From time to time, small-m misconduct in public office will go from being a matter of just politics and administration to a matter with legal consequences. Someone who is misconducting in public office can be sued for the tort of misfeasance in public office, and they can have their acts quashed by the High Court on grounds of bad faith or improper purpose.
At the extreme, they can face criminal liability for big-m Misconduct in Public Office, an ancient and until recently rarely used offence for those abusing public power.
This offence is in the news because of evidence of unauthorised disclosures of sensitive information revealed in the published Jeffrey Epstein files.
The Metropolitan Police expressly refer to it in respect of the searches of properties believed to be connected with Peter Mandelson. It’s also been reported that Thames Valley Police have confirmed they are assessing whether there are grounds to investigate Andrew Mountbatten-Windsor for the same offence. Both Mandelson and Mountbatten-Windsor seem to have forwarded sensitive information to Epstein.
At this stage it is important to stress that such a police search and police assessment do not mean that any criminal offence has or even may have been committed. This is not just safe lawyer-speak. Although there are documents in the public domain that raise serious questions, we do not know the context or even the authenticity of those documents.
But more than this usual lawyerly caution, the offence of Misconduct in Public Office can be very difficult to prosecute in practice. Even if the disclosed documents are authentic, and even if there is no context which offsets what they appear to reveal, the offence of Misconduct in Public Office may still not be made out.
The offence dates back to the early modern period, but as the Law Commission said in its 2025 report on reforming it, “The offence fell largely into disuse between the late 18th century and the beginning of the 21st century.”
Its modern revival came in a 2004 reference by the attorney general to the High Court, in which the court set out the four elements of the offence.
These four elements were (1) a public officer acting as such (2) neglects to perform his or her duty and/or wilfully misconducts himself/herself (3) to such a degree as to amount to an abuse of the public’s trust in the office holder and (4) without reasonable excuse or justification.
In practice, the offence has been used this century as a catch-all for police and prison officers or relatively junior officials. As this useful explainer by the Institute for Government (IfG) sets out, “Between 2014 and 2024 some 191 people were convicted of [the offence]: 92% were prison officers or police officers, and 98% were junior to mid-level public officials.”
The offence has not been successfully prosecuted in high-profile case. As the IfG explainer details, it was used for an arrest of a Member of Parliament in 2009 but no charges were brought, and in 2016 a Member of the European Parliament was quickly acquitted of the charge by a jury, in respect of an expenses irregularity.
Members of Parliament and other politicians who were convicted in the expenses scandal were charged and convicted under other offences. In essence, the offence of Misconduct in Public Office does not seem to have been used – at least successfully – in high-profile scenarios such as indicated with the documents relating to Mandelson or Mountbatten-Windsor.
Unless any other laws are engaged, such as financial regulation laws on the misuse of sensitive information (and the Liberal Democrats have made such a complaint about Mandelson), it would be the Misconduct in Public Office that would be used in any charges.
Yet the current law of Misconduct in Public Office is vague in two ways. First, the question is what constitutes misconduct. Second, what constitutes a public office.
On the latter, for example, Mountbatten-Windsor’s nominal and voluntary role as special representative for international trade and investment may fall outside of what a court would hold to be a public office, even though that was the capacity through which he received confidential reports that he appears to have passed on to Jeffrey Epstein. And it would seem unlikely that a dukedom, by itself, is a public office.
On the former, the law is at best elastic. Even the government’s own website describes it as “outdated and confusing”. That is why the government has included reform of the offence in the “Hillsborough Law” bill currently before (and now delayed in) parliament.
The law is so vague that the Law Commission “concluded that it may make the offence incompatible with article 7 of the European Convention on Human Rights [ECHR]… which prohibits retrospective punishment. This prohibition has been held to include a prohibition against laws which are so ambiguous that they cannot be predictably interpreted.”
If Mandelson was successfully prosecuted for the offence as it currently stands, we therefore could even face the prospect of Mandelson bringing an ECHR claim. That would certainly be newsworthy.
On the other hand, it is well established that the offence can be used for unauthorised disclosures of sensitive information. Many junior officials and police officers were convicted during Operation Elveden for passing information to journalists. Details of some of the convictions are set out here. That the offence may have been committed by someone far more senior should not be any exception.
And the head of the Crown Prosecution Service at the time of Operation Elveden was Keir Starmer, who as Prime Minister has directed that Mandelson be reported to the Metropolitan Police.
[Further reading: Gordon Brown: Police need to interview Andrew]
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