In the wake of Whitehall's near takeover of Liverpool City Council, BCL's Paul Morris and David Hardstaff consider the uncertain future of the offence of misconduct in public office and the Law Commission's recent critical report.
Although anticipated, most will still have been shocked to hear last week's announcement by Local Government Secretary Robert Jenrick that commissioners will be sent to run large parts of Liverpool City Council's operations. The development, which falls short of a full Whitehall takeover of the city council, comes as further details of Operation Aloft were made public.
Operation Aloft is Merseyside Police's ongoing investigation into allegations of corruption and other misconduct in construction and development contracts in Liverpool. The operation culminated in the arrest of 12 people, including Liverpool's then mayor, Joe Anderson, for a range of suspected offences. Last week it was announced that the city council had terminated the contract of its head of regeneration, Nick Kavanagh, who was arrested on suspicion of conspiracy to defraud and misconduct in public office. Both Anderson and Kavanagh have denied the allegations against them.
The Operation Aloft arrests predate the Law Commission's long-awaited report on the offence of misconduct in public office. Published in December 2020, the report recommends the abolition of the current common law offence, and its replacement with two new statutory offences. Although the report was expected to call for reform, its wide-ranging criticisms of the way in which the current law is used will have made uncomfortable reading for prosecutors currently considering the use of the existing common law offence.
A brief history lesson
The 1783 case of Bembridge is cited as the first example of the modern offence of misconduct in public office. In Bembridge, the defendant was an accountant in the receiver and paymaster general's office of the armed forces. He was alleged to have concealed knowledge that entries from a set of public accounts had been omitted. This was "contrary to his duty" in an "office of trust". His appeal against conviction, on the basis that no such offence was known to the criminal law, was unsuccessful. In his judgment, Chief Justice Mansfield stated:
"Here there are two principles applicable: first that a man accepting an office of trust concerning the public, especially if attended with profit, is answerable criminally to the King for misbehaviour in his office: this is true, by whomever and whatever way the officer is appointed [...]
Secondly, where there is a breach of trust, fraud or imposition, in a matter concerning the public, though as between individuals it would only be actionable, yet as between the King and the subject it is indictable. That such should be the rule is essential to the existence of the country."
The Commission's report follows the development of the offence through the 19th and 20th centuries, finding something of a revival in the 21st century. Some of the reasons cited for the offence's renewed popularity include the ability to use a single charge to reflect an entire course of conduct; and, that it may be used to reflect serious misconduct which is truly "criminal", but which cannot be satisfactorily reflected through the offences.
From 24 prosecutions in 2005-2006, the number peaked in 2010-2011, at 148. A possible contributor to this rise may have been a perception of clarity in the law through the still leading authority of Attorney General's Reference (No 3 of 2003). The case concerned the violent death of a detainee in police custody. Five police officers were charged with manslaughter by gross negligence and misconduct in public office. Following a finding by the trial judge that there was no evidence on which a conviction for misconduct in public office could be found, the Attorney General referred the case to the Court of Appeal. The Attorney General queried the elements of the offence and whether it was necessary to prove "bad faith".
The Court of Appeal found that the elements of the offence are:
- a public officer acting as such;
- wilfully neglecting to perform his or her duty and/or wilfully misconducting him or herself;
- to such a degree as to amount to an abuse of the public's trust in the office holder; and
- without reasonable excuse or justification.
The case for reform
In arguing for reform of the law, the Commission's report highlights the following key problems with the common law offence as it currently stands:
- a lack of clarity in the terms and extent of the current offence;
- the risk of overuse and misuse of the offence, leading to injustice;
- its use as a "catch all" offence, in place of more targeted statutory offences; and
- a concern that it tends to be used primarily against relatively junior officials, rather than more senior decision-makers that members of the public might more readily expect to be held criminally accountable.
In relation to the lack of clarity – thought to be the most commonly expressed concern by respondents to the consultation – the report concludes that:
- exactly what is meant by "public office" and "acting as such" is not sufficiently clearly defined;
- the fault element that must be proved is unclear and may depend on the circumstances of the case;
- the seriousness requirement – that the offence amounts to an "abuse of the public's trust" – is highly subjective and difficult to apply; and
- it is not clear whether the fourth element – "without reasonable excuse or justification" – should be treated as a separate element of the offence.
The "seriousness requirement" in particular raises concerns that the majority of prosecutions in recent times have been of low to mid-ranking officials, instead of the senior managers or public figures. Additionally, many of those prosecutions have concerned allegations of misconduct which would arguably have been more appropriate to address by way of disciplinary proceedings, than through the criminal law.
Catching corruption in future
The Commission's report concludes that the offence in its current form should replaced with two new statutory offences:
- an offence of corruption in public office, where the public office holder, in using the position or power, has knowingly engaged in "seriously improper" conduct with the purpose of achieving a benefit or detriment, and cannot prove that their conduct was, in all the circumstances, in the public interest; and
- an offence of breach of duty in public office, where the public office holder has a specific duty to prevent death or serious injury, is aware of that fact, and breaches the duty, causing or risking death or serious injury, while being at least reckless as to whether that would result.
To avoid overlap and reduce the risk of criminalising relatively trivial conduct, the report additionally recommends the repeal of the existing offence of corrupt or other improper exercise of police powers and privileges, an offence under section 26 of the Criminal Justice and Courts Act 2015.
The Commission's recommendations have been broadly welcomed by the legal community, which has for years highlighted concerns with the current law. Whether the report has any impact on ongoing investigations, such as the Metropolitan Police's Operation Joseph, remains to be seen.
Merseyside's Operation Aloft suggests that there is certainly still an appetite within law enforcement to pursue the sort of misconduct that can be encapsulated by the current common law offence, or alternatively, the proposed statutory offence of corruption in public office.
However, against the backdrop of the Commission's recommendations, prosecutors may find themselves in a difficult position, forced to decide whether to use the now much maligned common law offence of misconduct in public office, or, to jettison it, and look to alternatives. A third option would be to simply wait for further clarity as to the government's intentions and response to the Commission's report; although, this could take many years and would arguably amount to an abuse of process.
In the meantime, it is understood that those arrested as part of Operation Aloft have since been released under investigation, which in practice means they can expect a significant delay before the investigation's conclusion. Even so, the likelihood of a swift adoption of the Commission's recommendations within that timescale seems remote, leaving prosecutors with the now battered and bruised common law offence to work with.
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