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Articles | Wed 29th May, 2019
Boris Johnson has, once again, hit the headlines. This time, the former Foreign Secretary and Brexit campaigner has been summoned to court, following an application by Mr Marcus Ball, to face three offences alleging misconduct in a public office. The full decisions and reasons, of District Judge Coleman sitting at Westminster Magistrates Court, can be read here.
This is a private prosecution by Mr Ball, supported by a crowd-funding initiative, that states the proposed Defendant, Boris Johnson, is guilty of the common law offence of Misconduct in Public Office (which carries a maximum sentence of life imprisonment).
The Prosecution state that whilst Mayor of London, and then later when a Member of Parliament, Mr Johnson “repeatedly lied and misled the British public as to the cost of EU membership, expressly stating, endorsing or inferring that the cost of EU membership was £350 million per week”. Such statements, the Prosecution contend, require a criminal sanction in law because “lying on a national and international platform undermines public confidence in politics, undermines the integrity of public referendums and brings both public offices held by the proposed Defendant into disrepute”.
A public hearing was held at Westminster Magistrates Court on 23rd May 2019 to hear oral representations as to whether a summons should be granted. This is an unusual occurrence. Criminal Procedure Rule 7.2 (12) directs that the court may determine an application to issue a summons without a hearing, or in a private hearing unless the court otherwise directs.
In this case, DJ Coleman stated that ‘this is an unusual and exceptional application with a considerable public interest and because there was already a great deal of publicity in the public domain about the application being made, I believed that the principles of open justice required that the application be in open court”. Similar reasons were given for the publishing of written reasons (which would not normally be the case in such applications) and the lack of reporting restrictions, despite such an application made by Counsel on behalf of Mr Johnson.
In terms of the substantive application, the test before the court was set out by Lord Widgery CJ in R v West London Metropolitan Stipendiary Magistrate, ex parte Klahn  WLR 933:
“The magistrate must be able to satisfy himself that it is a proper case in which to issue a summons”
The general principle is that a summons ought to be issued pursuant to properly laid information unless there are compelling reasons not to do so, most obviously an abuse of process or impropriety is involved, or whether it would be vexatious to issue a summons, in other words whether there is the presence of an improper ulterior purpose and/or long delay.
Factors to be considered were set out by Lord Widgery CJ in Klahn:
– The allegation is an offence known to law;
– the essential ingredients of that offence are prima facie present. These ingredients are (Attorney General’s Reference (Number 3 of 2003)  EWCA Crim 868):
o A public officer acting as such;
o wilfully neglects to perform his duty/or wilfully misconducts himself;
o to such a degree as to amount to an abuse of the public’s trust in the officeholder;
o does so without reasonable excuse or justification.
– The offence alleged is not out of time;
– The court has jurisdiction;
– The informant has the necessary authority to prosecute;
– Whether the allegation is vexatious;
– The court must then consider all the circumstances.
The Defendant argued that the application was “brought for political purposes” and is a “(political) stunt”, its true purpose being “not that it should succeed, but that it should be made at all”. In written submissions, Counsel for Mr Johnson stated:
“The application represents an attempt, for the first time in English legal history, to employ the criminal law to regulate the content and quality of political debate”
More specifically, he argued that the alleged facts do not constitute the ingredients of the offence. Written submissions stated:
“The misconduct offence depends upon proof of the serious abuse of the powers of the office (or a grave failure to exercise them at all). The nature of the alleged misconduct and the context of it are far from the scope of this offence.”
Essentially, the Defendant submitted that political campaigning was not a function of the “public office” and therefore the prosecution is bound to fail. Whilst accepting he was a holder of such a public office, he was not “acting as such” when campaigning for Brexit.
Was the proposed Defendant acting as a holder of a public office when making the relevant statements about the financial benefits of leaving the European Union?
It was noted by the Prosecution that the proposed Defendant signed off several letters supporting the case for leaving the EU in his official capacity as Mayor of London. It was also submitted that “improper use of the opportunity afforded by a public office” would be covered by the offence, as suggested in a Law Commission paper from 2016 (although the Judge stated this was not the Prosecution’s strongest point).
The proposed Defendant made the following key submissions:
– Electoral or referendum campaigning is not the fulfilment of one of the responsibilities of Government. Indeed, government does not participate in general elections or referendum campaigns.
– Case law illustrates that the “gist of the misconduct offence” is the exploiting of official powers of the office for corrupt private advantage.
– The allegation is that Vote Leave and the proposed Defendant specifically “twisted or misrepresented public statistics to make a political point”. The alleged misconduct “has, in truth, nothing to do with the discharge of [the] offices”.
On this critical point, the judgment concludes:
“I consider that the defence arguments [on this issue] are trial issues to be determined following service of all the evidence.”
The argument as to whether the alleged misconduct would amount to the proposed Defendant “wilfully neglecting to perform his duty/or wilfully misconducting himself” repeated much of the dispute, above, as to whether the duties were performed in public office and therefore could be said to be duties that were wilfully neglected. The proposed Defendant did emphasise that no referral had been made by the Prosecution to the Parliamentary Commissioner for Standards or the Greater London Authority.
The Judge concluded that “I am satisfied there is sufficient [evidence] to establish prima facie evidence of an issue to be determined at trial of this aspect. I consider the arguments put forward on behalf of the proposed Defendant to be trial issues”.
Finally, and contrary to the submissions made on behalf of the Defendant, the Judge found that the application was not vexatious. In perhaps the most controversial part of the judgment, the Judge concluded:
“I accept the Defence submission that when the Applicant commenced his consideration of whether to bring a private prosecution against the proposed Defendant, some three years ago, there may have been a political purpose to these proceedings. However, the information for the summons was laid on the 28th February 2019 and that argument in my view is no long pertinent.”
It may be surprising to observers, considering all the circumstances, that the court appears to find that the issue of Brexit, and the Vote Leave campaign, is no longer as politically explosive as it was three years ago.
Further, the Judge appears to have found many of the issues relevant to the application should be determined at trial. Some observers may contend that further clarity is required, by the courts or indeed by the legislature, as to the hurdles for an application for a court summons. As this case shows, in these circumstances, the courts do not apparently have to undertake the same assessment as to the prospects of success for the prosecution, as would be undertaken by the CPS in a traditional prosecution (such as the ‘threshold test’).
This very prominent case is likely to shine a light on the issue of private prosecutions and the common law offence of Misconduct in a Public Office with fresh arguments for legal reform made thereafter.