Graham Andrew Evans v R

An employee’s status as a public officer depends on the position held, the duties undertaken and whether those duties fulfil a governmental responsibility in which the public has a significant interest beyond that of anyone directly affected. The inquiry focuses on the individual’s actual duties and responsibilities at the relevant time. Misconduct in public office is a conduct offence: the prosecution need not prove that the misconduct caused harm. In assessing whether misconduct is sufficiently serious for criminal liability, a jury may consider likely consequences. Where causation of a death has not been proved, the jury must not treat the death as caused by the defendant’s breach, but may consider the potential consequences of the neglect.

The appellant, an operational support grade worker at HMP Hewell, was convicted before Pepperall J and a jury at the Crown Court at Worcester of misconduct in public office. He had failed to carry out required welfare checks on prisoners subject to ACCT plans and had falsified records. A submission of no case was accepted on a separate manslaughter count, but the misconduct count proceeded.

On appeal, he argued that he was not a public officer, that the absence of proven causation meant his conduct could not be sufficiently serious, and that the jury direction concerning the deceased prisoner’s suicide was inadequate. The central issues were the public-officer test and the relevance of harm and likely consequences to misconduct in public office.

The appeal was dismissed. The court rejected each ground of appeal.

1. Public officer. The court applied the three-stage approach in R v Cosford [2013] EWCA Crim 466 and R v Mitchell [2014] EWCA Crim 318. The inquiry concerns the position held, the nature of the duties undertaken and whether their fulfilment represents a governmental responsibility in which the public has a significant interest beyond the interest of an individual directly affected by a serious failure. The focus is on the accused’s own duties, rather than the organisation’s overall responsibility.
2. The appellant’s admitted duties included responsibility for prisoners in the block, responding to calls, carrying out ACCT checks and accurately recording them. Those duties contributed to the state’s responsibility for the safety and security of persons deprived of liberty. He was therefore capable of being found to be a public officer acting as such. The court cautioned that different duties performed by other operational support grade workers might produce a different result. Although unnecessary to the decision, the judge could have directed the jury as a matter of law that the appellant was a public officer.
3. Seriousness and consequences. Following the framework stated in Attorney General’s Reference, no. 3 of 2003 [2004] EWCA Crim 868, misconduct in public office does not require proof that the breach caused harm. The jury could consider the likely consequences of the substantial failure to carry out checks and the falsification of records. Compliance would have limited opportunities for self-harm and increased the likelihood of timely detection.
4. Jury direction. The judge correctly directed the jury not to go behind the ruling that causation of the death had not been proved. The jury were nevertheless entitled to consider potential consequences when assessing the gravity of the misconduct. The direction was sufficient and the conviction was safe.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction. [2025] EWCA Crim 1150
• Crown Court at Worcester: following a trial before Pepperall J and a jury, convicted the appellant of misconduct in public office. A suspended sentence, unpaid work requirement and order for £7,500 towards prosecution costs were imposed.