Evans v R.

Factual and Procedural Background

This is a written judgment delivered by Judge Holroyde following an earlier oral dismissal of an appeal by leave of a single judge. The Appellant was convicted of the common law offence of misconduct in a public office after a jury trial in the Crown Court at The City before Judge Pepperall in November 2023. The Appellant had been employed as an operational support grade ("OSG") at The Prison and had previously served as a police officer; his work history prior to the events in question was described as exemplary.

On the night of 7–8 June 2018 the Appellant worked the night shift and was the only member of staff present in a large prisoner block; a supervising officer worked elsewhere in the prison. His duties included answering cell calls from prisoners, supervising three prisoners subject to Assessment, Care in Custody and Teamwork plans ("ACCT plans"), and making and recording checks specified by those ACCT plans. One of those prisoners ("Prisoner A") was assessed as high risk on his first night in custody; Prisoner A's ACCT required four irregularly-spaced checks per hour, whereas the other two prisoners required checks once per hour.

Prior to the arrival of Prisoner A, other prison officers had failed to remove a projecting screw in the cell capable of being used as a ligature point; the trial judge described that failure as the result of systemic failings for which the Appellant had no responsibility. At 06:33 on 8 June 2018 the Appellant discovered Prisoner A hanging by a ligature attached to that screw. The supervising officer was summoned, Prisoner A was cut down and resuscitated, but died a week later.

The Appellant admitted that he had not performed the required ACCT checks. His last recorded check of Prisoner A had been at 05:35, nearly an hour before the discovery. In total he admitted failing to make 24 of the 38 checks required for Prisoner A and failing 4 or 5 of the 9 checks required for each of the other two vulnerable prisoners. He had falsified the log entries to record that the required checks had been undertaken.

The Appellant was tried on an indictment containing two counts: (1) manslaughter by gross negligence; and (2) misconduct in public office. At the close of the prosecution case a submission of no case to answer succeeded in respect of count 1 (manslaughter). The judge refused a no-case submission on count 2 (misconduct in public office) after considering authorities including R v Cosford and R v Mitchell and directed the jury with a five-question flow chart. The jury convicted the Appellant on count 2. At a later hearing the trial judge imposed a suspended sentence of imprisonment with an unpaid work requirement and ordered the Appellant to pay £7,500 towards the prosecution costs.

Legal Issues Presented

1. Whether the Appellant, an operational support grade employed in a prison, was acting as a public officer at the time of the alleged breach of duty (as a matter of law or fact), such that the offence of misconduct in a public office could be made out.
2. Whether, in circumstances where the prosecution had not proved that any breach by the Appellant caused the death of Prisoner A, a reasonable jury could nonetheless conclude that the Appellant's breach was so serious as to warrant criminal condemnation and punishment for misconduct in public office.
3. Whether the trial judge's direction to the jury about the relevance of Prisoner A's subsequent suicide permitted the jury to impermissibly rely upon that event in assessing the gravity of any breach of duty (i.e., whether the judge's direction was insufficient and rendered the conviction unsafe).

Arguments of the Parties

Appellant's Arguments (Attorney Csoka)

• The Appellant's role as an OSG lacks the defining characteristics of public office: unlike prison officers, an OSG has no power of arrest and, save in emergencies, no right to search, use force against, or enter a prisoner's cell; therefore an OSG should not be regarded as a public officer simply because more functions have been given to that auxiliary role.
• The responsibilities owed when checking a prisoner subject to an ACCT plan are duties owed to that individual prisoner, not duties owed to the public at large; the public interest in the Appellant's conduct was no greater than an individual interest.
• Because the trial judge had ruled that the prosecution had not proved causation of death by any neglect, there was no basis on which a reasonable jury could find that any breach was so serious as to constitute a criminal offence; cited R v Travers as a comparative example.
• The judge's direction permitting the jury to consider likely consequences of neglect invited speculation where there was no evidence as to such consequences and therefore risked the jury reaching a conclusion based on impermissible speculation rather than proof.
• While not criticising the judge's formal directions, the Appellant submitted that the way in which the third question in the flow chart was framed effectively asked the jury to make a qualitative welfare judgment beyond proper legal assessment.

Respondent's Arguments (Attorney Atkinson)

• The Appellant's duties on the night in question—being the only member of staff present in the block, answering calls from any prisoner in the block, carrying out ACCT checks and keeping an accurate record—meant he was responsible for the proper, safe and secure running of the block and therefore was performing duties in which the public have a significant interest; Cosford and Mitchell support this analysis.
• The absence of greater formal powers (e.g., arrest) or lower pay does not determine whether a person holds a public office; remuneration is irrelevant to the existence of a public office.
• Misconduct in public office is a conduct offence that does not require proof that the misconduct caused physical harm; the jury were properly entitled to consider the likely consequences of the Appellant's admitted substantial failure to perform ACCT checks and his falsification of records.
• The judge's directions correctly allowed the jury to take into account the consequences that would likely have flowed from the misconduct and to make the qualitative judgement required; the falsification of logs was relevant to future safety measures and therefore to the gravity of the misconduct.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Cosford [2013] EWCA Crim 466	Guidance on the scope of the offence and the approach to whether a person is a public officer; emphasises that "strict confinement" relates to the nature of the duty and that the existence of a public office is a question of law for the judge (subject to factual disputes).	The court relied on Cosford's guidance to assess whether the Appellant's duties could amount to a public office; it accepted that while the judge could have decided the matter as a question of law, it was open to leave the question to the jury if there might be disputed facts.
R v Mitchell [2014] EWCA Crim 318	Sets out a three-part analytical approach: (1) what is the position held; (2) what is the nature of the duties; (3) do those duties represent the fulfilment of a governmental responsibility such that the public have a significant interest beyond that of any individual?	The court applied the Mitchell three-part test to the Appellant's admitted position and duties and concluded that the third question was answered affirmatively on the facts of this case (the duties represented fulfilment of a responsibility of government relating to persons deprived of liberty).
Attorney General's Reference, no. 3 of 2003 [2004] EWCA Crim 868	Summarises the elements of misconduct in public office and explains that consideration of likely consequences of a breach is normally necessary in deciding whether conduct falls so far below expected standards as to constitute the offence.	The court used this authority to identify and apply the elements of the offence (public officer acting as such; wilful neglect/misconduct; degree amounting to abuse of public trust; lack of reasonable excuse) and to justify directing the jury that they could consider likely consequences of proven neglect.
R v Travers (Central Criminal Court, 26 January 2018)	At first instance, a decision that on the facts of that case no reasonable jury could find the defendant guilty of misconduct in public office if they had found him not guilty of manslaughter by gross negligence (used by the Appellant for comparison).	The Appellant relied on Travers to argue that acquittal on manslaughter should preclude a finding of criminal misconduct; the court distinguished Travers and rejected the contention that absence of proven causation necessarily precluded a jury finding of serious misconduct in the present circumstances.

