Why did the Crown Prosecution Service charge Keith Wallis with a crime he didn't commit?

A short time ago I posted the question, "Why did Keith Wallis plead guilty to a crime he didn't commit?

In this post I want to look at the intriguing question of "Why did the Crown Prosecution Service charge Keith Wallis with a crime he didn't commit?".

On 26th November 2013 Alison Saunders, Director of Public Prosecutions, announced that Keith Wallis was to be charged with the offence of misconduct in public office.

See CPS decisions in Operation Alice - incident at Downing Street on 19 September 2012

In her statement Alison Saunders said,

I have, however, authorised one officer to be charged with one count of misconduct in public office. I will set out the decision making below.

She went on,

The evidence has been reviewed in accordance with the Code for Crown Prosecutors by a Specialist Prosecutor in the Special Crime & Counter Terrorism Division under the personal supervision of Malcolm McHaffie, the Deputy Head of Division. I have in addition sought the advice of an experienced Queen's Counsel.

According to Ms. Saunders' statement four experienced lawyers have been involved in the decision to charge Keith Wallis with misconduct in public office:

• Alison Saunders, Director of Public Prosecutions
• Malcome McHaffie, Deputy Head of Division (Special Crime & Counter Terrorism Division of the CPS)
• An unnamed Specialist Prosecutor
• An unnamed "experienced Queen's Counsel"

The section of Ms. Saunders' statement regarding the charge with respect to Keith Wallis is detailed and I quote it in full here:

3) Criminal proceedings

We have also received evidence in relation to PC Keith Wallis who sent an email to the deputy chief whip, John Randall who was his MP, saying that he had witnessed the incident.

We have decided, having carefully considered the evidence in accordance with the Code for Crown Prosecutors, that there is sufficient evidence to charge PC Wallis with misconduct in a public office and that it is in the public interest to do so. I should make it clear the misconduct allegation relates to evidence that PC Wallis falsely claimed to have witnessed the incident, not to how the incident was described in his account.

PC Keith Wallis has been charged and is required to attend Westminster Magistrates' Court on 16 December 2013.

PC Keith Wallis now stands accused of a criminal offence and is entitled to a fair trial.  Care should be taken that nothing is reported which may prejudice his trial.

STATEMENT OF OFFENCE MISCONDUCT IN PUBLIC OFFICE, contrary to Common Law.

PARTICULARS OF OFFENCE Keith Wallis between the 19th day of September 2012 and 16th December 2012 wilfully and without reasonable excuse or justification misconducted himself when the holder of a public office, namely a police constable in the Metropolitan Police Service, in that he falsely claimed to have witnessed an incident dated 19th September 2012 and arranged for his nephew to support his false claims.

Notice the phrase "when the holder of a public office".

Let's compare that phrase to the relevant part of the Crown Prosecution Guidance on Misconduct in Public Office, Acting as such

For convenience, I'll quote the full text of the section of the CPS Guidance headed "Acting as such":

Acting as such

The suspect must not only be a 'public officer'; the misconduct must also occur when acting in that capacity.

It is not sufficient that the person is a public officer and has engaged in some form of misconduct. The mere fact that a person is carrying out general duties as a public officer at the time of the alleged misconduct does not mean he or she is necessarily acting as a public officer in respect of the misconduct.

There must be a direct link between the misconduct and an abuse, misuse or breach of the specific powers and duties of the office or position.

The offence would also not normally apply to the actions of a public officer outside that role, unless the misconduct involved improper use of the public officer's specific powers or duties arising from the public office.

A deliberate misuse by an off-duty police officer of the powers of a constable, for example, may mean that the officer is 'acting as such' by virtue of his or her assumption of the powers of the office. Such a situation might arise if an off-duty police officer arrested an innocent man with whom he had a personal dispute or took steps in order to prevent or frustrate an enquiry.

The principles involved apply equally to holders of all public offices. In the case of a school governor or a local authority official or other such member of a public body, for example, it will be necessary to show that the misconduct was closely connected with exercising (or failing to exercise) the relevant public function.

Notice the key phrase,

The suspect must not only be a 'public officer'; the misconduct must also occur when acting in that capacity.

Was Keith Wallis "acting in the capacity" of a Police Officer when he sent the false email?

No he wasn't.

Despite Ms Saunders' claim that

The evidence has been reviewed in accordance with the Code for Crown Prosecutors

I have no doubt in my mind that Keith Wallis has been charged with an offence that he didn't commit.

How could it be that the following experienced lawyers

• Alison Saunders, Director of Public Prosecutions
• Malcome McHaffie, Deputy Head of Division (Special Crime & Counter Terrorism Division of the CPS)
• An unnamed Specialist Prosecutor
• An unnamed "experienced Queen's Counsel"

could be party to charging Ketih Wallis with an offence he didn't commit?

To begin to answer that question we need to look at the question "What did Alison Saunders and Malcolm McHaffie know of the "corrupt relationship" between Deborah Glass and the Metropolitan Police Service?".

[in process of completion]