Misconduct in public office

What are the key areas identified by the Law Commission as in need of reform and what proposals for change does it make?

The offence of misconduct in a public office is a common law offence. The elements of the offence are summarised in Attorney General’s Reference No 3 of 2003 [2004] EWCA Crim 868, [2003] All ER (D) 454 (Jul):

‘A public officer acting as such wilfully neglects to perform his duty and/or wilfully misconducts himself to such a degree as to amount to an abuse of the public’s trust in the office holder without reasonable excuse or justification.’

The Law Commission is concerned that the existing law does not clearly define what is meant by ‘misconduct’ or who holds ‘public office’. It suggests that a new statutory offence would eliminate ambiguity. It proposes two forms of the offence which are to be consulted on, namely:

• a breach of duty model—where the breach must lead to a risk of serious harm, this offence would apply to public office holders whose positions carry powers of physical coercion such as arrest, detention or imprisonment and it will also include public office holders who have functions specifically relating to protecting vulnerable people from harm
• a corruption-based model—including the abuse of a position for personal advantage or to cause harm to another would apply to all holders of public office

As part of the consultation, the Law Commission is looking at the definition of ‘public office’. It is concerned that the lack of a clear definition makes it difficult for all concerned to know who is and who is not included. The consultation is exploring the option of a more rigorous definition which could, for example, provide a list of specific positions or public functions, or a general definition supported by examples of positions or functions.

What has been behind the increased number of prosecutions for this offence in recent years?

A significant increase in prosecutions came about as a result of the investigations into the payments made to public officials by journalists for information (eg, Operation Elveden). Public officials who received payments from journalists and newspapers were charged with misconduct in a public office as it was considered that these acts did not fall into any other category of offences, such as bribery. Those who made the payments, for instance a journalist, were then charged with the same offence by way of a conspiracy.

Do you envisage these proposals as being likely to make any significant improvements, particularly in light of the government’s over-arching drive to stamp down on corruption?

On 26 March 2015, the Court of Appeal quashed the convictions in the case of R v Panton, Chapman and Gaffney [2015] EWCA Crim 539, [2015] All ER (D) 313 (Mar) for misconduct in public office, and conspiracy to commit the same. The Court of Appeal ruled that the trial judge had not correctly directed the jury in respect of the threshold required for misconduct in a public office to amount to a criminal offence. They confirmed that juries must apply an objective test to decide whether the provision of information by a public official had the effect of harming the public interest.

This test also requires the misconduct to have been calculated to injure the public interest so as to call for condemnation and punishment. As a result, the threshold required for misconduct to amount to a criminal offence is considerably high. This means that many prosecutors may now look to charge for alternative offences when investigating cases of corruption.

Many of the offences considered as part of Operation Elveden pre-dated the Bribery Act 2010 (BA 2010), but there is the possibility that prosecutors would now consider the BA 2010 for similar offences due to its lower threshold for conviction. The elements of the Bribery Act are less cumbersome and simply require the offender to offer, promise or give a financial or other advantage to another and that he intends that person to perform improperly a relevant function.

Under the BA 2010, prosecutors will not be required to prove harm to the public interest. Most importantly there is no defence of reasonable excuse or justification, or a public interest defence.

Prosecutors will also consider the Criminal Justice and Courts Act 2015 (CJCA 2015). CJCA 2015, s 26(1) makes it an offence for a police officer to exercise power or privileges improperly where the officer knows or ought to know that it is improper.

Any proposed new statutory offence of misconduct in a public office will no doubt add to the prosecution’s armoury. However, given the alternative offences now available to prosecutors, it is difficult to comprehend how significant the introduction of any new offence will be.

What changes ought to be made to ensure public officials are appropriately held to account?

There are obviously concerns that the current law relating to misconduct in public office is noticeably confusing and unclear in a number of ways. Judges, prosecutors, public officials and members of the public are left confused about what amounts to misconduct and what roles are deemed to be public office. Any changes need to ensure certainty and clarity such as providing clear definitions of both ‘misconduct’ and ‘public office’.

This article first appeared in Lexis PSL.