Mitchell, R v

PRESIDENT OF THE QUEEN'S BENCH DIVISION: Is a paramedic employed by a National Health Service Trust in its ambulance service the holder of a public office so as to be subject to criminal sanction for misconduct?

On 9th December 2013 in the Crown Court at Durham, the Recorder of Durham, His Honour Judge Prince, answering the question in the affirmative, declined to dismiss such a charge alleged to have been committed in these circumstances. As a result, the applicant, William Mitchell, pleaded guilty to the offence. The Registrar has referred his application for leave to appeal against conviction to the full court, based upon the ground that Judge Prince erred in law and should have answered in the negative. We grant leave.

The facts can be shortly summarised. The North East Ambulance Trust ("the Trust") is an NHS Trust which provides a public benefit by way of the provision of emergency healthcare to those in its catchment area who require assistance. In doing so, the Trust fulfils one of the responsibilities of government to provide healthcare services to the public.

Mr Mitchell was employed as a paramedic by the Trust, responsible for manning an ambulance which responded to emergency and other calls for assistance.

On 18th April 2013, in the company of a colleague, Mr Mitchell attended the address of a 58-year-old lady to answer an emergency call. The lady had been behaving in a volatile and rather bizarre manner. In a journey lasting some 30 minutes, she was transported to hospital by ambulance with Mr Mitchell in the rear of the vehicle in order to carry out his duties as a paramedic. The driver was unsighted as to what was happening in the rear of the ambulance.

When the patient later arrived home and, again, the following day, 19th April, when again she was being transported by ambulance, she made a complaint that the paramedic who had previously looked after her in the rear of the ambulance had repeatedly touched her breasts, removed his penis from his trousers and placed her hand on his penis. Examination of the CCTV of the rear of the ambulance entirely corroborated the essential elements of this complaint. That Mr Mitchell failed to conduct himself in accordance with his duty both to the patient and to his employers is beyond argument and he has since ceased to be employed by the Trust.

Miss Alison Levitt Q.C. for the Crown accepts that prosecutors should generally charge a statutory offence when one is available and, although not apparent from the short summary of the allegation to which we have referred, she has given cogent reasons for the CPS decision that it would not have been appropriate to prosecute Mr Mitchell for a sexual offence. It was in those circumstances that, in accordance with the issued guidance, consideration was given to the offence of misconduct in public office.

That offence requires an analysis of the individual duties and responsibilities of a paramedic which are to provide, under the direction of the body by which they are employed, healthcare to members of the public in emergency situations. We repeat: the question is, does that constitute a public office?

The judge responded in the affirmative. Relying on the decision of this court in R v Cosford, Falloon & Flynn [2013] EWCA Crim 466, [2013] 3 WLR 1064, [2013] 2 Cr App R 8, in which nurses employed within the prison service were held, as a matter of law, to hold public office, he expressed himself of the view that:

Before turning to the submissions in this case, it is appropriate to rehearse parts of Cosford which analysed the development of the offence of misconduct in public office and collected together a large number of examples of the way in which the term 'public office' had been interpreted. Having referred to the observations of Gross LJ in R v Belton [2011] QB 934, [2010] EWCA Crim 2857 to the effect that there was good reason to confine the offence "strictly within proper grounds", the court in Cosford went on (at [34]):

The argument of the appellants in Cosford proceeded on the premise that a nurse outside the prison service could not be considered to be the holder of a public office and the judgment went on (at [36]):

With clarity of exposition, Mr Comb puts the matter simply. He argues that it is clear from Cosford that a nurse acting within the NHS is not a public officer because his duty of care is to the patient. They have no additional powers or privileges over other persons. The prison service nurse, on the other hand, has a broader responsibility to the public, inter alia, to avoid corruption by prisoners of the institution in which they are incarcerated. He also referred to the context that the prison service nurses knew that security was a fundamental consideration to the Prison Service and that they were expected to behave in a fashion that did not jeopardise it, that each were issued with prison keys and each had a duty to raise issues that might compromise security which they were required to treat as a matter of high priority.

Miss Levitt argues that, although Judge Prince went too far in holding that, in general, a doctor, a nurse, and a paramedic are all public officers, he came to entirely the right conclusion in respect of Mr Mitchell's role. In that regard, she submits that a court must consider the nature of the organisation for which the defendant works, the functions and duties of the role (in particular whether they could properly be described as providing or contributing to a public service), and the degree of public trust reposed in respect of that position. Thus, her submission is that whether or not a particular post or occupation is a 'public office' is a combination of status and function.

