Attorney General's Reference (No 3 of 2003)

Case No: 2003/304051 B5
Neutral Citation No. [2004] EWCA Crim 868
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
th
Date: 7 April, 2004
Before :
LORD JUSTICE PILL
MR JUSTICE HUGHES
and
MR JUSTICE AIKENS
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ATTORNEY GENERAL’S
REFERENCE
NO. 3 OF 2003
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MR DAVID PERRY & MR G PATTERSON for the Attorney General
MR JEREMY BAKER QC & MR S R CROSSLEY for the Respondents
Hearing dates : 29/30 January 2004
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JUDGMENT
Lord Justice Pill:
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
th
Criminal Law 16 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
th
32.The offence of misconduct in public office was defined in Russell On Crime, 12
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
th
Digest of the Criminal Law, 9 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.