Misconduct In Public Office

This comes from the Crown Prosecution Service web site so it has to be considered authoritative. It should also be conclusive. It seems that English judges are hostile to this offence. The Establishment can be rather too cozy; an aspect that is very much part of the Rotherham scandal. It could be used to put half of Her Majesty's Government apparatchiks in prison. NB "public officer" includes Local councillor - see (2004) R v Speechley [2004] EWCA Crim 3067. Something on the realities is at Judge Offers To Pay A Teenagerís Fine For Stabbing A Paedophile Attacker. It is related to #Malfeasance in Office

However Norton Rose Fulbright take the position with #Hong Kong revisiting the offence of misconduct in public office, saying that the common law offence of misconduct in public office is a key weapon in the fight against corruption in Hong Kong. The Guardian may be going gaga - see New law could confuse police misconduct with criminal offence. Another firm is touting for business - #Misfeasance or Misconduct In Public Office - Stephensons Solicitors LLP

 

From CPS Guidelines on Misconduct In Public Office

Misconduct In Public Office

This Guidance was last updated on 19th November 2007.

Principles

The elements of misconduct in public office are:

a) A public officer acting as such.

b) Wilfully neglects to perform his duty and/or wilfully misconducts himself.

c) To such a degree as to amount to an abuse of the public's trust in the office holder.

d) Without reasonable excuse or justification.

Who is a Public Officer?

In Attorney General's Reference No. 3 of 2003 [2004] EWCA 868, it was put to the Court of Appeal, but not argued as part of the substantive appeal, that public functions are now frequently carried out by employees in private employment, e.g. security at courts and transport of prisoners, and that it was unfair and illogical if those holding public office, such as police officers, were to be liable to conviction of an offence not applicable to private employees doing similar work.

Having not heard argument on the point, this may present problems of definition", which they declined to elaborate upon.

the Court stated as follows (Para 62):

"This potential unfairness adds weight, in our view, to the conclusion that the offence should be strictly confined but we do not propose to develop the point or to consider further the question of what, for present purposes, constitutes a public office."

So who holds a public office and as a result can be guilty of this offence? According to the Court of Appeal, which quoted from the earlier authorities, it requires that the defendant "must be a public officer acting as such .... There must be a breach of duty by the officer, [which is wilful and which is such that the conduct is] an affront to the standing of the public office held. The threshold is a high one requiring conduct so far below acceptable standards as to amount to an abuse of the public's trust in the office holder" (Para 56). And later, quoting from the case of Bembridge [(1783) 3 Doug KB 32], "those who hold public office carry out their duties for the benefit of the public as a whole and, if they abuse their office, there is a breach of the public's trust" (Para 57).

Charging Practice

Like perverting the course of justice, misconduct in public office covers a wide range of conduct. It should always be remembered that it is a very serious, indictable only offence carrying a maximum sentence of life imprisonment. A charge of misconduct in public office should be reserved for cases of serious misconduct or deliberate failure to perform a duty which is likely to injure the public interest.

Before deciding to proceed with a charge of misconduct in public office you should consider whether the acts complained of can properly be dealt with by any available statutory offence. If the seriousness of the offence can properly be reflected in any other charge, which would provide the court with adequate sentencing powers, and permit a proper presentation of the case as a whole, that other charge should be used unless:

In R v Sookoo (2002) TLR 10/4/02 the Court cautioned against adding a count of perverting the course of justice when the conduct could properly be treated as an aggravating feature of a statutory offence. Similar reasoning should be applied to the charging of misconduct in public office. So for example, an assault by a police officer committed while on duty could also arguably be misconduct in public office, but the appropriate assault charge would provide the court with adequate sentencing powers and the ability to take into account the breach of trust by the officer as an aggravating factor [see R v. Dunn [2003] 2 Cr.App.R.(S)].

Useful Links

Archbold 25-381

Attorney General's Reference No. 3 of 2003 [2004] EWCA 868

Bembridge [(1783) 3 Doug KB 32]

Dytham [1979] 1 QB 723

R v. W [2003] EWCA 1632

Witcher & Lang Guildford Crown Court March 2005

R v. Sunshes Nkesha Pike-Williams [2004] EWCA Crim 2400

Bowden [1996] 1 Cr.App.R. 104

Kent v Griffiths and others

Attorney General's Reference No.3 of 2003 [2004] EWCA Crim 868

R v Sookoo (2002) TLR 10/4/02

R v. Dunn [2003] 2 Cr.App.R.(S)

 

 

 

 


 

Judge Offers To Pay A Teenagerís Fine For Stabbing A Paedophile Attacker  [ 9 April 2017 ]
QUOTE
A judge who offered to pay a teenager's fine for stabbing her paedophile abuser has been found guilty of misconduct.

