Misconduct in public office [2020] EWLC 397 (December 2020)

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Law

Commission

Reforming the law

LC 397

Misconduct in public office

Presented to Parliament pursuant to section 3(2) of the Law Commissions Act 1965

Ordered by the House of Commons to be printed on 3 December 2020

© Crown copyright 2020

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ISBN 978-1-5286-2279-0

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The Law Commission

The Law Commission was set up by the Law Commissions Act 1965 for the purpose of promoting the reform of the law.

The Law Commissioners are:

The Right Honourable Lord Justice Green, Chairman

Professor Sarah Green

Professor Nicholas Hopkins

Professor Penney Lewis

Nicholas Paines QC

The Chief Executive of the Law Commission is Phil Golding.

The Law Commission is located at 1st Floor, Tower, 52 Queen Anne's Gate, London SW1H 9AG.

The terms of this Report were agreed on 6 November 2020.

The text of this Report is available on the Law Commission's website at

http://www.lawcom.gov.uk.

Contents

Page

Background to the project

The structure of this report

Acknowledgments

Introduction

History of the offence of misconduct in public office

Current law

Other relevant laws

Introduction

Key problems with the current offence

Abolition without replacement?

Our proposed model of reform

Introduction

Current law

Why we need a clear definition of public office

Comparative approaches in other jurisdictions

Policy objectives for a new definition

Our provisional proposals and consultees’ responses

Our conclusions and recommendations

Introduction

Current law and practice

Consultation paper proposals and responses Reflections on concerns raised in consultations regarding serious impropriety

Proposal for a new offence of “corruption in public office”

A public interest defence

Sexual misconduct and the corruption offence

Labelling the replacement offence

Repeal of section 26 of the Criminal Justice and Courts Act 2015

Introduction

Current law and practice

Consultation paper proposals and responses

Reflections following consultation responses

Recommended breach of duty offence

CORRUPTION AND BREACH OF DUTY OFFENCES

Introduction

Mode of trial

Accessorial liability

Inchoate liability: encouraging or assisting, conspiracy and attempt

Intoxication

Corporate liability

Jurisdictional issues

Welsh devolution implications

Maximum penalties

PROSECUTE

Introduction

Prosecutorial discretion and guidance

Consent to prosecute

Introduction

Forms of sexual misconduct prosecuted under the current offence

What we said in our consultation paper

Consultation responses

Conclusions following consultation responses

164

168

APPENDIX 1: LIST OF RESPONSES TO CONSULTATION PAPER       178

Misconduct in public office

To the Right Honourable Robert Buckland QC MP, Lord Chancellor and Secretary of State for Justice

BACKGROUND TO THE PROJECT

In our view, the current law on misconduct in public office remains unsatisfactory, not least because it is punishable with up to a life sentence. We recommend that the

Law Commission re-visit its 1997 recommendation that misconduct in public office be made a statutory offence, in the light of developments of the past dozen years.3

recommendations.

History of the offence and calls for reform

Here there are two principles applicable: first that a man accepting an office of trust concerning the public, especially if attended with profit, is answerable criminally to the king for misbehaviour in his office: this is true, by whomever and whatever way the officer is appointed [...]

Secondly, where there is a breach of trust, fraud or imposition, in a matter concerning the public, though as between individuals it would only be actionable, yet as between the King and the subject it is indictable. That such should be the rule is essential to the existence of the country.

Commission into Standards of Conduct in Public Life” and was chaired by the Rt Hon Lord Salmon. This followed allegations of corruption within local government. As part of its work, the Salmon Commission highlighted the challenges of attempting to put the common law offence of misconduct in public office on a statutory footing, and recommended not doing so. 14More generally, the Salmon Commission recommended that for the purpose of corruption offences, public bodies should be defined as broadly as is compatible with certainty.15 It was noted that “the boundaries of the public sector will, in the last resort, be arbitrary and there are bound to be some perplexing cases at the fringes”.16

It is no part of the purpose of this judgment to seek to revisit the formulation of the offence as enunciated in [AG’s Reference] although that might, in the future, become necessary.29

This is without doubt a difficult area of the criminal law. An ancient common law offence is being used in circumstances where it has rarely before been applied.30

The Law Commission’s review

abolished, retained, restated or amended; and

Issues paper

Consultation paper and options for reform

Consultation and subsequent policy development

Our recommendations

THE STRUCTURE OF THIS REPORT

ACKNOWLEDGMENTS

INTRODUCTION

HISTORY OF THE OFFENCE OF MISCONDUCT IN PUBLIC OFFICE

Here there are two principles applicable: first that a man accepting an office of trust concerning the public, especially if attended with profit, is answerable criminally to the King for misbehaviour in his office: this is true, by whomever and whatever way the officer is appointed [...]

Secondly, where there is a breach of trust, fraud or imposition, in a matter concerning the public, though as between individuals it would only be actionable, yet as between the King and the subject it is indictable. That such should be the rule is essential to the existence of the country.41

the question has always been, not whether the act done might, upon full and mature investigation, be found strictly right, but from what motive it had proceeded; whether from a dishonest, oppressive, or corrupt motive, under which description fear and favour may generally be included, or from mistake or error. In the former case, alone, they have become the objects of punishment.43

Development of the law in the 20th century

Revival of the offence in the 21st century

cannot be satisfactorily reflected by any other offence;

interests, it may reflect more effectively the severity of the unlawful passing of that information than other data protection and official secrets offences; and

Attorney General’s Reference (No 3 of 2003)

Developments since AG’s Reference

Table one: Crown Prosecution Service (“CPS”) data for annual number of prosecutions commenced in the magistrates’ courts of England and Wales, relating to the common law offence of misconduct in public office56

2005

2006

2006

2007

2007

2008

2008

2009

2009

2010

20102011

2011

2012

2012

2013

2013

2014

2014

2015

2015

2016

2016

2017

2017

2018

24

29

72

55

93

148

93

94

95

137

93

81

83

Table two: Ministry of Justice data on prosecutions proceeded against and convictions entered

Year

2013

2014

2015

2016

2017

2018

Prosecutions

55

93

148

93

94

95

Convictions

40

42

50

38

34

25

In our judgment it is clearly established that when the crime of misconduct in a public office is committed in circumstances which involve the acquisition of property by theft or fraud, and in particular when the holder of a public office is alleged to have made improper claims for public funds in circumstances which are said to be criminal, an essential ingredient of the offence is proof that the defendant was dishonest.62

In a general sense, of course, the public would be concerned by any example of a breach of the individual duty (such as occurred in this case) but that is not to say that there is a duty to the public which is different from, or additional to, the general duty owed to the individual. There is not.65

Operation Elveden

Undercover policing investigation

The Hillsborough disaster

CURRENT LAW

First element: a public officer acting as such

Public office

'A person acting in an official capacity' in section 134(1) of the Criminal Justice Act 1988 includes a person who acts or purports to act, otherwise than in a private and individual capacity, for or on behalf of an organisation or body which exercises, in the territory controlled by that organisation or body and in which the relevant conduct occurs, functions normally exercised by governments over their civilian populations. Furthermore, it covers any such person whether acting in peace time or in a situation of armed conflict.87

Acting as such

It was not sufficient to say that he made the statements when in office as a MP and/or Mayor of London, and that "the public offices held by Mr Johnson provide status but with that status comes influence and authority" (see para 12 above). That does no more than conclude that he occupied an office which carried influence. This ingredient requires a finding that as he discharged the duties of the office he made the claims impugned. If, as here, he simply held the office and whilst holding it expressed a view contentious and widely challenged, the ingredient of "acting as such" is not made out.88

Save to the extent that it arose from his employment as a police officer the misconduct did not take the form of a breach of or failure to perform his duties as a police officer.89

Second element: wilfully neglecting to perform his or her duty and/or wilfully misconducting him or herself

Wilfully neglecting to perform a duty

Wilful misconduct

The fault element - “wilfulness”

There must be an awareness of the duty to act or a subjective recklessness as to the existence of the duty. The recklessness test will apply to the question whether in particular circumstances a duty arises at all as well as to the conduct of the defendant if it does. The subjective test applies both to reckless indifference to the legality of the act or omission and in relation to the consequences of the act or omission.101

Third element: to such a degree as to amount to an abuse of the public’s trust in the office holder

It was sufficient to prove that he had the means of knowledge available to him to make the necessary assessment of the seriousness of his misconduct; the assessment was for the jury.105

Fourth element: without reasonable excuse or justification

the phrase “without justification or reasonable excuse” meant no more than acting culpably or in a blameworthy fashion. Bearing in mind that if the jury were to conclude (as they did) that the standard of the appellant’s behaviour fell so far below that which was to be expected as to amount to an abuse of the public trust in him, it is impossible to see how the jury would equally not have concluded that the conduct was culpable.112

OTHER RELEVANT LAWS

Corrupt or other improper exercise of police powers and privileges

privileges” was introduced.119

A police constable exercises the powers and privileges of a constable improperly if—

Tort of misfeasance in public office

Chapter 3: The case for reform

INTRODUCTION

KEY PROBLEMS WITH THE CURRENT OFFENCE

Lack of clarity

The definition of “public office” and “acting as such”

The fault element

The seriousness threshold

“Without reasonable excuse or justification”

Overreach and overuse

Overreach

The jailing of journalists and editors for newsgathering, provided it was information not of a restricted or classified kind, does raise questions as to proportionality.

And if you have a vague law which applies to the newsgathering and editorial decisions, you have the risk that people will not report things that are in the public interest for fear of transgressing a vague law.151

The case has rightly been subject to criticism and in our view, was not a case about the abuse of public trust. There was no breach or failure to perform the duties of a public officer. It was a simple case of dishonesty and ought to have been charged as such.152

Overuse

An imprecise “catch all” offence

we do not consider that, in future ... a charge of misconduct in public office should routinely be added, as an alternative, to a charge of manslaughter by gross negligence on the basis that it may be difficult to establish causation.154

Table three: Prosecutions and convictions for the offence of “corrupt or other improper exercise of police powers and privileges” contrary to section 26 of the Criminal Justice and Courts Act 2015

2015

2016

2017

2018

2019

Prosecutions

0

3

1

2

5

Convictions

0

2

0

1

3

Targeting the wrong offenders?

Conclusions on the future of the common law offence

We agree that the existing complexity inherent in this common law offence is such that the need for reform is indeed pressing.158

Given the extent and fundamental nature of the problems with the current offence our provisional view is that we should not propose, as reform options, either its retention or codification.159

Recommendation 1.

ABOLITION WITHOUT REPLACEMENT?

Conduct that is uniquely criminalised by misconduct in public office

prison by public office holders.169

Harms and wrongs in the current offence

Harm to the public interest

Wrongs

governmental powers or positions for improper motives or in an oppressive or extortionate way; and

Comparing the offence and the underlying harms and wrongs

A different theoretical approach: Horder and the use of the “role” theory of criminalisation

it is part of the role . - a matter of high obligation - to behave in a restrained and civilised manner. Further, it is a stain on the police service if there are some officers

Our assessment of Horder’s arguments

Example One:

A junior Police Constable, Jack, uses his contacts to find out what a particular Assessment Centre will be asking in interviews to recruit new police officers. Jack knows that his friend Sarah, from school, really wants to be a police officer. He tells Sarah the questions that will be asked at interview, and gives her unauthorised access to the content of the written exercises, verbal ability tests and interactive exercises. Sarah attends the Assessment Centre but is very nervous and gives poor responses.

operates in a consistent and proportionate way. Horder’s model is a more purist theoretical one, which we are concerned would not address the fundamental concerns with the current offence, notably clarity and certainty, which we identified earlier in this chapter.

Approaches taken in other relevant jurisdictions and international law

Each State Party shall consider adopting such legislative and other measures that may be necessary to establish as a criminal offence, when committed intentionally, the abuse of functions or position, that is, the performance of or failure to perform an act, in violation of laws, by a public official in the discharge of his or her functions, for the purpose of obtaining an undue advantage for himself or herself or for another person or entity.

The risks of decriminalisation

Consultation responses

The IPCC considers that abolition without replacement would create unacceptable gaps in the criminal law. Disciplinary sanctions for the kinds of conduct discussed in this response would not adequately reflect the seriousness of such conduct.

Moreover, in the case of retired officers, staff and contractors, option 3 could result in such failings going completely unpunished.

should be abolished and if necessary specific reforms of certain statutes can take place to criminalise serious offending by public officials.

the nation managed perfectly well for most of the 20th century when there were only a handful of MIPO prosecutions per year and perhaps it could manage without MIPO at all.192

Conclusion

Recommendation 2.

OUR PROPOSED MODEL OF REFORM

Key reform objectives

Our recommendations for two statutory offences

Recommendation 3.

Chapter 4: A definition of public office holder

INTRODUCTION

CURRENT LAW

The test of “public office” outlined in Cosford

the responsibilities of a nurse (whether trained as a prison officer or not) in a prison setting are not only for the welfare of the prisoners (their patients); they are also responsible to the public for, so far as it is within their power to do so, the proper, safe and secure running of the prison in which they work.195

it is unsatisfactory that each of the recent decisions in this area has required the court to trawl through the authorities to try to discern a thread which accurately represents the true position and can be translated into modern employment conditions. In this regard, it is entirely laudable that the Law Commission intends to revisit the ambit of the offence of misconduct in public office. 196

Assessing the Cosford test

WHY WE NEED A CLEAR DEFINITION OF PUBLIC OFFICE

COMPARATIVE APPROACHES IN OTHER JURISDICTIONS

Across these jurisdictions, a variety of different approaches to defining public office are taken. We have considered the potential applicability of these approaches in England and Wales, and outline some of the key models below.

Canada

Australia

and includes, whether or not the person is remunerated:

a person having public official functions, or acting in a public official capacity, and includes the following:

State or another Territory;

New Zealand

members of Parliament, 211law enforcement officers212 and officials.213 “Official” is further defined as:

any person in the service of the Sovereign in right of New Zealand (whether that service is honorary or not, and whether it is within or outside New Zealand), or any member or employee of any local authority or public body, or any person employed in the education service within the meaning of the State Sector Act 1988.214

Republic of Ireland

Scotland

Hong Kong

Examine what, if any, powers, discretions or duties have been entrusted to the defendant in his official position for the public benefit, asking how, if at all, the misconduct alleged involves an abuse of those powers.219

POLICY OBJECTIVES FOR A NEW DEFINITION

OUR PROVISIONAL PROPOSALS AND CONSULTEES’ RESPONSES

How “public office” could be defined

How the definition of public office could be set out in statute

On balance we favour option (3), in the interests of certainty: predicting which individuals would be caught by the offence on the basis of the other options seems unlikely to be straightforward, and we consider it important that it should be absolutely clear to public office holders whether in some circumstances they would be at risk of committing a criminal offence as opposed to simply being susceptible to disciplinary proceedings.

a [function based] definition of ‘public office’ that cross-refers to a schedule of positions constituting public office. This would have the advantage of certainty ... provided that there is capacity for periodic review of the list.

OUR CONCLUSIONS AND RECOMMENDATIONS

Life222 in previous considerations of the offence. Our recommendations therefore inevitably reflect a compromise that we consider strikes the best balance for the future operation of our replacement offences.

Recommendation 4.

Stage 1: a list of positions that can amount to public office

who are members of non-departmental public bodies (such as advisory committees, Independent Prison Monitoring Boards, specialised legal tribunals, and regulators) which exercise one or more public functions. These individuals are generally not civil servants and are therefore listed separately.

Recommendation 5.

employees of Parliament and the Senedd Cymru;

Recommendation 6.

Additionally, the government should consider whether there are any other discrete Crown appointments that should be excluded on the basis that they have little or no relevant connection to public office.

Amendment of the list

Recommendation 7.

