Misconduct in Public Office

Here is some information on the law covering Misconduct in Public Office.

Those accused of such offences here (none of whom are denying them) should note they are facing up to LIFE in jail.

Principle

Misconduct in public office is an offence at common law triable only on indictment. It carries a maximum sentence of life imprisonment. It is an offence confined to those who are public office holders and is committed when the office holder acts (or fails to act) in a way that constitutes a breach of the duties of that office.
The Court of Appeal has made it clear that the offence should be strictly confined. It can raise complex and sometimes sensitive issues. Prosecutors should therefore consider seeking the advice of the Principal Legal Advisor to resolve any uncertainty as to whether it would be appropriate to bring a prosecution for such an offence.

Definition of the offence

The elements of the offence are summarised in Attorney General’s Reference No 3 of 2003 [2004] EWCA Crim 868 (‘AG Ref No 3′).
The offence is committed when 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.

Scope of the offence

Level of misconduct required
The offence is, in essence, one of abuse of the power or responsibilities of the office held.
Misconduct in public office should be used for serious examples of misconduct when there is no appropriate statutory offence that would adequately describe the nature of the misconduct or give the court adequate sentencing powers.
The third element of the definition of the offence provides an important test when deciding whether to proceed with an offence of misconduct in public office. Unless the misconduct in question amounts to such an abuse of trust, a prosecution for misconduct in public office should not be considered.
The culpability ‘ must be of such a degree that the misconduct impugned is calculated to injure the public interest so as to call for condemnation and punishment’ (R v Dytham 1979 QB 722).
The fact that a public officer has acted in a way that is in breach of his or her duties, or which might expose him/her to disciplinary proceedings, is not in itself enough to constitute the offence.
Examples of behaviour that have in the past fallen within the offence include:

  • wilful excesses of official authority;
  • ‘malicious’ exercises of official authority;
  • wilful neglect of a public duty;
  • intentional infliction of bodily harm, imprisonment, or other injury upon a person;
  • frauds and deceits.

Dishonesty or corruption

There is no general requirement that the misconduct be dishonest or corrupt. Proof that the defendant was dishonest is, however, an essential ingredient when the allegation of misconduct involves the acquisition of property by theft or fraud.
See R v W [2010] EWCA 372, which involved a police officer who used a credit card that had been issued to him for personal purchases.
Bear in mind, however, the principle that where there is clear evidence of a substantive offence(s), that should form the basis of the case, with the ‘public office’ element being put forward as an aggravating factor.

Breaches of duty

Some of the most difficult cases involve breaches of public duty that do not involve dishonesty or corruption.
In all cases, however, the following matters should be addressed:

  • Was there a breach of a duty owed to the public (not merely an employment duty or a general duty of care)?
  • Was the breach more than merely negligent or attributable to incompetence or a mistake (even a serious one)?
  • Did the defendant have a subjective awareness of a duty to act or subjective recklessness as to the existence of a duty?
  • Did the defendant have a subjective awareness that the action or omission might be unlawful?
  • Did the defendant have a subjective awareness of the likely consequences of the action or omission.
  • Did the officer realise (subjective test) that there was a risk not only that his or her conduct was unlawful but also a risk that the consequences of that behaviour would occur?
  • Were those consequences ‘likely’ as viewed subjectively by the defendant?
  • Did the officer realise that those consequences were ‘likely’ and yet went on to take the risk?
  • Regard must be had to motive.

Elements of the offence

A public officer

The prosecution must have evidence to show that the suspect is a ‘public officer’. There is no simple definition and each case must be assessed individually, taking into account the nature of the role, the duties carried out and the level of public trust involved.
The judgment of Lord Mansfield in R v Bembridge (1783) 3 Doug KB 32 refers to a public officer having:
an office of trust concerning the public, especially if attended with profit … by whomever and in whatever way the officer is appointed.
It does not seem that the person concerned must be the holder of an ‘office’ in a narrow or technical sense. The authorities suggest that it is the nature of the duties and the level of public trust involved that are relevant, rather than the manner or nature of appointment.
In R v Whitaker [1914] KB 1283 the court said:
A public office holder is an officer who discharges any duty in the discharge of which the public are interested, more clearly so if he is paid out of a fund provided by the public.
This approach was followed in a series of cases from other common law jurisdictions: R v Williams (1986) 39 WIR 129; R v Sacks [1943] SALR 413; R v Boston (1923) 33 CLR 386. In R v Dytham (1979) 1 QB 723 Lord Widgery CJ talked of ‘a public officer who has an obligation to perform a duty’.
Remuneration is a significant factor, but not an essential element. In R v Belton [2010] WLR (D) 283 the defendant was an unpaid voluntary member of the Independent Monitoring Board. The Court of Appeal held that remuneration was not an indispensable requirement for the holding of a public office, or for liability to prosecution for the offence of misconduct in a public office.
The fact that an individual was a volunteer might have a bearing on whether there had been wilful misconduct, but was only indicative rather than determinative of whether an individual held a public office.
The court in AG Ref No3 referred to the unfairness that could arise where people who carry out similar duties may or may not be liable to prosecution depending on whether they can be defined as ‘public officers’. What were once purely public functions are now frequently carried out by employees in private employment. (An example is the role of the court security officer).
The court declined to define a public officer, however, but said:
This potential unfairness adds weight, in our view, to the conclusion that the offence should be strictly confined but we do not propose to develop the point or to consider further the question of what, for present purposes, constitutes a public office.’ (AG Ref No 3)

