Misconduct in Public Office: Issues Paper 1 – The Current Law is a background document that sets out the current law of misconduct in public office, highlighting problems that arise through areas of uncertainty, as well as gaps and overlaps with alternative offences.

We launched the first phase of our consultation with a symposium of eminent speakers and delegates, which coincided with the publication of Issues Paper 1 on 20 January 2016 (we have published a selection of tweets from the day). Our focus at this stage is on the current law and its problems. The aim of the paper and symposium is to provide us with an opportunity to stimulate informed debate on the problems identified, explore the options for reform and engage with practitioners and experts who deal with the offence. We seek responses to the questions set out in this background paper by 20 March 2016.

The second phase of consultation will begin later this spring with the publication of a paper exploring options for reform. A final report will be published in 2017.

Our project

Our reform objectives are to decide whether the existing offence of misconduct in public office should be abolished, retained, restated or amended and to pursue whatever scheme of reform is decided upon.

The legal concepts involved in the offence of misconduct in public office are highly technical and complex and not easily accessible to non-lawyers.

Furthermore there is often some confusion between what the law is and what it should be. The question of the appropriate boundaries of criminal liability for public officials is clearly a matter of broad public interest.

The offence and its problems

Misconduct in public office is a common law offence: it is not defined in any statute. It carries a maximum sentence of life imprisonment. The offence requires that: 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.

Historically the offence held public officers to account for their misconduct, where there were no other adequate ways of doing so. Nowadays such misconduct will usually amount to another, narrower and better defined, criminal offence.

The offence is widely considered to be ill-defined and has been subject to recent criticism by the government, the Court of Appeal, the press and legal academics.

Statistics suggest that more people are being accused of misconduct in public office while fewer of those accusations lead to convictions. One possible reason is that the lack of clear definition of the offence renders it difficult to apply.

We have identified a number of problems with the offence:

“Public office” lacks clear definition yet is a critical element of the offence. This ambiguity generates significant difficulties in interpreting and applying the offence.

The types of duty that may qualify someone to be a public office holder are ill-defined. Whether it is essential to prove a breach of those particular duties is also unclear from the case law.

An “abuse of the public’s trust” is crucial in acting as a threshold element of the offence, but is so vague that it is difficult for investigators, prosecutors and juries to apply.

The fault element that must be proved for the offence differs depending on the circumstances. That is an unusual and unprincipled position.

Although “without reasonable excuse or justification” appears as an element of the offence, it is unclear whether it operates as a free standing defence or as a definitional element of the offence.