Reforming the offence of misconduct in public office

“The way the offence of misconduct in public office was established means the offence is vaguely defined. Jeremy Horder looks into the Government’s proposed reforms, and offers a warning against extending the offence to cover conduct aimed at damaging another person’s reputation. Peter Mandelson and Andrew Mountbatten-Windsor are currently under investigation regarding allegations that they engaged in “ misconduct in public office .” This is an offence dating back hundreds of years. It was developed by judges to hold public officials to account at a time when there were few opportunities for members of the public themselves to question or challenge public decision-making through the courts. Like other offences developed by the judiciary using their common law powers (such as “ conspiracy to defraud’ or “ outraging public decency’ ), the offence is vaguely defined, giving judges ample scope to apply it to novel situations as they see fit. Broadly speaking, misconduct in public office is committed when a public officer, acting as such, wilfully neglects to perform their duty and/or wilfully misconducts themselves 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 need to clarify “misconduct in public office” Article 7 of the European Convention prohibits retrospective punishment, which has been held to include a prohibition against laws which are so ambiguous that they cannot be predictably interpreted. The difficulty with the definition given above is that it risks the imposition of retrospective punishment in just this sense. The idea of wilfully misconducting oneself “to such as degree as to amount to an abuse of the public’s trust” simply does not give an adequate guide to public officials concerning when they may fall foul of an offence that carries a maximum penalty of life imprisonment. Accordingly, the Government is now proposing to put the offence on a modified statutory footing, in Part 3 of the Public Office (Accountability) Bill currently going through Parliament. Part 3 divides the wrongdoing at the heart of misconduct in a public office into two categories. I will focus on the proposed offence in clause 12. This will create an offence in the following terms: A person who holds public office commits an offence if— (a) they use their office to obtain a benefit (whether for themselves or another person) or to cause another person to suffer a detriment, and (b) they know, or ought to know, that doing so is a seriously improper act…an act is “seriously improper” if a reasonable person would consider it to be seriously improper. This can be thought of as the “corruption” limb of misconduct in public office. It is this reformed part of the offence that would have applied, had it been in force when the acts allegedly engaged in by Peter Mandelson and Andrew Mountbatten-Windsor took place. However, financial greed is not the only target of clause 12. Clause 12(2)(b) extends the notion of using one’s office “to obtain a benefit (or to cause a detriment)” to include acting to secure “protection or enhancement of, or damage to, a person’s reputation,” and “a benefit or detriment of a physical or sexual nature”. The latter category (benefits or detriments of a sexual nature) is particularly important in the recent history of the offence of misconduct in public office. A majority of cases in recent decades have involved abuse of power connected with sexual misconduct by police or prison officers, probation officers or even council CCTV operators. Whilst some instances of sexual misconduct can and should be prosected as offences contrary to sexual offences legislation, that is not always possible, which is why the misconduct offence has been pressed into service. For example, a police officer might use their connection with cases privately to contact and enter into relationships with vulnerable witnesses involved in those cases. Such relationships may be consensual; but the officer is clearly abusing their power in a seriously improper way to obtain a sexual benefit. Putting such cases aside, section 12 extends the offence to include a new category of case arguably not clearly covered by the current law: where a public official acts in a seriously improper way to secure “protection or enhancement of, or damage to, a person’s reputation.” It is unclear exactly what kinds of cases this extension is meant to cover, although the Law Commission report that inspired clause 12 mentions the improper awarding of official titles or the covering up of errors to avoid embarrassment. The difficulty with it is that in part it clearly resurrects the offence of criminal libel, abolished in 2009 , when such a libel is engaged in by a public official acting as such (and the libel is regarded as seriously improper). The creation of such an official-to-citizen offence of criminal libel reflects a republican political philosophy that places emphasis on public officials as servants of the people (rather than the other way around). Accordingly, it contrasts sharply with comparable – more authoritarian offences in mainland Europe, where it is more common to find libel criminalised when it involves citizen-to-official communication. The idea is that, however much “character assassination” might be part of the rough-and-tumble of the (online) public square, it has no place in the discharge of public powers and duties. True enough; but one of the reasons for the abolition of criminal libel in 2009 was its chilling effect on free public discourse. Given that public officials can be dismissed or disciplined by reference to failures of professional standards for (verbal) misconduct, is it really necessary to re-introduce criminalisation to address the problem? We should welcome clause 12 as providing at least some greater degree of clarity to the law of misconduct. But as every lawyer knows, new legislation commonly poses fresh sets of challenges and uncertainties, even if it succeeds in consigning older problems to legal history. I suggest that the proposed extension of the misconduct offence to cover (seriously improper) conduct aimed at damaging another person’s reputation is in that respect likely to cause more legal difficulties than it solves. Enjoyed this post? Sign up to our newsletter and receive a weekly roundup of all our articles. All articles posted on this blog give the views of the author(s), and not the position of LSE British Politics and Policy, nor of the London School of Economics and Political Science. Image credit: Alex Segre via Shutterstock. The post Reforming the offence of misconduct in public office first appeared on LSE British Politics .

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