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What is misconduct? And who is in public office? The existing law that governs misconduct in public office does not provide clear answers to either of these questions, according to the Law Commission.

Yesterday the Law Commission launched a consultationaimed at exploring how the current law is being used and discovering the problems caused in practice by the law’s lack of clarity.

Misconduct in public office is a common law offence: it is not defined in any statute. It requires that: “a public officer, acting as such, wilfully neglects to perform his duty and/or wilfully misconducts himself to such a degree as to amount to an abuse of the public’s trust in the office holder without reasonable excuse or justification”.

But the offence is unclear and ambiguous:

• “Public office” is not clearly defined, making it difficult for the authorities, the courts and the public, as well as potential or actual public office holders, to know who is and who is not included.
• The types of duty that might qualify someone as a public office holder are ill-defined. And it is not clear whether the misconduct must apply to those specific duties.
• What is meant by “abuse of trust” is so vague that it is difficult for investigators, prosecutors and juries to identify and apply.
• It is not clear whether “without reasonable excuse or justification” is a defining element of the offence or operates as a free-standing defence.
• The fault element differs depending on the circumstances which, according to the Commission, is unusual and unprincipled.

Professor David Ormerod QC, Law Commissioner for criminal law, said: “It is vital that the public have confidence in their public officials and in the legal framework that sets the boundaries of their conduct. But recent high-profile investigations and prosecutions of misconduct in public office have brought the problems with this offence into sharp, public focus.

“Our objective is to decide whether the existing offence of misconduct in public office should be abolished, retained, restated or amended. To help us do this, we are asking investigators, prosecutors and the people and organisations who represent holders of public office to provide us with evidence and examples of the problems that come about because of the lack of clarity and ambiguity that runs through all elements of this offence. What we hear from these experts will inform a consultation on potential options for reforming the law, which we expect to launch later this year.”

The Commission launched its consultation at a symposium at King’s College London. Over 100 practitioners and experts gathered to identify the main difficulties with the current law and share with the Commission evidence of the problems with its application. Lord Bew, Chairman of the Committee on Standards in Public Life, and Gerard Elias QC, the Standards Commissioner for Wales, were among the expert speakers at the event, exploring such issues as “What is ‘misconduct?” and “Why do we need accountability?”

An issues paper, Misconduct in Public Office: Issues Paper 1 – the current law, to accompany the consultation, is available on www.lawcom.gov.uk. The paper sets out the current law of misconduct in public office, highlighting problems that arise through areas of uncertainty, as well as gaps and overlaps with alternative offences, and asks for evidence and examples of these problems in practice.

Notes for editors

1. The Law Commission is a non-political independent body, set up by Parliament in 1965 to keep all the law of England and Wales under review, and to recommend reform where it is needed.
2. The full report (146 pages) is available on request.
3. For more details on this project, visithttp://www.lawcom.gov.uk/project/misconduct-in-public-office/
4. For all press queries please contact:

Phil Hodgson, Head of External Relations: 020 3334 3305

Jackie Samuel: 020 3334 3648

Email: communications@lawcommission.gsi.gov.uk