Acting as such

The suspect must not only be a ‘public officer'; the misconduct must also occur when acting in that capacity.
It is not sufficient that the person is a public officer and has engaged in some form of misconduct. The mere fact that a person is carrying out general duties as a public officer at the time of the alleged misconduct does not mean he or she is necessarily acting as a public officer in respect of the misconduct.
There must be a direct link between the misconduct and an abuse, misuse or breach of the specific powers and duties of the office or position.
The offence would also not normally apply to the actions of a public officer outside that role, unless the misconduct involved improper use of the public officer’s specific powers or duties arising from the public office.
A deliberate misuse by an off-duty police officer of the powers of a constable, for example, may mean that the officer is ‘acting as such’ by virtue of his or her assumption of the powers of the office. Such a situation might arise if an off-duty police officer arrested an innocent man with whom he had a personal dispute or took steps in order to prevent or frustrate an enquiry.
The principles involved apply equally to holders of all public offices. In the case of a school governor or a local authority official or other such member of a public body, for example, it will be necessary to show that the misconduct was closely connected with exercising (or failing to exercise) the relevant public function.

Wilful neglect or misconduct

Nature of the neglect or misconduct
The wilful neglect or misconduct can be the result of a positive act or a failure to act. In the case of R v Dytham [1979] QB 722, for example, a police officer was held to have been correctly convicted when he made no move to intervene during a disturbance in which a man was kicked to death.
There must also be an element of knowledge or at least recklessness about the way in which the duty is carried out or neglected. The test is a subjective one and the public officer must be aware that his/her behaviour is capable of being misconduct.
Meaning of ‘wilful’
In AG Ref No 3 the court approved the definition of ‘wilful’ as ‘deliberately doing something which is wrong knowing it to be wrong or with reckless indifference as to whether it is wrong or not’.
In R v G [2003] UK HL 50 Lord Bingham said with respect to inadvertence:
It is clearly blameworthy to take an obvious and significant risk of causing injury to another. But it is not clearly blameworthy to do something involving a risk of injury to another if one genuinely does not perceive the risk. Such a person may fairly be accused of stupidity or lack of imagination, but neither of those failings should expose him to conviction of serious crime or the risk of punishment.
Lord Steyn added:
the stronger the objective indications of risk, the more difficult it will be for defendants to repel the conclusion that they must have known. (R v G [2003] UK HL 50)

Abuse of the public’s trust

Seriousness of the neglect or misconduct
Public officers carry out their duties for the benefit of the public as a whole. If they neglect or misconduct themselves in the course of those duties this may lead to a breach or abuse of the public’s trust.
The behaviour must be serious enough to amount to an abuse of the public’s trust in the office holder. In R v Dytham, Lord Widgery said that the element of culpability:
must be of such a degree that the misconduct impugned is calculated to injure the public interest so as to call for condemnation and punishment.
In AG Ref No 3 the court said that the misconduct must amount to:
an affront to the standing of the public office held. The threshold is a high one requiring conduct so far below acceptable standards as to amount to an abuse of the public’s trust in the office holder.

Consequences

The likely consequences of any wilful neglect or misconduct are relevant when deciding whether the conduct falls below the standard expected:
It will normally be necessary to consider the likely consequences of the breach in deciding whether the conduct falls so far below the standard of conduct to be expected of the officer as to constitute the offence. The conduct cannot be considered in a vacuum: the consequences likely to follow from it, viewed subjectively will often influence the decision as to whether the conduct amounted to an abuse of the public’s trust in the officer.’ (AG Ref No 3).
Whilst there is no need to prove any particular consequences flowing from the misconduct, it must be proved that the defendant was reckless not just as to the legality of his behaviour, but also as to its likely consequences.
The consequences must be likely ones, as viewed subjectively by the defendant. Although the authorities do not say so, likely can probably be taken to mean at the very least ‘reasonably foreseeable'; it is arguable that likely may mean ‘probable’ in this context.

