Misfeasance in the custody of prisoners: a porous issue of criminal obedience

Abstract

The offence of misfeasance in the custody of prisoners possesses a very strict doctrine on behalf of the Supreme Court and this is reflected in its case-law between 1870-1978. This offence is based on a strong legal formalism, reminiscent of the most basic theory of criminal obedience. The judge’s own intermediate considerations are often conspicuous by their absence. There is virtually no cultural notion of crime. There is a departure from the marked interventionism and discretionality of judges that characterised the exercise of the judicial function before the codification period.