Judge Jonathan Durham Hall QC refused at Bradford Crown Court to jail a 15-year-old girl for nearly killing her tormentor, 56, by stabbing him near the heart.

He told the girl not to pay the mandatory victim surcharge, adding: 'If anyone tries to force you, I will pay it myself.'

The court heard the girl stabbed her abuser six years after he walked free from court despite assaulting her when she was eight.

Prosecutor Heather Gilmore said she had been 'destroyed' when her abuser was not jailed, reports The Times.

Giving her a two-year youth rehabilitation order for grievous bodily harm, the judge said: 'It would be a disgrace to send a survivor like you to prison'.

He added: 'It is self evident that this offence was caused by, and solely relates to, the impact of the offending upon you when you were eight. I hope to be able to help you.' 
UNQUOTE
The public approve of the judge wholeheartedly.

 

Married Policeman Screwed A Customer While On The Job  [ 29 April 2017 ]
QUOTE
A married detective constable who had sex with a suspect at a police station during an eight-month affair was jailed for four months today. Grant McPherson, 37, had sex with student Jessica Lorenzin, 20, at hotels and they even had a threesome in a spa.

McPherson gave her his number after interviewing her at Charing Cross police station in London in October 2015 for allegedly causing criminal damage to the door to her home in Earls Court.........

The detective from Glasgow was given four months in jail for one count of misconduct while in a public office...........

He pleaded guilty to misconduct in a public officer in March, and was nearly denied bail after turning up drunk at the court. 
UNQUOTE
Turning up at court drunk was a clever move; it played to the sympathy vote and it worked. Judges & the Crown Prosecution Service do not like this bit of law; Misconduct In Public Office is major crime but only for little people. Serious rogues like  Blair,  Brown & Cameron get a pass for their War Crimes, their Treason etc. because they are in The Establishment.

 

 

New law could confuse police misconduct with criminal offence
So says The Guardian. Believe it if you want. 

 



From CPS Guidelines on Misconduct In Public Office

Misconduct In Public Office

 

Hong Kong revisiting the offence of misconduct in public office
QUOTE
The common law offence of misconduct in public office is a key weapon in the fight against corruption in Hong Kong. We examine several key cases and their impact on the development of the law.

On October 5, 2015, former Chief Executive of the Hong Kong Special Administrative Region, Donald Tsang, was charged with two counts of misconduct in public office. The first charge alleges that Tsang failed to declare, or concealed from the Executive Council, that he was in negotiations with Bill Wong (a major shareholder of a company which was seeking approval from the Executive Council for a digital broadcasting licence) in respect of a residential tenancy in a flat in Shenzhen. The second charge alleges that Tsang either failed to disclose or concealed information from the then Permanent Secretary for the Chief Executiveís Office, the Development Bureau and the Honours and Non-official Justices of the Peace Selection Committee, concerning an architect nominated for the HKSAR honours and awards who was responsible for the interior design of the Shenzhen flat. This is the first time a Chief Executive of the HKSAR has been charged with wilful misconduct in public office in the history of the territory.

The scope of the common law offence of misconduct in public office makes it a powerful tool in tackling corruption because of the lacuna in Hong Kongís anti-bribery legislation, the Prevention of Bribery Ordinance (POBO). Under the POBO, it is an offence for public officials to solicit or accept an advantage as an inducement or reward for them to perform certain acts. The POBO also provides for the following limited offences concerning the Chief Executive:

  • soliciting or accepting an advantage as an inducement or reward for performing or abstaining from performing any acts in the capacity as Chief Executive (Section 4 POBO)
  • soliciting or accepting an advantage as an inducement or reward for giving assistance in contracts with a public body (Section 5 POBO)
  • maintaining a standard of living above that which is commensurate with his present or past official emoluments or is in control of pecuniary resources or property disproportionate to his present or past official emoluments (Section 10 POBO).

On the other hand, the common law offence of misconduct in public office is wider in scope, as it encompasses any serious misuse of power or position by public officials even in the absence of evidence that they have received a bribe.

Since 2000, the Independent Commission Against Corruption (ICAC) has initiated around 40 charges for this common law offence, 30 of which resulted in convictions. It can therefore be observed that the conviction rate for the offence is quite high.

