A guide to the offence of misconduct in public office

If you work for the government, being charged with misconduct in public office (‘malfeasance in public office’ in some other countries) could just be your worst nightmare. If you are concerned about something that has happened, but have not been arrested or charged, you might be reassured to hear that the threshold for the criminal offence of misconduct in public office is very high – it must amount to conduct that falls so far below acceptable standards as to amount to an abuse of the public’s trust in the officer holder. For this reason, you are highly unlikely to be prosecuted for minor infringements of your job responsibilities.

Misconduct in public office is a common law offence, which means that it is not set out in legislation. Guidance from the higher courts suggests that this offence should only be used in circumstances where the defendant’s behaviour is criminal but where prosecution under a statutory offence is not possible because the behaviour is not prohibited under any specific statute, or where it would be difficult or inappropriate to use a statutory offence. CPS guidance suggests that this offence should only be prosecuted where there has been serious misconduct or deliberate failure to perform a duty owed to the public, with serious potential or actual consequences for the public. This article explains the types of situations where a charge of misconduct in public office might be brought, and the sentence that you could face if you are convicted of this offence.

What is the offence of misconduct in public office?

The offence of misconduct in public office relates to the abuse of power by those in positions of authority. The legal elements of the offence of misconduct in public office have been defined by the courts over the past three centuries. The case law states that the offence can only be committed by a ‘public officer’, but there is no hard and fast definition of a public officer. Whether or not the defendant is a public officer will be considered on a case-by-case basis, depending on the nature of the role, the duties which are carried out, and the level of public trust. A position of public office is usually a paid position, but there are case examples where the defendant was found to have misused their power in a voluntary position.

Examples of individuals who have been found to be public officers include:

• Nurses working in a prison
• Employees of local authorities
• Coroner
• Police officer
• Police community support officer
• Police officials in charge of police computer systems
• Magistrate
• Prison officer
• Mayor
• Army officer
• Immigration officer
• Local councillor
• Church of England Clergy
• Member of the Independent Monitoring Board for prisons

CPS guidance suggests that whilst there is no categorical definition of a public officer, it usually includes those who work in judicial or quasi-judicial roles; those in regulatory positions; those in punitive, coercive or investigative positions; those who act as representatives for the public at large, and those with responsibility for public funds.

In order to be found guilty of misconduct in public office, the public officer must be found to have:

1. Wilfully neglected to perform his or her duty – this can include a positive act or omission to act. The conduct must be deliberate, not accidental. Wilful has been defined as meaning ‘deliberately doing something which is wrong knowing it to be wrong or with reckless indifference as to whether it is wrong or not’.
2. To such a degree as to amount to an abuse of the public’s trust in the office holder – this is a high legal test to meet. One court case gave guidance that this should mean behaviour that is worthy of punishment or condemnation, which has the effect of harming the public interest. Although there is not a legal necessity to establish a certain level of harm as a result of the misconduct, the consequences which flow from the conduct will be relevant to the court’s decision in respect of whether the conduct amounted to an abuse of public office.
3. Without reasonable excuse or justification – this has been held by the courts to mean circumstances where the defendant acts culpably, i.e. where blame can be attached to their conduct.

For example, where a public official has maliciously exercised their official authority, or wilfully exceeded their public authority, they could be found guilty of this offence. Intentional infliction of bodily harm or imprisonment of a person by someone in a position of public authority could also constitute misconduct in public office.

What is the difference between misconduct in public office and misfeasance in public office?

Misconduct in public office is a criminal offence that could result in a prosecution and a sentence being passed against the accused. Meanwhile, misfeasance in public office is a civil action for compensation that can be brought by a claimant who alleges that they have suffered loss as a consequence of the defendant’s misuse of their power.

For example, an immigration detainee could bring a claim against the Home Office where they allege that an immigration officer knowingly abused their authority or where they behaved recklessly or indifferently to any official limits to that power. In some cases it is possible that a defendant could be prosecuted for misconduct in public office, and also face a civil claim for misfeasance in public office.

What defences are available to the charge of misconduct in public office?

The most common defences to misconduct in public office allege a failure by the prosecution to make out of the elements of the offence. For example, the defendant may argue that:

• They are not a public officer. For example, if they are employed by a private company, even if they are working in a public space, they may argue that they did not take on public duties and responsibility with their role. The courts have found that an ambulance paramedic was not a public officer and that they owe a duty of care to their patient rather than the public at large.
• They were not acting as a public officer at the time of the offence. For example, if a policeman is being prosecuted for conduct committed whilst off-duty, they may seek to argue that they were not in the role of a public officer at the time of the offence.
• The conduct was accidental, i.e. it was a mistake made in good faith, not a wilful attempt at criminality. For example, if the defendant can convince the court that they were not aware of the duty that they are said to have breached, this could form the basis of their defence.
• There was a reasonable excuse or justification for their behaviour.

Another potential line of defence is that the defendant did not have the requisite mens rea (guilty mind) to commit the offence. There is no clear definition of the requisite mens rea for misconduct in public office. Because the nature of the offence can vary so much between cases, the courts have said that the mental element will be different in different types of cases. That being said, what is clear is that a criminal mindset is required. The defendant must be found to have been acting from a dishonest or corrupt motive, not a simple mistake.

What sentence could you face for misconduct in public office?

Misconduct in public office is an indictable only offence, which means that it will always be heard in the Crown Court. Because misconduct in public office is a common law offence, there is no statute setting out the maximum term of imprisonment. Therefore, the maximum sentence is life imprisonment. This gives the sentencing court a wide discretion in respect of the sentence that is imposed. Currently, there are no sentencing guidelines in place to advise the court on how a sentence for this offence should be calculated.

The Law Commission has criticised the offence of misconduct in public office for being ‘ill-defined.’ In 2020, it published its recommendations suggesting that the offence should be abolished and replaced with two statutory offences of corruption in public office, and breach of duty in public office. It also recommends that a list of positions capable of constituting ‘public office’ should be published.

Where to get further help?

If you have been accused of misconduct in public office, it is time to instruct the best possible criminal defence solicitor. This is a complex offence, where there is a lot of case precedent offering varying interpretations upon the law. At Stuart Miller solicitors, you can be assured that we will fight your corner. No matter how finely balanced your case is, we will take the time to get to grips with it in order to give you top quality representation. Contact us for a no obligation consultation today.