Misconduct in public office Standard Note: SN/PC/04909 Last updated: 21 October 2009 Author: Lucinda Maer Section Parliament and Constitution Centre This Note briefly sets out the history of the common law offence of ‘misconduct in public office’. It looks at recent use of the offence in prosecutions and considers proposals to place the offence on a statutory footing. This information is provided to Members of Parliament in support of their parliamentary duties and is not intended to address the specific circumstances of any particular individual. It should not be relied upon as being up to date; the law or policies may have changed since it was last updated; and it should not be relied upon as legal or professional advice or as a substitute for it. A suitably qualified professional should be consulted if specific advice or information is required. This information is provided subject to our general terms and conditions which are available online or may be provided on request in hard copy. Authors are available to discuss the content of this briefing with Members and their staff, but not with the general public. Contents 1 Misconduct in public office - historical background 3 2 The offence today 3 3 Proposals for a statutory offence 5 4 Recent use 7 4.1 Introduction 7 4.2 Statistics on use of the offence 8 4.3 The arrests of Damian Green and Christopher Galley and the subsequent decision not to prosecute 12 2 1 Misconduct in public office - historical background Misconduct in public office is a common law offence. The offence is said to date back to the case of R v Bembridge in 1783. The defendant in this case was an accountant in the office of the Receiver and Paymaster General of the Forces. He was accused of corruptly concealing from his superior his knowledge that certain sums of money had been omitted in the final accounts. The judge in the case, Lord Mansfield QC, stated: The duty of the defendant is obvious; he was a trustee of the public and the Paymaster, for making every charge and every allowance he knew of… if the defendant knew of the omission… and if he concealed it, his motive must have been corrupt. That he did know was fully proved, and he was guilty, therefore, not of an omission or neglect, but of a gross deceit. The object could only have been to defraud the public of the whole, or part of the interest…a man accepting an office of trust, concerning the public, especially if attended which profit, is answerable criminally to the King for misbehaviour in his office; this is true by whomever and in whatever way the officer is appointed. However, as pointed out in the book Corruption and Misuse of Public Office: …even before Bembridge, the common law sought to criminalize the public officer who had the benefit of the privileged position of occupying a public office, but who failed to discharge his duties truly competently and for the public good. Thus, a constable who failed to act in accordance with his duty as an officer of the Crown was criminally liable in Makally’s Case (1611) whilst in Crouther’s Case (1600) a constable was prosecuted having refused to make a ‘hue and cry’ after being informed of a burglary.1 2 The offence today Details of the offence are set out in November 2007 guidance from the Crown Prosecution Service (CPS): Principles The elements of misconduct in public office are: a) A public officer acting as such. b) Wilfully neglects to perform his duty and/or wilfully misconducts himself. c) To such a degree as to amount to an abuse of the public's trust in the office holder. d) Without reasonable excuse or justification. Who is a Public Officer? In Attorney General's Reference No. 3 of 2003 [2004] EWCA 868, it was put to the Court of Appeal, but not argued as part of the substantive appeal, that public functions are now frequently carried out by employees in private employment, e.g. security at courts and transport of prisoners, and that it was unfair and illogical if those holding public office, such as police officers, were to be liable to conviction of an offence not applicable to private employees doing similar work. Having not heard argument on the point, this may present problems of definition", which they declined to elaborate upon. 1 Colin Nicholls QC et al, Corruption and Misuse of Public Office, 2006, p66 3 the Court stated as follows (Para 62): "This potential unfairness adds weight, in our view, to the conclusion that the offence should be strictly confined but we do not propose to develop the point or to consider further the question of what, for present purposes, constitutes a public office." So who holds a public office and as a result can be guilty of this offence? According to the Court of Appeal, which quoted from the earlier authorities, it requires that the defendant "must be a public officer acting as such .... There must be a breach of duty by the officer, [which is wilful and which is such that the conduct is] an affront to the standing of the public office held. The threshold is a high one requiring conduct so far below acceptable standards as to amount to an abuse of the public's trust in the office holder" (Para 56). And later, quoting from the case of Bembridge [(1783) 3 Doug KB 32], "those who hold public office carry out their duties for the benefit of the public as a whole and, if they abuse their office, there is a breach of the public's trust" (Para 57). Charging Practice Like perverting the course of justice, misconduct in public office covers a wide range of conduct. It should always be remembered that it is a very serious, indictable only offence carrying a maximum sentence of life imprisonment. A charge of misconduct in public office should be reserved for cases of serious misconduct or deliberate failure to perform a duty which is likely to injure the public interest. Before deciding to proceed with a charge of misconduct in public office you should consider whether the acts complained of can properly be dealt with by any available statutory offence. If the seriousness of the offence can properly be reflected in any other charge, which would provide the court with adequate sentencing powers, and permit a proper presentation of the case as a whole, that other charge should be used unless: • the facts are so serious that the court's sentencing powers would be inadequate; or • it would ensure the better presentation of the case as a whole; for example, a co-defendant has been charged with an indictable offence and the statutory offence is summary only. In R v Sookoo (2002) TLR 10/4/02 the Court cautioned against adding a count of perverting the course of justice when the conduct could properly be treated as an aggravating feature of a statutory offence. Similar reasoning should be applied to the charging of misconduct in public office. So for example, an assault by a police officer committed while on duty could also arguably be misconduct in public office, but the appropriate assault charge would provide the court with adequate sentencing powers and the ability to take into account the breach of trust by the officer as an aggravating factor [see R v. Dunn [2003] 2 Cr.App.R.(S)].2 There is also a tort of misfeasance in public office, which is a civil wrong. This has been defined in the leading case of Three Rivers D.C. v Bank of England (no 3).3 Lord Steyn explained that there were two different forms of the tort: First there is the case of targeted malice by a public officer i.e. conduct specifically intended to injure a person or persons. This type of case involves bad faith in the sense of the exercise of public power for an improper or ulterior motive. The second form is where a public officer acts knowing that he has no power to do the act 2 http://www.cps.gov.uk/legal/l_to_o/misconduct_in_public_office/index.html 3 [2000 ] 2 W.L.R. 1220 4 complained of and that the act will probably injure the plaintiff. It involves bad faith inasmuch as the public officer does not have an honest belief that his act is lawful.4 In such a civil case, a person injured by the action would need to begin proceedings. Archbold 2008 notes the Attorney General case of 2004 where it was held that the tort is committed by a public officer acting as such who wilfully neglects to perform his duty or wilfully misconducts himself to such a degree as to amount to an abuse in the public’s trust in the office holder. However, the court noted that the threshold was high.5 3 Proposals for a statutory offence In 1997 the Committee on Standards in Public Life recommended a statutory offence be created, partially to replace the proposed abolition of surcharge in local government: 15. A common law offence of 'misconduct in a public office' exists at present, and prosecutions are still undertaken from time to time. We believe that the new statutory offence should be developed from the common law offence. 16. Discussing the common law offence in its consultation paper on corruption, the Law Commission described it as 'wide-ranging and ill-defined'. It appears to be treated as a general description of a series of reprehensible acts or omissions by those exercising authority.