Misconduct in Public Office

• Introduction
• Case Handling
• Evidential Considerations
  • A public officer
  • Acting as such
  • Wilful neglect/breach of duty or misconduct
  • Seriousness of the neglect or misconduct
  • Without reasonable excuse or justification
• Cases involving abuse of position for a sexual purpose
• Public interest considerations
• Charging Practice

Introduction

Misconduct in public office (“MiPO”) is a common law offence that can be tried only on indictment. It carries a maximum sentence of life imprisonment. The offence concerns serious wilful abuse or neglect of the power or responsibilities of the public office held. There must be a direct link between the misconduct and an abuse of those powers or responsibilities. The Court of Appeal has made it clear that the offence should be strictly confined, and it can raise complex and sometimes sensitive issues.

This guidance sets out the key legal elements of the offence and the factors that prosecutors should consider when applying the Code for Crown Prosecutors in cases where MiPO is alleged. Where a case concerns a police officer, prosecutors should also consider the statutory offence of police corruption contrary to section 26 Criminal Justice and Courts Act 2015.

Case Handling

Prosecutors should refer to the Referral of Cases guidance for the appropriate handling of MiPO allegations.

Evidential Considerations

The elements of the offence were summarised in Attorney General's Reference No 3 of 2003 [2004] EWCA Crim 868. The offence is committed when:

• a public officer acting as such
• wilfully neglects to perform their duty and/or wilfully misconducts themselves
• to such a degree as to amount to an abuse of the public's trust in the office holder
• without reasonable excuse or justification

A public officer 

There is no simple definition of a public officer, and each case must be assessed individually, taking into account the nature of the role, the duties carried out and the level of public trust involved. 

In Mitchell [2014] EWCA Crim 318, the Court of Appeal had to decide whether an ambulance paramedic was a public officer. Lord Justice Leveson stated that the correct approach was to ask three questions: 

“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.” 

Applying those questions to the paramedic, the Court held that they were not a public officer.

Remuneration is a significant factor, but not determinative (Belton [2010] EWCA Crim 2857).

The following have been held to be public officers: 

• holders of judicial and quasi-judicial office (judges, magistrates, registrars, coroners)
• police constables (including while suspended from duty – see Knox [2011] EWHC 1629 (Admin)
• police community support officers (Amar Iqbal [2008] EWCA Crim 2066) and other police civilian employees (L [2011] EWCA Crim 1259 ; Gallagher [2010] EWCA Crim 3201)
• immigration officers (John-Ayo [2008] EWCA Crim 1651)
• elected officials (MPs, councillors, ministers, mayors)
• civil servants (including local authority officers and DVLA employees)
• prison staff (including prison nurses and those employed by private companies operating prisons)
• army officers
• Bishops of the Church of England (Ball [2015] Unreported)
• volunteer members of the Independent Monitoring Board (Belton [2010] EWCA Crim 2857)

Acting as such

“Acting as such” needs to be distinguished from circumstances in which the suspect was merely “acting whilst” a public officer. There must be a close nexus between the wilful neglect/breach of duty or wilful misconduct and the power, authority, responsibilities and/or duties vested in the suspect by virtue of their office.

In R (on the application of Johnson) v Westminster Magistrates Court [2019] EWHC 1709 (Admin) the court held:

“The words “acting as such” plainly mean acting in the discharge of the duties of the office… Misconduct in public office bites on breaches of duties, which constituted the offence itself… 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… No authority was shown to us suggesting that the offence can be or has been equated to bringing an office into disrepute or misusing a platform outside the scope of the office.”

A vague notion of ‘influence’ arising from the office held is not sufficient. Conversely, whether or not the suspect was ‘on duty’ at the relevant time is not determinative. The power and authority vested in an office may be continuous. When considering whether the public officer was acting as such at the relevant time prosecutors should consider the following questions:

• Is the conduct wilful neglect/breach of duty or misconduct? It can be both, but prosecutors should identify this as precisely as possible.
• What is the connection between the wilful neglect/breach of duty and/or misconduct and the public officer’s role?
• How has the power invested in the public officer been abused?
• Can it be said that the public officer was “acting as such” rather than “acting whilst”?

