Journal of Politics and Law; Vol. 7, No. 4; 2014 ISSN 1913-9047 E-ISSN 1913-9055 Published by Canadian Center of Science and Education Modernising the Common Law Offence of Misconduct in a Public or Judicial Office Graham McBain1,2 1 Peterhouse, Cambridge, UK 2 Harvard Law School, USA Correspondence: Graham McBain, 21 Millmead Terrace, Guildford, Surrey GU2 4AT, UK. E-mail: [email protected] Received: September 18, 2014 Accepted: October 18, 2014 Online Published: November 5, 2014 doi:10.5539/jpl.v7n4p46 URL: http://dx.doi.org/10.5539/jpl.v7n4p46 1. Introduction As noted in a number of previous articles,1 much of our criminal law is very antiquated. In part, this is due to many obsolete pieces of criminal legislation - often of great age. Also, there still exist a number of common law offences. These should be modernised and placed in statutory form. In respect of one of these common law offences, this article looks at the offence of misconduct in a judicial - or a public - office. In analysing this offence, regard may be had to the following legal texts: E Coke, Institutes of the Laws of England (1628-41);2 W Hawkins, A Treatise of the Pleas of the Crown (1716-1824);3 M Hale, The History of the Pleas of the Crown (published 1736, written 1640’s);4 W Blackstone, Commentaries on the Laws of England (1765-9);5 WO Russell, A Treatise on Crimes and Misdemeanors (1819-1964);6 W Archbold, Criminal Pleading, Evidence and Practice (1822-2014);7 Halsbury, Laws of England.8 It may be noted, in respect of this offence, that - apart from Archbold, Halsbury and Blackstone’s Criminal Procedure9 - modern criminal texts contain no (or very little) analysis of this offence.10 Reference may also be 1 A series of articles by the author has reviewed outdated criminal legislation. They are listed in GSMcBain, Modernising English Criminal Law (2010) Coventry LJ, vol 15, no 2. 2 E Coke, Institutes of the Laws of England (W Clarke & Sons, London, last ed, 1824). 3 W Hawkins, A Treatise on Pleas of the Crown (E & R Nutt & R Gosling, Savoy (1st ed 1716-21, last ed 1824). 4 M Hale, The History of the Pleas of the Crown (printed for E & R Nutt & R Gosling, 1736). 5 W Blackstone, Commentaries on the Laws of England (Oxford, Clarendon Press, 1st ed, 1765-9, University of Chicago Press rep 1979). 6 WO Russell, A Treatise on Crimes and Misdemeanors (1st ed, 1819; last ed, 12th ed, 1964). 7 W Archbold, Criminal Pleading, Evidence and Practice (Sweet & Maxwell, 2014). See also JF Archbold, A Summary of the law relative to Pleading and Evidence in Criminal Cases (London, 1822, being the 1st ed). 8 Halsbury, Laws of England (5th ed, with updates). 9 Blackstone’s Criminal Practice 2013 (eds A Hooper & D Ormerod)(‘Blackstone CP’). See also Archbold, Magistrates Courts Criminal Procedure (‘Archbold Procedure’). 10 See, for example: (a) C McAlhone & R Huxley-Binns, Criminal Law.The Fundamentals (3rd ed, 2013); (b) MJ Allen, Textbook on Criminal Law (12th ed, 2013); (c) A Ashworth & J Horder, Principles of Criminal Law (7th ed, 2013); (d) R Card et al, Criminal Law (20th ed, 2012); (e) CMV Clarkson & HM Keating, Criminal Law, Text and Materials (7th ed, 2010); (f) C Elliott & F Quinn, Criminal Law (8th ed, 2010); (g) R Heaton, Criminal Law (2nd ed, 2006); (h) J Herring, Criminal Law (8th ed 2013); (i) M Jefferson, Criminal Law (9th ed, 2009); (j) Lacey, Wells & Quick, Reconstructing Criminal Law. Text and Materials (4th ed, 2010); (k) J Loveless, Complete Criminal Law. Text. Cases and Materials (3rd ed, 2012); (l) N Padfield, Criminal Law (7th ed, 2010); (m) A Reed & B Fitzpatrick, Criminal Law (4th ed, 2009); (n) AP Simester, Simester & Sullivan’s Criminal Law: Theory and Doctrine (5th ed, 2013); (o) D Ormerod, Smith & Hogan’s Criminal Law (13th ed, 2011); (p) DJ Baker, Glanville Williams Textbook of Criminal Law (3rd ed, 2012); (q) MJ Allen & S Cooper, Elliott & Woods’ Cases and Materials on Criminal Law (11th ed, 2013); (r) M Molan, Cases and Materials on Criminal Law (4th ed, 2008); (s) J Martin & T Storey, Unlocking Criminal Law (3rd ed, 2010); (t) P Hungerford-Welch & A Taylor, Sourcebook on Criminal Law (1997); (u) M Molan et al, Bloy & Parry’s Principles of Criminal 46 www.ccsenet.org/jpl Journal of Politics and Law Vol. 7, No. 4; 2014 made to various Abridgments, major and minor, viz. N Statham, Abridgment of the Law (c. 1490);11 A Fitzherbert, La Graunde Abridgment (3rd ed, 1577);12 R Brooke, La Graunde Abridgment (1586);13 W Hughes, Grand Abridgment of the Law (1660-3);14 W Sheppard, Grand Abridgment of the Common and Statute Law of England (1675);15 H Rolle, Abridgment des plusieurs Cases et Resolutions del Common Ley (1668);16 W Nelson, Abridgment of the Common Law (1725-6);17 E Viner, A General Abridgment of the Law and Equity (1st ed, 1741-57);18 M Bacon, New Abridgment of the Law (5th ed, 1798);19 J Comyns, Digest of the Laws of England (last ed, 1822).20 A useful modern text is Nicholls, Corruption and Misuse of Public Office. 