How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask Buachaill Your Own Question

Buachaill
Buachaill, Barrister
Category: Law
Satisfied Customers: 10394
Experience:  Barrister 17 years experience
53108719
Type Your Law Question Here...
Buachaill is online now

I understand there is a convention in English law of "state

Resolved Question:

I understand there is a convention in English law of "state immunity" that prevents criminal prosecution of the Crown - which presumably means in practice, criminal prosecution of government ministers for actions carried out in the course or pursuance of government policy.
However there is also, as I understand it, a common law indictable-only offence of misconduct in public office (distinct from the tort of misfeasance in public office), which can be used to prosecute public servants who abuse their official position.
How are these two principles reconciled? Are Ministers of the Crown liable to prosecution for misconduct in public office or not? Is this an exception to the rule about Crown Immunity, or does that rule in fact absolve the very cases of misconduct in public office which by their nature are likely to be the most serious of all?
Submitted: 2 years ago.
Category: Law
Expert:  Nicola-mod replied 2 years ago.
Hello,
I've been working hard to find a Professional to assist you with your question, but sometimes finding the right Professional can take a little longer than expected.
I wonder whether you're ok with continuing to wait for an answer. If you are, please let me know and I will continue my search. If not, feel free to let me know and I will cancel this question for you.
Thank you!
Nicola
Customer: replied 2 years ago.

Hi

Yes, I can wait a bit. Many thanks for your efforts. I do appreciate this is a somewhat obscure area of law and the answer is not readily obvious!

Expert:  Nicola-mod replied 2 years ago.
Hello,
We will continue to look for a Professional to assist you.
Thank you for your patience,
Nicola
Customer: replied 2 years ago.

That's OK. Please keep trying. The question appears to require the combined expertise of someone who is both a criminal and a constitutional lawyer - a rare animal! I suspect that if you asked a criminal lawyer and a constitutional lawyer separately you might well get contradictory answers! I am aware this is not an easy one so I am quite prepared to wait.

Expert:  Buachaill replied 2 years ago.
1. At the outset, there is no such thing as "state immunity" internally in a State's laws. The concept of state immunity only exists in International law when a State is being prosecuted or sued in a foreign court for acts of state. Internally within a State, such as England & Wales, the country cannot be criminally prosecuted. (as it is the power within the land) However, the Ministers and officials can be prosecuted if they act outside the law. So there is no concept of state immunity here. Misconduct in office is only one or many potential offences with which a State official can be prosecuted. A State official can be prosecuted for any offence committed within the course of duty if he acts outside his lawful powers and even if he acts within those powers but commits an offence. For example a State official, such as a policeman may be empowered to ensure pubs shut at closing time. but if he strikes someone whilst exercising those powers, he will be prosecuted for assault. Similarly, a civil servant might be empowered to prevent cars without an MOT from driving, but if the civil servant agrees with a garage owner to fails as many as possible of the cars being tested, then the civil servant will be prosecuted for the criminal offence of conspiracy.
2. The notion of "state immunity" only applies to foreign states when they act contrary to UK law. It does not apply to acts of the UK Crown in an English court. So if Saudi Arabia seeks to prevent a prosecution of one of its state officials for not allowing women to drive in Saudi Arabia, then it will plead state immunity in the British courts if someone attempts to sue them there. But the acts of UK officials are never given a defence of state immunity in UK courts. It is only foreign countries who can plead state immunity in UK courts.
Customer: replied 2 years ago.

Thanks for your help. However I remain a little confused. Please see the following extract from a Wikipedia article on Crown Immunity in the UK :

"Historically, the general rule in the United Kingdom has been that the Crown has never been able to be prosecuted or proceeded against in either criminal or civil cases.[19] The only means by which civil proceedings could be brought were:



  • by way of petition of right, which was dependent on the grant of the royal fiat (i.e. permission);

  • by suits against the Attorney-General for a declaration; or

  • by actions against ministers or government departments where an Act of Parliament had specifically provided that immunity be waived.


The position was drastically altered by the Crown Proceedings Act 1947 which made the Crown (when acting as the government) liable as of right in proceedings where it was previously only liable by virtue of a grant of a fiat.[20] With limited exceptions, this had the effect of allowing proceedings for tort and contract to be brought against the Crown.[20] Proceedings to bring writs of mandamus and prohibition were always available against ministers, because their actions derive from the royal prerogative.[citation needed]

Criminal proceedings are still prohibited from being brought against the UK government unless expressly permitted by Crown Proceedings Act"

Are you saying this is all completely wrong, and that Ministers of the Crown, acting as such in their official capacity, can be prosecuted for acts done in that capacity just the same as anyone else?

