On 19 February 2026 Andrew Mountbatten-Windsor (formerly known as Prince Andrew) was arrested on suspicion of misconduct in public office. He was held for nearly 12 hours at Aylesham Police Station and questioned by police in relation to allegations arising from the latest release of the so-called ‘Epstein files’. It is alleged that Mountbatten-Windsor shared confidential trade documents with the convicted child sex offender Jeffrey Epstein in 2010 while serving as the UK’s Special Representative for International Trade and Investment.
Although he was later released under investigation, the arrest generated intense public and media attention. Amid this scrutiny, the King issued the following statement:
I have learned with the deepest concern the news about Andrew Mountbatten-Windsor and suspicion of misconduct in public office. What now follows is the full, fair and proper process by which this issue is investigated in the appropriate manner and by the appropriate authorities. In this, as I have said before, they have our full and wholehearted support and co-operation. Let me state clearly: the law must take its course. As this process continues, it would not be right for me to comment further on this matter. Meanwhile, my family and I will continue in our duty and service to you all.
Charles R.
Notably, the King’s statement appears to assert a commitment to the rule of law. In the eyes of the law, members of the Royal Family, His Majesty excluded, are equal to all other citizens and subject to ordinary legal processes — in this case, the ordinary criminal justice system.
However, the offence of misconduct in public office is little understood and is rarely utilised by prosecutors. In recent years the Law Commission has called for statutory reform of the offence — a call to which the Government has responded in the Public Office (Accountability) Bill, otherwise known as the Hillsborough Law. This blog post is devoted to explaining the offence and the proposed changes to it.
I therefore begin by outlining the component elements of misconduct in public office, focusing on the four-stage test applied by prosecutors and considering what, in particular, constitutes a ‘public office’ for the purposes of the offence, before briefly examining the reforms proposed in Part 3 of the Hillsborough Law, focusing on whether they are likely to improve upon the current common law.
The common law offence of misconduct in public office
Misconduct in public office is an indictable only offence, meaning it can only be tried in the Crown Court, and carries a maximum sentence of life imprisonment. According to the CPS guidance, ‘the offence concerns serious wilful abuse or neglect of the power or responsibilities of the public office held. There must be a direct link between the misconduct and an abuse of those powers or responsibilities’.
According to the Court of Appeal case of Attorney General’s Reference No 3 of 2003 [2004] the offence is committed when the following four key elements are satisfied:
- a public officer acting as such
- wilfully neglects to perform their duty and/or wilfully misconducts themselves
- to such a degree as to amount to an abuse of the public’s trust in the office holder
- without reasonable excuse or justification
With respect to the first requirement — that the defendant be acting as a ‘public officer’ — the courts must undertake a case-by-case assessment, as the case law provides no singular or exhaustive definition of the term. In the case of Mitchell [2014] EWCA Crim 318 Lord Justice Leveson explained that three questions must be asked:
First, what was the position held? Second, what is the nature of the duties undertaken by the employee or officer in that position? Third, does the fulfilment of those duties represent the fulfilment of one of the responsibilities of government such that the public have a significant interest in the discharge of the duty which is additional to or beyond an interest in anyone who might be directly affected by a serious failure in the performance of that duty?
If the answer to this final question is ‘yes’, then the defendant is acting as a public officer.
Examples of roles that have been held to constitute holding ‘public office’ include:
- holders of judicial and quasi-judicial office (judges, magistrates, registrars, coroners)
- police constables
- immigration officers
- elected officials (MPs, councillors, ministers, mayors)
- civil servants
- prison staff
- army officers
In addition, there must be a close nexus between the defendant’s wrongful conduct and their office. According to the courts, ‘acting as such’ must be distinguished from circumstances in which the suspect was merely ‘acting whilst’ a public officer. Put simply, the actus reus (guilty act) of the offence must have been committed during the discharge of the duties of the public office.
Secondly, the defendant must either wilfully neglect their duty, or wilfully misconduct themselves in public office. In this context, ‘wilful’ means ‘deliberately doing something which is wrong knowing it to be wrong or with reckless indifference as to whether it is wrong or not’ (Attorney General’s Reference No 3 of 2003 [2004]). This element of the offence can be satisfied by either a positive act or an omission to act. An example of a positive act would include a police officer accessing information from the Police National Computer to pass on to a criminal (Attorney General’s Ref (No.1 of 2007) [2007]), while an omission has been held to include a police officer who made no move to intervene during a disturbance in which a man was kicked to death (Dytham (1979) QB 722).
