Misconduct in public office – identifying the problems

We have launched a consultation to explore how the current law governing misconduct in public office is being used and discover the problems caused in practice by the law’s lack of clarity.

Misconduct in public office is a common law offence, not defined in statute. It is unclear and ambiguous:

• “Public office” is not clearly defined, making it difficult for the authorities, the courts and the public, as well as potential or actual public office holders, to know who is and who is not included.
• The types of duty that might qualify someone as a public office holder are ill-defined. And it is not clear whether the misconduct must apply to those specific duties.
• What is meant by “abuse of trust” is so vague that it is difficult for investigators, prosecutors and juries to identify and apply.
• It is not clear whether “without reasonable excuse or justification” is a defining element of the offence or operates as a free-standing defence.
• The fault element differs depending on the circumstances which, according to the Commission, is unusual and unprincipled.

Launching the consultation today at a symposium at King’s College London, Professor David Ormerod QC, Law Commissioner for criminal law, said: “It is vital that the public have confidence in their public officials and in the legal framework that sets the boundaries of their conduct. But recent high-profile investigations and prosecutions of misconduct in public office have brought the problems with this offence into sharp, public focus.

“Our objective is to decide whether the existing offence of misconduct in public office should be abolished, retained, restated or amended. To help us do this, we are asking investigators, prosecutors and the people and organisations who represent holders of public office to provide us with evidence and examples of the problems that come about because of the lack of clarity and ambiguity that runs through all elements of this offence. What we hear from these experts will inform a consultation on potential options for reforming the law, which we expect to launch later this year.”