WANTED
MISCONDUCT IN PUBLIC OFFICE
No, this is not a joke, in fact it is a rather serious allegation of a very serious offence. There are two avenues the ordinary citizen can explore, should they feel the inclination to “take the law into their own hands”. There is an official way of attempting to get an arest warrant, or there is the old-fashioned “Citizen’s Arrest”. We’ll be exploring both here, an outlining some of the steps concerned taxpayers could take to place the worst P.M in living memory under arrest. Below are the definitions of Misconduct in Public Office as set by the CPS. The Harlow Sentinel has commented (in blue).
The Allegation(s)
From the CPS website, which we’re sure Keir Starmer would be very familiar with:
Misconduct in public office (“MiPO”) is a common law offence that can be tried only on indictment. It carries a maximum sentence of life imprisonment. The offence concerns serious wilful abuse or neglect of the power or responsibilities of the public office held. There must be a direct link between the misconduct and an abuse of those powers or responsibilities. The Court of Appeal has made it clear that the offence should be strictly confined, and it can raise complex and sometimes sensitive issues.
Editor: Take note, that this is an idictable offence, you’ll need that information later if you’re considering going down the unofficial route.
Before an individual can be charged with Misconduct in Public Office (MIPO) there are some evidential considerations that need to be taken into acount. The officence is committed when:
- a public officer acting as such (Editor: Threshold met)
- wilfully neglects to perform their duty and/or wilfully misconducts themselves (Editor: Threshold met)
- to such a degree as to amount to an abuse of the public’s trust in the office holder (Editor: Threshold met)
- without reasonable excuse or justification (Editor: Threshold met)
Find below some helpful definitions of terms all sourced from the CPS website.
Public Officer
The following have been held to be public officers:
- holders of judicial and quasi-judicial office (judges, magistrates, registrars, coroners)
- police constables (including while suspended from duty – see Knox [2011] EWHC 1629 (Admin)
- police community support officers (Amar Iqbal [2008] EWCA Crim 2066) and other police civilian employees (L [2011] EWCA Crim 1259 ; Gallagher [2010] EWCA Crim 3201)
- immigration officers (John-Ayo [2008] EWCA Crim 1651)
- elected officials (MPs, councillors, ministers, mayors)
- civil servants (including local authority officers and DVLA employees)
- prison staff (including prison nurses and those employed by private companies operating prisons)
- army officers
- Bishops of the Church of England (Ball [2015] Unreported)
- volunteer members of the Independent Monitoring Board (Belton [2010] EWCA Crim 2857)
Editor: Based on the above, Keir Starmer meets the threshold to be considered a public officer.
Wilful Neglect/Breach of Duty or Misconduct
“Wilful” means “deliberately doing something which is wrong knowing it to be wrong or with reckless indifference as to whether it is wrong or not”: Attorney General’s Reference No 3 of 2003 [2004] EWCA Crim 868. Recklessness in this context means subjective recklessness i.e., the suspect was aware of a risk and in the circumstances known to them at the time it was unreasonable to take that risk (R v G [2003] UKHL 1034).
Editor: There are several instances which could be categorised as wilful neglect, breach of duty or misconduct. Here are a few:
- Failure to disclose gifts from a donor
- Whipping Labour MPs to vote against a national inquiry into Rape Gangs
- The attempt to sell off the Chagos Islands
- Southport stabbings
Dishonesty
Where the alleged misconduct involves dishonesty, the dishonesty must be proved as the mens rea for the MiPO offence: W (M) [2010] EWCA Crim 372.
Editor: There are several instances which could be categorised as dishonesty. Here are a couple:
- Meeting a voice coach during lockdown in a Tier 4 area
- Stated that council tax would not increase, along with other election manifesto promises which have been broken
Seriousness of the Neglect or Conduct
Not every wilful neglect of duty or misconduct will suffice to constitute the offence. There is a high bar of seriousness. In Attorney General’s Reference No 3 of 2003 [2004] EWCA Crim 868 the court said that the misconduct must amount 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.”
Editor: See above
Whether the threshold is met in a particular case is a matter for the jury.
In determining whether conduct is serious enough to amount to MiPO in any given case, prosecutors must consider whether the conduct injured the public interest or abused public trust to such a degree as to warrant criminal punishment: Dytham (1979) QB 722. Whether the public interest has been harmed by the conduct is an objective question. If the answer is no, then the offence will not made out: Chapman [2015] EWCA Crim 539.
