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All you ever need to know about ‘misconduct in public office’…

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… but couldn’t be bothered to ask. Here’s a potted summary taken from the Law Commission, Crown Prosecution Service and independent legal advisors on the prospects of a successful prosecution being brought against Croydon’s borough bankrupters using this arcane offence

Misconduct in public office is an offence under Common Law – that is, it is built up from case law over many years, and not from any legislation by Parliament.

It is, therefore, much more difficult to be precise about defining offences. And that makes it much more difficult to bring a successful prosecution (although in recent times the charge has often been brought against police officers). Which is why the very cautious Crown Prosecution Service tends to advise against using misconduct in public office to bring someone to book.

Misconduct in public office carries a maximum sentence of life imprisonment.

The Law Commission looked at reforming misconduct in public office as recently as December 2020, when they recommended drafting legislation for two new, better-defined offences: “corruption in public office” and “breach of duty in public office”, both of which might have been handy to have on the statute book to deal with Croydon’s crisis-creators.

But the Conservative Government has spent the past two-plus-years playing musical chairs and partying in Downing Street instead.

As it stands, the offence of misconduct in public office, as defined by the Law Commission, “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”.

Party pals: Jason Perry and Chris Philp. Might their motivation for pursuing this be more about political advantage than achieving justice?

And the Law Commission noted: “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.” So that’s less than optimal, then.

Croydon South MP Chris Philp believes that the threshold for a successful prosection has been met in some cases around the council’s financial collapse. “A careful analysis of the Crown Prosecution Service’s guidelines suggests to me that the threshold has been met for the common law criminal offence of misconduct in public office,” he said today.

There remains just a suspicion that Tory Philp might be hoping for a political prosecution, to be brought by his party colleague Mayor Jason Perry, against some of the Labour figures who were at the centre of the omnishambles of a council between 2014 and 2020: the likes of Simon Hall and his former council leader, Tony Newman.

The CPS guidance of the common law criminal offence was included in the agenda papers ahead of today’s council disciplinary committee meeting.

That guidance defines “wilful” as “deliberately doing something which is wrong knowing it to be wrong or with reckless indifference as to whether it is wrong or not”.

The difference between the offences of murder and the lesser charge of manslaughter in English law is that in the former, the prosecution has to prove intent to kill. That sets the bar for prosecution much higher. The same high bar, proving intent, appears to apply with misconduct in public office.

The CPS guidance goes on to say that the consequences of the act are relevant (such as with the council’s bankruptcy) and that malice, bad faith or reckless indifference are all adequate motives to establish the offence. It says that the acts must amount to “an abuse of trust”.

The CPS advice goes on: “Examples of behaviour that have in the past fallen within the offence include:

Perhaps three of those points could apply in Croydon, in particular the “invention” of 5,000 extra households in the Council Tax calculation, with its fabricated revenue and misaccounting.

The CPS’s charging tests are that a prosecution is in the public interest and that there is a reasonable prospect of securing a conviction. That prospect of a successful prosecution may have been stronger had Katherine Kerswell, the council’s CEO since October 2020, acted sooner on the recommendations of the Penn Report and taken the matter to the police when she first received the report more than two years ago.

There are other legal options, which the council’s lawyers and external advisers have doubtless considered.

“Misfeasance in public office” is a civil matter, so a case can be brought for damages. It involves the abuse of public power or authority. Intention or recklessness must be proved, negligence is not sufficient.

Fraud is a criminal offence. It usually involves someone dishonestly making a false representation in order to gain for themselves or cause loss to another. There are strong grounds, according to auditors Grant Thornton’s second Report In The Public Interest into the Fairfield Halls refurbishment, that some of the contractual arrangements between the council and Brick by Brick were fraudulent.

The expected release today of the Kroll investigation report may move that forward – although Grant Thornton have repeated complained about the absence of much key documentation.

According to this website’s experienced legal adviser, Ebenezer Grabbit, of the firm Sue, Grabbit and Runne, “The courts and CPS are not keen on using misconduct in public office. It’s a Common Law offence, so is not set down in any statute. It’s regarded as ill-defined.

“Misfeasance in public office is also unlikely to be applicable, because of the difficulty of proving bad faith.

“And there are evidential problems with all the above. The auditors and others who were brought in after the council’s financial collapse in 2020 have repeatedly complained about a lack of records of meetings and key events, even an absence of proper contracts in some cases.

“This might be thought to be abuse of the system in itself, but it will be difficult to prove who was responsible for particular actions. The fact that elected councillors, paid council officials and the Government were all involved heightens the difficulty of pinning blame on particular individuals or groups.”


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