Attorney General's Reference No. 3 of 2003 [2004] EWCA Crim 868

Case No 2003/304051 B5

[2004] EWCA Crim 868

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL DIVISION)

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 7 th April, 2004

Before

LORD JUSTICE PILL

MR JUSTICE HUGHES

MR JUSTICE AIKENS

ATTORNEY GENERAL’S REFERENCE NO. 3 OF 2003

Hearing Hearing dates : 29/30 January 2004

MR DAVID PERRY & MR G PATTERSON for the Attorney General

MR JEREMY BAKER QC& MR S R CROSSLEY for the Respondents

JUDGMENT

The reference

[1]This is an Attorney General’s reference under Section 36 of the Criminal Justice Act 1972, as amended. The Attorney General seeks the opinion of the Court on points of law which have arisen in a case in which ND, and other police officers, were acquitted, by direction of the judge, upon charges of manslaughter and of misconduct in a public office. On the manslaughter charges, the allegation was of conduct amounting to gross negligence. The "misconduct in a public office" charges alleged that each defendant "misconducted himself whilst serving as a police officer, by wilfully failing to take reasonable and proper care of [CA], an arrested person in police custody". The case was opened to the jury on the basis that the principal allegations were those of manslaughter by gross negligence and that the counts alleging misconduct in a public office were included in the indictment as alternatives to those charges.

[2]The questions for the opinion of the court are: i. "What are the ingredients of the common law offence of misconduct in a public office ? ii. In particular is it necessary, in proceedings for an offence of misconduct in a public office, for the prosecution to prove "bad faith" and, if so, what does bad faith mean in this context ?" The facts

[3]CA, an apparently healthy man, aged 37, died in the custody suite of a police station on 1 April 1998. He had been punched in the face outside a nightclub and fell to the ground hitting his head against the roadway. He was taken to hospital and it was claimed that he was abusive and aggressive to the staff who tried to treat him. Police officers who attended the hospital, with a view to investigating the assault upon him, arrested him on the ground of an apprehended breach of the peace. They were told by a doctor in answer to their specific enquiry that he was fit to be detained. He was told he could return to the hospital when he had calmed down. He (the deceased) had not been x-rayed or treated fully for his injury.

[4]CA was taken to the police station in a police van. On arrival at the police station, though still seated in the position in which he had been placed, he did not respond to police officers. At 3.46am he was carefully placed on the floor of the custody suite in a semi face-down position, not the recovery position, and was left in that position while he breathed less and less. Handcuffs were removed at 3:50am. His breathing was audibly obstructed and gasping and at 3.56am he stopped breathing. That he had stopped was observed by a police officer 45 seconds later. Attempts at resuscitation failed. The events in the custody suite were recorded by closed circuit television and, for present purposes, it is not necessary to set them out in further detail or comment upon them. They provide the context in which the Reference has been made; the context in which the issue which gave difficulty at the trial arose and was perceived as requiring the attention of this Court. The prosecution case was that the officers had recklessly breached their duty of care to CA

[5]There was very considerable medical investigation into the cause of death and the contribution, if any, to the death of the acts or omissions of the police officers. We are told that the allegations against the officers relevant for present purposes were essentially that, during the 11 minute period between 3.46am and 3.57am, the officers failed to put CA in a better position, failed to ensure that his airway was clear and failed to obtain medical assistance.

[6]For the Attorney General, Mr Perry has told the Court that what has given rise to the reference is the need for guidance as to the mental element involved in the offence of misconduct in a public office, a description preferred to that of misfeasance in a public office used in some of the cases. It is common ground that there is such an offence at common law and we consider later in this judgment, as requested, the other elements of the offence, and in particular the standard to be applied to the conduct involved. The conduct must be that of a public officer acting as such, though this ingredient has not been the subject of specific submission. Clearly, in the present case, the police officers owed a duty of care to a person in their custody. The moral basis of the offence, it is submitted, is the protection of the public against the disregard by public officers of duties imposed upon them.

[7]The burden of the lengthy legal arguments before the judge, and much of the submission to this court, has been upon the scope of the concept of recklessness in relation to the conduct of defendants in circumstances such as the present and in particular recklessness as to the consequences of acts or omissions. In the test subjective or objective? Where it is asserted by the prosecution that the public officer has been guilty of misconduct and has been reckless concerning his misconduct, what constitutes recklessness for the purpose of this offence ? Because much of the argument before us, as before the judge, concerned this issue, we will consider it first, as a discrete issue, and in relation to the expressions wilful neglect and wilful misconduct. We then turn to the more general question raised by the terms of the Reference. The trial took place before the House of Lords in R v G & Anr [2003] UK HL 50 ("G") had considered the meaning of recklessness and departed from its earlier decision in R v Caldwell

[1982] AC 341

. The judge’s direction

[8]Submissions of no case to answer were made at the close of the prosecution case. Having heard submissions for 3 days, Roderick Evans J explained to the jury his reasons for directing a verdict of not guilty on the counts both of manslaughter and of misconduct in a public office. As to manslaughter, the judge ruled that there was no case to answer because although there was a prima facie case of gross negligence, causation was not established. "In my judgment the evidence does not take the case beyond the de minimis principle and there is no evidence upon which a jury could safely conclude that the conduct of a defendant …….. more than minimally caused his death. I am, therefore, going to direct the jury to acquit of manslaughter ….."

