The Law Commission is undertaking a review of the criminal offence of misconduct in public office.
In recent years, there has been a significant increase in the number of attempted prosecutions and successful convictions under the auspices of this offence including: the prosecution of former MEP in relation to alleged irregularity in expenses claims, the conviction of a former Bishop in relation to relationships with trainee priests and the prosecution of health care professionals for engaging in relationships and sexual contact with patients.
This is a common law offence (meaning not codified by statute) set out in a leading 2004 Court of Appeal case as follows:
1. a public officer acting as such who:-
a. wilfully neglects to perform his duty and/or wilfully misconducts himself;
b. to such a degree as to amount to an abuse of the public’s trust in the office holder; and
c. without reasonable excuse or justification.
The Law Commission has noted that the concepts of public office and office holder lack clear definition. A public office is primarily defined by its functions and not its status; a public office does not need to be an “office” in any technical sense nor be a permanent position; the position does not need to be subject to specific rules of appointment, one of employment, a contractual position or remunerated and does not need to be directly linked to either the Government or the State.
Public Officers in Private Companies?
Where to draw the line between public and private is becoming increasingly challenging given the significant change in the relationship between the public and the private sector. It was recognised that it was no longer sustainable or practical to separate the two in respect of bribery prosecutions, which is one reason why the law was extended to the private sector with the Bribery Act 2010.
For the offence of misconduct in public office, the CPS and subsequently the Court will consider the nature of the duty undertaken rather than the organisation providing the services. In the case of R v Cosford and others  EWCA Crim 466 Lord Justice Levenson stated that:-
“whether [the service] is run directly by the state or indirectly through a private company paid by the state to perform the function does not alter the public nature of the duties of those undertaking the work: the responsibilities to the public are identical.”
There is nothing in the law as it stands that serves to automatically exclude any class of businesses or organisations.
As the level of Public Service Outsourcing continues to rise with justice, defence and welfare remaining the biggest markets, private sector businesses need to be mindful of the potential consequences of any misconduct that serves “to injure the public interest” (R v Dytham 1979 QB 722).
What about Registered Providers?
It is possible for the CPS and a jury to conclude that board members are responsible for the performance of a duty associated with a state function (i.e. “stewards of social housing assets”) and the duty is one which the public will have a significant interest in being performed (i.e. good management of social housing assets).
Whether the Housing Association is a Charity, Company limited by Guarantee, or part of a Group Structure is unlikely to have an impact on whether the CPS would consider prosecution.
It is possible that the misuse of public funds or any other wilful neglect on the part of a Housing Association Director, i.e. failure to notify the Regulator of any material issues, may amount to an abuse of the public’s trust. Although there is no precedent, this could result in a referral to the CPS directly or via a referral to the police.
Whether the Law Commission’s forthcoming draft bill will widen or narrow the scope of the offence remains to be seen. We will keep you updated on developments.
For advice on the criminal offence of misconduct in public office, please speak to a member of the Employment Team at Devonshires Solicitors LLP.