Misconduct in Public Office: What It Means for Prison Officers

In shortIt is a serious common law offence aimed at public office holders who wilfully abuse the public's trust, with a maximum of life imprisonment.

Misconduct in public office is not found in a single statute. It developed through centuries of case law and is a serious offence aimed at people who hold public office and abuse that trust. The CPS legal guidance, dated 7 July 2023, sets out four elements the prosecution must prove.

"Wilful"

The CPS cites Attorney General's Reference No 3 of 2003: deliberately doing something wrong knowing it to be wrong, or with reckless indifference as to whether it is wrong. That distinguishes the offence from honest mistakes, carelessness or poor performance, which are matters for HR and management rather than criminal courts. A single error of judgement, without a wilful element, should not meet the test.

Maximum penalty

Life imprisonment, which reflects the seriousness of the abuse of trust and the wide range of conduct the offence covers. Sentences depend on the facts: the harm caused, whether there was gain, the length of the conduct and the person's culpability. A sentencing court, not this guide, decides that.

1. The defendant was a public officer acting as such.
2. They wilfully neglected or breached a duty or committed misconduct.
3. The conduct amounted to an abuse of the public's trust in the office holder.
4. There was no reasonable excuse or justification.

In shortCPS guidance recognises prison staff, including private operator staff, as public officers; the test is the public function, not the employer or grade.

The CPS guidance recognises prison staff, including nurses and those employed by private operators, as public officers capable of committing the offence. That is why a Band 3 officer in a public prison, a custodial employee of a private operator and an operational support grade can all be within the scope in the right circumstances.

The "acting as such" element matters. The CPS says prosecutors must assess whether the suspect acted in their public office and whether the office directly enabled the conduct.

If the same behaviour happened entirely outside their role, for example a purely private relationship with no link to their duties, the offence may not apply even though HMPPS conduct rules might. Where the role gave the person access, power or information they used, the link is easier to show.

• Relationships with prisoners: see relationships with prisoners.
• Conveyance of prohibited items: see contraband and mobile phones.
• Misuse of confidential information: see corruption and bribery.

In shortProsecutors are told to prefer statutory offences unless there are good reasons, and must explain why they choose this one.

CPS guidance tells prosecutors to prefer statutory offences over this common law offence unless there are good reasons not to. When they do choose it, they must explain why under section 6 of the Code for Crown Prosecutors, including whether a statutory alternative adequately reflects the seriousness of the conduct and provides appropriate sentencing powers.

For prison staff, statutory alternatives can include offences under the Prison Act 1952 for conveyance and the Bribery Act 2010 for corruption.

If the evidential requirements are satisfied, a prosecution is highly likely to be in the public interest given the seriousness of the offence.

That does not mean every investigation ends in a charge: the evidential test must be met first, and cases can fail on proof of wilfulness, of the abuse of trust or of the link to the office.

In shortThe Bill would abolish the common law offence, but it is not law, and until it is commenced the common law offence remains the live one.

The Law Commission's aim was to target serious misconduct while allowing less serious cases to be dealt with through disciplinary channels.

The Bill's long title says it abolishes the common law offence and creates further offences in relation to the misconduct of persons who hold public office. It is not law, and the final text may change.

Until the Bill becomes an Act and the relevant provisions are brought into force, which usually needs a commencement decision and transitional rules for existing conduct, the common law offence continues.

We have not verified how the Bill treats conduct that took place before commencement, or exactly how it defines prison staff as public office holders. Anyone facing an allegation should ask their solicitor which version of the law applies to the dates in question.

In shortA case runs from intelligence or complaint, to counter corruption triage within 72 hours, to police, to a CPS charging decision, but no charge does not mean no discipline.

Staff must support police and CPS with statements and evidence (para 4.93). If you are a suspect, the rights in PACE Code C apply, including the right to free independent legal advice; see the interview under caution guide.

HMPPS may suspend or move you during the process. You may be asked to give information about your finances, communications or devices, and a solicitor can advise on what is lawful and sensible.

1. A typical prison case begins with intelligence or a complaint, which is triaged by counter corruption within 72 hours under the HMPPS framework.
2. Serious cases can be referred to police under the Crime in Prison Referral Agreement; in corruption cases the police Senior Investigating Officer decides priority, in consultation with HMPPS (paras 4.42 and 4.94).
3. Police investigate, interview the suspect under caution and, if there is enough evidence, send a file to the CPS for a charging decision.
4. If a charge is brought, the case goes to the Crown Court for trial or sentence.

In shortHMPPS discipline uses the balance of probabilities, so an acquittal or decision not to prosecute does not always end an HR process.

The HMPPS policy is being rewritten, so check the current wording with HR. Our guides to the disciplinary process and appealing a disciplinary outcome cover the stages.

Official workforce tables show 248 conduct dismissals in prison service establishments in the 12 months to 30 June 2026, of whom 204 were Band 3 to 5 officers. These include all conduct dismissals, not only criminal or corruption matters, and the latest period is provisional.

They are context, not a measure of how many officers commit misconduct in public office.

In shortSpeak to the POA and a solicitor as soon as you know, do not touch evidence, and note that POA assistance is not retrospective.

The misconduct response pack provides a structured way to organise your own paperwork and questions. It is not legal advice, and no guide can tell you whether a particular allegation would meet the elements of the offence. A criminal solicitor who sees the evidence is the only person who can.

In shortMost conduct cases never reach a criminal court, so ask not only 'could this be a crime?' but 'how will HR view it?'.

• Conduct dismissals248Prison service establishments, 12 months to 30 June 2026

The figures do not say how many involved any criminal offence. Many concern behaviour that is serious for HR purposes but would never meet the elements of misconduct in public office, such as discrimination, harassment or serious non-compliance.

That is the purpose of the Law Commission's recommendation that less serious misconduct be left to disciplinary channels. Our guides to misconduct explained and HMPPS conduct and discipline policy explained set out the standards, and the free misconduct process navigator helps you see where a given situation sits.