Abstract
1. IntroductionAs noted in a number of previous articles,1 much of our criminal law is very antiquated. In part, this is due to many obsolete pieces of criminal legislation - often of great age. Also, there still exist a number of common law offences. These should be modernised and placed in statutory form.In respect of one of these common law offences, this article looks at the offence of misconduct in a judicial - or a public - office. In analysing this offence, regard may be had to the following legal texts:* E Coke, Institutes of the Laws of England (1628-41);2* W Hawkins, A Treatise of the Pleas of the Crown (1716-1824);3* M Hale, The History of the Pleas of the Crown (published 1736, written 1640's);4* W Blackstone, Commentaries on the Laws of England (1765-9);5* WO Russell, A Treatise on Crimes and Misdemeanors (1819-1964);6* W Archbold, Criminal Pleading, Evidence and Practice (1822-2014);7* Halsbury, Laws of England.8It may be noted, in respect of this offence, that - apart from Archbold, Halsbury and Blackstone's Criminal Procedure9 - modern criminal texts contain no (or very little) analysis of this offence.10 Reference may also be made to various Abridgments, major and minor, viz.* N Statham, Abridgment of the Law (c. 1490);11* A Fitzherbert, La Graunde Abridgment (3rd ed, 1577);12* R Brooke, La Graunde Abridgment (1586);13* W Hughes, Grand Abridgment of the Law (1660-3);14* W Sheppard, Grand Abridgment of the Common and Statute Law of England (1675);15* H Rolle, Abridgment des plusieurs Cases et Resolutions del Common Ley (1668);16* W Nelson, Abridgment of the Common Law (1725-6);17* E Viner, A General Abridgment of the Law and Equity (1st ed, 1741-57);18* M Bacon, New Abridgment of the Law (5th ed, 1798);19* J Comyns, Digest of the Laws of England (last ed, 1822).20A useful modern text is Nicholls, Corruption and Misuse of Public Office. 21 This article analyses the early history of this offence.* It asserts that this offence should be placed in statutory form, with the concept of 'public office' including all employment where the individual in question is employed by the 'Siale' in whatever capacity (ie. central or local government), whether that person is remunerated or not and whatever the terms of their employment (eg. whether it is full time, part time, consultancy etc);* It should be stated at the outset that a major problem of this offence is that its early history has not been considered.22 When it is - and the ambits (and purpose) of the offence in earlier times is perceived - it may be seen that a number of modern cases need not actually have been brought, since they were based on a limited perception of this offence that was not originally there. 232. Early History of the OffenceIn early times, 'public office' was synonymous with 'Crown' office. There was no concept of the State as such. Rather, from 1066 - if not before - there was only the sovereign.24 Further, the number of individuals directly employed by the Crown (the sovereign) was relatively small until after the Glorious Revolution of 1688 when the concept of the 'State', separate from the sovereign, really began to develop - both legally and practically.25(a) Early Times - Public OfficersIn early times, 'public officers' mainly comprised members of the royal household, the Privy Council, judges and judicial appointments, exchequer (treasury) officials as well as - in the case of war time (whether a civil war or a war against a foreign enemy) - military appointments. 26 Some of these appointments were not well paid and they were financially onerous. As a result, it was a criminal offence (and still is, in some circumstances) for an individual to refuse to take up the appointment, once nominated or elected.* For example, the City of London had (by way of franchise) - from early times - the the right to elect the offices of: a mayor,27 (two) sheriffs 28 and aldermen. …
Highlights
As noted in a number of previous articles,[1] much of our criminal law is very antiquated
21 This article analyses the early history of this offence. It asserts that this offence should be placed in statutory form, with the concept of ‘public office’ including all employment where the individual in question is employed by the ‘State’ in whatever capacity, whether that person is remunerated or not and whatever the terms of their employment;
It may be noted that this wording scarcely had changed by the final edition of Hawkins’ work in 1824 - save that the latter stated that: Under this head may be ranked another offence of deep malignity, namely, the oppression and tyrannical partiality of judges, justices, and other magistrates in the administration of, and under colour of their offices
Summary
As noted in a number of previous articles,[1] much of our criminal law is very antiquated. There still exist a number of common law offences These should be modernised and placed in statutory form. In respect of one of these common law offences, this article looks at the offence of misconduct in a judicial - or a public - office. In analysing this offence, regard may be had to the following legal texts:. 21 This article analyses the early history of this offence It asserts that this offence should be placed in statutory form, with the concept of ‘public office’ including all employment where the individual in question is employed by the ‘State’ in whatever capacity When it is - and the ambits (and purpose) of the offence in earlier times is perceived - it may be seen that a number of modern cases need not have been brought, since they were based on a limited perception of this offence that was not originally there. 23
Sign-in/Register to view highlights & summary Sign-in/Register to access full text options 
Free) 
Talk to us
Join us for a 30 min session where you can share your feedback and ask us any queries you have
Schedule a call