Motive

In order to establish whether the behaviour is sufficiently serious to amount to the offence, the officer’s motive is also relevant:
the question has always been, not whether the act done might, upon full and mature investigation, be found strictly right, but from what motive it had proceeded; whether from a dishonest, oppressive, or corrupt motive, under which description, fear and favour may generally be included, or from mistake or error
To punish as a criminal any person who, in the gratuitous exercise of a public trust, may have fallen into error or mistake belongs only to the despotic ruler of an enslaved people, and is wholly abhorrent from the jurisprudence of this kingdom.
(R v Borron [1820] 3 B&Ald 432: Abbott CJ, at page 434.)
At its highest the motive may be malice or bad faith but they are not prerequisites. Reckless indifference would be sufficient

Without reasonable excuse or justification

It is not necessary for the prosecution to prove the absence of a reasonable excuse or justification, although the nature of the prosecution evidence should in practice negate any such element.
The defendant may advance evidence of a reasonable excuse or justification. It is for the jury to determine whether the evidence reveals the necessary culpability.

Charging Practice

Misconduct in public office should not simply be used as a substitute for other offences without some other aggravating factor.
Misconduct by a public officer can often be adequately presented as an aggravating feature of a statutory offence. Where the misconduct can be adequately presented by a statutory offence giving the court adequate sentencing powers, that offence should be the starting point. The fact that the offender is a public officer should be treated as an aggravating feature of that offence.
An assault by a police officer committed on duty should not, for example, automatically be considered as misconduct in public office. A charge of assault would normally 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 (R v Dunn (2003) 2 Cr.App.R.(S)).
Misconduct in public office should be considered where:
there was serious misconduct or a deliberate failure to perform a duty owed to the public, with serious potential or actual consequences for the public;

  • there is no suitable statutory offence for a piece of serious misconduct (such as a serious breach of or neglect of a public duty that is not in itself a criminal offence);
  • the facts are so serious that the court’s sentencing powers would otherwise be inadequate; or
  • it would assist the presentation of the case as a whole (for example, where a co-defendant has been charged with an indictable offence but the statutory offence is summary only and cannot be committed or sent for trial with the co-defendant).

There may be cases in which a number of statutory offences can be more conveniently indicted as a single charge of misconduct in public office in order to make the case easier to present to the court.
Similar reasoning applies to the charging of misconduct in public office as to the offence of perverting the course of justice. (See R v Sookoo (2002) EWCA Crim 800).

Useful Links

Archbold 25-381
Attorney General’s Reference No 3 of 2003 [2004] EWCA 868
R v Bembridge (1783) 3 Doug KB 32
R v Whitaker (1914) KB 1283
R v Williams (1986) 39 WIR 129
R v Sacks (1943) SALR 413;
R v Boston (1923) 33 CLR 386.
R v Dytham (1979) 1 QB 723
R v W (2010) EWCA 372
R v G (2003) UK HL 50
R v Borron (1820) 3 B&Ald 432
R v Dunn (2003) 2 Cr.App.R.(S)
R v Sookoo (2002) EWCA Crim 800

Leave a comment

6 Comments

  1. I am in the process of starting a website about Misconduct in Public Office called Unforgiving, (www.unforgiving.co.uk) I have taken the liberty of posting the case of Grandma B on my site, with a link to this site.
    I am certainly going to be very interested in this case?

    Reply
  2. Thank you for your support. Please let us know if you would like us to link this blog to your site.

    Reply
  3. Tommy of the Family: Mackay

     /  13/11/2013

    Hello, I’m looking to prosecute some public trustees for flagrant abuse of their offices. However I have no idea how to start or who to inform. Does it have to begin with a private criminal prosecution process?

    Reply
  1. GRANDMA B UPDATE 11 MARCH 13 | The MUSA CASE, MAURICE KIRK, NORMAN SCARTH, THE BAYLIS FAMILY, THE HOLLIE GREIG CASE – VICTIMS OF THE STATE…this site is being interfered with – pls check the archives on the right for relavent past article
  2. Can the CCG alter the wording of a recommendation made by the MDT? | CHC Funding Information

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