Misfeasance, Malfeasance & Misconduct in Public Office


Officers of authorities and authorities themselves, whether Police or a Local Council are bound by the law to a code of conduct in applying, enforcing or setting out restrictions within their areas.

That code of conduct requirement is that neither the authority nor it’s officers knowingly penalise, charge or enforce matters which are defective or without legal substance.  Local authorities have to, or will have surveyed and checked all signing, lining and Traffic Regulation Orders prior to an application to the Secretary of State for Transport for decriminalised enforcement powers.

DPE is granted following a signed agreement with the Department for Transport and an authority is reminded in writing they cannot enforce defective restrictions, there is therefore ample knowledge within

the highway authority by both Officers and Members.

It is our understanding that to fine or charge for matters with no basis in law then both the officer(s) and the authority commit the offence of misconduct in public office.  The correct term for that offence are either misfeasance or malfeasance in public office.  The CPS define a criminally prosecutable offence of ‘misconduct in public office’ their definition and policy is set out later in this page.

There are concerns that the Police, when asked to investigate are either refusing to act or are minimising the issues.  The reasoning for this has included suggestions that Mis/malfeasance in public office is a civil tort not a criminal offence.  A High Court ruling in 1996 clearly sets out that Council Officers are individually liable for the criminal offence of misfeasance (and malfeasance).  However, convictions do occur:

These two  common law offences have far reaching consequences, following a criminal conviction, it is our understanding that the penalty can be an indefinite term of imprisonment and an unlimited fine.

Many officers in local authorities choose to provide restrictions which fall short of the statutory legal requirements.  When such restrictions are knowingly enforced, in either Criminal or Civll Courts, then both the officer (agent of the authority) and the authority would appear to commit one or more of these offences.

Officers may inadvertently provide defective restrictions however, once those defects become apparent or the authority be made aware of the legal issues, if, those defects go uncorrected and the enforcement continues, it is our understanding from that point onwards the officers and/or the authority then commit criminal offence(s).

It has been suggested that where Members are aware of the deficiencies and insist on, or sanction such defective restrictions or enforcement, they too may be liable for their actions.


Kuddus v Chief Constable of Leicestershire Constabulary


In Attorney General's Reference No. 3 of 2003 [2004] EWCA 868, it was put to the Court of Appeal, but not argued as part of the substantive appeal, that public functions are now frequently carried out by employees in private employment, e.g. security at courts and transport of prisoners, and that it was unfair and illogical if those holding public office, such as police officers, were to be liable to conviction of an offence not applicable to private employees doing similar work.

Having not heard argument on the point, and having already stated (Para 54) that this "may present problems of definition", which they declined to elaborate upon, the Court stated as follows (Para 62):

    "This potential unfairness adds weight, in our view, to the conclusion that the offence should be

     strictly confined but we do not propose to develop the point or to consider further the question of

     what, for present purposes, constitutes a public office."

So who holds a public office and as a result can be guilty of this offence?

According to the Court of Appeal, which quoted from the earlier authorities, it requires that the defendant, "must be a public officer acting as such .. There must be a breach of duty by the officer, [which is wilful and which is such that the conduct is] an affront to the standing of the public office held. The threshold is a high one requiring conduct so far below acceptable standards as to amount to an abuse of the public's trust in the office holder" (Para 56). And later, quoting from the case of Bembridge [(1783) 3 Doug KB 32], "those who hold public office carry out their duties for the benefit of the public as a whole and, if they abuse their office, there is a breach of the public's trust" (Para 57).

A number of recent examples have concerned police officers in the execution of their duties as constables including, the reported case of Dytham [1979] 1 QB 723; officers who provided confidential information about private side telephone intercepts to a criminal (R v. W [2003] EWCA 1632); and a case in which officers were convicted on the basis that, while on duty, they had sex with a vulnerable victim of crime in their care (Witcher & Lang Guildford Crown Court March 2005).