[9]The judge considered the ingredients of the misconduct offence and also of the tort of misfeasance in public office. He referred to the submission of the prosecution that the necessary element of wilfulness is "that referred to……. by the majority of the House of Lords in Sheppard [

[1981] AC 394

]." The judge stated:

"It is, in my judgment, clearly desirable that there be consistency between the tort and the crime, if that is possible. It is, however, often difficult to identify the precise ingredients and limits of old common law offences such as this one, as Professor John Smith QC observed in his commentary on Bowden [1996] Crim. L.R. 56. Indeed one has to note that some of the ingredients set out in the formulation of the offence in Dytham [[1979] 1 QB 722] are not easy to identify in earlier authorities or texts. One potential cause of difficulty in defining the offence is the great variety of circumstances in which the offence can be committed and the direction to the jury in each case has to be tailored to reflect the circumstances of the evidence before them and the nature of the misconduct alleged. When the House of Lords considered "wilfully" as used in the statutory context in which it had appeared before them in Sheppard the then comparatively recently decided case of Dytham was not cited in argument, nor it seems was the word considered specifically as an ingredient of a common law offence. However in the Three Rivers case [[2003] 2 AC1] Dytham was cited to their Lordships and both Lord Hobhouse, at page [230], and Lord Millett, at page [237], referred to Dytham as an example of the tort. Applying these authorities, my conclusion is that in the circumstances of this case the appropriate direction to the jury on the requirement of recklessness would be to require proof of Cunningham [[1957] 2 QB 396] recklessness. I turn now to deal with the evidence. Submissions have been made on behalf of each Defendant that, whatever be the appropriate test of recklessness in this case, the evidence, when looked at in its entirety, is not such that a jury, properly directed, could safely convict any defendant as the necessary mens rea is absent. The Prosecution submit to the contrary."

[10]The judge then considered the evidence before him in the context of the "mens rea contended for by the Crown" and stated:

"There is, in my judgment, no evidence which could safely found a conviction on the basis of the recklessness propounded by the Crown, which Mr Curtis has characterised as "could not care less whether or not there was a risk to CA’s welfare"

. If the test of Sheppard recklessness is not met in the case of any Defendant, it follows that the test for Cunningham recklessness is not met either. I shall accordingly direct the Jury also to acquit these Defendants of the misconduct counts." Recklessness, wilful neglect and wilful misconduct

[11]Subject to a fresh point raised by Mr Perry as to a duty situation, the reason for the reference was the perceived need to decide whether "Cunningham recklessness" or "Sheppard recklessness" is appropriate to the present offence. The test stated in Cunningham, at p 399, citing Professor Kenny’s Outlines of Criminal Law 16th Edition (J W Cecil Turner) was to require: i. "an actual intention to do the particular kind of harm that in fact was done; or ii. recklessness as to whether such harm should occur or not (i.e. the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it)."

[12]The issue as to the proper approach to the concept of recklessness in the criminal law appears to us to have been resolved by the decision of the House of Lords in G. Although the case was concerned with the definition of recklessness in Section 1 of the Criminal Damage Act 1971 ("the 1971 Act"), general principles were laid down. It was established that a defendant could not be culpable under the criminal law of doing something involving a risk of injury to another or damage to property if he genuinely did not perceive the risk.

[13]In G, Lord Bingham of Cornhill considered the meaning of the word "reckless" in section 1 of the 1971 Act and the manner in which it had been construed, by the majority, in Caldwell. Reference was made to Cunningham. Lord Bingham stated that "in treating this authority as irrelevant to the construction of "reckless" the majority [in Caldwell] fell into understandable but clearly demonstrable error. No relevant change in the mens rea necessary for proof of the offence was intended, and in holding otherwise the majority misconstrued section 1 of the Act" (paragraph 29). Lord Bingham added at paragraph 32,:

" First, it is a salutary principle that conviction of serious crime should depend on proof not simply that the defendant caused (by act or omission) an injurious result to another but that his state of mind when so acting was culpable. This, after all, is the meaning of the familiar rule actus non facit reum nisi mens sit rea. The most obviously culpable state of mind is no doubt an intention to cause the injurious result, but knowing disregard of an appreciated and unacceptable risk of causing an injurious result or a deliberate closing of the mind to such risk would be readily accepted as culpable also. It is clearly blameworthy to take an obvious and significant risk of causing injury to another. But it is not clearly blameworthy to do something involving a risk of injury to another if (for reasons other than self-induced intoxication: R v Majewski ([1977] AC 443) one genuinely does not perceive the risk. Such a person may fairly be accused of stupidity or lack of imagination, but neither of those failings should expose him to conviction of serious crime or the risk of punishment."

