Misfeasance in public office

Under English Law, the elements of the criminal offence of misfeasance in public office are:

  • a public officer acting as such; 
  • wilfully neglects to perform his duty and/or wilfully misconducts himself
  • to such a degree as to amount to an abuse of the public’s trust in the office holder; 
  • without reasonable excuse or justification.

Attorney General’s Reference No 3 of 2003 [2004] EWCA Crim 868.

See, ‘Misconduct in Public Office’:

Misconduct in Public Office | The Crown Prosecution Service (cps.gov.uk)

Misfeasance therefore occurs where there is an individual failure, i.e. by a civil servant or minister.

Can it also occur where there is a systemic failure with the actual knowledge of an individual, i.e. by acquiescence?

Arguably Yes, if the duty breached is also a fiduciary duty, see my article;

‘Breach of Fiduciary Duty Claims and the Quiet Fiduciary Thesis’ published in Trusts & Trustees by Oxford University Press, February 2019:

Abstract:

https://academic.oup.com

Article:

https://academic.oup.com

In which case a criminal conviction can result in a civil claim, or vice-versa.

In the case of a systemic failure, the bridge is a finding of ‘negligence’ by an individual with the acquiescence of another individual, which results in the systemic failure, i.e. breach of a duty of care that causes a recoverable loss.

‘It is almost a truism that “public offices” are “public trusts”. The notion that public officers act as agents or trustees – both fiduciary offices – for subject-beneficiaries was common in Greco-Roman political thinking, in English political philosophy, and in American political theory at the founding. These fiduciary concepts are well developed in private law. The Law of trusts arose to ensure that those with discretionary power over the legal and practical interests of beneficiaries would exercise that power in ways that ensure appropriate exercises of discretion. Likewise, public law norms seek to constrain uses of the discretionary power inherent in public offices. In both public and private law, the central normative fiduciary principles are that the fiduciary should not abuse her power and that beneficiaries interests should guide the fiduciaries deliberation and action in specific ways.’ Fiduciary Principles and Public Offices by Ethan J Lieb and Stephen R. Galoob, Chapter 16 of the Oxford Handbook of Fiduciary Law (2019).

Has the time come to put this proposition to the test in court in England?

At the core of much of positive fiduciary law is the prohibition on fiduciaries making decisions under conditions of a conflict of interest. The no conflict rule is one proscription to which all fiduciaries whether private or public are bound.

‘For fiduciary political theorists, the principle of loyalty fundamentally requires that public officials avoid betraying their beneficiaries. This requirement has several implications that captured the imagination of fiduciary political theorists. … Public officials should not engage in corruption or self-dealing. … In private law settings, the duty of care is important because of the beneficiaries’ vulnerability and the difficulty of monitoring the fiduciaries actions. The beneficiaries fate relies on the fiduciary’s efforts. These efforts can change not only how the beneficiary fares but also what she is permitted or required to do. The duty of care arises because the normative significance of the fiduciaries actions invites the possibility of domination and violation of the beneficiaries independence. … For example, a fiduciary who acts recklessly (say, unnecessarily or irrationally risking the interests of the principal) violates the principle of care, regardless of whether this risk is eventuated. In assessing politics, the principle of care holds that decision-makers should act in ways that advance the public good and should not unnecessarily or unjustifiably risk it.’ Fiduciary Principles and Public Offices by Ethan J Lieb and Stephen R. Galoob, Chapter 16 of the Oxford Handbook of Fiduciary Law (2019).