Law Commission of England Consultation on Misconduct in Public Office

Earlier this month, the Law Commission of England and Wales launched a consultation on Misconduct in Public Office [all the documents at the bottom of the page]:

"Misconduct in public office is a common law offence: it is not defined in any statute. It carries a maximum sentence of life imprisonment. The offence requires that: a public officer 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. "

"Historically the offence held public officers to account for their misconduct, where there were no other adequate ways of doing so. Nowadays such misconduct will usually amount to another, narrower and better defined, criminal offence."

"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."

(...)

"We have identified a number of problems with the offence:

1. 'Public office' lacks clear definition yet is a critical element of the offence. This ambiguity generates significant difficulties in interpreting and applying the offence.
2. 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.
3. 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.
4. The fault element that must be proved for the offence differs depending on the circumstances. That is an unusual and unprincipled position.
5. 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."

Appendix F of the consultation document contains international comparisons that outline the situation in Canada, Hong Kong, Australia, Scotland and a number of Caribbean countries.