The Case for Charging Peter Mandelson With Misconduct in Public Office

At a time when we are able to watch with growing alarm, the terrifyingly fast descent of America into authoritarian chaos, it has become apparent that there are now only two things that we can realistically demand and expect from our own Government: first, that they uphold and operate within a fair, objective and coherent system of law; and second, that they do not dismantle the structures of open democracy and our powers to hold them to account.

Everything else: economic performance, education policy, a health service, even national defence are so subject to the vagaries of geo-politics, international financial markets and the egos of superpowers and their leaders, that we can only hope rather than expect our politicians to deliver public policy success. 

This growing realisation is why the relationship between Lord Peter Mandelson and Jeffrey Epstein is so significant that it can’t be left to be overwhelmed and forgotten by the furore of the next inevitable scandal or crisis. 

So what do we know? Firstly, it appears that Mandelson and Epstein had a close and mutually beneficial relationship, which existed during the time when Mandelson was an MP and Cabinet Minister in the governments of both Tony Blair and Gordon Brown. 

It further appears that during this period, Epstein was receiving information from Mandelson about, among other things, the potential sale of British assets, the bailing out of the Euro and the best way to apply ‘mild threat’ on the Chancellor of the Exchequer, Alistair Darling, about the issue of Banker’s Bonuses, of which Epstein and his billionaire banker clients were vehemently opposed. 

Without doubt, information provided during the height of the global financial crisis by a senior Member of the British Government, will have been operationally beneficial to a hedge fund manager, international financier and broker like Jeffrey Epstein. Without doubt, Mandelson will have known this when he was sending this information. 

In return, it appears that Mandelson received benefit from the relationship in the form of cash, with an allegation that he received £75k from Epstein as well as his husband being gifted money to fund a college course. 

That this all stinks is beyond debate; that it will increase the public’s already sky-high scepticism about probity amongst our political classes is, again beyond debate. 

But, in this case, it may not be enough for the Government, to simply condemn Mandelson then wring its hands and promise to ‘clean up’ public life. Instead it is time for them to uphold the law, and consider the introduction of other laws that may more robustly reestablish honesty and transparency in public life. 

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Misfeasance

Misfeasance or Misconduct in a Public Office, is a common law offence in the UK that is not routinely deployed. Indeed, in my career as a criminal barrister most of the misfeasance cases I have conducted have concerned councillors or candidates failing to follow the rules of the Representations of the People Act. More often than not, senior politicians seem to be able to avoid charges of misconduct, due to the difficulty in adequately defining the offence, as the definition is so vague that it becomes a charge that is difficult to prosecute and easy to defend. 

The actual elements of the offence that need to be proved, were set out in an Attorney General’s Reference in 2003, which stated that the offence is made out if: ‘a public officer acting as such, wilfully neglects to perform their duty and/or wilfully misconducts themselves, to such a degree as to amount to an abuse of the public’s trust in the office holder  without reasonable excuse or justification. ;

Working through those four ingredients with reference to Mandelson, it can be argued that each of them is more than arguable. First, was he a public officer acting as such? It would be impossible to argue against this as he was a cabinet member dealing with sensitive cabinet reports and information. Second, did he wilfully misconduct himself – which is an objective test – well, I predict that this question would be answered in the affirmative by most of us. Third, would this amount to an abuse of the public’s trust, again, a question which I would confidently put before a jury in the expectation that they would be sure he did; and finally, did he act without reasonable excuse or justification, again, there does not seem to be an obviously reasonable excuse or justification to furnish an international financier and convicted felon with market sensitive information from the Cabinet table. 

Of course, a thorough police investigation may prove me wrong. However, if the evidence is as it appears to be upon perusal of the Epstein files, then it seems that there is a prima facie case for Mandelson to answer. Whilst the current lack of confidence that is felt by the general public towards politicians means that the public interest argument for prosecuting Mandelson would be overwhelming.  

I have long believed that the gradual decay in concept of honesty and truth in politics needs to be addressed. That politicians can lie and mislead with impunity has gone from being an annoying but acceptable part of the dark arts of politics to something much more sinister that is now actively contributing to the creation of a political culture where racism and extremism can flourish, countries can be threatened and even attacked and acts of national self-harm such as Brexit are achieved on the back of debate which had little to do with truth, facts and analysis and everything to do with lies that serve only the agenda of the liar. 

If the state is going to genuinely regain the trust of the public, then people like Mandelson must be investigated and held to account. Meanwhile, the law makers must surely turn their attention to putting into place a law that would criminalise the wanton and wilful use of misinformation in elections and public office, so that in an uncertain world dominated by immensely wealthy charlatans who are peddling lies and untruth in an industrial scale, we might at least be confident that what we hear from the mouths of the people we elect or who seek election is true.