Wilful neglect/breach of duty or misconduct

“Wilful” means “deliberately doing something which is wrong knowing it to be wrong or with reckless indifference as to whether it is wrong or not”: Attorney General’s Reference No 3 of 2003 [2004] EWCA Crim 868. Recklessness in this context means subjective recklessness i.e., the suspect was aware of a risk and in the circumstances known to them at the time it was unreasonable to take that risk (R v G [2003] UKHL 1034).

The offence can take a wide range of forms. It may involve a positive act or an omission in circumstances where action was required. In Dytham (1979) QB 722, for example, a police officer was held to have been correctly convicted when he made no move to intervene during a disturbance in which a man was kicked to death. In Attorney General’s Reference No 3 of 2003 [2004] EWCA Crim 868  it was alleged that the police failed to prevent the death of an injured man who was in their custody.

Examples of positive acts include:

• a local authority manager improperly arranging for contractors to carry out work at his partner’s home: Bowden [1996] 1 WLR 98
• a police officer accessing information from the Police National Computer to pass on to a criminal: Attorney General’s Ref (No.1 of 2007) [2007] EWCA Crim 760
• a prison officer passing information to journalists for payment: Norman [2016] EWCA Crim 1564
• a probation officer harbouring a wanted criminal after developing a sexual relationship with him whilst supervising him: McCarthy [2015] EWCA Crim 1117

Some of the most difficult cases involve breaches of duty that do not involve dishonesty. In such cases it is necessary for the prosecution to prove either:

• that the defendant was aware of the duty itself and knew that the way in which they carried out or neglected that duty was capable of reaching the seriousness threshold amounting to misconduct (see below). It is not necessary to prove that the defendant themselves came to that view. It is sufficient to prove that they had the means available to them to make such an assessment (Chapman); or
• the defendant was reckless both as to existence of the duty in the circumstances and to the consequences of breaching or neglecting it in the way that they did. Although the consequences of the conduct are not an ingredient of the offence itself, they are relevant to the question of seriousness and whether the conduct amounted to an abuse of the public’s trust.

Dishonesty

Where the alleged misconduct involves dishonesty, the dishonesty must be proved as the mens rea for the MiPO offence: W (M) [2010] EWCA Crim 372.

Seriousness of the neglect or misconduct 

Not every wilful neglect of duty or misconduct will suffice to constitute the offence. There is a high bar of seriousness. In Attorney General's Reference No 3 of 2003 [2004] EWCA Crim 868 the court said that the misconduct must amount to:

"… 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." 

Whether the threshold is met in a particular case is a matter for the jury.

In determining whether conduct is serious enough to amount to MiPO in any given case, prosecutors must consider whether the conduct injured the public interest or abused public trust to such a degree as to warrant criminal punishment: Dytham (1979) QB 722. Whether the public interest has been harmed by the conduct is an objective question. If the answer is no, then the offence will not made out: Chapman [2015] EWCA Crim 539.

Mere negligence or even a serious mistake will not suffice: Attorney General's Reference No 3 of 2003 [2004] EWCA Crim 868. 

Factors that may be relevant to seriousness

It is difficult to extract from the case law definitive guidance on when conduct will reach the necessary threshold for misconduct in public office. Each case will be fact and context specific. Some broad themes can, however, be identified that prosecutors may find helpful to consider when assessing the level of seriousness in a particular case:

• Did the conduct involve the exploitation or attempted exploitation of vulnerable people? (see for example Amar Iqbal [2008] EWCA Crim 2066).
• Did the conduct have an operational impact that harmed the public interest or undermined public trust either in the role held by the suspect or the relevant public service or institution? (Norman [2016] EWCA Crim 1564; Collins & Ors [2022] EWCA Crim 742). This might include conduct where the objectivity of the suspect in the exercise of their powers and authority was compromised or that exposed them to conflicts of interest or exploitation (whether or not any actual harm was caused): Cosford [2013] EWCA Crim 466.
• What was the suspect’s motive? Was it personal gain (either financial or otherwise)? At its highest the motive may be malice or bad faith, but they are not prerequisites.
• What was the severity of the actual or likely consequences? Was there a risk of death or serious injury?
• How egregious was the abuse of power? Did the wilful misconduct or breach of a duty have the effect of benefitting the wider public interest rather than being injurious to it (see Chapman [2015] EWCA Crim 539).

