R v W

For misconduct in a public office, the required subjective state of mind depends on the form of misconduct alleged. The offence nevertheless requires a criminal state of mind; deliberate breach of rules and conduct falling far below expected standards cannot alone make conduct criminal. Where the alleged misconduct involves acquiring property through theft or fraud, including improper claims upon public funds, dishonesty is an essential ingredient. A jury must be directed on dishonesty where it is in issue. A conviction obtained without that direction is unsafe, even if the evidence of dishonesty appears strong.

W, a Metropolitan Police officer, was convicted at the Crown Court at Southwark of misconduct in a public office. The allegation was that he used an AMEX card issued for official expenses to incur about £12,500 of personal expenditure funded from public monies.

W accepted that he deliberately used the card contrary to Force Instructions. He maintained that he honestly believed personal use was permitted if he intended to repay the sums, and that this was a widespread workplace practice. The prosecution did not formally allege dishonesty in its opening or closing, although W was cross-examined on that basis.

His appeal challenged the judge's refusal to direct the jury on his subjective state of mind. The central issue was whether dishonesty was an essential ingredient of this manifestation of misconduct in a public office.

1. Appeal allowed. The conviction was quashed and a new trial ordered because the jury was not directed on dishonesty.
2. The common law offence of misconduct in a public office covers a wide range of acts and omissions. Its mental element must therefore reflect the particular form of misconduct alleged. The authorities, including Attorney General's Reference (No 3 of 2003) [2005] QB 73, require a subjective criminal state of mind rather than a solely objective assessment of whether conduct fell far below expected standards.
3. R v Llewellyn-Jones [1968] 1 QB 429 showed that dishonesty or fraud was inherent where a public officer obtained an improper financial advantage. R v Dytham [1979] 2 QB 722 showed, conversely, that dishonesty is not required for every manifestation of the offence. The relevant mental element depends on the alleged misconduct.
4. Where the alleged misconduct consists of acquiring property by theft or fraud, and particularly making improper claims on public funds, dishonesty is essential. It would improperly extend an ancient common law offence to narrow its state-of-mind requirement: see R v Rimmington [2006] 1 AC 459.
5. On the evidence, the jury might have convicted because W knowingly breached the card rules without being sure that he was dishonest. Alternatively, it might have found dishonesty without proper legal direction. Whether W acted dishonestly was for a correctly directed jury.

• Court of Appeal (Criminal Division) — In [2010] EWCA Crim 372, allowed W's appeal, quashed the conviction, and ordered a new trial.
• Crown Court at Southwark — On 24 July 2009, His Honour Judge Hardy convicted W of misconduct in a public office.