12 April 2009

Misconduct And Or Misfeasance In Public Office?

The former ambassador to Uzbekistan, Craig Murray, draws our attention to the crime of misconduct in public office in the post, "McBride, Whelan and Watson Must Be Arrested."

Damian McBride

(Background to the story from The Times, "Revealed: e-mails that toppled key Brown aide.")

He argues that the three should be prosecuted for misconduct in public office and gives links to the CPS website which explain the elements of the offence.

Of course, Ambassador Murray, or anyone else, could launch a private prosecution. Again, the Crown Prosecution Service provides helpful links, "What Are Private Prosecutions?"

"Individuals have long had the right to bring private prosecutions in court. This right (with certain exceptions) was preserved in the Prosecution of Offences Act 1985."

and "Private Prosecutions."

Another useful link from the perspective of legal analysis is Standard Note: SN/PC/04909 which, "briefly sets out the history of the common law offence of ‘misconduct in public office’. It looks at recent use of the offence in prosecutions and considers proposals to place the offence on a statutory footing."

This is recommended reading for any law-bores who are interested in this story.

What is also of interest, from the same source, is the following ...

"There is also a tort of misfeasance in public office, which is a civil offence. This has been defined in the leading case of Three Rivers D.C. v Bank of England (no 3). Lord Steyn explained that there were two different forms of the tort: First there is the case of targeted malice by a public officer i.e. conduct specifically intended to injure a person or persons. This type of case involves bad faith in the sense of the exercise of public power for an improper or ulterior motive. The second form is where a public officer acts knowing that he has no power to do the act complained of and that the act will probably injure the plaintiff. It involves bad faith inasmuch as the public officer does not have an honest belief that his act is lawful.

In such a civil case, a person injured by the action would need to begin proceedings. Archbold 2008 notes the Attorney General case of 2004 where it was held that the tort is committed by a public officer acting as such who wilfully neglects to perform his duty or wilfully misconducts himself to such a degree as to amount to an abuse in the public’s trust in the office holder. However, the court noted that the threshold was high.
" (references in original).

This raises a number of questions: 1) will those who have been smeared launch a civil action; and, 2) if not, why not?

Update - link to News of the World coverage, "Vicious and Vile" and to Guy Fawkes' blog, where the story broke, "He Who Lives By the Smear…"

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