20th February 2026
An ancient offence is in the news – and how it usually is used only for junior officials
If conduct is a verb, then misconducting must be a verb too.
And when a someone in public office – what we can call a public official – is misconducting in that public office then that is an offence under the common law of England and Wales.
Being a common law offence means that it is not set out in any Act of Parliament or other statutory instrument. It is instead an offence which we put together by a combination of law reports (of old judgments) and judicial reasoning: judge-made law.
(Murder is another common law offence.)
Misconduct in public office is an ancient offence. One can trace it back to early modern, even medieval times. It was an offence for those with trusted public offices when they did something to betray that trust. As such it was deliberately, helpfully vague: misconduct in a public office can take many forms and so there was no point in the law being too exact. One would know misconduct in public office when one saw it.
And then, in the 1800s and early 1900s, the law was pretty much forgotten about.
And then, at the end of the 1900s, the law began to revive, especially with police officer cases where the alleged misconduct of the police officer did not fit easily into more defined criminal categories.
The law of misconduct in public office was taken off the common law bookshelves and the dust blown away.
But the law was still vague, and so in 2004 the Court of Appeal in a reference from the Attorney General reframed the judge-made law for modern times, so as to make it a little less vague.
The key paragraph of the judgment says (referring to other paragraphs of the judgment):
The circumstances in which the offence may be committed are broad and the conduct which may give rise to it is diverse. A summary of its elements must be considered on the basis of the contents of the preceding paragraphs. The elements of the offence of misconduct in a public office are:
1. A public officer acting as such (paragraph 54).
2. Wilfully neglects to perform his duty and/or wilfully misconducts himself (paragraphs 28, 30, 45 and 55).
3. To such a degree as to amount to an abuse of the public’s trust in the office holder (paragraphs 46 and 56 to 59).
4. Without reasonable excuse or justification (paragraph 60).
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.
*
With this re-statement, the law continued to be used mainly on police officers (and also now prison officers) whose misconducting did not fit neatly into other offences.
And then when the hacking and press standards scandal exploded, and evidence was revealed of unauthorised disclosures by police and prison officers and by other junior or mid-ranking officials, then the law was used to punish the disclosing officials.
This was the once famous Operation Elveden.
Significantly, it did not strictly matter if an unauthorised disclosure was in return for money: the offence was made out when there was an unauthorised disclosure which amounted to misconduct in public office.
And so again, the law was used because of facts that did not fit neatly into established criminal law categories.
The Crown Prosecution Service, however, generally came a cropper when they sought to extend the offence, via “aiding and abetting” etc – to the reporters who received the information.
(One wonders whatever happened to the then head of the Crown Prosecution Service?)
*
One significant feature of the law of misconduct in public office – at least in its modern incarnation – is that is has never been successfully used against a high-profile individual.
It seems so far to be an offence for the junior officer class, and not for the senior officer class.
A couple of attempts to use it against politicians have failed.
And the politicians who went down with the expenses and other scandals were prosecuted under fraud and other offences.
*
One problem with the the offence is what also makes it so useful: its vagueness.
The Law Commission who did an impressive report on the offence says that its vagueness leaves it open to challenge on human rights grounds. This is because criminal law should always be sufficiently certain so that individuals can regulate their own conduct (and misconduct).
The government accepted this and the current (stalled) Hillsborough law contains replacement laws.
But those more defined laws are not in place.
*
Recent news reports indicate that the offence may be used in high-profile cases.
But, if so, nobody should assume that such prosecutions will be easy.
Though, that said: if such a law exists, then it really should not be an offence only for the junior ranks.
For the senior ranks of public officials can go about misconducting too.
***
COMMENTS NOTICE
Any comments entered below speculating on individual cases will not be published.
Conduct is a transitive verb. One can conduct oneself. I’ve never come across misconduct as anything other than a noun, not a verb. So no-one ever says “he misconducted himself/the orchestra/whatever”, surely?
Nicholas, you are arguing with a joke.
How would wilfulness, excuse and justification be affected by the training and guidance that had been given to the defendant on appointment and subsequently?
Thankyou
I have as much an idea as you.
I have already not-published comments raising specific cases.
Please don’t do this, I have a notice above saying this expressly.
I can see how elements 2,3 and 4 could be determined by a jury. Who would determine whether element 1 is met “A public officer acting as such”?
That is a very good question.
The vagueness you mention where “criminal law should always be sufficiently certain so that individuals can regulate their own conduct (and misconduct)”…
Would that be satisfied where the defendant had explicitly been instructed not to do something and still did it eg “this information is for your eyes only” – then proceeds to pass it on to someone else?
Or would the defendant have the option of claiming although they were instructed not to do something they had no way of knowing if that instruction was legally binding?
Good questions.
I suspect that in some cases of Misconducting in Public Office could be brought about for both genuine criminal proceedings and/or political reasons ( heaven forbid).
Sometimes it is good for the public ‘soul’ for justice to be seen to be done as well as for the crime itself.
I can think of a number of political reasons why the state would wish to prosecute an individual – it helps distract from current events and the spotlight moves from political crisis to other issues.
It will be interesting to see, in certain cases, whether Misconduct can be proved – this is not as always clear cut but at least justice will be seen to have been acted upon.
Is there a limitation on how long ago offences have been committed in cases of Misconduct in Public Office?
No limitation period.
This presumably falls under the “you’ll know it when you see it” doctrine. The nature of the informataion you are privy to and the identity of the person you plan to share it with should dictate to you whether it is a proper conduct to go through with the plan. One can easily imagine someone not being explicitly instructed not to share something but still expect them having enough common sense not to share without prior authorization or on the other hand being instructed to keep his lips sealed yet the matter being so trivial every court would dismiss the case. In particular a senior public officer is (or should) be expected to be a better judge of both the information he possesed and possible high influence of a person he might consider sharing this information with as well negative consequences to public interest that might arise from that information sharing.
“For the senior ranks of public officials can go about misconducting too.”
But that’d be covered by a new version/interpretation of an irregular verb (from “Yes, Minister” in 1980)?
(“I give confidential security briefings.
You leak.
He has been charged under section 2a of the Official Secrets Act.”)
Doesn’t an individual need to be the ‘occupant’ of a ‘Public Office’ before being assessed for misconducting therein …..therefore we really need to understand just what constitutes a ‘Public Office’.
Moving on then, we need to consider the ownership or otherwise of any information gleaned or learnt in the occupation of the assumed ‘Public Office’ and what if anything is the correct way to treat that information…..If you were to be an ’employee’ under contract and or receiving remuneration then that is one stance…..alternatively you may be a ‘volunteer’ making use of your personal notoriety and contacts in order to advocate on behalf of a third party in what ever way you deem suitable…….