Misconduct in Public Office - would a prosecution of Ministers succeed?

In the immediate aftermath of the Covid-19 Inquiry's second report (previous post) there have been some calls (notably on X) for prosecution of Ministers for the common law offence of Misconduct in Public Office over their handling of the pandemic back in 2020.

 

The Inquiry Chairman (Baroness Hallett) characterised the handling as 'too little, too late.'

 

However that may be it is unlikely that any prosecution for this common law offence would have any prospect of success.

 

Baroness Hallett (Inquiry Chair) said:

 

 

 

The common law offence: 

The elements of the offence were set out in Attorney General's Reference 3/2003 reported at [2004] EWCA Crim 868. At para 61 of the judgment, the Court of Appeal (Criminal Division) summarised the requirements:

1. A public officer acting as such 

2. Wilfully neglects to perform his duty and/or wilfully misconducts himself 

3. To such a degree as to amount to an abuse of the public's trust in the office holder 

4. Without reasonable excuse or justification.

The court added that, as with other criminal charges, it will be for the judge to decide whether there is evidence capable of establishing guilt of the offence and, if so, for the jury to decide whether the offence is proved.

Law Commission: 

In December 2020 the Law Commission issued a recommendations that the current offence be repealed and replaced with two statutory offences:

• An offence of corruption in public office: which would apply where a public office holder knowingly uses or fails to use their public position or power for the purpose of achieving a benefit or detriment, where that behaviour would be considered seriously improper by a “reasonable person”. A defendant to this offence will have a defence if they can demonstrate that their conduct was, in all the circumstances, in the public interest.
• An offence of breach of duty in public office: which would apply where a public office holder is subject to and aware of a duty to prevent death or serious injury that arises only by virtue of the functions of the public office, they breach that duty, and in doing so are reckless as to the risk of death or serious injury.

To provide greater clarity around the scope of the offence, the Commission also recommended that there be a list of positions capable of amounting to “public office” set out in statute. The consent of the Director of Public Prosecutions should be required to prosecute the offence, to ensure that the right cases are prosecuted, and to prevent vexatious private prosecutions.

Public Office (Accountability) Bill: 

Currently before Parliament is the Public Office (Accountability) Bill. Clauses 12 (Seriously improper conduct) and 13 (Breach of duty to prevent death or serious injury) will, if eventually enacted, replace the Misconduct in Public Office offence which will be abolished (for the future) by Clause 16.

Consent of the DPP will be required. 

Schedule 4 to the Bill sets out, at length, those who will be Holders of Public Office. The list includes Ministers of the Crown. 

As the law stands:

If we assume that Ministers of the Crown are 'public officers' for the purposes of the common law offence, there are still formidable problems with bringing a prosecution. 

These include the point that, as a matter of law, the Coivd-19 Inquiry is not permitted to determine civil or criminal liability - (Inquiries Act 2005 section 2).

 

 

It would be difficult to establish that any Minister WILFULLY neglected to perform duty or WILFULLY misconducted himself. 

BUT, even if either of those could be established, there is a question of degree in that the conduct must 'amount to an abuse of the public's trust in the office holder.'

Finally, the conduct has to be 'Without reasonable excuse or justification.'  The extreme nature of the pandemic (as it looked in 2020) would offer plenty of grounds to argue that there was reasonable excuse of justification for ministerial decisions. Governmental decisions relating to the pandemic were taken, as Baroness Hallett noted, under extreme pressure and without access to data or a full understanding of the epidemiological position. There was often no right answer.

Bringing any prosecution is subjected by the CPS to an evidential test and a public interest test. I make no comment here on the public interest aspect except to say that it is at least arguable that a prosecution of Ministers would not usually be in the public interest apart from in the most egregious of cases.

Obviously, opinion on these matters may differ but sufficient has been said here to point out the formidable problems facing any prosecution relating to governmental handling of the pandemic.

Further information:

CPS - Misconduct in Public Office

House of Commons Library - Public Office (Accountability) Bill (Research briefing)

Covid-19 Bereaved Families for Justice - Misconduct in Public Office - a call for legislation to create new offences