Law Commission: reforming misconduct in public office

The Commission, which advises the government on law reform, called this week for the common law offence of misconduct in public office to be replaced with two statutory offences. It claims the offence is outdated and unclear, and would like to clarify and modernise the law, targeting the most serious misconduct.

It recommends creating an offence of corruption in public office, for example, a police officer who misuses their position to take sexual advantage of a vulnerable victim, and an offence of breach of duty in public office, for example, where a death in prison occurs due to the reckless failure of a prison officer to prevent it.

There would be a defence if the conduct was in the public interest. For clarity, there would be a list of positions that constitute ‘public office’.

The Commission also recommends making the consent of the Director of Public Prosecutions a requirement, to prevent vexatious private prosecutions.

The proposed punishment for the offence would be 10-14 years’ imprisonment.

More than 80 prosecutions for misconduct have been brought each year since 2006. Recent high-profile examples include a private prosecution brought against Prime Minister Boris Johnson regarding alleged misconduct during the Brexit campaign. A judge at Westminster Magistrates’ Court issued a summons against the Prime Minister but the High Court later dismissed the case.

The PM was also formally referred to the Independent Office for Police Conduct (IOPC), over allegations he committed the offence while Mayor of London due to an alleged conflict of interest regarding benefits provided to US businesswoman Jennifer Arcuri. However, the IOPC decided not to investigate the allegations.

Professor Penney Lewis, Criminal Law Commissioner, said: ‘The offence of misconduct in public office has been rightly criticised for being outdated, vague, and open to misuse.

‘Our recommendations will clarify and modernise the law, while ensuring that public office holders are held to account for serious breaches of the trust that the public places in them.’

Download a summary of the report.