Attorney General's Reference No. 3 of 2003

The common-law offence of misconduct in public office requires a public officer, acting as such, wilfully to neglect a duty or wilfully to misconduct himself, without reasonable excuse or justification, to a degree amounting to an abuse of the public's trust in the office-holder.

Wilfulness requires awareness of the duty or subjective recklessness as to its existence. Subjective recklessness also applies to the legality of the act or omission and to its likely consequences. A serious mistake or mere negligence will not suffice. The seriousness of the conduct depends on the office, its responsibilities, the circumstances and the likely consequences.

Bad faith is not a necessary term for a jury direction, although it may sometimes assist in assessing the defendant's conduct.

The Attorney General made a reference under section 36 of the Criminal Justice Act 1972 after police officers, including ND, were acquitted by direction at trial of manslaughter and misconduct in a public office.

The deceased, CA, died in police custody after officers allegedly failed to reposition him, clear his airway or obtain medical assistance. The trial judge held that causation was not established for manslaughter and that the evidence could not prove the required mens rea for misconduct in public office.

The reference asked for the ingredients of that common-law offence and whether the prosecution had to prove bad faith, including the meaning of that expression.

1. The court answered the reference. The acquittals remained unaffected. The offence is committed only where a public officer, acting as such, wilfully neglects a duty or wilfully misconducts himself, without reasonable excuse or justification, and the conduct is sufficiently serious to amount to an abuse of the public's trust in the office-holder.

2. Wilfulness does not require proof of a separate concept of bad faith. Applying the subjective approach to recklessness confirmed in R v G & Anr [2003] UK HL 50, the defendant must be aware of the duty to act or be subjectively reckless as to whether it exists. The same subjective inquiry applies both to the unlawfulness of the conduct and to its likely consequences. A person who genuinely fails to perceive a risk is not criminally reckless merely because a reasonable person would have perceived it.

3. The court approved the approach in R v Dytham [1979] 1 QB 722. The misconduct must be a serious and culpable departure from proper standards. It must be more than negligence, including serious error. Its criminal quality depends on the nature and responsibilities of the office, the circumstances and the likely consequences. A likely grave consequence may make otherwise similar default sufficiently serious; some conduct, such as corruption, may have that quality without likely serious consequences.

4. Bad faith may be relevant in an appropriate case, but should not routinely be introduced into a jury direction. The stated elements more clearly direct the jury to decide whether the public office was abused. A misconduct count should also not routinely be added as an alternative to gross-negligence manslaughter merely because causation may be difficult to prove.

• Court of Appeal (Criminal Division) — on a statutory reference, gave its opinion on the ingredients of misconduct in public office: [2004] EWCA Crim 868.
• Trial court — Roderick Evans J directed acquittals of the police officers on counts of gross-negligence manslaughter and misconduct in a public office.