Police Misconduct as a Breach of Public Trust: The Offence of Misconduct in Public Office

34 Pages Posted: 17 Sep 2015 Last revised: 31 May 2016

See all articles by Cindy Davids

Cindy Davids

Deakin University - Deakin Law School

Marilyn McMahon

Deakin University, Geelong, Australia - Deakin Law School

Date Written: 2014

Abstract

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.

Suggested Citation

Davids, Cindy and McMahon, Marilyn, Police Misconduct as a Breach of Public Trust: The Offence of Misconduct in Public Office (2014). Deakin Law Review, vol. 19, no. 1, pp. 89-121, 2014, Deakin Law School Research Paper No. 16-20, Available at SSRN: https://ssrn.com/abstract=2661235

Cindy Davids (Contact Author)

Deakin University - Deakin Law School ( email )

221 Burwood Highway
Burwood
Burwood, Victoria 3125, Victoria 3125
Australia

Marilyn McMahon

Deakin University, Geelong, Australia - Deakin Law School ( email )

221 Burwood Highway
Burwood, Victoria 3125
Australia
61392446184 (Phone)

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