MISCONDUCT IN PUBLIC OFFICE

Civil Matter or Criminal Matter?

05.04.2021

The Misconduct in Public Office criminal offence covers misfeasance, malfeasance and non-feasance. The offence is, in essence, one of abuse of the power or responsibilities of the office held.

The text in the below paragraph is distilled from the CPS Guidelines for the Misconduct in Public Office offence:

Misconduct in Public Office is an offence at common law triable only on indictment – which means that the Trial verdict (Re: the defendant’s culpability) lies to the jury.

As the name suggests, Misconduct in Public Office is not a ‘results crime’; there is no need to prove any particular consequences. Neither is it necessary to prove dishonesty or corrupt behaviour. The offence carries a maximum sentence of life imprisonment.

Consider the following analogy.

If a man (an ordinary man-on-the-street) were to rape a woman; one man stalks and rapes one woman. He commits the offence just the once, and he (says he) has no intention of ever raping any other woman again:

(a) Is the rape a breach of the Social Contract?

(b) Is this a civil matter or is it a criminal matter?

(c) If the rape victim does not get pregnant, does that lessen the man’s culpability?

(d) How quickly would the public want that man arrested and brought to Trial?

Say it has been established on the evidence before the Court that the rape indeed occurred and the man is guilty of the crime:

(e) Does the fact that the man (says he) does not plan to rape anyone ever again mitigate the crime?

(f) Does “I made a mistake” constitute a valid defence for the rapist?

Does the rapist’s status excuse the crime in any way?

(g) If the rape victim happens to be the rapist’s wife, does that have any bearing on the man’s culpability? If so, what bearing does it have: Does it mitigate the crime, or aggravate it? Please give a reason for your answer.

(h) Suppose the rapist is a Public Official, does that have any bearing on the man’s culpability. If so, what bearing does it have: Does it mitigate the crime, or aggravate it? Please give a reason for your answer.

I bring this analogy because Misconduct in Public Office is a very serious crime: A single devious man can do a significant amount of damage, put that same man in a position of power and you have yourselves a much greater problem.

The above description of the offence is a distillation; the CPS Guidelines themselves are a case study in obfuscation.

According to the CPS Guidelines the Misconduct in Public Office charging practice is that if one or more statutory offences can be made to fit the offence committed, those should be considered to be the principal offence with the ‘public office’ element added only as an aggravating factor. Even in that instance, “the public office’ element” is only relevant to the crime if the case has “serious aggravating features”. The Guidelines even go on to give an example:

“For example an assault by a police officer committed on duty should not automatically be considered as misconduct in public office. A charge of assault would normally 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).”

When a Public Official occupying a position of trust breaches that trust through wilful abuse of their office, the breach of trust itself (not its manifestation) is the crime.

Because the available statutory offences target one or more of the manifestations of the trust-breach and not the crime itself, the primacy-of-statute strategy embeds a ‘soft’, lethal violence (structural violence) in our justice system by ensuring that whenever we get anywhere near addressing our problem, we are diverted to secondary issues and steered away from the primary issue that lies at the root of the problem.

If you have a slow puncture and all you do is pump air in the affected tyre to ‘bring the pressure up’, you can be sure that you will be having to do the same again every now and again because you’re not solving the problem.

Misconduct in Public Office is a serious crime. To treat it otherwise is a temporary fix at best, nothing more (and that’s putting it mildly). For as long as that primary crime remains unaddressed (and unaddressable?) “unprecedented events” – which are just but manifestations of that underlying problem that we keep leaving unaddressed – will keep coming our way.

I believe that one of the reasons behind why Misconduct in Public Office is rarely prosecuted is because the double-speak in the CPS Guidelines serves to undermine prosecution of the offence. When the Guidelines get done ‘explaining’ what the offence is all about, the end result in effect is that Misconduct in Public Office is not a crime in its own right.