Other cases have included those who are perhaps less obviously acting as public officers as opposed to simply being relatively low-level public employees. In R v. Sunshes Nkesha Pike-Williams [2004] EWCA Crim 2400, a civilian station reception officer pleaded guilty to misconduct on the basis that she had gained access to secure terminals and viewed confidential information, which she was not entitled to do. The information was about her friends and associates and there was no allegation that she had disclosed the information to anyone. The court described her offence as, "a very silly mistake" and suggested that a "significant" community penalty was the appropriate sentence.

In Bowden [1996] 1 Cr.App.R. 104, the defendant was employed by a local council as the Miscellaneous Maintenance Manager of the City Works Department, part of whose responsibilities included being accountable for receipt and disbursement of public money.

However, in another case Treasury Counsel advised that a doctor, contracted to act as a forensic medical examiner (FME) by a police force, was not a public officer for the purposes of the offence.

It is submitted that there is a distinction that must be drawn between a public officer acting as such with general obligations to the public at large and a public employee, who by reason of his employment assumes a duty towards a named individual. The latter is not, it is suggested, public officer acting as such, but rather a public servant providing a service to individuals who he encounters in the course of and by reason of his employment. This reasoning is supported by the judgements in the case of Kent v Griffiths and others. While this was a civil case regarding the liability of amongst others the ambulance service, it illustrates in the passages referred to below the distinction set out above: per Kennedy LJ Kent v Griffiths and others CA 11.12.98, Times 23.12.98, and per Lord Woolf MR, Kent v Griffiths and others CA 3.02.00, (2001) 1 QB 36 @ 45. So for example, a paramedic on an ambulance, who is negligent in the treatment of a patient, would not be acting in a public office.

It is an offence which should be strictly confined. See Attorney General's Reference No.3 of 2003 [2004] EWCA Crim 868, quoting from the earlier case of Bembridge, "those who hold public office carry out their duties for the benefit of the public as a whole and, if they abuse their office, there is a breach of the public's trust" (Para 57).

If the above tests are applied it is suggested that it will rarely be appropriate to charge those holding, for example relatively junior management, administrative, clerical or secretarial roles just because their employer happens to be a public authority.

Wilful neglect/misconduct

There must be a serious departure from proper standards before the offence is committed. Mere negligence is not enough. The conduct required must be so far below acceptable standards as to amount to an abuse of the public's trust in the office holder. A mistake, even a serious one will not suffice, nor will mere inadvertence. There must be reckless indifference in a subjective sense or proof that the defendant knew that he was acting unlawfully or to have wilfully disregarded the risk that his act was unlawful. There must be more than mere non-feasance, namely deliberate failure and wilful neglect.

Charging practice

Like perverting the course of justice, misconduct in public office covers a wide range of conduct. It should always be remembered that it is a very serious, indictable only offence carrying a maximum sentence of life imprisonment. A charge of misconduct in public office should be reserved for cases of serious misconduct or deliberate failure to perform a duty which is likely to injure the public interest. Regard must be had to the factors outlined above, which help to identify the seriousness of the conduct.

Before deciding to proceed with a charge of misconduct in public office you should consider whether the acts complained of can properly be dealt with by any available statutory offence. If the seriousness of the offence can properly be reflected in any other charge, which would provide the court with adequate sentencing powers, and permit a proper presentation of the case as a whole, that other charge should be used unless:

    * the facts are so serious that the court's sentencing powers would be inadequate; or

    * it would ensure the better presentation of the case as a whole; for example, a co-defendant has

       been charged with an indictable offence and the statutory offence is summary only.

Note that in R v Sookoo (2002) TLR 10/4/02 the Court cautioned against adding a count of perverting the course of justice when the conduct could properly be treated as an aggravating feature of a statutory offence. Similar reasoning should be applied to the charging of misconduct in public office. So for example, an assault by a police officer committed while on duty could also arguably be misconduct in public office, but the appropriate assault charge would provide the court with adequate sentencing powers and the ability to take into account the breach of trust by the officer as an aggravating factor [see R v. Dunn [2003] 2 Cr.App.R.(S)].

