Andrew Mountbatten-Windsor arrested: What is misconduct in public office?

Andrew Mountbatten-Windsor has been arrested on suspicion of misconduct in public office and is in police custody.

He is the first senior royal in modern history to be arrested.

Here, the Press Association takes a closer look at what the offence is and what could happen next.

– What is misconduct in public office?

According to the Crown Prosecution Service (CPS), the offence is defined as “serious wilful abuse or neglect of the power or responsibilities of the public office held”.

It happens when a public office holder wilfully neglects to perform his or her duty or wilfully misconducts him or herself, to such a degree as to amount to an abuse of the public’s trust in that office.

The offence technically carries a maximum sentence of life imprisonment, but in this case that maximum would be extremely unlikely, experts have said.

In recent years, prison officers have been prosecuted for the offence after having inappropriate relationships with inmates, as well as police officers leaking information.

– What will the police and CPS need to prove?

Misconduct in public office is notoriously difficult to define, let alone prove, with only 191 people convicted between 2014 and 2024.

Authorities will have to find clear evidence that Andrew was in a public office role, and that he knowingly abused or exploited his position.

Sean Caulfield, a criminal defence lawyer at Hodge Jones & Allen, said: “Proving misconduct in a public office is an extremely high bar.

“Firstly, it must be determined if Andrew Mountbatten-Windsor was in a role within government that constitutes the title of public officer.

“There is no standard definition to clearly draw on, but case law indicates that a public officer is someone who holds an office of trust or performs a public duty.”

Thames Valley Police previously said it was reviewing allegations that Andrew shared sensitive information with Jeffrey Epstein while serving as the UK’s trade envoy.

The case will rest on whether sharing confidential government briefing documents constitutes an abuse of the public’s trust, Mr Caulfield added.

– What happens next?

Arresting the former prince gives police the power to search his homes, and formal questions can now be put to him at interview.

The CPS will then need to make a decision about charging him.

Andrew Gilmore, a partner at Grosvenor Law, said the CPS will apply the two-stage test known as the “Code for Crown Prosecutors”.

“That test is to determine whether there is a more realistic prospect of a conviction than not based on the evidence and whether the matter is in the public interest,” he said.

“If these two tests are met, then the matter will be charged and proceed to court.”

Under UK law, police can hold a suspect without charging them for up to 24 hours from the time of arrest. This can be extended if authorised by a senior officer.

Marcus Johnstone, managing director of PCD Solicitors, said investigators will be using the arrest as the basis to scrutinise his relationship with Epstein even further.

“Andrew’s arrest is not unexpected,” Mr Johnstone said.

“His financial ties to Epstein are his legal weak spot, and certainly far easier to pursue than any allegations of sexual impropriety.

“But although an investigation is now taking place, we are still a long way away from a potential prosecution.”

– What is the history of the offence?

Misconduct in public office is a common law offence and has existed for hundreds of years.

According to the Law Commission, the most well-known historical statement of the offence was made in 1783 in the case of an accountant working for the armed forces.

In describing the offence, Chief Justice Mansfield said: “A man accepting an office of trust concerning the public, especially if attended with profit, is answerable criminally to the king.”

The offence continued to develop but until the 21st century, prosecution numbers for the offence were very low.

In 2013, the Court of Appeal set out a useful test for determining whether someone is in public office.

“It essentially requires asking whether the public had an interest in the misconduct over and above those directly affected,” the Law Commission said in a report.

In more recent history, there have been calls for some of the undercover police officers involved in infiltrating various political movements to be charged with misconduct in public office.

The offence has also gained public attention in relation to charges against police officers connected to the Hillsborough Stadium disaster in 1989.