WHAT IS MISCONDUCT IN PUBLIC OFFICE?
Unsurprisingly, many have been asking in recent days what “misconduct in public office” means.
Misconduct in a public office is a criminal offence that has its basis in common law.
Significantly, for the state to bring a successful prosecution, there is a high bar that must be met in order for a Defendant to be found guilty. The prosecution must first prove that a public officer has misconducted themselves and then it must convince a jury that the misconduct is of a sufficiently serious nature for it to amount to a criminal offence.
The 2004 case of Attorney General’s Reference No 3 of 2003 [2004] EWCA Crim 868 examined the offence and helpfully sets out the elements of the offence.
What are the elements that the prosecution needs to prove in order to establish an individual is guilty of misconduct in public office?
The case of Attorney General’s Reference No 3 sets out that the prosecution need to prove:
- The individual was a public officer;
- The individual wilfully neglects to perform their duty and/or wilfully misconducts themselves; and
- The misconduct is to such a degree as to amount to an abuse of the public’s trust in the office holder.
Public Officer
The case of Mitchell [2014] EWCA Crim 318 establishes the legal test for whether an individual is a public officer:
“First, what was the position held? Second, what is the nature of the duties undertaken by the employee or officer in that position? Third, does the fulfilment of those duties represent the fulfilment of one of the responsibilities of government such that the public have a significant interest in the discharge of the duty which is additional to or beyond an interest in anyone who might be directly affected by a serious failure in the performance of that duty? If the answer to this last question is “yes”, the relevant employee or officer is acting as a public officer; if “no”, he or she is not acting as a public officer.”
Case law has established that civil servants, judges, and elected officials such as MPs and Mayors can amount to public officers. Those in less high profile jobs, such as police officers and probation officers can also be considered public officers.
The prosecution also needs to establish that the individual is acting in his capacity as a public officer. The case of R (on the application of Johnson) v Westminster Magistrates Court [2019] EWHC 1709 (Admin) establishes:
“the offence will only be made out if the manner in which the specific powers or duties of the office are discharged brings the misconduct within its ambit. Consequently, at the time of the alleged misconduct the individual must be acting as, not simply whilst, a public official.”
Wilfully neglects to perform their duty and/or wilfully misconducts themselves
The case of Attorney General’s Reference No 3 of 2003 [2004] EWCA Crim 86 established that wilful neglect is defined as “deliberately doing something which is wrong, knowing it to be wrong or with reckless indifference as to whether it is wrong or not”.
Examples in cases that have previously come before the courts include a prison officer selling on confidential information to journalists about the prison they worked at and a police officer accessing the Police National Computer to find out information for improper reasons.
The misconduct is to such a degree as to amount to an abuse of the public’s trust in the office holder
Crucially, the prosecution must establish that the misconduct is of a sufficiently serious nature.
In Attorney General’s Reference No 3 of 2003 [2004] EWCA Crim 868, it was held that the misconduct must be:
“… 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”
This is a central element to the offence, and it means that not all examples of misconduct by a public officer will result in a prosecution. Indeed, it is fair to say that only the most serious examples will be prosecuted.
Other than arguing that the misconduct is not of a sufficiently serious nature for it to amount to a criminal offence, an individual accused of the offence can also raise the defence established in case law that he or she had a reasonable excuse or justification.
Analysis
Misconduct in Public Office is what is called an indictable only offence: this means that it can be tried in the Crown Court in front of a judge and jury.
As with all criminal offences, the prosecution have to prove their case “beyond all reasonable doubt”. This means that the jury has to be sure the offence has been committed.
In effect therefore, a successful prosecution requires the Crown to prove to a jury that all elements of the offence have been made out. It is submitted that the element that the misconduct is to such a degree as to amount to an abuse of the public’s trust in the office holder is a high bar and will be the hardest part of the case for prosecutors to persuade jurors to the relevant standard.
It is submitted that this will also be the element that causes the Crown Prosecution Service most angst during an investigation when deciding to prosecute or not. There is nothing more embarrassing than a high profile prosecution that results in an acquittal.
