Mitchell, R v

For misconduct in public office, an employee’s status depends on the position held, the nature of the duties, and whether performing them fulfils a governmental responsibility in which the public has a significant interest beyond persons directly affected by a serious failure.

The analysis concerns the individual’s duties, not the public function of the employing body. A paramedic whose duties are limited to providing emergency healthcare to individual patients does not thereby hold public office. The absence of patient choice does not create a separate duty to the public.

The applicant was employed as a paramedic by an NHS ambulance trust. While transporting a patient, he committed serious sexual misconduct. The Crown considered that a sexual offence could not be proved and charged misconduct in public office.

At Durham Crown Court, the Recorder declined to dismiss the charge on the basis that the applicant held public office. The applicant then pleaded guilty. He appealed against conviction, contending that an NHS paramedic does not hold public office for this offence.

The central issue was whether the duties of an ambulance paramedic included a public duty distinct from the duty owed to the individual patient.

1. Appeal allowed; conviction quashed. The applicant was not acting as a public officer in his role as an NHS paramedic.

2. The court formulated a three-stage inquiry. It must identify the position held, the nature of its duties, and whether their performance fulfils a governmental responsibility in which the public has a significant interest additional to the interest of persons directly affected by a serious failure. Only an affirmative answer to the third question establishes that the employee or officer acts as a public officer.

3. The inquiry concerns the individual’s own duties and responsibilities. It does not concern the general responsibility of the employing trust to provide emergency healthcare. Otherwise, the public character of the trust’s function would make every doctor, nurse, paramedic and other employee a public officer.

4. The court applied the distinction drawn in R v Cosford, Falloon & Flynn [2013] EWCA Crim 466. Prison nurses had additional responsibilities to the public for the proper, safe and secure running of the prison. By contrast, an ambulance paramedic’s duty was to provide healthcare and treatment to the individual patient. Public concern about a breach of that duty did not create a distinct or additional duty to the public.

5. A patient’s inability to choose the ambulance crew did not alter the nature of that individual clinical duty. It would be wrong to extend public-office status merely because the misconduct might not be caught by another criminal offence. The separate argument based on Article 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms therefore did not arise.

• Court of Appeal (Criminal Division) — allowed the appeal against conviction and quashed the conviction: [2014] EWCA Crim 318.
• Crown Court at Durham — on 9 December 2013, the Recorder declined to dismiss the misconduct-in-public-office charge; the applicant subsequently pleaded guilty.