Misconduct in public office

In Sin Kam Wah v HKSAR (2005) 8 HKCFAR 192, the Court of Final Appeal re-formulated the test for the common law offence of misconduct in public office. In that case, Sin Kam Wah (Sin), a former Senior Superintendent of the Hong Kong Police, was charged with three counts of misconduct in public office. The charges concerned allegations that Sin had accepted from Lam Chuen Ip (Lam) (a person having proprietary interests in Kowloon nightclubs) sexual services free of charge from various women over whom he knew Lam was exercising control, direction or influence for the purpose of or with a view to the womenís prostitution. Sinís conviction on all three counts of misconduct in public office was upheld by the Court of Final Appeal.

The Court of Final Appeal laid down five ingredients to the offence of misconduct in public office. It is committed where:

  1. a public official
  2. in the course of or in relation to his public office
  3. willfully misconducts himself, by act or omission, for example, by willfully neglecting or failing to perform his duty
  4. without reasonable excuse or justification
  5. where such misconduct was serious, not trivial, having regard to the responsibilities of the office and the office-holder, the importance of the public objects which they serve and the nature and extent of the departure from those responsibilities.

As regards point 3 above, the Court of Final Appeal stated that the misconduct must be deliberate rather than accidental in the sense that the official either knew that his conduct was unlawful or wilfully disregarded the risk that his conduct was unlawful.

The Court of Final Appeal stated that to constitute the offence of misconduct in public office, willful misconduct which has a relevant relationship with the defendantís public office is enough. Misconduct otherwise than in the performance of the defendantís public duties may have such a relationship with his public office as to bring that office into disrepute, in circumstances where the misconduct is both culpable and serious and not trivial. The Court of Final Appeal took the view that Sinís misconduct had the necessary relationship with his public office; it was also culpable and serious because it involved his participation in the acceptance of free sexual services with the knowledge that they were provided by prostitutes over whom Lam exercised control, direction or influence, that being in itself a serious criminal offence.

In 2010, the Court of Final Appeal examined the offence of misconduct in public office again in Chan Tak Ming v HKSAR (2010) 13 HKCFAR 745. Chan Tak Ming (Chan) was a former senior medical officer of a public hospital. He was convicted of a count of misconduct in public office through obtaining patientsí personal particulars from documents and/or data-handling systems of the Hospital Authority for his personal use. In that case, Chan sent out letters to the patients whose personal particulars he had obtained indicating that he was going to commence private practice. In upholding his conviction, the Court of Final Appeal applied the test laid down in Sin Kam Wah and emphasised that personal benefit was not an element of the common law offence so that the relevant misconduct could be committed for no discernible or provable motive. In addition, the Court of Final Appeal held that to determine whether the necessary seriousness existed for the purposes of point 5 as laid down in Sin Kam Wah, an evaluation of the responsibilities of the office and the office-holder, the importance of the public objects which they served and the extent of the departure from those responsibilities was required.

Under section 101 (1) of the Criminal Procedure Ordinance (Cap. 221), a public official convicted of the offence of misconduct in public office is liable to imprisonment for seven years and a fine. In Sinís case, he received sentences of two years for each offence of misconduct in public office, to be served concurrently. In Chanís case, he was fined HK$50,000.

Another recent high profile conviction relating to the offence of misconduct in public office concerned Rafael Hui (Hui), the former Chief Secretary of the government of Hong Kong in December 2014. Of the five counts in respect of which Hui was convicted, three counts related to misconduct in public office and one count related to conspiracy to commit misconduct in public office. The three counts of misconduct in public office involved: (i) Huiís failure to disclose acceptance of secured loans in the total amount of HK$2.4 million from a subsidiary of one of the largest property developers in Hong Kong; his rent-free use of two luxury units and his negotiation of a consultancy agreement with the same property developer when he was a managing director of the Mandatory Provident Fund Schemes Authority; (ii) his failure to disclose the provision to him, and annual extensions, of another unsecured loan of HK$3 million from the same subsidiary of the same property developer at the time when he was the Chief Secretary; and (iii) his failure to declare to the government HK$11.182 million worth of bribes he received when he was a non-official member of the Executive Council. In addition, Hui was convicted of a count of conspiracy to commit misconduct in public office in respect of the transfer of HK$8.5 million worth of bribes to him when he was the Chief Secretary.

In the Courtís sentencing decision against Hui, the judge accepted that (i) and (ii) did not involve bribery or corruption but that there were obvious conflicts of interest. The judge emphasised that high-ranking officials owe a duty not only to the government but to the people of Hong Kong whom they represent, and who expect them to act in the public interest and not in their own selfish interest, and, therefore, the breach of that duty and trust is a significant aspect of Huiís criminality in the case. The sentencing decision demonstrates that misconduct in public office does not necessarily have to entail bribery.

