On 5 September 2016, the Law Commission announced the second phase of its consultation on the reform of the law of misconduct in public office (“MIP”). In its first consultation, it conducted an analysis of the existing law. In its second phase, it has now presented possible options for reform.

Misconduct in public office has received recent public attention in the context of Operation Elveden, the spin-off police investigation into payments by journalists to police officers and other public officials, which arose out of the earlier phone hacking investigation (Operation Weeting).  

This common law offence has long been criticised for its nebulous, ill-defined scope. Appendix D of the Consultation makes for interesting reading and very much illustrates this point. It lists known cases of MIP investigated/prosecuted since 2005. Included are a diverse range of public officials – including parliamentarians, police officers, civil servants, prison staff, court staff, probation staff, prosecutors, local government officials, clergy, service personnel, immigration officials, health care providers and teachers. The misconduct referred to is equally diverse including financial misconduct, inappropriate relationships, sexual misconduct, misconduct in relation to drugs, deaths in custody, accessing or disclosing confidential information and obviously the selling of information to journalists.

Reading this list, there is a sense in which, like the common law offence of conspiracy to defraud, MIP has been used as a convenient catchall for conduct that might otherwise have been covered by other more specific offences. Specific offences might include fraud, bribery, drugs and sexual offences. It is also clear that without the offence of MIP, there would be gaps or prosecutions would not be easy to pursue, for example in relation to the accessing and disclosing of confidential information.

In the light of all this, the Law Commission is wrestling with the knotty question of how to define public office. They are also asking whether any new statutory offence should be confined to breaches of duty that risk serious harm, and apply only to particular public officials who have a role in preventing harm (Option 1). They are also considering whether to include corrupt behaviour on the part of any public official (Option 2). The final alternative is that the offence should be abolished and there should there be no replacement whatsoever (Option 3).

Given that the absence of a MIP offence would leave us with gaps in the law, there is certainly room for the creation of a new statutory offence. However, with the plethora of new criminal offences created under each successive government, there is real reason to pause for thought and carefully consider whether any new offences which overlap with existing offences are necessary. Option 2 does considerably overlap with existing fraud and bribery offences and comparable sentences could be achieved via abuse of position of trust being used as an aggravating factor.

The consultation closes on 28 November 2016 and the final report will be produced in 2017.