MISCONDUCT IN PUBLIC OFFICE
- Mar 1
- 16 min read
Updated: 6 days ago
A COMMON LAW CRIMINAL OFFENCE FOR A COMMON KNAVE, FOR NOW
The fall and subsequent arrest of the former prince now a knave Mr Andrew Mountbatten-Windsor together with the arrest of a former EU Trade Commissioner Mr Peter Mandelson (whom was the British Ambassador to the USA at the time) is now old news. But what is even older is the law/pretence for the arrest and this pantomime of farcical face-saving arrests.
Due to an ongoing misconception that the aforementioned public figures have been arrested for their sexual indiscretions, this article examines the criminal offence of 'Misconduct in Public Office.' For ease of reference, we begin with a concise overview of the offence, a Q&A follows concerning the specific elements and the legal part finalises by looking to the future with the statues that are replacing the offence. As always, the article concludes with a comment section that puts the law discussed in its current context as at the time of publication.
Unfortunately, there is absolutely nothing sexy about this article and for that, you may wish to visit an alternative website.
EXCLUSIONS & NOTICES
Content: Nothing in this article constitutes legal advice and you are referred to the terms of use of accordingly.
Colours: These are entirely the authors preference and should not be copied in any legal documents. For ease of reference, we place statutory law in red, the common law is in blue, important cases will open to an external site and will be underlined. Links to external news sites are indicated as thus.
Criminal Law: This solicitor-advocate's office does not yet practice in criminal law. However, this article does discuss criminal law in general. Should this article contradict the professional opinion of a practicing criminal solicitor any lay individual should defer to the opinion of a practicing criminal solicitor without hesitation.
Opinions: Any opinion(s) expressed herein are personal and solely that of the author.
CRIMINAL LAW & MISCONDUCT IN PUBLIC OFFICE
There is no legal definition of a crime in England & Wales nor does anybody know how many crimes there actually are? The reasons for this are historical and outside the scope of this article. What is pertinent is that many crimes are not defined by a statute passed by Parliament, but are found in the 'common law' i.e. judgements from the courts. Misconduct in Public Office is one of these crimes found in the common law the most recent case that defines it is:
Attorney General's Reference (No 3 of 2003) [2004] EWCA Crim 868: 'C' aged 37 had died in police custody following a public order incident. Prior to death, C's breathing had been audibly obstructed for 11 minutes during which time the police offered absolutely not assistance whatsoever. Prosecuting, it was claimed that the police had recklessly breached their duty of care to C. Regretfully, they were acquitted of manslaughter by gross negligence and misconduct in a public office on the basis of no case to answer for. It was held however that 'bad faith' was not a necessary ingredient for the offence as it would confuse the Jury. Instead, the following should be proven:
For a Public Officer to be Acting As Such.
A Wilful Breach of Duty by that officer either by commission or an omission.
Misconduct to such a degree that it amounted to an Abuse of the Public's Trust in the officer.
That the failure to meet standards was without Reasonable Excuse or Justification.
Be under no illusion. Misconduct in Public Office is a serious criminal offence carrying a maximum sentence of life in prison.
While the offence of Misconduct in Public Office is found in the common law, the Crown Prosecution Service (CPS) provides helpful guidance freely accessible online. That CPS Guidance re Misconduct in Public Office sets out 3 circumstances where the offence should be used:
Where there is no relevant statutory offence, but the behaviour or the circumstances are such that they should nevertheless be treated as criminal. However;
Where there is a statutory offence but it would be difficult or inappropriate to use it then the offence of Misconduct in Public Office should be considered. This might arise because of evidential difficulties in proving the statutory offence in the circumstances. And when;
Because the maximum sentences for the statutory offence would be entirely insufficient for the seriousness of the misconduct.
Prior to the arrest of Mr Andrew Mountbatten-Windsor and Mr Peter Mandelson; this criminal offence was often used to prosecute police and prison guards (aka 'screws') for supplying information to journalists and on occasions; the journalists themselves.
QUESTIONS & ANSWERS MISCONDUCT IN PUBLIC OFFICE
This dropdown Q&A answers specific questions about the offence in general and its constitute elements. Some parts of the above are repeated.
