Not a matter that we come across very often in Probation. In theory at least members could find themselves supervising individuals convicted of this offence. But perhaps of greater concern is the potential for probation staff themselves to be charged with this common law offence. It has happened and the ramifications are huge. The maximum sentence is life imprisonment.
The Law Commission is currently reviewing the offence and Napo has been asked to contribute to the review. It is not a simple matter. Prosecutions for this offence are more often found amongst the ranks of the police and the Prison Service. There is evidence that it has become more prevalent in recent years. One example is the series of prosecutions of suspects arrested as part of the Metropolitan Police investigation, Operation Elveden through 2014/15.
The law has been developed piecemeal but a recent Court of Appeal judgement described the elements as follows: (1) a public officer acting as such; (2) wilfully neglects to perform his duty and/or wilfully misconducts himself;(3) to such a degree as to amount to an abuse of the public’s trust in the office holder;(4) without reasonable excuse of justification.
It’s easy to see from this how someone working in Probation could fall foul of the law. it is equally easy to discern all the potential difficulties inherent in this offence – not least, who is a public officer in the world of privatised public services. There is then overlap with other forms of accountability such as disciplinary policies and the question has to be asked: does the action need to be criminalised? There is also the uncomfortable position here of whistleblowers – on the one hand protected by the law, but equally at risk from this offence.
There are many areas of uncertainty surrounding this offence. This review is seeking to explore and untangle the complexities. A summary of Misconduct in Public Office: Issues Paper 1 – The current law is available on the Law commission website: http://www.lawcom.gov.uk/project/misconduct-in-public-office/