Reforming the offence of misconduct in public office
The law that governs misconduct in public office is unclear, ambiguous and in need of reform, according to the Law Commission, independent law reform adviser to the Government.
More people than ever before are being accused of misconduct in public office, and recent years have seen a number of high-profile allegations, investigations and prosecutions of the offence. But the existing law does not clearly define either what is meant by “misconduct” or who holds “public office”.
The Law Commission suggests that a new, clear statutory offence would remove ambiguity. It proposes two forms such an offence might take and asks consultees whether either or both should be taken forward into legislation. They are:
a breach of duty model, where the breach must lead to a risk of serious harm, and
a corruption-based model, including the abuse of a position for personal advantage or to cause harm to another.
The breach of duty offence would apply to public office holders whose positions carry powers of physical coercion such as arrest, detention or imprisonment, or have functions specifically relating to protecting vulnerable people from harm. The corruption-based model offence would apply to all holders of public office.
The lack in the existing law of a clear definition of “public office” makes 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 Commission’s consultation paper explores options for setting out a more rigorous definition of public office and asks consultees how that might be reflected in statute. This could be, for example, as a list of specific positions or public functions, or a general definition supported by examples of positions or functions.
The Commission asks consultees to consider whether the proposed new offences offer a solution to the problems with the existing law. It also raises the possibility of complementary reforms that could sit alongside its main recommendations.
In its consultation paper, the Commission also explores the option of abolishing rather than replacing the offence of misconduct in public office but concludes that abolition would leave gaps in the law where conduct that ought to be criminal and would have been caught by the existing offence could not be covered adequately or at all by other offences.
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. The offence of misconduct in public office is increasingly being used to bring public officials to account but recent high-profile investigations and prosecutions have brought the problems with this offence into sharp focus.
“The existing law relating to misconduct in public office is unclear in a number of fundamental respects. There is urgent need for reform to bring clarity and certainty and ensure that public officials are appropriately held to account for misconduct committed in connection with their official duties.”
The consultation closes on 28 November 2016.