Public Office Misconduct – Acting As not While
The claimant sought judicial review of a decision to issue a summons against him alleging three offences of misconduct in public office. He was said to have issue misleading statements in support of the campaign leading up to the Referendum on leaving Europe. Held Review was granted: ‘Failure to insist upon a high threshold, so as to confine the offence of misconduct in public office within its proper ambit, would place a constraint upon the conduct of public officers in the proper performance of their duties, contrary to the public interest.’
And a conviction would require an unacceptable extension of a common law offence.
‘All the cases to which we have referred and many more we were shown share the common feature of corrupt abuse of public power for personal gain, or gross neglect in failing to comply with the core duties of the office. Such conduct is capable of satisfying the connected tests of breach of duty and the gravity necessary for the offence to be established. The offence will be made out only if the manner in which the specific powers or duties of the office are discharged brings the misconduct within its ambit. Consequently at the time of the alleged misconduct the individual must be acting as, not simply whilst, a public official.’
The claimant said that the prosecution was for political motives and should be treated as vexatious. He was entitled to know why that complaint had been rejected by the district judge. The DJ had failed to give any reason, and ‘we would also have quashed the decision on the basis that the finding that the prosecution was not vexatious was flawed. It is unnecessary for us to decide whether it was Wednesbury unreasonable.’
Rafferty LJ, Supperstone J
 EWHC 1709 (Admin),  WLR(D) 391,  1 WLR 6238
England and Wales
Cited – Shum Kwok Sher 2002
Final Court of Appeal, Hong Kong. A senior government officer had used his position to provide preferential treatment to a company and its directors to whom he was related. He appealed against his conviction for misconduct in public office.
Cited – Attorney General’s Reference (No 3 of 2003) CACD 7-Apr-2004
Police Officers had been acquitted of misconduct in public office. They had stood by in a police station custody suite as a prisoner lay on the floor and died.
Held: The trial took place before R -v- G which had overruled Caldwell. The . .
Cited – Regina (DPP) v Sunderland MC Admn k 2014
When determining an application for a summons a magistrate must ascertain whether the allegation is of an offence known to law, and if so whether the essential ingredients of the offence are prima facie present
The court observed: ‘[The . .
Cited – Kay and Another, Regina (on The Application of) v Leeds Magistrates’ Court and Another Admn 23-May-2018
Full Duty of Disclosure on Private Prosecutor
The claimant challenged the issue of a summons by the magistrate on the complaint of a private prosecutor.
Held: The challenge succeeded. A private prosecutor and his lawyers had a duty of candour and of full disclosure. The prosecutor having . .
Cited – Mitchell, Regina v CACD 12-Feb-2014
‘Is a paramedic employed by a National Health Service Trust in its ambulance service the holder of a public office so as to be subject to criminal sanction for misconduct?’
Held: The appeal succeeded; he was not: ‘the nature of the duty . .
Cited – Regina v Rimmington; Regina v Goldstein HL 21-Jul-2005
Common Law – Public Nuisance – Extent
The House considered the elements of the common law offence of public nuisance. One defendant faced accusations of having sent racially offensive materials to individuals. The second was accused of sending an envelope including salt to a friend as a . .
Cited – Regina v Huy Vinh Quach 7-May-2010
Supreme Court of Victoria – Court of Appeal – CRIMINAL LAW – Referral of questions of law – Misconduct in public office – Common law offence – Elements of offence – Necessary relationship between public office and alleged conduct for purposes of . .
Cited – People v Santamaria 12-Apr-1991
(California Court of Appeal) Adjournment of criminal trial after jury retired for verdict. . .
Cited – Regina v Clark CACD 4-Apr-2003
The defendant had been involved in a car crash. He drove his car home, and reported the accident only the following day. He appealed against a conviction for attempting to pervert the course of justice, having defeated any possibility of his being . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 November 2021; Ref: scu.639242