Belton, R. v

Remuneration is not an indispensable condition for holding a public office or for liability for misconduct in public office. The common-law offence must be strictly confined, but that restraint concerns the seriousness and character of the misconduct, rather than a requirement that the office-holder be paid. A person who accepts an office of public trust may be criminally answerable for serious misbehaviour that abuses that trust. Payment is relevant evidence of the nature of an office, but it is not determinative. An unpaid volunteer’s status may nevertheless bear on whether an alleged omission or act was wilful misconduct.

The appellant was an unpaid volunteer member of the Independent Monitoring Board at HMP Parkhurst. Following a pre-trial ruling that remuneration was not required for a person to be a public officer, she pleaded guilty at Newport Crown Court to misconduct in a public office. She received a four-month sentence of imprisonment, suspended for two years, with a 12-month supervision requirement.

Her appeal against conviction raised one issue only: whether an unpaid volunteer could be the holder of a public office for the common-law offence. The court considered the statutory functions, appointment and prison-access powers of Independent Monitoring Board members, together with the authorities on public office and misconduct in public office.

1. Appeal dismissed. The trial judge correctly ruled that remuneration is not required for a person to be a public officer.

2. The common-law offence has no exhaustive definition and must be strictly confined. As explained in Attorney General's Reference (No 3 of 2003) [2004] EWCA Crim 868, it concerns a public officer acting as such who wilfully neglects duty or misconducts themselves, to a degree amounting to an abuse of the public’s trust, without reasonable excuse or justification. Strict confinement concerns the gravity and nature of misconduct, not payment.

3. The authorities did not make payment a necessary condition. The references to profit or payment in R v Charles Bembridge and R v Whitaker treated it as an especially clear instance of public office, not as an essential requirement. The civil observation in Henly v the Mayor and Burgesses of Lyme was obiter and arose in a different context.

4. The appellant’s statutory appointment, duties and rights of access under the Prison Act 1952 and the Prison Rules 1999 confirmed the serious public character of an Independent Monitoring Board member’s role. This conclusion did not mean that every volunteer in every public body holds a public office. Each case depends on its facts. A volunteer’s unpaid status may be relevant to whether conduct, particularly an omission, was wilful, but it does not exclude the offence.

• Court of Appeal (Criminal Division): Dismissed the appeal against conviction in [2010] EWCA Crim 2857.
• Newport Crown Court: Following a pre-trial ruling on remuneration, the appellant pleaded guilty to misconduct in a public office on 9 March 2010. On 31 March 2010 she received four months’ imprisonment, suspended for two years, with a 12-month supervision requirement.