IS THE CHARGE OF 'MISCONDUCT IN PUBLIC OFFICE' A CRIMINAL OFFENCE?
Yes! 'Misconduct in Public Office' is a criminal offence in the common law i.e. not defined by parliamentary statute but is judge defined and interpreted by examining the ratio of historic judgements. If proven the guilty the defendant will have a criminal conviction that will carry a criminal sentence and thereafter, a criminal record. In the case of 'Misconduct in Public Office' the maximum sentence is life in prison.
And No! Insofar as the same act or omission can form an action in the civil law of tort. In tort, the breach is referred to as Misfeasance in Public Office but that is outside the scope of this article.
WHAT IS 'MISCONDUCT IN PUBLIC OFFICE?'
Misconduct in public office is a criminal law offence found requiring the CPS to prove 4 things:
The defendant is a 'Public Officer' acting as such.
Wilfully neglects to perform their duty or wilfully misconducts themselves.
To such a degree as to amount to an abuse of the public's trust in the the public officer holder.
Without reasonable excuse or justification.
WHAT IS 'A PUBLIC OFFICER?'
There is no fixed or statutory legal definition of 'a Public Officer.' However, in the past the following positions were 'proven' to be public offices (in no particular order):
Coroner.
Police Officer and/or Constable.
County Court Registrar (District Judge).
Accountant in the office of the Paymaster General.
Justice of the Peace.
Executive or Ministerial Officer.
Jailer.
Mayor.
Army Officer.
Council Maintenance Officer.
Local Councillor
Member of the Independent Monitoring Board for Prisons.
Member of Parliament (MP).
The list is not exclusive and as indicated, it can be expand upon by proving in court that the defendant's position is that of 'a Public Officer.' In seeking to do so guidance can again be found in the common law:
R -v- Bembridge (1783) 3 Doug KB 32: The court defined a Public Office as "an office of trust concerning the public, especially if attended with profit ... by whomever and in whatever way the office is appointed."
R -v- Whitaker (1914) KB 1283: The court stated "a public office holder is an officer who discharges any duty in the discharge of which the public are interested, more clearly so if he is paid out of a fund provided by the public."
Attorney General's Reference (No 3 of 2003) [2004] EWCA Crim 868: The courts have long acknowledged that public functions are now frequently carried out by employees in private employment, for example those concerned with security at courts and the transport of defendants. In consideration of this, there was the potential for unfairness if those holding a public office, such as police officers, were to be liable to a sanction not applicable to those in private employment who do similar work. Consequently, a private person can be considered a Public Officer.
Solicitors, Solicitor-Advocates, CILEX and Barristers will no doubt pause here having wondered if the charge can apply to members of the legal profession working on legal aid? The answer is outside the scope of this article.
While it may at first sound strange that there is no fixed legal definition of a 'Public Officer' that is the flexible but unbreakable strength of the common law. It is designed to evolve with society and as our definitions and expectations change so does the common law with it. Were a 'Public Officer' defined by statute say 200 - 300 years ago; we doubt it would have included members of the Royal Family and at the time of publication no member of the Royal Family has ever been formally charged with this offence.
WHAT IS 'ACTING AS SUCH?'
This is not specifically defined. However, looking at the case law broadly, it refers to when the public position provides 'the knave', an opportunity to further their private interests through ill means, rather than perform the functions of their public office. What it excludes are offences committed entirely in the defendant's private life for which the office they hold is irrelevant.
An example of Acting As Such; Consider the case of an illegal drug dealer whom gains employment in prison say as a Screw, just so he can sell drugs to inmates. In that scenario the drug dealer is not performing his function.
but if caught, it would be dealt with by a disciplinary and the usual criminal charges associated with common drug dealing. However, were the inmates minors i.e. detained in a young offenders institute and the drug dealer was say the governor of that prison/institute; we suggest that the threshold would have been met as that is far outside of the competency of internal procedures due to the position of authority and trust that would be placed in the governor.
An example of NOT Acting As Such; would be a prison guard finishing work and dealing drugs on a street away from the prison. In that case, the drug dealing is in the defendant's private life and the fact that they are employed as a prison guard is at best an aggravating factor for the various offences incurred through drug dealing.
