Andrew Mountbatten-Windsor Released under Investigation – What happens next

Yesterday, Thursday 20th February, Andrew Mountbatten-Windsor was arrested for misconduct in a public office. He was taken to the police station, held most of the day, and released under investigation in the evening. This blog discusses the meaning of misconduct in a public office, what happens during an arrest, what it means to be released under investigation and what could happen next with the investigation. 

What is ‘Misconduct in a Public Office?’  

Misconduct in a public office is a common law offence, which means that it is not defined in legislation. The offence concerns serious willful abuse or neglect of the power or responsibilities of the public office held. Misconduct in public office is not a minor regulatory slip-up; it is a heavyweight criminal charge reserved for the most serious abuses of the public’s trust. 

How is Misconduct in a Public Office defined in Law? 

In Attorney General’s Reference No 3 of 2003 [2004] EWCA Crim 868. the elements of the offence were summarised as being when:  

• a public officer acting as such,  
• willfully neglects to perform their duty and/or willfully misconducts themselves,   
• to such a degree as to amount to an abuse of the public’s trust in the office holder,   
• without reasonable excuse or justification.  

This offence is reserved for serious wrongdoing. Courts have stressed that it should not be used for minor offences.  

It is an indictable-only offence which means it is tried in the Crown Court. The maximum sentence is life imprisonment, although in practice sentences depend on the seriousness of the conduct and harm caused. 

To secure a conviction, the prosecution must prove more than just a mistake. They must show that a public officer, acting in their official capacity, willfully neglected their duty or misconducted themselves to such a degree that it strikes at the very heart of the public’s trust in that office. 

Who is a ‘Public Officer?’  

There have been concerns with how the law decides when a person is treated as being a public officer and the Law Commission recommended reforms to modernise the offence back in 2020, however, these proposals have never progressed.  

In many cases, the definition of a public officer is clear. For example, holders of judicial office, police officers, prison officers and civil servants are public officers. There is an arguable blurring of the lines though when private contractors are involved, for example in the running of the prison services.  

The court of Appeal in Cosford outlined a 3-stage test to assess whether a person was acting in public office.  

This was:  

1. What was the position held?  
2. What was the nature of the duties undertaken by the employee or officer in that position?  
3. Did the fulfilment of those duties represent the fulfilment of one of the responsibilities of government such that the public had a significant interest in the discharge of that duty which was additional to or beyond an interest in anyone who might be directly affected by a serious failure in the performance of that duty?  

Acting as such  

For the offence to be made out, in addition to being a public officer, one must be ‘acting as such’. This means that there must be a close connection between the willful neglect/willful misconduct and the power/authority/duties vested in the accused by virtue of their office.   

CPS guidance states that prosecutors should consider the following questions when determining whether the public officer was acting as such:  

• Is the conduct wilful neglect/breach of duty or misconduct? It can be both, but prosecutors should identify this as precisely as possible.  
• What is the connection between the wilful neglect/breach of duty and/or misconduct and the public officer’s role?  
• How has the power invested in the public officer been abused?  
• Can it be said that the public officer was “acting as such” rather than “acting whilst”?  

In light of the above, although for example an officer on duty may automatically be thought to be ‘acting as’ a public officer, this does not necessarily mean that his or her conduct will automatically be linked to their duty. They could merely be ‘acting whilst’ an officer.    

Willful neglect or willful misconduct  

To be guilty of an offence of misconduct in public office, a suspect must be “deliberately doing something which is wrong knowing it to be wrong or with reckless indifference as to whether it is wrong or not.” However the threshold for the offence is high. The misconduct or neglect must be so serious that it warrants criminal punishment.  

Sexual misconduct   

As seen in the news over recent months, one of the most common themes in misconduct cases is sexual relationships between office holders and members of the public.  

CPS guidance states that ‘the sexual conduct or relationship may not, in and of itself, amount to an abuse of the suspect’s power, but any neglect/breach of duty and/or misconduct that preceded it or facilitated it may do’.   

This means that in many circumstances an otherwise consensual relationship can amount to an offence with far-reaching consequences for the individuals involved who face losing their liberty, reputation, employment, family and friends.  

What does this case relate to? 

In this particular case, the central issue is likely to be whether Andrew’s former role as a UK Trade Envoy constitutes a public office and critically, whether the alleged sharing of documents with Jeffrey Epstein was a wilful breach of his official duties whilst acting as such. It is not a straightforward concept and there must be a distinguishable connection between his actions, the power and authority he held in that specific role. 

Defences to Misconduct in Public Office   

It is a defence if a suspect advances evidence of a reasonable excuse or justification. The courts have stated this means no more than acting in a blameworthy manner. Whilst it is not for the prosecution to prove an absence of reasonable excuse or justification it is widely acknowledged that they will present their case in such a way as to negate such evidence.  

