These are the words the court used in convicting Charles Bembridge of the criminal offense of misconduct in public office. Bembridge, an accountant in the receiver and paymaster general’s office of the British armed forces, had failed to report that certain entries in the account books had been omitted. While his conduct didn’t match up with any crime on the statute books, it was, the court said, “contrary to his duty” in an “office of trust,” and thus constituted a crime at common law “misconduct in public office.”
Bembridge appealed, arguing the unfairness of convicting him of the heretofore unknown crime. But with concern about corruption in government growing, then Chief Justice Mansfield had no trouble finding what he had done wrong criminal:
“Here there are two principles applicable: first that a man accepting an office of trust concerning the public, especially if attended with profit, is answerable criminally to the King for misbehaviour in his office: this is true, by whomever and whatever way the officer is appointed […]
Secondly, where there is a breach of trust, fraud or imposition, in a matter concerning the public, though as between individuals it would only be actionable, yet as between the King and the subject it is indictable. That such should be the rule is essential to the existence of the country.”
The 1783 decision in King v. Bembridge creating the offense is a prosecutor’s dream. It is also civil libertarians and human rights defenders’ nightmare.
What makes misconduct in public office a prosecutor’s dream is its vagueness. The elements are:
1. a public officer acting as such;
2. willfully neglecting to perform his or her duty and/or willfully misconducting him or herself;
3. to such a degree as to amount to an abuse of the public’s trust in the office holder; and
4. without reasonable excuse or justification.
But as a 2020 report of the U.K. Law Commission notes, none of the four are well-defined. Just who counts as a “public officer”? What does it mean to be “acting as such”? In addition, the commission found,
- the required fault element is unclear and may depend on the circumstances of the case;
- the seriousness requirement – that the offence amounts to an “abuse of the public’s trust” – is highly subjective and difficult to apply; and
- it is not clear whether the fourth element – “without reasonable excuse or justification” – should be treated as a separate element of the offence.
All this makes it easy for prosecutors to shape the defendant’s conduct to come within the offense, ensuring as in Bembridge that a corrupt official will not escape sanction for a lack of an exact fit between his or her conduct and the statutory prohibition.
For the same reason, the offense is a nightmare for civil libertarians and human rights defenders. As Rachel Kleinfeld and I have explained, broadly worded laws give politically-motivated prosecutors and courts enormous discretion that can be employed to charge and convict regime opponents of corruption. John Hatcher reports that the common law offense of misconduct in public office is still prosecutable in Hong Kong, and Kenya and Zambia, to name but two former British colonies, have written the offense into their penal codes (Kenya sec 127; Zambia sec 123).
The Law Commission urges the offence be replaced with two new statutory offences:
an offence of corruption in public office, where the public office holder, in using the position or power, has knowingly engaged in “seriously improper” conduct with the purpose of achieving a benefit or detriment, and cannot prove that their conduct was, in all the circumstances, in the public interest; and
an offence of breach of duty in public office, where the public office holder has a specific duty to prevent death or serious injury, is aware of that fact, and breaches the duty, causing or risking death or serious injury, while being at least reckless as to whether that would result.
It is surely too much to hope that Hong Kong lawmakers will take the Law Commission’s recommendations to heart. But certainly not to ask the British, Kenyan, Zambian, and other parliaments where the offense remains on the books to do so. It is time do away with the risks inherent in the law made in Mr. Bembridge’s case.