The offence of misconduct in a public office to be reformed for first time since 1783

The Law Commission on Friday recommended reforms to modernise the UK’s “outdated and unclear” offence of misconduct in public office. Penny Lewis of the Law Commission argues that the current common law offence is “vague, and open to misuse”, and should be replaced with separate offences of “corruption in public office”, and “breach of duty in public office”.

The offence of misconduct in public office may be committed by the holder of a public office, who, acting in the course of their office, wilfully neglects to perform their duty or wilfully misconducts themselves to such a degree as to constitute an abuse of public trust in that office. The offence currently carries up to a life sentence.

The Commission’s recommendations follow criticism that the offence, which has existed since as early as 1783, too readily provides a “catch-all” offence where charges for more targeted statutory offences are unavailable. Prosecutions for misconduct in public office have risen from single-digits in the early 2000s, to 95 prosecutions in 2018, the latest year for which figures are available. The offence has risen in prominence with attempted novel applications, including attempts to prosecute former News of the World journalists who had encouraged public office-holders to leak confidential information.

The proposed statutory offences would seek to target and deter the most serious wrongdoing, while leaving space for civil and disciplinary remedies to address less serious misconduct. The proposals also seek to address the increasingly blurred line between public and private office-holders, setting out a list of offices that are considered “public” for the purpose of each offence.

The current criminal offence operates in parallel with the similar tort of misfeasance in public office, with the key distinction being the tort’s lack of a requirement of harm to the public trust through the actions of the defendant. The tort is also more narrowly construed than the criminal offence, requiring an element of bad faith on the part of the defendant, which is not necessarily a requisite element of the criminal offence.