In the recent case of R v Ali [2023] EWCA Crim 1464 ("R v Ali"), the Court of Appeal considered issues regarding the offence of misconduct in public office. The Court considered an application for leave to appeal against the conviction and sentence of a police officer ("the applicant") who was convicted of 15 counts of misconduct in public office and 5 counts of sexual assault at trial.

In considering the application for leave to appeal in respect of the misconduct in public office offence, the Court of Appeal considered whether the applicant was "acting as a public officer" at the time of the offence and the seriousness threshold.

This blog explores the decision and some of the key legal principles which will be helpful for future investigations.

Case background

The misconduct in public office offences arose in relation to the applicant's role as the Trafford District Student Officer Development and Assessment Co-ordinator. The applicant supervised cadets and apprentices recruited through programs which were designed to engage disadvantaged and vulnerable young people in policing.

At trial, the applicant was found to have sent sexualised and inappropriate messages and images to young people involved in these programs.

Issues on appeal

A key issue in the application was:

  • whether the applicant's behaviours were carried out when he was acting as a public officer; and
  • whether his conduct was so serious as to amount to an abuse of the public's trust.

Counsel for the applicant submitted that the applicant's messages were sent at times in a personal context, when the applicant was "off duty", such that a reasonable jury could not have been sure they amounted to the applicant "acting as" a public officer. Secondly, the messages may have been ill-judged and inappropriate but they did not reach the required level of gravity when assessed independently such that a reasonable jury could find them to be criminal acts.

The prosecution (and respondent on appeal) submitted that the nature of the relationship between the applicant and the young people arose from his public office and he would be seen, and was seen by the complainants, as holding sway over their potential careers as police officers. Whether the applicant messaged the individuals inside or outside of office hours was irrelevant – their contact details were only known to the applicant because of his official role.

Decision

The Court of Appeal ultimately refused the applicant's leave to appeal against conviction, though granted leave to appeal against sentence. In refusing leave to appeal against conviction, the Court confirmed three key legal principles relating to the offence of misconduct in public office.

1. Nexus Between Accused's Status and Conduct

The Court clarified that the prosecution had not needed to prove the applicant was actively discharging official duties at the time of the impugned conduct. Instead, there must be a significant nexus between the applicant's status as a public officer and the misconduct, which in this case was found.

2. Persistence of Nexus Beyond Duty Hours

    Citing R v Knox [2011] EWHC 1629 (Admin) ("Knox"), the Court confirmed that a misconduct in public office offence can extend beyond when an officer is "on duty". For example, the Court noted that, in Knox, the convicted officer was suspended at the time of the offence.

    3. Gravity and Serious Departure

      The Court stressed that there is a high threshold for conduct to be found to be of "such a degree as to amount to an abuse of the public's trust in the office holder". It requires conduct so far below acceptable standards – a mistake, even a serious one, will not suffice.

      Insights for investigations

      The decision in R v Ali underscores the importance of establishing a significant nexus between an accused person's status as a public officer and the alleged misconduct. Investigators must consider the nature of the relationship between the accused person and public office rather than draw artificial boundaries as to whether certain conduct occurred while that person was off-duty.

      This decision reiterates the broad scope of the offence and ensures accountability for actions that undermine public trust. Factors such as power dynamics, nature of relationships, and impact on the public interest are all relevant in determining whether the conduct is sufficiently serious to amount to misconduct.

      Conclusion

      R v Ali provides a useful example of how the relevant legal principles are applied to consider an offence of misconduct in public office. It reaffirms the broad scope of the offence and the need to focus on the nexus between the accused's status and the alleged misconduct rather than there being a hard line between "on-duty" and "off-duty" conduct. It also serves as a guide for investigators and prosecutors in navigating complex cases involving public officers, particularly in considering the scope and seriousness of alleged conduct.

      Contributors

      Rebecca Morrison

      Associate (Qualified in Australia)

      Niall McLean

      Partner & Solicitor Advocate

      Sarah Keir

      Trainee Solicitor