by Chris Lamb
Former Director of Public Prosecutions, Lord Macdonald suggested in an article for the Times newspaper (‘Blair could be charged with misconduct in public office’, July 7) that Tony Blair could be prosecuted under the 18th century common law criminal offence of misconduct in public office.
This offence has rarely been used since the 19th century but seems to be the only avenue to bring Tony Blair, and possibly some of those in his ‘sofa government’, to a criminal trial as there is no available statutory law covering ‘crime of aggression’ or indeed the misconduct in office it involves.
For the offence to apply, the suspect has to be a public office holder and be ‘acting as such’ when the misconduct occurred.
There are two elements to the offence. The person holding public office;
wilfully neglects to perform his duty and/or wilfully misconducts himself.
According to an issues paper produced by the Law Commission;
‘Acting as such’
A public officer must be “acting as such” when he or she performs the misconduct alleged. The practical significance of this is unclear.
(2) Wilfully neglects to perform his duty and/or wilfully misconducts himself 1.21 Again, although the AG’s Reference does not separate the concepts of “wilfulness” and “neglect or misconduct” we examine them separately.
Breach of duty (neglect or misconduct) 1.22 If the breach of duty, whether by act or omission, is a breach of a determinative duty then that breach will usually be sufficient to amount to misconduct in public office, subject to it being serious enough. If the duty breached is of a nondeterminative duty owed by the person then it may in some circumstances be sufficient for the misconduct in public office offence provided it is serious enough.
1.23 The state of mind (or “fault element”) required by the offence is that the defendant acted “wilfully”. This requires the prosecution to prove that the defendant:
Summary of Misconduct in Public Office: Issues Paper 1 – The Current Law
(1) was aware of the circumstances existing that made his or her position a public office; and
(2) was aware that a situation might have arisen calling for one of the duties of that office to be fulfilled; and
(3) engaged in the conduct which breached the duty in question; and
(4) the decision to do so was unreasonable in light of the facts known to the defendant.
(3) Abuse of the public’s trust
1.24 The wilful breach of duty must be serious enough to amount to an abuse of the public’s trust. That is, the breach of duty must meet a threshold of seriousness such that the misconduct has the effect of harming the public interest. We call this the “seriousness test”.
1.25 To be guilty of the offence it must also be proven that the public office holder was aware of the circumstances existing that made his or her breach of duty serious. It is not, though, a requirement that he or she had in fact concluded that it was serious.16
(4) Without reasonable excuse or justification
1.26 The final aspect of the offence is that it must be committed in circumstances where the defendant had no reasonable justification or excuse for his or her conduct. It is unclear whether the term “reasonable excuse or justification” constitutes a standalone defence to a charge of misconduct in public office (as opposed to simply allowing for denial of another element of the offence).
The offence can carry a maximum sentence of life imprisonment (according to the seriousness of the misconduct).