The criminal law needs to target serious misconduct by public officials, the Law Commission says in a report published today; but the ancient common-law offence of misconduct in a public office is not the way to do it.
Instead, the government’s law reform advisers for England and Wales recommend the creation of two new crimes:
an offence of corruption in public office
an offence of breach of duty in public office
These offences would need to be underpinned by a clear definition of the offices that are to be regarded as “public”. There would be a fixed (but easily amendable) list of positions capable of amounting to “public office”; and a functional test to decide whether someone holding one of those positions was acting “in public office” at the relevant time.
The proposed corruption offence could be defined in the following way:
1. It is an offence for a public office holder to use, or fail to use, a power or position of his or her public office for the purpose of achieving a benefit for himself or herself, or a benefit or detriment for another person, if:
(a) a reasonable person would consider the use or failure seriously improper, and
(b) the public office holder knew that a reasonable person would consider the use or failure seriously improper.
2. It is a defence if the public office holder can prove that the conduct was, in all the circumstances, in the public interest.
The proposed breach of duty offence could be defined like this:
1. This section applies where –
(a) a public office holder is subject to a duty to prevent death or serious injury,
(b) the duty is of a type that arises only by virtue of the functions of the public office, and
(c) the public office holder is aware that he or she is subject to the duty.
2. The public office holder is guilty of an offence if he or she –
(a) breaches the duty, causing or risking death or serious injury, and
(b) in breaching the duty was reckless as to the risk of death or serious injury.
The commission has explained its proposals in a report of some 180 pages. There is also an attractive 14-page summary. Both are available on the relevant page of the Law Commission website.
There has 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 more 80 per year on average since 2006. In 2018, there were 95 prosecutions.
Professor Penney Lewis, the 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.
It will now be for the government to decide whether to implement the commission’s recommendations.
I am a non-executive member of the Law Commission board. But I have no say in the commission’s recommendations, which the sole responsibility of the five commissioners acting collectively.