Misconduct in Public Office

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Concept.png Misconduct in Public OfficeRdf-entity.pngRdf-icon.png
Financial Misconduct.jpg

Misconduct in Public Office is an offence at common law triable only on indictment. It carries a maximum sentence of life imprisonment. It is an offence confined to those who are public office holders and is committed when the office holder acts (or fails to act) in a way that constitutes a breach of the duties of that office.

The Court of Appeal has made it clear that the offence should be strictly confined. It can raise complex and sometimes sensitive issues. Area Prosecutors should therefore consider seeking the advice of the Director’s Legal Advisor to resolve any uncertainty as to whether it would be appropriate to bring a prosecution for such an offence.[1]

Definition of the Offence

Misconduct in Public Office is committed when:

  • a public officer acting as such;
  • wilfully neglects to perform his duty and/or wilfully misconducts himself;
  • to such a degree as to amount to an abuse of the public's trust in the office holder;
  • without reasonable excuse or justification.

Public Officer

The prosecution must have evidence to show that the suspect is a public officer. There is no simple definition and each case must be assessed individually, taking into account the nature of the role, the duties carried out and the level of public trust involved.

The courts have been reluctant to provide a detailed definition of a public officer. The case law contains an element of circularity, in that the cases tend to define a public officer as a person who carries out a public duty or has an office of trust. What may constitute a public duty or an office of trust must therefore be inferred from the facts of particular cases.

R v Bembridge (1783)

Misconduct in Public Office is a common law offence and is said to date back to the case of R v Bembridge in 1783. In that case, the defendant was an accountant in the office of the Receiver and Paymaster General of the Forces. He was accused of corruptly concealing from his superior his knowledge that certain sums of money had been omitted in the final accounts. The judge in the case, Lord Mansfield QC, stated:

“The duty of the defendant is obvious; he was a trustee of the public and the Paymaster, for making every charge and every allowance he knew of… if the defendant knew of the omission… and if he concealed it, his motive must have been corrupt. That he did know was fully proved, and he was guilty, therefore, not of an omission or neglect, but of a gross deceit. The object could only have been to defraud the public of the whole, or part of the interest…a man accepting an office of trust, concerning the public, especially if attended which profit, is answerable criminally to the King for misbehaviour in his office; this is true by whomever and in whatever way the officer is appointed.”

Criminal Misconduct in Public Office is about holding power to account.

Sentence first - verdict afterwards

At a time when we have seen the growth of ‘trial by social media’, with reputations being destroyed in hours through Twitter and sharp memes, it can be rough justice for those in the public eye. We must be wary of the court of the media, with the sentence first – no trial, just a verdict – as Lewis Carroll described in Alice’s Adventures in Wonderland:

"Let the jury consider their verdict," the King said, for about the twentieth time that day.
"No, no!" said the Queen. "Sentence first - verdict afterwards."
"Stuff and nonsense!" said Alice loudly. "The idea of having the sentence first!"[2]


Related Document

TitleTypePublication dateAuthor(s)Description
Document:Theresa May's Misconduct In Public OfficeArticle9 March 2019David Wolchover
Joshua Silver
Theresa May's Misconduct in Public Office offence arises from what is alleged to have been her wrongful activation on 29 March 2017 of Article 50 of the Treaty on European Union
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