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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Cosford & Ors v R  EWCA Crim 466 (16 April 2013)
Cite as:  EWCA Crim 466,  3 All ER 649,  QB 81,  WLR(D) 147,  2 Cr App R 8,  1 QB 81,  3 WLR 1064
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ON APPEAL FROM THE CROWN COURT AT LEEDS
His Honour Judge Hatton Q.C.
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE MITTING
MR JUSTICE MALES
| KAREN COSFORD
|- and -
Adrian Keeling Q.C. (instructed by the Registrar of Criminal Appeals) for the Appellant Carolyn Falloon
Richard Wright (instructed by Crown Prosecution Service) for the Respondent
Hearing date : 26 March 2013
Crown Copyright ©
Lord Justice Leveson :
The Approach at the Trial
"They hold powers similar to those of a police constable in respect of arrest. They are performing their duties within a secure prison environment and are subject to the provisions of the Official Secrets Act. They are able to search prisoners and prison cells. They have access to all areas of the prison in order to perform their duties. They are appointed by HM Prison Service and are trusted to perform their duties in the public service under the National Offender Management Service. They swear allegiance to the Sovereign."
"They were subject to the provisions of the Official Secrets Act and required security vetting and clearance in order to perform their duties. Each was working within the secure environment of a high security prison at the time of these events. They were in a position of trust in relation not only to their employment and employers but also the public as a whole. Public safety depended on the performance of their duties in an environment in which security was a matter of high priority. Their duties went beyond those of a nurse operating within the NHS in a hospital or a GP surgery. They were issued with prison keys and cell keys. They had unsupervised access to the prisoners and had a power of search attached to their duties. This leads me to the conclusion that the level of trust and responsibility placed in those working within the prison environment was far in excess of that of a nurse working in the public sector. They have the trust of the public and are paid by the public to perform their duties within that specific, secure environment."
i) Each of the appellants was at the material time a civil servant and an employee of Her Majesty's Prison Service under the umbrella of the National Offender Management Service.
ii) Karen Cosford and Jacqueline Flynn were employed as Prison Service Nurses; Carolyn Falloon was employed as a Healthcare Officer, that is a Prison Officer who was also a trained nurse (which had involved her swearing an oath to the sovereign concerning her discharge of the office in which she was employed).
iii) The appellants each worked within a maximum security prison which housed many of the most dangerous offenders in the prison system. All members of prison service staff, including the appellants, 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 security.
iv) The appellants were each subject to the provisions of the Official Secrets Act and had signed a declaration to that effect on taking up employment; they had been vetted for National Security Clearance.
v) Each of the accused was issued with prison keys and individual cell keys and was permitted unsupervised access to the prisoners in a manner over and above that of other members of prison service staff.
vi) Each of the accused knew that in the course of their employment within the prison they had a duty to raise issues that might compromise security with the security department and, as a matter of fact, in the course of their employment each of the accused had raised security concerns using the Security Information Report (SIR) procedure.
vii) The appellants all knew (and accepted in evidence) that the possession of mobile telephones by prisoners was prohibited and represented a gross breach of security and that they had a duty to report the same. Equally, they knew that entering into a sexual relationship with a prisoner was prohibited and represented a gross breach of security and that they had a duty to report the same.
viii) Each of the accused was reviewed on an annual basis against criteria set out in a Staff Performance and Development Record. That included 'treating security as a matter of high priority' and required the accused to 'accurately and urgently report incidents and breaches'.
"There is evidence before me which clearly demonstrates that each defendant was entrusted with and had responsibilities and duties which were of substantial importance to the public at large and went beyond the ordinary duties and responsibilities of nurses out of the environment in which these defendants had chosen to accept employment. They were engaged in a high security prison where dangerous men were housed. The public clearly had an acute interest in the maintenance of order and security in that establishment. Security in that place was of high priority and clear to all staff, including these defendants. The staff themselves were subjected to stringent security procedures. They held keys and had access to all parts of the prison. They had access to cells and, in the Health Care Centre at least, had powers which were exercised for locking and unlocking cells.