Stage 2: Functional tests within each offence

Corruption model

Breach of duty model

Exclusion of the provision of health care and education from both offences

Recommendation 8.

INTRODUCTION

A draft, illustrative clause - offence of corruption in public office

CURRENT LAW AND PRACTICE

CONSULTATION PAPER PROPOSALS AND RESPONSES

Consultation responses to the provisional proposed model for a corruption offence

impropriety;

Should benefit and detriment be further defined and, if so how?

Will it include intangible benefits (goodwill, promotion prospects etc) or only those that can be quantified in a proprietary way? If the definitions are drawn too broadly, there is a danger that anyone could show some form of benefit or detriment and the courts will become confused over the nature and purpose of the offence.

... if they are defined too narrowly (eg by being tied to financial benefits or detriment) then some types of corrupt behaviour would not be captured (eg where a person acts in return for sexual favours) .

The definition (of benefit/detriment) needs to be wide enough to cover the many ways the office can be abused, including causing embarrassment or inconvenience to another or improving one’s standing or opinion amongst others.

The threshold of “seriously improper”

The inclusion of this extra restraining element is inappropriate and anomalous. If a public official abuses his or her position with a view to benefitting themselves or causing detriment to another, that is already a serious wrong in as much as it is a betrayal of their position. Either that is sufficient to justify criminalisation in itself, or it is not. It should not need to be dragged over the criminalisation line by reference to a ‘seriously improper’ criterion.

Would the requirement of “serious impropriety” be too uncertain and difficult to apply?

We would argue that “seriously improper” is no clearer a threshold than the “abuse of public trust” threshold contained in the current offence. While we recognise the problem identified by the Commission that the current seriousness threshold is potentially uncertain and circular, we consider this to be a problem with seriousness thresholds in general. To substitute one subjective threshold with another would do little more than indicate a departure from the current threshold and the case law that underlies it, which is bound to create more uncertainty rather than less.

We are further concerned that the phrase "seriously improper" imports a consideration of what the "proper" exercise of power would have been, which in turn may result in reliance on expert opinion at trial when we consider this issue should more properly be left to the jury to decide.

The relevance of the defendant’s subjective mental awareness of the wrongdoing

REFLECTIONS ON CONCERNS RAISED IN CONSULTATIONS REGARDING SERIOUS IMPROPRIETY

Sellu,251 where in the context of a gross negligence manslaughter trial, the jury had not been:

assisted sufficiently to understand how to approach their task of identifying the line that separates even serious or very serious mistakes or lapses, from conduct which, to use the phrase from the above direction, was “truly exceptionally bad and was such a departure from that standard [of a reasonably competent doctor] that it consequently amounted to being criminal”.252

particularly having regard to the principle of minimal criminalisation254 and the need to avoid overreach or misapplication of the offence.255 Views may legitimately differ on this point, but the weight of consultation responses favoured this approach.

PROPOSAL FOR A NEW OFFENCE OF “CORRUPTION IN PUBLIC OFFICE”

First element: “Public office holder”

Second element: the use, or failure to use, a “public position or power”

Use of a “position or power”

- Statute:

o Offence of abuse of office: “does or directs to be done, in abuse of the authority of the person’s office, any arbitrary act prejudicial to the rights of another”;269

o Offence of misconduct in public office: “deals with information gained because of office; or performs or fails to perform a function of office; or does an act or makes an omission in abuse of the authority of office”.270

Each State Party shall consider adopting such legislative and other measures that may be necessary to establish as a criminal offence, when committed intentionally, the abuse of functions or position, that is, the performance of or failure to perform an act, in violation of laws, by a public official in the discharge of his or her functions, for the purpose of obtaining an undue advantage for himself or herself or for another person or entity.

Failure to use a “public position or power”

In our view this would be necessary to capture instances where a public officer permitted his/her staff to carry out acts conceived by them but which would benefit the public officer or cause a detriment to an opponent of the public officer. Whilst a conspiracy charge could be preferred it might be more appropriate, depending on the facts, to charge the public officer alone.

Third element: for the purpose of achieving a benefit or detriment

“benefit” and “detriment” mean any benefit or detriment, whether or not in money or other property and whether temporary or permanent ..

Fourth element: a reasonable person would consider the behaviour was seriously improper

In deciding whether the behaviour was seriously improper, factors that the jury should be directed to consider should include (where relevant):

Fifth element: the defendant realised that an ordinary decent person would regard the behaviour as seriously improper

If yes:

Recommendation 9.

Recommendation 10.

“benefit” and “detriment” mean any benefit or detriment, whether or not in money or other property and whether temporary or permanent.

Recommendation 11.

relation to vulnerable individuals;

institution to which the public office relates, or public institutions more generally.

A PUBLIC INTEREST DEFENCE

5.101 In the 2015 case of Chapman,285 which concerned a prison officer selling stories to a journalist relating to a high-profile prisoner, the Court of Appeal stated that in these circumstances, an assessment of the “public interest” was critical to the determination of whether the offence of misconduct in public office had been committed. More specifically, the Court of Appeal held that an assessment of the “public interest” was determinative of whether the seriousness threshold - “to such a degree as to amount to an abuse of the public’s trust in the office holder” - had been satisfied in the context of an unauthorised release of information to the press. Lord Thomas CJ outlined the reasoning of the Court as follows:

We therefore turn to examine the second way in which the standard of seriousness can be judged — by reference to the harm to the public interest. In our view, in the context of provision of information to the media and thus the public, that is the way in which the jury should judge the seriousness of the misconduct in determining whether it amounts to an abuse of the public's trust in the office holder. The jury must, in our view, judge the misconduct by considering objectively whether the provision of the information by the office holder in deliberate breach of his duty had the effect of harming the public interest. If it did not, then although there may have been a breach or indeed an abuse of trust by the office holder vis a vis his employers or commanding officer, there was no abuse of the public's trust in the office holder as the misconduct had not had the effect of harming the public interest.

No criminal offence would have been committed. In the context of a case involving the media and the ability to report information provided in breach of duty and in breach of trust by a public officer, the harm to the public interest is in our view the major determinant in establishing whether the conduct can amount to an abuse of the public's trust and thus a criminal offence. For example, the public interest can be sufficiently harmed if either the information disclosed itself damages the public interest (as may be the case in a leak of budget information) or the manner in which the information is provided or obtained damages the public interest (as may be the case if the public office holder is paid to provide the information in breach of duty).286

5.102 We agree with the Court of Appeal that assessment of the “public interest” is of importance in certain circumstances that are captured within the current offence, and would remain so in our recommended corruption offence; most notably the unauthorised use or disclosure of information by a public office holder. We confine the scope of our recommendation for an explicit public interest defence to our proposed corruption offence.

5.103 We provisionally expressed the view in our consultation paper that, beyond the common law defences such as duress and necessity, no additional defences should apply to our replacement corruption offence. A majority of responses agreed with this proposal, however none did so emphatically. The Bar Council and Criminal Bar Association, for example, were undecided in whether to support this proposal or not, with some of their members agreeing and some disagreeing. Public Concern at Work argued strongly that a public interest defence should be introduced:

We believe a codified law on misconduct in public office should explicitly include a public interest defence which can be used by whistleblowers accused of the offence, so as to make it consistent with the freedom of expression protected by common law and Article 10 of the ECHR.

5.104 Having given further detailed consideration to this question, we now consider it necessary to ensure that the defences recognised at common law, particularly that in Chapman, are reflected in the replacement corruption offence. We consider that this is best achieved as a separate defence - a statutory “public interest” defence - that would be available in certain, limited circumstances - most likely in the context of unauthorised use or disclosure of official information (see further paragraphs 5.123 to 5.131). This approach would therefore reformulate and recast two existing aspects of the current offence: the Chapman public interest test and the defence of “without reasonable excuse or justification” as outlined in AG’s Reference.287

A true public interest defence

5.105 A public interest defence is a justification of criminal conduct. It allows a defendant to plead that his or her conduct, though otherwise criminally culpable, should not be criminalised in this instance because circumstances exist that mean the conduct had a net benefit to the public.

5.106 Defences that rely upon concepts such as public good and public interest are unusual in the criminal law of England and Wales. Ordinarily, criminal defences do not require the jury to make a value judgement about the wider benefits of the defendant’s conduct. In the context of a public interest defence, the jury are being asked to balance competing interests which are likely to be far outside their realm of experience.

5.107 There are, however, defences in the criminal law of England and Wales that are similar to public interest defences. The common law defence of necessity is one.288 Another is the defence of “acting reasonably” in section 50 of the Serious Crime Act 2007, which provides a general defence to offences of encouraging or assisting crime under that Act. Moreover, the “public good” defences found in obscenity law allow certain justifications for the publication of obscene material. Section 4(1) of the Obscene Publications Act 1959, for example, states that a person who publishes an obscene article contrary to section 2 of that Act shall not be convicted if publication of the article is “justified as being for the public good on the grounds that it is in the interests of science, literature, art or learning, or of other objects of general concern”. Both of these statutory defences carry reverse legal burdens (see further paragraph 5.111 and following). The prosecution and the defence are entitled to call expert witnesses to establish whether the publication may be justified as being for the public good. A “public good” defence in obscenity law does not amount to a denial of harm. The article remains obscene, but its obscenity is justified on the grounds that its publication is in the “public good”.

5.108 While there are few examples of true public interest defences in the criminal law of England and Wales, very narrow public interest defences are set out in section 20 of the Commissioners for Revenue and Customs Act 2005 and section 3 of the Agricultural Statistics Act 1979. Furthermore, legislative reforms in recent years have also resulted in additional defences, in the context of unauthorised disclosure. For example, section 41 of the Digital Economy Act 2017, provides that the offence of disclosing relevant confidential personal information is not made out if the disclosure is made for the purposes of: preventing serious physical harm to a person; preventing loss of human life; safeguarding vulnerable adults and children; responding to an emergency; or protecting national security.289 Section 170(3) of the Data Protection Act 2018290 provides that it is a defence to the offence of knowingly or recklessly obtaining or procuring personal data without consent,291 if the person acted “in the reasonable belief that in the particular circumstances the obtaining, disclosing, procuring or retaining was justified as being in the public interest”.292

An objective test

5.109 The assessment of whether the “seriously improper” conduct is nevertheless in the “public interest” should be determined objectively. It would be insufficient if the office holder merely believes his or her conduct to be in the public interest; it should be manifestly so.

Burden of proof

Compliance of a reverse burden with Article 6(2)

the public interest will be prejudiced to an extent which justifies placing a persuasive [legal] burden on the accused. The more serious the punishment which may flow from conviction, the more compelling must be the reasons.296

Practical application of the defence

Chapter 10 of our recent report in relation to Protection of Official Data, we recommended that:

An independent, statutory commissioner should be established with the purpose of receiving and investigating allegations of wrongdoing or criminality where otherwise the disclosure of those concerns would constitute an offence under the Official Secrets Act 1989.300

A person should not be guilty of an offence under the Official Secrets Act 1989 if that person proves, on the balance of probabilities, that: (a) it was in the public interest for the information disclosed to be known by the recipient; and (b) the manner of the disclosure was in the public interest. We make no further recommendation beyond this in respect of the form of the defence301

Recommendation 12.

SEXUAL MISCONDUCT AND THE CORRUPTION OFFENCE

Sexual conduct and the current law

Consultation responses

We do not agree that office holders who breach their duty by allowing themselves to be manipulated into engaging in an improper personal relationship should not be subject to the criminal law. Whilst not every case warrants such sanction, we are of the view that the breach of duty is capable of being so serious and so improper as to amount to an abuse of the public office.

We do not agree that improper personal relationships are merely the precursor to an offence (such as perverting the course of justice or bringing listed substances into prison). In the closed world of a prison, a sexual relationship between a guard and an inmate seriously undermines the ability of the authorities to maintain good order and discipline. It is the favouring of one inmate over the others; it is to award power to that inmate, and probably his gang, over the others. The corollary is that other inmates will not trust or respect other guards or indeed each other, breeding chaos. It also, as in Cosford, draws other guards into the deceit and further breaches of duty. The same is true, though less common, of police officers who allow themselves to become personally involved with gang members - it is of itself corrupt.

All prisoners are considered to be in NOMS’ care and therefore there is a duty of care towards them, no matter what age/circumstances. Any kind of inappropriate relationship would be immoral, compromising the level of trust and professionalism expected of NOMS staff. Would this not fall under MIPO?

It is vital that such relationships are captured and consistent outcomes are received on each occasion. However, we feel that the consequences of an inappropriate relation are being missed in the review. The fact that inappropriate relationships of any kind, can threaten the safety and security of the prison and puts - staff, visitors and prisoners at risk would still not be covered by this offence. It is not the mere fact that the relationship may have been (just) sexual, for example, it is the fact that the member of staff has taken advantage (abuse) of their position, may have conditioned and manipulated the prisoner (a person in NOMS’ care) and furthermore, that the member of staff may have released information to the prisoner(s). Information is very easily passed between prisoners (and then to people on the outside) and this could quite easily destabilise a prison establishment placing the whole establishment at risk and leading to the exploitation of individual vulnerabilities - inside and outside of the prison. This threatens the security and order that is vital to run such an organisation. This would be an abuse rather than a misuse of a staff member’s position ..

. we consider that, “benefit” (referred to in the proposal as ‘advantage’) ought to be defined sufficiently broadly to include covering up past failings and initiating inappropriate sexual relationships .

Our conclusions

inmates.

LABELLING THE REPLACEMENT OFFENCE

Perversion or destruction of integrity in the discharge of public duties by bribery or favour; the use or existence of corrupt practices, esp. in a state, public corporation, etc.

5.151 Instead of the label “corruption in public office” therefore, government may wish to consider another label for the offence, including retention of the label “misconduct in public office”.

REPEAL OF SECTION 26 OF THE CRIMINAL JUSTICE AND COURTS ACT 2015

5.152 As indicated earlier in this chapter, and foreshadowed in our consultation paper, the proposed new offence would have substantial overlap with the existing offence of “corrupt or other improper exercise of police powers and privileges”, under section 26 of the CJCA 2015.

5.153 Section 26 of the CJCA 2015 was introduced in 2015, following the findings of the Stephen Lawrence Independent Review, conducted by Mark Ellison QC. Prior to its introduction, the then Home Secretary (Theresa May MP) stated:

The current law on police corruption relies on the outdated common-law offence of misconduct in public office. It is untenable that we should be relying on such a legal basis to deal with serious issues of corruption in modern policing, so I shall table amendments to the Criminal Justice and Courts Bill to introduce a new offence of police corruption, supplementing the existing offence of misconduct in public office and focusing clearly on those who hold police powers.306

5.154 Should our recommended offence of corruption in public office be enacted, it would also provide a statutory - rather than common law - basis for prosecuting police misconduct. As such, this rationale for the introduction of section 26 of the CJCA 2015 would be no longer applicable.

5.155 Moreover, we view the offence in section 26 of the CJCA 2015 as broader in scope than our recommended corruption in public office offence, and believe it has the potential to criminalise relatively trivial conduct that the officer may not have appreciated was improper. Specifically, the section 26 offence differs from our proposed offence in two important ways:

5.156 In contrast, our formulation of the corruption in public office offence criminalises only serious impropriety, and only in circumstances where the office holder appreciates that a reasonable person would consider their conduct seriously improper. This approach is more consistent with minimal criminalisation and the theoretical underpinnings of criminal responsibility. We do not see any principled justification for holding police officers to a different standard than other public office holders, particularly those with coercive powers such as prison staff and immigration officials.