Expert:  Buachaill replied 2 years ago.
3. There is a difference between the concept of "state immunity" which is an international law concept and the notion of Crown Immunity which is an internal British law concept. You are confusing the two. None of what you have set out above deals with "state immunity".
4. The effect of the Crown Proceedings Act was to remove the previous rule that agents of the Crown and the Crown itself could never be prosecuted in domestic British courts. However, the effect of the Crown Proceedings Act was to allow civil servants and officers of the state to be made liable in courts in the Uk. In point of practice, this means that if they breach the law of the land they will be liable, as in the two examples I gave you above. However, nothing in the Crown Proceedings Act allow the UK/Crown or government to be made liable for the acts involved in making decisions involved in governing the country. So You need to distinguish between acts done in their official capacity which relate to determining policy and of implementing it. Where it is implemented contrary to law then criminal liability can lie.
Buachaill, Barrister
Category: Law
Satisfied Customers: 10394
Experience: Barrister 17 years experience
Buachaill and other Law Specialists are ready to help you

What Customers are Saying:

 
 
 
  • Thank you so much for your help. Your answers were really useful and came back so quickly. Great! Maggie
< Previous | Next >
  • Thank you so much for your help. Your answers were really useful and came back so quickly. Great! Maggie
  • A quick response, a succinct and helpful answer in simple English. I believe I can now confront the counter party with confidence -- worth the 30 bucks! Rick
  • Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help. Mary C.
  • This expert is wonderful. They truly know what they are talking about, and they actually care about you. They really helped put my nerves at ease. Thank you so much!!!! Alex
  • Thank you for all your help. It is nice to know that this service is here for people like myself, who need answers fast and are not sure who to consult. GP
  • I couldn't be more satisfied! This is the site I will always come to when I need a second opinion. Justin
  • Just let me say that this encounter has been entirely professional and most helpful. I liked that I could ask additional questions and get answered in a very short turn around. Esther
 
 
 

Meet The Experts:

 
 
 
  • Jo C.

    Jo C.

    Barrister

    Satisfied Customers:

    30316
    Over 5 years in practice
< Previous | Next >
  • http://ww2.justanswer.com/uploads/EM/emus/2015-7-7_192327_bigstockportraitofconfidentfemale.64x64.jpg Jo C.'s Avatar

    Jo C.

    Barrister

    Satisfied Customers:

    30316
    Over 5 years in practice
  • http://ww2.justanswer.com/uploads/BE/benjones/2015-12-1_0437_ennew.64x64.jpg Ben Jones's Avatar

    Ben Jones

    UK Lawyer

    Satisfied Customers:

    11553
    Qualified Solicitor - Please start your question with 'For Ben Jones'
  • http://ww2.justanswer.com/uploads/BU/Buachaill/2012-5-25_211156_barrister5.64x64.jpg Buachaill's Avatar

    Buachaill

    Barrister

    Satisfied Customers:

    1754
    Barrister 17 years experience
  • http://ww2.justanswer.com/uploads/JO/jojobi/2013-3-19_0265_maxlowryphoto.64x64.jpg Max Lowry's Avatar

    Max Lowry

    Advocate

    Satisfied Customers:

    894
    LLB, 10 years post qualification experience
  • http://ww2.justanswer.com/uploads/UK/UKLawyer/2012-4-12_9849_F2.64x64.jpg UK_Lawyer's Avatar

    UK_Lawyer

    Solicitor

    Satisfied Customers:

    750
    I am a qualified solicitor and an expert in UK law.
  • http://ww2.justanswer.com/uploads/KA/Kasare/kasare.64x64.jpg Kasare's Avatar

    Kasare

    Solicitor

    Satisfied Customers:

    402
    Solicitor, 10 yrs plus experience in civil litigation, employment and family law
  • http://ww2.justanswer.com/uploads/OS/osh/2015-7-7_19268_gettyimagesb.64x64.jpg Joshua's Avatar

    Joshua

    Lawyer

    Satisfied Customers:

    8199
    LL.B (Hons), Higher Prof. Dip. Law & Practice
 
 
 

Related Law Questions