Misconduct in a Public Office: No One Is Above the Law. But Is the Law Above Scrutiny?

Narita Bahra KC & Faisal Osman

At eight o'clock on Thursday morning, 19 February 2026, plainclothes officers arrived at Wood Farm on the Sandringham estate and arrested Andrew Mountbatten-Windsor (formerly known as Prince Andrew) on suspicion of misconduct in public office. The allegation is that during his time as a UK trade envoy, he shared sensitive official information, including a confidential brief on investment opportunities in post-conflict Afghanistan, with convicted sex offender Jeffrey Epstein. By Thursday evening Andrew Mountbatten-Windsor had been released under investigation. The King expressed his "deepest concern" but said the law must take its course. Virginia Giuffre's family said the arrest showed that no one is above the law.

They are right. No one should be. But there is a question that lawyers are already asking, and that cuts to the heart of what justice in this country is supposed to mean: is the law itself equal to the task?

Because Misconduct in Public Office, the offence for which Mountbatten-Windsor was arrested, for which the former elected Mayor of Liverpool, pleaded not guilty, and which still hangs over Mandelson, is by the considered assessment of the Law Commission, one of the most poorly defined criminal charges in England and Wales. It carries a maximum sentence of life imprisonment. Parliament is in the process of abolishing it. Not because it is unnecessary, but because, after decades of expensive, inconsistent, and frequently catastrophic deployment, the evidence is now overwhelming that it does not work.

The offence has never been written down by Parliament. Its elements have been assembled by judges over centuries, and the best definition available, from a Court of Appeal decision in 2004 requires a public officer to have wilfully misconducted themselves to a degree amounting to an abuse of the public's trust. Four elements, each genuinely uncertain. Taken together, an offence so elastic it can be stretched to cover almost anything or contracted to exclude conduct that any reasonable person would regard as criminal. The CPS's own prosecution guidance concedes there is "no simple definition" of who even qualifies as a public officer, and that each case must be assessed individually. Church of England bishops qualify. Roman Catholic bishops do not. Ambulance paramedics do not; prison nurses do. A former royal trade envoy sharing official documents with a private individual? That question will now be litigated, at considerable public expense, and the honest answer is that nobody knows.

This is not an abstract concern about legal elegance. It is a practical problem with measurable consequences, and the most vivid illustration of those consequences is Operation Elveden, the Metropolitan Police's investigation into tabloid journalists paying public officials for stories. Elveden consumed nearly £15 million of public money. It produced 34 journalist arrests. In the journalist category, it ended with zero surviving convictions. One journalist was convicted; the Court of Appeal quashed it. Thirteen were acquitted outright. Seven juries could not reach a verdict. The CPS eventually discontinued an entire category of prosecution. At the Old Bailey, two judges sitting in concurrent Elveden trials gave contradictory directions on what the mental element of the offence actually required, same courthouse, same charge, near-identical facts, different legal tests. Geoffrey Cox QC, later Attorney General, observed at the time that a vague law of this kind creates the risk that people will not report matters of genuine public interest for fear of unwittingly crossing a line that nobody has been able to draw. He was right. The line was never drawn. The prosecutions collapsed.

What the statistics reveal about who the offence actually catches is, if anything, more troubling than the acquittal rate. Research from Loughborough University found that between 2014 and 2024, 92% of those convicted were police or prison officers, and 98% were junior to mid-level officials. The charge routinely criminalises conduct, a relationship with a person in custody, minor misuse of a database, accepting a small gift, that is serious as a disciplinary matter but of genuinely doubtful criminal gravity. No MP has ever been successfully prosecuted. The expenses scandal MPs were charged under the Theft Act. Boris Johnson was not charged at all. The offence that theoretically reaches everyone has, in practice, reached those least positioned to mount a sophisticated legal defence. As Professor Jeremy Horder of the LSE has put it, it is simultaneously too broad and too vague: broad enough to criminalise a junior official for a borderline disciplinary lapse, yet too imprecise to construct a reliable case against a senior figure whose misconduct is diffuse, deniable, or surrounded by advisers.

