R v R v W, England and Wales Court of Appeal (Criminal Division), Judgment, Law, casemine.com

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Attorney(S)

Mr N Saunders for the Appellant
Mr D Miller for the Crown

Judges

LORD CHIEF

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R v. R v W

Smart Summary

Factual and Procedural Background

This is an appeal by the Appellant against his conviction on 24 July 2009 in the Crown Court at Southwark before Judge Hardy for misconduct in a public office. The Appellant was a serving police officer in the Metropolitan Police between 1999 and 2008. It was alleged that between 1 July 2006 and 5 October 2007 he wilfully misconducted himself by improperly using an American Express credit card for personal expenditure amounting to approximately £12,500 funded from public monies. The misconduct did not involve a breach of his duties as a police officer aside from the misuse of the card.

The Appellant admitted using the card for personal expenses contrary to Force Instructions but claimed he believed he was entitled to do so if he intended to reimburse the costs. This practice was reportedly common among his colleagues. The Crown did not accept the Appellant's exculpatory explanation. The allegation of dishonesty was initially made but was not formally presented in the Crown's opening or closing submissions, though the Appellant was cross-examined on dishonesty. The jury was ultimately directed without reference to the Appellant’s subjective state of mind regarding dishonesty, which forms the basis of this appeal.

Legal Issues Presented

What is the required state of mind (mens rea) for the common law offence of misconduct in a public office?
Whether the offence necessarily requires proof of dishonesty when the misconduct involves misappropriation of public funds.
Whether the jury should have been directed on the Appellant's subjective awareness or dishonesty in relation to the misuse of the public funds.

Arguments of the Parties

Appellant's Arguments

The Appellant contended that the offence of misconduct in a public office requires a focus on the defendant's subjective state of mind, particularly dishonesty.
He argued that he honestly believed he was entitled to use the card for personal expenses if he reimbursed the amounts and that this was a common practice in the office.
The Appellant maintained that he was not guilty of deliberate misconduct or dishonesty.

Crown's Arguments

The Crown submitted that the offence did not require proof of a subjective mental element such as dishonesty.
They argued that it was unnecessary for the Appellant to prove he was dishonest, and that the misuse itself sufficed for conviction.
During argument, the Crown maintained that the defendant must know what he was doing was wrong, equating "wrong" with misuse or abuse of the card.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Attorney General's Reference (No 3 of 2003) [2005] QB 73	Established that misconduct in public office requires subjective awareness or recklessness regarding duties and consequences.	The court emphasized the necessity of a subjective mental element even in misconduct involving failure to perform police duties.
R v Llewellyn-Jones [1968] 1 QB 429	Dishonesty or fraud is inherent in misconduct involving deceit and financial advantage.	Confirmed that dishonesty is a necessary ingredient in cases involving fraudulent misconduct in public office.
R v Dytham [1979] 2 QB 722	Misconduct in public office is not restricted to dishonesty; can include deliberate neglect of duty.	Illustrated that some forms of misconduct do not require dishonesty, but this depends on the nature of the misconduct.
R v Borron [1820] 3 B & Ald 432	Criminal liability depends on motive being dishonest, oppressive, or corrupt rather than mistake or error.	Reaffirmed that a dishonest or corrupt motive is essential for punishment under misconduct in public office.
R v Rimmington [2006] 1 AC 459	Principle that the ambit of ancient common law offences should not be extended by narrowing mental element requirements.	Supported the necessity of a subjective mental element consistent with established principles.

Court's Reasoning and Analysis

The court analysed the offence of misconduct in a public office as a broad common law offence with a variety of manifestations, each potentially requiring a different mental element. It highlighted authoritative sources and consultation papers demonstrating the offence’s complexity and the necessity of a subjective mental element tailored to the misconduct alleged.

The court rejected the Crown’s submission that no subjective mental element was required, particularly in cases involving misappropriation of public funds. It reasoned that where the misconduct involves acquisition of property by theft or fraud, proof of dishonesty is an essential ingredient.

The court noted that the jury was not directed on the issue of dishonesty, which is a critical omission given the nature of the allegations. The failure to instruct the jury properly on the Appellant’s subjective state of mind left open the possibility that the conviction was based on a misunderstanding of the law.

Consequently, the court held that the conviction could not stand without a proper jury direction on dishonesty, which is a pre-eminent issue for the jury in such cases.

Holding and Implications

The court QUASHED the Appellant’s conviction for misconduct in a public office and ordered a new trial.

The direct effect is that the Appellant’s conviction cannot stand due to the absence of a necessary jury direction on dishonesty. No new precedent was established; rather, the decision reinforces the established principle that a subjective mental element, including dishonesty where applicable, is essential in prosecutions for misconduct in public office involving misappropriation of public funds.