WHAT IS 'WILFUL NEGLECT' OR 'MISCONDUCT?'
In short, 'Wilful Neglect' or Misconduct is "deliberately doing something which is wrong knowing it to be wrong or not." That definition was approved in Attorney General's Reference No 3 of 2003.
While at first glance it could seem unfair to the defendant that they can be charged for deliberately doing something that is wrong, even if the defendant did not know it was wrong, this makes sense when we consider the case of the plod whom watched a man kicked to death in front of him and then wandered off arguing nobody had told him he needed to intervene:
R -v- Dytham [1979] QB 722: The facts were PC Dytham decided 'not to get involved' while a man was murdered right in front of him. A civilian was thrown into the gutter by 'bouncers' and brutally kicked to death. The police officer was 30 yards away and watched it all. Once 'the danger' had passed i.e. the thugs were gone, PC Dytham decided not to offer any assistance at all and just wandered off. While this event is unlikely to shock anybody whom has had dealings with the police (then in 1979 or now), neither the CPS nor the judiciary were impressed. Thanks to the common law and in spite of several (shameless) appeals from the police, the law was strengthened by the following:
The police officer was charged with "misconduct of an officer" and he demurred to the indictment.'
What that means is that he freely admitted the facts but 'misconduct' involved malfeasance or misfeasance not mere non-feasance i.e. there should be a positive act. What the Defendant freely admitted was that he had just stood there while someone was killed in front of him. That is and was, an omission.
The judge ruled against the demurrer and in doing so considered case law going back as far as 1705. Specifically R. v Wyat 91 E.R. 331 [1705] 1 WLUK 2, R. -v- Bembridge 99 E.R. 679 [1783] 11 WLUK 27, R. -v- Llewllyn-Jones (Hopking Alfred) [1968 1 Q.B. 429, [1967 1 WLUK 755.
The court ultimately concluded that the offence of a public officer neglecting to perform his duty requires that the neglect be wilful and culpable in the sense that conduct impugned injured the public interest so as to call for condemnation and punishment.
Furthermore, an element of corruption or dishonesty is not an essential ingredient.
Since Dytham, the definition has evolved and subsequent to Attorney General's Reference No 3 of 2003 the law seems to have 'softened' further as in the the case of 2 boys aged 11 and 12 whom caused >£1 Million of damage.
R -v- G [2003] UK HL 50, The boys had decided to set fire to some newspapers and then wandered off without putting the fire out. The resulting damage was estimated >£1 Million but it was accepted that the boys had assumed the fire would burn itself out on the concrete floor. Lord Bingham in considering the boys case kindly stated:
"It is clearly blameworthy to take an obvious and significant risk of causing injury to another. But it is not clearly blameworthy to do something involving a risk of injury to another if one genuinely does not perceive the risk. Such a person may fairly be accused of stupidity of lack imagination, but neither of those failing should expose him to conviction of serious crime or the risk of punishment."
It is clear that 'the Misconduct' must be wilful. The boys were stupid. But at ages 11 and 12 they likely did believe the fire would just go out on the concrete and so there was no wilful neglect misconduct. The police may also be stupid but any 'plod' should know that someone being kicked to death in front of them is murder and then refusing to assist a dying civilian when you are living off their taxes is always going to be construed as misconduct.
WHAT IS 'A PAID POSITION?'
SURPRISE! YOU DO NOT HAVE TO BE PAID TO HOLD A PAID POSITION!
R -v- Belton [2010 WLR (D) 283: In this case, the defendant was an unpaid voluntary member of the Independent Monitoring Board for Prisons. The Court of Appeal held that remuneration was not an indispensable requirement for the holding of a public office, or for liability to prosecution for the offence of misconduct in a public office.
WHAT IS AN 'ABUSE OF 'THE PUBLIC'S TRUST?'
It is conduct that is considered so bad, so far below the level expected, that a normal disciplinary procedure would be woefully insufficient.
Attorney General's Reference (No 3 of 2003) [2004] EWCA Crim 868: The court said the misconduct must amount to an affront to the standing of the public office held. It further stated that 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.
