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Law Commission recommends reform of ‘outdated and unclear’ Misconduct in Public Office law

A Law Commission report to ensure public officials are properly held to account for misconduct in their roles, has been published.

The consultation examined the common law offence of Misconduct in Public Office, which carries a maximum sentence of life imprisonment, but has never been put on the statute book by Parliament.

The current law is widely considered to be ill-defined and has been heavily criticised by the Government, the Court of Appeal, the press and legal academics – as well as Protect – who responded to the consultation with recommendations.  Too often the offence has been abused to pursue the public official (e.g. Civil servants, police officers, prison officers etc.) who raise concerns externally, typically to the press, which may embarrass the Government, yet poses no threat to national defence, security or relations with a foreign country. Such disclosures are already criminalized under the Officials Secrets Act 1989.

The report, Reforming Misconduct in Public Office, states, ‘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. We recommend that the current offence should be repealed and replaced with two statutory offences: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.

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Criminal Law Commissioner said: “The offence of misconduct in public office has been rightly criticised for being outdated, vague, and open to misuse.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

To provide greater clarity around the scope of the offence, the Law Commission recommends a list of positions capable of amounting to “public office” set out in statute.  It also recommends consent of the Director of Public Prosecutions be required to prosecute the offence, to ensure that the right cases are prosecuted, and to prevent vexatious private prosecutions.

Protect Head of Policy, Andrew Pepper-Parsons said, “Requiring the Director of Public Prosecutions (DPP) to determine whether a case should be prosecuted is an interesting development as it may stop prosecutions of whistleblowers such as Christopher Galley in the Home Office –  he leaked information to a Conservative MP which, though embarrassing to the Home Office, was not secret and did not put national security at risk.

In our consultation response in 2016 we said the following about the public interest defence: ‘We believe a codified law on misconduct in public office should explicitly include a public interest defence which can be used by whistleblowers accused of the offence, so as to make it consistent with the freedom of expression protected by common law and Article 10 of the ECHR.’

Head of Policy, Andrew Pepper-Parsons added, “The recommendations look promising, and we’re glad to see our recommendations around the public interest defence look to have been taken on board. When combined with a consent process with the DPP this is a strong set of safeguards that will help both whistleblowers and journalists. We look forward to the Government reviewing and considering the recommendations.”

Read the Law Commission Misconduct in Public Office report