R v Bowden
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HIRST |
| Judgment Date | 24 February 1995 |
| Judgment citation (vLex) | [1995] EWCA Crim J0224-5 |
| Docket Number | No: 93/6974/X2 |
| Court | Court of Appeal (Criminal Division) |
| Date | 24 February 1995 |
[1995] EWCA Crim J0224-5
Before : Lord Justice Hirst Mr Justice Hidden and Mr Justice Mitchell
No: 93/6974/X2
IN THE COURT OF APPEAL CRIMINAL DIVISION
MR R BOOTH appeared on behalf of the Appellant
MR A WEITZMAN appeared on behalf of the Crown
Friday 24th February 1995
This is an appeal on a point of law by the appellant, Terence William Bowden against a ruling of His Honour Judge Mott in the Crown Court at Wolverhampton on 21st October 1993, following which the appellant pleaded guilty to misconduct in a public office and was fined £350.
The sole but very important question at issue is whether the common law offence of misconduct in a public office applies generally to officers in local authorities and, in particular, to the post held by the appellant in his employment by the City of Stoke-on-Trent.
The learned judge held that it did so apply, and this conclusion is challenged by Mr Anthony Barker QC, on behalf of the appellant, on the footing, as stated in the grounds of appeal, either that the offence only applies to servants of the Crown or, alternatively, if it has a wider application, that it does not apply to the post held by the appellant.
The decision turns on the proper interpretation and application of a number of authorities to which we shall shortly refer.
The appellant was, at the material time, employed by the Stoke-on-Trent City Council as Miscellaneous Maintenance Manager of the City Works Department. This department was a direct labour organisation, set up in accordance with Part III of the Local Government, Planning and Land Act 1980. Under his contract of employment he was responsible for management and direction of subordinate employees; he was also accountable for the handling of money and obliged to ensure that his Department's activities were within budget, it being a statutory duty under section 16 of the above Act for every local authority to secure that, in respect of each financial year, their revenue from construction or maintenance work shows such positive rate of return on the capital employed for the purpose of carrying out the work as the Secretary of State may direct.
Following the learned judge's ruling on the point of law, the appellant pleaded guilty to an offence of misconduct in a public office, particularised as follows:
"TERENCE WILLIAM BOWDEN between the 1st day of December 1989 and the 1st day of June 1990 when the holder of a public office namely the Chief Building Maintenance Officer of Stoke City Council dishonestly … caused enhancement joinery, plumbing and electrical work to be carried out on the premises known as 61 Honeywell House, Stoke, by Council employees when the same was not required under the repairing policy of the Stoke City Council…"
The premises in question were let to the appellant's lady friend.
It is convenient at the outset to deploy the relevant authorities in chronological order.
In the leading case of R v Bembridge (1783) 3 Doug. 327, the defendant, who was an accountant in the office of the Receiver and Paymaster-General of the Forces, deceitfully concealed from his superior his knowledge that certain sums which should have been inserted in a final account were omitted. Following his conviction, on a motion for the arrest of judgment, Lord Mansfield stated at pages 331 —332:
"The duty of the defendant is obvious; he was a trustee for the public and the paymaster, for making every charge and every allowance he knew of; … If the defendant knew of the omission… and if he concealed it, his motive must have been corrupt. That he did know was fully proved, and he was guilty therefore, not of an omission or neglect, but of a gross deceit. The object could only have been to defraud the public of the whole, or part of the interest. … 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 whomever and in whatever way the officer is appointed."
Willes and Buller JJ concurred.
In Henly v The Mayor and Burgesses of Lyme (1828) 5 Bing. 91 a civil action was brought against the Mayor and Burgesses of Lyme Regis for failing, in breach of their public duty, to repair the Cob. The claim succeeded before Littledale J at the Dorchester Spring Assizes in 1828.
On a motion in arrest of judgment Best CJ upheld the decision and stated as follows:
"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 recieves a compensation in whatever shape, whether from the Crown or otherwise, is constituted a public officer."
The learned Chief Justice then instanced certain classes of office holders, including bishops, clergymen and Lords of the Manor and also the Bank of England. He then concluded by enunciating the established principle that
"…if a man takes a reward, —whatever be the nature of that reward, whether it be in money from the Crown, whether it be in land from the crown, whether it be in lands or money from any individual, —for the discharge of a public duty, that instant he becomes a public officer…"
In R v Hall (1891) 1 QB 747, an overseer for the poor, who was charged with the duty by statute to prepare The Register of Qualified Voters in Parliamentary and Council Elections in Whitechapel was indicted on a number of counts, on the footing that he corruptly omitted from the register persons qualified to vote, or included therein persons who were dead or otherwise not entitled to vote. All the counts were laid as common law misdemeanours. On a motion to quash the indictment it was held by Charles J that by virtue of the provisions of the Reform Act 1832 and subsequent statutes regulating elections, the only remedies available were those laid down in the statutes, and that accordingly the indictment was bad. It was clearly implicit in the decision that, but for the statutory provisions, the indictment would have been good.
There are three reported twentieth century authorities in which convictions for the offences of misconduct in a public office have been upheld on appeal.
In R v Whittaker (1914) 3 KB 1283, the Court of Criminal Appeal (Lawrence LJ, Lush and Atkin JJ) upheld the conviction of a commanding officer who had accepted, from a firm of caterers, sums of money paid to induce him to accept their representative as tenant of the regimental canteen. In response to the...
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