RIP MIPO: introducing a new corruption in public office offence

Four years ago the Law Commission recommended a complete overhaul of the archaic misconduct in public office (MIPO) offence. The UK government has yet to provide a formal response to its central recommendation that a new corruption in public office offence be created. With growing public mistrust towards politicians, and a variety of scandals within high office that have led to a widespread sense that British politics is becoming more corrupt, the case for reform has never been stronger. 

Spotlight on Corruption recently convened a roundtable bringing together stakeholders from a variety of backgrounds, to reach a consensus on the inadequacies of the current framework, and to offer recommendations on how the Law Commission’s proposals can be made workable. 

Why do we need a new offence?

Research conducted by Spotlight reveals that MIPO – nominally the flagship legal tool against corruption in public office – has serious deficiencies when it comes to countering and punishing misconduct perpetrated by public officials. 

The offence is used almost exclusively against lower rank police and prison staff. Our research, covering convictions dating back to 2014, showed that only 2% of 191 publicly identifiable convictions were against holders of executive positions or senior political public offices, while junior and mid-level police and prison staff made up 92% of conviction statistics. 

MIPO is also predominantly used against inappropriate sexual relationships. Half of MIPO offenders in the public domain since 2014 were convicted of having or pursuing some form of inappropriate relationship (archetypally, a romance between a prison officer and an inmate), with a further eighth involving some form of unlawful sexual activity (such as assault). Candidly, these types of cases represent low-hanging criminal fruit, featuring straightforward evidentiary requirements that do not prove too strenuous for law enforcement. 

This raises questions about whether prosecutors struggle to use MIPO for increasingly complex and clandestine schemes, such as major financial irregularities at local councils. 

More serious forms of misconduct, such as the commission of financial crimes by public office holders, have a much poorer showing in the conviction statistics, with only seven successful convictions, or less than 4%. 

One rare example of MIPO keeping pace with such complex schemes was the recent conviction of Jeffrey Cook, a business manager who was found guilty of MIPO in relation to commissions he received while working for the Ministry of Defence. But a key test of how effectively MIPO can be used against local government leaders will come with the trials against former Liverpool mayor Joe Anderson and nine others, who will go on trial for a mixture of misconduct in public office and bribery offences, in relation to allegations of improperly awarded contracts. However, investigations into potential MIPO within other local councils, such as Croydon and Thurrock Councils, have struggled to get off the ground, often failing to even reach trial. 

Motions towards change

With a new anti-corruption strategy on the horizon and a new specialist unit at the City of London police looking at corruption in the UK, it is high time that the government expedites the Law Commission’s proposal for a new offence of ‘corruption in public office’. 

Spotlight’s roundtable found that the apparent lack of accountability for senior office-holders in the public sector relates to the facts that:

• Police and prison staff represent easy targets because they are more likely to plead guilty, and the presence of internal anti-corruption units in the police and prison service make it easier to gather evidence for trial. 
• Going after more senior officials requires considerable time and resources, and there are fewer dedicated anti-corruption units in local or national government to meet this challenge.
• There is an absence of clear codes of conduct and benchmarks for what “good” conduct looks like at a more senior level
• Failures by senior-level officials may be collective rather than individual, and may involve neglect, which is harder to evidence and prosecute.

The roundtable also found that while the Law Commission’s proposed offence is a useful start, shortcomings in the proposed drafting of the offence would make it hard to prosecute. Participants at the roundtable reviewed a series of proposals to make the Commission’s offence more practicable, and discussed ideas for how to address organisational failure in the public sector overseen by senior officials. 

It is clear that any legislative reforms must also be accompanied by cultural change, better training for tackling fraud and corruption, and greater ambition on the part of central government to unlock financial resources that enable law enforcement bodies to keep pace with increasingly technical corrupt schemes. 

There are also serious questions for other sides of the debate: for instance, what structural changes must take place within investigatory bodies like the police, and enforcement bodies like the CPS, to motivate them to tackle more complex crimes? Has the judiciary been too conservative in its engagement with the common law MIPO offence, by fashioning a risk-averse framework best suited to prosecuting non-political junior officers? And how can whistleblowers be brought into the fold, and be adequately protected? 

Our thanks to A&O Shearman for providing a pro bono legal research note for discussion and to Red Lion Chambers for their generous hosting of the roundtable, and to all of our participants for their invaluable contributions.