The CPS Guidelines speak of how “the seriousness of the neglect or misconduct” may excuse the accused public official from being charged with the crime – apparently there are times when malfeasance/misfeasance/non-feasance do not call for condemnation and punishment. The prosecution is also undermined by talk of how “the likely consequences of any wilful neglect or misconduct are relevant when deciding whether the conduct falls below the standard expected”.

Misconduct in Public Office is a crime (and a serious one at that): Would we even have discussions along these lines if the crime under consideration was, say Rape?    

So what if the wilful misconduct of a Public official appears to violate the rights of only one member of the public? Is one man raping only one woman not a crime?

A Public Official standing for election gets the seat through the votes of individual members of the public – what criteria would the Public Official be using when he decides whose trust to breach as he goes about his wilful abuse of office; it is unlawful for a Public Official to engage in discrimination!

Just as one cannot be careless with their pennies and expect the pounds to remain unaffected; it is not possible for a public official to take care of ‘the public interest’ while wilfully trampling on the rights of individual members of the public.

In ordinary discourse we sometimes hear talk of ‘bending the rules’ or ‘breaking the rules’ but when it comes to Principles, there is no compromise. Because any and every rule is built on a principle, when there appears to be conflict between the rules and the principles upon which the rules are built, the reasonable thing to do is to defer to principle. In the UK the principles which all public officials must always abide by are: Selflessness, Integrity, Objectivity, Accountability, Openness, Honesty, Leadership. All official conduct is underpinned by these 7 Principles of Public Life (also called the Nolan Principles). The moment that any one of those Nolan Principles is wilfully breached is the moment that the Misconduct in Public Office offence is constituted. One doesn’t just wake up one morning and find themselves a public official; being a public official is a committed undertaking. A police officer who wilfully commits an assault on a member of the public while on duty is most certainly guilty of Misconduct in Public Office by strict liability.

Listen to this minimising quote (tries to make a civil matter out of a criminal offence):

“The fact that a public officer has acted in a way that is in breach of his or her duties, or which might expose him/her to disciplinary proceedings, is not in itself enough to constitute the offence”

Why not?

Yes, you still had good control of the vehicle, yes, you evidently can still ‘walk the line’ but you admit that you drank alcohol that was above the legal limit, and this is confirmed by the breathalyser test result. You are therefore liable to be prosecuted for Driving Under the Influence of alcohol! If driving a motor vehicle while under the influence of alcohol is a strict liability offence, how does Misconduct in Public Office get to not be?

A contributing factor that enables the purveyors of this ‘justice’ to get away with this scam is because the jury gets ‘assisted’ into considering the unprincipled behaviour of public officials to not be worthy of condemnation or punishment. The jury is disempowered; they (very likely) don’t get to have a say on what the actual punishment that is to be visited on a convicted individual is going to be.

Given the way things are, is it any wonder that Misconduct in Public Office is rarely prosecuted?

It’s not a crime for a Public Official to wilfully abuse their office, not according to the justice system. The system is rigged so that if a Public Official wilfully abuses their office they very likely don’t lose their job, and they don’t get prosecuted. The worst case scenario for the corrupt public official is that they get a slap on the wrist but that too, rarely happens (as you will gather from the descriptions below).

The quote above spoke of ‘disciplinary proceedings’ – by the employer and/or by the Professional Body, I guess – so we will now turn and examine the (lax) approach employed by some Regulatory Bodies in response to misconduct complaints. The ones that I have had the opportunity to engage with operate in pretty much the same manner. (For the record, I have engaged with more than just the ones described below.)

Solicitors Regulation Authority (SRA)

The following SRA statement looks good on paper:

“As a regulator, we focus on the most serious issues, which are those that represent an underlying risk to the public. We only investigate further where to do so is a proportionate response to that risk. Our aim is to control or limit any risk of harm, uphold our standards and public confidence, and deter or prevent any repeat behaviour.”

but the actual application of it is a different matter.

