Andrew Mountbatten-Windsor, who was arrested on Thursday, is being investigated for accusations of misconduct in public office, an offense that carries a maximum sentence of life imprisonment.
Under British law, police generally cannot hold suspects for more than 24 hours without charging them. A court can grant an extension for a maximum of 96 hours.
The guidance to British prosecutors about the offense says that misconduct in public office is committed when a public officer “willfully neglects to perform their duty” or “willfully misconducts themselves” in a way that abuses the public’s trust. The crime is so old that it is not contained in any statute and instead derives from Britain’s common law, meaning that it has evolved through hundreds of years of prosecutions and judicial decisions.
No case has ever tested whether a member of Britain’s royal family could be considered a public officer. From 2001 to 2011, Mountbatten-Windsor, who is the brother of King Charles III and at the time was Prince Andrew, served as the British government’s trade envoy, and he was previously an officer in the Royal Navy.
There is no definition in law of a public officer, and cases are assessed individually. Past prosecutions have included elected officials, government staff and members of the armed forces. They have covered a variety of actions, including improperly sharing information gained through official roles.
For the action to be willful, someone has to have known it to be wrong or to have had “reckless indifference as to whether it is wrong or not,” according to the guidance to prosecutors. Prosecutors also assess the seriousness of the conduct, by looking at factors including consequences, conflicts of interest and personal gain.
After an arrest, the initial period in police custody is typically used to conduct interviews with suspects, who are entitled to a lawyer. Investigations often continue after people are released.
If the police believe an offense has been committed, they send a file of evidence to the Crown Prosecution Service, which brings charges if it decides there is a realistic prospect of conviction and the case is in the public interest.
Although the royal family has no involvement in prosecutions, all criminal cases in Britain are brought in the name of the monarch and formally listed as “Rex” — meaning the king — versus the defendant. That means that if Mr. Mountbatten-Windsor is prosecuted, it will be in his brother’s name.
After Mr. Mountbatten-Windsor’s arrest, the Thames Valley Police issued a warning about laws in Britain that restrict what can be published before a potential criminal trial. The statement said that because the case was now legally active, “care should be taken with any publication to avoid being in contempt of court.”
That is a reference to a 1981 law that forbids publishing material that creates a “substantial risk” that the course of justice would be “seriously impeded or prejudiced.” It is intended to keep a jury from being influenced. It applies to members of the public as well as journalists, and it covers public communications in any form.
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