[14]Lord Bingham’s conclusion, at paragraph 41, was:

"A person acts recklessly within the meaning of section 1 of the Criminal Damage Act 1971 with respect to – (i) a circumstance when he is aware of a risk that it exists or will exist; (ii) a result when he is aware of a risk that it will occur; and it is, in the circumstances known to him, unreasonable to take the risk."

[15]When expressing agreement with the reasons given by Lord Bingham for departing from Caldwell, Lord Steyn stated, at paragraph 58,:

"That brings me to the question whether the subjective interpretation of recklessness might allow wrongdoers who ought to be convicted of serious crime to escape conviction. Experience before Caldwell did not warrant such a conclusion. In any event, as Lord Edmund-Davies explained, if a defendant closes his mind to a risk he must realise that there is a risk and, on the evidence, that will usually be decisive: [412C]. One can trust the realism of trial judges, who direct juries, to guide juries to sensible verdicts and juries can in turn be relied on to apply robust common sense to the evaluation of ridiculous defences. Moreover, the endorsement by Parliament of the Law Commission proposals could not seriously have been regarded as a charter for the acquittal of wrongdoers."

[16]Lord Steyn also referred, at paragraph 55, to "…..the general tendency in modern times of our criminal law. The shift is towards adopting a subjective approach. It is generally necessary to look at the matter in the light of how it would have appeared to the defendant".

[17]In agreeing with Lord Bingham, Lord Rodger of Earlsferry stated, at paragraph 70, that "if Parliament now thinks it preferable for the 1971 Act to cover culpably inadvertent as well as advertent wrongdoers, it can so enact". Lord Browne-Wilkinson agreed with Lord Bingham and Lord Hutton with Lord Bingham and Lord Steyn.

[18]Mr Perry submits that, where a duty situation exists, the Cunningham approach, cited favourably in G, should not be followed. The court should adopt the approach of the majority in Sheppard where the House of Lords considered the mental element required in an offence under Section 1 of the Children and Young Persons 1933 ("the 1933 Act"). Lord Bingham did, at paragraph 28 in G, underline that he was not addressing the meaning of "reckless" in any statutory or common law context other than section 1 of the Criminal Damage Act 1971. That section does not include the expression "wilful neglect" which appears in the 1933 Act and in some of the learning on misconduct in a public office. In deference to the submissions of Counsel, and because the expression under consideration in Sheppard was "wilfully neglects", an expression appropriate in our view to the offence of misconduct in a public office, we consider the case in some detail.

[19]Section 1 of the 1933 Act provides, in so far as is material:

"(1) If any person who has attained the age of 16 years and has the custody, charge, or care of any child or young person under that age, wilfully…… neglects ….. him…… in a manner likely to cause him unnecessary suffering or injury to health….. that person shall be guilty of a misdemeanour ……. (2) For the purposes of this section (a) a parent or other person legally liable to maintain a child or young person shall be deemed to have neglected him in a manner likely to cause injury to his health if he has failed to provide adequate……. medical aid …."

[20]Allowing an appeal against conviction by parents who failed to seek medical assistance for their child, the majority in the House found unacceptable an objective test of fault, that is whether a reasonable parent, with knowledge of the facts known to those parents, would appreciate that failure to have the child medically examined was likely to cause unnecessary suffering or injury to health. The proposition that wilfulness followed automatically from their undoubted failure was rejected.

[21]Referring to the expression "wilful neglect", Lord Diplock stated, at page 404H, that "such a failure as it seems to me could not properly be described as "wilful" unless the parent either(1) had directed his mind to the question whether there was some risk (though it might fall far short of a probability) that the child’s health might suffer unless he were examined by a doctor and provided with such curative treatment as the examination might reveal as necessary, and had made a conscious decision, for whatever reason, to refrain from arranging for such medical examination; or

(2) had so refrained because he did not care whether the child might be in need of medical treatment or not."

[22]Lord Edmund-Davies accepted, at p 412A, the proposition that "the requirement of wilfulness means, or should mean, that a parent who omits to call in the doctor to his child is not guilty of the offence if he does not know that the child needs assistance" and continued (at 412C):

"But to that must be added that a parent reckless about the state of his child’s health, not caring whether or not he is at risk, cannot be heard to say that he never gave the matter a thought and was therefore not wilful in not calling in a doctor. In such circumstances recklessness constitutes mens rea no less than positive awareness of the risk involved in failure to act."

[23]However, this paragraph, cited with approval by Lord Steyn in G, is followed (412F) by the comment that "the stronger the objective indications of neglect, the more difficult for defendants to repel the conclusion that they must have known of the plight of the children in their charge, or at least that they had been recklessly regardless of their welfare.

[24]The third member of the majority, Lord Keith of Kinkel, stated, at p 418:

"I turn now to consider the meaning of the adverb "wilfully" which governs and qualifies "neglects" and all the other verbs in section 1(1). This is a word which ordinarily carries a perjorative sense. It is used here to describe the mental element, which, in addition to the fact of neglect, must be proved in order to establish an offence under the sub-section. The primary meaning of "wilful" is "deliberate"

. So a parent who knows that his child needs medical care and deliberately, that is by conscious decision, refrains from calling a doctor, is guilty under the subsection. As a matter of general principle, recklessness is to be equiparated with deliberation. A parent who fails to provide medical care which his child needs because he does not care whether it is needed or not is reckless of his child’s welfare. He too is guilty of an offence. But a parent who has genuinely failed to appreciate that his child needs medical care, through personal inadequacy or stupidity or both, is not guilty."