My investigations have found that effectively speaking, members of the public are not considered to be qualifying complainants by the SRA: A solicitor needs to be reported to the SRA by another professional body (e.g. a Court, the Information Commissioner, or suchlike) for the SRA to take the report seriously. The SRA call themselves a ‘risk-based regulator’. Reports that the SRA receive from members of the public are kept on record and “can be used to identify trends and patterns of behaviour” when analysed alongside “reports from other sources”. Members of the public like me who engage with the SRA because the misconduct that they report “may result in follow-up action in the future”. If reported misconduct “does not form part of a pattern of behaviour”, there is little chance that the SRA will take action.

A principled person acts in a principled manner all the time, not just “when the Court is watching” or only “on the most serious issues”. A sane professional who knows that their Regulator takes all reported misconduct seriously just will not engage themselves in unethical behaviours.

If a report of unethical behaviour does not trigger an SRA investigation, the corrupt solicitor has no deterrent. Noone who employs the services of a lawyer does so in the hope that the lawyer will lie to them, misinform them and/or wilfully mislead them. Members of the public expect SRA Regulated solicitors to abide by the SRA Principles (which the Regulator uses to define ethical behaviour) at all times. Any detected non-conformity is a problem that needs to promptly be addressed. Since no one individual wants to work with a dishonest solicitor, it is safe to say that the public as a body wants zero tolerance-for-unethical-conduct. The service (offered by the Regulator) needs to meet the demand. If the SRA are not aiming for Zero Tolerance, the organisation is wholly unfit for purpose.

…What ethical reason is there for employing a ‘risk-based’ approach when zero tolerance is an attainable goal?

If they had been investigating every reported instance of misconduct, the SRA would have long ago eliminated just about all “risk of harm” to the public. Elimination is not their aim however, “[their] aim is to control”

The SRA’s Enforcement Strategy explains the approach employed by the SRA in regulating solicitors.

Independent Office for Police Conduct (IOPC)

An interesting statement was issued by an IOPC spokesperson when a complainant requested a Stage 2 review of a complaint that they had submitted. The complainant was told:

“It appears to be your mistaken belief that action will be taken against someone simply by raising a complaint against them despite the manager finding no evidence of wrong doing. This is not the case.” 

Interesting. Why is it not the case?

The complainant invested in submitting complaint because they wanted action to be taken (which is what most complainants hope for when they submit complaint). The complainant also submitted evidence and arguments to support the allegations. According to said IOPC spokesperson however, the complainant shouldn’t have even been asking for a review because “the manager” had spoken.

The IOPC spokesperson was later backed by their superiors which is very concerning.

Public Officials don’t have authority, the authority belongs to the office.  The public official has authority only as they act as agent for the office.

An example: Suppose it is alleged that a Police Officer was assaulted by a member of the public. Investigators will want to find out if indeed the officer was assaulted, AND they will want to find out if the officer was acting in the course of his official duties when he was assaulted. This because assaulting an on-duty Police Officer and assaulting an off-duty Police Officer are two very different things.

[See the reasoning in paragraphs 9 and 18 of Osman -v- Southwark Crown Court [1999] EWHC Admin 622]

When a Police Officer is off-duty, he does not carry the authority of the office but is just-another-member-of-the-public. Before he can exercise his authority as an Officer of the Law, he has to first change his duty status in accordance with the defined (and published) procedures.

Another example: An off-duty bus driver who is driving his family to the beach in their private car is not allowed to use the Bus Lane. He has to be on-duty AND be driving a bus to qualify to use the Bus Lane.

Back to the IOPC: The complainant is entitled to an independent and impartial internal review of the complaint handling “despite the manager finding no evidence of wrong doing” in the initial complaint handling.

Official actions are constituted when a duly appointed official performs an action in accordance with the defined, documented and published operational procedures.

Investigators considering official misconduct need therefore to consider two questions:

[1] The facts of the matter based on the evidence, i.e. what exactly happened

[2] Whether the official was acting in the course of their official duty when the actions took place.