Court's Reasoning and Analysis

The Court identified two related appellate tasks: (1) to review whether the trial judge was correct to rule that a reasonable jury, properly directed, could on one view of the evidence find all the elements of misconduct in public office proved (this dealt with the first two grounds of appeal); and (2) to decide whether a particular direction to the jury rendered the conviction unsafe (the third ground).

On the first issue, the Court reiterated that the categories of activity constituting a public office are not closed, but that the elements of misconduct in public office are well established by authority (Attorney General's Reference and subsequent cases). The Court endorsed the three-part analytical approach in R v Mitchell as a "clear and helpful indication" of how to decide whether an individual is acting as a public officer.

Applying that approach, the Court concluded that the first two parts of the test (the position held and the nature of the duties) were not in dispute: the Appellant was an OSG responsible overnight for a large number of prisoners in the block, required to answer calls, undertake ACCT checks for three vulnerable prisoners, and keep accurate logs of checks. The central contest was the third part: whether the fulfilment of those duties represented a government responsibility in which the public have a significant interest beyond that of any individual prisoner.

The Court reasoned that the proper performance of those duties amounted to fulfilment of the government's responsibility for the safety and security of persons deprived of liberty. The Appellant, as the only staff member present in the block that night, had responsibilities to the wider prisoner population and was the immediate source of assistance and of ensuring compliance with ACCT plans designed to secure safety and welfare. The Court rejected the submission that the Appellant's duties were no more than discrete duties of care owed to individual prisoners. Accordingly, the Court held that a reasonable jury properly directed could be sure that the Appellant was a public officer acting as such at the material time; indeed, the Court noted that the judge could properly have ruled that question as one of law on the admitted facts.

On the second issue (seriousness of misconduct notwithstanding absence of proved causation), the Court emphasised that misconduct in public office is a conduct offence and there is no general requirement that the prosecution prove harm caused by the misconduct. The Court considered the admitted failures: the Appellant omitted a large proportion of required checks for Prisoner A (about two-thirds) and significant omissions for the other two vulnerable prisoners, and he falsified records. The Court held that the jury were entitled to consider the likely consequences of such substantial failures—specifically that compliance with the ACCT plan would have reduced opportunities for self-harm and increased the prospect of timely detection of an attempt—and that such conduct could properly be regarded as sufficiently serious to merit criminal condemnation. The Court therefore found the trial judge was correct to rule that there was a case for the jury on count 2.

On the third issue (the trial direction concerning Prisoner A's suicide), the Court held that the judge correctly directed the jury that the prosecution had not proved that any neglect by the Appellant caused Prisoner A's death and expressly instructed them not to go behind that ruling. The judge also directed the jury that they could properly consider the likely consequences of any proven neglect. The Court did not accept that the trial judge failed to say enough to prevent the jury from wrongly relying on the suicide to determine the gravity of the breach; there was no reason to think the jury would disregard the clear instruction not to consider causation, and the instruction to consider likely consequences was legally correct.

For these reasons the Court rejected each ground of appeal and concluded that the conviction was not unsafe.

Holding and Implications

APPEAL DISMISSED; CONVICTION UPHELD

Holding (direct effect): The Court dismissed the Appellant's appeal against conviction for misconduct in public office. The Appellant's conviction stands and the sentence imposed by the trial court—a suspended term of imprisonment with an unpaid work requirement and an order to pay £7,500 toward prosecution costs—was not disturbed by the Court of Appeal in this judgment.

Implications:

• The judgment applies existing authority (in particular R v Cosford, R v Mitchell and the Attorney General's Reference) to confirm that an operational support grade in a prison may, depending on the admitted duties and responsibilities actually performed, fall within the scope of "public officer" for the purposes of the common law offence of misconduct in public office.
• The Court emphasised that the correct focus is on the duties and responsibilities of the individual and that different factual configurations of OSG roles at different times may lead to different outcomes; the decision did not purport to create a general rule applicable to all OSGs.
• The judgment confirms that misconduct in public office is a conduct offence and that juries may properly take into account the likely consequences of proven neglect when assessing whether the conduct is so grave as to amount to an abuse of the public's trust, even where causation of a specific adverse outcome (such as death) has not been proved.

Note: All personal names and identifying details in this summary have been anonymised and replaced with consistent placeholders in accordance with the summarisation instructions. The summary is strictly based on the text of the judgment and does not add or infer facts beyond that text.