Infected Blood Inquiry: Why a ‘Misconduct in Public Office Act’ Could Hold Those Behind State Tragedies, Scandals and Frauds Properly to Account

The words of Sir Brian Langstaff, chair of the Infected Blood Inquiry, could not have been clearer: “clinicians did not put patient safety first”, he said, “whilst successive Governments and the NHS, compounded the agony by refusing to accept that wrong had been done”.

The infected blood scandal resulted in more than 30,000 people being infected with HIV and Hepatitis C from 1970 to 1991, through contaminated blood products and transfusions. Approximately 3,000 of them have since died.

In his damning 2,500-page report, Langstaff set out the systematic failures of the state and acknowledged that there had been a cover-up.

Rishi Sunak rightly condemned the shame that this scandal has brought to public life – a sentiment echoed by Labour Leader Keir Starmer, who spoke of “an unprecedent injustice that has spanned the terms of numerous governments”.

The clarity of Langstaff’s report, however, is in stark contrast to the utter confusion and ambiguity in UK law when it comes to dealing with matters that may amount to criminal misconduct in a public office. 

The UK has no statutory framework for dealing with those who have acted in a nefarious, fraudulent, or grossly negligent manner while nominally carrying out activities on behalf of the state for the public.

This absence in recent years has resulted in confusion for those who have been adversely affected by the activities of those holding public office.

The Hillsborough Disaster, the Post Office Scandal and the Grenfell Tower Fire are all disasters that arose, partly or wholly, as a result of failures by the state or those acting on behalf of it. Similarly, the COVID PPE Scandal, Partygate, and elements of the links between government and media that were unearthed during the Leveson Inquiry are all other examples of the state acting with an appalling disregard for those it serves.

First, there is the outrage – often as a result of a newspaper scoop unearthing the misdeed. Then the sullen response of the government minister, who invariably announces a public inquiry. Often years later, we are presented with the results of the inquiry and further statements of shame expressed by suitably contrite politicians. This is followed by, invariably, very little other than more confusion and more distress to those concerned as our law lacks the necessary clarity to deal with the misdeed in a just and proper manner.

Hillsborough saw the death of 97 innocent football fans as a result of institutional failures of the police and football administration, yet few would even begin to argue that those victims have enjoyed any justice. A with all the other state-instigated scandals of recent years, despite the obvious elements of harm and culpability being present, time and again, those responsible seem to walk away without a blemish to their name. 

Sadly, despite the findings of the Infected Blood Inquiry, it is quite possible that, once the indignation and expressions of remorse have quietly been forgotten, the victims of this deadly scandal will be left similarly exasperated as to why the perpetrators of such a gross crime and cover-up remain unpunished. 

The implications of our failure to adequately deal with state-level misconduct are clear and profound. If there is little to deter the state from acting in a way that is, at the very least, contrary to the public good, then standards in public life will diminish, while confidence in those acting for the state will evaporate. 

At present, the criminal offence of misconduct in a public office is a common law offence, whereby it must be proved that the individual was acting as a public officer and, without reasonable excuse or justification, wilfully neglected to perform their duty or misconducted themselves to such a degree as to amount to an abuse of the public’s trust in the office holder.

There are clear problems with this definition.

First, it is not clear who a ‘public officer’ is. For example, if someone enters into an agreement with a government to provide personal protective equipment that turns out to the faulty, are they, by virtue of their contractual agreement with the state, a public officer?

Second, what amounts to ‘reasonable excuse or justification’? In what circumstances can a minister or civil servant be justified in withholding their WhatsApp messages or destroying documents?

What amounts to wilful neglect or determines whether an act has undermined or abused public trust in the office holder?

A statutory framework may not cure all of these evidential and legal problems with the stroke of a pen, but, if such a framework was in place it would be an important step towards setting out the parameters of probity that must be achieved by anyone who purports to act for the state.

A Misconduct in a Public Office Act could, at the very least, ensure that any government minister or official who wilfully or recklessly misleads the public is guilty of a criminal offence. It could ensure that any organisation that enters into an agreement with a government, and then attempts to cover-up the shortcomings of their goods or service, is guilty of criminal offence. It could ensure that failures in the procurement process that sees government ministers or civil servants awarding contracts to friends and benefactors rather than the most worthy bidder, are dealt with as offences of dishonesty rather than dismissed as part-and-parcel of the trappings of office. 

A Misconduct in a Public Office Act could also establish a better, fairer, way in which government deals with the press to prevent collusion in obviously false stories, while also protecting our democratic institutions and elections by making it clear that facilitating or allowing foreign powers to meddle in our democratic processes would amount to a criminal act. 

Sadly, the days when those in government or public administration could be relied upon to act competently and in accordance with the public good appear to be behind us. We can’t simply sit back and wait for the next Grenfell Fire or another Post Office Scandal.

It is clear that the public needs protection from the excesses of the state. The only way to ensure this is by putting into place a wide ranging statutory framework which means that those who are given the task of acting in the administration and delivery of public policy are held to the highest standards – knowing that a failure to do so may lead to a criminal sanction.

This, of course, won’t help the victims of Hillsborough or those needlessly infected with contaminated blood. But it may ensure that such disasters don’t happen again. 

Gareth Roberts is a barrister specialising in criminal law