Current project status
The current status of this project is: Complete.
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 published our final recommendations on 4 December 2020.
The current 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.
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.
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.
Our Consultation Paper, Reforming Misconduct in Public Office, began our second phase of consultation and set out options for what the law of misconduct in public office should be.
The responses to this paper helped us to shape and refine the recommendations that are set out in our final report, which was released on 4 December 2020.
The problems we identified throughout the consultation process led us to the view that the common law offence should not be retained in its current form. However, we also found that there was an ongoing need for offences that specifically target serious misconduct by public office holders.
In our final report we recommend that the current offence should be repealed and replaced with two statutory offences:
- An offence of corruption in public office: which would apply where a public office holder 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”. 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.
- An offence of breach of duty in public office: which would apply where 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 duty, and in doing so are reckless as to the risk of death or serious injury.
To provide greater clarity around the scope of the offence, we also recommend that there be a list of positions capable of amounting to “public office” set out in statute.
Finally, we recommend that consent of the Director of Public Prosecutions should be required to prosecute the offence, to ensure that the right cases are prosecuted, and to prevent vexatious private prosecutions.
It is now time for the Government to review and consider the recommendations in our final report. We await an interim response.
Area of law
Professor Penney Lewis