Court of Appeal Misconduct in Public Office Case

On 12th February 2014, Trinity criminal barrister, David Comb, acted on behalf of the appellant in the case of R v  Mitchell. The Court of Appeal handed down an important decision for NHS clinicians and other public sector employees in England and Wales. As a matter of law it was found that a paramedic employed by the NHS North East Ambulance Trust did not hold public office and accordingly the appellant’s conviction was quashed.

The background is that a complaint was received that a paramedic had sexually assaulted a vulnerable patient, who was being transported in an ambulance. CCTV was recovered and the CPS decided it would be difficult to prove the activity was not consensual. Accordingly, the common law offence of misconduct in judicial or public office was charged. The Court of Appeal referred to and distinguished R v Cosford [2013] 2 Cr App R 8, in which nurses working in a prison environment were held to be public officers. The context of a prison environment and the particular responsibilities held by prison nurses were identified by the Court as instrumental to that decision.

The Court identified a three stage test to identify public officers:

  1. What is the position held?
  2. What are the duties undertaken?
  3. Does the individual fulfil one of the responsibilities of government such that the public have a significant interest in its discharge extending beyond an interest in anyone who might be directly affected by a serious failure in the performance of the duty?

The contentious part of that test in most cases will be the third limb.  On the facts of this case, the Court held that the NHS Trust was performing an important function of government, in the discharge of which the public have a significant interest. However, the duty of care owed by the individual paramedic was private to the patient. It was appropriate to deal with his misconduct through proceedings before the Health and Care Professions Council.

Trinity barrister David Comb is a member of Chambers' Criminal,Judicial ReviewLicensing and Regulatory practice groups.

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