Misconduct in a Public Office—Should it Still Be Prosecuted?

2012 ◽  
Vol 76 (2) ◽  
pp. 179-185 ◽  
Author(s):  
Simon Parsons
Keyword(s):  
Common Law ◽  
Material Damage ◽  
Public Officials ◽  
Public Office ◽  
The Common

This article examines the common law crime of misconduct in a public office from its ancient origins, and considers the difficulties in defining the crime. These difficulties arise from the crime being very widely defined as it includes non-feasance, misfeasance, frauds and deceits, malfeasance and oppression. It is unclear whether these are separate categories or if they run into one another. It is also unclear if the crime is a conduct crime or whether material damage is required. It appears that the DPP requires material damage before a prosecution can take place. The article argues that as the elements of the crime are so uncertain, it should no longer be prosecuted especially in view of the availability of alternative statutory offences which could be charged instead of the misconduct crime. These statutory offences have the certainty which the misconduct crime lacks and they thus enable public officials to judge their future conduct.

scholarly journals When Misconduct in Public Office is Really a Sexual Offence

2017 ◽  
Vol 81 (4) ◽  
pp. 292-302
Author(s):  
Catarina Sjölin ◽  
Helen Edwards
Keyword(s):  
Policy Development ◽  
Sexual Offending ◽  
Common Law ◽  
Sexual Misconduct ◽  
Sexual Offence ◽  
Sexual Offences ◽  
Public Office ◽  
Varied Range ◽  
The Common ◽  
Sexual Offences Act 2003

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.

An Inquest on the Cook County Coroner

1973 ◽  
Vol 19 (1) ◽  
pp. 19-32
Author(s):  
Richard P. Fahey ◽  
Deborah J. Palmer
Keyword(s):  
Law Enforcement ◽  
Common Law ◽  
Cook County ◽  
Public Officials ◽  
Law System ◽  
The Common ◽  
Common Law System

The office of coroner is one of the oldest law enforcement posi tions in the common law system of justice, antedating the office of sheriff and the expanded role of the judiciary. Carried into modern law, it is considered a corrupt office by some, while others see it as an effective check and balance on public officials in vestigating deaths.

The Act of Settlement and the Employment of Aliens

1981 ◽  
Vol 12 (3) ◽  
pp. 212-235
Author(s):  
Keven Booker ◽  
George Winterton
Keyword(s):  
Common Law ◽  
The State ◽  
Public Office ◽  
The Common

Following recent disagreement between the Commonwealth and Victorian Solicitors-General over whether the States have power to employ aliens in public offices in view of section 3 clause 5 of the Act of Settlement 1701 (U.K.), this Article considers whether that clause applies in the States and, if it does, whether they or the Commonwealth can amend or repeal it. These issues are examined in light of the common law on the employment of aliens in public office, the reasons for the enactment of the Act of Settlement, and the question whether, and to what extent, the doctrine of paramount force applies to legislation enacted prior to the establishment of a colony. The Article concludes that section 3 clause 5 did not apply in Australia, either by reception or by paramount force, although the common law on the employment of aliens applied by reception; and the common law did not disqualify naturalized persons from holding public office. The authors argue that in any event, Commonwealth legislation, validly enacted under the “Naturalization and aliens” power (section 51(xix)) has removed any disabilities the Act of Settlement might have imposed on the employment of naturalized persons. Moreover, pursuant to section 51(xxxviii), the Commonwealth could authorize the States, or any of them, to pass legislation repugnant to Imperial legislation extending to the State by paramount force.

scholarly journals Police Misconduct as a Breach of Public trust: the Offence of Misconduct in Public Office

2014 ◽  
Vol 19 (1) ◽  
pp. 89 ◽  
Author(s):  
Cindy Davids ◽  
Marilyn McMahon
Keyword(s):  
Police Officers ◽  
Sexual Exploitation ◽  
Public Trust ◽  
Police Misconduct ◽  
Public Officials ◽  
Public Office ◽  
The Public ◽  
The Common ◽  
Criminal Conduct ◽  
Vulnerable Persons

Until relatively recently, the common law offence of misconduct in public office has been regarded as anachronistic. The offence was perceived to have been supplanted by specific statutory offences that could more appropriately deal with criminal conduct by public officials. However, there has been a revival of the offence with successful prosecutions occurring in Australia, England and Hong Kong. Many of these contemporary cases have involved police officers. Examination of these cases reveals that the circumstances in which misconduct in public office has been identified have been diverse, including the unauthorised disclosure of confidential information, the use of false search warrants and the sexual exploitation of vulnerable persons. In many instances, police officers were charged with other criminal offences in addition to charges relating to misconduct in public office. The matters prosecuted as misconduct in public office typically involved matters that were serious and/or could not be adequately prosecuted as other criminal offences or as breaches of police regulations governing conduct. Consequently, despite the proliferation of statutory criminal offences in the 20th century it appears that there continues to be a place for the offence of misconduct in public office. It criminalises misconduct by police officers that may not be adequately dealt with by other offences and recognises the public trust dimension of wrongdoing by these officials. However, a continuing and fundamental challenge is to determine the appropriate definition and scope of the offence.

Is Style of Reasoning a Fundamental Difference Between the Common Law and the Civil Law?

2017 ◽  
Vol 17 (2) ◽  
pp. 238-290
Author(s):  
Colm Peter McGrath ◽  
◽  
Helmut Koziol ◽  
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Fundamental Difference ◽  
The Common

Rediscovering Blackstone: wpływ Williama Blackstone’a na rozwój amerykańskiej nauki prawa w recepcji Alberta W. Alschulera

2017 ◽  
Vol 15 (2) ◽  
pp. 175-185
Author(s):  
Edyta Sokalska
Keyword(s):  
United States ◽  
18Th Century ◽  
Common Law ◽  
The United States ◽  
Law School ◽  
Large Measure ◽  
American Colonies ◽  
Late 18Th Century ◽  
American Law ◽  
The Common

The reception of common law in the United States was stimulated by a very popular and influential treatise Commentaries on the Laws of England by Sir William Blackstone, published in the late 18th century. The work of Blackstone strengthened the continued reception of the common law from the American colonies into the constituent states. Because of the large measure of sovereignty of the states, common law had not exactly developed in the same way in every state. Despite the fact that a single common law was originally exported from England to America, a great variety of factors had led to the development of different common law rules in different states. Albert W. Alschuler from University of Chicago Law School is one of the contemporary American professors of law. The part of his works can be assumed as academic historical-legal narrations, especially those concerning Blackstone: Rediscovering Blackstone and Sir William Blackstone and the Shaping of American Law. Alschuler argues that Blackstone’s Commentaries inspired the evolution of American and British law. He introduces not only the profile of William Blackstone, but also examines to which extent the concepts of Blackstone have become the basis for the development of the American legal thought.

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