The guidance set out in this charging standard:-

    * should not be used in the determination of any investigatory decision, such as the decision to


    * does not override any guidance issued on the use of appropriate alternative forms of disposal

       short of charge,

       such as cautioning or conditional cautioning;

    * does not override the principles set out in the Code for Crown Prosecutors;

    * does not override the need for consideration to be given in every case as to whether a charge/

       prosecution is in the public interest;

    * does not remove the need for each case to be considered on its individual merits or fetter the

      discretion to charge and to prosecute the most appropriate offence depending on the particular

      facts of the case.

Useful references

Attorney General's Reference No. 3 of 2003 [2004] EWCA 868

Bembridge [(1783) 3 Doug KB 32]

Dytham [1979] 1 QB 723

R v. W [2003] EWCA 1632

Witcher & Lang Guildford Crown Court March 2005

R v. Sunshes Nkesha Pike-Williams [2004] EWCA Crim 2400

Bowden [1996] 1 Cr.App.R. 104

Kent v Griffiths and others

Attorney General's Reference No.3 of 2003 [2004] EWCA Crim 868

R v Sookoo (2002) TLR 10/4/02

R v. Dunn [2003] 2 Cr.App.R.(S)


Misconduct in public office

From WikiCrimeLine

See also:

    * Complaints and misconduct: Serious Organised Crime and Police Act 2005

    * CPS Misconduct in public office

    * Bribery and Corruption Offence

    * A Consultation Paper from The Nolan Committee Misuse of Public Office: A New Offence?

    * Sarah Hannett Misfeasance in Public Office: the Principles: Sarah Hannett (2005)

In Attorney General's Reference No. 3 of 2003 [2004] EWCA Crim 868 (07 April 2004) The Attorney General sought the opinion of the Court.

The questions for the opinion of the court were:

(i) "What are the ingredients of the common law offence of misconduct in a public office?

(ii) In particular is it necessary, in proceedings for an offence of misconduct in a public office, for the prosecution to prove "bad faith" and, if so, what does bad faith mean in this context ?"

The Court Held:

(paragraph 61) The circumstances in which the offence may be committed are broad and the conduct which may give rise to it is diverse. A summary of its elements must be considered on the basis of the contents of the preceding paragraphs. The elements of the offence of misconduct in a public office are:

    * 1. A public officer acting as such (paragraph 54).

    * 2. Wilfully neglects to perform his duty and/or wilfully misconducts himself (paragraphs 28, 30, 45 and 55).

    * 3. To such a degree as to amount to an abuse of the public's trust in the office holder (paragraphs 46 and 56 to


    * 4. Without reasonable excuse or justification (paragraph 60).

As with other criminal charges, it will be for the judge to decide whether there is evidence capable of establishing guilt of the offence and, if so, for the jury to decide whether the offence is proved.

Para 63: As to question (ii) in the Reference, we do not favour the introduction of the expression "bad faith" routinely into the summing-up to the jury of the ingredients of the offence of misconduct in public office. We understand the emphasis placed upon it in a civil context in Three Rivers but consider the terminology we have expressed would better indicate to the jury the test to be applied. In a case such as the present, for example, the introduction of the doctrine of bad faith, more appropriate to a consideration of commercial dealings, might confuse the jury and deflect them from their task of deciding whether the office of constable had been abused by the conduct of the constables. There may, however, be cases in which the concept of bad faith may be relevant to an assessment of the standard of the defendant's conduct.

Para 64: While this is not intended as a comment upon the present case, it will be clear from what we have said that we do not consider that, in future, in circumstances such as the present, a charge of misconduct in public office should routinely be added, as an alternative, to a charge of manslaughter by gross negligence on the basis that it may be difficult to establish causation. This offence is quite different from manslaughter and, as appears from the authorities, different considerations apply when considering whether to allege it.


