ENSHRINING the offence of Misconduct in Public Office in statute is imperative as it acts as a safeguard against corruption and dereliction of public duty, and to promote and ensure transparency and accountability by officials who hold public office. Attracting a maximum penalty of life imprisonment, the offence is used broadly to prosecute because it is believed that there is a serious criminal misconduct for which alternative offences are not sufficient.

Recently, several employees of the Guyana Elections Commission (GECOM), including Chief Elections Officer, Keith Lowenfield and Region Four District Returning Officer, Clairmont Mingo, were charged with the offence pertaining to their alleged conduct in the March 2, 2020 Elections.

Prior to this, when the A Partnership For National Unity + Alliance For Change (APNU+AFC) assumed office in 2015, several members of the previous People’s Progressive Party/ Civic (PPP/C) administration were also charged with this offence; however, they have since been vindicated of the said charges.

Misconduct in Public Office is a common law offence dating back to centuries, with the usually cited starting point being the case of R v Bembridge (1783) 3 Doug KB 327. However, despite its age and importance, it has often been characterised as ‘ambiguous’ by members of the legal fraternity.

In December 2020, the Law Commission of England and Wales published its final Misconduct in Public Office Report (Law Com no 397), which outlined several areas of deficiency and suggested necessary reforms to the offence, specifically enshrining it in statute.

Speaking with the Guyana Chronicle, prominent Attorneys-at-law and President of the Guyana Bar Association (GBA), Teni Housty, and Chairman of the GBA Criminal Bar Committee, Glenn Hanoman, related similar sentiments as the Law Commission outlined in its report.

“Because of the difficulty in proof and the increase in the allegations, both locally and in the Caribbean, certainty is required in the framework, so anything to add certainty and clarity to the basis of proof of an offence is required,” Housty noted.

“There is some legislative action that needs to be taken so that people who commit criminal offences from within the system … that conduct has to be criminalised,” Hanoman said.

CLEARLY OUTLINED

The elements to be satisfied for successful prosecution of the offence were clearly outlined by Lord Justice Pill in the case of Attorney General’s Reference (No 3 of 2003) [2004] EWCA Crim 868. Justice Pill noted that it must be shown, that a public officer acting as such, willfully neglects to perform his duty, and/or willfully misconducts himself to such a degree as to amount to an abuse of the public’s trust in the office holder, without reasonable excuse or justification.

One of the challenges pertaining to the offence is that the parameters of ‘public office’ are difficult to ascertain. Despite the test established by Lord Justice Leveson in R v Cosford [2013] EWCA Crim 466, the Law Commission reported that ‘public office’ and ‘acting as such’ are not sufficiently defined.

“That’s a technicality that has arisen very often about the definition of a public officer and it has been used in innovative ways to avoid conviction, but misconduct in public office ought not to depend on a legalistic definition of a public officer,” Hanoman said.

He added that “once you perform a public function whether you are in the public service or a contracted employee performing a public function it should apply across the board.”

In addressing that issue, the report recommends a two-stage process to determine whether a person holds ‘public office’. Firstly, there should be a fixed list of such persons and secondly, a functional test which sets out the specific circumstance in which the offence applies.

Hanoman made similar recommendations; he noted that if a list is provided for, it should not be exhaustive as the world is evolving and the legislation should be drafted in such a manner to encapsulate future ‘public officers’ which might not be contemplated at the time of drafting.

“If ever that offence is created they should make sure that it is not only for people who are in the public service per say but people who are performing public function,” Hanoman said.

GREATER PREDICTABILITY

Housty also noted that solidifying of the offence in statute would present greater predictability in relation to what constitutes the offence, a benefit for persons who hold ‘public office’ and a deterrent to prevent them from indulging in ‘misconduct’.

“The less we rely on resorting to common law for certain offences, especially in a modern day, the better it is for the protection of the person’s human rights because you have an idea of the case you have to meet and certainty and predictability in the framework is essential, undeniably so, both in the criminal and civil liability,” he noted.

“Protection of the law has several elements in it and it’s one of the most imperative rights that an individual is permitted to, if you’re going to be charged for an act in an office why not create that certainty or predictability one way or another in relation to the conduct,” he added.

He further explained that enshrining the offence in statute would provide much needed guidance to public officials, pertaining to their conduct in public office.

“Punishment is not the only objective of the law, part of the law is to guide conduct so that notion of certainty and predictability is something that I find is always important from several perspectives including a human right perspective,” Housty said.

Hanoman explained that with Guyana’s newly discovered oil resources and the massive development anticipated for the country, the legislation is imperative to prevent public officials abusing public office, similar to what has transpired in many nations on the African continent.

He also made reference to other sections to the criminal legislative framework that is in need of updating to prevent corruption by public officials, namely, rigorous elections campaign financing laws.

“You would find that because this is geared towards charging people in Government really that Governments are slow to enact these provisions,” Hanoman said.

Housty took the opportunity to commend the Criminal Bar Committee of the Guyana Bar Association, made up of specialist lawyers trained in the field of the criminal law, on their initiatives and to note that he endorses the view of the Chairman, Hanoman.

“As a Bar Association we recognise the capacity and skills of all of our colleagues and all of them have an opportunity to participate in the direction and position that the Bar takes on issues,” he said; adding: “I complement the Criminal Bar Committee for their assistance on a number of issues they have addressed in recent times, particularly amendments to the laws pertaining to bail.”