Do you have to prove damage to win a civil action for misconduct in public office? That was what the House of Lords had to grapple with on 29 March 2006 in Watkins v Secretary of State for the Home Department and Others [2006] UKHL 17.

It's now clear that the tort of misconduct in public office has the following ingredients:

  1. The defendant must be a public officer

  2. There has been an exercise of power as a public officer

  3. The state of mind of the defendant i.e. there must be either conduct specifically intended to injure a person or person or a public officer has acted knowing that he has no power to do the act complained of and that the act will probably cause injury (see Lord Steyn in Three Rivers District Council and Others v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1).

In Watkins, the Respondent alleged that staff at both Wakefield and Frankland jails had breached the Prison Rules by opening and reading his mail when they were not entitled to do so. The County Court judge had found that three prison offers had acted in bad faith. However, the judge dismissed the claim since misfeasance in public office was not a tort 'actionable per se'. Ultimately (after the Court of Appeal had ruled in favour of the Respondent) the House of Lords agreed with the County Court and allowed the appeal of the Secretary of State.

Lord Bingham thought there was great force in the Respondent's submission that 'if a public officer knowingly and deliberately acts in breach of his lawful duty he should be amenable to civil action at the suit of anyone who suffers at his hands.' Also, there is 'an obvious public interest in bringing public servants guilty of outrageous conduct to book.' For those '. . .who act in such a way should not be free to do so with impunity.'

On the other hand, Lord Bingham noted that the primary role of the law of tort is to provide monetary compensation for those who have suffered material damage rather than to vindicate the rights of those who have not. He considered that there are 'other and more appropriate ways' of bringing to book officers who behave with outrageous disregard for their legal duties, but without causing material damage. Nevertheless, the Respondent argued that the importance of the right of access to a court, closely linked with the right to obtain confidential legal advice required or justified the modification of a rule that material damage must be proved to establish a cause of action.

Lord Bingham, however, did not think that the House of Lords should take that step for a number of reasons. These included:

  1. It would open the door to argument whether other rights less obviously fundamental, basic or constitutional than (amongst others) the right to preserve the confidentiality of legal correspondence were sufficiently close to or analogous with those rights to be treated in the same way for the purposes of damage.

  2. The undesirability of introducing by judicial decision and without consultation, a solution which the consultation and research conducted by the Law Commission may show to be an unsatisfactory solution to what Lord Bingham felt to be a small part of a wider problem.

  3. The lack of a remedy in tort for someone (like the Respondent) who has suffered a legal wrong but no material damage, does not leave him without legal remedy. Both prison officers and prison governors who breach the rules are amenable to judicial review as well as disciplinary sanctions. And failure to initiate such proceedings could also, on appropriate evidence, be challenged by judicial review. In addition, such officers might well be indictable for the common law offence of misconduct in public office.

  4. Breach of a fundamental human or constitutional right would also very probably found a claim under section 7 of the Human Rights Act 1998, as it would in this case where the violation occurred after the Act came into force. Section 7 enables victims of a public authority breach of section 6 of the 1998 Act (unlawful for public authority to act incompatibly with a Convention Right) to bring 1998 Act proceedings against the authority in the appropriate court or tribunal or rely on the Convention right(s) in any legal proceedings.

  5. Since what the Respondent was seeking was not a compensatory award of damages but instead to punish the Defendant, this was the function of exemplary damages. The policy of the law is not in general to encourage the award of exemplary damages.

Lord Rodger pointed out (amongst other things) that since exemplary damages form no part of the existing jurisprudence of the European Court of Human Rights, it would be wrong in principle for the House of Lords to develop the common law so as to create a situation where exemplary damages could be awarded when they would not be available in equivalent proceedings for breach of a relevant Convention right.

Lord Walker also 'with some reluctance' allowed the Secretary of State's appeal, although he had found it 'difficult and troubling'. As he pointed out:

'Each of these incidents was an immediate and intentional breach of the respondent's right to unimpeded access to the court, either directly or through his solicitors. In its impact on the respondent each incident was likely to be much the same as an actual assault which occasioned no lasting harm, such as a slap in the face. Whether or not the respondent suffered distress or depression as a result (and the judge commented that he appeared ‘to thrive on these conflicts’) it was an affront, and a deliberate affront, at which he was entitled to feel real indignation.'

However:

'. . .whereas even the most trifling and transient physical assault would undoubtedly have given the respondent a cause of action in private law for trespass to the person, sounding in damages (and if appropriate aggravated or exemplary damages), if the appellant Home Office is right the affronts which the respondent suffered give him no private law remedy. He would be left with the possibility of obtaining vindication of his rights by proceedings for judicial review (with no prospect of damages), by enforcement of the disciplinary code to which prison officers are subject, or by a criminal prosecution for misfeasance in public office. He cannot obtain relief by proceedings for the tort of misfeasance in public office, it is said, because he has suffered no damage which the law will recognise.'

Nevertheless, Lord Walker acknowledged the 'formidable objections' identified by his colleagues to the proposition that the tort of misfeasance in public office should be actionable without proof of special damage and summarised the main objections:

  1. The great weight of existing authority treats damage as an element of the tort.

  2. A rule that the targeted malice limb is actionable without proof of special damage would be unprincipled and difficult to apply.

  3. Seeking to keep the tort within sensible boundaries by limiting it to breach of constitutional rights would be 'controversial' in the absence of a written constitution.

  4. Since the Human Rights Act 1998 is now in force, there are claims available there under sections 6, 7 and 8 by reference to both Articles 6 and 8.

So, all in all, a cautious decision of the House which keeps traditional common law concepts firmly within their highfenced compound, particularly now that the Human Rights Act provides remedies for breach of Convention rights by public authorities. But as Mr. Speechley, the former leader of Lincolnshire County Council found (when his eighteen month prison sentence following conviction for the crime of misconduct in public office was upheld by the Court of Appeal in December 2004) public officers who abuse their office may not escape scot-free.

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