FEATURE Of the WEEK 28February 1998 156-9 JUSTICE Of the PEACE Volume 162

Misfeasance In Public Office


T he current edition of Clerk & Lindsell on Torts describes “an emergent tort of misfeasance in public office providing a remedy in damages for loss, injury or damage resulting from administrative action which the relevant authority or officer knows to he unlawful.” While recent cases have provided novel illustrations of the tort, it is in fact long-established.2 In 1828 Best. CJ proclaimed:

“Now I take it to be perfectly clear, that if a public officer abuses his office, either by an act of omission or commission, and the consequence of that, is an injury to an individual, an action may be maintained against such public officer. The instances of this are so numerous, that it would be a waste of time to refer to them.”

What has emerged in the last decade is a more thorough consideration of the constituent elements of the tort. This article considers those elements.

In many of the recently reported cases misfeasance in public office has been pleaded as an alternative  

to negligence. While there is nothing to preclude a set of facts giving rise to a claim both in

misfeasance and in negligence, the two torts are fundamentally different. Misfeasance in public office

is distinguished from negligence by its requirements of deliberateness and dishonesty, actual or

concrrnctive.4 The tort of misfeasance:

1.At p.834.

2.It was described Drd Diplock as “the weIl-establtshed tort of misfeasance by a public officer in the.discharge of his public duties”: Dunlop v. Woollahara Municipal Counci 1982 AC 158 at 172F. Early cases are cited in Bourgoin SA v. MAFF. [1986] QB 716 at 737-8 and TheThree Rivers District Council v. Governor and Company of the Bank of England [1996] 3 All ER 558 at 584-590

3.Henly v. Lyme Corporation (1828) 5 Bing 92 at 107-8, 130 ER 995at1001.

4.Clarke J in Three Rivers DC v. Bank of England at 582b. See also Diplock, J in O’Conner v. lsaacs [1956] 208 288 at 333.


5.Brennan, J in Northern Territory v. Mengel (1996)185 CLR 307 at 358. Similarly, Clarke, J in Three Rivers DC v Bank of England at 573j, 578h.

6.Caparo Industries plc v. Dickman [1990] 2AC 605 at 617-8, 632-3; Marc Rich & Co A.G. v. Bishop Rock Marine Co Ltd [1996] AC 211.

7.Dunlop v. Wooliahra; Wood v. Blair and Helmsley Rural DistrictCouncil (CA) The Times (1957), July 3-5; 2 Brit JAdmin Law 243; Bourgoin v. MAFF; Farrington v. Thompson and Bridgend [1959] VR 286; Ashby v. White (1703) 2 Ld Raym 938, 92 ER 126; 3 Ld Raym 320, 92 ER 710; 14-Howell’s StateTrials 780; Drew v. Coulton (1787)1 East 563n,, IO2 ER 217; Acland V. Bullar (1848) 1 Exch.837, 154 ER 357.

8.  Mengel v. NTat 356 and 357, Bennett v. Comissioner of Police the Metropolis (1995) 1 WLR

     488, (1995] 2 All ER1;

   Sanders v. Snell (1997)143 ALR 426. It is also suggested in Partridge v. General Council of

     Medical Education and Registration of the UK (1890) 25 QBD 90.

“is not concerned with the imposition of duties of care. It is concerned with conduct which is

  properly to be characterized as an abuse of office and with the results of that conduct. Causation of

  damage is relevant; forseeability of damage is not”.5

Negligence is, of course, not confined to acts or omissions done under the colour of public office. The

existence and scope of a duty of care giving rise to a claim in negligence has been shaped by the

forseeabilitv of damage arising from the act or conduct, notions of sufficient proximity between the

parties, and whether as matter of legal policy it is “fair, just and reasonable” that a duty of care should

exist.6 An examination of the elements of misfeasance in public office reveals fundamental

differences from negligence.

Recent analyses of misfeasance have variously identified three, four or five essential elements to the

cause. The analyses do not materially differ: where fewer elements are separately identified, one or

more of them incorporates two discrete requirements. The five-element description does, however,

provides a convenient means of isolating particular requirements and difficulties. For the purposes of

this article, it has been adopted.

