Misconduct in a Public Office—Should it Still Be Prosecuted?
| Author | Simon Parsons |
| DOI | 10.1350/jcla.2012.76.2.763 |
| Published date | 01 April 2012 |
| Date | 01 April 2012 |
| Subject Matter | Article |
Misconduct in a Public Office—
Should It Still Be Prosecuted?
Simon Parsons*
Abstract This article examines the common law crime of misconduct in a
public office from its ancient origins, and considers the difficulties in
defining the crime. These difficulties arise from the crime being very
widely defined as it includes non-feasance, misfeasance, frauds and de-
ceits, malfeasance and oppression. It is unclear whether these are separate
categories or if they run into one another. It is also unclear if the crime is
a conduct crime or whether material damage is required. It appears that
the DPP requires material damage before a prosecution can take place. The
article argues that as the elements of the crime are so uncertain, it should
no longer be prosecuted especially in view of the availability of alternative
statutory offences which could be charged instead of the misconduct
crime. These statutory offences have the certainty which the misconduct
crime lacks and they thus enable public officials to judge their future
conduct.
Keywords Non-feasance; Misfeasance; Fraud in office; Mal-
feasance; Oppression
The crime of misconduct in a public office has a long history as its origins
can be traced back to the 13th century.1However, modern cases are not
inclined to look beyond R v Bembridge2where Lord Mansfield CJ’s
judgment defined the crime as involving two principles:
. . . first, that a man accepting an office of trust concerning the public,
especially if attended with 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 . . . Secondly, where there is a breach of trust, fraud,
or imposition, in a matter concerning the public, though as between
individuals it would only be actionable, yet as between the King and the
subject it is indictable. That such should be the rule is essential to the
existence of the country.3
This definition, in particular ‘misbehaviour in his office’ indicates this
common law crime embraces a wide variety of misconduct and is not
easily defined. The essence of the crime is where a person, having a
public duty entrusted to him, wilfully neglects to carry out that duty
(non-feasance) or wilfully abusing it for some improper motive (mis-
feasance). The problem with the modern cases is that the crime has been
used to prosecute conduct that does not involve actual misconduct in a
* Senior Lecturer in Law, School of Law, Southampton Solent University; e-mail:
Simon.Parsons@solent.ac.uk.
1 See F. Pollock and W. Maitland, The History of English Law, 2nd edn, vol. 2 (1898)
520–1.
2 (1783) 3 Doug 327.
3 Ibid. at 332.
179The Journal of Criminal Law (2012) 76 JCL 179–185
doi:10.1350/jcla.2012.76.2.763
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