Without reasonable excuse or justification

The defendant may advance evidence of a reasonable excuse or justification. In L [2011] EWCA Crim 1259, the court held that “without reasonable excuse or justification” meant no more than acting culpably or in a blameworthy fashion. It is not necessary for the prosecution to prove the absence of a reasonable excuse or justification, although the nature of the prosecution evidence should in practice negate any such element.

Cases involving abuse of position for a sexual purpose

As set out above, the essence of the offence of MiPO is conduct that amounts to an abuse of public trust (and/or that harms the public interest) that is sufficiently serious to warrant criminal punishment.

Members of the public expect to be able to trust persons who hold positions of power to act professionally and not to use their position to instigate (or attempt to instigate) sexual or otherwise inappropriate relationships. Where such an allegation is made, prosecutors should carefully assess whether the suspect was “acting as such” at the time of the alleged conduct and identify as precisely as possible the connection between the power invested in the suspect by virtue of their office and whether the evidence is sufficient to demonstrate that the alleged conduct amounted to a wilful abuse of that power.  

These cases are likely to be highly fact-specific, but prosecutors may find it helpful to consider the following (non-exhaustive) factors:

• The nature and context of the relationship and the balance of power at the time that any sexual advance, activity or intimate relationship began (or was attempted), i.e., was it in the course of a professional relationship, subsequent to a professional relationship or entirely incidental to the suspect’s role in a public office.
• Whether the sexual relationship or activity was in exchange for the exercise or failure to exercise a power held by the suspect by virtue of their office.
• Whether there is any evidence that the suspect’s role enabled them to exert power, control or coercion over the victim (the nature and extent of any past or current professional relationship may be relevant).
• Whether the victim was vulnerable (either during a previous professional relationship or at the time the sexual relationship began) and, if so, the extent of the suspect’s knowledge of their vulnerability.
• Whether it was an isolated incident or a pattern of conduct on the part of the suspect.
• The seriousness threshold may be reached on the basis that the public interest is harmed by conduct that has the potential to impact on the objectivity of the suspect in the exercise of their authority or expose them to conflicts of interest or exploitation (whether or not any actual harm is caused and whether or not the relationship was consensual).
• The fact that the relationship was consensual is not determinative.
• The sexual conduct or relationship may not, in and of itself, amount to an abuse of the suspect’s power, but any neglect/breach of duty and/or misconduct that preceded it or facilitated it may do. For example, where a suspect has used the police database to obtain contact details of the victim and/or used the police database to identify and target vulnerable individuals this is likely to be an abuse of power whether or not a sexual relationship resulted. 

Public interest considerations

The Code for Crown Prosecutors sets out the framework for assessing this question. However, if the evidential stage is met, it is highly likely that the seriousness of the offence, the culpability of the suspect and the harm caused by the offending means that a prosecution will be required in the public interest.

Charging Practice

“…good practice and respect for the primacy of statute… require that conduct falling within the terms of a specific statutory provision should be prosecuted under that provision unless there is good reason for doing otherwise”: Rimmington [2005] UKHL 63.

A statutory offence should therefore be prosecuted rather than MiPO unless there is a good reason. Prosecutors selecting MiPO as a charge should ensure their review explains the good reason in the terms provided for by section 6 of the Code for Crown Prosecutors. In particular, whether or not the statutory offence reflects the seriousness and extent of the offending and gives the court adequate powers to sentence. For allegations involving police officers, this should include consideration of the statutory offence of police corruption contrary to section 26 Criminal Justice and Courts Act 2015.

Prosecutors may charge MiPO in addition to a statutory offence arising from the same conduct, again applying section 6 of the Code, in particular in order to reflect the seriousness and extent of the alleged offending. For example, MiPO may be charged alongside a sexual offence or an offence of violence where, in the circumstances of the case, the statutory offence alone would not adequately reflect the abuse of position involved. MiPO may be an appropriate alternative charge to cover a situation where the jury may not be not sure of the ingredients of the statutory offence but are nonetheless satisfied that the allegation of criminal misconduct can be proved.