The Act or Conduct Impugned Must be Invalid or Unauthorized

The most straightforward instances of this element are where the office holder simply has no statutory mandate to do what has been done. In administrative law terms, the act or conduct is in excess of the power bestowed on that officer by the statutory source. Typically:

•a council passing a resolution imposing a three-storey limit on a residential development in a zone where higher buildings were permitted;

•a district council issuing a notice forbidding a dairy farmer from selling unpasteurised milk;

•a central government ministry withdrawing a turkey importation licence in contravention of art.30 of the EEC Treaty;

•a licensing authority directing a publican to close down his pub in circumstances beyond those enabling it to do so;

•a constable or bailiff preventing an elector from casting his vote.7

As well as ultra vires acts in the strict administrative law sense, a purported exercise of power that has miscarried by reason of some other matter which warrants judicial revieW and a setting aside of the administrative action may suffice:

For example, the failure by the officer to treat the plaintif with procedural fairness or a failure to carry out a require4..’ -balancing exercise may for the purposes of the cause be treated as an unauthorized act or conduct.8 Although it has been said that not all such miscarriages will suffice, it is difficult to see why an act or conduct which warrants judicial review and a setting aside of the administrative action should not always meet this requirement. In such cases the mental element will be more difficult to establish than when there has been an act for which the office holder has no authority howsoever carried out.

The tort will extend to an omission of a public officer.

Thus, the failure of the Bank of England to revoke the banking licence of BCCI and the failure of Lyme Corporation to maintain a sea wall were omissions capable of supporting an action of misfeasance.9

The Act or Conduct Impugned Must Have Been Done Either Maliciously or Knowing That is Invalid/Unauthorized and That it Will Injure the Plaintiff

This is the element that has most taxed the attention of the courts in the last decade. It is now recognized to have two limbs. Both limbs present difficulties of proof and require caution before being alleged. Allegations of malice impose

9.Three Rivers DC v. Bank of England at 578b, 583a; Henly V. Lyme Corporation (1829) 5 Bing 91

       at 107-8, 130 ER 995 at 

       1001. See also Mengel at 355; Ganett V. AG [1993] 3 NZLR 600 at 604.

10. See RSC 0.18 r. 12(1)(b) and RSC Ord18 r.12(4) respectively. See also Cannock Chase DC v. Kelly (1978)1 WLR I.

11.    For example, Ashby v: White; Drewe v. Coulton; Acland v. Buller.

12.(1875) LR 6 PC 398. The Judicial Committee held “that the sheriff in this case was guilty of a misfeasance in the exercise of the powers which were entrusted to him by law and in the discharge of his duty as a public ministerial officer, and that in respect of that misfeasance he is liable to an action for the damages which resulted from that act, notwithstanding it was not proved against him that he was actuated by malicious motives.” (at 406).

13.Farrington v. Thomson at 293; Smith v. East Elloe ROC (1956] AC 736 at 752; Dulop v. Woollahra at 172; Bourgoin v. MAFF at740, 777; Little v. Law Institute of Victoria [1990) VR257 at 270; R. v. Deputy Government of Parkhürst Prison ex parte Hague [1992] 1 AC 58 at 100E; Mengel v. Northern Territory (1996) 185 CLR 307 at 357.

14.This was extensively analysed in Mengel v. NT and then Three Rivers DC v. Bank Of England [1996] 3 All ER 558. The Three Rivers analysis referred to with approval in R. v. Chief Constable of North Wales Police and other, exparte AB and another [1997] 4 All ER 691 at 701 and Lee v. LAUTRO Limited (Ferris, J, July 16, 1996).

15.    Bourgoin v. MAFF at 740, 777; Three Rivers DC v. Bank of England at 578b, 5821, 632j; Mengel v. NT at 348.

16.Calveley v. Chief Conistable of the Merseyside Police (1989) AC 1228 at 1240; Bourgoin v. MAFF at 740; Elguzouli-Daf v. Commissioner of Police for the Metropolis [1995] QB 335 at 347.

