MISCONDUCT IN A PUBLIC OFFICE - HARD TO PROVE?

AuthorsNicholas Whitehorn, Dominic Thomas

Talking heads relied on by the media have invariably described the offence of misconduct in public office as hard to prove. Is that right and, if so, what does it signify? As a common law offence, it has evolved in case law.

Although prosecutions misconduct of this kind go back to the 12th century, the case of Bembridge in 1783 is regarded as the first clear statement of the modern offence. The defendant, an accountant in the Paymaster General’s Office, had failed to report the corruption of his superior. He appealed, arguing the unfairness of his conviction for an offence previously unknown. Chief Justice Mansfield said this:

"Here there are two principles applicable: first that a man accepting an office of trust concerning the public, especially if attended with profit, is answerable criminally to the King for misbehaviour in his office: this is true, by whomever and whatever way the officer is appointed […]

Secondly, where there is a breach of trust, fraud or imposition, in a matter concerning the public, though as between individuals it would only be actionable, yet as between the King and the subject it is indictable. That such should be the rule is essential to the existence of the country."

During the 20th century, the offence was rarely prosecuted. The only reported case in England and Wales between 1900 and 1975 was R v Llewellyn-Jones [1968] 1 QB 429, a case concerning the registrar of a county court. Cases from the last quarter of the century include R v Dytham [1979] QB 722 which concerned a police officer who failed to intervene as a man was kicked to death and R v Bowden [1996] 1 WLR 98 in which the maintenance manager for a local authority arranged for work to be carried out for his girlfriend.

The 21st century has seen a greater number of prosecutions for the offence and so the body of case law has grown. The number of prosecutions for misconduct in public office has risen from single figures in the early 2000s to a yearly average of more than 80 since 2006.

The most authoritative statement of the offence is probably to be found in A-G’s Ref (No.3 of 2003) [2004] EWCA Crim 868. There, it was held that the elements of the offence are made out when

(a) a public officer acting as such…

(b) wilfully neglects to perform his duty and/or wilfully misconducts himself…

(d) without reasonable excuse or justification.

Public Officer

So, who or what exactly is a “public officer”? A Business Secretary, appointed by the Prime Minister? No difficulty there. What about a Trade Envoy, also appointed by the Prime Minister? Well, the fact the role is unpaid is no bar to prosecution: Belton [2010] EWCA Crim 2857 determined that an unpaid volunteer visiting prison inmates was a “public officer”.

So too are local authority employees (Bowden [1996] 1 Cr App R 104, CA) and nurses in a prison setting (Cosford, Falloon and Flynn [2013] EWCA Crim 466). Bishops of the Church of England are public office holders, but senior figures in other religions are not (R v Ball (8 September 2015) Central Criminal Court (unreported)).

The determination of whether a person holds public office is not a question of looking at the position held in isolation, but requires consideration of the nature of the officeholder’s duties, the manner in which those duties are discharged and whether the public has a significant interest in the discharge of the duties, See H.K.S.A.R. v Wong Lin Kay [2012] 2 H.K.L.R.D. 898, and Mitchell (William) [2014] EWCA Crim 318. In the latter case, a paramedic, though employed by an NHS trust, was not held to be a public officer.

Acting as such

Ali (Mohammed Adnan) [2023] EWCA Crim 1464 was a case which explored this second aspect of the first element of the offence. There must be a significant connection between the defendant’s office and the alleged misconduct. But note, the offence can be committed when the officeholder is not on duty nor is the offence restricted to conduct specific to the officeholder’s duties.

The effect of the well known decision in R (Johnson) v Westminster Magistrates’ Court [2019] EWHC 1709 (Admin) was not to circumscribe the ambit of the offence but rather constrained to the context of that case. The court invalidated a warrant issued against Boris Johnson in relation to lies (allegedly!) told during the Brexit campaign.

Wilfully

To mean something which is deliberate, not accidental, or recklessness that goes beyond mere neglect. Whilst consequences are not an ingredient of the offence as such the consequences of a defendant’s recklessness must be considered when assessing if any conduct fell so far below the standard expected as to amount to the offence. Dytham (above) is an example of wilful neglect of duty.

The Law Commission report into the offence, published in December 2020, set out some suggested examples of wilful misconduct: misuse of office to obtain improper financial gain, misuse of position for some other non-financial reason – for example, an immigration official falsifying information to assist immigrants, improperly using the public office to access others’ personal information, or engaging in a sexual relationship in circumstances where the nature of the public office renders this serious misconduct (eg. a prison officer having sexual relationships with a prisoner).

