A Metropolitan Police employee but not a “public officer”

In a recent case before Southwark Crown Court, R v Pearce, which concerned two counts of misconduct in public office, HHJ Baumgartner found that a Metropolitan Police (MPS) employee was not a “public officer” within the meaning of the law.

The defendant was employed as a Pound Assistant at the Perivale Vehicle Pound. The ruling was made pre-trial under s.40 of the Criminal Procedure and Investigations Act 1996. As a result of the ruling, the prosecution offered no evidence, not guilty verdicts were then entered and the defendant discharged from the Indictment.

The definition of a “public officer”

The definition of what constitutes a “public officer” for the purposes of a prosecution for misconduct in public officer is a question that has been long debated before the courts. Whitaker [1914] 3 KB 1283 sets out the most often cited common law definition of “public officer”, where Lawrence J said (at 1296):

“A public officer is an officer who discharges any duty in the discharge of which the public are interested”

Importantly, whether a defendant is a public officer it is a question for the judge, not a question for the jury (R v Cosford [2013] EWCA Crim 466).

Guidance from R v Mitchell

In R v Mitchell [2014] EWCA Crim 318, Leveson LJ provided guidance that the proper approach to the determination of whether an individual was the holder of a public office was by asking three questions:

1. What was the position held;
2. What was the nature of the duties undertaken by the employee or officer in that position; and,
3. Did the fulfilment of those duties represent the fulfilment of one of the responsibilities of government such that the public had a significant interest in the discharge of that duty which was additional to or beyond an interest in anyone who might be directly affected by a serious failure in the performance of that duty. Unless such an interest was proved the defendant could not be said to be acting as a public officer.

If the answer to (c) was “yes”, the defendant was acting as a public officer, if the answer was “no” they were not. Leveson LJ placed a heavy emphasis on the need to distinguish the duties and responsibilities of the relevant individual, from the overall responsibility of the employer.

The defendant in Mitchell was a paramedic, who sexually touched a patient in an ambulance. The defendant was held to not to be a public officer because, although the public had a significant interest in the maintenance of a paramedic service by the NHS, they did not have a significant interest in the performance of the duties of each individual paramedic.

Confirmation in R v Evans

The principles set out in Cosford and Mitchell (above) were reaffirmed in the most recent case of R v Evans [2025] EWCA Crim 1150, where the defendant, who was employed as an “operational support grade” in a prison, was found to be a public officer.

Difficulties in determining who is a public officer

Despite this seemingly clear precedent, the determination of this question remains difficult, in particular for defendants who are employed in lower-level positions by institutions who unquestionably fulfil a responsibility of government, such as the Metropolitan Police, NHS, prisons or local government. It is uncontroversial that not all employees of such instructions are public officers. However, determining where the line is drawn and when a person becomes a public officer within the meaning of law requires a careful examination of the specific duties and responsibilities of the employee in practice.

Focus must be on function not status. Caution must be exercised so as not to impute the duties, responsibilities and public interest in the employer onto the employee.

The ruling in R v Pearce

In the Southwark case of R v Pearce, in finding that the defendant was not a public officer, HHJ Baumgartner distinguished with care the defendant’s actual duties and responsibilities from the overall responsibility of the MPS. It was found that in performing his functions, and outside of any special position of trust, the public did not have a significant interest in the discharge of the Defendant’s actual duties as a pound assistant, additional to or beyond an interest in anyone who might be directly affected by a serious failure in the performance of his duty.

Principles distilled from the authorities

Of relevance to practitioners is the manner in which the HHJ Baumgartner distilled the relevant principles that can be derived from the authorities to date, which may serve a useful guide for future cases:

1. A public office is primarily defined by its functions, not its status.
2. A public office does not need to be an “office” in any technical sense or be a permanent position.
3. The position does not need to be subject to specific rules of appointment, one of employment, a contractual position or remunerated.
4. A public office does not need to be directly linked, by way of appointment, employment or contract, in terms of status, to either the Government or the “state”.
5. For an individual to be a public office holder:

a) the position must involve the individual in the performance of a duty associated with a public function; and the duty must be one in which the public will have a significant interest in being performed (an interest beyond the interest of those who might be directly affected by a serious failure in the performance of those functions).

b) This determines whether someone is in public office. It is, as the authorities show, a fact specific enquiry.

A copy of the ruling can be found here: R v Pearce [2025] EWCR 12.