17.Mengel v. NT at 347-8, 356, 370.

18.At 582 (632).

19.Bourgoin v. MAFF at 740, 777; R. v. Deputy Governor of Parkhurst Prison ax parte Hague at IOID; R. v Secretary of State for the Home Department ex parte Ruddock [1987]1 WLR 1482 at 1498; Elguzoali-Daf v. Commissioner for Police for the Metropolis at 347; Three Rivers DC v Bank of England at 5821, 632j; Menge! v. NT at 347, 357,370; Ganett v. AG at 604.

20.Bourgoin v. MAFF at 740 777G, 788H, 790F; Three Rivers DC v. Bank of England at 567d, 570b, 573j.

21.Three Rivers DC v. Bank of England at 582g, 631; Menge! v. NTat347, 357, 371.

special duties upon the pleader and must be fully particularized. Similarly, knowledge of facts must be pleaded with particularity.10 Failure to plead the element properly may be expected to attract an application to strike out the claim, and it is notable that many of the recent authorities have arisen on such applications.

Earlier cases were invariably concerned with acts or conduct done maliciously, ie with the object or intention of causing harm to the plaintiff.11 The first suggestion that knowledge of invalidity and resultant injury, without malice, would suffice came with Brasyer v. Maclaren.12 By the second half of this century it was generally acknowledged that the mental element required for the tort could be made out in either of two ways:

•where the public officer was actuated by malice that is with the object or intention of causing harm to the plaintiff; or

•where a public officer engaged in conduct in purported exercise of a power but with actual knowledge that there was no power to engage in that conduct and that it would probably result in injury to the plaintiff.13

More recently, there has been a refining of the second limb.14 As the law presently stands, the mental element is satisfied when the public officer engages in the impugned conduct:

(a)With the intention or object of inflicting injury on the plaintiff.15 This is sometimes expressed as conduct done in bad faith or conduct done maliciously.16 If the officer has this intention or object, it is not necessary to show that the officer knew that he lacked power to engage in that conduct.17 In Three Rivers Clarke, J said that this would also be satisfied if the public officer engaged in the impugned conduct with an intention to injure a person in a class of which the plaintiff was a member.18


(b) With knowledge:

•that he has no power to engage in that conduct; and

•that the conduct will probably (not necessarily or inevitably) injure the plaintiff or a person in a class of which the plaintiff is a member)19

Using this alternative it is not necessary to show that the officer acted with the purpose or object of inflicting harm on the plaintiff.20


(c) (i)With reckless indifference or deliberate blindness as to the availability of power to

support the impugned conduct. This will be satisfied where the officer believes or

suspects that the act is beyond his powers but he does not ascertain whether or not that is

so or fails to take such steps as would be taken by an honest and reasonable man to

ascertain the true position;21


(ii)With reckless indifference or deliberate blindness as to the probably injury which the impugned

          conduct is likely to cause the plaintiff or a person in a class of which the plaintiff is a member.

          This will be satisfied where the officer believes or suspects that his act will probably (not

          necessarily or inevitably) damage the plaintiff or such a person, but he does not ascertain whether

         or not that is so or fails to take such steps as would be taken by an honest and reasonable man

          would make as to the probability of such damage.22

These are all states of mind which are inconsistent with an honest attempt by a public officer to perform the functions of the office. Where the named defendant, or one of the named defendants, to the action is a body (for example, a council or a governmental agency or instrumentality) and its liability for misfeasance is alleged to arise directly (as opposed to vicariously), familiar problems of ascertaining its corporate intent will arise.23 There seems no good reason why the reasoning process which has been used in criminal proceedings should not equally apply to misfeasance. The approach, then, is to ascertain the intention or knowledge of those within the body who instigated or directed the impugned acts or conduct. Where the impugned act is a resolution of a council, it is enough that a majority of those voting in favour of the resolution were actuated by the requisite malice.24