5.157 In our consultation paper, we observed that section 26 of the CJCA 2015 was designed to fill gaps that may have existed between statutory offences.307 However, we expressed a view that a number of elements in this new offence were just as ambiguous as the elements of the common law misconduct in public office offence, and suggested that prosecutions under section 26 were likely to experience similar difficulties in practice. Moreover, our issues paper referred to the Home Office’s publication of an impact assessment on 13 June 2014, outlining the policy objectives of section 26 of the CJCA 2015.308 The impact assessment forecast that neither the number of investigations nor prosecutions involving police officers would change significantly.309 Four years after its introduction, Home Office statistics show that the section 26 offence has been prosecuted against eleven individuals, with six convictions secured. 310This can also possibly be attributed to the fact that the general misconduct in public office offence is more familiar to police and prosecutors.

5.158 We consider that should our recommended offence of corruption in public office be enacted - in the interests of appropriately targeting serious wrongdoing, fostering consistency and simplifying the law - section 26 of the CJCA 2015 should be repealed, together with the abolition of the common law offence.

Recommendation 13.

5.159 If the offence of corruption in public office is introduced, the offence in section 26 of the Criminal Justice and Courts Act 2015, “corrupt or other improper exercise of police powers and privileges”, should be repealed.

Chapter 6: Breach of duty in public office

INTRODUCTION

A draft, illustrative clause - breach of duty in public office

CURRENT LAW AND PRACTICE

CONSULTATION PAPER PROPOSALS AND RESPONSES

a distinct mischief arises when, by virtue of D’s position of public office, D is under a particular duty to act, which if not fulfilled could give rise to a risk of serious consequences occurring and D is aware of this duty but nevertheless fails to fulfil that duty. 314

Consultation responses to our questions and proposals

Defining the scope of the duty

We agree that attempting a precise definition of every type of duty that might be the subject matter of an offence replacing misconduct in public office is likely to be unnecessary and unwise ...

I would allow the courts to develop the scope of duty, as they have done for centuries in manslaughter cases. If need be, a list of the kinds of duties likely to attract a finding by the courts of a legal duty could be provided by statute.

Legally enforceable duties exist and are imposed by the law precisely because they reflect the public importance of the duties they impose. Breach of such duties is a matter of significant public importance. Given the existing limitations to the proposed offences, there should be no further limitation under the duty limb. This approach is consistent with ensuring public confidence in legal duties being performed .

Further, questions concerning the nature of a duty cause problems where there are several participants involved in cases, and it is ambiguous who owes what duty and to what extent. While the scope of duty (that is the breadth) is not complex, the extent (that is the measure) is less than straightforward . However, this is not obviously an issue that can be remedied through drafting of a misconduct offence in our view. It is better left to the jury to identify the nature of the duty involved and therefore it seems appropriate to include every legally enforceable duty.

Should public office holders with powers of physical coercion be included within the offence?

We are concerned that, if the definition makes explicit reference to such powers, there is a risk of unintentionally limiting the scope of the offence to circumstances in which coercive powers have been utilised...

In our view, the definition of those holding coercive powers is less important than ensuring the definition of public office holder incorporates any individual who performs policing functions or performs functions that are ancillary to the performance of policing functions. We are concerned that any definition that emphasises coercive powers risks taking individuals who are rightly considered public office holders under the current law outside that definition and producing the kinds of anomalous outcomes discussed above.

Powers of physical coercion is an obvious category and, whilst there would be no harm done by specifically identifying it, it is not necessary to do so.

We are unclear as to whether limiting public office to those who exercise lawful powers of physical coercion means limiting the breach to occasions when that particular power is or is not exercised. For example, a police officer would qualify under the physical coercion category but if the breach was in relation to a duty unrelated to his powers of arrest, we are not clear whether he/she would have to further qualify under the vulnerable individuals’ category.

Should both actual and potential consequences be included within the scope of the offence?

Historically we cannot think of a situation where a risk of harm was previously prosecuted. One would have to think long and hard before criminalising a breach that might lead to serious harm where there was no other offence available. Without evidence of a need for such a new offence it seems to us that disciplinary action would be more appropriate and effective.

Criminal liability should be linked to actual consequences. Potential consequences are difficult to foresee with precision and could involve officials, prosecutors at the charge decision-making stage, and at the trial stage, jurors, in speculation. Potential consequences are more open to interpretation than actual consequences.

Perhaps the solution is not to list harms but rather require the breach to be serious. Whilst it is conceded that this could be considered to introduce a degree of uncertainty into the offence, it is a measured risk. The courts are already left to decide whether offences are serious, and in the context of manslaughter by gross negligence, are already asked whether a breach is sufficiently serious to warrant criminalisation. It is not immediately clear why a court could not be left with the same test for this offence?

crucial that the offence includes potential consequences. A public officer’s breach of duty may not result in tangible harm, but that does not reduce the wrong, or the need for punishment. The lack of tangible harm is likely due to luck or coincidence, and should not mean that the public officer evades punishment...

REFLECTIONS FOLLOWING CONSULTATION RESPONSES

RECOMMENDED BREACH OF DUTY OFFENCE

First element: “Public office holder”

Second element: subject to a duty to prevent death or serious injury that arises only by virtue of the functions of the public office

A duty to prevent

defining vulnerability is extremely difficult, with most definitions receiving some criticism. The Law Commission believe that statutory tests bring greater certainty, but one cannot help wonder whether this is an issue best left to the courts. The statute could say the offence applies to a public officer who has a duty to protect the vulnerable, but leave the courts to decide who is vulnerable. This does arguably introduce a degree of uncertainty but it would be modest as most vulnerable relationships are obvious. Creating a definitive test for these purposes would be difficult and arguably would go no further than if it were left to the courts.

Death or serious injury

A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.

That arises only by virtue of the functions of the public office

Who should determine the existence of the duty?

Homicide Act 2007, which states that “whether a particular organisation owes a duty of care to a particular individual is a question of law”.

Third element: the public office holder’s awareness of the duty

Fourth element: breach of the duty

Fifth element: the breach causes or risks death or serious injury

Where a court is considering the seriousness of any offence it must consider -

Defining “serious injury”

Sixth element: the public officer was reckless as to the risk of death or serious injury

foreseeable risk for the purposes of gross negligence manslaughter is that, armed with notice that a particular customer or patient falls into the category which the system (or statute) was designed to deal with, a reasonable person in the position of the restaurateur or optometrist would, at the time of breach of duty, have foreseen an obvious and serious risk of death. It is in those circumstances that the jury would have to go on to consider whether the negligent breach of duty was 'gross' within the meaning of that term defined by the authorities.355

Recommendation 14.

Recommendation 15.

6.101 Whether there is “a duty to prevent death or serious injury that arises only by virtue of the functions of the public office” should be a question of law for the trial judge in the case.

Recommendation 16.

6.102 “Serious injury” should be given the same meaning as that of Grievous Bodily Harm in the Offences Against the Person Act 1861.

Chapter 7: Procedure, scope and sentencing of corruption and breach of duty offences

INTRODUCTION

MODE OF TRIAL

Classification of offences

as to which depending on the circumstances of the case.

occasioning Actual Bodily Harm),364 possession/possession with intent to supply/supplying drugs (of Class A, B or C)365 and fraud.366

Breach of duty in public office

Judge. Further, the factual considerations relevant to determining whether a duty was breached, and whether the breach caused or risked serious injury, merit consideration by a jury.

Corruption in public office

Recommendation 17.

ACCESSORIAL LIABILITY

We conclude that, just as the principal does not need to know or intend that the consequence of all of the facts of which he is aware will be so serious as to amount to the [wilful misconduct] element of the offence of misconduct in public office, the aider and abettor does not have to have such knowledge or intent.387

INCHOATE LIABILITY: ENCOURAGING OR ASSISTING, CONSPIRACY AND ATTEMPT

the commission of the offence with the intent to commit the offence; and

Encouraging or assisting

Example One:

A person, whether or not they are a public officer, could conceivably encourage the commission of the corruption offence by offering payment to an immigration official to encourage them improperly to make an adverse determination against another (or alternatively, improperly make a positive determination).

Conspiracy

part of the substantive offence.402

What has to be ascertained is always the same matter: is it true to say ... that the acts of the accused were done in pursuance of a criminal purpose held in common between them?405

Example Two:

Two prison officers agree that they will not respond to the next alarm from a suicidal prisoner, as they consider these to be usually false alarms, and a waste of time.

or serious injury to inmates.

Conspiracy to defraud

In my opinion it is clear that in connection with this offence the intent to defraud existed when the false document was brought into existence for no other purpose than that of deceiving a person responsible for a public duty into doing something that he would not have done but for the deceit, or not doing something that but for it he would have done. Correspondingly, to put such a document forward with knowledge of its falsity and with a similar intent was to commit the crime of uttering it.412

Attempt

with intent to commit an offence to which this section applies, a person does an act which is more than merely preparatory to the commission of the offence ...

Example Three:

An official in the Department for Work and Pensions seeks to deny benefits to a person solely on the basis they do not like them, taking active steps to deny the claim. The offence may be committed even though the attempt was in fact impossible - for example, the person was not entitled to benefits for some other, unrelated reason.

INTOXICATION

CORPORATE LIABILITY

Where a duty is thrown on a body consisting of several persons, each is individually liable for a breach of duty, as well as for acts of commission as for omission.430

Therefore it is necessary to show that the senior manager individually knew that the reasonable person would consider the conduct of the company to be seriously improper.

Where an offence committed by a body corporate under ... this Act is proved to have been committed with the consent or connivance of any director, manager, secretary or other similar officer of the body corporate, or any person who was purporting to act in any such capacity, he as well as the body corporate shall be guilty of that offence, and shall be liable to be proceeded against and punished accordingly.

JURISDICTIONAL ISSUES

Any British subject employed under His Majesty’s Government in the United Kingdom in the service of the Crown who commits, in a foreign country, when acting or purporting to act in the course of his employment, any offence which, if committed in England, would be punishable on indictment, shall be guilty of an offence [...] and subject to the same punishment, as if the offence had been committed in England.

serious misconduct abroad by any servant or officer of the British Crown carries great potential for scandal and national embarrassment, but any such scandal, etc., may be reduced if the United Kingdom is seen to deal firmly with the misconduct following that person’s expulsion or recall.445

Who is guilty of an act or omission that would be punishable by the law of England if committed in England is guilty of any offence [...] wherever he commits it, whether in some other part of the UK or elsewhere in the world. Although, as the offence is a “service” offence, it can only be dealt with by way of court martial.446

It is a crime at common law for a public official, a person entrusted with an official situation of trust, wilfully to neglect his duty, even where no question of danger to the public or to any person is involved.448

Recommendation 18.

WELSH DEVOLUTION IMPLICATIONS

Once the proposal is finalised, then it will be for Welsh Government to consider the implications for devolved areas and then for the Assembly [now the Senedd Cymru / Welsh Parliament] to decide whether or not to give consent to those aspects of the proposal which are within its legislative competence.

MAXIMUM PENALTIES

Corruption in public office

Recommendation 19.

7.102 A maximum penalty of between 10 to 14 years’ imprisonment is an appropriate range for parliament to consider for the offence of corruption in public office.

Breach of duty in public office

A person who without lawful excuse destroys or damages any property, whether belonging to himself or another—

shall be guilty of an offence.

Recommendation 20.

7.109 A maximum penalty of between 10 to 14 years’ imprisonment is an appropriate range for parliament to consider for the offence of breach of duty in public office.

Chapter 8: Prosecutorial guidance and consent to prosecute

INTRODUCTION

PROSECUTORIAL DISCRETION AND GUIDANCE

Background to the CPS function

The essence of the system is that the police retain the initial decision whether or not to prosecute. If they decide not to bring a prosecution, then the CPS have no function. Only if the police decide to bring a prosecution must they pass the file to the CPS. .. However, the principal role of the CPS is that of legal review of the file. Once the file is passed to the CPS, the 1985 Act gives them the power to discontinue the prosecution or to alter the charges. The CPS should decide whether the case file has all that is required in order to indicate a ‘realistic prospect of conviction’ for the offence charged .465

The Code for Crown Prosecutors

The evidential stage

The public interest stage

Criticism of the structure of prosecutorial discretion

Leader of the Opposition) has since referred to the case of R (on the application of B) v DPP,469 in which the High Court held that in determining whether there was a realistic prospect of conviction, at the evidential stage, a “merits based” rather than a “purely predictive approach” was appropriate.470

Challenging the exercise of discretion

Prosecution guidance and misconduct in public office

Breaches of duty

Dishonesty or corruption

Cases involving a death in police custody

The value of prosecution guidance

Recommendation 21.

CONSENT TO PROSECUTE

Background to consent to prosecute

Types of consent

Attorney General’s Office routinely provide advice to the AG or SG (collectively known as the “Law Officers”) on these decisions, the decision-making authority cannot be delegated, and must be made personally by one of them.

Our previous review of “Consents to Prosecution”

It is easy to envisage a case in which, say, a leader of a council has a private prosecution brought against him or her shortly before an election; the complaint receives much publicity and the defendant suffers in the election even though eventually the criminal prosecution is dismissed or taken over by the CPS who discontinue. In that event, the defendant will have suffered substantial loss and damage and he or she cannot be compensated.498

Consent and misconduct in public office

We have considered whether consent should be required before prosecution can be commenced. We do not believe that the public interest demands the ability to prosecute privately and there could be a significant problem with vexatious prosecutions or prosecutions stimulated by political motives. Our preliminary conclusion is that consent should be required and that authority to give it should be vested in the Director of Public Prosecutions.501

The type of consent

Recommendation 22.

Chapter 9: Sexual misconduct and sexual offences

INTRODUCTION

terms of reference for this review. However, in the light of the concerns raised by some respondents to our consultation, we feel that it is appropriate to make a number of observations.

FORMS OF SEXUAL MISCONDUCT PROSECUTED UNDER THE CURRENT OFFENCE

Overlap with sexual offences

a person consents if he agrees by choice, and has the freedom and capacity to make that choice.

Since consent involves free agreement by choice, simply to comply or to submit is not necessarily to consent. Consent must be freely given. The definition therefore serves to emphasise the focus upon the complainant’s autonomy.506

However, the concept of “free agreement” remains capable of a wide interpretation and ultimately it will be for juries to decide its boundaries.

What degree of coercion and/or abuse of position, power or authority has to be exercised upon a person’s mind before he or she is not agreeing by choice with the freedom to make that choice? This is a matter of fact for the jury to resolve. Is a penniless employee, who is threatened with the sack by her employer unless she grants him sexual favours, giving her free agreement if she grants those favours? The availability to a complainant of alternative courses of action may be highly relevant. In situations where the complainant complies out of fear of the consequences of refusal, with no alternative course available, there is likely to be no free agreement. In contrast, an employee who fears discrimination if she does not comply with her employer’s wishes has alternative courses of action available.

Where the suspect was in a position of power where they could abuse their trust, especially because of their position or status - e.g. a family member, teacher, religious leader, employer, gang member, carer, doctor;

Where the victim is “particularly vulnerable due to personal circumstances” this is also considered to increase the severity of the harm caused.510

WHAT WE SAID IN OUR CONSULTATION PAPER

Impairment of sexual autonomy

This Act introduced other specific offences to address certain circumstances of abuse of power and trust.514

Sexual exploitation

Possible new offences

CONSULTATION RESPONSES

Responses in favour of a review

An offence of obtaining sex by improper pressure did not describe the wrong of an undercover police officer engaging in sexual (and intimate) relationships with activists.

An offence of sexually exploiting a vulnerable person would more adequately describe that wrong, provided that the definition of vulnerability includes vulnerability arising from both the victim’s conditions and circumstances (for instance, deceit).

Responses not supporting a wider review of the sexual offences regime

All prisoners are considered to be in NOMS’ care and therefore there is a duty of care towards them, no matter what age/circumstances. Any kind of inappropriate relationship would be immoral, compromising the level of trust and professionalism expected of NOMS staff.