It is of importance that there was in place a system in the prison whereby staff could and indeed had a responsibility to report matters of concern involving security and other matters, both involving prisoners and colleagues. To that end, there existed what were called security information reports; documents which were stated, on their face, as being to provide security intelligence. Something considered important to the Prison Service and something of importance, in my judgment, to the public. Each defendant was, accordingly, responsible for playing his or her important role in the maintenance of good order and security as part of their duties. Each defendant accepted that responsibility as part of their duty and three of them [including these appellants] in fact completed such reports from time to time. …
I find that each accepted "an office of trust concerning the public" to use the words of Lord Mansfield and … "is answerable criminally to (the King) for misbehaviour" in that office. In the words of Best CJ repeated almost verbatim in Regina v Whitaker and repeated also by Hirst LJ, each was "appointed to discharge public duties" and was, in my judgment, therefore, constituted a public officer."
"A person holding a public office for these purposes is someone who discharges a duty or who is entrusted with the discharge of a duty in which the public at large – of which you are members – have an interest. Does the public at large – of which you are representative members – have an important interest to be served such as to be entitled to place its – that is your – trust in and reliance on the person performing the role? Every person who is appointed to discharge such a public duty is constituted a public officer."
"Mr Stubbs' fear that large portions of the population will be exposed to potential criminal liability for misconduct in their office, absent their post being a specific enduring post of identifiable authority seems to me to be misplaced. First, they may only do so if their office is one of trust concerning the public. Second, the misconduct committed in the performance of that office must, itself, touch upon the public interest as the conduct impugned must be of such a degree and seriousness as to call for criminal condemnation. Misconduct that infringes other substantive criminal laws which will in many, if not most cases, be the case, will almost [always] be pursued pursuant to that law."
"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 whomever and in whatever way the officer is appointed".
"Now I take it to be perfectly clear, that if a public officer abuses his office, either by an act of omission or commission, and the consequences of that, is an injury to an individual, an action may be maintained against such public officer. The instances of this are so numerous that it would be a waste of time to refer to them. Then, what constitutes a public officer? In my opinion, every one who is appointed to discharge a public duty, and receives a compensation in whatever shape, whether from the Crown or otherwise, is constituted a public officer."
"We do not go to the length of saying that a stranger can take advantage of an agreement between A and B, nor even of a charter granted by the King, where no matter of general and public concern is involved, but where that is the case, and the King, for the benefit of the public, has made a certain grant imposing certain public duties, and that grant has been accepted, we are of the opinion that the public may enforce the performance of those duties by indictment, and individuals peculiarly injured, by action."
"A public officer is an officer who discharges any duty in the discharge of which the public are interested, more clearly so if he is paid out of a fund provided by the public. If taxes go to supply his payment and the public have an interest in the duties he discharges, he is a public officer."
"even though it was a civil case, a public office is correctly defined as embracing – 'everyone who is appointed to discharge a public duty, and receives compensation in whatever shape whether from the Crown or otherwise' (see Bing 91 at 107, 130 ER 995 at 1001). (Our emphasis.)"
"He was responsible to his employers, the city of Stoke-on-Trent for the upkeep of their council housing and in that capacity was accountable for the receipt of disbursements of public money derived by the city council either from the rates (or their modern equivalent) or from central government grants. Moreover, his salary was paid from the same public funds. He thus, in our judgement, falls squarely within the definition of 'public officer' laid down in the authorities and we are unable to accept the submission that, with these responsibilities, his position was too lowly to qualify.
"Mr Baker 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 the present purposes, constitutes a public office'"
"However, he said that not in any sense with regard to remuneration but with regard to the standard of misconduct required for the offence-and, for that matter, with regard to the fact that some public functions are now carried out by employees in private employment, whereas others are carried out by those holding public office."
"The central theme of the authorities now running back for some 200 years is encapsulated in the observations of Lord Mansfield CJ: that a man accepting an office of trust concerning the public is answerable criminally for misbehaviour in his office. If conduct is so serious as to impact on the public trust, then a prosecution may follow. That, of course, is especially the case if the person concerned is remunerated'"
Application of the Law