The ancient common law offence of misconduct in public office is 'too ill-defined and uncertain to be maintained in the criminal law' the Law Commission has concluded, recommending its replacement with two new offences. The proposed reform would also block 'vexatious' private prosecutions of public figures.
The recommendations appear in the final report of an eight-year review of what the law reform body called one of the most challenging policy areas it has examined in recent years.
If enacted, the commission’s recommendations would:
- Replace the misconduct in public office offence, which carries a maximum penalty of life in prison, with two offences: an offence of corruption in public office, and an offence of breach of duty in public office. These new offences would make the law clearer and easier to follow, the commission said.
- Focus the criminal law on the worst forms of misconduct, leaving space for other consequences such as disciplinary proceedings in less serious cases.
- Set out a list of positions that constitute 'public office' for the offences. 'With the line between public and private sectors sometimes blurred, this will provide greater clarity and certainty as to the positions covered,' the commission said.
Prosecutions would require the consent of the director of public prosecutions to ensure that the right cases are prosecuted, and to prevent 'vexatious private prosecutions'. In June last year High Court judges threw out an attempt to prosecute Boris Johnson, then a candidate for the leadership of the Conservative Party, over statements made during the EU referendum campaign.
Commenting on the recommendations, 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criminal law commissioner, said: 'The offence of misconduct in public office has been rightly criticised for being outdated, vague, and open to misuse.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.'
The commission’s recommendations were laid in parliament yesterday.