Editor: It can be argued that Keir Starmer has indeed injured the public interest
Factors That May be Relevant to Seriousness
It is difficult to extract from the case law definitive guidance on when conduct will reach the necessary threshold for misconduct in public office. Each case will be fact and context specific. Some broad themes can, however, be identified that prosecutors may find helpful to consider when assessing the level of seriousness in a particular case:
- Did the conduct involve the exploitation or attempted exploitation of vulnerable people? (see for example Amar Iqbal [2008] EWCA Crim 2066).
- Did the conduct have an operational impact that harmed the public interest or undermined public trust either in the role held by the suspect or the relevant public service or institution? (Norman [2016] EWCA Crim 1564; Collins & Ors [2022] EWCA Crim 742). This might include conduct where the objectivity of the suspect in the exercise of their powers and authority was compromised or that exposed them to conflicts of interest or exploitation (whether or not any actual harm was caused): Cosford [2013] EWCA Crim 466.
- What was the suspect’s motive? Was it personal gain (either financial or otherwise)? At its highest the motive may be malice or bad faith, but they are not prerequisites.
- What was the severity of the actual or likely consequences? Was there a risk of death or serious injury?
- How egregious was the abuse of power? Did the wilful misconduct or breach of a duty have the effect of benefitting the wider public interest rather than being injurious to it (see Chapman [2015] EWCA Crim 539).
Without Reasonable Excuse or Justification
The defendant may advance evidence of a reasonable excuse or justification. In L [2011] EWCA Crim 1259, the court held that “without reasonable excuse or justification” meant no more than acting culpably or in a blameworthy fashion. It is not necessary for the prosecution to prove the absence of a reasonable excuse or justification, although the nature of the prosecution evidence should in practice negate any such element.
Cases Involving the Abuse of Position For a Sexual Purpose
As set out above, the essence of the offence of MiPO is conduct that amounts to an abuse of public trust (and/or that harms the public interest) that is sufficiently serious to warrant criminal punishment.
Members of the public expect to be able to trust persons who hold positions of power to act professionally and not to use their position to instigate (or attempt to instigate) sexual or otherwise inappropriate relationships. Where such an allegation is made, prosecutors should carefully assess whether the suspect was “acting as such” at the time of the alleged conduct and identify as precisely as possible the connection between the power invested in the suspect by virtue of their office and whether the evidence is sufficient to demonstrate that the alleged conduct amounted to a wilful abuse of that power.
These cases are likely to be highly fact-specific, but prosecutors may find it helpful to consider the following (non-exhaustive) factors:
- The nature and context of the relationship and the balance of power at the time that any sexual advance, activity or intimate relationship began (or was attempted), i.e., was it in the course of a professional relationship, subsequent to a professional relationship or entirely incidental to the suspect’s role in a public office.
- Whether the sexual relationship or activity was in exchange for the exercise or failure to exercise a power held by the suspect by virtue of their office.
- Whether there is any evidence that the suspect’s role enabled them to exert power, control or coercion over the victim (the nature and extent of any past or current professional relationship may be relevant).
- Whether the victim was vulnerable (either during a previous professional relationship or at the time the sexual relationship began) and, if so, the extent of the suspect’s knowledge of their vulnerability.
- Whether it was an isolated incident or a pattern of conduct on the part of the suspect.
- The seriousness threshold may be reached on the basis that the public interest is harmed by conduct that has the potential to impact on the objectivity of the suspect in the exercise of their authority or expose them to conflicts of interest or exploitation (whether or not any actual harm is caused and whether or not the relationship was consensual).
- The fact that the relationship was consensual is not determinative.
- The sexual conduct or relationship may not, in and of itself, amount to an abuse of the suspect’s power, but any neglect/breach of duty and/or misconduct that preceded it or facilitated it may do. For example, where a suspect has used the police database to obtain contact details of the victim and/or used the police database to identify and target vulnerable individuals this is likely to be an abuse of power whether or not a sexual relationship resulted.
Editor: There are several rumours (which will not stand in a court of law) that Keir Starmer has a history of infidelity. Whether or not he abused his position to enable these infidelities remains to be seen.
Public Interest Considerations
The Code for Crown Prosecutors sets out the framework for assessing this question. However, if the evidential stage is met, it is highly likely that the seriousness of the offence, the culpability of the suspect and the harm caused by the offending means that a prosecution will be required in the public interest.