Misfeasance in public office – what does this mean?

Misfeasance is a form of misconduct, and it occurs when a public official, public servant or public body knowingly and willingly acts to cause loss or harm to a third party. For example, this could be through causing a person financial loss, damage to their reputation or personal injury, whilst a ‘public official’ could be any of the following:

• Member of the police force
• Member of the armed forces
• Government minister
• Local government official
• Civil servant
• Prison officer
• Security agency

It’s important to understand that unlike negligence, misfeasance is not causing harm to another as a result of carelessness or lack of judgment. It requires a greater degree of culpability, such as acting to the detriment of another, and abusing power or position of responsibility. The police, government and other state agencies should only ever use their powers for the public good, and though the sentence for misfeasance in public office will depend on the harm caused and the level of responsibility exercised, the maximum penalty is life imprisonment. Misfeasance in public office is an offence at common law, dating back to the 13th century, whilst it is often grounds for a just cause removal of an elected official by statute or recall election.

What behaviour results in misfeasance?

There have been many crimes that have fallen within this offence, including willful excesses of official authority, 'malicious' exercises of official authority and willful neglect of a public duty. The offence can also be caused by intentional infliction of bodily harm, imprisonment, or other injury upon a person, as well as frauds and deceits. To provide a clearer idea, here are a few examples:

• A police officer has been willingly dismissive towards another person.
• A government official has being violent or aggressive towards a third party.
• A prison officer has made unwanted sexual advances towards another.

The two types of liability

There are two forms of liability for misfeasance or misconduct in public office. The first involves targeted malice by a public officer, so for example this could be conduct specifically intended to injure a person. If a public officer had this intention, it is irrelevant whether they exceeded their power. The second type of liability is when a public officer acts knowing they have no power to do so – and that the act will probably injure a person or persons. Here the element of bad faith arises, so it’s not necessary to show that the public officer acted with the purpose or object of inflicting harm on the claimant.

Claims of misfeasance in public office can be complicated and difficult to prove as there is a very high standard of evidence required, however, absolutely no individual is untouchable. So if you, or someone you know, have been a victim of misfeasance in public office, do not refrain from reporting it and taking legal action.

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