WHAT IS 'WITHOUT REASONABLE EXCUSE OR JUSTIFICATION?' (THE DEFENCES)
In brief, the most common Defence is 'whistleblowing'.
R -v- April Casburn: The Defendant was a police officer whom like many was passing secrets to the press for cash. She failed to convince the jury that the reason she had betrayed the trust and confidence placed in her by the public was due to her own concerns about the police force.
The prosecution will no doubt attempt to negate any possible 'reasonable excuse or justification' however; they are no required to prove that one does not exist.
ARE THERE ANY ALTERNATIVE CHARGES?
As stated at the beginning, this charge is often used when there is no alternative and it appears not to be uncommon for the courts to find that an alternative charge should have been brought.
R -v- Dunn (2003) 2 Cr App R; The court held a police officer committing a violent act duty should have been charged with assault, which provided the court with adequate sentencing powers, taking into account the breach of trust as an aggravating factor.
Concerning Members of Parliament (MPs) and their favored past time of fraudulent expenses; the Dunn approach was applied when 3 Labour MPs Chaytor, Jim Devine and Elliot Morley was charged with false accounting under section 17 of the Theft Act 1967 rather than misconduct in public office.
AIDING & ABETTING THE OFFENCE OF 'MISCONDUCT IN PUBLIC OFFICE'
Should you aid or abet a person guilty of Misconduct in Public Office' it is not necessary for you to know the full facts to be convicted.
R -v- Chapman [2015] EWCA Crim 539: These were a series of appeals involving journalists. In the first it was actually the journalist a crime reporter whom was convicted of conspiracy to commit misconduct in public office and sadly only sentenced for 6 months. Even worse imprisonment was suspended. In another case 2 journalists were convicted of aiding and abetting a serving soldier to pass on information about Prince Harry's military service. Although the appeals failed, the court discouraged the use of conspiracy charges stating aiding and abetting were more appropriate.
THE 'HILLSBOROUGH LAW' I.E. PUBLIC OFFICE (ACCOUNTABILITY) BILL
On 16th September 2025 His Majesty's Government (HMG) introduced the Public Office (Accountability) Bill often referred to in Liverpool and the surrounding region as the 'Hillsbrough Law' Bill (hereafter 'the Bill'). The Bill aims to abolish the common law offence of misconduct in public office and replace it with two new criminal statutory offences:
Corruption in public Office: When a public officer knowingly uses their position for personal benefit or cause determent to another, which is considered "seriously improper."
Breach of duty in Public Office: This will apply when an official is aware of duty to prevent death or serious injury, but recklessly breaches that duty.
Furthermore, the bill also aims to:
Introduces a statutory duty of candor and assistance for public officials and authorities, requiring them to act with transparency during inquiries and investigations, with criminal sanctions for failure to comply .
To require public authorities to promote and take steps to maintain ethical conduct within all parts of the authority.
To create an offence in relation to public authorities and public officials who mislead the public.
To make provision enabling persons to participate at inquiries and investigations where the conduct
LAW REFORM
The general overwhelming consensus in the legal profession is that the common law should be updated and replaced with statutory law. This is the norm in almost every other legal jurisdiction including Scotland as since time immemorial, their laws are (ironically) based on Roman law.
We take a moment to observe that what this means in practice is rather than learned judges being able to interpret and deepen our understanding of the law at trial where a citizen's liberty is at stake i.e. when it really matters; the statutes will need to be endlessly updated and replaced by the Ministry of Justice (MOJ) or parliament. This is usually done following a series of committees where people often without any practical legal experience outside the civil service consider the cases of Joe Bloggs (1) -(100) now already rotting in their cell, attempting to rebuild their lives on state support or are dead. As the MOJ would then need to compensate people wrongfully imprisoned, or their estates; we are not commenting further as our contrarian views on the practicality of common law vs statutory law are well known and indicated herein.
On 16th September 2025 His Majesty's Government (HMG) introduced the Public Office (Accountability) Bill often referred to in Liverpool and by the press as the 'Hillsborough Law' Bill. The Bill aims to abolish the common law offence of misconduct in public office and replace it with 2 new criminal law statutory offences:
Corruption in Public Office: When a public officer knowingly uses their position for personal benefit or cause to determent to another, which is considered "seriously improper."
