Corrupt public officials are as old as the hills, ancient Rome was a by word for graft and corruption. Samuel Pepys as Clerk to the Admiralty was also once arraigned for corruption.
Misconduct in Public Office is a common law offence, and considering the massive explosion in numbers of public officials since 1945, the numbers of people prosecuted under the this common law offence numbers in tens. So does this mean that our public sector is spectacularly uncorrupt given the temptations ?
Sadly not.
The oft quoted definition is from
Lord Mansfield QC in R v Bembridge 1783
The duty of the defendant is obvious; he was a trustee of the public and the Paymaster, for making every charge and every allowance he knew of… if the defendant knew of the omission… and if he concealed it, his motive must have been corrupt. That he did know was fully proved, and he was guilty, therefore, not of an omission or neglect, but of a gross deceit. The object could only have been to defraud the public of the whole, or part of the interest…a man accepting an office of trust, concerning the public, especially if attended which 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.
Public Corruption predated this hapless accountant in the employ of the Crown.
…even before Bembridge, the common law sought to criminalize the public officer who had the benefit of the privileged position of occupying a public office, but who failed to discharge his duties truly competently and for the public good. Thus, a constable who failed to act in accordance with his duty as an officer of the Crown was criminally liable in Makally’s Case (1611) whilst in Crouther’s Case (1600) a constable was prosecuted having refused to make a ‘hue and cry’ after being informed of a burglary.
So our forefathers took public corruption very seriously. Not so now as the following chart shows-
Number of Defendants proceeded against
Year Proceedings Issued Found Guilty
1998 Nil Nil
1999 1 1
2000 5 1
2001 3 1
2002 5 2
2003 Nil 3
2004 3 9
2005 10 4
2006 8 18
2007 21 16
The trend is clear in this underused piece of common law. However the threshhold is now so high in bringing an indictable case of misconduct in public office that prosecutors will always consider whether other lesser statutory offences can be utilised. For our
MP's caught up in the expenses scandal, prosecutions were brought for the lesser charges either false accounting or under the Theft Act, rather than the common law offence of misconduct in public office. Whose definition is set out in the CPS Guidance November 2007.
a) A public officer acting as such.
b) Wilfully neglects to perform their duty or misconducts themselves.
c) To such a degree as to amount to an abuse of the public’s trust in the officer holder.
d) Without reasonable excuse or justification
It is fairly clear that various MP's and members of the Lords should have been charged under Misconduct in Public Office which has a maximum sentence of life imprisonment.
In 1997, the Committee on Standards in Public Life recommended a statutory offence be created. The Labour Government and Jack Straw were not keen.
This is proving particularly tricky and no decision has yet been taken on which categories of public servant might be included. It may, as you say, prove necessary to examine the statutory duties of Members and Ministers in this context. We are conscious that we need to avoid unnecessary overlaps between any new offence and existing offences, civil remedies and disciplinary codes. Clearly, we do not wish to capture conduct which can be best left to disciplinary procedures or other effective mechanisms. Equally, however, there would be presentational difficulty in excluding certain categories of public servant from the scope of any new offence.
Jack Straw- Home Secretary 1998
Basically a carte blanche to any public official who wished to abuse the public trust.
Damian McBride safely ensconced in Number 10 had little to fear from the Common Law.
Astoundingly while not tackling public sector corruption , the State went after people who were not directly involved in public office.
One recent case is that of R v Kearney and Murrer 2008. Sally Murrer was a local journalist for the Milton Keynes Citizen newspaper. She was charged by Thames Valley Police with “aiding and abetting misconduct in public life”. She was accused of helping Mark Kearney, a former detective for Thames Valley Police, to leak police secrets over the period of November 2006 to April 2007.13 On 25 November 2008 her trial collapsed because the judge held that the prosecution had breach the Article 10 of the Human Rights Act 1998, which relates to freedom of expression.
The last Labour Government then formulated the
Bribery Act 2010 which is largely directed at stopping members of the public bribing 'innocent' public servants ! The premise being that public officers good, public bad.
Jack Straw as The Secretary of State for Justice and Lord Chancellor finally killed off any prospect of a statutory offence in answer to Peter Bone MP on the 9th December 2008.
The higher courts have made it clear that the threshold for the common law offence of misconduct in public office is a high one. A unifying factor appears to be the existence of some improper, dishonest or oppressive motive in the exercise or refusal to exercise a public function rather than a mere abuse of power. The Committee on Standards in Public Life, in a consultation paper in 1997, recommended the partial replacement of this common law offence of misconduct in public office with a new statutory offence of misuse of public office. In 1998, as Home Secretary, I reported to a parliamentary Joint Committee on the difficulties of defining the proposed new offence. The Joint Committee on the Draft Corruption Bill concluded in 2003 that such a Bill was not the appropriate vehicle for giving a statutory definition of misconduct in public office. I am unaware of any representations made to me since on this matter
Later during Questions to the Secretary of State for Justice, the following exchanges
Mr. Straw:
The issue has not arisen, but when it has been more calmly looked at, the nature of the offence of misconduct in public office, albeit as a common law offence, which the higher courts have defined and refined in recent years, has met with general approbation. I know of no direct provenance for the hon. Gentleman’s suggestion that, even if there is continued, wilful misconduct by an official in breach of their office, the criminal law should [not] apply. That would be a very odd circumstance. I do not wish to comment on current investigations, and I shall not.
Since then we have had the expenses scandal and the case of
Gordon Foxley who managed to retain £1.5 m of his proceeds of crime and latterly
Ali Dizaei in February 2010. I suspect that these cases are just the tip of the iceberg and while the Government refuses to put the public sector on notice this abuse will continue.
Public Corruption is the third oldest profession, a large State is a breeding ground for corruption.