The ancient common law offence of misconduct in public office - used in 2014 to prosecute a police officer in the 'plebgate' affair - is unclear, ambiguous and in need of reform, the Law Commission recommends today.
Among the law's shortcomings is a failure to define what is meant by the terms 'misconduct' and 'public office', the law reform adviser says.
Instead, the commission is seeking views on a new clear statutory offence that would remove ambiguity. It proposes two forms in which such an offence might be taken forward into legislation:
- 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 commission also explores the option of abolishing the offence, but concludes that abolition would leave gaps in the law where conduct that ought to be criminal and would have been caught by the existing offence could not be covered adequately or at all by other offences.
Professor David Ormerod QC, law commissioner for criminal law, said: '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 closes on 28 November.