The Act or Conduct Must Have Been Done by a Public Officer

Every person who is appointed to discharge a public duty and receives a compensation for the same is a “public officer”. It includes a council as a statutory corporation (ie as a legal entity, as opposed to the individual council members) exercising its statutory powers eg granting planning permission on conditions.25

A public officer does not include a person exercising judicial functions. The reason for this is policy: the wronged person has his remedy by way of an appeal which can negate the impugned act.26 By parity of reasoning, a statutory right of appeal against the act complained of offers an opportunity to nullify the wrong will undermine a misfeasance action. Whether one characterises it as a policy limitation or simply the obligation on a plaintiff to mitigate his loss, the right of a merit review will at the least impinge upon the quantum of damages recoverable.27

22.Three Rivers DC v. Bank of England at 582g-583b, 633b; Mengel v. NT at 347, 357,


23.See Tesco Supermarkets Ltd v. Naltrasse [1972] 4 AC 153.

24.Jones v Swansea City Council [1990] 1 WLR 1453 at 1459A, [1990] 3 All ER 737 (HL).25.

         Henly v. Mayor of Lyme at 107-8, ER at 1001 Dunlop v. Wool!ahra at 172F. Jones v. Swansea at

         69E 1458G.

26.     Fay v. Blackburn (1863) 3 B&S 576; Polley v. Fordham [1904] 2KB 345; O’Connor v. Isaacs

          [1956] 2 QB 288 at 351,364 and 368.

27.    Whether this also applies where judicial review is the only right of challenge to the impugned

         decision is not clear, either on the authorities or in principle.

  28.   Farrington v. Thomson and  Bridgland at 294; Wood v. Blair and Helmsley Rural Districi

          Council (1957) The

            Times July 3-5 (1957} Brit J Admin Law vol 2 p 243; cf O’Connor v. !saacs.

29.        Missing.

The Act or Conduct Must Have Been Done by Him in the Purported Discharge of his Public Duties

If the act or conduct of the public officer has the colour of being done in his capacity as a public officer, that will suffice. For example, in Elliott the provision of information about the plaintiff’s convictions to his employer by a policeman was held to fall within the principle. The policeman had the information because, as a police officer, he had access to the National Police Computer; and he gave the information to the employer in his capacity as a police officer. On the Other hand, in Calveley the mere making of a report as to the status of an investigation under the Police (Discipline) Regulations was held not to be a relevant exercise of power. Had it been alleged that the suspension of the police officer had been done maliciously, then this could have founded a case of misfeasance.

Provided that the ultimate source of the officer’s act or conduct is his office, that will suffice. Thus, it is possible to impugn the manner in which a contractual power has been exercised where the power to enter that contract derives from statute. In Jones v. Swansea the act impugned was the refusal to agree under the terms of a lease to vary the use to which the demised premises could be put.

The Act or Conduct Must Cause Loss or Harm to the Plaintiff

This will be satisfied where the most immediate cause of loss or harm is the plaintiff obeying an invalid order issued by the public officer.28

It will be seen from the above analysis that the tort does not require the plaintiff to identify a legal right that is being infringed or a particular duty owed to him, beyond the right not to be damaged or injured by a deliberate abuse of power by a public officer.29

Vicarious Liability

It was noted above that a body could be directly liable for misfeasance in public office where those in the body instigating or directing the impugned act or conduct, or at least a majority of them, had the requisite intent or knowledge. It is also possible for such a body to be vicariously liable for the misfeasance of its officers. Vicarious liability for misfeasance presents problems akin to those which arise in a master and servant situation:

“a master ... is liable even for acts which he has not authorized, provided they are so connected with acts which he has authorized that they might rightly be regarded as modes although improper modes of doing them. In other words, a master is responsible not merely for what he authorizes his servant to do, but also for the way in which he does it.... On the other hand, if the Unauthorized and wrongful act of the servant is not so connected with the authorized act as to be a mode of doing it, but is an independent act, the master is not responsibIe: for in such a case the servant is not acting in the

In Racz the House of Lords held that the Home Office could be vicariously liable for the acts of prison officers which amounted to misfeasance in public office. Only if the unauthorized acts of the prison officers were so unconnected with their authorized duties “as to be quite independent of and outside those duties” would the Home Office not be vicariously responsible for the same. Put another way, unless the officers were engaged in what was tantamount to an unlawful frolic of their own or “engaged in a misguided and unauthorized method of performing their authorized duties” the Home Office would be vicariously liable.31 In Elliott it was held that the Chief Constable could be vicariously liable for the misfeasance of one of his officers in wrongfully disclosing information about the plaintiff’s criminal convictions to his employer.