Neil Darbyshire’s 2015 Spectator article on police corruption contains some shocking statistics. (Agree/disagree, he makes some valid points.)

 

In my view the problem is systemic and systematic. For as long as we demonstrate that we are willing to put up with it, the corruption will continue, and it can only get worse (as already is evident).

Social Work England (SWE)

When Social Work England first receive a concern it enters the “triaging” stage. A Panel known as a Decision Making Group (DMG) consider the complaint at Triage to determine whether further investigation is warranted. If a concern passes this stage it is proceeded to the “investigation” stage where case examiners then consider the case and determine how it should proceed.

In FOI Response of 15.02.2021 (their Ref: IR-336), Social Work England released the following information into the public domain:

“309 pre- case examiner stage cases have been referred from triage to investigation between 23 June 2020 and 25 January 2021, and 9 of these were closed before 25 January 2021, by the case examiners, the remaining 300 cases remain under investigations.”

Listen to that. According to the given statistic, the rate of case closure is 9 cases every 7 months (let’s work with a closure rate of ‘9 cases every 6 months for easy calculation’). At that rate – assuming that they received no new complaints that they deemed worthy of investigation after the 25th of January 2021 (which, of course, is highly unlikely) – Social Work England have enough cases to keep them busy for the next 16 years at least. Mind you 309 was not the total number of complaints that had been received by SWE during that period; 309 is just the ones that the DMG in their wisdom decided to progress (God knows what the size of the pool from which those 309 were taken actually was). Dysfunction doesn’t even begin to describe what’s going on in the SWE camp, this is perversion.

The responsibility for making sure that professionals practising the profession are fit to do so belongs to the Professional Body, but I have observed some Regulators just straight out ignoring the complaint (or somehow making it to disappear). I have also observed a couple of professional bodies refusing to accept a misconduct report submitted by a member of the public on the grounds that the complainant has not themselves completed a prescribed form.

That 15.02.2021 Social Work England quote again “300 cases remain under investigations”. Justice delayed is justice denied, we all know that. SWE are beyond useless.

We are being serviced by unregulated professionals, that’s what. According to my findings, the Professional Bodies are mainly just for show. Members of the public invest their time and effort into reporting professional conduct thinking that the professionals will be held to account when there is practically no accountability, none.

CILEx Regulation are arguably the worst of the lot… Try and think back to the last time you came across a Regulatory Body that does not assign Reference Numbers to the misconduct complaints that they receive? A CILEx spokesperson informed that they don’t need consent-to-handle-personal-information as they go about their pretend investigations; and they don’t owe the complainant progress updates of any sort. Why on earth would individual members of the public invest their time, effort and other resources into working with these bodies who don’t consider themselves to owe the complainant so much as an update? And why would the-public-as-a-body consent to have their personal information handled by a Regulator who operates in such a manner? How these Professional Bodies envision being able to carry out their public duties without public cooperation is beyond me.

Because it is not possible for a Public Official to wilfully abuse their office without damaging the public interest (however “small” the consequence may be), it’s not possible to form a valid contract that legalises things like ‘risk-based regulation’.

We will wrap up by returning to our original analogy: If a public official abuses his (or her) office he breaches the Social Contract. This is a strict liability criminal matter, not a civil matter. There is no defence for wilfully abusing one’s public office and there is no threshold number of affected individuals that needs to be met before the public official can be charged with the crime. The Public is a body; if you hurt one part of the body you hurt the entire body.

Misconduct in Public Office is an offence at common law triable only on indictment – which means that the Trial verdict (Re: the defendant’s culpability) lies to the jury.

As the name suggests, Misconduct in Public Office is not a ‘results crime’; there is no need to prove any particular consequences. Neither is it necessary to prove dishonesty or corrupt behaviour. The offence carries a maximum sentence of life imprisonment.

That’s all there is, there isn’t any more.

The philosophical article that comes next employs a first principles approach and shares an insightful analysis of the crisis situation that is the status quo.

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