Malfeasance in office

England and Wales

Under English law, misconduct in public office is a criminal offence at common law that dates back to the 13th century.

The offence carries a maximum penalty of life imprisonment. It is confined to those who are public office holders, and is committed when the office holder acts (or neglects to act) in a way that constitutes a breach of the duties of that office. Case law has established a broad definition of "public office holder" for this purpose that does not depend on the person holding a formal "office" as such, nor on being paid out of the public purse, though a government employee is more likely to be found to fall into the definition.

The Crown Prosecution Service guidelines on this offence set out the components of the offence as summarised by the Court of Appeal:

1. a public officer acting as such
2. wilfully neglects to perform their duty and/or wilfully misconducts themself
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. Those deemed public officers include civil servants, magistrates, judges, elected politicians (such as MPs and councillors), prison staff, police officers (including police community support officers and some police staff), but not (according to a 2014 case) NHS staff such as paramedics or ambulance staff. Someone can be acting as a public officer even if their employer is a private company delivering a public service. The public officer must be "acting as such"—the power they are misusing must arise from their public office.

A similar statutory offence exists under section 26 of the Criminal Justice and Courts Act 2015 for those who improperly or corruptly use the powers or privileges they have as police officers.

The similarly-named misfeasance in public office is a tort. In the House of Lords judgement in the BCCI case, it was held that this had three essential elements:

1. The defendant must be a public officer;
2. The defendant must have been exercising his power as a public officer;
3. The defendant is either exercising targeted malice or exceeding his powers.

Potential reform

In December 2020, the Law Commission issued a report recommending the common law offence of misconduct in public office be abolished, and replaced with two new statutory offences; one of 'corruption in public office' and another of 'breach of duty in public office'. As of 2024, the government has not issued a response to the report. The Public Office (Accountability) Bill 2024-26 will, if passed, abolish the common law offence and replace it with two statutory offences of "seriously improper acts" and "failing to prevent death or serious injury".

United States

The West Virginia Supreme Court of Appeals summarized a number of the definitions of malfeasance in office applied by various appellate courts in the United States.

The court then went on to use yet another definition, "malfeasance is the doing of an act which an officer had no legal right to do at all and that when an officer, through ignorance, inattention, or malice, does that which they have no legal right to do at all, or acts without any authority whatsoever, or exceeds, ignores, or abuses their powers, they are guilty of malfeasance."

Nevertheless, a few "elements" can be distilled from those cases. First, malfeasance in office requires an affirmative act or omission. Second, the act must have been done in an official capacity—under the color of office. Finally, that that act somehow interferes with the performance of official duties—though some debate remains about "whose official" duties.

In addition, jurisdictions differ greatly over whether intent or knowledge is necessary. As noted above, many courts will find malfeasance in office where there is "ignorance, inattention, or malice", which implies no intent or knowledge is required.

References

1. "2011 Louisiana Laws :: Revised Statutes :: TITLE 14 — Criminal law :: RS 14:134 — Malfeasance in office".
2. (30 March 2015). "Nick Clegg says journalists tried for paying public officials should have clearer public interest defence in law". Press Gazette.
3. "Misconduct in Public Office". Crown Prosecution Service.
4. {{Cite BAILII. (2004). (7 April 2004)
5. In [http://www.cps.gov.uk/news/articles/decision_on_prosecution_-_mr_christopher_galley_and_mr_damian_green_mp/ the decision not to prosecute] {{Webarchive. link. (2016-03-03 [[Damian Green]], the [[Director of Public Prosecutions]], formulated this as "the breach must have been such a serious departure from acceptable standards as to constitute a criminal offence; and to such a degree as to amount to an abuse of the public's trust in the public official"; citing the [[Court of Appeal]] in the case of ''Attorney General's Reference No. 3 of 2003'' [2004] EWCA Crim 868.)
6. {{Cite BAILII. (2014). (12 February 2014)
7. (2023). "Blackstone's Criminal Practice 2024". Oxford University Press.
8. {{Cite BAILII. (2013). (16 April 2013)
9. {{Cite BAILII. (2019). (3 July 2019)
10. Murphy, John. (2012-03-01). "Misfeasance in a Public Office: A Tort Law Misfit?". Oxford Journal of Legal Studies.
11. (2022). "Jackson & Powell on Professional Liability". Sweet & Maxwell.
12. [http://www.parliament.the-stationery-office.co.uk/pa/ld199900/ldjudgmt/jd000518/rivers-1.htm House of Lords judgements] {{webarchive. link. (2006-03-13 on ''[[Three Rivers District Council]] and Others v The Governor and Company of The [[Bank of England]]'')
13. (4 December 2020). "Misconduct in public office". [[Law Commission (England and Wales).
14. "Misconduct in Public Office". [[Law Commission (England and Wales).
15. "Public Office (Accountability) Bill 2024-26".