Source: The Conversation (Au and NZ) – By Robert Hazell, Professor of British Politics and Government & Founder of the Constitution Unit, UCL
Following the arrest of Andrew Mountbatten-Windsor for possible misconduct in public office, both the palace and the government will be hoping that his case might be brought to a swift conclusion. There are three main reasons why this is unlikely.
1. The vagueness of the offence
The offence Mountbatten-Windsor is being investigated for – misconduct in public office – is famously vague. This complicates the task for the prosecution, who will have to devote more time and effort to understanding the elements of the offence, and then ensuring that they can prove each element.
Misconduct in public office is not set out in an act of parliament, it is an offence under the common law. The public office (accountability) bill (also known as the Hillsborough law) currently going through parliament is meant to give it a statutory definition. But that will be too late for any prosecution of Mountbatten-Windsor, which will have to be for the common law offence, developed in a series of court judgements going back centuries.
In medieval times, the offence was intended to catch those in trusted public office who did something to betray that trust. It later fell into disuse, but was recently revived to catch corrupt police officers whose misconduct (such as selling information to journalists) did not fit easily into well-established offences.
The court of appeal in 2004 reframed the judge-made law for modern times, summarising four elements of the offence. It must be committed by:-
A public officer, acting as such, who
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wilfully misconducts himself
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to such a degree as to abuse the public’s trust in the office holder
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without reasonable excuse or justification.
Readers must judge for themselves whether this makes the offence any less vague. In careful understatement, the Crown Prosecution Service guidelines state that “the offence should be strictly confined, and it can raise complex and sometimes sensitive issues”.
2. Multiple police forces involved
Mountbatten-Windsor was arrested by Thames Valley Police, but they are not the only force looking into revelations from the millions of documents in the Epstein files. Mountbatten-Windsor denies any wrongdoing in relation to Jeffrey Epstein.
The Metropolitan Police, Essex Police (for flights in and out of Stansted) and Surrey Police are also assessing claims. Some of those investigations are for possible trafficking into or outside the UK for sexual exploitation, which if proved would be offences under the Sexual Offences Act 2003. The National Police Chiefs Council has announced a national group to support the investigating forces.
Police enquiries will inevitably take some time. In addition to the scale of the Epstein files, when looking for evidence of misconduct in public office, the police will want to search through UK government files.
Mountbatten-Windsor was trade envoy from 2001 to 2011. Much of the evidence is likely to be retrieved from his emails and the files of agencies like UK Trade and Investment, and government departments like the Department of Trade (now Business and Trade), the Foreign Office, Cabinet Office and Number 10. Government record keeping is not what it was, and records from that long ago will take time to find and produce.
3. Difficulties facing the CPS and the courts
If the police have gathered sufficient evidence, they will submit all the evidence to the Crown Prosecution Service. The CPS in turn will need time to consider whether there is a sufficient case to prosecute, for a common law offence whose definition is still vague and complex.
The CPS code states that they will only prosecute an alleged crime if there is a “realistic prospect of conviction”. This means that a jury, “properly directed in accordance with the law, will be more likely than not to convict the defendant of the charge”.
The main legal difficulties may lie in proving that when acting as trade envoy Mountbatten-Windsor was the holder of a public office, and that his conduct was such as to abuse the public’s trust. In trying to clarify the latter test, the court of appeal said that abuse of trust must amount to “an affront to the standing of the public office held. The threshold is a high one requiring conduct so far below acceptable standards as to amount to an abuse of the public’s trust in the office holder.”
The CPS will also need to liaise closely with the team investigating Peter Mandelson, who is also under investigation for alleged misconduct in public office, related to evidence that he passed confidential government information to Epstein. If the police pass a file on Mandelson to the CPS, there will be similarities in the evidential and legal difficulties in proving misconduct in each case.
It could be a very long time before any trial takes place. One of the biggest obstacles to a swift conclusion is the state of the courts. The recent review by retired senior judge Brian Leveson found a backlog of almost 80,000 cases awaiting trial in the crown court last September, and forecast the backlog would reach 100,000 cases by November 2027.
Some defendants are already being told their cases will not be heard until 2030. To avoid any further suggestions that Mountbatten-Windsor is above the law, his case may have to wait in the queue, just like everyone else’s.
– ref. Misconduct in public office: three reasons why the case against Andrew Mountbatten-Windsor is so complex – https://theconversation.com/misconduct-in-public-office-three-reasons-why-the-case-against-andrew-mountbatten-windsor-is-so-complex-276556