Abuse of the public trust

Misconduct, even serious misconduct, must involve sufficiently serious harm to the public interest to qualify. The threshold is a high one. Regard must be had to the responsibilities of the office and the officeholder, the importance of the public interests served and the extent to which there has been a departure from the officeholder’s responsibilities.

Problems have arisen for judges directing juries about this element of the offence. A jury should have been told to consider objectively whether provision of information to the media in deliberate breach of the public officer’s duty had the effect of harming the public interest in Chapman & ors; R v Sabey [2015] EWCA Crim 539. In France [2016] EWCA Crim 1588 the conviction of a journalist was quashed where the judge failed to direct the jury to consider whether information passed to him was so trivial or inconsequential that the public interest could not be harmed.

The Law Commission report outlined three considerations for a jury deciding whether the threshold for seriousness was met:

1 The severity of the actual or likely consequences of the behaviour: for example, was there a risk of death or serious injury? Were large sums of money involved? How egregious was the misuse of power?

2 The motives of the defendant: for example, was there dishonesty or malice involved? Was the conduct a simple mistake or the result of a more reckless disregard for public duty?

3 Other circumstantial factors: for example, how senior was the public official? Did he or she appreciate the consequences of their actions? Was he or she appropriately supported in their role?

Might, for instance, a certain Trade Envoy argue that at the time of his office official guidance or clarification of his role was lacking?

Without reasonable excuse/justification

Difficult to say whether this is a standalone ingredient of the offence or, in practice, part of the consideration of the seriousness of the abuse of the public trust. In L (D) [2011] EWCA Crim 1259, the court said that it would have been appropriate for the judge to explain to the jury that “without reasonable justification or excuse” meant no more than acting culpably or in a blameworthy fashion. This is a significant issue since much of the recent case law has arisen in whistleblowing cases or from prosecutions of journalists claiming a public interest.

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Reform

The Law Commission report was published on the 4th December 2020. It proposed the introduction of two new statutory offences to replace the common law offence to improve clarity and precision, to target the most serious forms of misconduct and to reduce the likelihood of misuse and injustice. The Commission argued their recommendations would:

replace an “outdated and confusing” offence with two new offences – an offence of corruption in public office, and an offence of breach of duty in public office.
focus the criminal law on the worst forms of misconduct, leaving space for other consequences such as disciplinary proceedings in less serious cases.
provide a list of positions that constitute public office for the offences. With the line between public and private sectors sometimes blurred, this would provide greater clarity and certainty as to the positions covered by the offences.
require the consent of the Director of Public Prosecutions for the prosecution of the offences, to ensure that the right cases are prosecuted, and to prevent vexatious private prosecutions.

On the 16th September 2025 the Government introduced the Public Office (Accountability) Bill. The bill is at the report stage with the date of publication yet to be announced.

It proposes that a person will be a holder of public office if they fall within schedule 4.

This includes MPs, members of the Lords, Civil Servants, Fire services, Armed Forces, the Judiciary, Local Government employees as well as “other public bodies and offices”. Whilst the common law offence will be abolished, the courts are likely still to face legal issues which may send them back to the old case law.

The proposed offences seem to largely mirror, clarify and codify the common law offence. They will not have retrospective effect (meaning that Mr Mountbatten-Windsor and Mr Mandelson could not be charged with them).

There are other options available to prosecutors. Confidential information obtained from public officials for financial reward can now more simply be charged under the Bribery Act 2010, under the Data Protection Act 2018, the various Official Secrets Acts or as fraud. CPS guidance suggests consideration of statutory offences as a starting point.

Hard to Prove?

The conclusions of the Law Commission in respect of clarity and certainty are difficult to dispute. On the other hand, there is a reason why the common law offence has been taken to by prosecutors with increasing favour in recent times. A single charge may be used to reflect an entire course of conduct. It can be employed to charge serious misconduct properly understood as criminal which is not well reflected by alternative offences. The common law offence carries life imprisonment (for the proposed statutory offences the maximum will be 10 years) which prosecutors may feel better reflects the gravity of the case than would statutory offences. Many of those statutory offences are not available to charge conduct related to events in 2009 or 10.

But is the offence hard to prosecute? Finally, the numbers tell the story.

The above data, contained in the Law Commission Report, suggest not especially.