Elsewhere, liability of the employing body has been said to depend on whether the officer had “de facto authority” to engage in the impugned act or conduct.32 Unless there is de facto authority there will ordinarily only be personal liability. Thus in Mengel it was accepted that the Territory Government was vicariously liable for the unauthorised acts of its cattle inspectors, presumably, the court said, because the Territory Government took the view that there was de facto authority for the acts in question.33

It is difficult to see that there is any material difference between the approaches: both are designed to protect bodies from acts or conduct of its officers that, on their face, are outwith their authority.


In X. v. Bed fordshire County Council34 Lord BrowneWilkinson classified private law claims for damages into four different categories:

(1)actions for breach of statutory duty simpliciter (ie irrespective of carelessness);

(2)actions based solely on the careless performance of a statutory duty in the absence of any

            other common law right of action;

(3)actions based on a common law duty of care arising either from the imposition of the

            statutory duty or from the performance of it; and

(4)misfeasance in public office, which he described as the failure to exercise, or the exercise

           of, statutory powers either with the intention to injure the plaintiff or in the knowledge that

            the conduct is unlawful.

The last 50 years has seen a much-increased readiness to exercise judicial control over unlawful conduct of public

30.Salmond & Heuston on the Law of Torts, 20 ed, (1992) at p457; quotedwith approval in Racz v.

          Home Office [1994] 2 AC 45 at 53E, [1994] 3A11 ER,737.

31.      At 53.

32.       Mengel v. NT at 347.

33.      At 329.

34.      Lord Browne-Wilkinson at 730H-73 IA.

35.      Stolvin v. Wise [1996] AC 923 at 933F per Lord Nicholls.

36.     Stolvin v. Wise.

37.     Nourse LJ in Jones v. Swansea City Council [1990] 1 WLR 54 at 85B.

38.     See Stovin v. Wise at 949D per Lord Hoffman and at 933F per Lord Nicholls.

authorities and officials. The versatility of public law remedies has tended to eclipse the private remedies of the aggrieved individual. Public law remedies do not, however, normally include an award of damages for loss or damage occasioned to the aggrieved individual. ln fact, they can only do so if there is a private law cause of action. Thus, the individual has had to look elsewhere. Negligence and breach of statutory duty have often been alighted on, with a limited degree of success. The liability of public authorities for negligence in carrying out statutory responsibilities is recognized to be a “knotty problem”.35 Where what is complained of is a failure to act, the absence of a statutory duty to do that act will normally exclude a common law duty of care for the non-exercise of the power

there must be a “public law duty to act”. Where what is complained of is a positive act, the liability of the public authority is in principle the same as that of a private person but may be restricted by its statutory duties and power.36

Misfeasance in public office, with its emphasis on intent and knowledge, does not have the problems of balancing competing policies. The underlying policy is clear. It is founded upon:

“assumptions of honour and disinterest ... deeply rooted in the polity of a free society.... It ought to be unthinkable that the holder of an office of government in this country would exercise a power thus vested in him with the object of injuring a member of that public by whose trust alone the office is enjoyed”.37

Properly understood, the tort ought to be of limited application. It does not buck the trend of authorities that discourage the assumption that anyone who suffers a loss is prima facie entitled to compensation from some person (preferably a public authority) whose act or omission can be said to have caused it. Rather, it provides a useful, confined remedy that provides some “response to the growing unease over the inability of public law, in some instances, to afford a remedy matching the wrong”.38

Barrister, 2-3 Gray’s Inn Square, London