Misconduct in public office law needs reform, says Law Commission

The law on misconduct in public office is unclear, ambiguous and is in need of reform, the Law Commission has argued.

The independent statutory body, which is works to streamline the law and eliminate flawed or obsolete statutes, said accusations of misconduct in public office are higher than ever but fewer of these accusations lead to convictions.

The offence has long existed in common law, dating back to at least the 1700s. However, it fell out of use An individual found guilty of misconduct in public office can face a maximum sentence of life imprisonment.

The commission said the existing common law offence does not clearly define either what is meant by "misconduct" or who holds "public office". Furthermore, an "abuse of the public's trust" is a crucial threshold element of the offence but is so vague that it is difficult for investigators, prosecutors or juries to apply.

It has launched a new consultation on creating a clearer statutory offence, with two possible options. The first would create a new offence of breach of duty leading to risk of serious harm. It would apply to public office holders with duties to prevent harm, including those with the power of arrest, detention and imprisonment, and those responsible for protecting vulnerable individuals from harm.

The second option would be a "corruption-based model". This new offence would borrow elements of existing police corruption laws and apply them to all public office holders.  An individual would commit the offence if they abused their position, power or authority to achieve benefit for themselves, benefit to the detriment of another person or if the exercise of their power, position or authority was seriously improper.

Law commissioner Professor David Ormerod QC 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. The offence of misconduct in public office is increasingly being used to bring public officials to account but recent high-profile investigations and prosecutions have brought the problems with this offence into sharp focus.

"The existing law relating to misconduct in public office is unclear in a number of fundamental respects. There is urgent need for reform to bring clarity and certainty and ensure that public officials are appropriately held to account for misconduct committed in connection with their official duties."

The consultation will run until 28 November.