What is Misconduct in Public Office? And the US Supreme Court Bites Back
Double Jeopardy - UK Law and PoliticsShow Notes
Is Misconduct in Public Office “one of the most notoriously difficult offences to define in England and Wales” as the Law Commission observed in its 2020 Report into the history of the offence? And what reforms are needed for it to satisfy 21st century requirements of legal certainty according to the Commission’s conclusions ?
To answer these and other questions, Ken Macdonald KC and Tim Owen KC are joined by the former Criminal Law Commissioner and distinguished Professor of Criminal Law, Jeremy Horder, who, in addition to being the current editor of Ashworth’s Principles of Criminal Law, is also the author of the leading academic text on misconduct in public office (https://academic.oup.com/book/2405/chapter-abstract/142612568?redirectedFrom=fulltext)
The trio analyse the elements of the offence and its 18th century origins, debate the risk of the offence being seen to be a “political” weapon in a prosecutor’s armoury and reflect on how the charge has frequently been deployed in Hong Kong against holders of low and high office alike (see for example) https://legalref.judiciary.hk/lrs/common/ju/loadPdf.jsp?url=https://legalref.judiciary.hk/doc/judg/word/vetted/other/en/2023/CACC000168B_2023.docx&mobile=N
This episode was recorded on 24/2/26 before the announcement of the arrest of Peter Mandelson on suspicion of misconduct in public office.
In anticipation of the announcement by Justice Secretary David Lammy of the government’s legislative plans to tackle the Crown Court backlog, Ken and Tim repeat their invitation to Courts Minister Sarah Sackman MP to join them on Double Jeopardy to debate the controversial plan to abolish the right to trial by jury for a vast array of crimes and for her to explain why she believes the reforms are justified as a matter of principle and can fairly be retrospective in effect.
Finally, they reflect on the US Supreme Court’s 6-3 ruling in Learning Resources, Inc v Trump (https://www.supremecourt.gov/opinions/25pdf/24-1287_4gcj.pdf), the Tariffs case which appears to show that even for hitherto avowed Trump loyalist Judges there are Executive Orders they won’t countenance.
Covering the critical intersections of politics and law in the UK with expert commentary on high-profile legal cases, political controversies, prisons and sentencing, human rights law, current political events and the shifting landscape of justice and democracy. With in-depth discussions and influential guests, Double Jeopardy is the podcast that uncovers the forces shaping Britain's legal and political future.
What happens when politics and law collide? How do politics shape the law - and when does the law push back? What happens when judicial independence is tested, human rights come under attack, or freedom of expression is challenged? And who really holds power in Britain's legal and political system? Get answers to questions like these weekly on Wednesdays.
Double Jeopardy is presented by Ken Macdonald KC, former Director of Public Prosecutions, and Tim Owen KC, as they break down the legal and political issues in Britain. From high-profile legal cases to the evolving state of British democracy, Double Jeopardy offers expert legal commentary on the most pressing topics in UK law, politics, and human rights.
Ken Macdonald KC served as Director of Public Prosecutions from 2003-2008, shaping modern prosecutorial policy and advocating for the rule of law. He is a former Warden of Wadham College, Oxford, a crossbench member of the House of Lords, and a leading writer, commentator and broadcaster on politics and the rule of law.
Tim Owen KC has been involved in many of the most significant public, criminal and human rights law cases over the past four decades. Both bring unparalleled experience from the frontline of Britain's legal and political landscape.
If you like The Rest Is Politics, Talking Politics, Law Pod UK and Today in Focus, you'll love Double Jeopardy. Learn more about your ad choices.
More from Double Jeopardy - UK Law and Politics
On Double Jeopardy, Ken Macdonald KC and Tim Owen KC discuss the announcement on Friday 16th October that the Government had reached an out-of-court settlement with Sir Oliver (Olly) Robbins following his summary dismissal last April by former PM Keir Starmer as the permanent under secretary at the Foreign, Commonwealth and Development Office, Head of the Diplomatic Service and the FCDO’s statutory Accounting Officer. According to The Guardian, the settlement included a six-figure sum by way of damages for Robbins’s unlawful dismissal.
Last week’s ruling quashing the search warrants executed on 19th February 2026 at the homes of Andrew Mountbatten-Windsor at Sandringham and Royal Lodge in the context of the investigation into alleged offences of misconduct in public office was a major embarrassment for Thames Valley Police. The police accepted that the warrants had been unlawfully issued but who was to blame for the fact that the wrong section of the Police and Criminal Evidence Act 1984 was relied on? Thames Valley police claim that “the court was presented with all the necessary information and paperwork”, giving the impression that the error lay with the Judge who issued the warrants at the Old Bailey but the public reasons given by Mr Justice Hilliard (who was not the issuing Judge) did not seek to allocate blame. And despite the admitted illegality, does the law permit the police to retain the seized material if it is relevant to their continuing investigation?
The Conversion Practices Bill was formally announced in the King's Speech in July and confirmed Labour's Manifesto commitment to introduce into UK law a full, trans-inclusive ban on abusive "conversion practices" intended to change or suppress someone's sexual orientation as well as their transgender identity. The short, six-clause Bill was published in draft form on 25th June and is due to commence pre-legislative scrutiny later this month by a Joint Committee of both Houses of Parliament.
At a High Court hearing on 18th September before the Lady Chief Justice, the President of the King's Bench Division and Lord Justice Chamberlain, the Security Service (MI5) accepted that it gave evidence based on lies to three courts and that senior MI5 officers were repeatedly dishonest while seeking to defend a violent neo-Nazi agent identified as Agent X whose alleged abuse of two women was uncovered by the BBC.
The publication of Lady Justice Thirlwall’s Report of the Public Inquiry into the Events at the Countess of Chester Hospital 2015-2018 (https://thirlwall.public-inquiry.uk/the-report/#Summary-report-on-report-page) has reignited the sharply divided – and almost entirely uninformed - public debate about the safety of Lucy Letby’s convictions on 7 counts of murdering, and 8 counts of attempting to murder, new born babies in the hospital’s neo-natal unit between June 2015 and June 2016.