Sentencing Misconduct in Public Office   

The offence of misconduct in public office can only be tried on indictment meaning it can only be heard in the Crown Court and has a maximum sentence of life.   

There are no specific sentencing guidelines as with many other offences. Courts typically assess culpability ie. how intentional, dishonest, or abusive the conduct was as well as harm ie. actual or potential harm to individuals, public trust, or institutional integrity considering both aggravating and mitigating factors such as genuine remorse and credit for entering a guilty plea. 

For those convicted, particularly where there is an allegation of breaching government trust, a custodial sentence is almost an inevitability. 

We only have to look at the recent nine-year sentence handed to a high-ranking prison governor to see that the courts use this offence as a powerful deterrent to preserve the integrity of public bodies. 

What is likely to have happened yesterday? 

Andrew was arrested yesterday morning, reportedly around 8 am, and taken to a police station while several properties were searched. At the custody suite, his detention would have been authorised by a Custody Sergeant, who would also have informed him of his rights, including access to free and independent legal advice, whether that be his own solicitor or a duty solicitor. 

When the police were ready to interview Andrew, his solicitor would attend. It is standard procedure for the police to provide disclosure to a suspect’s solicitor, explaining the evidence they have at that stage, though full details are not required. In reality, evidence available at this point may be limited. A suspect then has the opportunity to have a private consultation with their solicitor prior to any interview(s) that will take place. 

Following any interview the police make a decision (often in conjunction with the Crown Prosecution Service) whether to take no further action, whether to charge an individual with an offence or whether they are released whilst the investigation continues. 

What happens next for Andrew? 

It is reported that Andrew was released under investigation yesterday evening following interview.  Once an individual has been arrested and interviewed under caution, the police have two options if they intend to continue investigating the alleged offence. They may release a suspect on bail, either conditionally or unconditionally, or release the suspect under investigation. 

If a suspect has been released under investigation, it means that the police are continuing to investigate the alleged criminal offence. There are no time limits the police will set for the investigation. There are also no conditions which they must follow, unlike being placed on bail. Often released under investigation is referred to as being RUI’d. 

The police can continue investigating the offence for an unlimited time. The police may contact a suspect to conduct a further interview and in certain circumstances, they may still be able to arrest them again. It is difficult to provide a timescale as to the length of the investigation. Some matters can conclude in a matter of weeks, but more serious or complex matters can continue for many months if not years. In cases involving the forensic analysis of electronic devices, it is not unusual for investigations to last in excess of twelve months. 

There are no requirements to return to the police station, but the investigation remains ongoing. 

What is the difference between being released subject to pre-charge bail and being released under investigation? 

The main difference in relation to being released under investigation is that there is not a specific date for a suspect to return to the police station as there is with pre-charge bail. 

Bail conditions can also be attached to pre-charge bail, for example, conditions of non-contact with a complainant, not to go to a certain area/address, reporting to the police station and surrender of a suspect’s passport.  Conditions cannot be applied when an individual is released under investigation. 

How long will the investigation take? 

This is expected to be a lengthy and complex investigation. Further investigative steps will likely include interviewing potential witnesses, conducting forensic analysis of electronic devices  as well as examining physical documentary evidence collected from the individual’s residence and any other searched properties.  

Investigations of this nature may often involve multiple defendants; however, details remain unclear at this stage. 

The police will take advice from the Crown Prosecution Service (CPS) as the investigation continues. 

Will the case go to court? 

The threshold for an offence of misconduct in a public office is exceptionally high. The courts have been clear that it should only be used where the conduct is so blameworthy that it warrants criminal punishment rather than civil or disciplinary action. 

In order to determine whether a prosecution is brought, the Crown Prosecution Service will apply ‘The Charging Standard’. 

The Charging Standard is the test to be applied by a prosecutor before making a decision to prosecute. Under the Charging Standard, a prosecution cannot commence unless there is both a ‘realistic prospect of a conviction’ and a prosecution is in the ‘public interest’.  

Olliers Solicitors – specialist criminal defence lawyers 

Olliers Solicitors is nationally recognised as an outstanding criminal defence law firm – partnering legal brilliance with unmatched client care. We specialise in the defence of individuals, businesses and other organisations across a broad range of corporate and financial fraud crime, regulatory offences, serious crime, sexual offences, professional discipline and motoring offences. 

We have a formidable reputation for their pro-active approach to the investigative stage of a criminal case focusing on pre-charge engagement, discretion and nipping an investigation in the bud. We don’t wait for events to unfold – we take control. As experts in pre-charge representation, our proactive approach ensures we are on the front foot from the outset. We preempt issues and build a robust defence strategy from day one. We take control and ensure our clients are in the best possible position. 

Call us on 0161 834 1515 (Manchester) or 020 3883 6790 (London) to speak to a member of our team right away. We’ll listen to the details and provide clear guidance on next steps. You can also email us at info@olliers.com or send an online enquiry and we will respond promptly.