2 weeks Ago By Vaughn Thomas
In recent times “misbehaviour in public office” has emerged as a popular offence against the criminal law of this country. Politicians, former politicians and police officers of every rank make up a large portion of the constituency of persons against whom such a charge has been preferred or threatened. Yet the public remains largely in the dark about what is really “misbehaviour in public office” and how it differs from administrative sloth and incompetence.
This ignorance is unfortunate since the mere allegation of this crime is often enough to topple even the most well insulated office holders, making it ripe for abuse by not-so-well-intentioned police investigators. “Misbehaviour in public office” is a common law offence—that is to say, it will not be found in the statute books of the revised laws in the same way as one can find the offences of larceny or rape, for example. Its rationale can be traced the decision of Lord Mansfield in R v Bembridge (1783) that those who hold public office carry out their duties for the benefit of the public as a whole, and if they abuse their office there is a breach of the public’s trust for which they are “answerable criminally to the King”.
The offence was defined in the Attorney General’s Reference (No 3 of 2003) to be made out where “a public officer acting in his capacity as such wilfully neglected to perform his duty and/or wilfully misconducted himself to such a degree as to amount to an abuse of the public’s trust in the office holder, without reasonable excuse or justification”. The circumstances in which the offence may be committed are broad and the conduct which may give rise to it is diverse. To start, the offence can only be committed by a public officer.
It doesn’t matter whether you are appointed by a service commission, on contract, or by instrument under seal of the President. You are a public officer so long as you hold an office of “important trust and consequence to the public”, which is a question of fact in each case. Being a public officer segues into the meat of the offence which is a breach of duty and the degree of that breach.
Not every breach of duty is criminally relevant. As the English Court of Appeal opined in the AG’s Reference (above), “there must be a serious departure from proper standards before the criminal offence is committed; and a departure not merely negligent but amounting to an affront to the standing of the public office held. The threshold is a high one requiring conduct so far below acceptable standards as to amount to an abuse of the public’s trust in the office holder.
A mistake, even a serious one, will not suffice”. Here lies enormous potential to overcharge in the sense that a charge of misbehaviour is preferred for conduct falling below the high threshold to “let the jury decide” with the consequence of career destruction for the public officer notwithstanding an ultimate acquittal. The question then is how is the degree of conduct to be assessed? To be culpable the conduct must be calculated to injure the public interest so as to call for condemnation and punishment.
So where a police officer on duty observes a person being beaten to death and pretends not to see or refuses to intervene for whatever reason such conduct is culpable to injure the public interest in police officers taking steps to arrest obviously criminal activity. It is important to consider the “consequences of the breach in deciding whether the conduct falls so far below the standard of conduct to be expected of the officer as to constitute the offence. The conduct cannot be considered in a vacuum: the consequences likely to follow from it, will often influence the decision as to whether the conduct amounted to an abuse of the public’s trust in the officer”.
There will be cases of obvious culpability such as clearly corrupt conduct but the vast majority of cases will call for a more rigorous assessment which is often beyond the capacity of many a police investigation. Even if the conduct of the public officer departs from the proper standards to such a high degree, there is no crime without the relevant mens rea. For there to be misbehaviour in public office the public officer must “wilfully” neglect to perform his duty or “wilfully” misconduct himself.
There must be an awareness of the duty to act or a subjective recklessness as to the existence of the duty. Wilful misconduct is deliberately doing something which is wrong knowing it to be wrong, or with reckless indifference as to whether it is wrong or not. Wilful neglect, on the other hand, is where the public officer knows he has a duty and deliberately refrains from carrying it out, or does not care whether or not he has a duty to be fulfilled.
It is clearly blameworthy to take an obvious and significant risk of causing injury to the public interest. But it is not clearly blameworthy to do something involving a risk of injury to the public interest if one genuinely does not perceive the risk. Such a person may fairly be accused of stupidity or lack of imagination, but neither of those failings should expose him to conviction of serious crime or the risk of punishment.
Misbehaviour is a highly technical and complex offence to establish. The law draws a fine line between incompetence or haplessness and crime. 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, or from mistake or error.
In the former case, alone, they have become the objects of punishment. To “punish as a criminal any person who, in the gratuitous exercise of a public trust, may have fallen into error or mistake belongs only to the despotic ruler of an enslaved people, and is wholly abhorrent from the jurisprudence” of English law. See R v Borron (1820).
The role of the Director of Public Prosecutions is critical to charging this offence. A charge cannot be left in the hands of police investigators who have no understanding of the nicer points of the common law and in whose hands there is a real risk of abuse through ignorance or antagonism. Public officers should not be publicly detained pending enquiries for misbehaviour in public office.
Arrests should only come after the DPP is satisfied that there is a case to be made to a jury. To do otherwise is to put into the hands of the police a tool which can be weaponised in palace coups in public institutions and not for the purpose of preserving public trust in public officers. —Author Vaughn Thomas is an attorney-at-law.
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