The offence of misconduct in public office carries a maximum penalty of life imprisonment. It is what is known as a ‘common law’ offence and is triable on indictment. This means that it is derived from the judge-made law of England which Guyana has legally inherited. And it is triable by jury. The maximum penalty suggests that it is regarded as a very serious offence.
While the offence can be traced back to the 13th century, a definition, given by Chief Justice Lord Mansfield in the 1783 case of R v Rembridge emphasized its importance: “… first that a man accepting an office of trust concerning the public, especially if attended with profit, is answerable criminally to the King for misbehavior in his office … Secondly, where there is a breach of trust, fraud or imposition in a matter concerning the public, though as between individuals it would be actionable, yet as between the King and the subject it is indictable. That such should be the rule is essential to the existence of the country.”
Over the centuries, the crime was characterized by vagueness. Fast forwarding to the 21st century, in 2003 in the case of Attorney General’s Reference (No. 3 of 2003) each defendant was charged with “misconducting himself whilst serving as a police officer by willfully failing to take reasonable and proper care of [A], an arrested person in police custody.”
Seeking no doubt to modernize the definition of the offence, the Attorney General sought the opinion of the court on the following questions: What are the ingredients of the common law offence of misconduct in public office? In particular, is it necessary in proceedings for an offence of misconduct in public office for the prosecution to prove bad faith, and if so, what does ‘bad faith’ mean? The court responded that the offence is committed when: a public officer, acting as such, willfully neglects to perform his duty and/or willfully misconducts 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. It was made clear that it is an offence defined more by conduct than by results. This definition of “public trust” remained at large.
In 2008, Christopher Galley, a civil servant in the Home Office, was arrested for misconduct in public office for allegedly passing confidential and restricted documents to Damien Green. Green was arrested on suspicion of conspiring to commit, and being an accessory to, the alleged offence by Galley.
The DPP decided not to prosecute because, whilst there was damage to the Home Office’s arrangements for handling such documents, there needed to be additional damage, such as harm to national security, and in the absence of such evidence there were no realistic prospects of conviction. The DPP’s decision highlighted the departure in practical terms, from the notion that the conduct, not the results, define the offence. The DPP’s decision emphasized that in prosecutorial decision-making, the results of the impugned acts are a critical element in determining whether a conviction is likely. And if it is not, the State’s resources should not be wastefully expended in vainly pursuing a conviction. Although “public trust”was not an explicit issue, an understanding of it, in the sense of harming the public, was taking shape in legal circles.
In the more recent case of R v W (2010) the Court of Appeal of England broadened and expanded the definition of the offence, exacerbating the existing confusion. Included were: frauds and deceits (in office); wilful excesses of official authority (malfeasance); the international infliction of bodily harm, imprisonment or other injury upon a person (oppression). Notwithstanding this decision, the House of Lords in R v Rimmington, R v Goldstein (2005) has suggested that the charge of misconduct in public office should be imposed only where there is no statutory offence, but where the behaviour should nevertheless be considered as criminal.
Questions have arisen as to who is a public officer. In England, which does not have a written constitution, or apparently any applicable statutory definition, case law developed. In R v Whittaker (1914) the court defined a “public office holder” as “an officer who discharges any duty in the discharge of which the public are interested, more clearly if he is paid out of a fund provided by the public.” More recently, in R v Dytham (1979) Chief Justice Lord Widgery referred to a public officer as one “who has an obligation to perform a duty.” In Guyana, however, the constitution defines a “public officer” as “the holder of a public office.” A “public office” is defined as “an office of emolument in the public service.” And the public service excludes “the Office of the President, [and] Minister…” and it also excludes “the office of a member of any board, committee or other similar body (whether incorporate or not) established by any law in force in Guyana.”
The Law Commission of the UK is examining options for the reform of this offence, which is urgently needed. (Sources: The Difficulties of Defining Misconduct in Public Office: Christine Christoudolou (2013); The Crown Prosecution Service (UK): Misconduct in Public Office – Legal Guidance)