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Criminal Misconduct in Office: Law and Politics

Written by Guest on Monday, 13 August 2018

 

Jeremy Horder, Professor of Criminal Law at the LSE, has an exceptionally distinguished track record in areas that are relevant to TI’s mission. As Law Commissioner, he was responsible for the Law Commission Report on bribery reform (Law Com No 313, 2009) and draft Bill that became the Bribery Act 2010. He then sat on the Ilicit Enrichment taskforce convened by Transparency International, and came up with the idea of using Unexplained Wealth Orders (UWOs) to tackle the UK’s on-going failure to recover and seize assets bought with corrupt wealth. 

His new book ‘Criminal Misconduct in Office: Law and Politics’ was launched in April. Michael Bowes QC, a Board member of Transparency International UK, spoke at the launch: the text below has been adapted from his speech by Hannah Burrows, a barrister and formerly pupil of Professor Horder.


The Law Commission is currently reviewing the criminal offence of misconduct in public office. At present, the review is at the “policy development” stage, with the Commission’s final report expected for publication in late 2018. The first paper outlining the issues, entitled Misconduct in Public Office: The Current Law, was published in January 2016 and a second consultation was opened in September 2016 with Consultation Paper 229.

Consultees widely considered the common law offence of misconduct in public office to be ill-defined and it has indeed been subject to recent criticism by the Government, the Court of Appeal and law academics. The Law Commission says, “it is not defined in any statute. It carries a maximum sentence of life imprisonment. The offence requires that: a public officer acting as such; wilfully neglects to perform his or her duty and/or wilfully misconducts him or herself; to such a degree as to amount to an abuse of the public’s trust in the office holder; without reasonable excuse or justification.”[1]

The Law Commission’s consultation paper focuses on the lack of clarity around what the offence targets and proposes a reformed offence, or offences, that could address one or both of the following wrongs: breach of duty leading to a risk of serious harm; and corrupt behaviour – the abuse of a position for personal advantage or to cause harm to another. The Paper highlights[2] that the number of prosecutions has risen in recent years from only two in 2005 to 149 in 2010 and 135 prosecutions in 2014. Many of these prosecutions have been against police officers. In order to make the proposed reforms, the Law Commission recognises the need to redefine the concept of “public office” and proposes four options in its consultation paper.

Jeremy Horder has proven himself to be ‘up for the challenge’ of assessing the issues around misconduct in public office and how to reform the offence satisfactorily. His new book, Criminal Misconduct in Office: Law and Politics is an excellent read that reflects a detailed and succinct analysis of the issues surrounding criminal misconduct in office. It has a deep historical perspective, but it is clear that this is not merely a history lesson. It considers the historical perspective of the offence and brings it forward to the present day and then to the future, in a similar way to that of Sarah Chayes in Thieves of State. Jeremy proposes reforms for the public good, since high standards in public office are ultimately for the public good and a serious departure from them should be a culpable breach of the trust reposed in the office holder. Jeremy goes further to suggest that public office offences could extend to corporates or MPs.

From my perspective, as a front line barrister engaged in corruption work (something that John Mathew QC, a very famous advocate, called “being at the coal face”), the interesting aspect of Jeremy’s book is how his ideas for reform will fare in courtroom practice – prosecuting or defending – and especially how it will pan out in front of a jury at Southwark. As a trustee of TI-UK, I am keen to see useful and effective additions to the anti-corruption tool kit and keen to develop an effective role for civil society.

At the heart of the offence historically and at the heart of Jeremy’s remedies is the concept of public trust, “quis custodies ipsos custodiet”[3]. The concept of trust must be central to any review of criminal misconduct in public office. As long ago as 1940, American sociologist Edwin Sutherland said white collar crime “consists principally of violations of delegated or implied trust”. Jeremy’s book drives home, particularly in relation to MPs and the recent expenses scandal, that no-one is above the law. In corrupt states, citizens are left with no remedy because the corrupt officials will simply state “I am the law”. It is reminiscent of The Untouchables, harking back to Elliot Ness and Al Capone. Closer to home, on 30 January 1649, Charles I was executed in Whitehall, with the charge against him reading that “being obliged to use the power committed to him for the good and benefit of the people… yet nevertheless, out of a wicked design to erect and uphold in himself an unlimited and tyrannical power to rule according to his will, and to overthrow the rights and liberties of the people”. The role of civil society in the correction of this corruption and tyranny is central.

Misconduct in public office is a common law offence and is said to date back to the case of R v Bembridge in 1783. In that case, the defendant was an accountant in the office of the Receiver and Paymaster General of the Forces. He was accused of corruptly concealing from his superior his knowledge that certain sums of money had been omitted in the final accounts. The judge in the case, Lord Mansfield QC, stated, “the duty of the defendant is obvious; he was a trustee of the public and the Paymaster, for making every charge and every allowance he knew of… if the defendant knew of the omission… and if he concealed it, his motive must have been corrupt. That he did know was fully proved, and he was guilty, therefore, not of an omission or neglect, but of a gross deceit. The object could only have been to defraud the public of the whole, or part of the interest…a man accepting an office of trust, concerning the public, especially if attended which profit, is answerable criminally to the King for misbehaviour in his office; this is true by whomever and in whatever way the officer is appointed.” Criminal misconduct in office is about holding power to account.

