English Law Commission Consultation on Misconduct in Public Office

Earlier this month, the English Law Commission released a consultation paper on Misconduct in Public Office.

According to the project description: 

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 or her duty and/or wilfully misconducts him or herself; to such a degree as to amount to an abuse of the public’s trust in the office holder; without reasonable excuse or justification.

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 (...)

The problems identified in the existing law clearly show that it would be undesirable either to retain the existing offence or to attempt to codify it in statute. All the options in the Consultation Paper therefore assume that the common law offence of misconduct in public office is to be abolished.

The underlying issue tying together the problems with the current offence is that it is not clear what mischief the current offence targets and therefore what form the offence should take.

In our consultation paper we conclude that a reformed offence, or offences, could address one or both of the following wrongs: breach of duty leading to a risk of serious harm; and corrupt behaviour – the abuse of a position for personal advantage or to cause harm to another.

Appendix F includes information on the legal situation in a number of other jurisdictions, including Canada, Hong Kong, Australia, Scotland and a number of Caribbean states.