Breach of Duty in Public Office: This will apply when an official is aware of duty to prevent death or serious injury but recklessly breaches that duty.
Furthermore, the bill aims to:
Introduce a statutory duty of candor and assistance for public officials and authorities, requiring them to act with transparency during inquiries and investigations, with criminal sanctions for failure to comply.
To require public authorities to promote and take steps to maintain ethical conduct within all parts of the authority.
To create an offence in relation to public authorities and public officials who mislead the public.
To make provision enable persons to participate at inquiries and investigation where the conduct.
We conclude the legal section by observing what these statutes aim to achieve are already handled by the common law. There seems to be absolutely no apparent or practical need to waste money by copying the law as it is save for neutering its ability to act at trial.
COMMENT
We use this Comment section to put the law discussed above n context so as to assist future readers.
Regarding Mr Andrew Mountbatten-Windsor, should charges eventually be brought these would be at the discretion of the CPS whom must first consider the public interest. In that, we comment on a constitutional law issue arising from rumblings in the House of Commons. Specifically, the royal line of succession.
The reigning royal house of Mountbatten-Windsor is at the time of publication [01.03.26], the head of 15 independent states i.e. the UK and 14 independent members of British Commonwealth (dependencies such as the Isle of Mann are excluded from this figure for want of knowledge on the issue). Should the rumblings in the Commons culminate with Mr Andrew Mountbatten-Windsor being removed from the royal line of succession that would only apply to the UK including for the avoidance of doubt, Scotland (a separate legal jurisdiction from England & Wales but the Act of Union 1707 settled this issue).
If HMG did remove Mr Andrew Mountbatten-Windsor, then unless the remaining 14 Commonwealth states followed suit, he would still form part of their royal lines of succession. Presumably, King Charles III would then need to ask these parliaments to remove him. As no criminal charges have yet been brought, let alone proven, pop-up-10-a-penny-politicians in the Commons might wish to consider the national interest and whether this would strengthen UK influence of further undermine it? While the majority of the ancient Privy Council's responsibilities have since been transferred to the Cabinet including foreign policy; on issues of the royal succession it is still the Privy Council whom advises the reigning Monarch on these issues.
We observe that the police in arresting 'a man' on his 66th birthday when there was absolutely no urgent need to, save to get the maximum possible public media attention whilst hopelessly and unconvincingly denying the same to the whole world is just shoddy pantomime, not policing. Such acts are usually meant to be a distraction from something more embarrassing. In consideration of this, we should posit:
If Andrew Mountbatten-Windsor was passing confidential state secrets for his own gain to that foreign financer and paedophile Jeffrey Epstein, whom had dark international connections including to President Putin of Russia, it begs the question why have the security services not picked up on this previously and who is keeping an eye on these princes? The former prince fell into ignominy back in 2019. His connections to Jeffrey Epstein have been public knowledge since then. Who has been checking what secrets Andrew Mountbatten-Windsor had prior to his fall and if someone was 'looking the other way' why have arrests on suspicion of Misconduct in Public Office not been extended to the security services?
Should the charge of Misconduct in Public Office be brought against Andrew Mountbatten-Windsor and it were to transpire that members of the security services were wilfully 'not getting involved'; that we should argue is not mere 'negligence' it is R -v- Dytham misconduct again and criminal charges should be brought as they rightly deserve condemnation.
Consequently and concerning Mr Andrew Mountbatten-Windsor we comment, either charge the knave or leave him to his ignominy. But please put sufficient measures in place to stop the next Grand Old Duke of York, marching >10'000 menacing headlines across the global media which costs us all dearly.
Finally, this article should not be misconstrued as a defence of Mr Andrew Mountbatten-Windsor or indeed the house of Mountbatten-Windsor itself. It is an (un)apologetical declaration that mob-justice is not legal-justice, nobody is a criminal to be sentenced until convicted by law above which, there is absolutely nothing and that includes as we have seen; the security service. For the roots of our conviction, you may research the Covenanter James Renwick (1662 - 1688) or visit his his monument in beautiful Moniaive, Dumfriesshire, Scotland.
