What is Misconduct in Public Office? And the US Supreme Court Bites Back

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.

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