Misconduct in Public Office

Recently the team at Olliers have been called upon to advise a number of clients in cases where they are suspected of committing misconduct in public office. This appears to be indicative of a wider upward trend of arrests and prosecutions for the offence.  

In this article, Martha Odysseos, an Associate Solicitor in Olliers’ criminal and regulatory team, takes a closer look at the offence and offers her views on the common themes she has seen in just some of the cases that she has dealt with. 

What is ‘Misconduct in Public Office?’ 

Misconduct in public office is a common law offence, which means that it is not defined in legislation. The offence concerns serious willful abuse or neglect of the power or responsibilities of the public office held.  

In Attorney General’s Reference No 3 of 2003 [2004] EWCA Crim 868. the elements of the offence were summarized as being when: 

• a public officer acting as such, 
• willfully neglects to perform their duty and/or willfully 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. 

Who is a ‘Public Officer?’ 

There have been concerns with how the law decides when a person is treated as being a public officer and the Law Commission recommended reforms to modernize the offence back in 2020, however, these proposals have never progressed. 

In many cases, the definition of a public officer is clear. For example, holders of judicial office, police officers, prison officers and civil servants are public officers. There is an arguable blurring of the lines though when private contractors are involved, for example in the running of the prison services. 

The court of Appeal in Cosford outlined a 3-stage test to assess whether a person was acting in public office. 

This was: 

1. What was the position held? 
2. What was the nature of the duties undertaken by the employee or officer in that position? 
3. Did the fulfilment of those duties represent the fulfilment of one of the responsibilities of government such that the public had a significant interest in the discharge of that duty which was additional to or beyond an interest in anyone who might be directly affected by a serious failure in the performance of that duty? 

Although this clarifies things to some extent, there may still be some roles which would tread the line between being a public officer or not. Martha believes that this potential grey area is not insignificant and is yet another reason why those being investigated for such offences should seek urgent legal advice and assistance. 

Acting as such 

For the offence to be made out, in addition to being a public officer, one must be ‘acting as such’. This means that there must be a close connection between the willful neglect/willful misconduct and the power/authority/duties vested in the accused by virtue of their office.  

CPS guidance states that prosecutors should consider the following questions when determining whether the public officer was acting as such: 

• 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”? 

In light of the above, although for example an officer on duty may automatically be thought to be ‘acting as’ a public officer, this does not necessarily mean that his or her conduct will automatically be linked to their duty. They could merely be ‘acting whilst’ an officer.   

Willful neglect or willful misconduct 

To be guilty of an offence of misconduct in public office, a suspect must be “deliberately doing something which is wrong knowing it to be wrong or with reckless indifference as to whether it is wrong or not.” However the threshold for the offence is high. The misconduct or neglect must be so serious that it warrants criminal punishment. 

As Martha points out, “There will inevitably be occasions when the behaviour of those in public office may be questionable but charging individuals with an offence which will more often than not result in a term of imprisonment, really must be reserved for the most serious situations.” 

Sexual misconduct  

As seen in the news over recent months, one of the most common themes in misconduct cases is sexual relationships between office holders and members of the public. Numerous high-profile cases include prison governors and prison officers having sexual relationships with prisoners or police officers having sexual relationships with vulnerable complainants, witnesses and informants. 

CPS guidance states that ‘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’.  

This means that in many circumstances an otherwise consensual relationship can amount to an offence with far-reaching consequences for the individuals involved who face losing their liberty, reputation, employment, family and friends. 

Defences to Misconduct in Public Office  

It is a defence if a suspect advances evidence of a reasonable excuse or justification. The courts have stated means no more than acting in a blameworthy manner. Whilst it is not for the prosecution to prove an absence of reasonable excuse or justification it is widely acknowledged that they will present their case in such a way as to negate such evidence. 

Sentencing Misconduct in Public Office  

The offence of misconduct in public office can only be tried on indictment meaning it can only be heard in the Crown Court and has a maximum sentence of life.  The reality is that most of those charged and convicted of this offence will face a custodial sentence.  

Martha Odysseos observed, “There is absolutely no doubt that those convicted of the offence of misconduct in a public office ought to be aware of the very real possibility that they will be sent to prison, particularly in cases of sexual misconduct.  

We only have to look at the case of the prison governor who was recently sentenced to 9 years’ imprisonment – she was once described as a rising star in the prison service and destined for great things but in order to preserve public confidence in not only the justice system but wider public bodies, the courts will invariably have deterrence as a key consideration in any sentencing exercise. 

Every case will, of course, turn on its own facts and that is why I would urge anyone under investigation to seek legal advice and assistance to ensure that their particular circumstances are fully investigated and considered.” 

Olliers Solicitors – specialist criminal defence and regulatory solicitors 

The team at Olliers have extensive experience in both criminal and associated regulatory investigations and proceedings. We have acted for serving and retired police officers and staff, as well as prison officers and politicians, amongst others. 

If you need a specialist defence lawyer please contact us by telephone on 0161 8341515 (Manchester) or 020 38836790 (London), by email to info@olliers.com or click here to send us a message.