Andrew Mountbatten-Windsor’s arrest sets up the extraordinary possibility of a senior member of the British royal family standing trial at the Crown Court in a prosecution brought in the name of his brother, King Charles III.
The former prince was held in police custody on Thursday after officers investigating his links with the sex offender Jeffrey Epstein arrested him on suspicion of misconduct in public office.
Mountbatten-Windsor has denied wrongdoing over his links to Epstein. No charges have been brought.
What is the historical precedent?
In essence, none, at least not in the modern era.
In the 1640s, during the English Civil War, King Charles I was taken into custody by the Roundheads, although this was not at all akin to the modern-day concept.
Before he was beheaded, Charles I refused to enter a plea, asserting the divine right of Kings. That concept lives on in the doctrine of “sovereign immunity”, protecting the monarch from prosecution or civil proceedings.
As the developments on Thursday show, however, such immunity does not apply to the sovereign’s relatives. “The law must take its course,” the King said in a statement following Mountbatten-Windsor’s arrest.
If he is ever convicted, Mountbatten-Windsor would not be the first royal in modern times to earn a criminal record.
Princess Anne, the King’s sister, pleaded guilty in 2002 to a charge that one of her dogs attacked two children in Windsor. She also received a speeding fine the previous year.
The Princess Royal appeared in the dock at Slough Magistrates’ Court under the Dangerous Dogs Act but was not arrested. The suspected offence for which Mountbatten-Windsor has been arrested is of a different magnitude.
For what has Mountbatten-Windsor been arrested?
Thames Valley Police arrested Mountbatten-Windsor at his home in Sandringham, an estate owned by the King, for the common-law offence of misconduct in public office.
It carries a maximum sentence of life imprisonment and is the same alleged offence for which veteran Labour politician Lord Peter Mandelson is under police investigation, also over links to Epstein.
Unlike Mountbatten-Windsor, Mandelson has not been arrested.
Misconduct in public office has not been defined by statute. Rather it has been developed by judges over the centuries.
It has been criticised by the Law Commission, a statutory independent body, which said in a 2020 review that it was “notoriously difficult” to define and used as a “catch-all” offence.
Prosecutors must overcome four hurdles to secure a conviction.
The first is that the suspect must have been acting in their capacity as a public officer at the time of the alleged misconduct. In contrast to the case of Mandelson, who would appear to meet that definition, it is unclear whether being a working royal constitutes holding a public office.
The then-Prince Andrew was appointed a special representative for UK Trade & Investment in 2001, following his departure from the Royal Navy. But the role was unpaid and no formal letter confirming the appointment or its terms has ever been made public.
He nevertheless received substantial expenses, which parliament heard in May 2011 had at that point amounted to £4mn over more than nine years.
Mountbatten-Windsor also remained a working member of the royal family until 2019. In 2013, when he was a working royal but not trade representative, he sought to strike a deal with Cantor Fitzgerald to be paid for introducing clients to the US investment bank, according to documents published by the US Department of Justice.
Prosecutors pursuing misconduct in public office charges need to demonstrate that the suspect acted “wilfully” — they deliberately did something wrong or were indifferent to the consequences — and show there was no reasonable excuse.
Lawyers said the biggest barrier for prosecutors bringing such cases was typically the need to demonstrate that the alleged misconduct amounted to an “abuse of the public’s trust”.
For constitutional experts, this aspect of the suspected offence made Mountbatten-Windsor’s arrest on his 66th birthday all the more striking.
“What makes this particularly shocking is the offence he’s been arrested for,” said Dr Craig Prescott, a specialist in UK constitutional law at Royal Holloway, University of London. “The idea of the brother of the King working against the public interest is really unthinkable in a constitutional context.”
What now for Mountbatten-Windsor — and what next?
Lawyers said they expected Mountbatten-Windsor to be interviewed at a police station under caution. The interview will be audio-recorded and it could also be filmed.
The questioning could last anything from a few minutes to a series of longer interviews through the day. Police would be expected to tell Mountbatten-Windsor what he is suspected of, and put at least some evidence to him.
He would decide whether to answer their questions, give a prepared statement, or reply “no comment”.
Professor Robert Hazell, founder of the Constitution Unit at University College London, said: “Andrew has the same rights and responsibilities as any other citizen. So he will have the right to be accompanied by a lawyer, and to remain silent if his lawyer advises him to do so.”
Andrew Gilmore, partner at law firm Grosvenor Law, said he did not think fingerprints, DNA samples or mugshots would be required. “He’s not going to do a runner.”
Following the interview, Mountbatten-Windsor is expected to be either bailed — requiring him to report to the police at a later date, or possibly meet other conditions — or released under investigation.
Any continued investigation could well take several weeks or months.
The Crown Prosecution Service, which operates in England and Wales, applies a two-part test in deciding whether to prosecute: whether there is sufficient evidence to provide a reasonable prospect of conviction, and whether it would be in the public interest to bring charges.
Police have powers to hold Mountbatten-Windsor for 24 hours initially, which could be extended. But several lawyers said they would be surprised if he was held overnight.
“I’d expect him to be released the same day,” said Marcus Johnstone, managing director of PCD Solicitors.
While Mountbatten-Windsor was arrested on suspicion of misconduct in public office, Gilmore said the CPS was “at liberty to be able to charge for other offences” depending on the evidence.
Thames Valley Police — which covers Windsor, where Mountbatten-Windsor until recently lived — has said it is assessing information from a US lawyer representing a woman claiming to have been trafficked to the UK to have sex with him in 2010.
Awkwardly for both the former prince and the King, any prosecution would be rich in symbolism. The case would be expected to be officially cited as R v Andrew Mountbatten-Windsor. R stands for “Rex”, which is Latin for “king”.
Misconduct in public office is an indictable-only offence, meaning it would be tried in the Crown Court, where the royal coat of arms is displayed prominently behind the bench.
Are there any constitutional implications?
Although King Charles last year stripped his brother of the right to be called a prince and his other titles, Mountbatten-Windsor remains eighth in line to the throne and a counsellor of state. He could theoretically step in in the event the King were incapacitated.
Prescott said Mountbatten-Windsor’s arrest — and any conviction — could add “impetus” to calls to remove him from the line of succession. That requires an act of parliament, and 14 other nations need to agree, he said.
Royal watchers said they would be surprised if the arrest dented public support for the monarchy substantially.
Hazell at University College London said: “Previous polling suggests that the public can clearly distinguish their support for an individual, and for the institution.
“Andrew’s approval ratings were minus 92 per cent. Support for the UK continuing as a monarchy was above 60 per cent.”
However, polling released on Thursday suggested the Epstein revelations about Mountbatten-Windsor might be having some effect on the public mood.
The share of Britons who said it would be worse for the country if the monarchy were abolished had dropped to 37 per cent this month from 47 per cent as recently as November, research company Ipsos said.
The proportion of respondents saying that King Charles was doing a good job declined from 54 per cent to 46 per cent in the same period.