Malfeasance in office

{{Short description|Legal term for abuse of the power of an office}} {{Globalize|date=February 2011}} {{Criminal law}}

'''Malfeasance in office''', also known as '''misconduct in public office''', is any unlawful conduct that is often grounds for a just cause removal of an elected official by statute or recall election, or additionally a crime in some jurisdictions.<ref>{{Cite web|title=2011 Louisiana Laws :: Revised Statutes :: TITLE 14 — Criminal law :: RS 14:134 — Malfeasance in office|url=https://law.justia.com/codes/louisiana/2011/rs/title14/rs14-134/|website=Justia Law|access-date=2020-05-25}}</ref> Malfeasance in office contrasts with "misfeasance in office", which is the commission of a ''lawful'' act, done in an official capacity, that improperly causes harm; and "nonfeasance in office", which is the failure to perform an official duty.

An exact definition of malfeasance in office is difficult: many highly regarded secondary sources (such as books and commentaries) compete over its established elements based on reported cases. This confusion has arisen from the courts where no single consensus definition has arisen from the relatively few reported appeal-level cases involving 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.<ref name="CPS"/><ref name=Origin>{{cite web |url= http://www.pressgazette.co.uk/nick-clegg-says-journalists-tried-paying-public-officials-should-have-clearer-public-interest |title= Nick Clegg says journalists tried for paying public officials should have clearer public interest defence in law |work=Press Gazette |date=30 March 2015 |access-date=31 March 2015}}</ref>

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.<ref name="CPS">{{Cite web|url=https://www.cps.gov.uk/legal-guidance/misconduct-public-office/|title=Misconduct in Public Office|type=legal guidance|publisher=Crown Prosecution Service|access-date=31 August 2024}}</ref>

The Crown Prosecution Service guidelines<ref name="CPS" /> on this offence set out the components of the offence as summarised by the Court of Appeal:<ref>{{Cite BAILII|litigants=Attorney General's Reference No. 3 of 2003|court=EWCA|division=Crim|year=2004|num=868|parallelcite=[2005] QB 73, [2004] 3 WLR 451, [2005] 4 All ER 303, [2004] 2 Cr App Rep 23, [2004] 2 Cr App R 23|date=7 April 2004}}</ref> # a public officer acting as such # wilfully neglects to perform their duty and/or wilfully misconducts themselves # to such a degree as to amount to an abuse of the public's trust in the office holder{{refn|In the decision not to prosecute Damian Green for misconduct by leaking information, Keir Starmer, 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 {{cite BAILII |litigants=Attorney General's Reference No. 3 of 2003 |year=2004 |court=EWCA |division=Crim |num=868}}.<ref>{{cite press release |url=http://www.cps.gov.uk/news/articles/decision_on_prosecution_-_mr_christopher_galley_and_mr_damian_green_mp/ |title=Decision on prosecution – Mr Christopher Galley and Mr Damian Green MP |publisher=Crown Prosecution Service |date=16 April 2009 |url-status=dead |archive-url=https://web.archive.org/web/20160303172613/http://www.cps.gov.uk/news/articles/decision_on_prosecution_-_mr_christopher_galley_and_mr_damian_green_mp/ |archive-date=2016-03-03 }}</ref>}} # 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)<ref>{{Cite BAILII|litigants=R v Mitchell|court=EWCA|division=Crim|year=2014|num=318|parallelcite=[2014] 2 Cr App R 2|date=12 February 2014}}</ref> NHS staff such as paramedics or ambulance staff.<ref>{{cite book |title=Blackstone's Criminal Practice 2024 |date=2023 |publisher=Oxford University Press |isbn=9780198892489 |editor1=David Ormerod |edition=34 |at=B15.27 |editor2=David Perry}}</ref> Someone can be acting as a public officer even if their employer is a private company delivering a public service.<ref>{{Cite BAILII|litigants=R v Cosford & Others|court=EWCA|division=Crim|year=2013|num=466|para=37|parallelcite=[2014] QB 81, [2014] 1 QB 81, [2013] 3 WLR 1064, [2013] 3 All ER 649, [2013] 2 Cr App R 8, [2013] WLR(D) 147|date=16 April 2013}}</ref> The public officer must be "acting as such"—the power they are misusing must arise from their public office.<ref>{{Cite BAILII|litigants=Johnson v Westminster Magistrates' Court|link=Ball v Johnson|court=EWHC|division=Admin|year=2019|num=1709|parallelcite=[2019] WLR 6238, [2019] 1 WLR 6238, [2020] 2 All ER 271, [2019] WLR(D) 391, [2019] 2 Cr App R 30, [2020] Crim LR 458, [2019] ACD 94|date=3 July 2019}}</ref>

