The offence of misconduct in public office, used with devastating consequences for journalists and their sources in recent years, should be reformed or abolished according to the Law Commission.
The body which provides advice for the Government is currently consulting on changing the ancient common law offence, which it says fell largely into disuse in the late 18th century – but was resurrected by police and the Crown Prosecution Service in the early 21st century.
The Met’s Operation Elveden saw 34 journalists arrested and/or charged with the offence from between 2011 and 2015 over payments to public employees for stories. Around 30 sources were convicted but just one conviction of a journalist at trial stands.
The Law Commission said that holding “public office” lacks clear definition yet is a critical element of the offence.
It also said that abuse of the public’s trust” is crucial in acting as a threshold element of the offence, “but is so vague that it is difficult for investigators, prosecutors and juries to apply”.
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.
“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.”
He added: “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 Commission suggested a new statutory offence to remove ambiguity.
A consultation paper from the independent advisory body proposes two
possible forms an offence could take – a breach of duty model where the
breach must lead to a risk of serious harm, and a corruption-based model
including the abuse of a position for personal advantage or to cause
harm to another.
The breach of duty offence would apply to public office holders whose
positions carry powers of physical coercion such as arrest, detention or
imprisonment, or have functions specifically relating to protecting
vulnerable people from harm. The corruption-based model offence would
apply to all holders of public office.
The consultation document explores options for a more rigorous definition of public office – such as a list of specific positions or public functions, or a general definition supported by examples.
A Ministry of Justice spokesman said: “We welcome this consultation
paper and will respond to the recommendations in the final report.”
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