[25]Mr Perry submits that misconduct in public office is a ‘conduct’ crime and not a ‘results’ crime; the crime is constituted by the misconduct itself rather than the result that follows from it. The prosecution need only show, it is submitted, that there has been misconduct by the defendant and he is indifferent as to whether the acts or omissions constituting the misconduct may have any consequences. Mr Perry further submits that, in Sheppard, the majority sought to ensure that the indifferent actor, who did not foresee the consequences of his acts, could not escape liability by reason of his indifference. Misconduct in public office also involves a duty situation and the same approach should be adopted so that the officer could not escape liability by not adverting to what his responsibilities were. The callous should not escape, it is submitted, and the judge was in error in failing to include the official, who does not advert to the risk of harm to particular individuals, within the category of offenders.

[26]Whether Sheppard, which was not cited in Caldwell and in which Lord Edmund-Davies did not, as in Caldwell a few months later, dissent, is consistent with Cunningham (not cited in Sheppard) and G, may be arguable, though, for present purposes, we greatly doubt whether there is any material difference. Lord Diplock is likely to have taken the view that the expression "wilful neglect", in section 1 of the 1933 Act, required a subjective element not required in his view in Caldwell but, with the demise of Caldwell, the distinction is immaterial.

[27]In Sheppard, it was "parents who through ignorance or lack of intelligence are genuinely unaware that their child’s health is at risk" with whose acquittal Lord Diplock was concerned (p408 C-D). That category of defendant is unlikely to feature in the present context. Lord Diplock also expressed his confidence (at p408 D) that juries would "not readily be hoodwinked" by false claims that it did not occur to the defendant that there was a risk, an observation reflected by Lord Steyn in paragraph 58 of G, already cited. We do not accept the submission that Sheppard imposes a lower duty on the prosecution than does G. Indeed, we do not accept the submission that, in the present context, there is any material difference between them and, in our view, the approach to recklessness in G can be incorporated into a direction on wilfulness in relation to this offence.

[28]In Graham v Teesdale & Anr

[1981] 81 LGR 117

, Webster J considered the meaning of the expression "wilful misconduct" in section 161 of the Local Government Act 1972. The case was concerned with the audit of local authority accounts by a district auditor. Webster J stated, at page 123, that wilful misconduct means "deliberately doing something which is wrong knowing it to be wrong or with reckless indifference as to whether it is wrong or not". That statutory construction has been approved by the Court of Appeal and the House of Lords in Lloyd v McMahon

[1987] AC 625

and Porter v Magill

[2002] AC 357

(per Lord Bingham of Cornhill at page 464, giving the references in Lloyd). We regard that direction as helpful in present circumstances, considering as we do that the concept of wilful misconduct is apt to the offence of misconduct in public office (see Dytham below). A G direction upon the meaning of reckless would of course need to be incorporated.

[29]Before turning to broader issues, we note that the judge, in his ruling, anticipated the approach in G by preferring the approach to recklessness stated in Cunningham. Clearly the labelling of recklessness as "Cunningham recklessness" or "Sheppard recklessness" is overtaken by the decision in G.

[30]The issue which was perceived to have caused the problem at trial, and the principal question perceived to have resulted from the judge’s ruling, has, in our view, been resolved by the decision in G. There must be an awareness of the duty to act or a subjective recklessness as to the existence of the duty. The recklessness test will apply to the question whether in particular circumstances a duty arises at all as well as to the conduct of the defendant if it does. The subjective test applies both to reckless indifference to the legality of the act or omission and in relation to the consequences of the act or omission. The elements of the offence

[31]We have some reluctance in embarking upon the exercise required by the question posed especially when we see that in R v Llewellyn-Jones

[1967] 1 QB 429

both the trial judge Widgery J, and a constitution of this court presided over by Lord Parker CJ, declined to "attempt to give an exhaustive definition of what was covered by misbehaviour in a public office". However, we are prepared to attempt to meet the request and mainly because the mental element, which gave rise to the request, is interwoven with other ingredients of the offence, as stated in the authorities. The mental element must be considered in relation to particular circumstances and consequences. The authorities

[32]The offence of misconduct in public office was defined in Russell On Crime, 12th Edition (1964) (J W Cecil Turner) in this way:

"Where a public officer is guilty of misbehaviour in office by neglecting a duty imposed upon him either at common law or by statute, he commits a misdemeanour and is liable to indictment unless another remedy is substituted by statute. The liability exists whether he is a common law or a statutory officer; and a person holding an office of important trust and of consequence to the public, under letters patent or derivatively from such authority, is liable to indictment for not faithfully discharging the office."

