Peter Mandelson, former UK ambassador to the United States, is currently under investigation by the Metropolitan Police concerning an allegation of criminal misconduct in public office.
The allegation centres on evidence that Mandelson passed sensitive, confidential information – received in his capacity as a minister – to Jeffrey Epstein and his associates.
If that is true, then it is, of course, not the first time that ministerial confidences have been breached. However, what makes this case potentially serious is the possibility that the information passed to Epstein was known to be likely to assist Epstein financially and that this favour may have been bound up with a relationship between the men in which Epstein conferred financial benefits on Mandelson.
The offence of misconduct in public office – described by famous legal commentator Sir William Blackstone in 1765 as “a crime of deep malignity” – dates back many centuries. It carries a maximum sentence of life imprisonment. In most cases, a significant prison sentence is imposed on a convicted offender – and there are around 25 to 50 convictions each year. Misconduct in public office is what lawyers call a common law offence. That is to say, it is an offence invented and developed (like the definition of murder) by judges, without parliamentary intervention.
In its modern form, the offence has three main elements. The accused must have been acting in an official capacity at the time of the alleged offence, they must have wilfully misconducted themselves and their conduct must have fallen “so far below acceptable standards that it amounts to an abuse of the public’s trust”.
Prosecutors must be confident that the evidence for these elements points to a reasonable prospect of conviction and separately that there is sufficient public interest in prosecution.
Flickr/UK Parliament, CC BY-NC-ND
A typical case might be one in which a prison officer accepts money for passing information to a prisoner on the whereabouts of the latter’s former criminal associates. Such cases are ones in which the offence operates in a broadly top-down manner: servants of the state entrusted with powers are called to account for the knowing misuse of those powers.
However, the offence can also operate in a more bottom-up manner. Those holding the highest elected or judicial offices can themselves be criminally accountable for misuse of power, if need be, through a private prosecution launched by an ordinary citizen or a pressure group. For example, the MPs in the so-called expenses scandal who knowingly made false claims were convicted of false accounting, but they could all equally have been charged with misconduct in public office.
Corruption in public office?
In Mandelson’s case, there seems to be evidence that while acting in a public capacity as a minister (element one), he wilfully – knowingly – misconducted himself (element two). He must have known that it was wrong to share confidential information with Epstein if he received it in a ministerial capacity.
The key is probably element three: did his wilful misconduct fall so far short of what is expected of a holder of ministerial office as to amount to an abuse of the public’s trust? Misconduct in public office is a serious offence, and so this is a high bar to surmount. Central to the determination of element three will be whether information was wrongly disclosed for a purpose itself involving significant impropriety, such as benefiting a private individual financially.
There is also the possibility that such an improper purpose was also associated with corruption. If the information was disclosed as part of an exchange of favours, that makes the case stronger for saying that there was an abuse of the public’s trust. Corrupt activity has long been equated in law with the abuse of public trust. Proof of both improper purpose and corruption would be very serious indeed.
The lapse of time, and his political disgrace, may have diminished the public interest in prosecuting Mandelson; and it should be noted that public outrage is not the same as public interest. Even so, he would be well advised to find himself a first-rate lawyer.

