Law Commission issues proposals for reforming offence of misconduct in public office

The “outdated and unclear” common law offence of misconduct in public office should be replaced by two new statutory offences of corruption in public office and breach of duty in public office, the Law Commission has said.

The law reform advisory board said the move would “focus the criminal law on the worst forms of misconduct, leaving space for other consequences such as disciplinary proceedings in less serious cases”.

Its recommendations also include the creation of a statutory list of positions that constitute “public office”, saying that this would provide greater clarity and certainty with the line between public and private sectors sometimes being blurred.

A requirement for the consent of the Director of Public Prosecutions to prosecute the offences would meanwhiile be introduced to “ensure that the right cases are prosecuted, and to prevent vexatious private prosecutions”.

The Law Commission said there had been an increase in the number of prosecutions for misconduct in public office in recent years, rising from single figures in the early 2000s to averaging more than 80 per year since 2006. In 2018 (the last available figures), there were 95 prosecutions. 

Professor Penney Lewis, Criminal Law Commissioner, said: “The offence of misconduct in public office has been rightly criticised for being outdated, vague, and open to misuse.

“Our recommendations will clarify and modernise the law, while ensuring that public office holders are held to account for serious breaches of the trust that the public places in them.”

In relation to the two proposed new offences:

• The offence of corruption in public office: this would cover a public office holder who 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’. “For example, a police officer who misuses their position to take sexual advantage of a vulnerable victim may be subject to this this offence (depending on the circumstances, other sexual offences may also apply).” 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. This defence may be applicable in some limited ‘whistleblower’ cases.
• The offence of breach of duty in public office: when 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 that duty, and in doing so are reckless as to the risk of death or serious injury. “For example, where a death in prison occurs as a result of the reckless failure of a prison officer to prevent this.”

The Law Commission recommends that the Lord Chancellor be given a power to amend the list of positions in the definition of “public office” by way of an affirmative statutory instrument.

It also says that Parliament should consider a maximum penalty for both replacement offences, with 10 to 14 years’ imprisonment being an appropriate range.

The Law Commission’s recommendations have been laid in Parliament and provided to the Ministry of Justice. The Government will then decide if and how to implement the reforms.