[33]In relation to constables, it was stated, at page 366:

"An indictment lies at common law against a constable for neglecting the duties required of him by common law or by statute; and when a statute requires him to do what without the statute has been his duty, it is not imposing a new duty, and he is indictable at common law for the neglect"

Reference was made to Crouther’s case (1599) 2 Hawk PC 116 where a constable was indicted for refusing to make a hue and cry after notice of a burglary committed in the night.

[34]In R v Wyat (1705) 1 Salk 380, it was held, that where an officer [a constable] neglects a duty incumbent upon him, either by common law or statute, he is for his default indictable.

[35]Lord Mansfield stated in R v Bembridge (1783) 3 Doug K B 32: "Here there are two principles applicable: first, that a man accepting an office of trust concerning the public, especially if attended with profit, is answerable criminally to the King for misbehaviour in his office; this is true, by whomsoever and in whatsoever way the officer is appointed…… secondly, where there is a breach of trust, fraud or imposition, in a matter concerning the public, though as between individuals it would only be actionable, yet as between the King and the subject it is indictable. That such should be the rule is essential to the existence of the country".

[36]In R v Borron (1820) 3 B&Ald 432, a criminal information was applied for against a magistrate. Abbott CJ stated, at page 434:

"…..They [magistrates] are indeed, like every other subject of this kingdom, answerable to the law for the faithful and upright discharge of their trust and duties. But, whenever they have been challenged upon this head, either by way of indictment, or application to this Court for a criminal information, the question has always been, not whether the act done might, upon full and mature investigation, be found strictly right, but from what motive it had proceeded; whether from a dishonest, oppressive, or corrupt motive, under which description, fear and favour may generally be included, or from mistake or error. In the former case, alone, they have become the objects of punishment. To punish as a criminal any person who, in the gratuitous exercise of a public trust, may have fallen into error or mistake belongs only to the despotic ruler of an enslaved people, and is wholly abhorrent from the jurisprudence of this kingdom."

[37]In R v Llewellyn-Jones

[1968] 1 QB 429

, the Registrar of a County Court was convicted of offences of misbehaviour in a public office. The indictment charged "misbehaviour in a public office, contrary to common law" and alleged that court orders had been made "with the intention of gaining improper personal advantage and without proper regard to the interest of [a named person]". On appeal to this court, it was submitted that, in the absence of allegations of fraud or dishonesty in the counts of the indictment, the ingredients necessary to constitute a criminal offence were not present. Giving the judgment of the court, Lord Parker CJ referred to Bembridge and to Borron and stated, at page 436G:

"Accordingly the court proposed to take the same line as the trial judge did when he came to rule on the argument presented before him, when he said that he did not propose to attempt to give an exhaustive definition of what was covered by misbehaviour in a public office, it being sufficient to say that in his opinion what was alleged and what he proposed should be alleged in the count was sufficient. This court proposed to take the same line and to look at the words of the indictment, and looking at those words the court is satisfied that at any rate what is there alleged, if proved, would constitute the offence at common law of misbehaviour in a public office. Assuming in [Counsel’s] favour that there must be some element of dishonesty involved, a dishonest motive, a fraudulent motive, it seems to this court that that is inherent in the words of the count. It is really impossible to conceive of a case in which action of this sort is not taken with the intention of gaining personal advantage and without regard to the interests of the beneficiary. It is true the word "dishonestly" or "fraudulently" does not there appear, but it is inherent in the description of the offence."

[38]In R v Dytham

[1979] 1 QB 723

, a constable was 30 yards away from the entrance to a club, from which he saw a man ejected. There was a fight involving cries and screams and the man was beaten and kicked to death in the gutter outside the club. The constable made no move to intervene. He drove away when the hubbub had died down stating that he was due off and was going off. The constable was charged with misconduct of an officer of justice. He demurred to the indictment on the ground that it disclosed no offence since misconduct of an officer of justice involved malfeasance or at least a misfeasance involving an element of corruption and not merely non-feasance as alleged in the indictment.

[39]The judgment of this court was prepared by Shaw LJ and delivered by Lord Widgery CJ. Reference was made to Wyat, Bembridge and Llewellyn-Jones. The court referred, at page 726, to the ruling which the Lord Chief Justice, as Widgery J, had given in Llewellyn-Jones:

"……. it is not easy to lay down with precision the exact limits of the kind of misconduct or misbehaviour which can result in an indictment under this rule……"

What would be sufficient to justify a conviction, stated Widgery J, was if it could be shown that the order was made "with intent to obtain personal benefit for himself and in circumstances in which there were no grounds for supposing that he would not have made the order but for his personal interest and expectation."

[40]Widgery J had added:

"On the other hand I have reached an equally clear view that it is not enough to bring a County Court Registrar within the principle merely to show that, when making an order which was within his powers and which he could make for perfectly proper motives, he knew that by a side wind, as it were, he was going to gain some personal benefit. The mere fact that he knows of his personal interest is, in my view, a very good ground for his declining to exercise jurisdiction and for his arranging for someone else, such as the judge, to make an order for him. Everyone in judicial office knows how unwise it is to deal with a case in which personal interests are raised, but I would not be prepared to say that it would be misconduct for this purpose for a registrar to make a decision which did affect his personal interests, merely because he knew that his interests were so involved, if the decision was made honestly and in a genuine belief that it was a proper exercise of his jurisdiction so far as the beneficiaries and other persons concerned came into it."

