Misconduct of public office is an ancient offence under English common law. The Court of Appeal once traced it back to 1599, before the English throne was held by the house of Stuart let alone by any more modern royal houses. For a while it seemed it was almost forgotten, before being slowly revived in the late 20th century. Its modern incarnation can be said to date back to a 2004 case.
The offence is generally used in respect of misconduct by public servants when other offences are not available. In recent years it has mainly been used against police officers and prison officers. The Institute for Government found that between 2014 and 2024, 92 per cent of those convicted of the offence were in the police force or prison service.
There have been no convictions of high-profile individuals for the offence, at least not in modern times. A Member of Parliament was arrested for the offence in 2009 but not charged, and in 2016 a Member of the European Parliament was prosecuted for the offence but quickly acquitted.
In practice it has only been used against junior or middle-ranking public officials. The Members of Parliament and peers who, for example, were caught up in the expenses scandals were prosecuted for fraud and related offences. In respect of the recent serious (and denied) allegations about betting on election dates, the decision has been made to prosecute under gambling legislation and not for misconduct in public office.
The offence of misconduct in public office has four elements. These are that (1) a public officer acting as such (2) neglects to perform his or her duty and/or wilfully misconducts himself/herself (3) to such a degree as to amount to an abuse of the public’s trust in the office holder, and (4) without reasonable excuse or justification.
A couple of these elements are vague. What constitutes a public office is not defined. The meaning of abuse of public trust is fairly elastic. The Law Commission in a major report proposed that the offence be abolished and replaced. The current “Hillsborough” bill now stalled in the House of Commons includes replacement offences but this is not yet law (and may never be).
Even the government’s own website describes the offence as “outdated and confusing”. The Law Commission warns correctly that those facing liability under the offence may challenge it on human rights grounds under the European Convention on Human Rights. Few would say is a satisfactory area of law.
That said, it has been an offence which recently has been used when other laws have not been available. For example, there is no general law of corruption in English law and so misconduct in public office was used in Operation Elveden against those officials who made unauthorised disclosure of sensitive information for wrongful purposes. There the offence did not strictly require any payments to be made for the information: the breach of trust in passing on information was sufficient, regardless of any remuneration.
It is an old and vague area of law, ready to be replaced, and which can in practice be difficult to prosecute.
[Further reading: How politics went hyper]
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