Sam Coates at Red Box has apparently been given differing views about how bad misconduct has to be in order to count for the purposes of the criminal offence of misconduct in a public office.
Lawyers have told the Times that to meet its test, money would have had to have changed hands, or some other impropriety or inducement amounting to “misconduct” taken place. Senior civil servants have suggested that the hurdle is lower – that “encouraging” or actively soliciting leaks – even if there was no inducement – is enough for the recipient to have broken the law.
Mm. Looking at the leading case, Attorney General’s Reference No. 3 of 2003, I incline to the former view. Pill LJ, giving the judgment of the court, said (see paras. 56 to 59):
... there must be a serious departure from proper standards before the criminal offence is committed; and a departure not merely negligent but amounting 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… The motive with which a public officer acts may be relevant to the decision whether the public’s trust is abused by the conduct. As Abbott CJ illustrated in Borron, a failure to insist upon a high threshold, a failure to confine the test of misconduct as now proposed, would place a constraint upon the conduct of public officers in the proper performance of their duties which would be contrary to the public interest...
It will normally be necessary to consider the likely consequences of the breach in deciding whether the conduct falls so far below the standard of conduct to be expected of the officer as to constitute the offence. The conduct cannot be considered in a vacuum: the consequences likely to follow from it, viewed subjectively as in G, will often influence the decision as to whether the conduct amounted to an abuse of the public’s trust in the officer. A default where the consequences are likely to be trivial may not possess the criminal quality required; a similar default where the damage to the public or members of the public is likely to be great may do so. In a case like the present, for example, was the death or serious injury of the man arrested the likely consequence, viewed subjectively, of inaction, or was it merely an uncomfortable night? There will be some conduct which possesses the criminal quality even if serious consequences are unlikely but it is always necessary to assess the conduct in the circumstances in which it occurs.
The consequences of some conduct, such as corrupt conduct, may be obvious; the likely consequences of other conduct of public officers will be less clear but it is impossible to gauge the seriousness of defaulting conduct without considering the circumstances in which the conduct occurs and its likely consequences. The whole should be considered in the context of the nature of the office and, as Sir Anthony Mason stated in Shum Kwok Sher, the responsibilities of the office and office holder.
Going by that, it looks to me as though in the absence of corruption, serious harm is needed in order for the misconduct to cross the threshold. An interesting question is whether seeking party political advantage might amount to a corrupt motive for these purposes; certainly a harmless leak made genuinely on public interest grounds would not cross the threshold, it seems to me. The “senior civil servants’ view” cited by Sam Coates looks like a misunderstanding, confusing the position of Damian Green (the only one here who could be suspected of encouraging or soliciting leaks) with the position of Christopher Galley (who’s the one whose misconduct is in issue) and based on the traditional civil service world-view according to which leaking is always and obviously the most wicked possible misconduct.
Yes, this “misconduct in public office” offence remains vague even after AG Ref 3/2003. The defendant’s motive is very relevant (as Pill LJ makes clear). So also are the consequences but here Pill LJ seems to suggest that it is the consequences as seen by the defendant which are relevant (“the subjective view”) but then seems to contradict himself by stating that in some cases the consequences are “obvious” (“an objective view”). In principle, as this is a common law offence, only the subjective view should be adopted.
It is a mess and the CPS etc. would do well to keep prosecutions to only very clear cases which cross the high threshold set by the Court of Appeal.
I wonder if you agree with me that one lesson of the case is that this should now be put on a statutory footing, Peter, so Parliament can at least debate, and we can all be clear about, what this offence should consist of.
There are some advantages to putting this on a statutory basis provided that Parliament have a proper opportunity to debate it and it is not just sneaked in using devious Parliamentary procedural tactics. Statutes can certainly make the law clearer but do not either remove the need for judicial interpretation or necessarily make the law better.
However, the danger is that any statutory offence may well be drafted so as to be far more favourable to the executive.
On balance, I think it might be better left to the common law!
In defence of Mr Green’s position, it seems to me that the offence is described in terms of the likelihood that what he did would be “such as to undermine the public’s trust in him as the office holder”. I would have thought that his diligence in uncovering facts which the government would have preferred – out of embarrassment – to keep hidden would have rather the opposite effect.
Conversely, the Home Secretary has argued that the broader consequences of Mr Green’s actions were such as to undermine the functioning of her department, and the impartiality of its civil servants. That seems to me to be speculative rather than supported by any evidence on her part.