Mohammed Adnan Ali v R

The common-law offence of misconduct in public office requires a significant nexus between the office and the conduct. Conduct need not occur on duty or form part of the officer’s formal duties. Sexualised communications with young people under an officer’s authority may satisfy that nexus where the office enabled access, influence or control. The seriousness threshold remains high. The jury must decide whether the conduct warrants condemnation and punishment or harms the public interest, considering all the circumstances, including motive, vulnerability, pattern and likely consequences. In sentencing connected sexual and public-office offending, common features must not be counted twice and the totality of the criminality must be respected.

Following a jury trial at Liverpool Crown Court, the appellant was convicted of 15 counts of misconduct in public office and five counts of sexual assault. He received a total sentence of five years’ imprisonment, with concurrent sentences.

He sought leave to appeal against conviction on 11 misconduct counts and against sentence on all counts. The conviction challenge concerned whether he was acting as a public officer when communicating with cadets and apprentices, and whether the conduct was sufficiently serious to constitute criminal misconduct. The sentence challenge concerned the length of the overall sentence.

Convictions. Leave to appeal against conviction was refused. The common-law offence has four elements: a public officer acting as such; wilful neglect or wilful misconduct; conduct sufficiently serious to amount to an abuse of the public’s trust; and no reasonable excuse or justification: Attorney General’s Reference (No 3 of 2003) [2005] QB 73.

1. Acting as such. The conduct must have a significant nexus with the office. The offence is not confined to acts specifically discharging official duties. Being off duty, or even suspended, does not necessarily take conduct outside the offence. The court applied the formulation of acting in the course of or in relation to public office in Shum Kwok Sher v HKSAR [2002] 5 HKCFAR 381. The observation in Johnson v Westminster Magistrates Court [2019] EWHC 1709 (Admin) that the phrase referred to discharge of official duties was confined to that case’s context.
2. Seriousness. The threshold is high. The jury must assess whether the misconduct is sufficiently serious to warrant condemnation and punishment or to harm the public interest, having regard to the circumstances, likely consequences and motive: R v Chapman and others [2015] 2 Cr App R 10. The CPS factors concerning sexual misconduct may assist, but are not exhaustive and all depends on the facts.
3. Application. The jury could find that the appellant obtained access to the complainants through his police role, exercised authority over them, exploited their vulnerability and used work-related relationships for sexual purposes. The communications therefore had the necessary nexus and were sufficiently serious to amount to an abuse of public trust.
4. Cross-admissibility. Although unnecessary to the result, the court considered that the jury could have been directed to assess the acting-as-such issue count by count and then consider the overall pattern when assessing seriousness.
5. Sentence. The five-year sentence for the misconduct counts was too long. The sexual assaults and misconduct were connected, involved common features including breach of trust, and required avoidance of double counting. The sentences for the misconduct counts were quashed and replaced with concurrent three-year sentences, concurrent with the sexual-assault sentences. The total sentence became three years’ imprisonment.

• Court of Appeal (Criminal Division): Leave to appeal against conviction refused; leave to appeal against sentence granted. The misconduct sentences were reduced to three years each, concurrent, producing a total sentence of three years: [2023] EWCA Crim 1464.
• Liverpool Crown Court: Following conviction after trial, the appellant was sentenced to five years’ imprisonment in total, with concurrent sentences.