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Andrew Mountbatten-Windsor’s arrest on Thursday marks a rare disqualification for the former prince, and it all hinges on a notoriously difficult-to-prosecute law that experts criticize as lacking in clarity.
Police arrested Mountbatten-Windsor on suspicion of misconduct in public office, which is a common law offense in England, meaning it was established by a prior court decision rather than by law. The sentence dates back hundreds of years and carries a maximum sentence of life in prison.
Later that day, Andrew was photographed leaving the police station. Thames Valley Police said he had been “released following investigation”.
Police have not disclosed how the former prince was arrested on suspicion of misconduct in public office, but he served as Britain’s trade envoy for 10 years starting in 2001, but resigned in 2011 after coming under fire over his relationship with convicted sex offender Jeffrey Epstein.
According to the Crown Prosecution Service, the body that prosecutes criminal cases in England and Wales, under UK law the crime involves “gross willful abuse or disregard of the powers or responsibilities of a public office”.
The prosecutor’s guidelines set out four elements necessary to secure a conviction for misconduct in public office. The person accused must be considered a public official and there must be a direct link between the misconduct and the abuse of office.
The crime must also be intentional, meaning the officer must be found to have intentionally done something wrong “knowing it was wrong or with reckless indifference.” Finally, it must be done “without any reasonable excuse or justification.”
Legal experts say the crime is complex and unclear to prosecute.
Mountbatten-Windsor’s brother King Charles has sovereign immunity, which immunizes him from civil as well as criminal prosecution, but there is nothing barring him from taking legal action against the former prince or other members of the royal family.
A report by the Law Commission, which advises the UK government on law reform, calls it “one of the most difficult crimes to define in England and Wales”.
A 2020 Law Commission report said the current law is “unsatisfactory, particularly as it carries a maximum penalty of life imprisonment”. And in recent years, the definition of crime has been the target of movement.
“Over the past two decades, substantial case law has refined and in some cases changed the terms of the crime,” the report states. “In recent decades, the use of this crime by police and prosecutors has increased, making the problem even worse.”
Part of the problem, according to guidance from prosecutors, is that there is no simple definition of a civil servant in modern times. This obviously includes elected officials (ministers, mayors, MPs), but also civil servants, prison staff, military personnel, police constables, and even Anglican bishops.
The law commission said the current law is also being used to prosecute secondary parties, such as journalists, for allegedly encouraging public officials to divulge confidential information, which raises significant controversy.
And following several high-profile cases, “questions have been raised about the extent to which common law offenses are equipped to deal with modern forms of misconduct,” the Law Commission added.
According to the Institute for Government, a London-based think tank, there is a “high bar” for misconduct in public office, with the seriousness of the crime also a factor.
“Due to the ambiguity in the definition and scope of MiPO (misconduct in public office) and the difficulty in proving all elements of the crime, police and prosecutors tend to rely on other specific statutory offenses where possible,” the Government Institute experts wrote.
Because of the lack of clarity, the UK government has introduced legislation, the Public Offices (Responsibilities) Bill, to more clearly define what is illegal for public servants to do and enshrine it in law. The bill has almost passed the House of Commons and will soon be passed by the House of Lords.
If the bill becomes law, UK prosecutors could decide not to continue pursuing cases started under a previous common law offense if they do not meet the requirements of a new statutory offense.
So there are quite a few unanswered questions regarding the allegations against Mountbatten-Windsor.
Legal expert Alan Maidment, a criminal law practitioner at MSB Solicitors in Liverpool, said: “Allegations of this nature are serious and are likely to result in a complex and detailed criminal investigation.” “If charges are ultimately filed, the process can take a significant amount of time to progress through the state courts because of the evidentiary and legal issues that are often involved.”
The former prince has not publicly responded to the latest allegations that emerged after the US Department of Justice (DOJ) released millions of documents related to Epstein. Mr Mountbatten-Windsor has repeatedly denied any allegations of wrongdoing, saying he never witnessed or suspected Mr Epstein of any of the acts he is accused of.
Mountbatten-Windsor is not the only prominent British figure under investigation for alleged misconduct in public office.
About two weeks ago, British police searched two properties linked to veteran Labor politician Peter Mandelson. Mr. Mandelson is accused of passing market-sensitive information to Mr. Epstein that was clearly of financial benefit to Mr. Mandelson while he was Britain’s business secretary after the 2008 financial crisis.
Mr Mandelson had already been sacked as British ambassador to the US in September following revelations about his personal relationship with the late sex offender.
The release of additional files by the U.S. Department of Justice in January has brought increased scrutiny to Mr. Epstein’s ties, this time in relation to his actions within the government. The documents also include email exchanges from 2009 in which Mr. Mandelson appears to discuss Britain’s plans to impose an additional tax on bankers’ bonuses as a punitive, one-off measure after the crash.
Mr. Mandelson denies any criminal activity related to Mr. Epstein.
Separate to these investigations, British police are also “assessing” information about commercial flights flying in and out of London’s Stansted Airport following the release of millions of US Justice Department documents relating to Epstein. Stansted is referenced in more than 80 documents in files released by the Department of Justice.
Stansted Airport said: “All commercial aircraft at London Stansted are operated through an independent fixed base operator that handles all aspects of civil and corporate aviation in line with regulatory requirements.”
The airport said these terminals are “completely independent” and “private jet passengers do not enter the airport’s main terminal.”
CNN’s Lauren Said Moorhouse, Max Foster, Christian Edwards and James Frater contributed to this report.
