In The Great Gatsby, the most evocative account of the excesses of capitalism in the Jazz Age, F Scott Fitzgerald dramatised disaster with the image of a body floating in a swimming pool. The victim of the pursuit of fame and glamour was Jay Gatsby himself, the parvenu whose money had briefly bought him a place in a high society devoted to ostentatious display. But in our own age of excess, it is not the hosts of the parties who are the tragic figures. It is the victims who barely even counted as guests: the girls trafficked to men for sex.
It is important to insist on this point, as the scandal which began with the egregious sex offender Jeffrey Epstein continues to ramify across the elites in the United States, the UK and elsewhere. A true reckoning must come through the justice system and that requires a prosecutable offence for which an individual can be indicted. In Britain, home to the most high-profile arrests yet following the release of the latest tranche of Epstein files by the US Department of Justice, that offence looks as though it may be misconduct in public office.
Both Andrew Mountbatten-Windsor, the former duke of York, and Peter Mandelson, the former cabinet minister and British ambassador to the US, have been arrested and questioned under suspicion of this crime. Newly released emails indicate that Mountbatten-Windsor shared confidential information with Epstein while serving as trade envoy. Mandelson’s arrest, meanwhile, followed emails appearing to show that he, at the time business secretary in Gordon Brown’s government, had forwarded market-sensitive information, also to Epstein. Both have denied wrongdoing.
Misconduct in public office is a serious allegation carrying a maximum sentence of life imprisonment. The high threshold of evidence required makes it notoriously difficult to prove, however. To secure a conviction, the prosecution has to show beyond reasonable doubt that the defendant was acting as a public officer; that their act was deliberate rather than merely negligent; that the wrongdoing was criminal rather than just a breach of professional propriety; and that there is no reasonable mitigation.
Very probably, the victims of Epstein will never see justice. All the more reason to honour them
The law derives in large part from a 1783 judgement against Charles Bembridge, a government accountant who was convicted of knowingly cooking the books. Since then, the common law precedent has been used, but rarely—on 72 occasions, according to research by the Law Commission, mostly against prison and police officers. Indeed, the law is due to lapse. In 2020, the Law Commission suggested it be recast, because it “lacks clarity and precision” (at one point the offence was being used to pursue journalists accused of paying public officials for stories). Keir Starmer’s government is now enacting that plan, meaning that the cases of Mountbatten-Windsor and Mandelson, if they ever get that far, may well be the last ever brought under this law. There may be a parallel process to remove Mountbatten-Windsor from the legal line of succession of the British monarchy and, if he is found guilty, that would be appropriate.
Neither instance, though, should be allowed to detract from the central point of the Epstein affair, which is the perpetration of systematic abuse of women and girls. There is an echo here, in the use of misconduct in public office to question Andrew, of sending Al Capone down for tax evasion. (It should be said that there has been no suspicion Mandelson engaged in the abuse.) Indeed, it will be difficult to win prosecutions on cases of sexual abuse from many years ago. Very probably, the victims of Epstein and his associates will never see justice for those crimes. All the more reason, then, as the legal process winds down another path, that those people are honoured and remembered.