Responses supporting the creation of another complementary sexual offence within this project

Improper relationships by a public official who misrepresents themselves in the course of official duties - to cover the abuses by undercover policemen against activists, that have been exposed.

of power;

The Commission has suggested that a new sexual offence is outside its remit but we respectfully disagree as to suggest reform of MiPO [misconduct in public office] without providing a workable sexual offence to cover the sexual offending which is so often the basis of the MiPO offence would be to leave the Commission’s work half done. There is no need for wholesale review of sexual offences to suggest a new sexual offence to replace this aspect of MiPO as it would be a variant of MiPO based on SOA 2003 foundations.

CONCLUSIONS FOLLOWING CONSULTATION RESPONSES

Prosecution of misconduct in public office rather than sexual offences

Misconduct in public office should be considered only where:

Should further sexual offences be introduced?

Recommendation 1.

Paragraph 3.45

Recommendation 2.

Paragraph 3.98

Recommendation 3.

10.3

Two statutory offences should replace the common law offence of misconduct in public office:

  • (1)    an offence of corruption in public office; and

  • (2)    an offence of breach of duty in public office.

10.4

Both of these offences should be underpinned by a clear articulation of when a person can be considered “in public office”.

Paragraph 3.108

Recommendation 4.

Paragraph 4.53

Recommendation 5.

Paragraph 4.62

Recommendation 6.

Additionally, the government should consider whether there are any other discrete Crown appointments that should be excluded on the basis that they have little or no relevant connection to public office.

Paragraph 4.63

Recommendation 7.

Paragraph 4.68

Recommendation 8.

Paragraph 4.87

Recommendation 9.

Paragraph 5.95

Recommendation 10.

“benefit” and “detriment” mean any benefit or detriment, whether or not in money or other property and whether temporary or permanent.

Paragraph 5.96

Recommendation 11.

Paragraph 5.98

Recommendation 12.

Paragraph 5.130

Recommendation 13.

Paragraph 5.159

Recommendation 14.

Paragraph 6.100

Recommendation 15.

Paragraph 6.101

Recommendation 16.

10.20 “Serious injury” should be given the same meaning as that of Grievous Bodily Harm in the Offences Against the Person Act 1861.

Paragraph 6.102

Recommendation 17.

10.21 Both the offence of breach of duty in public office and the offence of corruption in public office should be indictable only offences.

Paragraph 7.22

Recommendation 18.

Paragraph 7.90

Recommendation 19.

Paragraph 7.102

Recommendation 20.

Paragraph 7.109

Recommendation 21.

Paragraph 8.30

Recommendation 22.

Paragraph 8.53

Appendix 1: List of responses to consultation paper

ACADEMICS

Professor Liz Campbell, Monash University

Robert Heaton, Canterbury University

Professor Jeremy Horder, London School of Economics

Catarina Sjolin Knight and Helen Edwards, Nottingham Trent University

Simon Parsons, Solent University (retired)

LEGAL PRACTITIONERS

Bar Council and Criminal Bar Association

Ecclesiastical Law Society

Law Society of England and Wales

London Criminal Courts Solicitors’ Association

Malcolm Morse, St Phillip’s Chambers

Police Action Lawyers’ Group

Pete Weatherby QC and Mike Mansfield QC

Lucy Wibberley and Keir Monteith QC

OFFICIAL ORGANISATIONS

Association of High Court Enforcement Officers

Church of England Archbishop’s Council

College of Policing

Committee on Standards in Public Life

Crown Prosecution Service

Independent Police Complaints Commission

National Offender Management Service

North Yorkshire County Council

Welsh Government (Counsel General)

NON-GOVERNMENT ORGANISATIONS

Compassion in care

PHSO The Facts

Public Concern at Work

INDIVIDUAL PROFESSIONALS

Jackie Alexander (Detective Superintendent)

Adrian Britliff (social worker)

Rt Hon Brandon Lewis MP, Minister of State for Policing and Fire Services

Scott Pavitt (Detective Constable)

MEMBERS OF THE PUBLIC

Dr Minh Alexander

Ann Bone

Juliet Crowson

Ian Hall

Barbara Harris

Daphne Havercroft

James Kennedy

Jan Kumar

Margaret Lynch

Lesley McDade

Mike Paley

Teresa Steele

Michael Stone

William-Glyn Thomas

John von Garner

Nicholas Wheatley

CCS1120583574

978-1-5286-2279-0

1

  AG’s Reference (No 3 of 2003) [2004] EWCA Crim 868; [2005] QB 73.

2

   See Undercover Policing Inquiry, “About the Inquiry” (17 July 2019), available at

https://www.ucpi.org.uk/about-the-inquiry/.

3

Police Searches on the Parliamentary Estate, First Report of the Committee on Issue of Privilege (2009-10) HC 62 at [57].

4

  [2011] EWCA Crim 1259; [2011] 2 Cr App R 14 at [21].

5

Eleventh Programme of Law Reform (2011) Law Com No 330 at paras 2.57 to 2.60. The Law Commission is required to receive and consider proposals for law reform and to prepare and submit to the Lord Chancellor, from time to time, programmes for the examination of different branches of the law with a view to reform. The terms of the Eleventh Programme of Law Reform were agreed on 27 May 2011.

6

   See Appendix A to our background paper for further analysis of the historical development of the offence.

Available at http://www.lawcom.gov.uk/wp-content/uploads/2016/01/apa history.pdf.

7

R v Bembridge (1783) 3 Doug KB 327; 99 ER 679.

8

R v Borron (1820) 3 B & Ald 432.

9

  R v Llewellyn-Jones [1968] 1 QB 429.

10

R v Dytham [1979] QB 722.

11

R v Bowden [1996] 1 WLR 98; [1995] 4 All ER 505.

12

Ashby v White (1703) 2 Ld Raym 938; 1 Smith LC (13th ed) 253.

13

All Law Commission publications related to our Misconduct in Public Office project are available at:

14

https://www.lawcom.gov.uk/project/misconduct-in-public-office/.

15

Report of the Royal Commission on Standards of Conduct in Public Life (1976) Cmnd 6524 (“The Salmon Commission”), Chapter 10.

The Salmon Commission at [88(iii)].

16

The Salmon Commission at [50].

17

Pamphlet “Misuse of public office: a consultation paper” accompanying the Committee on Standards in Public Life, Third Report - Standards of Conduct in Local Government - Volume 1 (July 1997) Cm 3702-I,

18

and [22].

19

Legislating the Criminal Code: Corruption (1997) Law Commission Consultation Paper No 145; Legislating the Criminal Code: Corruption (1998) Law Com No 248.

20

Draft Corruption Bill (March 2003) Cm 5777.

Joint Committee on the Draft Corruption Bill Report (31 July 2003) HL Paper 157 HC 705 at [80].

21

Fraud (2002) Law Com No 276.

22

Reforming Bribery (2008) Law Com No 313.

23

See tables at paragraphs 2.20 and 2.21.

24

 Attorney General’s Reference (No 3 of 2003) [2004] EWCA Crim 868; [2005] QB 73.

25

 Attorney General’s Reference (No 3 of 2003) [2004] EWCA Crim 868; [2005] QB 73 at [61].

26

 R v Cosford [2013] EWCA Crim 466; [2014] QB 81.

27

  R v Mitchell [2014] EWCA Crim 318; [2014] 2 Cr App R 2.

28

 R v Chapman [2015] EWCA Crim 539; [2015] 2 Cr App R 10.

29

  R v DL [2011] EWCA Crim 1259; [2011] 2 Cr App R 14 at [21].

30

R v Chapman [2015] EWCA Crim 539; [2015] 2 Cr App R 10 at [29], per Lord Thomas CJ.

31

BBC, Operation Elveden corruption probe ends (26 February 2016), available at https://www.bbc.co.uk/news/uk-35666520.

32

Criminal Justice and Courts Act 2015, s 26.

33

See, eg S Parsons, “Misconduct in a public office: should it still be prosecuted?” (2012) 76(2) Journal of Criminal Law 179; C Sjolin and H Edwards, “When misconduct in public office is really a sexual offence” (2017) 81(4) Journal of Criminal Law 292.

34

Professor Horder was the Criminal Law Commissioner at the Law Commission from 2005 to 2010. See J Horder, Criminal Misconduct in Office (2018).

35

Misconduct in Public Office: The Current Law (2016), Law Commission Issues Paper 1 (“Issues Paper 1 (2016)”), Annex C.

36

Courts and Tribunals Judiciary, Speech by Rt Hon Lord Justice Bean: Misconduct in Public Office (7

November 2018), available at https://www.judiciary.uk/announcements/speech-by-rt-hon-lord-justice-bean-misconduct-in-public-office/.

37

Issues Paper 1 (2016), Annex A.

38

   Issues Paper 1 (2016), Chapter 2.

39

  R v Bembridge (1783) 3 Doug 327; 99 ER 679.

40

  R v Bembridge (1783) 3 Doug 327; 99 ER 679, 331.

41

  R v Bembridge (1783) 3 Doug 327; 99 ER 679, 332.

42

  R v Borron (1820) 3 B & Ald 432.

43

  R v Borron (1820) 3 B & Ald 432, 434.

44

See, eg D Lusty, “Revival of the common law offence of public office” (2014) 38 Criminal Law Journal 337, 341. David Lusty has observed that throughout the 20th century, the offence of misconduct in public office was rarely utilised and that the only reported case in England and Wales between 1900 and 1975 was R v Llewellyn-Jones [1968] 1 QB 429. See also: C Nicholls and others, Corruption and Misuse of Public Office (3rd ed, 2017), p 146.

45

G Williams, Textbook of Criminal Law (2nd ed, 1983), p 151, quoted in D Lusty, “Revival of the common law offence of public office” (2014) 38 Criminal Law Journal 337, 341.

46

  R v Llewellyn-Jones [1968] 1 QB 429.

47

R v Dytham [1979] QB 722.

48

R v Bowden [1996] 1 WLR 98; [1995] 4 All ER 505.

49

R v Dytham [1979] QB 722, 727 to 728.

50

R v Bembridge (1783) 3 Doug 327; 99 ER 679, 332, per Lord Mansfield CJ cited in R v Bowden [1996] 1 WLR 98, 103.

51

See generally, D Lusty, “Revival of the common law offence of misconduct in public office” (2014) 38 Criminal Law Journal 337.

52

C Nicholls and others, Corruption and Misuse of Public Office (3rd ed, 2011), p 147.

53

 [2004] EWCA Crim 868; [2005] QB 73.

54

Pursuant to section 36 of the Criminal Justice Act 1972.

55

Attorney General’s Reference (No 3 of 2003) [2004] EWCA Crim 868; [2005] QB 73 at [61].

56

This information was provided by the Crown Prosecution Service. Please note that the offence data is limited to volume counts - the statistics do not disaggregate to show the number of defendants prosecuted or the eventual outcome of a prosecution. No assumptions should be made about the number of cases of defendants prosecuted from these data - defendants may be charged with more than one offence and a case may comprise one or more defendants.

57

R v W [2010] EWCA Crim 372; [2010] QB 787.

58

R v Belton [2011] QB 934; [2010] EWCA Crim 2857.

59

R v Cosford [2013] EWCA Crim 466; [2014] QB 81.

60

R v Mitchell [2014] EWCA Crim 318; [2014] 2 Cr App R 2.

61

R v Chapman [2015] EWCA Crim 539; [2015] 2 Cr App R 10.

62

R v W [2010] EWCA Crim 372; [2010] QB 787 at [14].

63

  R v Cosford [2013] EWCA Crim 466; [2014] QB 81 at [34].

64

  R v Mitchell [2014] EWCA Crim 318; [2014] 2 Cr App R 2 at [7].

65

  R v Mitchell [2014] EWCA Crim 318; [2014] 2 Cr App R 2 at [19].

66

  See, eg BBC, Operation Elveden corruption probe ends (26 February 2016), available at

https://www.bbc.co.uk/news/uk-35666520.

67

R v Norman [2016] EWCA Crim 1564; [2017] 4 WLR 16.

68

R v France [2016] EWCA Crim 1588; [2016] 4 WLR 175.

69

R v Chapman [2015] EWCA Crim 539 at [36] to [40].

70

See, eg BBC, Operation Elveden: Nine journalists have cases dropped (17 April 2015), available at https://www.bbc.co.uk/news/uk-32355478.

71

R v Norman [2016] EWCA Crim 1564; [2017] 4 WLR 16 at [28].

72

This refers to an application by a defendant to seek acquittal from a judge at the end of the prosecution evidence without having to present a defence. The judge needs to be persuaded that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it. See further R v Galbraith [1981] 1 WLR 1039.

73

R v Norman [2016] EWCA Crim 1564; [2017] 4 WLR 16 at [50].

74

R v France [2016] EWCA Crim 1588; [2016] 4 WLR 175 at [21] to [31].

75

See Undercover Policing Inquiry (10 October 2018), available at https://www.ucpi.org.uk/.

76

 [2018] EWHC 3508 (Admin); [2019] 2 WLR 722.

77

  R (on the application of Monica) v DPP [2018] EWHC 3508 (Admin); [2019] 2 WLR 722 at [94].

78

  R (on the application of Monica) v DPP [2018] EWHC 3508 (Admin); [2019] 2 WLR 722 at [94] to [96].

79

The first coronial inquest opened in November 1990; a jury returned a majority verdict of accidental death in March 1991. In 2012, after the Hillsborough Independent Panel reviewed 450,000 documents and published its report, then Home Secretary Theresa May accepted the report and ordered a new criminal inquiry into the disaster, Operation Resolve. In March 2014, new inquests began. In April 2016, the inquest jury concluded that the 96 people who died in the Hillsborough disaster were unlawfully killed, overturning the verdict of accidental death at the 1991 inquest. See D Conn, The long road to justice: Hillsborough disaster timeline (2 June 2017), available at https://www.theguardian.com/football/2017/jun/28/long-road-justice-hillsboroygh-inquest-timeline.

80

See, eg L Dearden, Hillsborough disaster: CPS will not charge five police officers over deaths of 96 Liverpool fans (14 March 2018), available at https://www.independent.co.uk/news/uk/crime/hillsborough-disaster-cps-liverpool-police-officers-fan-deaths-prosecutions-david-duckenfield-a8255081.html.

81

R v Ball (8 September 2015) Central Criminal Court (unreported).

82

See further F Cranmer and A Pocklington, “Peter Ball and Misconduct in a public office” (2016) 18 Ecclesiastical Law Journal 188.

83

This refers to a classification whereby it is because of the duty which the defendant is alleged to have breached that they can be classified as being in public office. This is similar to the current approach whereby the focus is on whether the individual has a duty associated with the state function or governmental responsibility and the public has an interest in the individual’s performance of that duty.

84

Reforming Misconduct in Public Office (2016) Law Commission Consultation Paper No 229 (“Consultation Paper (2016)”), para 4.23.

85

See YL v Birmingham City Council [2007] UKHL 27; [2008] 1 AC 95.

86

The leading case on this issue is R v Panel on Takeovers and Mergers Ex p. Datafin Plc [1987] QB 815 (Datafin).

87

  R v Reeves-Taylor (Agnes) [2019] UKSC 51; [2019] 3 WLR 1073 at [76], per Lord Lloyd-Jones.

88

Johnson v Westminster Magistrates' Court [2019] EWHC 1709 (Admin) (03 July 2019), [2019] 1 WLR 6238 at [29].

89

  R v W [2010] EWCA Crim 372; [2010] QB 787 at [2].