[41]The Court referred, at page 727, to the definition of the offence in Stephen’s Digest of the Criminal Law, 9th ed (1950), p1145, Art 145, with its reference to the "wilful" neglect to perform a duty. Stephen stated:

"Every public officer commits a misdemeanour who wilfully neglects to perform any duty which he is bound either by common law or by statute to perform provided that the discharge of such duty is not attended with greater danger than a man of ordinary firmness and activity may be expected to encounter."

The Court added the comment (p727G) that "the neglect must be wilful and not merely inadvertent; and it must be culpable in the sense that it is without reasonable cause or justification."

[42]Considering the facts in Dytham, the Court added that "the allegation made was not of mere non-feasance but of deliberate failure and wilful neglect":

"This involves an element of culpability which is not restricted to corruption or dishonesty but which must be of such a degree that the misconduct impugned is calculated to injure the public interest so as to call for condemnation and punishment. Whether such a situation is revealed by the evidence is a matter that a jury has to decide. It puts no heavier burden upon them than when in more familiar contexts they are called upon to consider whether driving is dangerous or a publication is obscene or a place of public resort is a disorderly house : see R. v Quinn[1962] 2 QB 245."

Had the defendant given evidence, it would no doubt have been put to him that he was recklessly indifferent to the consequences of his inactivity.

[43]In Shum Kwok Sher v HKSAR [2002] 5 HKCSAR 381, the question arose in the Court of Final Appeal in Hong Kong whether the common law offence of misconduct in a public office was so imprecise as to be unconstitutional under the Basic Law. In a judgment with which the other members of the court agreed, Sir Anthony Mason NPJ held that the offence was not arbitrary or imprecise or vague as to violate the relevant requirements.

[44]Having referred to English and Australian authority, Sir Anthony Mason stated, at page 409:

"84. In my view, the elements of the offence of misconduct in public office are: (1) a public official; (2) who in the course of or in relation to his public office; (3) wilfully and intentionally; (4) culpably misconducts himself. A public official culpably misconducts himself if he wilfully and intentionally neglects or fails to perform a duty to which he is subject by virtue of his office or employment without reasonable excuse or justification. A public official also culpably misconducts himself if, with an improper motive, he wilfully and intentionally exercises a power or discretion which he has by virtue of his office or employment without reasonable excuse of justification. Subject to two qualifications, this statement of the elements of the office accords with the respondent’s submission. 85. The first qualification is that, although the respondent submits that the misconduct must be either "wilful" or "intentional", I consider that the misconduct must be "wilful" as well as "intentional"

. In R v Sheppard

[1981] AC 394

, the House of Lords considered a statutory provision which made it an offence "wilfully" to neglect a child in a manner likely to cause him unnecessary suffering or injury to health. By majority it was held that a person "wilfully" fails to provide medical attention for a child if he (i) deliberately does so, knowing that the child’s health may suffer unless he receives attention; or (ii) does so because he does not care whether the child may need medical attention or not. In other words, "wilfully" signifies knowledge or advertence to the consequences, as well as intent to do an act or refrain from doing an act. Wilfulness in this sense is the requisite mental element in the offence of misconduct in public office, most notably in cases of non-feasance. There is no reason why the same mental element should not be requisite in cases of misfeasance and other forms of misconduct in public office. For this reason "wilfully" and "intentionally" are not employed disjunctively in the statement of the elements of the offence in the preceding paragraph. 86. The second qualification which I attach to the elements of the offence stated in the previous paragraph is that the misconduct complained of must be serious misconduct. Whether it is serious misconduct in this context is to be determined having regard to the responsibilities of the office and the officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those responsibilities."

[45]We share, with respect, counsels’ difficulty in understanding, upon the first qualification, the need for conduct to be both wilful and intentional. The need for both was considered important by Sir Anthony Mason and also by Bokhary PJ. The explanation may be in the reference to "the intent to do an act or refrain from doing an act" so that the conduct must be deliberate rather than accidental. The judge was also underlining what he had said earlier, at paragraph 82, that "mere inadvertence is not enough". Having cited the two limbs of the test in Sheppard as disjunctive, it is unlikely that Sir Anthony Mason would require intent as distinct from recklessness in relation to advertence to the consequences. If there is a difference, we adopt the approach in G, which in any event binds us. The decision of the Final Court of Appeal in Shum Kwok Sher of course precedes that decision.