Hui was sentenced to seven and a half yearsí imprisonment in respect of five counts of conviction and was ordered to pay HK$11.182 million to the HKSAR government.

Hui and others in the case have lodged appeals against their convictions. The appeals were heard in early November 2015 and judgment was reserved which has not been handed down yet.

Codifying the offence of misconduct in public office

Many common law jurisdictions have codified the offence of misconduct in public office or are taking steps to codify it. With the exceptions of New South Wales and Victoria, most jurisdictions in Australia have codified the offence of misconduct in public office. For example, section 142.2 of the Criminal Code Act 1995 (Cth) provides for a statutory offence of abuse of public office under which any Commonwealth public official will be found guilty if he/she (i) exercises any influence that the official has in the officialís capacity as a Commonwealth public official; or (ii) engages in any conduct in the exercise of the officialís duties as a Commonwealth public official; or (iii) uses any information that the official has obtained in the officialís capacity as a Commonwealth public official; and the official does so with the intention of: (i) dishonestly obtaining a benefit for himself or herself or for another person; or (ii) dishonestly causing a detriment to another person. Any public official who is found guilty of this statutory offence will be subject to a maximum penalty of imprisonment for five years. Similarly, section 359 of the Criminal Code 2002 (ACT) also provides for the same statutory offence for any abuse of public office by a public official in the Australian Capital Territory.

The UK has also been making headway in codifying the offence of misconduct in public office. In 2014, the Law Commission of England and Wales engaged in a project to review the common law offence of misconduct in public office with a view to simplifying, clarifying and codifying it. The review is currently at the pre-consultation stage which includes approaching interest groups and specialists in order to finalise the terms of project. It is expected that a final report with recommendations will be produced in the summer of 2016.

In Hong Kong, the possibility of codifying the common law offence of misconduct in public office was addressed in 2000 in a speech given by Mr. Kwok Man-wai (Kwok), the Ex-Deputy Commissioner & Head of Operations of ICAC. Kwok commented that the essential ingredients required to establish a charge of misconduct in public office were vague. Kwok also opined that since the offence was not codified, it was difficult to develop public awareness of the offence amongst civil servants and this deprived the public of ready access to the law. Accordingly, Kwok proposed to codify and include the offence of misconduct in public office in the POBO in the form of Ďmisuse in public office for personal gainí. To date, Hong Kong has not yet taken any steps to codify the offence. This may arise out of a desire to maintain flexibility given the wide scope of the offence, and a lack of need to change the current system due to the high conviction rates.

Recently there has been debate in Hong Kong as to whether the scope of the POBO should be widened to include more provisions covering the Chief Executive. Currently, sections 3 and 8 of the POBO do not apply to the Chief Executive. Under section 3 of the POBO, a prescribed officer commits an offence if he solicits or accepts an advantage without the permission of the Chief Executive, and section 8 of the POBO prohibits any person who has dealings of any kind with a government department or public body from offering an advantage to a prescribed officer or public servant without lawful authority or reasonable excuse. The Democratic Party has moved a private motion to extend the application of sections 3 and 8 of the POBO to the Chief Executive. However, on 11 November 2015, the Hong Kong Legislative Council vetoed the private motion.
UNQUOTE
Other jurisdictions settle for lesser punishment.

 

Malfeasance in Office ex Wiki
Malfeasance in office
, or official misconduct, is the commission of an unlawful act, done in an official capacity, which affects the performance of official duties. Malfeasance in office is often grounds for a for cause removal of an elected official by statute or recall election.[citation needed]

An exact definition of malfeasance (or misfeasance (Brit)) in office is difficult: many highly regarded secondary sources (such as books and commentaries) compete over its established elements based on reported cases. This confusion has arisen from the courts where no single consensus definition has arisen from the relatively few reported appeal-level cases involving malfeasance in office.

 

Misfeasance or Misconduct In Public Office - Stephensons Solicitors LLP
Misfeasance in public office is a particularly serious matter. This is where a public body, an individual in public office or a public servant acts unlawfully, knows that they are acting unlawfully and does so knowing that his or her actions are likely to cause loss or harm to another person. 

Our specialist solicitors act for individuals who have suffered loss of earnings and loss of liberty as a result of misfeasance by those in public office. If you have been arrested and detained in circumstances where the police or detaining authority know that you are innocent or if you have been the victim of someone who has misused powers that they have because of their position within a detaining authority or a local authority, then you may be able to claim damages via the courts. 

 

 

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Updated  on Saturday, 29 April 2017 22:39:19