90

  Parsons uses the case to illustrate the wider uncertainty with the current state of the law, stating that: “this

was not a case of misconduct in a public office as W's misconduct did not take the form of a breach of, or failure to perform, his duties as a police officer. W should have been charged with theft or, if there had been a false representation, fraud”. See S Parsons, “Misconduct in a public office - should it still be prosecuted?” (2012) 76(2) Journal of Criminal Law 179, 184.

91

See R v Adomako [1995] 1 AC 171.

92

  For example, Offences Against the Person Act 1861, ss 27, 34.

93

  We recognise that “corruption” is a broad label. In our issues paper, we observed that the label of corruption

has often been used - particularly by the media in regard to “corruption” within police - “without reference to any specific definition, but to encapsulate various types of wrongdoing including: bribery, fraud, abuse of authority, perverting the course of justice, neglect of duty and the exploitation of vulnerable people”: Issues Paper 1 (2016), para 3.1.

94

Issues Paper 1 (2016), Annex D.

95

See Newham Recorder, “Former Newham registrar jailed for helping gang illegally claim £4m in benefits” (1 February 2013), available at: https://www.newhamrecorder.co.uk/news/crime-court/former-newham-reqistrar-jailed-for-helpinq-qanq-illeqally-claim-4m-in-benefits-1-1856467.

96

This example is based on the case of Aliya Ali, who in 2009 pleaded guilty to 12 charges of misconduct in public office and was sentenced to 5 years’ imprisonment. See, “Home Office worker let in illegal immigrants 'to give them a chance'”, The Telegraph (26 September 2009) available at: https://www.teleqraph.co.uk/news/uknews/crime/6232642/Home-Office-worker-let-in-illeqal-immiqrants-to-give-them-a-chance.html.

97

See R v Kadiri [2017] EWCA Crim 2667; [2019] 1 Cr App R (S) 25.

98

R v Rimmington [2005] UKHL 64; [2006] 1 AC 459 at [30].

99

See Crown Prosecution Service, Misconduct in Public Office Leqal Guidance (16 July 2018), available at https://www.cps.qov.uk/leqal-quidance/misconduct-public-office.

100

  [2003] UKHL 50; [2004] 1 AC 1034.

101

Attorney General’s Reference (No 3 of 2003) [2004] EWCA Crim 868; [2005] QB 73 at [30].

102

A Cronin, “Misconduct in public office: dishonesty is an element if misconduct amounts to theft or fraud” (2010) 74(4) Journal of Criminal Law 290, 292.

103

R v Borron [1820] 3 B & Ald 432; 106 ER 721.

104

  R v W [2015] EWCA Crim 539; [2015] 2 Cr App R 10 at [36].

105

  [2015] EWCA Crim 539; [2015] 2 Cr App R 10 at [48].

106

See R v France [2016] EWCA Crim 1588; [2016] 4 WLR 175.

107

Issues Paper 1 (2016), para 2.208.

108

See J Near and M Miceli, “Organisational dissidence: the case of whistleblowing” (1985) 4 Journal of Business Ethics 1, 4.

109

R v Keyte [1998] 2 Cr App R (S) 165; R v Kassim [2005] EWCA Crim 1020; [2006] 1 Cr App R (S) 4; Attorney General’s Reference (No 1 of 2007) [2007] EWCA Crim 760; [2007] 2 Cr App R (S) 86; R v Gallagher and others [2010] EWCA Crim 3201; R v Stubbs [2011] EWCA Crim 926; [2011] 2 Cr App R (S) 113; R v Mungur [2018] EWCA Crim 1062, [2018] 2 Cr App R (S) 33.

110

R v Chapman [2015] EWCA Crim 539; [2015] QB 883.

111

 [2011] EWCA Crim 1259; [2011] 2 Cr App R 14.

112

R v DL [2011] EWCA Crim 1259; [2011] 2 Cr App R 14 at [21].

113

See R v Adomako [1995] 1 AC 171, and further discussion in Chapter 6.

114

eg Doing or omitting anything to endanger passengers by railway contrary to section 34 of the Offences Against the Person Act 1861.

115

Contrary to the Fraud Act 2006.

116

Contrary to the Bribery Act 2010.

117

For example, offences under section 170 of the Data Protection Act 2018 or contrary to the Official Secrets Act 1989. There are a huge number of statutory offences that can apply in these circumstances. For further details see: Protection of Official Data (2017) Law Commission Consultation Paper No 230.

118

Contrary to the Sexual Offences Act 2003.

119

Criminal Justice and Courts Act 2015, s 26.

120

See M Ellison QC, The Stephen Lawrence Independent Review: Possible Corruption and the Role of Undercover Policing in the Stephen Lawrence Case (6 March 2014) HC 1038, available at https://www.gov.uk/govemment/publications/stephen-lawrence-independent-review.

121

Criminal Justice and Courts Act 2015, s 26(1).

122

  Criminal Justice and Courts Act 2015, s 26(4).

123

  Criminal Justice and Courts Act 2015, s 26(2).

124

As at December 2019. See Ministry of Justice, Criminal Justice System Statistics publication: Proceedings and Outcomes by Home Office Code 2013 to 2019: Pivot Table Analytical Tool for England and Wales Time Period: 12 months ending December 2013 to 12 months ending December 2019 (May 2020), available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment data/file/888344/H O-code-tool-principal-offence-2019.xlsx.

125

M Aronson, Misfeasance in Public Office, in Issues Paper 1 (2016), Appendix B.

126

Ashby v White (1703) 2 Ld Raym 938; 1 Smith LC (13th ed) 253.

127

M Aronson, Misfeasance in Public Office, in Issues Paper 1 (2016), Appendix B, p 4.

128

Bourgoin SA v Ministry of Agriculture, Fisheries and Food [1986] 1 QB 716.

129

M Aronson, Misfeasance in Public Office, in Issues Paper 1 (2016), Appendix B, p 1.

130

  [2001] UKHL 16; [2003] 2 AC 1.

131

M Aronson, Misfeasance in Public Office, in Issues Paper 1 (2016), Appendix B, p 19.

132

eg Judicial calls for a review of the offence have been made in the cases of R v DL [2011] EWCA Crim 1259; [2011] 2 Cr App R 14 at [21] and R v Cosford [2013] EWCA Crim 466; [2014] QB 81 at [39].

133

R v Belton [2011] QB 934; [2010] EWCA Crim 2857.

134

  R v Cosford [2013] EWCA Crim 466; [2014] QB 81.

135

  R v Mitchell [2014] EWCA Crim 318; [2014] 2 Cr App R 2.

136

See further paragraph 2.25 of this report.

137

See YL v Birmingham City Council [2007] UKHL 27; [2008] 1 AC 95.

138

The leading case on this issue is R v Panel on Takeovers and Mergers Ex p. Datafin Plc [1987] QB 815 (Datafin).

139

Kokkinakis v Greece (1994) 17 EHRR 397 at [52]. See also K Stevenson and C Harris, “Breaking the thrall of ambiguity: simplification (of the criminal law) as an emerging human rights imperative” (2010) 74(6) Journal of Criminal Law 516.

140

Issues Paper 1 (2016), Annex C [C.35].

141

Johnson v Westminster Magistrates' Court [2019] EWHC 1709 (Admin) (03 July 2019); [2019] 1 WLR 6238 at [29].

142

  [2004] EWCA Crim 868; [2005] QB 73.

143

Attorney General’s Reference (No 3 of 2003) [2004] EWCA Crim 868; [2005] QB 73 at [26] to [30].

144

  [2004] UKHL 50; [2004] 1 AC 1034.

145

Attorney General’s Reference (No 3 of 2003) [2004] EWCA Crim 868; [2005] QB 73 at [61].

146

R v Chapman [2015] EWCA Crim 539; [2015] QB 883 at [36] to [40].

147

See R v Misra [2004] EWCA Crim 2375; [2005] 1 Cr App R 21 at [59], where the Court of Appeal considered a similar test in the context of the offence of gross negligence manslaughter, and its compatibility with article 7 of the European Convention on Human Rights.

148

  [2011] EWCA Crim 1259; [2011] 2 Cr App R 14.

149

R v DL [2011] EWCA Crim 1259; [2011] 2 Cr App R 14 at [21].

150

See paragraphs 2.28 to 2.34 of this report.

151

BBC, Sun journalist’s lawyer queries use of ‘vague’ law (21 March 2015), available at https://www.bbc.co.uk/news/uk-31998319.

152

CPS response to the consultation paper, p 5.

153

See, eg R v Travers (26 January 2018) Central Criminal Court (unreported). The gross negligence manslaughter charge also requires proof of a serious and obvious risk of death which is not a requirement in misconduct.

154

Attorney General’s Reference (No 3 of 2003) [2004] EWCA Crim 868; [2005] QB 73 at [64].

155

Criminal Justice and Courts Act 2015, s 26.

156

As at December 2019. See Ministry of Justice, Criminal Justice System Statistics publication: Proceedings and Outcomes by Home Office Code 2013 to 2019: Pivot Table Analytical Tool for England and Wales Time Period: 12 months ending December 2013 to 12 months ending December 2019 (May 2020), available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment data/file/888344/H O-code-tool-principal-offence-2019.xlsx.

157

See paragraphs 2.82 to 2.87 of this report.

158

The Law Society - Response to Issues Paper 1 (2016), p 2.

159

Consultation Paper (2016), para 2.149.

160

Consultation Paper (2016), Ch 7.

161

Issues Paper 1 (2016), Ch 6.

162

For further details, see Issues Paper 1 (2016), Annex D.

163

eg If a police officer were to misuse a confidential database to obtain the contact details of a victim, and seek to pursue a relationship with them, a prosecution merely on the basis of database misuse would not fully describe or condemn the breach of public trust involved with the subsequent misuse of that information.

164

R v Harris [2018] EWCA Crim 2002; [2019] 1 Cr App R (S) 18.

165

  See Consultation Paper (2016), para 3.3.05 and Issues Paper 1 (2016), Annex D.

166

Fraud Act 2006, s 4.

167

Bribery Act 2010, s 2.

168

Most notably, the common law offence of perverting the course of justice. See R v Vreones [1891] 1 QB 360.

169

Prison Act 1952, s 40C.

170

Stuart P Green, “Why It’s a Crime to Tear the Tag Off a Mattress: Overcriminalization and the Moral Content of Regulatory Offences” (1997) 46 Emory Law Journal 1533. Professor Green was an academic on our advisory panel for this project.

171

Consultation Paper (2016), Ch 3.

172

R v Dytham [1979] QB 722.

173

R v Kadiri [2017] EWCA Crim 2667, [2019] 1 Cr App R (S) 25. In this case, an HMRC employee pleaded guilty to misconduct in public office (and wrongful disclosure of Revenue and Customs information), after accessing databases for reasons other than work that were motivated by her husband’s relationship with a new partner, rather than financial reasons.

174

  J Horder, Criminal Misconduct in Office (2018).

175

  J Horder, Criminal Misconduct in Office (2018), p 19.

176

  J Horder, Criminal Misconduct in Office (2018), p 38.

177

  J Horder, Criminal Misconduct in Office (2018), pp 19, 32.

178

  J Horder, Criminal Misconduct in Office (2018), p 19.

179

  J Horder, Criminal Misconduct in Office (2018), p 35.

180

  J Horder, Criminal Misconduct in Office (2018), p 37; see AP Simester and A Hirsch, Crime, Harms and

Wrongs: On the Principles of Criminalisation (2011), p 64.

181

J Horder, Criminal Misconduct in Office (2018), p 38.

182

  J Horder, Criminal Misconduct in Office (2018), p 36.

183

  J Horder, Criminal Misconduct in Office (2018), p 37.

184

  J Horder, Criminal Misconduct in Office (2018), pp 37 to 38.

185

  J Horder, Criminal Misconduct in Office (2018), pp 28 to 29.

186

J Horder, Criminal Misconduct in Office (2018), p 19. eg Horder queries whether the use of highly abusive language by a police officer towards demonstrators would fall within the terms of our proposed corruption offence.

187

We considered in particular equivalent offences in Australia, Canada, Hong Kong, Scotland and Caribbean states.

188

eg Finland (Ch 4, s 9 of Finnish Penal Code): “a public official, when acting in his or her office, intentionally... violates his or her official duty based on the provisions or regulation to be followed in official functions; Norway (s 171 of Norwegian Penal Code): “the violation of an official duty in the exercise of a public office is a criminal offence when it is of gross nature”; France: Penal Code Article 432-1 to 432-17 which outlines a range of “offences against the government committed by civil servants”.

See generally Frank Zimmerman (ed), Criminal Liability of Political Decision-Makers: A Comparative Perspective (2017).

189

Criminal Justice and Courts Act 2015, s 26. See eg, Alisha Buaya, “Police officer, 38, 'had sexual relationship with vulnerable domestic abuse victim he was tasked with helping after meeting her on duty’”, Mail Online (15 August 2019), available at https://www.dailymail.co.uk/news/article-7360859/Hednesford-police-officer-38-sexual-relationship-vulnerable-domestic-abuse-victim.html, and Jordan Coussins, “Mugshot released of disgraced Sandwell police officer who had sexual activity with victims”, Birmingham Mail (10 July 2019), available at https://www.birminghammail.co.uk/black-country/mugshot-released-disgraced-sandwell-police-16563054.

190

Report of the Royal Commission on Standards of Conduct in Public Life (1976) Cmnd 6524 (“The Salmon Commission”), Chapter 10.

191

HM Government, United Kingdom Anti-Corruption Strategy 2017-2022 (2017), available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment data/file/667221/6 3323 Anti-Corruption Strategy WEB.pdf.

192

Courts and Tribunals Judiciary, Speech by Rt Hon Lord Justice Bean: Misconduct in Public Office (7 November 2018), p 19, available at https://www.judiciary.uk/announcements/speech-by-rt-hon-lord-justice-bean-misconduct-in-public-office/. In addition, the Rt Hon Lord Justice Bean considered that there were two other realistic options: replacing the common law offence “by a carefully drafted corruption offence consisting of abuse of the defendant’s position, as a holder of public office, in order to achieve a financial benefit for himself or for someone else”; or to “leave things as they are” (at p 19).

193

See paragraphs 3.15 to 3.16

194

   R v Cosford [2013] EWCA Crim 466; [2014] QB 81. We discuss the facts of this case further in Chapter 2.

195

  R v Cosford [2013] EWCA Crim 466; [2014] QB 81 at [36].

196

  R v Cosford [2013] EWCA Crim 466; [2014] QB 81 at [39].

197

Issues Paper 1 (2016), Appendix C, para C.35.

198

See further Sunday Times v UK (No 1) (1979-80) 2 EHRR 245 at [49], in which the European Court of Human Rights considered the qualities necessary for something to be considered “prescribed by law” for the purposes of the Convention. In the case of Kokkinakis v Greece (1994) 17 EHRR 397 the Court held that “an offence must be clearly defined in law... [so] the individual can know from the wording of the relevant provision, and if need be, with the assistance of the courts’ interpretation of it, what acts and omissions will make him liable” - at [52]. However, see also SW v UK App No 20166/92 (Chamber decision), in which the applicant, who had been found guilty of raping his wife on 18 September 1990, submitted that the retrospective application of the common law after R v R [1991] UKHL 14; [1992] 1 AC 599 (which had held that a man could be found guilty of raping his wife) was incompatible with Article 7 of the ECHR. In dismissing the application, it was held that: “Article 7 of the Convention cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen” - at [36].

199

R v Mitchell [2014] EWCA Crim 318; [2014] 2 Cr App R 2.

200

Canadian Criminal Code, s 118.

201

The leading case in Victoria being R v Quach [2010] VCSA 106; [2010] 201 A Crim R 522 (Supreme Court of Victoria), with Blackstock v R [2013] NSWCCA 172 (New South Wales Court of Criminal Appeal) setting out the offence in New South Wales.