[46]Where we have, with respect, found Sir Anthony Mason’s judgment valuable is in his approval of the general test in Dytham and his reference, at paragraph 86, to a second qualification. Having considered the authorities, we agree that the misconduct complained of must be serious misconduct. Whether it is of a sufficiently serious nature will depend on the factors stated by Sir Anthony Mason along with the seriousness of the consequences which may follow from an act or omission. An act or omission which may have as its consequence a death, viewed in terms of the need for maintenance of public standards to be marked and the public interest to be asserted, is likely to be more serious than one which would cause a trivial injury. This factor is likely to have less significance where, as in Shum Kwok Sher, the allegation is of corruption where the judgment upon the conduct may not vary directly in proportion to the amount of money involved.

[47]Before expressing conclusions, we refer to Three Rivers District Council v Governor & Company of the Bank of England (No.3)

[2003] 2 AC 1

where the tort of misfeasance in public office was comprehensively analysed in the House of Lords. It was claimed that the Bank was liable to former depositors with BCCI for the tort of misfeasance in public office because of the Bank’s failure in its responsibilities for supervising banking activities in the United Kingdom.

[48]Lord Steyn stated, at page 191A, that "the tort bears some resemblance to the crime of misconduct in public office". We venture the comment, however, that there must be differences between the crime and the tort in that the crime is committed upon an affront to the Crown, that is in this context the public interest, whereas the tort requires a balancing of interests as between public officers and individual members of the public or organisations seeking private remedies having asserted a loss which must be proved. The approach in Three Rivers to the mental element appears to us, however, to be consistent with that we find appropriate to the criminal offence. Lord Steyn, at page 193C, noted the acceptance by counsel that only reckless indifference in a subjective sense will be sufficient, reliance on the Caldwell test having perceptively been abandoned.

[49]Considering the nature of the tort, Lord Steyn referred, at page 193C, to "a meaningful requirement of bad faith in the exercise of public powers [being] the raison d’être of the tort" and to "the unifying element of conduct amounting to an abuse of power accompanied by subjective bad faith".

[50]Lord Hobhouse of Woodborough stated,

[2003] 2 AC 1

at page 230F:

"….. The official concerned must be shown not to have had an honest belief that the was acting lawfully; this is sometimes referred to as not having acted in good faith… Another way of putting it is that he must be shown either to have known that he was acting unlawfully or to have wilfully disregarded the risk that his act was unlawful. This requirement is therefore one which applies to the state of mind of the official concerning the lawfulness of his act and covers both a conscious and a subjectively reckless state of mind, either of which could be described as bad faith or dishonest."

Having referred to "targeted malice" Lord Hobhouse went on to consider what he described as "untargeted malice", p 230H:

"Here the official does the act intentionally being aware that it will in the ordinary course directly cause loss to the plaintiff or an identifiable class to which the plaintiff belongs. The element of knowledge is an actual awareness but is not the knowledge of an existing fact or an inevitable certainty. It relates to a result which has yet to occur. It is the awareness that a certain consequence will follow as a result of the act unless something out of the ordinary intervenes. The act is not done with the intention or purpose of causing such a loss but is an unlawful act which is intentionally done for a different purpose notwithstanding that the official is aware that such injury will, in the ordinary course, be one of the consequences: Garrett v Attorney General [1997] 2 NZLR 332, 349-350. Thirdly there is reckless untargeted malice. The official does the act intentionally being aware that it risks directly causing loss to the plaintiff or an identifiable class to which the plaintiff belongs and the official wilfully disregards that risk. What the official is here aware of is that there is a risk of loss involved in the intended act. His recklessness arises because he chooses wilfully to disregard that risk."

[51]Lord Hutton, at page 225A cited a passage in the judgment of Brennan J in the High Court of Australia in Northern Territory of Australia v Mengel 69 ALJR 527, at page 547:

"It is the absence of an honest attempt to perform the functions of the office that constitutes the abuse of the office. Misfeasance in public office consists of a purported exercise of some power or authority by a public officer otherwise than in an honest attempt to perform the functions of his or her office whereby loss is caused to a plaintiff. Malice, knowledge and reckless indifference are states of mind that stamp on a purported but invalid exercise of power the character of abuse of or misfeasance in public office …"

[52]Lord Millett referred, at page 235B, to the core concept as being abuse of power and stated, at page 237C:

"In conformity with the character of the tort, the failure to act must be deliberate, not negligent or inadvertent or arising from a misunderstanding of the legal position. In my opinion, a failure to act can amount to misfeasance in public office only where (i) the circumstances are such that the discretion whether to act can only be exercised in one way so that there is effectively a duty to act; (ii) the official appreciates this but nevertheless makes a conscious decision not to act; and (iii) he does so with intent to injure the plaintiff or in the knowledge that such injury will be the natural and probable consequence of his failure to act."

[53]In so far as comparisons between the criminal offence and the tort are relevant, and in particular the required mental element and the extent of the required departure from proper standards, the approach in Three Rivers appears to us to be consistent with that in the criminal cases and in our conclusions. Neither the mental element associated with the misconduct, nor the threshold of misconduct should be set lower for the crime than for the tort. Conclusions

[54]Roderick Evans J rightly acknowledged the "great variety of circumstances" in which the offence of misconduct in a public office may be charged. It is clear from the authorities that the defendant must be a public officer acting as such. In the absence of submissions on those ingredients, which may in some circumstances present problems of definition, we do not propose to elaborate on them.

