When Misconduct in Public Office is Really a Sexual Offence

Catarina Sjölin,Helen Edwards

doi:10.1177/0022018317712377

Abstract

Misconduct in Public Office (MiPO) covers a wide and varied range of conduct. Beyond the defendant’s public office, there is no unifying conduct or result. A conviction for MiPO could represent putting pressure on a council official to move the route of a proposed road, or a police officer abusing his/her position for sexual gain. Sexual misconduct prosecuted as MiPO falls outside the usual regime for prosecuting and sentencing sexual offences, both obscuring the conduct by the label of MiPO and avoiding sexual offence specific consequences. To examine what kind of sexual offending MiPO has been covering, we analysed newspaper reports and appellate decisions since 2002. This enabled us to identify the conduct MiPO was being used to cover at charge, plea and conviction (or acquittal) stages. We found a significant amount of sexual misconduct being prosecuted as MiPO. We then analysed the sexual conduct to determine the “wrongs” involved, identifying particular categories. This enabled us to propose a new sexual offence (based on the Sexual Offences Act 2003 offences that are not founded on lack of consent), which marks the sexual wrong and enables a focus on the defendant’s abuse of position rather than the victim’s vulnerability. This article outlines the basis for our proposal to the Law Commission for reform of the common law offence of MiPO (as our second response to their consultations). Currently at the stage of Policy Development, the Commission aims to publish its report later this year.

Highlights

The common law offence of misconduct in public office (MiPO) had fallen into disuse before its slow resurrection in the mid-twentieth century,[2] yet it is an offence which appears before the courts often enough for the Law Commission to consult about what to do with it
Sexual misconduct as MiPO There are some, but not many, reported appeal cases involving MiPO, so, to get a clearer view of what kind of activity is being charged as MiPO, or is resulting in convictions for MiPO, we examined newspaper reports going back fourteen years to 2002 looking for sexual misconduct which was alleged to be misconduct in public office
In searching for a replacement for MiPO for the first category we suggest that the offences that deal with sexual wrongs that are not based on lack of consent should be the starting point: (1) The child sex offences.[44] (2) The position of trust offences against young people aged under 18.45 (3) The offences committed by carers for the mentally disordered by virtue of their position as carer.[46] (4) Offences involving agreement by a mentally disordered person to sexual relations, that agreement being obtained by threats, deception or inducement.[47] (4) Incest involving only adults.[48]

Summary

Introduction

The common law offence of misconduct in public office (MiPO) had fallen into disuse before its slow resurrection in the mid-twentieth century,[2] yet it is an offence which appears before the courts often enough for the Law Commission to consult about what to do with it. Sometimes no sexual offence was charged at all[19], sometimes MiPO was a lesser alternative to a non-consensual sexual offence[20] and sometimes no offence was charged and disciplinary proceedings were mounted instead.[21] There is Crown Prosecution Service legal guidance in relation to MiPO which states that statutory offences should be charged in preference to MiPO, with the MiPO aspect being relied upon as an aggravating feature for sentence, unless (a) there is no statutory offence, (b) the real wrong is the breach of public duty or (c) the court’s sentencing powers would otherwise be inadequate.[22] In sexual cases the nonconsent offences in the Sexual Offences Act 200323 (SOA 2003) are the obvious statutory offences which carry sufficiently high maximum sentences that MiPO is not needed to ensure that the court has sufficient sentencing powers. Nurses working within a prison are holders of public office[25] as is a Church of England priest,[26] but a paramedic employed by a National Health Service Trust is not.[27]

Analysis The wrongs at the heart of the MiPO cases

Conclusion