Misconduct in Public Office Issues Paper 1: The Current Law 20 January 2016 The Law Commission MISCONDUCT IN PUBLIC OFFICE Issues Paper 1: The Current Law © Crown copyright 2016 This publication is licensed under the terms of the Open Government Licence v3.0 except where otherwise stated. To view this licence visit nationalarchives.gov.uk/doc/open-government-licence/version/3 write to the Information Policy Team, The National Archives, Kew, London TW9 4DU email: [email protected]. Where we have identified any third party copyright information you will need to obtain permission from the copyright holders concerned. This publication is available at www.lawcom.gov.uk. ii The Law Commission – How We Consult About the Law Commission: The Law Commission was set up by section 1 of the Law Commissions Act 1965 for the purpose of promoting the reform of the law. The Law Commissioners are: The Rt Hon Lord Justice Bean, Chairman, Professor Nick Hopkins, Stephen Lewis, Professor David Ormerod QC and Nicholas Paines QC. The Chief Executive is Elaine Lorimer. Topic of this consultation: Analysis of the current law of misconduct in public office and the identification of associated problems. Geographical scope: This paper applies to the law of England and Wales. Availability of materials: The paper is available on our website at http://www.lawcom.gov.uk/project/misconduct-in-public-office/. Duration of the consultation: We invite responses from 20 January 2016 to 20 March 2016. The terms of this issues paper were agreed on 16 December 2015. Comments may be sent: By email: [email protected] By post: Justine Davidge, Criminal Law Team, Law Commission of England & Wales, 1st Floor Tower, 52 Queen Anne’s Gate, London, SW1H 9AG. By telephone: 020 3334 3462 By fax: 020 3334 0201 If you send your comments by post, it would be helpful if, whenever possible, you could also send them electronically (for example, on CD or by email to the above address, in any commonly used format). After the consultation: In the light of the responses we receive, we will produce a further consultative document on the topic of law reform options. Consultation Principles: The Law Commission follows the Consultation Principles set out by the Cabinet Office, which provide guidance on type and scale of consultation, duration, timing, accessibility and transparency. The Principles are available on the Cabinet Office website at: https://www.gov.uk/government/publications/consultation-principles-guidance. Information provided to the Law Commission: We may publish or disclose information you provide us in response to this consultation, including personal information. For example, we may publish an extract of your response in Law Commission publications, or publish the response in its entirety. We may also be required to disclose the information, such as in accordance with the Freedom of Information Act 2000. If you want information that you provide to be treated as confidential please contact us first, but we cannot give an assurance that confidentiality can be maintained in all circumstances. An automatic disclaimer generated by your IT system will not be regarded as binding on the Law Commission. The Law Commission will process your personal data in accordance with the Data Protection Act 1998. iii THE LAW COMMISSION MISCONDUCT IN PUBLIC OFFICE ISSUES PAPER 1: THE CURRENT LAW CONTENTS Para Page CHAPTER 1: INTRODUCTION The common law offence of misconduct in public office 1.8 1 Background to the project 1.12 2 The structure of this paper 1.25 7 Chapters 1.25 7 Appendices 1.26 7 Acknowledgments 1.28 8 CHAPTER 2: CURRENT LAW The context of the offence 2.6 10 One or more offences? 2.6 10 The tort of misfeasance in public office 2.7 11 The elements of the offence 2.8 12 (1) Public office 2.8 12 (2) Acting as such 2.116 34 (3) Breach of duty (neglect or misconduct) 2.126 37 (4) Wilfulness 2.144 40 (5) Abuse of the public’s trust 2.153 42 (6) Without reasonable excuse or justification 2.187 50 Overall conclusion 2.209 55 Jurisdiction 2.210 57 Liability of secondary parties 2.221 60 Corporate liability 2.226 61 CHAPTER 3: THE NEW OFFENCE OF CORRUPT OR OTHER IMPROPER EXERCISE OF POLICE POWERS OR PRIVILEGES Background to section 26 3.10 64 Progression through Parliament 3.18 66 iv Para Page Elements of section 26 3.25 68 (1) The conduct element - exercising the powers and 3.28 70 privileges of a constable (2) The circumstances element – improperly 3.51 75 (3) The fault element 3.70 79 Relationship between section 26 and misconduct in public office 3.84 81 (1) The abuse of authority example 3.86 82 (2) Other differences