Malfeasance in office
Unlawful conduct by a public officer, often a crime.
Malfeasance in office, also referred to as misconduct in public office, encompasses any unlawful behavior by an official that can serve as grounds for removal through statute or recall, and in some legal systems constitutes a criminal offense. This concept is distinct from misfeasance, which involves a lawful act performed in an official capacity that improperly causes harm, and nonfeasance, which is the failure to carry out an official duty. A precise definition of malfeasance remains elusive because numerous authoritative secondary sources, including books and commentaries, offer competing interpretations based on reported cases. This confusion stems from the courts, where no single consensus definition has emerged from the limited number of appeal-level decisions addressing the offense.
Under English law, misconduct in public office is a common law crime dating back to the 13th century, carrying a maximum penalty of life imprisonment. It applies only to public office holders and occurs when the holder acts or neglects to act in a way that breaches the duties of that office. Case law has established a broad interpretation of "public office holder," not limited to those holding a formal office or receiving public funds, though government employees are more likely to fall within the definition. The Crown Prosecution Service outlines the offense's components as summarized by the Court of Appeal: a public officer acting as such wilfully neglects their duty or wilfully misconducts themselves to a degree that amounts to an abuse of public trust, without reasonable excuse or justification. Public officers include civil servants, judges, elected politicians, police officers, and prison staff, but not, according to a 2014 case, NHS staff like paramedics. A person can be considered a public officer even if employed by a private company delivering a public service, provided the misused power arises from their public office. A similar statutory offense exists under the Criminal Justice and Courts Act 2015 for police officers who improperly or corruptly use their powers. In contrast, misfeasance in public office is a tort, requiring the defendant to be a public officer exercising their power with targeted malice or by exceeding their authority. The Law Commission recommended in 2020 that the common law offense be abolished and replaced with two new statutory offenses—
- field
- Law
- known_for
- Unlawful conduct by a public officer, often grounds for removal or criminal prosecution
- jurisdictions
- England and Wales, United States, Greece
- maximum_penalty_England
- Life imprisonment
- maximum_penalty_Greece
- Up to two years imprisonment or a fine
Lore & Background
Under English law, misconduct in public office is a criminal offence at common law dating back to the 13th century, carrying a maximum penalty of life imprisonment. It is confined to public office holders and committed when the holder acts or neglects to act in breach of duty. The Crown Prosecution Service guidelines, as summarised by the Court of Appeal, require: a public officer acting as such; wilful neglect of duty or wilful misconduct; to a degree amounting to an abuse of public trust; without reasonable excuse. The similarly-named misfeasance in public office is a tort, with three essential elements per the House of Lords in the BCCI case: the defendant must be a public officer; exercising power as such; and either exercising targeted malice or exceeding powers.
Reader's Guide
Malfeasance in office is a concept of significant legal and political importance, serving as a mechanism to hold public officials accountable for unlawful conduct. Its definition remains unsettled across jurisdictions, as noted by the West Virginia Supreme Court of Appeals, which summarized multiple definitions from various U.S. appellate courts, including 'a wrongful act which the actor has no legal right to do' and 'any wrongful conduct which affects, interrupts or interferes with the performance of official duty.' The court added that malfeasance can arise from 'ignorance, inattention, or malice,' implying no intent or knowledge is necessarily required.
Did You Know?
- The offence of misconduct in public office under English law dates back to the 13th century.
- In England and Wales, the maximum penalty for misconduct in public office is life imprisonment.
- The West Virginia Supreme Court of Appeals noted that malfeasance can be found where there is 'ignorance, inattention, or malice,' implying no intent or knowledge is required.
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