Attorney General's Reference No. 3 of 2003

Attorney General's Reference No. 3 of 2003

The offence of misconduct in public office requires proof that a public officer, acting as such, wilfully neglected to perform his duty or wilfully misconducted 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. The mental element is subjective recklessness or advertence to the duty and consequences, not mere negligence or inadvertence. The threshold for criminal liability is high, requiring serious misconduct. The introduction of 'bad faith' as a routine element is not favoured; the focus should be on abuse of public trust.

Parties
Applicant: Attorney General; Respondents: ND and other police officers
Jurisdiction
England and Wales
Judgment Date
07 April 2004
Procedural Posture
Attorney General's Reference (criminal) / Court of Appeal (criminal Division) Reference Under Section 36 of the Criminal Justice Act 1972
Outcome
Reference answered; guidance given on the ingredients and mental element of misconduct in public office.
Legal Topics
Misconduct in Public Office, Mens Rea, Wilful Neglect, Recklessness, Duty of Care, Police Misconduct
Criminal Law Public Law Misconduct in Public Office Mens Rea Wilful Neglect Recklessness Duty of Care Police Misconduct

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Parties

Attorney General

Applicant

ND and other police officers

Respondents

Procedural Posture

Attorney General's Reference (criminal) / Court of Appeal (criminal Division) Reference Under Section 36 of the Criminal Justice Act 1972

Legal Issues

  1. 1 What are the ingredients of the common law offence of misconduct in a public office?
  2. 2 Is it necessary for the prosecution to prove 'bad faith' in proceedings for misconduct in a public office, and what does 'bad faith' mean in this context?

Ratio Decidendi

The offence of misconduct in public office requires proof that a public officer, acting as such, wilfully neglected to perform his duty or wilfully misconducted 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. The mental element is subjective recklessness or advertence to the duty and consequences, not mere negligence or inadvertence. The threshold for criminal liability is high, requiring serious misconduct. The introduction of 'bad faith' as a routine element is not favoured; the focus should be on abuse of public trust.

Court Disposition

Reference answered; guidance given on the ingredients and mental element of misconduct in public office.