Peter Mandleson & Misconduct in Public Office. What exactly is Misconduct ?

The latest tranche of the Epstein files has revealed more details regarding the network of powerful men who sought, and had, a close connection with Jeffrey Epstein. Peter Mandelson was one of these men as was Andrew Mountbatten Windsor. However, in the past week, it has been Mandelson’s actions which have dominated the press coverage in England. Why is that?

Peter Mandelson was Communications Secretary under Neil Kinnock, one of several people responsible for the New Labour brand under Tony Blair and Gordon Brown, and served as Secretary of State for Business, Innovation and Skills and President of the Board of Trade in 1988 and again between 2008 and 2010. He has been a key figure in the Labour party for his whole career, though has now resigned his membership over the Epstein latest.

During Mandelson’s role as Secretary of State for Business during the years of the financial crash, it is alleged that he forwarded emails to Jeffrey Epstein, including:

• A claim that he, Mandelson, was “trying hard” to change government policy on bankers bonuses;
• A suggestion that the J.P.Morgan boss “mildly threaten” the chancellor;
• A confidential UK government document setting out £20 billion in asset sales; and
• A bailout package for the Euro the day before it was announced in 2010.

These revelations have led to the Metropolitan Police starting a criminal investigation into Mandelson and his alleged leaks of Downing Street emails, confidential information, and market sensitive information to Epstein. Among other possible offences, one has caught public imagination and the attention of the opposition parties: misconduct in a public office.

Misconduct in a public office is a common law offence; it was not created nor is regulated by statute. Misconduct is triable only on indictment (i.e., in the Crown Court) and carries a maximum sentence of life imprisonment. The Court of Appeal have said that the offence should be “strictly confined,” and the statistics support this approach: between 2014 and 2024, only 191 people have been convicted of misconduct in a public office¹.

The elements of misconduct in a public office

Case law has given us a working definition of misconduct. The Attorney General’s Reference (No.3 of 2003) sets out the elements as:²

1. A public officer acting as such.
2. Wilfully neglects to perform his duty and/or wilfully misconducts himself.
3. To such a degree as to amount to abuse of the public’s trust in the office holder.
4. Without reasonable excuse or justification

If we attempt to define each element of the offence further, it becomes apparent that a prosecution faces a number of challenges.

A public officer acting as such

There is no standard definition for a public officer. Case law shows us that a public officer is someone who holds an office of trust and/or carries out a public duty. Neither of these terms are defined.

Mitchell [2014] provided us with a test:³

1. What is the position held?
2. What are the nature of the duties undertaken by the employee or officer in that position?
3. Does fulfilment of those duties represent the fulfilment of one of the responsibilities of government and do the public have such a significant interest in the performance of that duty that goes beyond the direct interest of someone who would be affected by a failure to discharge that duty?

Some examples of public officers include: a police constable, a civil servant, Bishops of the Church of England, volunteer members of the Independent Monitoring Board, and elected officials, such as MPs.

“acting as such” necessitates a close nexus between the misconduct of the public officer and their responsibilities, duties, or powers wielded and performed in their office.

Wilfully neglects to perform his duty and/or wilfully misconducts himself.

“Wilful” in this context means “deliberately doing something which is wrong knowing it to be wrong or with reckless indifference as to whether it is wrong or not.”⁴

A test is used to determine recklessness – was the suspect aware of the risk? Was it unreasonable to take the risk in the circumstances as they knew them at the time?

In fact, “doing something which is wrong” is a little misleading since wilful neglect/misconduct can be an act or an omission (not doing something where action was required).

To such a degree as to amount to abuse of the public’s trust in the office holder.

This is a high threshold. A jury would have to decide whether the misconduct of the public officer was so serious that it amounted to an abuse of the public’s trust in the office holder.

A jury may be assisted in determining the seriousness of the misconduct by referring to:

(a) whether the alleged conduct abused public trust and injured public interest to such a degree that it warrants criminal punishment⁵ – a mistake, even a very serious one, will not suffice neither will negligence.⁶
(b) Whether the misconduct is judged by them as having the effect of harming the public interest.⁷

It is clear that context is important in determining the seriousness of the misconduct. For example, the media provide information when it is in the public interest to do so. This is materially different from when the public may be interested in the information. A public office-holder may provide the press classified information but if the provider of the information benefits the public interest rather than harms it, no criminal offence of misconduct exists.

Factors which may be considered, but are not determinative, include:

• Was there exploitation or attempted exploitation of vulnerable people?
• What was the public officer’s motive?
• What were the consequences of the misconduct?
• Did the conduct undermine public trust in the role or the relevant public institution or service?
• How egregious was the abuse of power?

Without reasonable excuse or justification

The public officer must act culpably.⁸

Does this apply to Mandelson?

The first hurdle must be whether Mandelson was a public officer at the time of the alleged misconduct. Mandelson was raised to a peerage upon his appointment as Business Secretary. The post of Business Secretary is a public office. His responsibilities include, for example, policy relating to international trade and trade agreements – surely, the public have an interest in the performance of those duties.

What about “acting as such”? Is there a close enough connection between the emails sent, the information passed on, and Mandelson’s role as Business Secretary or was Mandelson just indicating that he would use his influence? The ambiguous notion of “influence” is not sufficient for a charge of misconduct in a public office. Perhaps not all the alleged emails demonstrate the close connection required.

If we decide that Mandelson was a “public officer acting as such” at the time of the misconduct, we are left with three elements: Are Mandelson’s actions wilful misconduct? Did he, as a result of the misconduct, so seriously abuse the public trust as to deserve criminal punishment? Did he act without reasonable excuse or justification?

The first two questions are far harder to answer than the third.

The allegations against Mandelson are, at time of writing, mostly confined to the forwarding of emails, some with sensitive information, to Epstein. Assuming Mandelson sent the emails himself, although this has not yet been confirmed as fact, we can consider mens rea i.e., mindset at the time of the offence. Either he must have sent the emails deliberately, knowing it was wrong to do so, or recklessly i.e., he saw the risk that it was wrong to send the emails and went on to take that risk unreasonably. This is for the prosecution to prove.

If the Met’s investigation leads to a criminal charge of Misconduct in a Public Office, it will be up to the jury whether his alleged misconduct is sufficiently serious. To do this, the jury can consider whether the alleged conduct deserves criminal punishment and whether the public interest has been harmed by his conduct. The latter consideration may prove challenging for a jury (in other words, the public) to decide – has the public interest been harmed by the forwarding of the emails to Epstein?

We are in the incipient stages of a criminal investigation into Mandelson. We do not know whether more details regarding his association with Epstein and, particularly, his alleged misconduct will emerge. Whether the emails are misconduct or merely misguided will become clearer as the investigation progresses.

Legal Advice

Our criminal defence team advises on a range of offences, including Misconduct in a Public Office. We encourage anyone seeking legal advice in this area to contact our team on 0330 822 3451 or request a callback.