Here, Senior Lecturer in Law at Loughborough University , Dr Tom Frost, comments on the seriousness of the offence, but why it is so difficult to bring a conviction, and therefore is not a suitable way to hold MPs and ministers accountable when they do something wrong.
“Misconduct in public office is a common law offence with a maximum sentence of life imprisonment. However, securing a conviction is far from straightforward, and the hurdles mean that Peter Mandelson may not face prosecution. MPs, including former Prime Minister, Boris Johnson, who violated lockdown laws, were not charged under this offence. Similarly, those MPs who were caught up in the expenses scandal in the late 2000s, were not charged with this offence either.
“Between 2014 and 2024, 191 people were convicted of misconduct in public office. 92% of those convicted were prison officers or police officers. 98% were junior to mid-level public officials. Only four convictions were secured of people in senior positions. Receiving a bribe as a police officer satisfies the offence; leaking governmental documents, even if confidential, is harder to show that it meets the offence's requirements.
“Because of this, the Law Commission recommended in 2020 that the common law offence should be replaced with a statutory offence, although this has not yet happened. The Public Office (Accountability) Bill is still working its way through Parliament.
“The elements of the offence were summarised by the Court of Appeal in Attorney General's Reference No 3 of 2003 [2004] EWCA Crim 868. The offence is committed when four things are established:
- A public officer acting as such
- wilfully neglects to perform their duty and/or wilfully misconducts themselves
- to such a degree as to amount to an abuse of the public's trust in the office holder
- without reasonable excuse or justification.
“Ministers of the Crown, as Peter Mandelson was, are public officials. However, the other three elements of the offence are much harder to pin down. 'Wilful' neglect or misconduct requires ‘deliberately doing something which is wrong, knowing it to be wrong or with reckless indifference as to whether it is wrong or not’.
“In the case of Peter Mandelson, it would have to be proven that he deliberately knew his actions were wrong, or that he knew he was being reckless and did not care about the lawfulness of his actions. The prosecution would need to show that the actions here are more than a minister knowing they are neglecting their responsibilities. If a jury thought an individual's behaviour was wrong, but not wrong enough to abuse the public's trust, no offence will be proved.
“Finally, without lawful excuse or justification means acting culpably or in a blameworthy fashion – essentially, they acted without a valid legal reason, and their behaviour was their fault. Although it sounds like a powerful offence on paper, it’s unclear and very hard to prove. For that reason, it’s not a suitable way to hold MPs and Ministers accountable when they do something wrong.”
ENDS
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