Public intercourse: illegal or just immoral?
Generally it is not a criminal offence to have sexual intercourse during your working hours. However those who hold a public office must consider very carefully the implications of a high libido whilst receiving payment from the public purse. They must do so because the vague, antiquated and uncertain offence of misconduct in public office may catch them. Such uncertainty permits a broad discretion which can both justify prosecution and equally justify refusal to investigate. There is equality before the law in this country and the rule of law prevails most of the time. In this article I will set out the requirements of the offence, readers will draw their own conclusions as to whether the decision by Deputy Assistant Commissioner John Yates to exercise his discretion in favour of not investigating the case against John Prescott was exercised in breach of these fundamental constitutional principles.
Three weeks ago, Mr Prescott admitted to having had a two-year affair with former diary secretary Tracey Temple. Sexual intercourse, she alleged, took place on government premises whilst Mr Prescott was receiving public money for carrying out his duties as Deputy Prime Minister.
John Yates said it would not be an appropriate use of police resources to follow up complaints about John Prescotts conduct in public office. In a statement, he said: It is considered that the potential consequences in respect of the alleged behaviour, even if proved, would not be so serious as to call for a prosecution.
A distinction has to be drawn between action that could potentially discredit an office holder and those actions that constitute criminality.
Mr Yates said: I have considered the allegations raised very carefully and have sought advice from both the Crown Prosecution Service and our own lawyers.
Misconduct in public office is a serious offence. The threshold around misconduct is a high one and there must be a serious departure from the accepted standards.
On February 10, 2006 former PC Shajan Miah pleaded guilty to four counts of misconduct in public office at Manchester Crown Court. Miah, who resigned from Greater Manchester Police in October 2005, admitted the offences which all took place between July and December 2004. The misconduct in public office counts related to three occasions where he had sexual intercourse with a woman in her home whilst on duty and one count of inappropriate use of data from the Greater Manchester Police computer system. The conviction prompted Naseem Malik, IPCC Commissioner for the North West, to make the following statement:
These were very serious allegations and Greater Manchester Police, managed by the IPCC, carried out a thorough investigation. Shajan Miah abused the power granted to police officers and his behaviour fell well below the standard expected by the public and the police service.
Mr Miah was not the first police officer to be convicted of the offence, on February 16 2006 PC James Ruddock pleaded guilty to misconduct in public office at Liverpool Crown Court. The Merseyside officer admitted that on June 22 2005 he had sexual intercourse with a woman in her home when he should have been on patrol. Mike Franklin, IPCC Commissioner for the North West, said:
The public expects, and are entitled to expect, the very highest standards of conduct from police officers. PC Ruddocks conduct fell well below those standards. He has abused his position and brought shame on the police service.
The elements of the offence of misconduct in public office are:
(1) a public official;
(2) who in the course of or in relation to his public office;
(3) wilfully and intentionally;
(4) culpably misconducts himself.
A public official culpably misconducts himself if he wilfully and intentionally neglects or fails to perform a duty to which he is subject by virtue of his office or employment without reasonable excuse or justification.
The offence is of consi