Outdated and unclear laws around misconduct in public office should be reformed, says the Law Commission. It suggests two new statutory offences to replace the ancient common law offence, to target the most serious forms of misconduct in public office.
The Commission notes an increase in the number of prosecutions for misconduct in public office in recent years, rising from single figures in the early 2000s to averaging more than 80 per year since 2006. In 2018 (the last available figures), there were 95 prosecutions.
The common law offence of misconduct in public office has existed for hundreds of years. However, as the number of prosecutions has risen, so have the calls to reform the law. The most commonly expressed concern is that the offence lacks clarity and precision. This creates the potential for misuse and injustice, and risks it being used as a “catch all” offence, in place of more targeted statutory offences.
The Law Commission’s recommendations, if enacted, would replace the outdated and confusing misconduct in public office offence with two offences – an offence of corruption in public office (such as, a police officer who misuses their position to take sexual advantage of a vulnerable victim – depending on circumstances; other sexual offences may also apply) and an offence of breach of duty in public office.
A focus of the criminal law on the worst forms of misconduct would leave space for other consequences such as disciplinary proceedings in less serious cases, the Commission argues. It suggests a list of positions that constitute “public office” for the offences. With the line between public and private sectors sometimes blurred, this will provide greater clarity and certainty as to the positions covered by the offences, it’s claimed.
Professor Penney Lewis, Criminal Law Commissioner said: “The offence of misconduct in public office has been rightly criticised for being outdated, vague, and open to misuse. Our recommendations will clarify and modernise the law, while ensuring that public office holders are held to account for serious breaches of the trust that the public places in them.”
The recommendations have been placed before the Ministry of Justice. For an online copy of the 188-page report visit https://www.lawcom.gov.uk/project/misconduct-in-public-office/.
Comment
The charity Protect, which offers a free, confidential advice line to support whistleblowers, complains that the offence has been abused; to pursue a public official (such as police and prison officers) who raises concerns externally, typically to the press, which may embarrass the Government, yet pose no threat to national defence or national security. Protect Head of Policy, Andrew Pepper-Parsons said: “Requiring the Director of Public Prosecutions (DPP) to determine whether a case should be prosecuted is an interesting development as it may stop prosecutions of whistleblowers such as Christopher Galley in the Home Office – he leaked information to a Conservative MP which, though embarrassing to the Home Office, was not secret and did not put national security at risk.
“In our consultation response in 2016 we said the following about the public interest defence: ‘We believe a codified law on misconduct in public office should explicitly include a public interest defence which can be used by whistleblowers accused of the offence, so as to make it consistent with the freedom of expression protected by common law and Article 10 of the ECHR.”