The Mandelson and Mountbatten-Windsor cases complicate that pattern in ways that will be watched closely. Mountbatten-Windsor's nor Mandelson’s case has yet reached the stage of formal charge; the CPS has spoken to investigating officers but has not yet provided early investigative advice. Whether either case ultimately reaches a jury will depend, in part, on whether prosecutors can construct a charge that survives the same appellate scrutiny that dismantled Elveden.

Parliament has already delivered its verdict on the law. The Public Office (Accountability) Bill, the Hillsborough Law, would abolish the common law offence and replace it with two statutory charges, lower maximum sentences, a defined list of qualifying offices, and a requirement that the Director of Public Prosecutions personally consent before any prosecution is brought. The European Court of Human Rights held the old offence formally compliant with Article 7 of the Convention in 2021. Parliament has, in effect, replied: technically compliant, but still not fit for purpose. That is a meaningful concession. When the legislature moves to retire a law precisely because it overcharges, misdirects juries, and produces results that are inconsistent to the point of incoherence, it is not minor procedural housekeeping. It is an acknowledgment that the law has been causing injustice.

The difficulty is that current investigations; including Mountbatten-Windsor and Mandelson, are proceeding under the old offence. The replacement cannot apply retrospectively. And as the legal commentator Joshua Rozenberg has noted, once the new legislation comes into force, prosecutors may conclude it would be unfair to charge defendants under a law Parliament has effectively deemed too broad. There is therefore an awkward transitional period approaching in which the state may find itself prosecuting citizens under an offence it has already legislated to abolish. It would be difficult to design a clearer demonstration that something has gone wrong.

None of this means that misconduct in public office should not be a crime. The Bribery Act catches corrupt payments, but not every abuse of a public role involves money changing hands. In the 1979 case of Dytham, a police officer stood by and watched a man being kicked to death. There was no bribe, no financial gain, only a culpable and deliberate failure to act. In Cosford, a prison nurse entered a sexual relationship with an inmate: technically consensual, involving no corruption, but a fundamental abuse of custodial power. Not a single respondent to the Law Commission's consultation called for outright abolition. The argument is not that the offence is unnecessary. It is that its current formulation is so imprecise that it has spent decades catching the wrong people, missing the right ones, and consuming public resources on a scale that would be extraordinary for an offence that worked, let alone one that doesn't.

Virginia Giuffre's family are right that no one should be above the law. The principle is not in question. What is in question is whether a law this uncertain can deliver the consistent, principled accountability that principle demands or whether it will, once again, produce years of expensive proceedings followed by results that satisfy nobody. The evidence of the past decade suggests the latter is the more likely outcome. 

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Narita Bahra KC and Faisal Osman are currently instructed by MSB Solicitors to defend in Operation Aloft, the Merseyside Police investigation into the awarding of contracts by Liverpool City Council, 12 defendants face charges of bribery and misconduct in public office. The trial is listed for April 2027.

Narita Bahra KC is a Tier 1 ranked leading financial crime and serious crime defence KC at 33 Chancery Lane and a Master of the Bench of Lincoln’s Inn. Ranked Tier 1 for financial crime and fraud by the Legal 500 and as a leading silk by Chambers & Partners, her practice spans serious crime, complex fraud, and regulatory enforcement. She is the author of Tackling Disclosure in the Criminal Courts and A Practical Guide to Confiscation and Restraint.

Faisal Osman is a senior junior at 33 Chancery Lane, ranked Band 1 by the Legal 500, which named him Corporate Crime Junior of the Year in 2023. Described as having “cemented his position at the top of the junior commercial crime Bar,” he defends and prosecutes in serious and complex criminal cases, including bribery and corruption, money laundering, and tax fraud. He appeared in the SFO prosecution SFO v GPT Special Projects and Ors, concerning allegations of corruption in the supply of contracts to the Saudi Arabian National Guard.

Narita Bahra KC and Faisal Osman are barristers at 33 Chancery Lane, a specialist criminal defence set ranked Tier 1 for financial crime and fraud by the Legal 500, which named it Financial Crime Set of the Year in 2025.