Court of Appeal (Criminal Division)
| Date | 01 August 2010 |
| DOI | 10.1350/jcla.2010.74.4.642 |
| Published date | 01 August 2010 |
| Subject Matter | Court of Appeal (Criminal Division) |
Court of Appeal (Criminal Division)
Misconduct in Public Office: Dishonesty Is an Element if
Misconduct Amounts to Theft or Fraud
Rv W[2010] EWCA Crim 372
Keywords Misconduct; Public office; Dishonesty; Feasance
The appellant (W) was convicted of the common law offence of miscon-
duct in a public office by the Crown Court at Southwark on 24 July
2009. Between 1999 and 2008 the appellant was a serving police officer
in the Metropolitan Police. In that capacity between 1 July 2006 and 5
October 2007 he used the police force American Express credit card for
legitimate expenses in addition to approximately £12,500 for personal
expenditure on clothes, holidays and sex toys. At the material time W
was personally in debt in the sum of £70,000. In June 2006 W had
signed a form confirming that he would abide by the rules of his
employer as regards use of the card for travel and subsistence in relation
to official duties. During this period W used the credit card, but failed to
submit any expenses forms, and he subsequently admitted using the
AMEX card contrary to Force Instructions. In his defence, W submitted
that he believed he was entitled to use the credit card in this way as he
intended to refund the amounts of personal expenditure, the practice
was commonplace amongst his colleagues and, whilst he had wilfully
used the card, he was not guilty of deliberate misconduct or
dishonesty.
Before the trial summing-up, it was submitted that the ingredients of
the offence included consideration of the defendant’s subjective state of
mind. Rejecting the authority to which he was referred—Attorney-
General’s Reference (No. 3 of 2003) [2004] EWCA Crim 868, [2005] QB
73—as a case that was not ‘on all fours’ with the present case, the trial
judge, Hardy J, directed the jury that the prosecution had to prove that
the defendant:
. . . wilfully, that means to say, deliberately, misconducted himself to such
a degree as to amount to an abuse of the public’s trust in that office holder,
without reasonable excuse or justification . . . the prosecution must prove
misconduct of a high degree. We are not talking here about a mere bending
of the rules or cutting corners . . . to amount to abuse of public trust a
mistake, even a serious one, will not suffice either. The prosecution must
prove that the office holder has fallen way below, or far below, the
standards expected of him as, in this case, a police officer. . . . ([2010]
EWCA Crim 372 at [7])
Whilst the direction, as far as it went, was consistent with Attorney-
General’s Reference (No. 3 of 2003), the trial judge favoured the Crown
submission that no subjective mental element was required and thus
failed to recognise that:
290 The Journal of Criminal Law (2010) 74 JCL 290–303
doi:10.1350/jcla.2010.74.4.642
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