By Lauren Kent, CNN
London (CNN) — Andrew Mountbatten-Windsor’s arrest on Thursday marks an extraordinary fall from grace for the former prince – and it all hinges on a notoriously difficult-to-prosecute law that experts have criticized for lacking clarity.
Police arrested Mountbatten-Windsor on suspicion of misconduct in public office, which is a common law offense in England, meaning it was established through prior court decisions rather than legislation. It dates back hundreds of years and carries a maximum sentence of life imprisonment.
Later in the day, Andrew was pictured leaving the police station.
Police have not said what led them to arrest the former prince on suspicion of misconduct in public office, but he previously spent a decade as UK trade envoy starting in 2001. He stepped down in 2011 after coming under fire over his association with convicted sex offender Jeffrey Epstein.
Under English law, the offense concerns “serious wilful abuse or neglect of the power or responsibilities of the public office held,” according to the Crown Prosecution Service, the body that prosecutes criminal cases in England and Wales.
The prosecution guidance sets out four elements required to secure a conviction for misconduct in public office: The person accused must be deemed a public officer, and there has to be a direct link between the misconduct and abuse of their responsibilities.
The offense must also be willfully committed, meaning the official must be found to have deliberately done something wrong “knowing it to be wrong or with reckless indifference.” Finally, it must be committed “without reasonable excuse or justification.”
Legal experts say the offense is complicated and murky to prosecute.
While Mountbatten-Windsor’s brother King Charles has sovereign immunity, making him exempt from criminal prosecution as well as civil lawsuits, there is nothing to prohibit legal action against the former prince or other. members of the royal family.
‘Notoriously difficult’ to define
A report from the Law Commission, which advises the UK government on legal reforms, called it “one of the most notoriously difficult offences to define in England and Wales.”
The current law is “unsatisfactory, not least because it is punishable with up to a life sentence,” the Law Commission report said in 2020. And in recent years, the definition of the offense has become a moving target.
“In the past two decades, a substantial body of case law has refined, and in some cases shifted, the terms of the offence,” the report said. “Increased usage of the offence by police and prosecutors in recent decades has exacerbated the problem.”
Part of the issue is that there is no simple definition of a public officer in modern times, according to the prosecution service’s guidance. It can encompass obvious elected officials – ministers, mayors and members of parliament – but also civil servants, prison staff, army officers, police constables and even bishops of the Church of England.
The current law has also been used to prosecute secondary parties, such as journalists who allegedly encouraged public office holders to leak confidential information – something that the Law Commission said has generated significant controversy.
And following several high-profile cases, “questions have been raised as to how well-equipped the common law offence is