202

See Criminal Code Act 1995 (Cth), s 142; Criminal Law Consolidation Act 1935 (SA), s 251; Criminal Code Act 1924 (Tas), s 83; Criminal Code Act Compilation Act 1913 (WA), s 83; Criminal Code Act 1899 (Qld), ss 92 and 92A; Criminal Code Act (NT), ss 76 to 81; Criminal Code 2002 (ACT), s 359.

203

Section 1 of the Criminal Code Act 1924 (Tas) defines “public officer” as “a person holding any public office, or who discharges any duty in which the public are interested, whether such person receives payment for his services or not”.

204

  Criminal Code Act Compilation Act 1913 (WA), s 1.

205

Criminal Law Consolidation Act 1935 (SA), s 237; Independent Commissioner Against Corruption Act 2012, Sch 1.

206

eg “Any other public sector employee”, “a person performing contract work for a public authority or the Crown” and “a member of a local government body”.

207

By virtue of section 75A of the Criminal Code Act (NT), which draws on the definition of public officer found in sections 4 and 16(2) of the Independent Commissioner Against Corruption Act 2017 (NT).

208

Criminal Code 2002 (ACT), s 300.

209

Crimes Act 1961 (NZ), s 100.

210

Crimes Act 1961 (NZ), s 102(1).

211

Crimes Act 1961 (NZ), s 103(1).

212

Crimes Act 1961 (NZ), s 104(1).

213

Crimes Act 1961 (NZ), s 105(1).

214

Crimes Act 1961 (NZ), s 99.

215

Prevention of Corruption (Amendment) Act, 2001 (Ireland), s 8.

216

  Prevention of Corruption (Amendment) Act, 2001 (Ireland), ss 8(2) and 5(b)(ii).

217

A Brown, “Wilful Neglect of Duty by Public Officials” (1996) 64 Scottish Law Gazette 130, 132.

218

HKSAR v Wong Lin Kay [2012] HKCFA 33; [2012] 2 HKLRD 898.

219

HKSAR v Wong Lin Kay [2012] HKCFA 33; [2012] 2 HKLRD 898 at [22], per Ribeirio PJ.

220

Chan Tak Ming v HKSAR [2010] HKCFA 74; [2011] 1 HKLRD 766.

221

Who concluded that “the boundaries of the public sector will, in the last resort, be arbitrary and there are bound to be some perplexing cases at the fringes.” See Report of the Royal Commission on Standards of Conduct in Public Life (1976) Cmnd 6524 (“The Salmon Commission”), Chapter 10.

222

Pamphlet “Misuse of public office: a consultation paper” accompanying the Committee on Standards in Public Life, Third Report - Standards of Conduct in Local Government - Volume 1 (July 1997) Cm 3702-I, [18] and [22].

223

Though this position has been powerfully critiqued by Professor Andrew Ashworth. See A Ashworth, “Ignorance of the Criminal Law, and Duties to Avoid it” (2011) 74(1) Modern Law Review 1.

224

By this we mean seeking to avoid criminalising conduct more than is necessary in contemporary society. See: D Husak, Overcriminalization: The Limits of the Criminal Law (2008). The theory of “minimal criminalisation” is not unanimously accepted by commentators. See J Horder, “Bribery as a form of criminal wrongdoing” (2011) 127 Law Quarterly Review 37.

225

  Consultation Paper (2016), para 4.78.

226

See sections 75, 76 and 77 of the Marriage Act 1948. In our recent consultation paper in relation to weddings law we provisionally proposed the removal of some of these offences. However, we provisionally proposed that it should be an offence where an officiant deliberately or recklessly misleads either of the couple about the effect of the ceremony. See Getting Married: A Consultation Paper on Weddings Law (2020) Consultation Paper 247, pp 297 to 302. Should this provisional proposal be adopted, we consider that the criminal law would remain capable of dealing with serious misuse or abuse of the role of wedding officiant.

227

For example, offences of fraud under the Fraud Act 2006. There are also specific provisions that criminalise forced marriage under sections 120 and 121 of the Anti-social Behaviour, Crime and Policing Act 2014.

228

R v Bannister [2009] EWCA Crim 1571; [2010] 1 WLR 870.

229

The relevant guidance for police is in such a circumstance is set out in the College of Policing Authorised

Professional Practice guidance on police pursuits. See: https://www.app.college.police.uk/app-content/road-policing-2/police-pursuits/. It is highly likely that a court would consider the extent to which the conduct of a police officer conformed to this guidance in assessing whether they had committed a misconduct offence.

230

For guidance surrounding police driving generally, see: https://www.app.college.police.uk/app-content/road-policing-2/police-driving/. This guidance provides that “...police officers are regularly expected to attend immediate response calls to help the public or deal with ongoing road related incidents. To do so in line with duty, officers are required to extend their driving skills beyond that of a careful and competent driver . Where there is a departure from the legal standard, then in line with the DPP’s guidance to CPS for emergency service driving personnel, officers or those involved in the delivery of higher level driver training, must be able to show justification, proportionality and necessity for their actions and decision making based on the circumstances of the incident or nature of the role they are performing”.

231

eg The Teacher Regulation Agency is an executive agency sponsored by the Department for Education. It has responsibility for the regulation of the teaching profession, including misconduct hearings and the maintenance of the database of qualified teachers: See: Teacher Regulation Agency, https://www.gov.uk/government/organisations/teaching-regulation-agency.

232

Criminal Justice and Courts Act 2015, s 20(5).

233

Consultation Paper (2016), Ch 6.

234

See Crown Prosecution Service, Police officers who failed to investigate child abuse cases facing prison (14 March 2019), available at https://www.cps.gov.uk/cps/news/police-officers-who-failed-investigate-child-abuse-cases-facing-prison. The two officers were sentenced to two years’ imprisonment and 18 months’ imprisonment following their convictions for misconduct in public office They unsuccessfully appealed against the severity of the sentences in R v Pollard [2019] EWCA Crim 1638; [2020] 1 Cr. App. R. (S.) 24.

235

Crown Prosecution Service, Police officers who failed to investigate child abuse cases facing prison (14 March 2019).

236

R v W [2010] EWCA Crim 372; [2010] QB 787.

237

Attorney General’s Reference (No 3 of 2003) [2004] EWCA Crim 868; [2005] QB 73 at [61].

238

R v Chapman [2015] EWCA Crim 539; [2015] 2 Cr App R 10.

239

R v France [2016] EWCA Crim 1588; [2017] 1 Cr App R 19.

240

   Consultation Paper (2016), Ch 6.

241

   Consultation Paper (2016), para 6.91.

242

  Consultation Paper (2016), para 6.11.

243

Pete Weatherby QC responded in his capacity as one of the drafters of the Public Authorities Accountability Bill, being proposed by a group of lawyers who previously represented the families of those who died in the Hillsborough disaster.

244

Criminal Justice and Courts Act 2015, s 26.

245

Blackstone’s Criminal Practice (2019), para B1.63.

246

 R v Adomako [1995] 1 AC 171.

247

  R v Adomako [1995] 1 AC 171, 187.

248

  R v Adomako [1995] 1 AC 171, 187.

249

  R v Misra [2004] EWCA Crim 2375; [2005] 1 Cr App R 21 (328).

250

  R v Misra [2004] EWCA Crim 2375; [2005] 1 Cr App R 21 (328) at [64], per Judge LJ.

251

  [2016] EWCA Crim 1716; [2017] 1 Cr App R 24.

252

R v Sellu [2016] EWCA Crim 1716; [2017] 1 Cr App R 24 at [152].

253

If the conduct is always serious as Professor Horder suggests, there is no problem in spelling that out for the jury as they will always find it to be serious.

254

By this we mean seeking to avoid criminalising conduct more than is necessary in contemporary society.

See: D Husak, Overcriminalization: The Limits of the Criminal Law (2008). The theory of “minimal criminalisation” is not unanimously accepted by commentators. See J Horder, “Bribery as a form of criminal wrongdoing” (2011) 127 Law Quarterly Review 37.

255

See our discussion of these concerns in Chapter 3.

256

See HKSAR v Ho Hung Kwan Michael [2013] HKCFA 83, (2013) 16 HKCFAR 525.

257

See Boulanger [2006] 2 SCR 49; [2006] SCC 32.

258

Boulanger [2006] 2 SCR 49; [2006] SCC 32 at [49], per McLachlin CJ.

259

Consultation Paper (2016), para 6.24.

260

As we note at paragraph 2.52, a recent example of this in respect of the current “acting as such test” was the case of Johnson v Westminster Magistrates' Court [2019] EWHC 1709 (Admin) (03 July 2019); [2019] 1 WLR 6238. However, in this case, the court firmly dismissed the argument that defendant was “acting as such”.

261

BBC, “Sandy Ezekiel guilty of four charges of misconduct” (1 March 2013), available at: https://www.bbc.co.uk/news/uk-england-kent-21632631.

262

 HKSAR v Wong Lin Kay [2012] HKCFA 33; [2012] 2 HKLRD 898 at [22], per Ribeirio PJ.

263

Canadian Criminal Code, s 122.

264

R v Quach [2010] VSCA 106.

265

Criminal Code Act 1995 (Cth), s 142(2).

266

Criminal Law Consolidation Act 1935 (SA), s 251(1).

267

Criminal Code Act 1924 (Tas), s 83.

268

  Criminal Code Act Compilation Act 1913 (WA), s 83.

269

  Criminal Code Act 1899 (Qld), s 92.

270

  Criminal Code Act 1899 (Qld), s 92A.

271

Prevention of Corruption (Amendment) Act 2001 (Ireland), s 8(1).

272

Crimes Act 1961 (NZ) ss 105(1), 105A(1).

273

The United Nations Convention Against Corruption entered into force on 14 December 2005, and was ratified by the UK on 9 February 2006.

274

Criminal Justice and Courts Act 2015, subs 26(6) to (7).

275

See CPS, Police officers who failed to investigate child abuse cases facing prison (14 March 2019), available at https://www.cps.gov.uk/cps/news/police-officers-who-failed-investigate-child-abuse-cases-facing-prison.

276

R v Woollin [1999] 1 AC 82; [1998] 4 All ER 103.

277

Based in one sense on R v Ghosh [1982] EWCA Crim 2; [1982] QB 1053.

278

An example of concern they cited under the current law was charges being brought against external training staff in prison, who had been given no formal training in appropriate boundaries, and had engaged in sexual conduct with prisoners.

279

  [2017] UKSC 67; [2018] AC 391.

280

  [2020] EWCA Crim 575; [2020] 2 Cr App R 7.

281

  [2017] UKSC 67; [2018] AC 391 at [57]. For arguments to the contrary see D Ormerod and K Laird “Much

ado about nothing?” in D Cleary, (ed) The Supreme Court Yearbook (2019).

282

Criminal Justice and Courts Act 2015, s 26(1)(a).

283

See Attorney General’s Reference (No 3 of 2003) [2004] EWCA Crim 868; [2005] QB 73 at [61].

284

  R v Chapman [2015] EWCA Crim 539; [2015] QB 883 at [36] to [40].

285

  R v Chapman [2015] EWCA Crim 539; [2015] 2 Cr App R 10. This case was one of the appeals in relation to

the Operation Elveden prosecutions that were conducted several years ago. We discuss these in more detail in Chapter 2.

286

R v Chapman [2015] EWCA Crim 539; [2015] 2 Cr App R 10 at [36].

287

Attorney General’s Reference (No 3 of 2003) [2004] EWCA Crim 868; [2005] QB 73 at [61].

288

eg, see Re A (Children) [2000] 4 All ER 961; [2001] Crim LR 400.

289

Digital Economy Act 2017, s 41(2)(k).

290

This provision replaced s 55 of the Data Protection Act 1998.

291

Data Protection Act 2018, s 1.

292

Data Protection Act 2018, s 3(c)(iii).

293

Janosevic v Sweden (34619/97) (2004) 38 EHRR 473 at [101].

294

See, for example, the House of Lords’ opinions in Lambert [2001] UKHL 37; [2002] 2 AC 545; Johnstone [2003] UKHL 28; [2003] 1 WLR 1736; and Sheldrake and Others [2004] UKHL 43; [2004] 3 WLR 976.

295

R v Johnstone [2003] UKHL 28; [2003] 1 WLR 1736; [2003] All ER 884.

296

R v Johnstone [2003] UKHL 28; [2003] 1 WLR 1736; [2003] All ER 884 at [50].

297

Sheldrake v Director of Public Prosecutions [2004] UKHL 43; [2004] 3 WLR 976 at [33].

298

R v Webster [2010] EWCA Crim 2819; [2011] 1 Cr App Rep 16 at [22], per Pitchford LJ.

299

Attorney-General of Hong Kong v Lee Kwong-Kut [1993] AC 951, p 969.

300

  Protection of Official Data (2020) Law Com No 395, p 244, Recommendation 32.

301

  Protection of Official Data (2020) Law Com No 395, p 261, Recommendation 33.

302

See for example the case of R v Leyzell [2019] EWCA Crim 385, where a police officer pleaded guilty to misconduct in public office in relation to his conduct in contacting a woman on social media after responding to a crime report and then entering into a sexual relationship with her.

303

There is overlap between these categories, and Sjolin and Edwards divide them slightly differently: C Sjolin and H Edwards, “When misconduct in public office is really a sexual offence” (2017) 81(4) Journal of Criminal Law 292.

304

For example, the case of R v Harris [2018] EWCA Crim 2002, which involved a police Sexual Offences Liaison Officer who accessed a rape victim’s email and Facebook account and downloaded images of her.

305

Note that we also recommend the repeal of this offence if our primary recommendations are adopted - see para 5.158 below.

306

Hansard, 6 March 2014, Col 1065.

307

Consultation Paper (2016), para 2.51.

308

Issues Paper 1 (2016), para 3.13.

309

Issues Paper 1 (2016), para 3.16.

310

As at December 2019. See Ministry of Justice, Criminal Justice System Statistics publication: Proceedings and Outcomes by Home Office Code 2013 to 2019: Pivot Table Analytical Tool for England and Wales Time Period: 12 months ending December 2013 to 12 months ending December 2019 (May 2020), available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment data/file/888344/H O-code-tool-principal-offence-2019.xlsx.

311

Attorney General’s Reference (No 3 of 2003) [2004] EWCA Crim 868; [2005] QB 73.

312

R v Dytham [1979] QB 722; see also the conviction of Sgt Andrew Kennedy, who was convicted of misconduct in public office after failing to intervene to prevent the violence inflicted by his colleague PC Jason Harvey upon a suspect: BBC, Skull threat Greater Manchester PC faces hearing (12 March 2010), available at http://news.bbc.co.Uk/1/hi/england/manchester/8564131.stm.

313

  Consultation Paper (2016), para 3.281.

314

  Consultation Paper (2016), para 5.4.

315

  Consultation Paper (2016), paras 5.214 to 5.219.

316

  Consultation Paper (2016), para 5.70.

317

In our Consultation Paper (2016) (p 157), we explained that we defined serious injury in the same way that we defined it in our report on Reform of Offences against the Person: as really serious injury. We include injuries of both the physical and mental kind, noting that the criminal law recognises psychiatric injury as a form of bodily harm, but distinguishes this from psychological harm and “mere emotions” such as fear, distress or panic: see Reform of Offences against the Person (2015) Law Com 361 at para 4.124.

318

  Consultation Paper (2016), para 5.151.

319

See R v Rudling [2016] EWCA 741; R v Honey Rose [2017] EWCA Crim 1168; [2018] QB 328.

320

In the case of R v Rahman (1985) 81 Cr App R 349 (at p 353) false imprisonment was defined as “the unlawful and intentional or reckless restraint of a victim’s freedom of movement from a particular place”.