between the offences 3.109 87 Impact of section 26 on the review of misconduct in public office 3.116 88 CHAPTER 4: SUMMARY OF THE PROBLEMS WITH THE OFFENCE AND CONCLUSIONS Problems 4.3 89 Problem 1: Public office - a critical element which lacks 4.4 89 clear definition Problem 2: Breach of duty - ill-defined and unclear what 4.26 93 must be proved Problem 3: Abuse of the public’s trust - crucial as a 4.37 95 threshold element but unworkably vague Problem 4: The fault element - unprincipled variability 4.48 98 Problem 5: Without reasonable excuse or justification - 4.54 99 defence or definitional element? CHAPTER 5: OVERLAPS WITH OTHER FORMS OF LEGAL ACCOUNTABILITY Alternative or related criminal offences 5.4 101 Common law offences and the principle of legal certainty 5.8 102 Must a statutory offence always be charged in preference 5.16 103 to a common law offence? Choosing to charge misconduct 5.26 106 The tort of misfeasance in public office 5.58 112 Disciplinary procedures 5.60 112 Drawing a line 5.65 113 The decision to prosecute 5.69 114 NOMS: an example of the challenges faced 5.87 118 Conclusion on the overlap with disciplinary procedures 5.107 122 v Para Page CHAPTER 6: CONDUCT PROSECUTED AS MISCONDUCT IN PUBLIC OFFICE Conduct that can only be prosecuted as misconduct in public office 6.3 124 (1) Public office holders who exploit their positions to 6.6 125 facilitate a sexual relationship (2) Public office holders who use their positions to facilitate 6.16 127 a personal relationship which may create a conflict with the proper performance of the functions of their position (3) Public office holders who deliberately act in a 6.20 128 prejudicial or biased manner or under a conflict of interest (4) Neglect of duty by public office holders which results in 6.30 131 serious consequences, or a risk of serious consequences arising (5) Public office holders who fail properly to protect 6.37 133 information that comes into their possession by virtue of their positions Conduct that is prosecuted as misconduct in public office but could be 6.49 135 prosecuted as an alternative criminal offence (1) Public office holders who exploit their positions to 6.52 135 facilitate financial gain (2) Payments made or received in advance of an individual 6.56 137 becoming a public office holder (3) Interference with evidence 6.62 139 (4) The conveyance of non-prohibited, but potentially 6.67 140 harmful or disruptive, articles into prison (5) Public office holders who fail properly to protect 6.75 142 information that comes into their possession by virtue of their positions CHAPTER 7: QUESTIONS FOR CONSULTEES vi APPENDICES All appendices are available online at: http://www.lawcom.gov.uk/project/misconduct-in-public-office/ Appendix A: The history of the offence of misconduct in public office Appendix B: The tort of misfeasance in public office Appendix C: Misconduct in public office and the ECHR Appendix D: Spreadsheets relating to misconduct in public office Appendix E: Previous reform proposals Appendix F: International comparisons vii viii CHAPTER 1 INTRODUCTION 1.1 The Law Commission is undertaking a review of the offence of misconduct in public office as part of its 11th programme of law reform.1 1.2 Our reform objectives are: (1) to decide whether the existing offence of misconduct in public office should be abolished, retained, restated or amended; and (2) to pursue whatever scheme of reform is decided upon. 1.3 This background document 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. The legal concepts involved in this offence are highly technical and complex and not easily accessible to non-lawyers. Furthermore, given that the law is so unclear and controversial, 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. 1.4 In light of this complexity and controversy, we have divided the consultation process into two phases in an effort to expand the scope for engagement with the important issues raised in this review. 1.5 The first phase of this consultation commences with our symposium of pre- eminent speakers and delegates, coinciding with the publication of this paper on 20 January 2016. Our focus is on the current law and its problems. We will use the contributions from delegates at this symposium and responses to the questions in this background paper to formulate options for reform. 1.6 We seek responses to the questions set out in this background paper by 20 March 2016. 1.7 The second phase of consultation will set out options of what the law of misconduct in public office should be and will involve a consultative document to be published this spring.