In order to satisfy the third element of misconduct in public office, it must be shown that the wilful neglect/wilful misconduct in the defendant’s conduct also reached a high level of seriousness. In Attorney General’s Reference No 3 of 2003 [2004] the court said that the misconduct 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’. This question, ultimately, is one for the jury on a case-by-case basis, but prosecutors must consider whether the conduct injured the public interest or abused public trust to such a degree as to warrant criminal punishment. As the CPS guidance notes, ‘it is difficult to extract from the case law definitive guidance on when conduct will reach the necessary threshold for misconduct in public office as each case will be fact and context specific’. However, some broad themes have emerged:
- Did the conduct involve the exploitation or attempted exploitation of vulnerable people?
- Did the conduct have an operational impact that harmed the public interest or undermined public trust either in the role held by the suspect or the relevant public service or institution?
- What was the suspect’s motive? Was it personal gain (either financial or otherwise)?
- What was the severity of the actual or likely consequences? Was there a risk of death or serious injury?
- How egregious was the abuse of power? Did the wilful misconduct or breach of a duty have the effect of benefitting the wider public interest rather than being injurious to it?
Finally, in regards to the fourth and final requirement, the court in L [2011] EWCA Crim 1259 held that ‘without reasonable excuse or justification’ meant no more than acting culpably or in a blameworthy fashion. The defence may advance evidence of an excuse or justification, but it is not for the prosecution to prove the absence of a reasonable excuse or justification beyond reasonable doubt.
Reform of the offence
The legal and practical difficulties associated with applying misconduct in public office has led to criticism of the common law offence by campaign groups and the Law Commission, both of whom have consistently called for reform. In response to such concerns, the Government has included two new criminal offences — ‘seriously improper acts’ and ‘breach of duty to prevent death or serious injury’ — in Part 3 of the Hillsborough Bill. These offences, essentially, split the common law offence into two new crimes. Although a full examination of the proposed reforms is outside the scope of this blog post, it is worth briefly highlighting what these two new offences are and what behaviour they are intended to criminalise.
Crucially, the Bill contains a statutory definition of ‘holders of public office’ for the purposes of both offences contained in Part 3. The definition encompasses a range of public officials, including elected politicians, members of the House of Lords, civil servants, police and other law enforcement officers, prison officers, and members of the judiciary. It also explicitly includes individuals who are ‘exercising functions of a public nature’. As a result, the legislation provides significantly greater clarity as to who qualifies as a holder of public office when compared with the current common law position.
The offence of ‘seriously improper acts’ is contained in Clause 12 of the Public Office (Accountability) Bill. A person who holds public office commits an offence if (a) they use their office to obtain a benefit (whether for themselves or another person) or to cause another to suffer a detriment, AND (b) they know, or ought to know, that doing so is a seriously improper act. What constitutes conduct that is ‘seriously improper’ is a question for the jury to determine on a case-by-case basis, but certain factors must be considered — whether the person acted dishonestly, whether they abused a position of trust (especially involving vulnerable people), how substantial any benefit was, and how much the conduct could undermine public confidence in the office.
The offence of ‘breach of duty to prevent death or serious injury’ is contained in Clause 13 of the Bill. There are four elements there that must be proven for this offence to be satisfied: 1) a public officer holder must be under a duty to prevent, or prevent risk of, another person suffering critical harm (either death or GBH); 2) they knew, or ought to have known, about that duty; 3) the duty is breached as the person intentionally or recklessly causes, or creates a significant risk of causing, another person to suffer critical harm; 4) the act falls far below what could reasonably be expected in the circumstances.
Taken together, these offences should make it easier in future for prosecutors to hold public office holders to account, as they provide significantly greater legal clarity and specificity than the current common law offence of misconduct in public office.
Kate Dewsnip.
Kate is a Graduate Teaching Fellow and PhD candidate at the University of Liverpool School of Law and Social Justice. She is a contributing writer for the Constitution Society.
The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.