321

R v Vreones [1891] 1 QB 360.

322

See M Evans, Police officers sabotaged child abuse investigations through ‘laziness’, court hears (17 January 2019), available at https://www.telegraph.co.uk/news/2019/01/17/police-officers-sabotaged-child-abuse-investigations-laziness/.

323

R v Miller [1983] 2 AC 161.

324

  Corporate Manslaughter and Corporate Homicide Act 2007, s 3.

325

  Corporate Manslaughter and Corporate Homicide Act 2007, s 4.

326

  Corporate Manslaughter and Corporate Homicide Act 2007, s 5.

327

  Corporate Manslaughter and Corporate Homicide Act 2007, s 6.

328

  Corporate Manslaughter and Corporate Homicide Act 2007, s 7.

329

  Consultation Paper (2016), p 134.

330

  Consultation Paper (2016), para 5.23.

331

See The Independent, “Bijan Ebrahimi murder: Two police officers convicted of misconduct in a public office in connection with disabled man's killing” (21 December 2015), available at:

https://www.independent.co.uk/news/uk/crime/bijan-ebrahimi-murder-two-police-officers-convicted-misconduct-public-office-pc-kevin-duffy-pcso-a6781856.html.

332

More specifically, it is an endangerment offence which is predominantly conduct focused but includes consequence elements.

333

By this we mean circumstances whereby a moral agent is assigned moral blame or praise for an action or its consequences even if it is clear that said agent did not have full control over either the action or its consequences.

334

See R v Cosford [2013] EWCA Crim 466; [2013] 2 Cr App R 8. However, in this case the misconduct did not relate to the provision of medical care.

335

Offences only existed in respect of the ill-treatment and wilful neglect of patients receiving treatment for mental disorder (Mental Health Act 1983, s 127) and of those who lack capacity under the Mental Capacity Act 2005 (Mental Capacity Act 2005, s 44). There is also an offence of wilfully ill-treating or neglecting children in certain circumstances (Children and Young Persons Act 1933, s 1).

336

In the recent case of R v Kurtz [2018] EWCA Crim 2743 at [27], the Court of Appeal held that pursuant to section 44(1)(b) of the Mental Capacity Act 2005 - where D is guilty of an offence if he is the donee of a lasting or power of attorney created by P and ill-treats or wilfully neglects P - it is insufficient for the Crown to prove that D was the donee of a power of attorney and ill-treated or wilfully neglected P. The Crown must also prove that P lacked capacity, which is an element of the offence. The judgment also contemplated the original rationale for this pre-existing conduct crime, which pertained to “criminalising the neglect and ill-treatment of those suffering from mental disorder...” at [42].

337

R v Turbill and Broadway [2013] EWCA Crim 1422; [2014] 1 Cr App R 7.

338

R v Patel [2013] EWCA Crim 965; [2013] Med L R 507.

339

Criminal Justice and Courts Act 2015, s 20.

340

Road Traffic Act 1988, ss 1, 1A, 2.

341

Criminal Justice and Courts Act 2015, s 20.

342

Consultation Paper (2016), para 5.147.

343

See R v Ireland [1998] AC 147 and R v Dhaliwal [1998] AC 147.

344

R v Ireland [1998] AC 147, 158, per Lord Steyn.

345

R v Ireland [1998] AC 147, 159, per Lord Steyn.

346

AG’s Reference (No 3 of 2003) [2004] EWCA Crim 868; [2005] QB 73 at [26] to [30].

347

Consultation Paper (2016), para 5.219.

348

Consultation Paper (2016), para 5.109.

349

Consultation Paper (2016), para 5.108.

350

Jeremy Horder, Ashworth’s Principles of Criminal Law (8th ed, 2016) at para 180.

351

R v Adomako [1995] 1 AC 171.

352

R v Honey Rose [2017] EWCA Crim 1168; [2018] QB 328.

353

Further, it has been argued that the decision creates “a perverse incentive for those who owe a duty of care to another to do as little as possible to discharge it and in so doing avoid potential criminal liability”. See Karl Laird, “The evolution of gross negligence manslaughter” [2018] 1 Archbold Law Review 6, 8.

354

Kuddus v R [2019] EWCA Crim 837.

355

Kuddus v R [2019] EWCA Crim 837, at [80].

356

[2003] UKHL 50; [2004] 1 AC 1034.

357

Defined as “an offence triable either way” in section 51E(b) of the Crime and Disorder Act 1998.

358

Crime and Disorder Act 1998, s 51B.

359

Crime and Disorder Act 1998, s 51C.

360

Crime and Disorder Act 1998, s 17A.

361

Crime and Disorder Act 1998, ss 18 to 26.

362

Theft Act 1968, s 1.

363

Theft Act 1968, s 22.

364

Offences Against the Person Act 1861, s 47.

365

Misuse of Drugs Act 1971, ss 4 and 5.

366

Fraud Act 2006, s 1.

367

Road Traffic Act 1988, s 1.

368

Road Traffic Act 1988, s 3A.

369

Sexual Offences Act 2003, s 1.

370

Theft Act 1968, s 10.

371

Theft Act 1968, s 8.

372

Criminal Damage Act 1971, s 1(2).

373

Theft Act 1968, s 21.

374

R v D [1984] AC 778.

375

Public Order Act 1986, s 1.

376

Firearms Act 1968, ss 16, 16A.

377

Firearms Act 1968, s 18.

378

Crime and Disorder Act 1998, s 51(1).

379

The average daily cost to the court service of a sitting day in the Magistrates’ Court is £2,217 compared with £2,719 in the Crown Court. For the CPS, the cost difference is even greater. For example, where a late guilty plea is entered for a relatively straightforward case in the Magistrates’ Court the average cost is £271.52, compared with £647.91 in the Crown Court.

380

Issues Paper 1 (2016), para 2.221.

381

See Accessories and Abettors Act 1861, s 8.

382

See generally R v Jogee [2016] UKSC 8; [2017] AC 387. See also D Ormerod and K Laird, Smith, Hogan and Ormerod’s Criminal Law (15th ed, 2018), pp 186 to 191.

383

R v Chapman [2015] EWCA Crim 539; [2015] 2 Cr App R 10.

384

See BBC News, “Builder Kevin Wingrave admits bribing council boss” (10 November 2014), available at http://www.bbc.co.uk/news/uk-england-devon-29992509.

385

See, eg BBC, “Operation Elveden: Nine journalist have cases dropped” (17 April 2015), available at https://www.bbc.co.uk/news/uk-32355478; and R Greenslade, “Operation Elveden: a sad and sorry tale...” (26 February 2016), available at https://www.theguardian.com/media/greenslade/2016/feb/26/operation-elveden-a-sad-and-sorry-tale.

386

  R v Chapman [2015] EWCA Crim 539; [2015] 2 Cr App R 10 at [41] to [69].

387

  R v Chapman [2015] EWCA Crim 539; [2015] 2 Cr App R 10 at [55].

388

  R v Jogee [2016] UKSC 8; [2017] AC 387.

389

  R v Jogee [2016] UKSC 8; [2017] AC 387, at [90] to [91].

390

  See D Ormerod and K Laird, Smith, Hogan and Ormerod’s Criminal Law (15th ed, 2018), p 410.

391

  D Ormerod and K Laird, Smith, Hogan and Ormerod’s Criminal Law (15th ed, 2018), p 410.

392

There are also a number of “substantive inchoate offences”, such as encouraging or assisting suicide contrary to section 2 of the Suicide Act 1961.

393

Serious Crime Act 2007, s 44.

394

Serious Crime Act 2007, s 45.

395

Serious Crime Act 2007, s 46.

396

D Ormerod and R Fortson, “Serious Crime Act 2007: The Pt 2 Offences” [2009] 6 Criminal Law Review 389, 390.

397

Serious Crime Act 2007, s 50.

398

Serious Crime Act 2007, s 47(2).

399

Serious Crime Act 2007, s 47(5)(a).

400

Criminal Law Act 1977, s 1.

401

See D Ormerod and K Laird, Smith, Hogan and Ormerod’s Criminal Law (15th ed, 2018), p 437.

402

Criminal Law Act 1977, s 1(2). See R v Saik [2006] UKHL 18; [2007] 1 AC 18.

403

R v Walker [1962] Criminal Law Review 458. See also G Williams, Criminal Law: the General Part (1953), p

212.

404

See D Ormerod and K Laird, Smith, Hogan and Ormerod’s Criminal Law (15th ed, 2018), p 438.

405

R v Meyrick (1929) 21 Cr App R 94, 102.

406

R v Anderson [1986] AC 27.

407

See Criminal Justice Act 1987, s 12.

408

Attorney General’s Office, “Use of the common law offence of conspiracy to defraud” (29 November 2012) https://www.gov.uk/guidance/use-of-the-common-law-offence-of-conspiracv-to-defraud--6.

409

Attorney General’s Office, “Use of the common law offence of conspiracy to defraud” (29 November 2012) https://www.gov.uk/guidance/use-of-the-common-law-offence-of-conspiracv-to-defraud--6, at [6].

410

Welham v DPP [1961] AC 103; DPP v Withers [1975] AC 842; [1975] Crim LR 95.

411

  [1961] AC 103.

412

Welham v DPP [1961] AC 103, p 125.

413

Criminal Attempts Act 1981, s 6.

414

See Conspiracy and Attempts (2008) Law Commission Consultation Paper No 183.

415

[2014] EWCA Crim 186; [2014] 1 WLR 2867.

416

  (1990) 91 Cr App R 29; [1990] Crim LR 519, CA.

417

Criminal Attempts Act 1981, s 4.

418

This principle is subject to the caveat that a drunken intent is still an intent: R v Sheehan and Moore (1975) 60 Cr App R 308.

419

D Ormerod and K Laird, Smith, Hogan and Ormerod’s Criminal Law (15th ed, 2018) p 318.

420

DPP v Majewski [1976] UKHL 2; [1976] AC 443, p 478, per Lord Simon.

421

DPP v Majewski [1976] UKHL 2; [1976] AC 443, p 478, per Lord Simon.

422

See discussion of knowledge in DPP v Majewski [1976] UKHL 2; [1976] AC 443, 498, per Lord Russell.

423

A-G for Northern Ireland v Gallagher [1963] AC 349.

424

Bratty v A-G for Northern Ireland [1963] AC 386; R v Pordage [1975] Crim LR 575.

425

Ruse v Read [1949] 1 KB 377.

426

Durante [1972] 3 All ER 962.

427

R v Lipman [1970] 1 QB 152.

428

R v Grewal [2010] EWCA Crim 2448.

429

Bratty v A-G for Northern Ireland [1963] AC 386, 533.

430

Russell on Crime (1964); Hollond (1794) 5 TR 607; 101 ER 340; Issues Paper 1 (2016), para 2.226.

431

In the same way the usual rules of legal liability would apply in respect of unincorporated associations; Issues Paper 1 (2016), para 2.227; see D Ormerod and K Laird, Smith, Hogan and Ormerod’s Criminal Law (15th ed, 2018), Chapter 8.

432

Interpretation Act 1978, Sch 1.

433

See D Ormerod and K Laird, Smith, Hogan and Ormerod’s Criminal Law (15th ed, 2018) Ch 8 and Criminal Liability in Regulatory Contexts (2010) Law Com No 185, paras 1.60 to 1.88. On 3 November 2020 the Law Commission announced that the Government has asked the Law Commission to investigate the laws around corporate criminal liability and provide options to reform them. Further details in relation to this project are available at the project webpage: https://www.lawcom.gov.uk/project/corporate-criminal-liability/.

434

D Ormerod and K Laird, Smith, Hogan and Ormerod’s Criminal Law (15th ed, 2018), p 249.

435

Tesco Supermarkets Ltd v Nattrass [1972] AC 153.

436

D Ormerod and K Laird, Smith, Hogan and Ormerod’s Criminal Law (15th ed, 2018), p 259.

437

Forgery and Counterfeiting Act 1981, s 1.

438

Theft Act 1968, s 1.

439

Issues Paper 1 (2016), paras 2.210 to 2.220.

440

R v Smith (Wallace Duncan) No 4 [2004] EWCA Crim 631; [2004] QB 1418; Issues Paper 1 (2016), para 2.210.

441

R v Smith (Wallace Duncan) No 4 [2004] EWCA Crim 631; [2004] QB 1418; Issues Paper 1 (2016), para 2.211.

442

These include “the protective principle”, where acts done wholly abroad may be criminalised if they involve attacks on or threats against a state’s security of vital national interests, claims of jurisdiction based on the offender’s nationality, and more controversially, the “passive personality” principle, where a state asserts jurisdiction on basis of the nationality of the victims of criminal offences. See M Hirst, Jurisdiction and the Ambit of the Criminal Law (Oxford University Press, 2003), pp 48 to 51.

443

M Hirst, Jurisdiction and the Ambit of the Criminal Law (Oxford University Press, 2003), p 49.

444

These provisions are almost always restricted in application to British nationals or those domiciled in Britain; Issues Paper 1 (2016), para 2.212.

445

  M Hirst, Jurisdiction and the Ambit of the Criminal Law (Oxford University Press, 2003), p 209.

446

  Per Lord Roger of Earlsferry in R v Spear [2002] 3 All ER 1074; [2003] 1 AC 734, 1088, referring to the

effect of section 70 of the Army Act 1955, which had essentially the same effect.

447

Issues Paper 1 (2016), para 2.216.

448

Gordon, The Criminal Law of Scotland (3rd ed 2001) vol ii at [44-01].

449

Issues Paper 1 (2016), para 2.218.

450

However, the breadth of this provision is not without criticism. See, eg, J Lordi, “The UK Bribery Act: Endless Jurisdictional Liability on Corporate Violators” (2011) 44(3) Case Western Reserve Journal of International Law, 44(3), 955.

451

  By virtue of section 31(1) of the Criminal Justice Act 1948.

452

  By virtue of section 42(1) of the Armed Forces Act 2006.

453

  M Hirst, Jurisdiction and the Ambit of the Criminal Law (Oxford University Press, 2003), p 49.

454

  R v Jameson [1896] 2 QB 425; Air India v Wiggins [1980] 2 All ER 593.

455

Fraud Act 2006, s 1(3).

456

Bribery Act 2010, s 1.

457

Bribery Act 2010, s 2.

458

Criminal Damage Act 1971, s 4(1).

459

Sentencing Council, Arson and Criminal Damage Offences Guidelines Consultation (March 2018), available at https://www.sentencingcouncil.org.uk/wp-content/uploads/Arson-and-Criminal-Damage WEB.pdf.

460

Sentencing Council, Criminal Damage Statistical Bulletin (March 2018), available at

https://www.sentencingcouncil.org.uk/wp-content/uploads/Arson-and-criminal-damage-statistical-bulletin-

1.pdf.

461

Crown Prosecution Service, Misconduct in Public Office - Legal Guidance (16 July 2018), available at https://www.cps.gov.uk/legal-guidance/misconduct-public-office.

462

See, generally: Crown Prosecution Service, Consents to Prosecute (11 December 2018), available at https://www.cps.gov.uk/legal-guidance/consents-prosecute.

463

See, generally: A Ashworth, “Developments in the Public Prosecutor’s Office in England and Wales” (2000) 8(3) European Journal of Crime, Criminal Law and Criminal Justice 257, 258 to 259.

464

JUSTICE, “The Prosecution Process in England and Wales”, Criminal Law Review (1970), pp 668 to 683.

465

A Ashworth, “Developments in the Public Prosecutor’s Office in England and Wales” (2000) 8(3) European Journal of Crime, Criminal Law and Criminal Justice 257, 259; see also L Campbell, A Ashworth and M Redmayne, The Criminal Process (5th ed., 2019).

