DL v R.

For misconduct in public office, the requirement that the conduct be without reasonable excuse or justification expresses the requirement that it be culpable, namely blameworthy. Where a jury finds that an official deliberately disclosed confidential information which he knew he should not disclose, and that the conduct was a serious abuse of the public’s trust, culpability necessarily follows.

A failure to give a separate direction on culpability will not render a conviction unsafe where the jury’s necessary findings establish it. Circumstantial evidence may properly be admitted to prove that concealed cash derived from criminal conduct where its combined probative force is compelling.

The appellant, a retired police officer employed as a civilian in a police investigative support unit, was convicted at the Crown Court at Bristol of conspiracy to commit wilful misconduct in public office and of concealing criminal property. The misconduct count concerned his disclosure of confidential police information to M, a long-standing friend who was not an authorised intelligence source.

On appeal, he challenged the judge’s refusal to leave reasonable excuse or justification to the jury. He also sought to renew an application to appeal the criminal-property conviction, challenging the admission of evidence connecting M with cannabis dealing and alleging factual errors in the summing up. The central issue was whether the direction on misconduct in public office rendered the conviction unsafe.

1. The appeal was dismissed and the renewed application was refused. The direction did not render the misconduct conviction unsafe.
2. Attorney General’s Reference No. 3 of 2003 [2004] EWCA Crim 868 states that misconduct in public office must occur without reasonable excuse or justification. The court explained that, for present purposes, those words expand the requirement of culpability or blameworthiness. They do not require a separate defence to be left where the jury’s other necessary findings establish culpability.
3. The trial judge should have directed the jury expressly to consider culpability. However, the jury had to be sure that the appellant deliberately leaked confidential information which he knew he should not disclose, and that his conduct fell far below the required standard so as to abuse the public trust. Those findings necessarily established culpability. The appellant’s hope of obtaining intelligence from M could not supply a reasonable excuse in the circumstances. He was subject to the intelligence-source regime governed by the Regulation of Investigatory Powers Act 2000, was not an authorised handler, M was not an authorised source, and the rules never permitted the disclosure of police information.
4. The evidence linking M with cannabis dealing was admissible. Although individual items might be small pieces of the evidential picture, their combined probative value could support the prosecution case that the cash concealed in the appellant’s attic came from criminal sources. The alleged inaccuracies in the summing up, considered individually and cumulatively, did not create an arguable error capable of rendering the criminal-property verdict unsafe.

• Court of Appeal (Criminal Division) — dismissed the appeal against conviction for conspiracy to commit wilful misconduct in public office and refused the renewed application concerning the conviction for concealing criminal property: [2011] EWCA Crim 1259.
• Crown Court at Bristol — the appellant pleaded guilty to one conspiracy count, was convicted after trial of a further conspiracy count and of concealing criminal property, and was sentenced to a total of four years’ imprisonment.