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Buachaill, Barrister
Category: Law
Satisfied Customers: 10976
Experience:  Barrister 17 years experience
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I understand there is a convention in English law of "state

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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?
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.
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Thank you!
Customer: replied 3 years ago.


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!

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Thank you for your patience,
Customer: replied 3 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.

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 3 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?

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: 10976
Experience: Barrister 17 years experience
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