In that regard, Miss Levitt points to the fact that Mr Mitchell was employed as a member of crew in an NHS ambulance, that service being one of the four frontline emergency services provided by the state for the public benefit. An NHS paramedic is, undoubtedly, contributing to a public service. Further, she points to the level of trust vested by the public in such a paramedic for the treatment of potentially vulnerable patients and the possible lack of choice given to these patients. These features, she argues, demonstrate that Mr Mitchell was acting as a public officer whilst providing emergency healthcare, and also serve to distinguish Mr Mitchell's role from that of other care professionals.

Miss Levitt further contends that members of the public may have no choice about whether or not to engage with the ambulance service, and certainly do not have any choice as to the identity of the ambulance crew who arrive to assist them. In particular, it may be the case that those being treated by ambulance crews will not be a position to exercise a choice as to whether or not to invite them into their homes. This, she argues, distinguishes emergency or ambulance paramedics from general practitioners or head teachers in State schools, where members of the public do, in the former case, have a choice as to which GP they attend and the latter to which school to send their child.

In our judgment, the proper approach is to analyse the position of a particular employee or officer by asking three questions. First, what is the position held? Second, what is the nature of the duties undertaken by the employee or officer in that position? Third, does the fulfilment of those duties represent the fulfilment of one of the responsibilities of government such that the public have a significant interest in the discharge of that duty which is additional to or beyond an interest in anyone who might be directly affected by a serious failure in the performance of that duty? If the answer to this last question is 'yes', the relevant employee or officer is acting as a public officer; if 'no', he or she is not acting as a public officer.

In the context of a case such as this, it is important to underline that the focus is on the duties and responsibilities of the relevant individual and not upon the overall responsibility of the Trust. Thus, there is no doubt that the public has a significant interest in the discharge by the Trust of its duty to provide emergency healthcare which extends beyond the interests of anyone who might be directly affected by a serious failure by the Trust in its operations. Putting the matter another way, it is to the benefit of the public as a whole that the Trust is in a position to provide a competent service to respond to the public's emergency needs. Equally, the public has a significant interest in the discharge by an education authority of its duties to provide children with a safe environment in which to be educated. To focus on the overarching duty of the Trust would be to mean (as the judge foresaw) that every doctor, nurse, paramedic (or indeed employee) of the Trust is a public officer; for an education authority, it would mean that every teacher, classroom assistant or other employee at a school is a public officer. This is not correct.

Had that been the position identified in Cosford , it would have been sufficient that the prison nurses were discharging the responsibility of the government to treat individual prisoners then incarcerated in prison. They also would not have had a choice as to the nurse who would look after them. It would not have been necessary, however, for the court to have considered the further duties which they owed to the public (that of a proper, safe and secure running of the prison in which they worked). It was only by virtue of those duties which the appellants owed to the public in general that the nature of their position became such as to justify a significant public interest in the proper discharge of those responsibilities.

In this case, the nature of the duty undertaken by ambulance paramedics was to treat and provide emergency healthcare to the individual patients for whose care they become responsible by reason of the circumstances in which they come into contact with them: it is a duty to the individual. In a general sense, of course, the public would be concerned by any example of a breach of the individual duty (such as occurred in this case) but that is not to say that there is a duty to the public which is different from, or additional to, the general duty owed to the individual. There is not.

Although advanced with characteristic skill, we do not accept the proposition advanced by Mrs Levitt that the fact that a patient may be unable to exercise a choice is a sufficient factor to justify holding that a paramedic is a public officer. That feature does not transform the duty of the paramedic into one which is different in nature to that of a general nurse or doctor, such that his duty is owed not only to his patient but (in a different or additional form) to the general public. The duty is the same, namely a duty owed to the individual to provide healthcare and treatment to the best of the paramedic's ability.

In our judgment, the appellant was not, in his position as a paramedic, acting as a public officer. Although we deprecate his conduct whatever the precise detail, we recognise that in the particular circumstances of this case, a sexual offence may not have been capable of proof. It would be wrong, however, to extend the definition of a public officer to bring his conduct within the purview of the criminal law if it is not caught by these other provisions. In the circumstances, the other argument advanced by Mr Comb in relation to retrospectivity and Article 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms does not arise. This appeal is allowed and the conviction is quashed.