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Law on misconduct in public office 'unclear and needs reform'

Published 05/09/2016

The Law Commission has raised concerns about how the legal framework relates to people in public office
The Law Commission has raised concerns about how the legal framework relates to people in public office

The law governing misconduct by public officials is unclear, ambiguous and urgently needs reform, the Government's legal advisers have warned.

More people than ever before are being accused of misconduct in public office, the Law Commission said.

Recent high-profile cases include those brought under Operation Elveden, the controversial investigation into allegations of payments by journalists to police and public officials.

The Commission said the existing law does not clearly define what is meant by misconduct or who holds public office.

Professor David Ormerod QC, law commissioner for criminal law, said: "It is vital that the public have confidence in their public officials and in the legal framework that sets the boundaries of their conduct.

"The offence of misconduct in public office is increasingly being used to bring public officials to account but recent high-profile investigations and prosecutions have brought the problems with this offence into sharp focus."

He added: " 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 Commission suggested a new statutory offence to remove ambiguity.

A consultation paper from the independent advisory body proposes two possible forms an offence could take - 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 lack of a clear definition of public office makes it difficult for authorities, courts and the public to know who is and is not included, according to the Commission. Its consultation document explores options for a more rigorous definition - such as a list of specific positions or public functions, or a general definition supported by examples.

A Ministry of Justice spokesman said: "We welcome this consultation paper and will respond to the recommendations in the final report."

Operation Elveden closed in February with 34 people having been convicted, including police officers and public officials.

But the inquiry faced criticism as only one journalist was convicted by a jury - and that conviction is being appealed. Other journalists had the charges against them dropped or were cleared in trials.

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