By Nicholas Dobson, Pinsent Masons, Leeds


Misfeasance in public office

So what's wrong with using the Police National Computer (PNC) if you are a serving police officer? Bit rough isn't it, jailing a humble bobby in pursuit of his duties?



For the police officer in Attorney General's Reference (No 1 of 2007) R v Hardy (Court of Appeal, 7 March 2007) was not in pursuit of his duties but was definitely plodding off-piste.



James Andrew Hardy, the officer in question, was friends with a man called Martin Jolley (J), who had previous convictions for (among other things) offences of dishonesty, violence and harassment. The officer had twice received training as to the appropriate use of the PNC and informed that it contained confidential and sensitive information. However, at the request of J, the officer used the PNC and downloaded information relating to three people who had, so J believed, committed offences against himself or his partner, in order to allow J to take his own action.



On arrest, the officer had pleaded guilty to misfeasance in public office. This offence has (in bare outline summary) the following elements - a public officer acting as such who wilfully neglects to perform his duty and/or wilfully 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.



At first instance the judge had referred to the officer's good character and the difficulties he would face in prison - consequently imposing a sentence of 28 weeks' imprisonment, suspended for two years, together with a period of community punishment. However, the Attorney-General successfully sought leave to refer the sentence to the Court of Appeal under section 36 of the Criminal Justice Act 1988 as being unduly lenient.



The Court of Appeal indicated that police officers were in a position of trust and were expected to serve the public. They were given considerable powers and privileges which were necessary for the proper performance of their duties. However, if they dishonestly abused their position and did so for profit, then not only should a prison sentence follow but this necessarily had to be severe.



A sentencing judge was entitled to pass a deterrent sentence to mark the offender's betrayal of the standards to be expected of an officer entrusted, as he was in the course of his work, with vitally important information in the detection and prevention of crime. Accessing information on a police computer involved deliberation and it had to be made clear to police officers that, if they committed such offences, they faced dire consequences. The preservation of the integrity of information regarding members of the public held on databases like those maintained by the police was of fundamental importance to the well-being of society. Any abuse of that integrity by officials, including the police, was a gross breach of trust, which unless the wrongdoing was minimal would necessarily be met by a severe punishment, even in the face of substantial personal mitigation.



Cases such as this underline the danger facing individuals in a position of public power or privilege. For the power or privilege is to be exercised on behalf of the public and not for their own benefit. It is when the intoxicant of public power erodes the individual's capacity to perceive the distinction between self and office that the problem occurs. And the consequent fall from grace can be swift and stark. From privilege to prison in one easy move.