Attorney General's Reference No. 3 of 2003

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.

The questions for the opinion of the court are:

"What are the ingredients of the common law offence of misconduct in a public office ?

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 ?"

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.

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

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.

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.

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.

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.

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:

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

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 16^th Edition (J W Cecil Turner) was to require:

"an actual intention to do the particular kind of harm that in fact was done; or

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)."

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.

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,:

Lord Bingham’s conclusion, at paragraph 41, was:

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

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".

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.

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.

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

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.

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."

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):

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.

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

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.

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.

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.

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.

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.

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.

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

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

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.

Lord Mansfield stated in R v Bembridge (1783) 3 Doug K B 32:

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

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:

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.

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:

Widgery J had added:

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

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":

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.

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

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.

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.

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.

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.

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".

Lord Hobhouse of Woodborough stated, [2003] 2 AC 1 at page 230F:

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:

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

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.

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.

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.

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.

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.

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.

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.

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.

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:

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.

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.

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.