The criminal offence, which carries a maximum of life imprisonment, of Misconduct in Public Office is rarely charged but it has significance for people especially interested in political matters.
There is no definitive list of public offices for the purposes of this offence but it certainly includes local councillors and other elected officials, civil servants, local government officers and people appointed to statutory authorities (e.g. the board of a national park, or the Equality Commission).
The offence is committed when a holder of public office, acting as such
- wilfully neglects to perform his duty and/or wilfully misconducts himself
- to such a degree as to amount to an abuse of the public’s trust in the office holder
- without reasonable excuse or justification.
The offence is widely considered to be ill-defined and has been subject to recent criticism by the government, the Court of Appeal, the press and legal academics.
Statistics suggest that more people are being accused of misconduct in public office while fewer of those accusations lead to convictions. One possible reason is that the lack of clear definition of the offence renders it difficult to apply.
We have identified a number of problems with the offence:
- “Public office” lacks clear definition yet is a critical element of the offence. This ambiguity generates significant difficulties in interpreting and applying the offence.
- The types of duty that may qualify someone to be a public office holder are ill-defined. Whether it is essential to prove a breach of those particular duties is also unclear from the case law.
- An “abuse of the public’s trust” is crucial in acting as a threshold element of the offence, but is so vague that it is difficult for investigators, prosecutors and juries to apply.
- The fault element that must be proved for the offence differs depending on the circumstances. That is an unusual and unprincipled position.
- Although “without reasonable excuse or justification” appears as an element of the offence, it is unclear whether it operates as a free standing defence or as a definitional element of the offence.
* Antony Hook was #2 on the South East European list in 2014, is the English Party's representative on the Federal Executive and produces this sites EU Referendum Roundup.
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3 Comments
“… it certainly includes local councillors and other elected officials, civil servants, local government officers and people appointed to statutory authorities…”
Theoretically, could it include Ministers of the crown such as the office of the UK government’s Secretary of State for Scotland?
It’s difficult to envisage what a reasonable excuse or justification might look like, although remembering JK Galbraith’s dictum to the effect that “politics is the art of choosing between the unpalatable and the disastrous” may be helpful. It’s not clear whether “we had no realistic choice but to do something that would be unpopular” would or should be a suitable defence.
With regard to point 3, the indicators should presumably be something along the lines of action that leads to a material loss of public confidence – the trick is measuring it in a way not open to colossal abuse (thereby ruling out e-petitions and the media), and not subject to arbitrary quantification criteria such as a drop of above x % in polls, etc. Perhaps writing in an explicit call for a case-by-case judgement reasoned in public would be a way out of that particular mire.
The question of to which offices it should apply should be easily answerable, and it should certainly include holders of government and parliamentary offices. Again, the trick would lie in preventing vexatious or adventurous claims for nakedly political purposes. It’s possible that vesting authority to proceed with a case in an impartial independent adjudicating body might be a way forward here.
I am sure that a report earlier this week stated that a policeman who was alleged to have committed a crime while on duty was also charged with Misconduct In Public Office.