Misconduct in public office: legal thresholds and uncertainties in recent high-profile investigations

The arrest of Mountbatten-Windsor, the first of a member of the Royal Family since King Charles I (for treason in 1649), was always going to attract significant commentary. However, it is important to remember that regardless of his status - the man formerly known as the Duke of York - he, like Peter Mandelson, will need to be treated like any other individual suspected of committing a criminal offence.

Lawyers know that an arrest doesn’t always result in a prosecution, let alone a conviction. In this case the offence under investigation is far from straightforward and there are a number of points which would appear to merit a closer look, regardless of the recent reports.

Misconduct in Public Office (MiPO) is a common law offence, triable only on indictment and carries a maximum sentence of life imprisonment therefore, while nobody is suggesting that Mountbatten-Windsor or Mandelson would ever be sentenced to such a term, it is fair to say that the stakes are high but so too is the threshold to even bring a prosecution.

The Crown Prosecution Service (CPS) summarises the elements of the offence as taken from Attorney General’s Reference No. 3 of 2003 (Neutral Citation Number:

[2004] EWCA Crim 868) as follows: the offence is committed when 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 officeholder, without reasonable excuse or justification.

There is currently no statutory definition of a public officer and whilst it may be obvious in some cases such as police officers, civil servants and judicial office holders, the question posed by recent events is: should a Trade Envoy be considered as such? 

The Court of Appeal, in Cosford, outlined a three-stage test to assess whether a person was acting in public office. This included:

1. What was the position held?
2. What was the nature of the duties undertaken by the employee or officer in that position?
3. Did the fulfilment of those duties represent the fulfilment of one of the responsibilities of government such that the public had a significant interest in the discharge of that duty which was additional to or beyond an interest in anyone who might be directly affected by a serious failure in the performance of that duty?

The role of a Trade Envoy necessarily involves promoting and supporting the government’s growth mission. They do so by promoting UK business internationally and supporting inward investment. They liaise with senior officials, ministers and foreign counterparts and are invariably party to conf identical official briefings to further the government’s priorities. Whilst it is not clear cut, the role of a Trade Envoy and the functional responsibility attached to it would tend to suggest that it does qualify as a public office for MiPO Purposes.

That, of course, is not the only consideration, because the CPS will also need to establish that the alleged misconduct occurred when the individual was acting as such. Someone who came upon information or documentation in their official capacity and then discloses that information while performing trade-related functions would certainly seem to establish the necessary nexus required for the purposes of bringing a MiPO prosecution.

Beyond the public officer and acting as such limbs of any potential MiPO prosecution, many believe that the wilfulness and seriousness of the conduct are likely to be the key “battlegrounds”.

The investigators and indeed the defence will inevitably want to know whether the information was marked confidential or known to be sensitive. Knowingly forwarding such information to a private citizen could demonstrate reckless indifference to propriety but, on the other hand, if reports were routinely shared with commercial interlocutors as part of trade promotion custom then the defence may argue that any disclosure was consistent with established practices rather than a wilful breach.

So far as the seriousness of the alleged abuse of the public’s trust is concerned, the CPS will need to show that the behaviour was more than just an error of judgement. Sharing sensitive government assessments relating to international investment and foreign policy with private individuals would likely strengthen the argument for a prosecution. Conversely if there is no evidence of any demonstrable harm, no personal gain and no evidence that the disclosures were anything beyond the norms of trade promotion then the defence may be on much firmer ground than some may have speculated.

Some of the preceding points do, of course, touch on the issues of reasonable excuse or justification. The suspect may well assert that they reasonably believed that sharing the information, if indeed that is what happened, supported the government’s trade objectives. They may say that the material lacked real sensitivity, or they may say that they operated under informal but well-established customs and conventions.

Clearly such arguments would be significantly undermined by any evidence of explicit restrictions, but it serves once again to highlight that bringing a prosecution for MiPO is far from straightforward. It also strengthens calls for reform and definitive statutory guidance on the issue and more widely on public accountability for those put in such privileged positions, something which has been promised but not yet delivered on by successive governments.

Given the high threshold and historical confinement in bringing a MiPO prosecution, it is likely that the case will turn heavily on explicit classification of documents and information; the provenance of emails/correspondence; context and even the mandate of those involved. 

Regardless of the uproar from armchair lawyers (and even qualified lawyers who should know better) the CPS should not and will not rush into any prosecution and won’t proceed unless there is clear evidence of wilful behaviour and a serious abuse of trust.

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