The arrests of Peter Mandelson and Andrew Mountbatten-Windsor have shone a spotlight on the centuries-old common-law offence of misconduct in public office. Neither man has yet been charged, and both deny wrongdoing, but should police investigations proceed to prosecution, this vague and complex offence could be challenging for lawyers to prove.
“Securing a conviction for misconduct in public office is a notoriously difficult task,” said The Telegraph. There are fewer than 50 convictions a year and none of those have involved “high-profile individuals”.
What is it?
The offence of misconduct in public office has been dated back to 1599. It’s a common-law offence, which means it was established by judicial precedent, rather than a specific Act of Parliament. It had fallen into disuse but was revived in recent times to catch corrupt police officers whose misconduct didn’t fall easily into other well-established offences. It carries a maximum sentence of life imprisonment.
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The offence has four main elements, all of which must be proved:
· The individual is a public officer acting as such.
· The individual wilfully neglects to perform his or her duty and/or wilfully misconducts himself or herself.
· The conduct is to such a degree that it amounts to an abuse of the public’s trust in the office holder.
· The conduct is without reasonable excuse or justification.
The widely acknowledged problem with these elements is their vagueness. What constitutes a public duty is not defined and “the meaning of public trust is fairly elastic”, said The New Statesman. “Few would say it’s a satisfactory area of law.”
The Law Commission “has proposed that the offence be abolished”, and the government has included “some replacement offences” in the Public Office (Accountability) Bill, also known as the Hillsborough Law. But that bill is currently “stalled” in Parliament and “is not yet law (and may never be)”.
Who has been convicted for it?
The offence is clearly intended for charging those in trusted public office who have betrayed that trust. It was described by legal scholar Sir William Blackstone, way back in 1765, as “a crime of deep malignity”. In its modern incarnation, it has mainly been used to punish misconduct by junior and mid-ranking public officials, with police and prison officers accounting for 92% of convictions between 2014 and 2024, according to the Institute For Government.
In 2009, former MP Damian Green was arrested on suspicion of misconduct in public office but he was not charged. In 2016, former MEP Nikki Sinclaire was charged and tried but acquitted. Last year, independent MP Dan Norris was arrested on suspicion of misconduct in public office, as well as sexual assault and rape, and investigations are still ongoing.
In 2019, former prime minister Boris Johnson was summoned to face a private prosecution for misconduct in a public office – over allegations that he has misled the British public about the cost of European Union membership in the run-up to Brexit. The High Court dismissed the case and the summons was overturned.
What could happen now?
As the law around the offence that both Mandelson and Mountbatten-Windsor are being investigated for is “famously vague”, it “complicates the task”, said Robert Hazell, a professor of politics and government at University College London, on The Conversation. If any charges are brought, lawyers “will have to devote more time and effort to understanding the elements of the offence, and then ensuring that they can prove each element.”
There are allegations that both men shared confidential government information with Jeffrey Epstein. Under this law, “if sensitive government material was shared without proper authority, the question would be whether that amounted to a deliberate breach of official duty”, said Simarjot Singh Judge, a managing partner at Judge Law. “Prosecutors would need to establish intent, seriousness, and whether the conduct crossed the threshold into criminal wrongdoing.”
Given the seriousness of this offence, convictions “typically result in an immediate custodial sentence”, said law firm K&L Gates in a briefing paper. Although the maximum sentence is life imprisonment, “sentences imposed to date have generally been lower”.
