STRAIN

Date: 2020-12-07

There are typically less than 100 prosecutions each year for this offence but given that the defendants are public servants such as police officers, prison officers and the like, the consequences of a conviction on careers, pensions and even liberty can be very severe.

This week the Law Commission, which is the statutory body responsible for law reform, proposed to Parliament that the law surrounding this offence needs revision.

The recommendations include:

• Replacing the current common law offence of misconduct in public office with two new offences: o An offence of corruption in public office: which will cover a public office holder who knowingly uses or fails to use their public position or power for the purpose of achieving a benefit or detriment, where that behaviour would be considered seriously improper by a “reasonable person”. For example, a police officer who misuses their position to take sexual advantage of a vulnerable victim may be subject to this this offence (depending on the circumstances, other sexual offences may also apply). A defendant to this offence will have a defence if they can demonstrate that their conduct was, in all the circumstances, in the public interest. This defence may be applicable in some limited “whistleblower” cases. o An offence of breach of duty in public office: for when a public office holder is subject to and aware of a duty to prevent death or serious injury that arises only by virtue of the functions of the public office, they breach that that duty, and in doing so are reckless as to the risk of death or serious injury. For example, where a death in prison occurs as a result of the reckless failure of a prison officer to prevent this.

• That Parliament should consider a maximum penalty for both replacement offences, with 10 to 14 years’ imprisonment being an appropriate range. The offence can currently be punished with life imprisonment.

• Striking the balance between punishing and deterring the most serious forms of misconduct by public office holders, while leaving space for civil and disciplinary penalties, and other less serious offences, in cases that do not warrant such serious criminal sanction.

• Setting out a list of positions that constitute “public office” in the offences. This will provide greater clarity and certainty as to the scope of the replacement offences.

This extensive list includes:

1. Crown servants, including Ministers of the Crown; any person employed in the civil service of the Crown; any constable and any other person employed or appointed in or for the purposes of any police force; any member or employee of the naval, military or air forces of the Crown; and Members of the Welsh, Scottish and Northern Irish executives;

2. Crown and executive appointees, including judges and magistrates;

3. Members of Parliament, Peers, Assembly Members and employees of Parliament and employees and Members of the Senedd Cymru (Welsh Parliament);

4. elected officials and their employees;

5. employees of non-departmental public bodies;

6. employees of public corporations;

7. employees of local authorities;

8. employees of state funded schools;

9. employees of the National Health Service and;

10. contractors who exercise functions or perform work for the government.

Under the Commission’s recommendations, the Lord Chancellor would be given a power to amend the list of positions in the definition of “public office” by way of an affirmative statutory instrument.

We will be monitoring developments closely, ensuring that we can at all times offer the latest advice to our clients.

How can we help?

If you would like to discuss any aspect of your case, please contact Carys Parry on 01758 455 500 or office@strainandco.co.uk

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