What is misconduct in public office and why is it so hard to investigate?

Andrew Mountbatten-Windsor and Peter Mandelson have been arrested on suspicion of this unusual offence

After the arrests of the former prince Andrew and the politician Peter Mandelson, both on suspicion of misconduct in public office, there remain questions about what may happen next for alleged perpetrators of this unusual offence.

What is misconduct in public office?

Essentially an offence of corruption, misconduct in public office is about wilful abuse or neglect of the power or responsibilities of being in a public position, whether that is an elected role, someone appointed by the government, or a teacher, police officer or even a bishop.

It applies to individuals in a position of public trust and is a common law offence, meaning it was not created by an act of parliament, instead being shaped through legal precedent, that is, the decisions made by judges in previous cases.

How serious an offence is it?

In the criminal court system in England and Wales, every case begins in the magistrates court. Less serious crimes are dealt with there, those somewhere in the middle may be handled by either magistrates or crown courts, and the most serious cases, known as indictable-only offences, are “sent up” – passed to crown courts to be tried, or in the event of a guilty plea, sentenced.

Misconduct in a public office is indictable-only and therefore can only be handled by crown courts.

High-profile individuals, such as Andrew Mountbatten-Windsor and Mandelson – both of whom are alleged to have shared confidential government documents with the disgraced financier Jeffrey Epstein – should be treated the same as anyone else by the court system. If charges are brought against King Charles’s brother, the case would be listed as “The King v Andrew Mountbatten-Windsor”. It is understood both Mountbatten-Windsor and Mandelson deny wrongdoing.

Why is it so hard to investigate?

The offence of misconduct in a public office has been criticised for being too vague, causing problems for investigators, due to gaps and overlaps with other offences.

It is now under review, with the Law Commission – the body in charge of reviewing the law – recommending that it should be split into two offences: corruption in public office and breach of duty in public office.

There are fewer than a dozen convictions a year and most of the time this law is used to prosecute police officers or prison staff for alleged wrongdoing, and it can be a difficult offence to prove when it comes to senior figures.

What do prosecutors need to prove?

There are four main elements to the offence, as defined in a 2004 court of appeal case.

First, investigators have to work out whether the suspected person was acting as a public officer. This depends on the type of role they held, sometimes taking into account their seniority and how much they were paid, and the level of trust involved.

Next, it needs to be determined whether the alleged offender wilfully neglected to perform their duty or wilfully misconducted themselves. And then whether it was serious enough to amount to an abuse of the public’s trust in the office holder. One of the factors taken into consideration is whether there was an impact that harmed public trust in a service or institution, while another is whether the alleged offence was carried out in the public interest or for personal gain.

And finally, prosecutors need to show that there was no reasonable excuse or justification for their behaviour.

What happens next?

The next step would be for the Crown Prosecution Service (CPS) to bring charges. While charges can be brought within hours of a person’s arrest, there is no time limit and it can take years to gather enough evidence to charge an alleged offender. While someone is released under investigation, they can be rearrested and questioned at any time.

When charges are issued, the alleged perpetrator will need to attend magistrates court to enter a plea. During this hearing, court staff and legal counsels will try to agree a timeline for the rest of the case, putting dates in the diary for a potential trial or sentencing hearing. After this hearing, the defendant will be either bailed by the court or taken into custody, depending on whether the magistrate thinks they may be a flight risk, at risk of carrying out further offences or there is a chance they could be a danger to themselves or others.

Additional charges may be added at any point in the process if the CPS believes there is enough evidence other crimes have been committed.

If these misconduct in a public office cases go to trial, it will be up to a jury to decide whether the defendants are guilty. Sometimes connected cases are tried together in the same trial, though it is too early to say whether Mountbatten-Windsor and Mandelson would be standing side-by-side in the dock.

Does it carry a prison sentence and is it different for high-profile people?

If found guilty, a final hearing will be held, during which the judge will take into consideration aggravating and mitigating circumstances and hand down a sentence.

Misconduct in a public office carries a potential maximum sentence of life imprisonment. If given a prison sentence, the pair could be sent to any prison in England and Wales. A decision will be made by prison staff what level of security is needed after a risk assessment looking at the level of danger they pose. Safety measures may also be introduced for their own protection or they could be placed in a vulnerable prisoners unit if it is deemed they are at risk from other prisoners.