misfeasance in public office UK
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If you are found guilty of the offence of misfeasance in public office, you face a maximum penalty of life imprisonment.
The offence involves a public official acting in contravention of their position of authority, resulting in harm, injury, financial loss or damage to a third party.
The definition of misfeasance in public office
What is misfeasance defined as in the UK?
A form of misconduct, misfeasance in public office occurs when a public official, public servant or public body knowingly and willingly acts in a manner with the realisation that their actions are likely to cause loss or harm to another. The action is legal, but is performed in a way that harms another.
Misfeasance is often confused with negligence, whereby an individual does not carry out their role or responsibilities with a correct level of care which results in harm to another.
Negligence generally involves harm to another as a result of carelessness, error or lack of judgement, whereas misfeasance requires a greater degree of culpability on the part of the person concerned, often when the person has intentionally committed an act that would be to the detriment of another and often where there has been an abuse of that person’s power or position of responsibility.
What is a public official?
UK law defines a public official as an individual who is in a position of authority. The individual will hold a judicial, legislative or administrative position, whether this is appointed or elected.
Examples of public officials in the UK include:
Members of the police force
Members of the armed forces
Government ministers
Local government officials
Civil servants
Prison officers
Security agencies including immigration and border control
Public officials are also known as public officers. Each case of alleged misfeasance must be assessed individually where public officials are involved. The nature of the officer’s role, their duties and the level of trust – directly or indirectly – placed upon them by the public will all be considered.
What is the difference between misfeasance or malfeasance in public office?
While misfeasance in public office involves a public officer knowingly acting in an unlawful manner, malfeasance is an unlawful, intentional act of misconduct. In law, malfeasance is regarded as more severe than misfeasance and nonfeasance, which is a failure to act when there is a duty to do so.
Misfeasance and the law
Those in a position of authority are obliged to use their powers for public good. If these powers are abused by the public official to the detriment of a third party, a case of misfeasance in public office may arise.
Misfeasance in the medical profession may arise if a doctor prescribed the wrong medication to a patient, or alternatively prescribed the wrong dosage of medication, which then caused harm to the patient or left a lasting impact on their health. The doctor has not deliberately set out to harm the patient, but their actions may have resulted in such.
Where there is more deliberate intent, there can naturally be an overlap with these types of offences, whereby sometimes they may amount to specific offence, such as an assault or administering a noxious substance for example.
What factors are needed for a case of misfeasance to be proven?
For a case of misfeasance to be proven and prosecuted, two factors must be present:
The misconduct was carried out by a public officer
The misconduct resulted in personal injury, financial loss or damage to your reputation
If these factors are determined, the act of misconduct will be investigated to determine:
What the public official did
Why they acted in such a way
For the case to be successful and for the offence of misfeasance in public office to be proven, the prosecution in the case must demonstrate that the public official:
Intended to cause the damage, loss or injury
Had no concern for the third party in respect of the damage, loss or injury
It must be proven that the public officer deliberately acted in contravention of their position of authority.
Misfeasance in public office is an indictable offence which can only be heard in the crown court.
What is the sentence for misfeasance in public office under UK law?
If found guilty of misfeasance in public office, the maximum penalty is life imprisonment, albeit the court has a wide range of discretion and much will depend on the harm caused and the position and level of responsibility exercised by the official in question.
The offence and its problems
Misconduct in public office is a common law offence: 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.
The offence is widely considered to be ill-defined and has been subject to recent criticism by the Government, the Court of Appeal, the press and legal academics.
In general terms, those consultees who responded to the background paper agreed with us that the law is in need of reform, in order to ensure that public officials are appropriately held to account for misconduct committed in connection with their official duties. Consultees also indicated that our review of the law and its problems was comprehensive.
Law reform options
The problems identified in the existing law clearly show that it would be undesirable either to retain the existing offence or to attempt to codify it in statute. All the options in the Consultation Paper therefore assume that the common law offence of misconduct in public office is to be abolished.
The underlying issue tying together the problems with the current offence is that it is not clear what mischief the current offence targets and therefore what form the offence should take.
In our consultation paper we conclude that a reformed offence, or offences, 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.
For the purpose of devising any offence or offences to replace misconduct in public office, we need to devise a more rigorous definition of public office. The current, vague definition is a major problem with the present offence. We discuss in the Consultation Paper four possible methods of defining public office. Any new offence will need to be underpinned by the concept of public office. However depending on the particular model of offence, not every form of the replacement offence needs to apply to all public office holders. It may be that certain types of new offence need only apply to a subset of public office holders.
We consider two possible new offences to replace the current offence of misconduct in public office. Option 1 involves a new offence addressing breaches of duty that risk causing serious harm, when committed by particular public office holders (those with duties concerned with the prevention of harm). Option 2 involves a new offence addressing corrupt behaviour on the part of all public office holders. Options 1 and 2 are separate but compatible. That is, it would be possible to implement Option 1 on its own, Option 2 on its own or both together.
Law reform Option 3 involves abolition of the current law without replacement. At this stage, it is our view that reform of this nature would be likely to leave unacceptable gaps in the law.
