Reform outdated offence of misconduct in public office, recommends Law Commission

There has been 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 current common law offence of misconduct in public office has existed for hundreds of years. However, as the number of prosecutions has risen in recent decades, 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• Replace the outdated and confusing misconduct in public office offence with two offences – an offence of corruption in public office, and an offence of breach of duty in public office. These new offences would make the law clearer and easier to follow.
• Focus the criminal law on the worst forms of misconduct, leaving space for other consequences such as disciplinary proceedings in less serious cases.
• Set out 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.
• Require the consent of the Director of Public Prosecutions for the prosecution of the offences, to ensure that the right cases are prosecuted, and to prevent vexatious private prosecutions. 

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“The offence of misconduct in public office has been rightly criticised for being outdated, vague, and open to misuse.”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.”

Reforms in detail

The reforms recommended by the Law Commission would modernise and clarify the offences, so they are easier to understand whilst also ensuring they only target the most serious misconduct in public office. The recommendations include:

• Replacing the current common law offence of misconduct in public office with two new offences:
  • An offence of corruption in public office: which will cover a public office holder who knowingly uses or fails to use their public position or power for the purpose of achieving a benefit or detriment, where that behaviour would be considered seriously improper by a “reasonable person”. For example, a police officer who misuses their position to take sexual advantage of a vulnerable victim may be subject to this this offence (depending on the circumstances, other sexual offences may also apply). A defendant to this offence will have a defence if they can demonstrate that their conduct was, in all the circumstances, in the public interest. This defence may be applicable in some limited “whistleblower” cases.
  • An offence of breach of duty in public office: for when a public office holder is subject to and aware of a duty to prevent death or serious injury that arises only by virtue of the functions of the public office, they breach that that duty, and in doing so are reckless as to the risk of death or serious injury. For example, where a death in prison occurs as a result of the reckless failure of a prison officer to prevent this.
• Striking the balance between punishing and deterring the most serious forms of misconduct by public office holders, while leaving space for civil and disciplinary penalties, and other less serious offences, in cases that do not warrant such serious criminal sanction.
• Setting out a list of positions that constitute “public office” in the offences. This will provide greater clarity and certainty as to the scope of the replacement offences. An example list is available in the notes to editors section of this press release.
  • Under the Commission’s recommendations, the Lord Chancellor would be given a power to amend the list of positions in the definition of “public office” by way of an affirmative statutory instrument.
• That Parliament should consider a maximum penalty for both replacement offences, with 10 to 14 years’ imprisonment being an appropriate range.

Next steps

The recommendations have been laid in Parliament and provided to the Ministry of Justice. It is now up to Government to decide if and how to implement the reforms. The Law Commission is willing and able to support the Government in implementing the reforms if they decide to do so.

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