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.<ref name="CPS" />

The similarly-named '''misfeasance in public office''' is a tort.<ref>{{Cite journal |last=Murphy |first=John |date=2012-03-01 |title=Misfeasance in a Public Office: A Tort Law Misfit? |url=https://academic.oup.com/ojls/article-lookup/doi/10.1093/ojls/gqr018 |journal=Oxford Journal of Legal Studies |volume=32 |issue=1 |pages=51–75 |doi=10.1093/ojls/gqr018 |issn=1464-3820 |access-date=2024-10-08|url-access=subscription }}</ref><ref>{{Cite book |last1=Jackson |first1=Rupert M. |title=Jackson & Powell on Professional Liability |last2=Powell |first2=John L. |date=2022 |publisher=Sweet & Maxwell |isbn=978-0-414-09040-8 |edition=9 |series=The Common Law Library |location=London |at=15-035}}</ref> In the House of Lords judgement in the ''BCCI'' case, it was held that this had three essential elements:<ref>[http://www.parliament.the-stationery-office.co.uk/pa/ld199900/ldjudgmt/jd000518/rivers-1.htm House of Lords judgements] {{webarchive|url=https://web.archive.org/web/20060313092450/http://www.parliament.the-stationery-office.co.uk/pa/ld199900/ldjudgmt/jd000518/rivers-1.htm |date=2006-03-13 }} on ''Three Rivers District Council and Others v The Governor and Company of The Bank of England''</ref> # The defendant must be a public officer; # The defendant must have been exercising his power as a public officer; # 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'.<ref>{{cite report |author= |author-link= |date=4 December 2020 |title=Misconduct in public office |url=https://cloud-platform-e218f50a4812967ba1215eaecede923f.s3.amazonaws.com/uploads/sites/30/2020/12/Misconduct-in-public-office-WEB11.pdf |publisher=Law Commission |page=10 |isbn=978-1-5286-2279-0 |docket= |access-date=21 September 2024 |quote= |archive-url=https://web.archive.org/web/20231031052249/https://cloud-platform-e218f50a4812967ba1215eaecede923f.s3.amazonaws.com/uploads/sites/30/2020/12/Misconduct-in-public-office-WEB11.pdf |archive-date=31 October 2023 |url-status=live}}</ref> As of 2024, the government has not issued a response to the report.<ref>{{cite web |url=https://lawcom.gov.uk/project/misconduct-in-public-office/ |title=Misconduct in Public Office |website=lawcom.gov.uk |publisher=Law Commission |access-date=21 September 2024 |quote=It is now time for the Government to review and consider the recommendations in our final report. We await an interim response.}}</ref> The Public Office (Accountability) Bill 2024–26, given first reading in the Commons on 16 September 2025, 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".<ref>{{cite web | title=Public Office (Accountability) Bill 2024–26 | url=https://bills.parliament.uk/bills/4019 |website=Parliamentary Bills |publisher=Parliament of the United Kingdom |access-date=3 February 2026}}</ref> The bill has not been passed as of 19 February 2026, when Andrew Mountbatten-Windsor, the former Prince Andrew, was arrested for misconduct in public office, the first royal family figure to be arrested under that offence in the modern age.<ref>{{Cite news |last=Ambrose |first=Tom |date=19 February 2026 |title=Andrew Mountbatten-Windsor arrested live: King Charles says 'law must take its course' and police have his full support |url=https://www.theguardian.com/uk-news/live/2026/feb/19/police-arrest-former-prince-andrew-mountbatten-windsor-sandringham-latest-updates |access-date=19 February 2026 |work=The Guardian |language=en-GB |issn=0261-3077}}</ref>

No such offence exists in Scots law. Craig Naylor, HM Chief Inspector of Constabulary in Scotland, called in 2024 for the creation of such an offence to bring accountability to Scottish police.<ref>{{cite news |url=https://www.bbc.co.uk/news/articles/ce8vg3586m0o|title=Police Scotland officers 'should face criminal charge for misconduct' |work=BBC News |date=25 September 2024 |access-date=24 February 2026 |quote=Officers in England and Wales can currently face a charge of committing misconduct in public office if they abuse their position but no such offence exists for officers in Scotland.}}</ref>

==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.

{{blockquote|text=Malfeasance has been defined by appellate courts in other jurisdictions as a wrongful act which the actor has no legal right to do; as any wrongful conduct which affects, interrupts or interferes with the performance of official duty; as an act for which there is no authority or warrant of law; as an act which a person ought not to do; as an act which is wholly wrongful and unlawful; as that which an officer has no authority to do and is positively wrong or unlawful; and as the unjust performance of some act which the party performing it has no right, or has contracted not, to do.|source=''Daugherty v. Ellis'', 142 W. Va. 340, 357-8, 97 S.E.2d 33, 42-3 (W. Va. 1956) (internal citations omitted).}}

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.

==Greece== Pursuant to Article 259 of the Greek Penal Code, the offense is punishable by imprisonment of up to two years or a fine.<ref>{{Cite web|title=Article 259 - Penal Code - Breach of duty|url=https://www.lawspot.gr/nomothesia/pk/arthro-259-poinikos-kodikas-paravasi-kathikontos/|website=LawSpot|access-date=19 February 2026}}</ref> The legislator considers that the intent of the crime is to procure a benefit for the perpetrator, resulting in harm to the State or another person.

==See also== * Abuse of power * Graft * Misfeasance * Political corruption

==Notes and references== <references/>

{{DEFAULTSORT:Malfeasance In Office}} Category:Misconduct Category:Public law Category:Crimes Category:Common law offences in England and Wales