[55]There must be a breach of duty by the officer. It may consist of an act of commission or one of omission. The conduct must be wilful, in the sense already considered.

[56]The approach in Three Rivers also demonstrates the many-faceted nature of the tort, as of the crime. It supports the view expressed in the criminal cases, from Borron to Shum Kwok Sher, that there must be a serious departure from proper standards before the criminal offence is committed; and a departure not merely negligent but amounting to an affront to the standing of the public office held. The threshold is a high one requiring conduct so far below acceptable standards as to amount to an abuse of the public’s trust in the office holder. A mistake, even a serious one, will not suffice. The motive with which a public officer acts may be relevant to the decision whether the public’s trust is abused by the conduct. As Abbott CJ illustrated in Borron, a failure to insist upon a high threshold, a failure to confine the test of misconduct as now proposed, would place a constraint upon the conduct of public officers in the proper performance of their duties which would be contrary to the public interest.

[57]As Lord Widgery CJ put it in Dytham, the leading modern criminal case: the element of culpability "must be of such a degree that the misconduct impugned is calculated to injure the public interest so as to call for condemnation and punishment". The constitutional context has changed but the rationale for the offence remains that stated by Lord Mansfield in Bembridge: those who hold public office carry out their duties for the benefit of the public as a whole and, if they abuse their office, there is a breach of the public’s trust. By way of example, the failure of the constable in Dytham to act, in the absence of a justification or excuse, crossed the threshold for this offence.

[58]It will normally be necessary to consider the likely consequences of the breach in deciding whether the conduct falls so far below the standard of conduct to be expected of the officer as to constitute the offence. The conduct cannot be considered in a vacuum: the consequences likely to follow from it, viewed subjectively as in G, will often influence the decision as to whether the conduct amounted to an abuse of the public’s trust in the officer. A default where the consequences are likely to be trivial may not possess the criminal quality required; a similar default where the damage to the public or members of the public is likely to be great may do so. In a case like the present, for example, was the death or serious injury of the man arrested the likely consequence, viewed subjectively, of inaction, or was it merely an uncomfortable night? There will be some conduct which possesses the criminal quality even if serious consequences are unlikely but it is always necessary to assess the conduct in the circumstances in which it occurs.

[59]The consequences of some conduct, such as corrupt conduct, may be obvious; the likely consequences of other conduct of public officers will be less clear but it is impossible to gauge the seriousness of defaulting conduct without considering the circumstances in which the conduct occurs and its likely consequences. The whole should be considered in the context of the nature of the office and, as Sir Anthony Mason stated in Shum Kwok Sher, the responsibilities of the office and office holder.

[60]The failure to meet standards must occur without justification or excuse, a further requirement, though not one which has been the subject of detailed submissions.

[61]The circumstances in which the offence may be committed are broad and the conduct which may give rise to it is diverse. A summary of its elements must be considered on the basis of the contents of the preceding paragraphs. The elements of the offence of misconduct in a public office are: 1. A public officer acting as such (paragraph 54). 2. Wilfully neglects to perform his duty and/or wilfully misconducts himself (paragraphs 28, 30, 45 and 55). 3. To such a degree as to amount to an abuse of the public’s trust in the office holder (paragraphs 46 and 56 to 59). 4. Without reasonable excuse or justification (paragraph 60). As with other criminal charges, it will be for the judge to decide whether there is evidence capable of establishing guilt of the offence and, if so, for the jury to decide whether the offence is proved.

[62]Mr Baker QC, for the defendants at the trial, raised the point that public functions are now frequently carried out by employees in private employment, for example those concerned with security at courts and the transport of defendants. There is an unfairness and illogicality, he submits, if those holding a public office, such as police officers, are to be liable to a sanction not applicable to those in private employment who do similar work. This potential unfairness adds weight, in our view, to the conclusion that the offence should be strictly confined but we do not propose to develop the point or to consider further the question of what, for present purposes, constitutes a public office.

[63]As to question (ii) in the Reference, we do not favour the introduction of the expression "bad faith" routinely into the summing-up to the jury of the ingredients of the offence of misconduct in public office. We understand the emphasis placed upon it in a civil context in Three Rivers but consider the terminology we have expressed would better indicate to the jury the test to be applied. In a case such as the present, for example, the introduction of the doctrine of bad faith, more appropriate to a consideration of commercial dealings, might confuse the jury and deflect them from their task of deciding whether the office of constable had been abused by the conduct of the constables. There may, however, be cases in which the concept of bad faith may be relevant to an assessment of the standard of the defendant’s conduct.

[64]While this is not intended as a comment upon the present case, it will be clear from what we have said that we do not consider that, in future, in circumstances such as the present, a charge of misconduct in public office should routinely be added, as an alternative, to a charge of manslaughter by gross negligence on the basis that it may be difficult to establish causation. This offence is quite different from manslaughter and, as appears from the authorities, different considerations apply when considering whether to allege it.

Cited in 22 later judgments

and 13 more of the most senior