The ancient common law offence of Misconduct in Public Office had largely fallen into disuse since the late 18th century, but has recently seen an increase in use where there have been allegations of sexual abuse. Following a consultation reform is recommended.
In the last decade the offence has been used in relation to journalists paying police officers for information and more recently it was used to prosecute a clergyman for abusing a group of young men over a 15 year period.
Confusion over its definition and application led the Law Commission to include it within its programme for review, and in January 2016 it published a background paper reviewing the offence and identifying a number of problems with it. Responses were invited and in September 2016 a consultation paper (no.229) was published titled Reforming Misconduct in Public Office. Further responses were sought by November 2016 with final recommendations due in 2017.
As the law currently stands it is considered not fit for the purposes for which it may be required in the 21st century, but it is far from straightforward to reform in a manner which meets potential needs. As is noted below, just deciding how to approach the creation of a new offence – should it be based on a breach of duty or a definition of corrupt behaviour – is itself not clear.
This is not an area which can be succinctly summarised so detailed below is an overview of the current law currently and where reform might progress, although as has happened with previous Law Commission recommendations it might take many years before any changes are made to current law.
The best current definition of the offence is in the case of the Attorney General’s Reference (No.3 of 2003)  EWCA Crim 868, where the constituent elements are defined as:
- 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; and
- Without reasonable excuse or justification
The problems with the existing offence include:
- The lack of clear definition of ‘public office’ – the ambiguity generating difficulties in interpreting and applying the offence.
- Uncertainty over the types of duty that may qualify someone to be a public office holder and lack of clarity in the case law as to whether it was essential to prove a breach of those particular duties.
- A crucial aspect of the offence was ‘an abuse of the public’s trust’ but was so vague that is was difficult to apply.
- The fault element that must be proved for the offence differs depending on the circumstances.
- Whilst ‘reasonable excuse or justification’ appears as an element of the offence, it was not clear whether it operates as a free standing defence or as a definitional element of the offence.
The Law Commission concluded that the problems with the existing law meant that it would be undesirable to either retain the existing offence or try to codify it into statute without significant modification to its definition. The options suggested in the consultation paper presume that the existing common law offence would be abolished.
The consultation paper considered, at length, the rationale for the offence because one of the fundamental problems with it at present is that is not clear what mischief it targets. Its conclusions were that the main harm underlying the current offence was harm to the public interest and specifically the impairment of public confidence in governing institutions. The main wrong underlying the existing offence is breach of public trust or abuse of position. Neglect of duty may also amount to a breach of trust or misgovernment. The subsequent question is whether they should be criminalised.
The consultation paper tested its conclusions against five categories of conduct that are often prosecuted using the offence, because there was no other statutory or common law offence that applied to them. They are as follows:
- Exploiting a position of public office to facilitate a sexual relationship
- Engaging in a relationship leading to a conflict of interest
- Acting under the influence of conflict of interest, bias or prejudice
- Neglect of duty leading to a risk of serious harm, and
- Misuse of official information.
At present in relation to sexual offences categories 1, 2, 4 and 5 are used. For example, in category 1 the perpetrators are generally police officers or staff, prison officers or staff, immigration, detention staff or probation officers. On one occasion the defendant was a clergyman. However, the list was not thought to be exhaustive.
In relation to category 2 the most typical example was of a member of prison staff forming a relationship with a prisoner and then smuggling in prohibited items.
Within category 5, an example was of police officers using their access to databases for the purposes of identifying potential sexual partners.
In conclusion, there were two types of wrong which deserved consideration for the purposes of reformed offences – breach of duty leading to a serious risk of harm or, corrupt behaviour including the abuse of a position for personal advantage or to cause detriment to another.
Law reform options
As with regards to the recommendations for reform, a more rigorous definition of public office needs to be drawn up. Two definitions have been suggested within the report namely:
- A position involving a public function associated with a state or public power; or
- A position involving a public function which the office holder is obliged to exercise in good faith, impartiality or as a public trust.
A further consultation question has been asked as to which of the two should be preferred and how the statutory definition should be drafted.
In relation to the creation of new offences, there were two suggested approaches.
The first is the breach of duty model. This proposes the creation of a new offence of breach of duty by a public office holder with a particular duty concerned with the prevention of harm. The public office holders subject to the offence could include, those occupying positions carrying powers of physical coercion including arrest, detention and imprisonment and those occupying positions including functions for the purpose of protecting vulnerable individuals from harm.
The definition of the category of relevant public officers could take the form either of a general test, or a list of particular powers, functions, duties and positions. It is recommended that the offence should be restricted to breach of a particular duty of the office holder connected with the prevention of harm and therefore, only cover cases where such harm occurs or is risked.
The type of harm, both for the purpose of identifying the relevant public office holders and for the purpose of defining the breach of duty should be restricted to; death, serious physical or psychiatric injury, false imprisonment, serious harm to public order and safety and serious harm to the administration of justice. The fault element of the new offence should be knowledge or awareness of the circumstances that would mean that the defendant held a public office and the circumstances relevant to the content of any particular duties of that office concerned with the prevention of harm together with subjective recklessness as to the risk
The second is the corruption based model. The proposed offence is:
- A public office holder commits the offence if he or she abuses his or her position, power or authority.
- That is to say, if:
- He or she exercises that power, position or authority for the purpose of achieving (i) a benefit for himself or herself; or (ii) a benefit or detriment for another person; and
- The execise of that position, power or authority for that purpose was seriously improper.
In order to determine whether or not the behaviour was seriously improper, there will be a number of relevant factors for a jury to consider. These may include the seriousness of the consequences of the misconduct, the seniority of the defendant’s position and the culpability of the defendant.
The fault element of the offence would be satisfied if the office holder was aware of the circumstances which determine that the position in question is a public office and the office holder held the purpose in question.
The final option was abolition without replacement. However, this is not favoured because it would leave a gap in the law that would mean certain types of conduct could avoid criminal sanction.
Lastly, the report suggests two consequent legal reforms to the existing sexual offences regime. The first was to consider whether two new offences should be created in order to cover the situation within category 1 (exploitation of a position to facilitate a sexual relationship) where the perpetrator was not a public office holder but none the less there was a vulnerable adult who entered into or remained in a relationship with an individual defendant as a result of perceived pressure associated with the defendant’s position of authority and/or the vulnerable adult’s vulnerability though the pressure was not sufficient to vitiate the adult’s consent so as to render the defendant liable for a sexual offence.
The additional draft offences were;
- An offence of obtaining sexual activity by improper pressure (the types of pressure would need to be further defined); or
- An offence of obtaining sexual activity by exploitation of a person in a position of vulnerability.
Further views from consultees have been sought.
The second suggested reform to the existing sexual offences regime would be to treat the fact that the defendant is in public office as an aggravating factor in sentencing for other offences. This revision could be included with any of the three suggested options but would be particularly relevant if the offence was abolished altogether.
There are presently no sentencing guidelines for the offence of misconduct in public office and an alternative could be to create a statutory provision requiring the courts to consider whether or not to treat public office as an aggravating factor. The Commission’s view was that there was no strong case for including the factor of public office either in formal sentencing guidelines or creating a statutory provision specifying that it be treated as an aggravating feature. However, other consultee’s views were also sought on this point.
The September 2016 Law Commission document invited responses to the provisional proposals and further consultation questions by 28 November 2016. A final report is due at some, currently undefined, date in 2017. When or whether the government and parliament subsequently have the time or capacity to consider or enact what is recommended remains to be seen.
Written by Sarah Firth, associate at BLM