Misconduct in
Public Office Explained

Not every professional mistake or failure of policy attracts a criminal charge. To be "wilful," the conduct must be deliberate wrongdoing or deliberate neglect of duty. Prosecutors must distinguish between:

In the context of the UK constitution and common law, the application of "Misconduct in Public Office" to senior public figures is governed by the status of their role rather than their title. To determine if an investigation can proceed, police and the Crown Prosecution Service (CPS) focus on three core constitutional pillars:

Constitutional Status & Immunity

The principle of Sovereign Immunity means that the monarch cannot be subject to criminal or civil proceedings. This immunity is personal and absolute, stemming from the historical position that the courts operate in the name of the Crown. In modern constitutional practice, this is reflected in the maxim that "the King can do no wrong," which ensures that the executive functions of the state are not brought to a standstill by personal litigation against the head of state.

Crucially, this immunity does not extend to other members of the Royal Family. Legally, they are considered subjects of the Crown and are subject to the jurisdiction of the courts. While their status may attract specific security or administrative protocols during an investigation, the legal threshold for criminal liability remains identical to that of any other citizen. This distinction is vital for maintaining the rule of law within a constitutional monarchy, ensuring that title does not equate to legal impunity.

Defining "Public Office" in Common Law

The common law definition of a "public office" is functional rather than formal. As established in landmark rulings such as R v Whitaker [1914], a public officer is someone who is appointed to discharge a public duty and receives a compensation for the same, or someone who performs a public function in which the public have a direct interest.

For members of the Royal Family, the question often pivots on whether their ceremonial or representative roles involve the exercise of a discretionary power given by the state for the benefit of the public. If a role is purely social or ceremonial without statutory or executive duty, it may not satisfy the "public office" requirement for this specific criminal charge. This is why Misconduct in Public Office is rarely the appropriate legal framework for investigating private conduct, even when that conduct involves a person of significant public standing.

Distinction Between Accountability & Liability

A common point of confusion in high-profile cases is the difference between political accountability and criminal liability. Public figures are often subject to intense scrutiny regarding their conduct and choices. However, for a criminal investigation into Misconduct in Public Office to be launched, the conduct must move beyond being "unpopular" or "controversial."

The law requires proof of "wilful misconduct," which means the individual knew their conduct was wrong or was recklessly indifferent to the consequences. In cases involving allegations of a personal nature — such as sexual offences, fraud, or conspiracy — "Misconduct in Public Office" is rarely the relevant charge. These are distinct criminal offences with their own statutory definitions. For example, a fraud charge focuses on personal gain through deception, whereas Misconduct in Public Office focuses specifically on the breach of an official duty.

The Investigation Process for Senior Figures

When allegations are made against senior public figures, the police investigation must remain strictly evidence-based and free from political influence. This is known as operational independence. For cases involving extreme public interest, police forces often appoint an external Chief Constable or use specialized units to ensure absolute transparency and prevent any perception of bias.

The decision to charge is made by the CPS under the Full Code Test, which requires clear evidence of a realistic prospect of conviction. Title does not determine criminal liability; legal status and conduct do. If a public figure is investigated, the protocol follows the same trajectory as a police officer or civil servant: evidence gathering, interview under caution, and an independent review of the evidence by specialised CPS units who have no geographic or political ties to the case.

Ultimately, Misconduct in Public Office is a tool for regulating the exercise of state power. Its application to the Royal Family is limited by the strict definition of what constitutes an "official act" within a public office. Where conduct falls outside of those official duties, the standard criminal law applies without exception.