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Revisiting Misconduct in Public Office

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Revisiting Misconduct in Public Office www.newlawjournal.co.uk | 19 March 2021 PUBLIC LEGAL UPDATE 9 such’ at the time of the offending conduct. The parameters of ‘public office’ are difficult Revisiting misconduct to ascertain; however, in respect of the misconduct offence, in R v Cosford [2013] EWCA Crim 466, [2013] 3 All ER 649, Lord in public office Justice Leveson set out at para [34] the test to be applied as to whether a person may be considered to be in ‘public office’: f What was the position held? f What was the nature of the duties undertaken by the employee or officer in that position? f Did the fulfilment of these duties represent the fulfilment of one of the responsibilities of government such that the public had a significant interest in the discharge of that duty extending beyond an interest in anyone who might be directly affected by a serious failure in the performance of the duty? Simon Parsons examines the Law Commission’s analysis In that case, nurses working in the prison of the current law & puts forward the case for reform service were held to be public officers because, through working in a prison © iStockphoto/oversnap environment, the nurses had undertaken a responsibility to the public over and above IN BRIEF This case is the definitive statement of the that which they had to the patient they were f The history and case law surrounding the common law offence, although subsequent treating. In contrast, in R v Mitchell [2014] criminal offence of misconduct in public office. case law has refined the elements of the EWCA Crim 318 the same judge held a f Breaking down the current elements of the offence. Lord Justice Pill sets out at para paramedic worker who subjected a patient offence, and setting out the case for its reform. [61] the elements of the offence as: to inappropriate sexual conduct did not have f a public officer acting as such; a responsibility to the public over and above n 4 December 2020, the Law f wilfully neglecting to perform his or her that which he had to the patient he was Commission issued its final duty and/or wilfully misconducting him treating. It is unclear why the paramedic did report into misconduct in public or herself; not owe a broader duty beyond that owed O0ffice (Law Com no 397). Its f to such a degree as to amount to an to the specific patient. The report maintains publication had been delayed for some time abuse of the public’s trust in the office such ambiguous situations will be dealt with because of the complexity of the subject holder; and by having in legislation a list of positions matter and funding issues. In the report, f without reasonable excuse or that can amount to ‘public office’. the Law Commission recommends the justification. A public officer must be ‘acting as such’ at repeal of the current common law offence the time of the misconduct. The report gives and its replacement with two more precise Despite that statement, the report the example of the issuing of a summons for and targeted statutory offences. The aim of maintains that the offence lacks clarity, the private prosecution of Boris Johnson the report is to strike the correct balance and because of that it has been applied to for the misconduct offence in respect of between applying a criminal sanction for novel situations—for example, journalists statements he made in relation to the 2016 the most serious forms of misconduct by being charged with aiding and abetting the EU referendum when in office as a MP public officer holders for the purposes of offence. The offence has been prosecuted and/or mayor of London. The High Court punishment and deterrence, while leaving because it is believed that there is serious stated that ‘the words “as such” plainly space for civil and disciplinary penalties criminal misconduct for which alternative mean acting in the discharge of the duties for cases that do not warrant a criminal offences are not sufficient. In particular, the of the office’ (at para [27]), but that Boris sanction. The offence was only occasionally seriousness of criminal interference with Johnson was not so acting when he made prosecuted until a revival in prosecutions in confidential information is not reflected in the statements; rather, he was conducting the 21st century, with the average number data protection and official secrets offences. himself as a politician: R (on the application prosecutions now being over 80 per year In contrast, the maximum punishment of Johnson) v Westminster Magistrates’ Court since 2006 (see p15 of the report). for misconduct in public office is life [2019] EWHC 1709 (Admin), [2020] 2 All imprisonment. There is also the concern ER 271. The boundaries of this element have The common law offence that the offence could be used against junior been difficult for prosecutors, for example The offence of misconduct in public office officials rather than the senior decision in R v W [2010] EWCA Crim 372, [2010] All has a long history, and one starting point for makers whom the public would expect to be ER (D) 257 (Mar), in which a police officer its analysis could be R v Bembridge (1783) held criminally accountable. was convicted of the misconduct offence 3 Doug KB 327, 99 ER 679. However, the for the personal use of a police credit card elements of the offence were set out in 1. Public officer acting as such which he intended to repay. The Court of more detail in the case of Attorney General’s The report points out that there are two Appeal quashed the conviction, holding that Reference (No 3 of 2003) [2004] EWCA Crim distinct components of this element: the ‘the misconduct did not take the form of a 868, [2005] 4 All ER 303 (‘AG’s Reference’). fact of holding ‘public office’ and ‘acting as breach of or failure to perform his duties as 10 LEGAL UPDATE PUBLIC 19 March 2021 | www.newlawjournal.co.uk police officer’ (at para [2]). and that that the public office holder must has also been unclear, although in Johnson know of the facts and circumstances that the High Court stated the words ‘plainly 2. Neglecting to perform his or her duty would lead ‘the right-thinking member of mean acting in the discharge of the duties of and/or wilfully misconducting him or the public to conclude that the misconduct the office’. herself was such as is required’. The report lists the Second, while the fault element was The report recognises that two distinct factors that juries should consider when sufficiently defined in AG’s Reference, an forms of conduct are covered by deciding whether the threshold has been additional fault requirement of dishonesty this element: reached. Is there a risk of death or serious is required in cases such theft or fraud. f wilfully neglecting to perform a duty injury? The motives of the defendant—was According to the report, this creates the (gross non-feasance); and there dishonesty or a simple mistake? How potential for complexity and confusion in f wilful misconduct (gross misfeasance). senior was the public official? The report applying the offence. concludes that this element of the offence Third is the seriousness threshold. In In respect of the first, the classic example is difficult for juries to apply, and that there Chapman, the Court of Appeal held that is R v Dytham [1979] QB 722, [1979] 3 have been successful appeals because of when considering whether the threshold All ER 641, where a police officer (who inadequate directions by judges. has been reached, the jury should consider was about to go off duty) witnessed a two issues: violent fight outside a nightclub but did not f Was the misconduct serious enough to intervene, and the victim was beaten to The offence lacks warrant criminal punishment? death. There is overlap with other neglect clarity, & because f Did the conduct harm the public of duty offences such as manslaughter by “ interest? gross negligence or endangerment offences. of that it has been In respect of the second, wilful misconduct The report points out that the first issue involves intentional or reckless conduct applied to novel involves circular reasoning, and the second that goes beyond mere neglect of duty. The situations” is very subjective. report gives a number of examples of wilful Fourth, the report maintains that misconduct, one being improperly using the the misconduct offence, because of its public office to access personal information ambiguity, has been prosecuted in new about another, as in R v Kadiri (Afshan 4. Without reasonable excuse or contexts which many would consider Meesha) [2017] EWCA Crim 2667, where a justification unjust—for example, the charges pursued HM Revenue & Customs official improperly The report states that is unclear whether against journalists and purported accessed and misused personal information this final element is a standalone element whistleblowers in Operation Elveden about an ex-partner. Again, there is overlap of the offence, or an aspect of the wider where journalists made payments to public with statutory offences such as in the Fraud consideration as to whether the conduct officials for confidential information. This Act 2006 and the Data Protection Act 2018. reaches the seriousness threshold for could have a potentially chilling effect on The report’s analysis of the case law reveals criminal sanction. The report points out that free speech and freedom of the press. that this form of the offence is far more this element can arise in ‘whistleblowing’ common than neglect of duty cases (see p23 cases.
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