At a time when we have seen the growth of ‘trial by social media’, with reputations being destroyed in hours through Twitter and sharp memes, it can be rough justice for those in the public eye. We must be wary of the ‘court of the media’, with the sentence first – no trial, just a verdict – as Lewis Carroll described in Alice’s Adventures in Wonderland:

‘Let the jury consider their verdict,’ the King said, for about the twentieth time that day.

‘No, no!’ said the Queen. ‘Sentence first — verdict afterwards.’

‘Stuff and nonsense!’ said Alice loudly. ‘The idea of having the sentence first!’

 

The book

Jeremy’s book takes a different tack to the Law Commission’s report and to the reformed offences they propose, arguing instead that in certain circumstances, it may be better to prevent corruption or to seek restitution of the benefits received through the misconduct, rather than pursuing the official afterwards through the criminal law. Jeremy is resolute that the law should speak clearly and unequivocally in condemning all abuses of public position, power or duty. Jeremy looks to “conduct offences” rather than “result offences”, markedly departing from the Law Commission in that respect. There is no “serious harm” criterion as the Law Commission would have, because Jeremy argues the “harm principle” alone is not enough to produce and effective criminal offence.

The question, rightly, should be “how ought a public official to behave?”. The vagueness of the current offence does not play the normative role expected of it. The rule of law demands that the offence be clear on accountability.

Chapter 4 of the book examines corruption in the UK through politics (and business) and MPs’ criminal liability. The misconduct offence could target toleration by senior officials of election spending abuses. Jeremy examines the culpable breach of responsibility and the potential for using coercion to uphold and promote standards in public life. There are other opportunities to be explored in relation to gains made from office – for example corporate misconduct and corporate liability, borrowing from the Corporate Manslaughter and Corporate Homicide Act 2007. In respect of abuse of a public position, harm may be implied; that is, harm to the public good. Jeremy notes, “the behaviour of the officials undermines, threatens or casts a blight on the health of the constitutional relationship between the state and the citizen. Such a betrayal of a role, through abuse of public position, power, or duty, is rightly open to criminal sanctions, and no offence labels it better than misconduct in a public office.”[4]

A key question is whether any misconduct offence should be regarded as covering a dishonest breach of Ministerial Code, including the making of false or misleading statements, particularly lobbying. Of course, the Ministerial Code is written for ministers by ministers and reform of the misconduct offence to include breach of the Code would take enforcement out of the hands of government and into the criminal justice system. This, in itself, has challenges. It places far greater responsibility on the CPS (and its Code for Crown Prosecutors) and on juries. Lord Devlin described jury trials as “the lamp that shows that freedom lives”[5], but reform of criminal misconduct in office will need to think of the effect on juries to consider these complex issues about how public officials should behave. The wholly objective dishonesty test, brought into the criminal law by the Supreme Court in Ivey v Genting Casinos[6], in particular, would be an interesting challenge to juries. This would require jurors to consider, as an objective test, whether the accused public official was dishonest by the standards of an ordinary, reasonable individual having the same knowledge as the accused. The subjective limb of the Ghosh test, i.e. whether or not the accused viewed their actions as dishonest by those standards, is no longer relevant.

Additionally, there is the added challenge of private prosecutions, in considering the role of civil society in combatting corruption and misconduct. The DPP’s consent is not required to bring a prosecution for misconduct in public office, so it is open to private prosecution. The CPS has the power to take over a private prosecution and discontinue it[7]. A striking example is the Hillsborough disaster of 1989, in which 96 football fans were killed. The DPP decided the following year that there was no evidence to justify criminal proceedings against anyone associated with the tragedy. In 1999, however, the victims’ families launched private prosecutions for manslaughter and misconduct in public office against two former police officers who had been in overall command at the match. At the trial in 2000, superintendent Bernard Murray was acquitted and the jury could not reach a verdict on chief superintendent David Duckenfield. An application for a retrial was refused and the proceedings were stayed. That stay has now been lifted and a retrial will take place.[8]

The dangers of widening the scope for private prosecutions of public figures in the political sphere is highlighted by the ancient Roman crime of ‘ambitus’. Roman officials set up courts of investigations (quaestiones) to control the behaviour of their peers. As politicians and legislators, they were both the controlling and the controlled. One problem that faced them was that the behaviour they hoped to control was subject to more than one interpretation, for example, patronage and the exchange of gifts out of respect and friendship, an essential facet of Roman authority, could be viewed as bribery without any malevolent intention of enrichment. This illustrates the problem of legislating on the public good. The word “ambitus” comes from the Latin for going around and commending oneself to the people, a form of patronage. In practice, the charge of ambitus and political corruption in Rome was levied against political opponents to undermine them. Ecclesiastes 1:19 warns us: “what has been will be again, what has been done will be done again; there is nothing new under the sun.” What goes around comes around.

It has been a great honour to speak at the launch of Jeremy’s excellent book and I am sure it will enjoy great success.

Michael Bowes QC

 


References

[1] https://www.lawcom.gov.uk/project/misconduct-in-public-office/

[2] Law Commission Consultation Paper 229, Para 1.15

[3] “Who will guard the guards themselves?”

[4] Book, page 51.

[5] Trial by Jury, (1956), p 164. 

[6] [2017] UKSC 67

[7] Prosecution of Offences Act 1985, s.6(2).

[8] Decision of Openshaw J., Preston Crown Court, 29 June 2018.

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Read 84 times Last modified on Monday, 13 August 2018 11:42

Guest

The TI-UK blog features thought and opinion from guest writers as well as TI staff. Any opinions expressed by external contributors do not necessarily reflect the views of Transparency International UK.

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