Law Commission consults on reform to law on misconduct in public office
The law on misconduct in public office is “unclear, ambiguous and in need of reform”, the Law Commission has said, issuing a consultation paper on a new statutory offence.
The Government’s legal advisory body said that more people than ever before were being accused of the offence of misconduct in public office, and recent years had seen a number of high-profile allegations, investigations and prosecutions.
However, it highlighted how the existing law does not clearly define either what is meant by “misconduct” or who holds “public office”. It said the underlying issue tying together the problems with the current offence is that it is not clear what mischief the current offence targets and therefore what offence it is meant to be.
The Law Commission has issued a consultation paper 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.
Those public office holders subject to this offence would be defined as those with duties concerned with prevention of harm, which would include: (1) those occupying positions carrying powers of physical coercion, including arrest, detention and imprisonment (those with powers of physical coercion); and (2) those occupying positions including functions for the purpose of protecting vulnerable individuals from harm (those with a protective duty).
Under this option, the Law Commission said, 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: (1) death; (2) serious physical or psychiatric injury; (3) false imprisonment; (4) serious harm to public order and safety; and (5) serious harm to the administration of justice.
The fault element of this new offence would be: (1) knowledge or awareness of: (a) the circumstances that would mean that D held a public office; and (b) the circumstances relevant to the content of any particular duties of that office concerned with the prevention of harm; together with (2) subjective recklessness as to the risk that D’s conduct might cause one of the types of harm listed above.
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.”
