Attorney General's Reference (No. 3 of 2003)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pill |
| Judgment Date | 07 April 2004 |
| Neutral Citation | [2004] EWCA Crim 868 |
| Docket Number | Case No: 2003/304051 B5 |
| Court | Court of Appeal (Criminal Division) |
| Date | 07 April 2004 |
[2004] EWCA Crim 868
Lord Justice Pill
Mr Justice Hughes and
Mr Justice Aikens
Case No: 2003/304051 B5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
Strand,
London, WC2A 2LL
MR DAVID PERRY & MR G PATTERSON for the Attorney General
MR JEREMY BAKER QC & MR S R CROSSLEY for the Respondents
The reference
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:
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
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.
The judge's direction
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 ….."
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."
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
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...
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