466

See: The Code for Crown Prosecutors (8th ed., 26 October 2018), available at

https://www.cps.qov.uk/publication/code-crown-prosecutors.

467

The Code for Crown Prosecutors (8th ed., 26 October 2018), [4.7].

468

J Rogers, “Restructuring the Exercise of Prosecutorial Discretion” (2006) 26(4) Oxford Journal of Legal Studies 775, 775. However, more broadly, a prosecutor’s failure to exercise the discretion to prosecute a serious assault was successfully appealed in the case of R (on the application of B) v DPP. In this case, the prosecution was terminated on the eve of the trial, on the basis that the complainant was suffering from a mental disorder which would undermine his reliability as a witness - therefore affecting the evidential stage of the Full Code Test. The High Court held that the failure to prosecute this case on this basis amounted to a violation of the complainant’s rights under article 3 of the European Convention on Human rights: R (on the application of B) v DPP [2009] EWHC 106 (Admin); [2009] 1 WLR 2072 at [70]; K Starmer, “Human rights, victims and the prosecution of crime in the 21st century” [2014] 11 Criminal Law Review 777.

469

  [2009] EWHC 106 (Admin); [2009] 1 WLR 2072.

470

  [2009] EWHC 106 (Admin); [2009] 1 WLR 2072 at [50]; K Starmer, “Human rights, victims and the

prosecution of crime in the 21st century” [2014] 11 Criminal Law Review 777, 782 to 783. A “merits based” approach focuses upon the quality of the evidence itself, rather than trying to predict the likely outcome of the case.

471

J Rogers, “Restructuring the Exercise of Prosecutorial Discretion” (2006) 26(4) Oxford Journal of Legal Studies 775, 793.

472

J Rogers, “Restructuring the Exercise of Prosecutorial Discretion” (2006) 26(4) Oxford Journal of Legal Studies 775, 798 to 799.

473

 [2018] EWHC 3508 (Admin); [2019] 2 WLR 722.

474

 [2018] EWHC 1844 (Admin); [2018] 4 WLR 118

475

R v Christopher Killick [2011] EWCA Crim 1608; [2012] 1 Cr App R 10. In Killick (at [48]), it was held that “... as a decision not to prosecute is in reality a final decision for a victim, there must be a right to seek a review”. See also K Starmer, “Human rights, victims and the prosecution of crime in the 21st century” [2014] 11 Criminal Law Review 777, 783 to 784.

476

Ministry of Justice, Code of Practice for Victims (last updated October 2015), para 2.2. At the time of writing, the Victims’ Code is the subject of a further government consultation. See Ministry of Justice, Government Response to the Consultation: Proposals for Revising the Code of Practice for Victims of Crime (March 2020), available at https://consult.justice.gov.uk/victim-policy/consultation-on-improving-the-victims-code/supporting documents/improvingthevictimscode.pdf.

477

Defined as a “person who has suffered harm, including physical, mental or emotional harm or economic loss which was directly caused by criminal conduct”.

478

CPS, The decision not to prosecute Lord Janner- statement from DPP (16 April 2015), available at https://web.archive.org/web/20150416145609/http://blog.cps.gov.uk/2015/04/thezdecision2not:tozprosecytez lord-janner-statement-from-the-dpp.html.

479

On 7 December 2015, it was ruled that Lord Janner was unfit to stand trial. Lord Janner died on 19 December 2015 and had always protested his innocence. See: R Parsons, Seven Yorkshire sex crime victims have ‘no-charge’ decisions reversed (2015), available at https://www.yorkshirepost.co.uk/news/seven-yorkshire-sex-crime-victims-have-no-charge-decisions-reversed-1-7334585; R Syal, Lord Janner found unfit to stand trial for alleged sex offences (7 December 2015), available at https://www.theguardian.com/uk-news/2015/dec/07/lord-janner-found-unfit-stand-trial-alleged-sex-offences.

480

J Rozenberg, The Lord Janner U-turn is the CPS’s own fault (29 June 2015), available at https://www.theguardian.com/commentisfree/2015/jun/29/lord-janner-cps-child-sex-offences.

481

See: Association of Chief Police Officers, National Policing Guidelines on Police Victim Right to Review (2015), available at

http://operationresolve.co.uk/media/1370/np guidance on police victim right to review feb 2.pdf .

482

Misconduct in Public Office - Legal Guidance (16 July 2018), available at https://www.cps.gov.uk/legal-guidance/misconduct-public-office.

483

In our report, Simplification of Criminal Law: Public Nuisance and Outraging Public Decency (2015) Law Com No 358, we referred in detail to the key case of R v Rimmington [2005] UKHL 63; [2006] 1 AC 459. In his seminal judgment, Lord Bingham outlined the framework of the common law offence of public nuisance.

In particular, Lord Bingham identified that “where Parliament has defined the ingredients of an offence, perhaps stipulating what shall and shall not be a defence, and has prescribed a mode of trial and a maximum penalty, it must ordinarily be proper that conduct falling within that definition should be prosecuted for the statutory offence and not for a common law offence which may or may not provide the same defences and for which the potential penalty is unlimited” [at para 30].

484

R v W [2010] EWCA Crim 372; [2010] QB 787. See further discussion in Chapter 2.

485

However, misconduct in public office offence may be an appropriate charge when it is not clear if gross negligence manslaughter will be available, in the absence of an obvious and serious risk of death. For further information on manslaughter by gross negligence, see Blackstone’s Criminal Practice (2019), paras B1.63 to B1.68.

486

 [2004] EWCA Crim 868; [2005] QB 73.

487

See J Edwards, The Attorney-General, Politics and the Public Interest (1984), p 17.

488

B M Dickens, “The Attorney-General’s consent to prosecutions” (1972) 35 Modern Law Review 347, 354, lists the following examples: the Sunday Observation Prosecutions Act 1871, s 1; the Metalliferous Mines Regulation Act 1872, s 35; the Public Health Act 1875, s 253; the Territorial Waters Jurisdiction Act 1878, s 3; and the Explosive Substances Act 1883, s 7(1).

489

B M Dickens, “The Attorney-General’s consent to prosecutions” (1972) 35 Modern Law Review 347; Consents to Prosecution (1998) Law Com No 255, p 23.

490

A Ashworth, “Developments in the Public Prosecutor’s Office in England and Wales” (2000) 8(3) European Journal of Crime, Criminal Law and Criminal Justice 257, 262 to 263.

491

Bribery Act 2010, ss 10(1) and (4). The Director of the Serious Fraud Office can also provide personal consent where it is the relevant prosecuting agency.

492

Criminal Justice Act 2003, s 76(3).

493

Including various functions under the Serious Organised Crime and Police Act 2005 such as investigatory powers (ss 61 to 69), witness immunity notices (s 71), restricted use undertakings (s 72), sentence discount agreements (ss 73 and 74); applications for Serious Crime Prevention Orders under section 8 (a)(i) of the Serious Crime Act 2007, instigating civil proceedings and the making of certain orders under the Proceeds of Crime Act 2002; and the issue of arrest warrants in private prosecutions: Police Reform and Social Responsibility Act 2011, s 153.

494

Consents to Prosecution (1998) Law Com No 255, p iii.

495

Royal Commission on Criminal Procedure (Philips Report) 1981, para 7.56; Consents to Prosecution (1998) Law Com No 255, p 1.

496

A Ashworth, “Developments in the Public Prosecutor’s Office in England and Wales” (2000) 8(3) European Journal of Crime, Criminal Law and Criminal Justice 257, 262.

497

  Consents to Prosecution (1998) Law Com No 255, p 62.

498

  Consents to Prosecution (1998) Law Com No 255, p 62.

499

  Consents to Prosecution (1998) Law Com No 255, pp iv to v.

500

  Consents to Prosecution (1998) Law Com No 255, p 51.

501

Pamphlet “Misuse of public office: a consultation paper” accompanying the Committee on Standards in Public Life, Third Report - Standards of Conduct in Local Government - Volume 1 (July 1997) Cm 3702-I, [20].

502

While not determinative of the outcome, which was decided on the basis that Johnson was not “acting as such” for the purposes of the offence, the High Court also found that the basis on which the District Judge had found that the prosecution was not vexatious was “flawed”, see Johnson v Westminster Magistrates' Court [2019] EWHC 1709 (Admin) (03 July 2019), at [46].

503

See for example the case of R v Leyzell [2019] EWCA Crim 385, where a police officer pleaded guilty to misconduct in public office in relation to his conduct in contacting a woman on social media after responding to a crime report and then entering into a sexual relationship with her. Another recent example was that of a West Midlands care worker who pleaded guilty (on 10 January 2020) to misconduct in public office after having had a sexual relationship with a vulnerable young adult in her care. See Crown Prosecution Service, Care worker sentenced for misconduct in public office (12 March 2020), available at https://www.cps.gov.uk/west-midlands/news/care-worker-sentenced-misconduct-public-office.

504

See for example the 2019 case of a prison catering instructor employed by Her Majesty’s Prison and Probation Service who began a sexual relationship with a prisoner (Moretto), became pregnant by him, and used the prison systems to obtain highly confidential information about another prisoner with whom Moretto was in conflict and passed that information on to Moretto. She was sentenced to eight months' imprisonment for the offence of misconduct in a public office. See Crown Prosecution Service, Prison catering instructor pregnant by inmate jailed (12 September 2019), available at https://www.cps.gov.uk/west-midlands/news/prison-catering-instructor-pregnant-inmate-iailed.

505

There is overlap between these categories, and Sjolin and Edwards divide them slightly differently: C Sjolin and H Edwards, “When misconduct in public office is really a sexual offence” (2017) 81(4) Journal of Criminal Law 292.

506

P Rook and R Ward, Rook and Ward on Sexual Offences (5th ed., 2016), para 1.187.

507

Crown Prosecution Service, “What is consent?”, available at https://www.cps.gov.uk/sites/default/files/documents/publications/what is consent v2.pdf.

508

See R v Lomax [2019] EWCA Crim 254. The facts of the case were that on 20 October 1978, a then police officer attended the house of the victim, who had been fined by a court and was in arrears in her payment of that fine. The police officer indicated he would arrest the complainant and she would go to prison, unless she let him have sex with her and she felt she had no choice but to comply. A contemporaneous investigation did not result in any charges being laid, but a cold case review in 2016 matched DNA evidence from a semen sample on a towel taken from the scene with the former police officer. After maintaining his innocence and being found guilty at trial, the former police officer was sentenced to a total of four years and nine months’ imprisonment, comprising concurrent terms of four years and nine months for rape and two years for misconduct. Following a reference by the Attorney General, the Court of Appeal quashed this sentence on the basis that it was too lenient, and substituted them for a total term of eight years’ imprisonment, with sentences of eight years’ imprisonment for the offence of rape and four years’ imprisonment for the offence of misconduct in public office, to run concurrently.

509

N Docking, “On duty cop David Gibson who forced prostitute to perform sex act or be arrested is jailed” (5 February 2016), available at https://www.liverpoolecho.co.uk/news/liverpool-news/duty-cop-david-gibson-who-10848742.

510

Sentencing Council, Rape: Sexual Offences Act 2003, s 1 (1 April 2014), available at https://www.sentencingcouncil.org.uk/offences/crown-court/item/rape/.

511

Consultation Paper (2016), para 8.5.

512

See A. Ashworth and J. Temkin, “The Sexual Offences Act 2003: (1) Rape, sexual assaults and the problems of consent” [2004] Crim. L.R. 328; K Laird, “Rapist or rogue? Deception, consent and the Sexual Offences Act 2003” [2014] 7 Criminal Law Review 2014, 492.

513

Sexual Offences Act 1956, ss 2 and 3.

514

Sexual Offences Act 2003, Sch 7, para 1; The offences in the Sexual Offences Act 1956 were entitled “procurement of woman by threats” (section 2) and “procurement of woman by false pretences” (section 3). The Home Office report - “Setting the Boundaries: Reforming the law on sex offences - Volume 1” (July 2000), observed that sections 2 and 3 of the Sexual Offences Act 1956 were “very rarely used, possibly because the penalty is only 2 years”. It was added that “these offences can be used to deal with the supply end of the trafficking trade where threats or deception are involved” and there was a particular concern “to ensure that the law provided a remedy for ... people with learning disabilities, where low levels of threat or deception can be used to induce sex”. An editorial prior to the introduction of the Sexual Offences Act 2003, observed that a key theme of the new legislation was the “elimination as far as possible of discriminatory gender-specific offences, and greater protection for the sexual autonomy of victims”. It appears that the Sexual Offences Act 2003, with specific trafficking provisions (sections 57 to 60C) and offences relating to people with a mental disorder - especially section 34, “inducement, threat or deception to procure sexual activity with a person with a mental disorder” - was drafted to address these situations.

515

  Sexual Offences Act 2003, ss 16 to 19.

516

  Sexual Offences Act 2003, ss 30 to 41.

517

The Undercover Policing Inquiry was announced by the then Home Secretary, Theresa May MP on 12 March 2015, and its terms of reference were published on 16 July 2015. The Inquiry is focusing on undercover policing operations conducted by English and Welsh police forces since 1968, particularly relating to the role it has played in prevention and detection of crime, the effect upon individuals and the public - including potential miscarriages of justice, and the adequacy of training, regulation and oversight of undercover police officers. See: Undercover Policing Inquiry (12 March 2019), available at https://www.ucpi.org.uk/about-the-inquiry/.

518

R v Chapman [2015] EWCA Crim 539; [2015] 2 Cr App R 10. The facts of this case did not involve sexual misconduct, but rather a prison officer selling stories to a journalist relating to a high-profile prisoner. The case is important because it relates to the manner in which the trial judge must direct the jury as to the seriousness threshold for the offence. Specifically, the Court found that judge had erroneously not directed the jury, in making this assessment, to consider the degree of harm to the public caused by the conduct.

519

C Sjolin and H Edwards, “When misconduct in public office is really a sexual offence”, 81(4) Journal of Criminal Law 292.

520

See C Sjolin and H Edwards, “When misconduct in public office is really a sexual offence”, 81(4) Journal of Criminal Law 292.

521

R v Rimmington [2005] UKHL 64; [2006] 1 AC 459 at [30].

522

Misconduct in Public Office - Legal Guidance (16 July 2018), available at https://www.cps.gov.uk/legal-guidance/misconduct-public-office.

523

And these concerns were recently echoed in a report by the International Bar Association entitled “Sextortion: A crime of corruption and sexual exploitation” (2019), p 30, available at www.ibanet.org/Document/Default.aspx?DocumentUid=E5E451C2-A883-4518-B0ED-5AAAEBCDD5AA.

524

Sections 103A to 103K of the Sexual Offences Act 2003 provide for Sexual Harm Prevention Orders (“SHPO”), which can be imposed on anyone convicted of a sexual offence listed in Schedule 3 or Schedule 5 of the Sexual Offences Act 2003. The court must be satisfied that the offender presents a risk of sexual harm to the public and that an order is necessary to protect against this risk. A SHPO can place restrictions on an individual, including from travelling abroad. It applies for a minimum five-year period, but can also be set indefinitely. Failure to comply with a SHPO may risk a term of imprisonment. See: Sentencing Council, “22. Sexual harm prevention order” (2019), available at https://www.sentencingcouncil.org.uk/explanatory-material/magistrates-court/item/ancillary-orders/22-sexual-harm-prevention-orders/#.

525

Pursuant to section 80 of the Sexual Offences Act 2003, a person is subject to notification requirements if convicted or cautioned in respect of an offence listed in Schedule 3 of that Act. Sections 80 to 103 of the Sexual Offences Act 2003 create the framework for notification requirements.

526

Youth Justice and Criminal Evidence Act 1999, s 17(4).


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