished institutional failures for which the appellant was not responsible (para 5).

Complex Concepts Simplified

Misconduct in public office (MIPO): A common law offence committed when a public officer, acting as such, wilfully neglects duty or misconducts themselves, to such a degree that it abuses the public’s trust, without reasonable excuse (paras 21–25).
Public officer: Not defined by job title or pay. The focus is on duties. If the person’s duties implement a responsibility of government in which the public has a significant interest beyond private interests, they are acting as a public officer (paras 23–25, 37–41).
Wilful neglect: A deliberate or reckless failure to perform a known duty, not a mere mistake. In Evans, repeated omissions of mandated checks and falsification of logs showed wilful neglect (paras 7, 15–16, 44–45).
Conduct offence/no causation requirement: For MIPO, the Crown need not prove that misconduct caused harm. Juries may still consider what harm was likely to result when judging gravity (paras 21, 44–46).
Likely consequences vs causation: “Likely consequences” inform how serious the misconduct is; “causation” asks whether harm was actually caused by the misconduct. Evans confirms the former is relevant; the latter is unnecessary for MIPO (paras 44–47).
“No case to answer”: A mid-trial ruling on whether, taking the prosecution case at its highest, there is sufficient evidence on which a properly directed jury could convict. The manslaughter charge failed at this stage; MIPO proceeded (paras 10, 13, 36).
ACCT plans: Prison safeguarding protocols for prisoners at risk of self-harm or suicide, requiring irregularly spaced checks and accurate recording, to limit opportunity and enable timely intervention (paras 4, 38–39, 44).

Conclusion

Evans v R consolidates and carefully extends MIPO doctrine in three significant ways. First, it confirms that prison OSGs can be “public officers” where their actual duties—here, sole overnight responsibility for a prison block, responding to cell calls, and implementing/recording ACCT checks—directly fulfil government’s responsibilities for the safety and security of those in custody. This functional, public-interest-centric approach aligns with Cosford and Mitchell and avoids a narrow, status-based confinement of the offence.

Second, the Court reaffirms that MIPO is a conduct offence: proof of harm is unnecessary. Gravity is judged by the seriousness of the misconduct, informed by the likely consequences of the neglect. In custodial safeguarding, falsification of records is a particularly weighty aggravating feature because it undermines the operation of protective regimes designed to save lives.

Third, Evans clarifies trial practice. The existence of a “public office” is ordinarily a question of law for the judge; structured directions focusing jurors on elements, including likely consequences (but not causation), are appropriate and sufficient to avoid prejudice.

The decision will resonate across custodial and quasi-custodial settings, including outsourced and auxiliary roles. It underscores that those who, in substance, carry out core public responsibilities—especially safeguarding of those deprived of liberty—may bear criminal accountability for wilful neglect that abuses the public’s trust, even where tragic outcomes cannot be proved to have been caused by the breach. While fact-specific and not a blanket rule for all OSGs, Evans provides a clear, principled framework to evaluate when auxiliary prison roles cross the threshold into “public office” and when neglect attains criminal gravity.