Proposed changes to the law could lead to greater clarity and fewer vexatious claims.
The Law Commission, the independent statutory body overseeing reform of the law in England and Wales has recommended scrapping the common law offence of misconduct in public office.
They are calling for two new laws to replace it – an offence of corruption in public office, and an offence of breach of duty in public office. The Commission says this will make the law clearer and easier to follow.
They are also calling for a statutory list of positions that constitute public office.
There has been an increase in the number of prosecutions now averaging more than 80 per year since 2006. In 2018 (the most recent data) there were 95 prosecutions.
However there have also been increasing calls for more clarity in the law.
The Law Commission say this change will introduce this clarity and focus criminal prosecutions on the more serious offences. As part of the changes, the Director of Public Prosecutions (DPP) would have to sign off on criminal prosecutions. This would ensure only the right prosecutions were brought and prevent vexatious private prosecutions.
The offence of corruption in public office will cover someone who knowingly uses or fails to use their public position or power for the purpose of achieving a benefit or detriment. The example given by the Commission is of “a police officer who misuses their position to take sexual advantage of a vulnerable victim”.
The offence of breach of duty in public office would be when an officeholder 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.
The Law Commission’s recommendations have been laid in Parliament and provided to the Ministry of Justice. It will now be up to the government as to if and how they implement the recommendations.
Professor Penney Lewis, Criminal Law Commissioner said “The offence of misconduct in public office has been rightly criticised for being outdated, vague, and open to misuse.”
“Our recommendations will clarify and modernise the law, while ensuring that public office holders are held to account for serious breaches of the trust that the public places in them.”
If this potential law change results in better clarity – and harsher penalties – for the next Grenfell or spy cops scandal, it will be well worth championing.
Look out for what the government does with the recommendations and how Labour and other opposition parties respond.
Emma Burnell is a Journalist and communications consultant.
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