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R v (1) Karen Cosford (2) Carolyn Falloon (3) Jacqueline Flynn (2013) EWCA Crim 466

Sarah Ellson
The appellants, nurses at HMP Wakefield (a high security prison) appealed against their convictions for misconduct in public office.The first appellant had been discovered to have been having a sexual The appellants, nurses at HMP Wakefield (a high security prison) appealed against their convictions for misconduct in public office.

The first appellant had been discovered to have been having a sexual relationship lasting several months with a prisoner serving a 17 year life sentence. She had also failed to report the prisoner's possession of a mobile phone and had facilitated the use of that mobile phone by buying top-up credits. The second and third appellants had failed to report the relationship and had also covered it up. They too failed to report his possession of a mobile phone and the second appellant had also bought 'top-up' credits for the phone.

At trial, their primary defence was that they did not hold public office. They argued that they acted solely as nurses, albeit in a prison environment with different title. Karen Cosford and Jacqueline Flynn had also distinguished themselves from Carolyn Falloon on the grounds that she was a prison/health officer with the powers of arrest of a prison officer, whereas they had been employed as registered nurses.

The issues presented for the jury to consider were: whether the appellants or any of them held public office; whether they had wilfully misconducted themselves in the performance of their public duties; and whether the conduct of each was as such to be deserving of criminal condemnation and sanction. The latter two questions were determined adversely to the appellants.

The issue for the appeal was whether the appellants held public office and whether this was an issue of fact for the jury or a question of law for the judge.

It was argued by the appellants that the judge had approached the issue of 'public office' too widely, ignoring the strictures contained within the authorities for the group falling within the definition to be "strictly confined". It was submitted that in reality the appellants were no different from nurses employed by the NHS and that their possession of keys and other accoutrements that flowed from their employment in a high security prison setting did nothing to evidence the requisite degree of trust or authority required before criminal sanction could be applied to any misconduct arising from their position.

Their appeals were dismissed. It was held that nothing in the authorities justified the conclusion that the "strict confinement" should be to the position held by whosoever is carrying out the duty. Instead it should be addressed to the nature of the duty undertaken and, in particular, whether it is a public duty in the sense that it represents the fulfilment of 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 responsibilities of a nurse in a general hospital were said to be towards the patients for whose care they are responsible. However, the responsibilities of a nurse (whether trained as a prison officer or not) in a prison setting were not only for the welfare of the prisoners, but they are also responsible to the public for, so far as is within their power, the proper, safe and secure running of the prison in which they work. Their duties were found to more than amply fulfil the requirements of public office.

It was further added that in the context of a prison system there is no distinction between those who hold public office and those who are in private employment. Whether the prison is run directly by the state or through a private company paid by the state to perform its function does not alter the public nature of the duties of those undertaking the work and the responsibilities to the public are identical. These decisions were also held to be decisions of law and therefore were questions for the judge and not the jury.

Read the case here.

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