Investigation into Andrew could be complex and long

21 minutes agoDominic CascianiHome and legal correspondent

PA Media

If anyone thought that Andrew Mountbatten-Windsor would be leaving a police cell and going to court, they were seriously wrong.

That’s because he is now under investigation for misconduct in public office. The offence, essentially an allegation of corruption, is one of the most difficult crimes to investigate, charge, prosecute and convict.

We do not know what Thames Valley Police put to Andrew during the 11 hours he was under arrest, but highly involved legal questions over whether an offence may have been committed will be at the heart of the investigation.

Detectives will be going through a four-step process, assessing which actions, if any, by the former prince amounted to misconduct in public office.

First, was the suspect a public officer?

Second, did they wilfully neglect to perform their duty and/or wilfully misconduct themselves?

Third, was that neglect or misconduct so bad that it amounted to “an abuse of the public’s trust” in the office holder?

Finally, did the office holder act without a reasonable excuse or justification?

Peter Stringfellow of Brett Wilson, a firm that works on complex criminal cases, says that a case last year underlined the challenges that any investigation into alleged misconduct faces.

In that prosecution, a man who worked in the Metropolitan Police pound was accused of taking pictures of human remains found in a crashed vehicle.

A judge concluded the man had not committed misconduct in a public office because the man was not a public officer carrying out a role involving public trust.

“Even though [the defendant] worked for the police, he did a very menial job,” Stringfellow says.

“The judge had to look at what position the defendant held and what duties were attached to that position.

“Did those duties amount to a responsibility of government, in which the public has a significant interest beyond those directly affected?”

The allegations being levelled in public at the former prince concern claims that he passed confidential documents to Jeffrey Epstein – while working as a trade envoy.

Detectives may now be looking in close detail at what precisely that role involved and line by line and the nature of the information he passed to the sex offender.

“A public office is primarily defined by its functions, not its status,” Stringfellow says. “It does not need to be an ‘office’ in any technical sense or be a permanent position.

“The position does not need to be subject to specific rules of appointment, and does not need to be directly linked, by way of appointment, employment or contract, in terms of status, to either the Government or the ‘state’.”

This level of complexity means that if someone is convicted, each case is sentenced differently, even though in theory the maximum is life imprisonment.

“The problem that you have with this type of offence is it’s incredibly wide – it covers all manner of public offices,” Stringfellow adds.

“It equally would cover all manner of offences. Some of them could be deemed much more serious than others. Sentences will be incredibly varied.”

The reason why this offence is so complicated is an accident of history – and the Law Commission, the body that advises government on big legal changes, called five years ago for the offence to be completely reworked.

Misconduct in Public Office is part of England’s “common law” – which means judges came up with it hundreds of years ago, rather than Parliament.

Back in the 13th Century, there was a law that said local sheriffs should not receive “for favour borne to such misdoers”.

That developed along with other ideas about corruption – arriving at a turning point in 1783.

That year, Lord Mansfield, one of the most celebrated chief justices in English legal history, reviewed the conviction of Charles Bembridge, a government accountant, who was accused of knowingly cooking the books.

The defendant had appealed, saying he had committed no identifiable crime. But the judge said Bembridge had a public role and had failed to carry out his duties on behalf of the King for a corrupting motive.

That, he said, was a crime.

The rules in force today – the four tests being followed by detectives – were set out in an important Court of Appeal judgment in 2003. In the centuries between the Mansfield ruling and that, the offence was sparingly used – maybe as few as 72 times, according to the Law Commission’s research.

That meant the crime was little understood by the lawyers and courts dealing with it – and that led to a very modern controversy.

From 2011 the offence was used to pursue journalists and the public officials they were said to have paid for stories in the wake of the closure of the News of the World.

The then Lord Chief Justice eventually stopped the pursuit of some journalists , saying they were being unjustly treated like criminal conspirators, concluding the law was ancient and difficult.

As a result, only 34 of the 90 people arrested in relation to payments from newspapers to officials were ultimately found guilty.

That led the Law Commission to propose a complete rewrite to make sure the offence was only used when appropriate. It suggested that Parliament should make clear that misconduct must include proof that someone has used their position to improperly benefit from their action.

The last government did not act on that 2020 recommendation, but Sir Keir Starmer’s government is now, coincidentally, putting that plan through Parliament.

Assuming the law passes, the ancient offence will be confined to history, and the investigation into the King’s brother may be the last chapter in a very messy and contested legal saga.