A particularly interest aspect of the law relating to the Damian Green case came out in my discussion with Charon QC earlier. You’ll remember that he was arrested on suspicion of conspiracy to commit misconduct in public office, and as a secondary party to misconduct in a public office. The elements of the offence of misconduct are:

a) someone must be a public officer, e.g. a civil servant;

b) he or she must wilfully misconducts him- or herself;

c) the misconduct should be serious enough to amount to an abuse of the public’s trust in the office holder;

d) he or she must act without reasonable excuse or justification.

It’s this last element that interests me, because it seems to me that whether you look at it through the lens of conspiracy or secondary liability, the only relevant justification is the civil servant’s for his actions: if his actions were unjustified in law than I don’t think an MP who did what Damian Green is apparently suspected of could be acquitted on the basis of justifying his own behaviour – I think that would be legally irrelevant.

If I’m right (I’d welcome the views of criminal specialists) then I think it’s a highly questionable and indeed objectionable aspect of the law as it stands and as it’s being used here – it seems clear to me that Green, if ever he were charged, should be able to argue in court that his own conduct was justified – not be limited simply to relying on a derivative argument that the civil servant’s conduct was justified.

2008-11-29T13:29:00+00:00Tags: , , , , , |