Earlier this month, the Law Commission launched its second public consultation on the law of misconduct in a public office, following widespread criticism of the common law offence which carries a maximum sentence of life imprisonment.

The current law, as defined in the ‘AG’s Reference’ case , essentially provides that a ‘public officer’ commits an offence where they wilfully neglect to perform their duty and/or wilfully misconduct themselves to such a degree as to amount to an ‘abuse of the public’s trust’ in that office holder, and without reasonable excuse or justification.

Whilst recent years have seen an increase in the amount of people being prosecuted for this offence, including a number of high profile scandals, this has also lead to greater scrutiny of the current legal framework.

The result has been calls for the law to be placed on a statutory footing, thereby removing the current uncertainty and ambiguity surrounding the offence and, it is hoped, ensuring that public officials are held properly accountable for misconduct committed in connection with their official duties.

As the law currently stands, there is no accepted definition of ‘public officer’ and the CPS guidance instead advises that ‘each case must be assessed individually, taking into account the nature of the role, the duties carried out and the level of public trust involved’.

This has been held to include a coroner, police officer, army officer, local councillor and member of the Independent Monitoring Board for Prisons. Indeed, just last week, we learnt that six men have been charged with misconduct in a public office following reports of abusive behaviour at the disgraced young offenders centre, Medway STC.

However, in our experience representing many survivors of abuse in schools, care homes, hospitals and juvenile settings, it is still unclear whether, and in what circumstances, this could cover members of senior staff such as directors, governors or care managers.

Such people, whilst not necessarily committing direct acts of abuse themselves, will nonetheless have a degree of accountability for the fact that they employed the abusive staff and/or were responsible for the systems and working environment in which they were able to operate in the first place.

One of the main difficulties here is proving that that individual had the requisite knowledge to satisfy the criminal burden of proof. As the law of misconduct in a public office currently stands, the office holder must be aware (whether that be through actual knowledge or recklessness) that their behaviour is capable of amounting to misconduct or neglect, as the act or omission must be ‘wilful’. This can be extremely difficult, or near enough impossible, to prove.

One of the potential answers to this, forming part of the current consultation, is to introduce two new offences. These are:

  1. Breach of duty on the part of a public office holder (as defined by statute) who has duties concerned with the prevention of harm, that causes or risks causing serious harm (and crucially this means direct harm); and
  2. Corrupt behaviour on the part of any public office holder (where a public office holder abuses their position of power or authority, by exercising that position with the purpose of achieving a personal advantage or causing detriment to another, and the exercise of that position for that purpose is ‘seriously improper’).

Such proposals are clearly welcome insofar as they do not appear to require such a high degree of knowledge on the part of the office holder, and indeed are preferable to the Law Commission’s alternative proposal of abolition of the current law without replacement, but there are many scenarios which would fall outside the parameters of these offences.

Where ill-treatment or neglect is alleged, an alternative option may instead be to bring a prosecution under sections 20-25 of the Criminal Justice and Courts Act 2015. These provisions essentially mirror the offence of ‘ill-treatment or neglect of a person who lacks capacity’ under section 44 of the Mental Capacity Act 2005, but the crucial difference is that the 2015 Act covers care-providers as well as care-workers.

Notably, care-providers include both bodies that provide or arrange for the provision of health or social care, and individuals who provide such care and employ/arrange for other persons to assist them in providing care.

Under section 21, a care-provider will be guilty of an offence where:

  • An individual who is part of the care provider’s arrangements (e.g. an employee) ill-treats or wilfully neglects an individual in their care;
  • The care provider’s activities are managed or organised in a way which amounts to a ‘gross breach’ of a relevant duty of care owed to that individual; and
  • In the absence of that breach, the ill-treatment or wilful neglect would have been less likely to occur.

Whilst the introduction of these offences is clearly a significant step forwards in ensuring greater accountability and safeguards against abuse and ill-treatment, the requirement to prove a gross breach on the part of the employer, and deliberate or reckless acts on the part of the employee, means that it is limited to the most serious cases.

What’s more, the Act does not cover many educational establishments and residential settings, including children’s homes, and to date there have been very few reported cases of it being successfully prosecuted.

In cases that do not meet the threshold for the above offences (or at least where this cannot be proved), but where there are nonetheless clear failures on the part of an employer or a member of senior staff, one of the final options may be section 33 of the Health and Safety at Work Act 1974.

This provides that is an offence for an employer to fail to discharge his/her duty under section 3 to conduct his/her undertaking ‘in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health and safety’.

Notably, this does not require such a high degree of knowledge, but the offence is limited in that it carries a maximum sentence of only two years’ imprisonment or an unlimited fine.

Furthermore, even where a successful prosecution is brought against an individual under this Act, worryingly this does not result in an automatic referral to the Disclosure and Barring Service (DBS) or to that person being automatically barred from working with vulnerable children or adults in the future.

Whilst employers have a legal duty to refer employees to the DBS where certain conditions are met, such as where they think an employee has endangered a child or vulnerable adult, this does nothing for accountability at a managerial level, and sends out the very opposite message.

The same referral arrangements apply for any prosecutions brought under section 37 of that Act, whereby a director, manager, secretary or ‘other similar officer’ may be found guilty of an offence where a health and safety offence has been committed by a corporation with that persons ‘consent or connivance’ of that person, or their neglect has contributed towards that offence.

In our experience representing many survivors of abuse, the importance of accountability for ensuring closure and positive change cannot be underestimated. Whilst we welcome the Law Commission’s current proposals and will await the outcome of the consultation with optimism, it is crucial that the impetus for further legal and systemic change is not lost, and that we continue to call for greater transparency and accountability at all levels.