Misconduct in public office
Has Mandelson ‘clearly broken the law’?
Peter Mandelson has “clearly broken the law”, a Reform MP said in parliament yesterday. “We are told that this man leaked confidential information to a convicted sex offender when he was a cabinet minister and took tens of thousands of pounds in secret backhanders,” Robert Jenrick continued.
“Mandelson has clearly broken the law and now stands accused of serious misconduct in public office and should be tried for his offences,” Jenrick added.
Who needs courts when one MP, at least, has already found the defendant guilty? Others, though, were more circumspect. This was Dame Emily Thornberry, Labour chair of the foreign affairs committee:
The files seem to show that Peter Mandelson was given £50,000 by a notorious paedophile and that a few years later he sent on market-sensitive information to [Jeffrey] Epstein, who worked for JP Morgan, about market bail-outs. He told him about the prime minister’s resignation, said that they should “mildly threaten” the chancellor of the exchequer, and then told him about matters of national security. Surely this is a matter not of whether Peter Mandelson should be in the House of Lords but of whether the police should be involved.
Scotland Yard took the hint.
“We are aware of the further release of millions of court documents in relation to Jeffrey Epstein by the United States Department of Justice,” said Commander Ella Marriott of the Metropolitan Police.
“Following this release and subsequent media reporting, the Met has received a number of reports relating to alleged misconduct in public office. The reports will all be reviewed to determine if they meet the criminal threshold for investigation.”
Misconduct in public office
Securing a conviction for misconduct in a public office is far from straightforward. That’s why MPs are in the process of replacing this common law crime with a new statutory offence, as recommended by Law Commission in 2020.
The elements of the existing offence were summarised by the Court of Appeal in 2004. It is committed by
A public officer, acting as such, [who]
wilfully neglects to perform his duty and/or wilfully misconducts himself
to such a degree as to amount to an abuse of the public’s trust in the office holder
without reasonable excuse or justification.
There is further guidance from the Crown Prosecution Service. A government minister is certainly a “public officer”. Beyond that, though, it’s all rather vague.
As I explained last September, the offence is to be abolished under the government’s Public Office (Accountability) Bill, which has nearly completed its Commons stages and will soon be considered by the House of Lords.
Under clause 12 of the bill, people who hold public office — defined in schedule 4 — commit an offence if
(a) they use their office to obtain a benefit (whether for themselves or another person) or to cause another person to suffer a detriment, and
(b) they know, or ought to know, that doing so is a seriously improper act.
These terms are broadly defined in the bill, together with the defence of reasonable excuse. The maximum penalty is 10 years.
Like any new criminal offence, it will not be retrospective: clause 16 confirms that the common law offence will continue to apply to acts committed before it is repealed. Once the new offence becomes law, though, prosecutors may think it would not be in the public interest — not fair — to charge defendants under the old law if the alleged conduct would not be caught by the new statutory offence.
That speaks of “benefit”, which is defined to include:
financial gain or loss;
protection or enhancement of, or damage to, a person’s reputation;
a benefit or detriment of a physical or sexual nature;
Prosecutors would need to show that a defendant used his or her public office to obtain such a benefit. That need not be immediate but it seems there must be a link between the seriously improper act and the benefit. Does it matter if the benefit was received first? Whether one led to the other may be a question for the jury.
Response
In an interview with The Times, Mandelson was asked about alleged Epstein payments to accounts linked to him between 2003 and 2004 amounting to $75,000. He insisted he had “absolutely no recollection or records of receiving his money — and I think I would remember such a large sum”.
Update 1900: Marriott of the Met has issued an update. It said:
Following the further release of millions of court documents in relation to Jeffrey Epstein by the United States Department of Justice, the Met received a number of reports into alleged misconduct in public office including a referral from the UK government.
I can confirm that the Metropolitan Police has now launched an investigation into a 72-year-old man, a former government minister, for misconduct in public office offences.
The Met will continue to assess all relevant information brought to our attention as part of this investigation and won’t be commenting any further at this time.
Thanks for the very clear explanation (as usual) of the current and proposed law. In relation to the proposed new offence do you think it covers the situation where A, who wishes to ingratiate himself with B in the hope or expectation of a benefit in the future, commits the relevant act? That may be a possible scenario and it does seem clear whether it is caught.
Keep up the good work.
It'a shocking mess, but legally at present it's surely a no-hoper? Even if the CPS sought to reverse the normal order of action and gain and argue that there was, in effect, a pre-payment, they'd have to show that a payment when Mandleson was not a minister led to a specific action intended to benefit the payer 5 years later. Mandleson had been in government a record time in between and it would seem implausible that Epstein would have forgone an expected benefit during those periods. Moreover, ministers leak stuff to non-politicians all the time. Mandleson was seeking to manipulate a political outcome by talking to a businessman: he was technically the Chancellor's superior, who was doing the same however different his style and personality.