Law Commission And Misconduct in Public Office
Status: We will commence work on this project early in 2014. We aim to open a consultation in early 2015 and produce our final report in summer 2016
Misconduct in public office is a common law offence but there is no exhaustive definition. As a result the boundaries of the offence are uncertain and despite there being relatively few prosecutions each year a disproportionately high number of those cases are the subject of appeal.
In 2010 the Committee on the Issue of Privilege (Police Searches on the Parliamentary Estate) recommended that the Law Commission revisit its 1997 proposal to create a statutory offence.
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Misconduct in public office
Standard Note: SN/PC/04909
Last updated: 21 October 2009
Author: Lucinda Maer
Section Parliament and Constitution Centre
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)].
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).
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 . http://www.parliament.uk/documents/commons/lib/research/briefings/snpc-04909.pdf
http://www.cps.gov.uk/legal/l_to_o/misconduct_in_public_office/index.html [2000 ] 2 W.L.R. 1220
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