Cosford & Ors v R

For misconduct in public office, the question is whether the duties undertaken are public duties, not whether the employee occupies a narrowly defined or enduring post. A public office exists where the duties fulfil a governmental responsibility and the public have a significant interest in their proper discharge beyond the interests of persons directly affected.

Prison healthcare staff may therefore hold public office where their responsibilities include prison security and public safety. The public character of those duties does not change if the prison is operated by a private contractor for the state. Where the underlying facts are undisputed, the existence of a public office is a question of law for the judge.

The appellants were prison healthcare staff at HMP Wakefield. At Leeds Crown Court, a jury convicted them of misconduct in public office for conduct including concealing a sexual relationship with a prisoner, failing to report his prohibited mobile phone, and facilitating its use.

They appealed their convictions. Their principal argument was that, as nurses or healthcare staff, they did not hold public office. They also challenged the trial judge’s decision to leave that issue to the jury. The central issue was whether their security-related duties within a high-security prison made them public officers for the offence.

1. The appeals were dismissed. The appellants held public office and their convictions stood.
2. The authorities did not confine public office to a specific enduring post, to a holder exercising authority over citizens, or to a person owing a fiduciary duty to them. The relevant inquiry concerns the nature of the duty. It must be a public duty which fulfils a responsibility of government and in whose discharge the public have a significant interest beyond the interests of persons directly affected. That approach was consistent with R v Benbridge (1783) 99 ER 679 and with the binding modern analysis in R v Bowden [1995] 4 All ER 505.
3. The appellants’ responsibilities substantially exceeded those of nurses in an ordinary hospital. They worked in a high-security prison, held prison and cell keys, had unsupervised access to prisoners, were security vetted, and were required to report matters threatening security. The public had an acute interest in the safe and secure operation of the prison. Those duties amply satisfied the requirements of public office.
4. The public nature of prison duties is unchanged where the prison is run indirectly by a private company paid by the state. The responsibilities to the public remain identical.
5. The existence of public office was a question of law for the judge where the relevant facts were undisputed. Only disputed facts about the duties or relationship would have required jury determination. The trial judge had therefore been over-generous to the appellants in leaving the public-office issue to the jury, by analogy with the existence of a duty of care in gross negligence manslaughter.

• Court of Appeal (Criminal Division) — dismissed the appellants’ conviction appeals in [2013] EWCA Crim 466.
• Crown Court at Leeds — before His Honour Judge Hatton QC and a jury, convicted Karen Cosford and Carolyn Falloon on three counts each, and Jacqueline Flynn on two counts, of misconduct in public office.