Misfeasance in Public Office in UK Law

There was no challenge to the judge's findings of bad faith against the three officers, nor to his finding that their conduct had caused the respondent no financial loss or physical or mental injury, which in argument was helpfully described as "material damage", an expression understood to include recognised psychiatric illness but not distress, injured feelings, indignation or annoyance.

The rationale of the tort is that in a legal system based on the rule of law executive or administrative power "may be exercised only for the public good" and not for ulterior and improper purposes: Jones v. Swansea City Council [1990] 1 W.L.R. 54, 85F, per Nourse L.J.; a decision reversed on the facts but not on the law by the House of Lords: [1990] 1 W.L.R. 1453, at 1458.

This type of case involves bad faith in the sense of the exercise of public power for an improper or ulterior motive. The second form is where a public officer acts knowing that he has no power to do the act complained of and that the act will probably injure the plaintiff. It involves bad faith inasmuch as the public officer does not have an honest belief that his act is lawful.

This consideration also leads to the conclusion that a prison officer who acts in bad faith by deliberately subjecting a prisoner to a restraint which he knows he has no authority to impose may render himself personally liable to an action for false imprisonment as well as committing the tort of misfeasance in public office. Lacking the authority of the governor, he also lacks the protection of section 12(1).

It is also necessary to consider the tort of misfeasance in public office. But, as the law stands, the plaintiff has to establish either that the holder of the public office maliciously acted to the plaintiff's detriment or that he acted knowing that he did not possess the relevant power. By way of summary, one can say that as the law stands a citizen, who is aggrieved by a prosecutor's decision, has in our system potentially extensive private law remedies for a deliberate abuse of power.

If an act is done deliberately and with knowledge of its consequences, I do not think that actor can sensibly say that he did not "intend" the consequences or that the act was not "aimed" at the person who, it is known, will suffer them.

As to his second conclusion under this head, I have no doubt that, quite apart from any of the matters so far set out in this judgment, the attempt to introduce Misfeasance in Public Office into the case at this stage is an abuse of process. In paragraph 14 of his judgment Andrew Smith J explained how as early as 1997 leading counsel for the Names (including all of the UNO appellants) indicated that the pleading of Misfeasance in Public Office was under consideration.