Holding Power to Account: Misconduct in Public Office (MiPO) everything you need to know

The last couple of weeks, have been dominated by one story, the release of the so-called Epstein Files – a massive cache of emails, images, messages from the convicted paedophile Jeffrey Epstein. The messages, mentioning many well-known public figures, range from simple gossip and chat to sharing disgusting images of trafficked and abused women and other forms of criminal activity.

One of these other forms of criminal activity has been the allegations that the former Labour peer and grandee Peter Mandelson and the former Duke of York Prince Andrew, now Andrew Mountbatten Windsor, leaked confidential government briefings to Jeffrey Epstein. Both of these men are being investigated by the police for “Misconduct in Public Office”.

But what is Misconduct in Public Office (MiPO)

In short, we all rely on our elected officials, civil servants, police officers, and public administrators to act with integrity, uphold the law, and serve the public interest. But when our trust is betrayed, when someone in power deliberately abuses their position or wilfully neglects their duty, they commit Misconduct in Public Office.

This criminal offence is the ultimate legal backstop designed to protect the integrity of the state and hold those who wield public power to the highest standards of conduct.

Unlike most criminal offences you might be familiar with, MiPO isn’t written down in an Act of Parliament. It’s a common law offence, one that’s evolved through centuries of court decisions and legal precedent. This makes it both flexible and somewhat complex, as there’s no neat statutory definition to point to.

The classic legal definition comes from the 2003 Attorney-General’s Reference, which describes MiPO as:
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.

And here’s the kicker: the maximum sentence is life imprisonment. This isn’t a slap on the wrist offence, it’s reserved for the most serious forms of abuse of power.

The Four Pillars of the Offence
To understand MiPO, you need to grasp its four essential elements. Think of them as pillars, if any one is missing, the whole structure collapses.

1. The Public Officer Test
First, the person must be a public officer and must have been acting as such when the misconduct occurred. This sounds straightforward, but it’s surprisingly fact-specific.

Public officers can include:
• Police officers and prison officers
• Ministers of the Crown and civil servants
• Local authority officials exercising statutory functions
• Members of the armed forces
• Judicial officers
• MPs and others exercising public functions (depending on the circumstances)

The crucial bit? The misconduct must have a clear connection to their official duties. You can’t be prosecuted for MiPO based on something you did in your personal capacity that just happens to bring your office into disrepute. The wrongdoing must stem from the exercise of, or failure to exercise, your official powers or duties.

2. Wilful Neglect or Wilful Misconduct
The word “wilful” is critical here. It means the conduct must be deliberate, either the official knew what they were doing was wrong, or they were recklessly indifferent to whether it was wrong. Recklessness means being aware of a risk that your conduct is improper but proceeding regardless.

This can take three forms:
• Malfeasance: Doing something you have no power to do
• Misfeasance: Improperly performing an act you do have power to do
• Nonfeasance: Failing to perform a duty you’re required to perform

Whether you act (leaking confidential data, misusing powers) or fail to act (ignoring a duty to intervene), both can constitute MiPO if the other elements are present.

3. The High Threshold: Not Just Any Mistake
Here’s where MiPO distinguishes itself from ordinary incompetence or poor judgment. The misconduct must be so far below acceptable standards as to amount to an abuse of the public’s trust.

This is a deliberately high bar. Courts have repeatedly emphasised that MiPO should be strictly confined to serious cases. We’re not talking about:
• Simple negligence
• Errors in judgment
• Minor policy disagreements
• Administrative mistakes
The essence of the offence is the “affront” to the standing of the public office itself. It’s about conduct that fundamentally undermines what that office represents and the trust the public places in it.

4. No Reasonable Excuse or Justification
Finally, the conduct must lack any legitimate legal or professional justification. If you can show a reasonable excuse for your actions, that you were acting under lawful authority, within statutory discretion, or covered by valid policy, then the offence isn’t made out.

The ‘Following Orders’ Fallacy
Let’s clear up a common misconception: “I was just following orders” is not a defence to MiPO.
Every public officer remains personally responsible for their own conduct. Even if your superior instructed you to do something unlawful or improper, you can still be liable for MiPO if you wilfully go along with it. While the instruction might be relevant to whether you had a “reasonable excuse,” it doesn’t automatically get you off the hook.

This principle is fundamental to our constitutional system. Each person who holds public office bears personal responsibility for upholding the standards of that office.

An Offence of Last Resort
Here’s something important to understand about charging decisions: prosecutors are expected to prefer specific statutory offences over MiPO wherever they apply.

If the conduct fits within the Bribery Act 2010, the Fraud Act 2006, the Data Protection Act 2018, or other specific legislation, those charges should generally be brought instead. Why? Because statutory offences provide clarity, they have defined elements, clear maximum sentences, and established case law.
MiPO is typically reserved for situations where:
• The misconduct doesn’t fit neatly into a statutory offence
• The case involves high-ranking officials
• The conduct fundamentally undermines constitutional principles
• The abuse of position itself is central to the wrongdoing

In other words, MiPO fills the gaps. It’s the catch-all that ensures serious abuse of public office can always be prosecuted, even when more specific laws don’t quite cover the conduct.

The Bottom Line
Misconduct in Public Office represents the law’s commitment to a simple but powerful principle: those who hold public power must be held to the highest standards of integrity.

Yes, the bar is deliberately high. MiPO isn’t meant to criminalise every mistake or policy disagreement. But when a public official wilfully abuses their position or neglects their duty to such a degree that it constitutes a serious betrayal of public trust, the law provides a remedy: and it’s one with serious consequences.

As recent proposals for reform (including the “Hillsborough Law”) demonstrate, there’s ongoing debate about how best to define and enforce accountability for public officials. But the core principle remains unchanged: power comes with responsibility, and when that responsibility is wilfully betrayed, accountability must follow.

Whether you’re a campaigner, a journalist, a concerned citizen, or a public official yourself, understanding MiPO helps ensure that the conversation about official conduct is informed, balanced, and grounded in legal reality rather than speculation.

Because at the end of the day, protecting the integrity of public office isn’t just about punishing wrongdoing: it’s about preserving the foundation of trust on which our entire democratic system depends.