FORMER Attorney General Sir Michael Ellis has told GB News that prosecuting Andrew Mountbatten-Windsor for misconduct in a public office “is going to be a real test of this offence”.
He said: “There are lots of questions that are going to have to be answered here. If the police go on to charge Andrew, they have not charged him, as yet, they’ve only arrested him, and then after charging, it would have to go to a trial. And then if that happens, then a jury would have to be asked to convict.
“One of the things that lawyers have to look at in any of these types of cases of misconduct in a public office, it’s actually a very complicated offence. It has at least five elements, all five of which have to be proved.
“In order to prove those, you have to first of all satisfy the court that the defendant is in a public office. And there are definitions about that. So the most common use of this particular offence Martin is police officers who misuse their Police National Computer to look up ex-girlfriends and things of that sort.
“They’re often charged with misconduct in a public office, but the courts have held over the years that certain offices do not amount to a public office. There was one case, for example, where an ambulance paramedic was not held to be holding a public office.
“So, the first question they’re going to have to ask themselves, as you said, this is the first time a member of the Royal Family has been arrested in 350 years, but they’re going to have to ask themselves, was he acting as a member of the Royal Family during this trade position, or was he in a public office?
“And the question there is a live one, and that’s going to have to be explored by the courts before it even gets to a jury, assuming they go ahead and charge him.”
Sir Michael added: “A defence lawyer would say, if he’s not guilty of the offence, he’s not guilty. If the elements of the offence are not met, then a person would not be guilty. But to be guilty, for anyone to be guilty of this offence, they have to, first of all, be in a public office.
“They, second of all, have to have done something wrong whilst acting as that public office holder, not in some other capacity. Thirdly, they have to have wilfully, either neglected to do something or deliberately done something to misconduct themselves.
“They have to, fourthly, have had to do it to such a degree that public trust would have been damaged. And fifthly, they must have had no lawful excuse or reason for doing it. So all five of those elements must be reached.
“I don’t think it’s a fait accompli at all. I think this is going to be a real test of this offence. The offence is a difficult one.
“It’s been around for over 200 years. Parliament didn’t create this offence. The judges created it by sort of amorphously adding to it over the course of more than 200 years, so it is going to be a challenge here.”