21 This article analyses the early history of this offence. It asserts that this offence should be placed in statutory form, with the concept of ‘public office’ including all employment where the individual in question is employed by the ‘State’ in whatever capacity (ie. central or local government), whether that person is remunerated or not and whatever the terms of their employment (eg. whether it is full time, part time, consultancy etc); It should be stated at the outset that a major problem of this offence is that its early history has not been considered.22 When it is - and the ambits (and purpose) of the offence in earlier times is perceived - it may be seen that a number of modern cases need not actually have been brought, since they were based on a limited perception of this offence that was not originally there. 23 2. Early History of the Offence In early times, ‘public office’ was synonymous with ‘Crown’ office. There was no concept of the State as such. Rather, from 1066 - if not before - there was only the sovereign.24 Further, the number of individuals directly employed by the Crown (the sovereign) was relatively small until after the Glorious Revolution of 1688 when the Law (4th ed, 2000); (v) W Wilson, Criminal Law (4th ed, 2011). For older 20th century texts, see JW Cecil Turner, Kenny’s Outlines of Criminal Law (19th ed, 1966) and R Cross & PA Jones, An Introduction to Criminal Law (2nd ed, 1949). 11 N Statham, Abridgment of the Law (Pynson, c. 1490). This has been reprinted by the Law Book Exchange. For a translation, see MC Klingelsmith, Statham’s Abridgment of the Law (Boston Book Company, 1915). 12 A Fitzherbert, La Graunde Abridgment (Tottell, 3rd ed 1577). This has been reprinted by the Law Book Exchange. 13 R Brooke, La Graunde Abridgment (Tottell, 1586). 14 W Hughes, Grand Abridgment of the Law (Henry Twyford et al, 1660-3). This has been reprinted by the Law Book Exchange. 15 W Sheppard, Grand Abridgment of the Common and Statute Law of England (sold by George Sawbridge et al, 1675). 16 H Rolle, Abridgment des plusieurs Cases et Resolutions del Common Ley (A Crooke et al, 1668). 17 W Nelson, Abridgment of the Common Law (E & R Gosling, 1725-6). This has been reprinted. 18 E Viner, A General Abridgment of the Law and Equity (GCJ & J Robinson, 1st ed, 1741-57, 2nd ed 1791). This has been reprinted by the Law Book Exchange (there is also a CD with wordsearch). 19 M Bacon, New Abridgment of the Law (H Gwillim (ed), 5th ed, 1798). 20 J Comyns, Digest of the Laws of England (A Hammond, last ed, 1822). In this article, the 3rd ed (ed Kyd), 1792 is cited. See also J Lilley, Practical Register (2nd edn, 1765). 21 C Nicholls et al, Corruption and Misuse of Public Office (OUP, 2nd ed, 2011), see ch 6 (Misconduct in a Public Office). 22 This is one criticism of the (otherwise admirable) work by Nicholls (see n 21). It looks at the position after Bembridge (1783), but fails to note that misconduct in a public office was being dealt with by statute, at least, from c. 1133 (Laws of Henry I, see 21(a)). It states, p 154 ‘The offence, in the form it is known today, is often said to date back to the case of R v Bembridge [1783]’. However, I am unaware of any legal writers or judges who have stated this; and not to look at earlier cases can give a misleading impression of the offence. 23 See 14. 24 The prevailing jurisprudential, and practical, analysis in early medieval times was that the sovereign was the Crown and the source of all power, whether judicial, military or administrative. Comyns, n 20, vol 5, p 130 ‘The king is the fountain of all power and authority, and by his prerogative has the nomination of all officers originally.’ Ibid, vol 7, p 51 ‘The king by his prerogative, has the nomination of all public officers within his kingdom.’ See also Bacon, n 19, vol 5, p 179 (offices). See also Sheppard, n 15 (Of Offices and Officers). 47 www.ccsenet.org/jpl Journal of Politics and Law Vol. 7, No. 4; 2014 concept of the ‘State’, separate from the sovereign, really began to develop - both legally and practically.25 (a) Early Times – Public Officers In early times, ‘public officers’ mainly comprised members of the royal household, the Privy Council, judges and judicial appointments, exchequer (treasury) officials as well as - in the case of war time (whether a civil war or a war against a foreign enemy) - military appointments.