Current project status
The current status of this project is: Analysis of responses.
List of project stages:
- Analysis of responses
- Initiation: Could include discussing scope and terms of reference with lead Government Department
- Pre-consultation: Could include approaching interest groups and specialists, producing scoping and issues papers, finalising terms of project
- Consultation: Likely to include consultation events and paper, making provisional proposals for comment
- Policy development: Will include analysis of consultation responses. Could include further issues papers and consultation on draft Bill
- Reported: Usually recommendations for law reform but can be advice to government, scoping report or other recommendations
We launched our second public consultation on the law of misconduct in public office on 5 September 2016. The consultation period is now closed and we are analysing the responses we have received.
Misconduct in Public Office: Issues Paper 1 – the current law (“the background paper”) was the first document to be published as part of this project. That paper began the first phase of the consultation process.
The background paper set out the current law of misconduct in public office, highlighting problems that arise through areas of uncertainty, as well as gaps and overlaps with alternative offences. It asked consultees a number of questions, which were aimed at gathering further evidence as to existing problems and their extent. Public consultation on the background paper closed on 20 March 2016.
Our Consultation Paper, Reforming Misconduct in Public Office, begins our second phase of consultation and sets out options for what the law of misconduct in public office should be. Our final report will be published in 2017.
Our reform objectives are to decide whether the existing offence of misconduct in public office should be abolished, retained, restated or amended and to pursue whatever scheme of reform is decided upon.
The offence and its problems
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.
In general terms, those consultees who responded to the background paper agreed with us that the law is in need of reform, in order to ensure that public officials are appropriately held to account for misconduct committed in connection with their official duties. Consultees also indicated that our review of the law and its problems was comprehensive.
Law reform options
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.
For the purpose of devising any offence or offences to replace misconduct in public office, we need to devise a more rigorous definition of public office. The current, vague definition is a major problem with the present offence. We discuss in the Consultation Paper four possible methods of defining public office. Any new offence will need to be underpinned by the concept of public office. However depending on the particular model of offence, not every form of the replacement offence needs to apply to all public office holders. It may be that certain types of new offence need only apply to a subset of public office holders.
We consider two possible new offences to replace the current offence of misconduct in public office. Option 1 involves a new offence addressing breaches of duty that risk causing serious harm, when committed by particular public office holders (those with duties concerned with the prevention of harm). Option 2 involves a new offence addressing corrupt behaviour on the part of all public office holders. Options 1 and 2 are separate but compatible. That is, it would be possible to implement Option 1 on its own, Option 2 on its own or both together.
Law reform Option 3 involves abolition of the current law without replacement. At this stage, it is our view that reform of this nature would be likely to leave unacceptable gaps in the law.
At the end of the Consultation Paper we discuss two other possible legal reforms which had been raised by consultees during the first phase of consultation. These additional legal reforms could complement any of our Options 1, 2 or 3. The first involves reform of the sexual offences regime. The second involves treating the fact that a defendant is a public official as an aggravating factor for the purposes of sentencing his or her criminal conduct.
As noted above, our consultation is open until 28 November 2016.
Please contact us if you have any enquiries about this project.
Area of law
Professor David Ormerod QC