This article is informed by recent discussions with English lawyers and focuses on potential misconduct in public office in Guernsey – a jurisdiction of sixty-three thousand – and reflects my non-legal perspective. It is aimed to encourage debate and does not constitute any form of legal advice. I hope it stimulates thought.
Misconduct in public office is a serious offence undermining public trust and integrity. It encompasses both actions and inactions by public officials that significantly breach the duties owed to the public. These are not just improper acts but criminally so, substantially falling below the expected standards of conduct. Such acts may include corruption, misuse of power, or wilful neglect of duties, thereby damaging the fabric of public service and governance. The offence’s gravity lies not only in the act itself but also in its wider implications: eroding public confidence, tarnishing public institutions’ reputations, and challenging the principles of justice and accountability foundational to our society.
In Guernsey, to my knowledge, addressing misconduct in public office is uncharted territory. It would seem that the merest scintilla of doubt could likely lead to a case being dismissed, possibly reflecting a hesitancy to undertake legal challenges that could pose significant reputational risks to the island.
A director at a major bank mentioned to me that even initiating a misconduct in public office case against a senior official in Guernsey (irrespective of its outcome) could adversely affect the island’s Standard and Poor’s credit rating. It’s currently AA-/A-1+1. Downgrading Guernsey’s credit rating could provoke concern among local financial institutions, reflecting fears over increased lending risks and potential impacts on the island’s investment climate.
Therefore, reluctance to publicly address such issues, for fear of embarrassing or tarnishing the island’s reputation, might complicate matters further. This concern for the community’s image, coupled with a potential deep-seated decay from not addressing issues, underscores the complexities involved. A hypothetical scenario, such as a senior official committing perjury, or a finagle to obtain property by deception, suggests that prosecutorial discretion and limited resources might manifest as a reluctance to pursue such an offence. Evidence would have to be compelling.
Conversely, persuasion to act might occur if the reputational damage from not prosecuting is deemed greater. However, this implies that bringing such matters to light would necessitate public disclosure, potentially incurring a substantial cost to the discloser.
Recently, Guernsey’s politicians have introduced a pan-island Commissioner for Standards2 to uphold and enforce the regulations governing their conduct. And so in the context of our public servants, the role of a public service ombudsperson could be instrumental, too. An ombudsperson could review complaints against public officials, providing an impartial investigation into alleged misconduct. In cases where misconduct is identified, they could recommend actions, including encouraging prosecution in more severe cases. This function could serve as a vital intermediary, offering a pathway to address misconduct while mitigating direct confrontations and managing reputational concerns. The ombudsperson’s recommendations could carry significant weight, potentially influencing decisions to prosecute and ensuring that severe cases of misconduct do not go unaddressed.
The situation in Guernsey is further complicated by the police’s potential disinterest in dealing with such offences, possibly due to their close ties with the civil service or because the police themselves could be implicated (e.g., in cases of perjury or false witness statements). Again, an independent public service ombudsperson, with their autonomy from local institutions, could address this gap. They would have the capacity to impartially investigate misconduct allegations, including those against the police, and possess the authority to escalate matters to the Law Officers and directly report compliance issues to the States of Deliberation.
Two examples from very different jurisdictions:
In Sweden, I understand that the Parliamentary Ombudsmen (JO) have the authority to supervise the compliance of public authorities and officials with laws and ordinances, ensuring fair treatment of citizens. They can initiate disciplinary procedures against officials for misdemeanours, issue critical statements, propose improvements, and, in extreme cases, act as special prosecutors to bring charges against officials for irregularities. This role is part of Sweden’s parliamentary control functions, emphasising the importance of governmental and public authority accountability3.
In the Czech Republic, the institution safeguarding individuals against the improper conduct of public authorities and ensuring the protection of their rights is embodied by the Public Defender of Rights, commonly referred to as the Ombudsman. This pivotal role, designed to bridge the gap between the state and its citizens, entails the investigation of complaints against public administration actions or inaction, advocating for non-discrimination, and promoting the principles of fairness and equality. Appointed by the President with the Senate’s approval, the Ombudsman operates independently, with the authority to recommend remedies and, in cases involving significant legal challenges, to approach the Constitutional Court directly. This mechanism underscores the Czech Republic’s commitment to upholding democratic values, ensuring public accountability, and fostering a culture of respect for human rights and legal standards4.
The offence itself:
In the UK, sentencing guidelines for misconduct in public office aim to reflect the offence’s seriousness and the breach of trust. Sentences vary widely, from fines to imprisonment, based on the misconduct’s severity, the trust level breached, and the consequences of the actions. Judges weigh aggravating and mitigating factors, with sentences in serious cases potentially exceeding 10 years.
I understand that the distinction between misfeasance and misconduct in public office in UK law hinges on the nature and intent behind the wrongful act; misconduct requires wilful neglect or misconduct amounting to public trust abuse, while misfeasance involves a lawful act done unlawfully, causing harm or loss, with a degree of intentionality or recklessness.
For further information:
- Wikipedia on Misfeasance in Public Office
- CPS on Misconduct in Public Office
- Guernsey’s Law Officers must initiate criminal proceedings, no private prosecutions
Summary:
While prosecuting misconduct in public office in Guernsey would be fraught with legal, practical, and social hurdles, it should not be impossible. The introduction of an ombudsperson could provide a viable mechanism for addressing such issues, potentially leading to the encouragement of prosecution in severe cases.
- https://gov.gg/spglobalratings [↩]
- https://pi-cfs.org/ [↩]
- Sweden – Parliamentary Ombudsmen directly accountable to the Swedish Riksdag: https://www.jo.se/en/about-jo/tasks-and-role/ [↩]
- Czech Public Defender of Rights – Veřejný ochránce práv: https://www.ochrance.cz/en/ [↩]