Click to access cp229_misconduct_in_public_office.pdf

on a new statutory offence aimed at tackling the problems with the existing law.

It has put forward two forms that the offence would take and invites consultees to say whether either or both should be taken forward into legislation.

Option 1 is described as a ‘breach of duty model’ and would involve 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. …

… Option 2 is meanwhile described as a ‘corruption based model’. The consultation proposes the creation of a new offence that borrows some elements from the existing offence of police corruption under section 26 of the Criminal Justice and Courts Act 2015, but applies to all public office holders and improves, the Law Commission said, upon the section 26 offence in a number of ways.

The offence under Option 2 would be committed when:

a public office holder (as defined in statute);

abuses his or her position or a power or authority held by virtue of that position;
by exercising that position, power or authority with the purpose of achieving an advantage for the office holder or another or causing detriment to another; and
the exercise of that position, power or authority for that purpose is seriously improper.

A third option discussed in the consultation paper is that the current law should be abolished without replacement. However, the Law Commission’s provisional proposal is that this step should not be taken.

Law Commissioner Professor David Ormerod QC said: “It is vital that the public have confidence in their public officials and in the legal framework that sets the boundaries of their conduct. The offence of misconduct in public office is increasingly being used to bring public officials to account but recent high-profile investigations and prosecutions have brought the problems with this offence into sharp focus.

“The existing law relating to misconduct in public office is unclear in a number of fundamental respects. There is urgent need for reform to bring clarity and certainty and ensure that public officials are appropriately held to account for misconduct committed in connection with their official duties.”