Guest post by Laura Hoyano: Terminology does matter: ‘believe the victim’, investigative mindsets and unlearned lessons from miscarriages of justice

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I am delighted to host this guest blogpost by Laura Hoyano, a barrister and Senior Research Fellow at Wadham College, Oxford.

 

On 18 December 2014, Detective Superintendent McDonald of the Metropolitan Police (MPS) declared to the media that ‘Nick’ had made “credible and true” allegations of child murder and horrific abuse against a deceased Prime Minister, current and former MPs, Peers, a Home Secretary, Heads of MI5 and MI6, and a D-Day hero and head of the armed forces. On 22 July 2019, ‘Nick’, now named as Carl Beech, was convicted of 12 counts of perverting the course of justice and one count of fraud, and sentenced to 18 years’ imprisonment. Irreparable damage was done to those wrongly accused and subjected to a deeply flawed investigation. As more of the unredacted review of Operation Midland of retired High Court Judge Sir Richard Henriques has been published, we know more about how this débacle came about. But have the lessons been learned?

This description of ‘Nick’s’ complaints was planned (Henriques [2.4.9]). DSU McDonald made his declaration without having read any of his interviews or blogs ([2.4.9 response to MPS]), which showed “gross inconsistency” ([2.4.14]).

 

The genesis of the “belief” directive

McDonald justified it on the basis of MPS Special Notice 11/02 “Principles of the Investigation of Rape and Serious Sexual Assault”: “It is the policy of the Metropolitan Police to accept any allegation made by any victim [sic] in the first instance as being truthful. An allegation will only be considered as falling short of a substantiated allegation after a full and thorough investigation.” [quoted by Henriques [1.21]).

The 2002 Notice was issued against a background of justified concern about the high number of sexual assault allegations being ‘no-crimed’ with little or no investigation. A 2014 Report by Her Majesty’s Inspectorate of Constabulary found that of the 1,077 reviewed decisions to ‘no-crime’ a reported rape, 220 were incorrect; in the worst forces, more than two-fifths of rape no-crime decisions were wrong ([7.70]-[7.71]). HMIC recommended that for recording all forms of reported crime – notwithstanding that only 6% of errors could be attributed to the ‘victim’ not being believed ([7.75)] —  the “presumption that the victim should always be believed should be institutionalised” ([1.31]).

 

Recording and investigating rules become conflated

Guidance for Operation Hydrant (Nov 2015), a hub which co-ordinates the investigations of non-recent sexual abuse allegations against other prominent persons and institutions in England & Wales, stated that “[t]he focus of the investigation is on proving or disproving the allegation against the suspect, and not on the credibility of the victim. Investigators will need to consider issues relative to the victim’s credibility but this should not be the primary focus of the investigation.” This injunction is contradictory, and even non-sensical when the only evidence is an accusation and a denial. The guidance was republished in this form in Nov 2016, after Henriques; it is under review, but only in Sept 2019.

 

Henriques’ demolition of the ‘belief’ directive

Henriques provided a devastating critique of the ingrained terminology of victimhood and belief which tainted the police’s approach to ‘Nick’ during Operation Midland [para 1.23]: “a starting point that eliminates doubt has the hallmark of bias”, striking at the very core of the criminal justice process, which “has and will generate miscarriages of justice on a considerable scale” ([1.30], [1.31]). He found “plain evidence” that “an instruction to believe complainants has over ridden [sic] a duty to investigate cases objectively and effectively” ([1.25]), and that “a major contributing factor” in the many police failures in Operation Midland was the “culture that ‘victims’ must be believed” ([2.3.8.58]).

 

Responses to the Henriques Review

The College of Policing commissioned from Assistant Commissioner Beckley (MPS) a comprehensive and thoughtful Review into the Terminology “Victim/Complainant” and Believing Victims at the Time of Reporting(Feb 2018).  AC Beckley observed that “[i]t is not at all surprising that, for officers and staff, “believe” and “belief” has leaked into the wider investigative environment” ([8.4]), and concluded that “maintaining a stance involving believing victim accounts, however limited, has potential to undermine the legitimacy of the process” ([8.6]).  The result was a clear recommendation from the College of Policing that whilst the term ‘victim’ should be retained, the  Home Office should amend the crime recording counting rules to remove the words “The intention is that victims are believed” to be replaced by “The intention is that victims can be confident they will be listened to and their crime taken seriously”. Training materials would then be reviewed to provide guidance on “how accounts (including initial accounts) can be clarified, tested and appropriately challenged in the most supportive and explanatory way possible” ([Beckley [8.10], [8.12]).

The Home Office rejected this considered view in September 2019, retaining the controversial wording in the Crime Recording General Rules whilst adding (in italics):

“The Standard directs victim focused approach to crime recording. The intention is that victims are believed and benefit from statutory entitlements…. This seeks to ensure that those reporting crimes will be treated with empathy and their allegations will be taken seriously. Any investigation which follows is then taken forward with open mind to establish the truth.”

The diktat to ‘believe the victim’ appears throughout the Standard as a “presumption”, eg paras 3.2, 3.5, 3.8.

The 2019 edition of the draft guidance for Operation Hydrant repeats this advice to Senior Investigating Officers, claiming, rather anxiously, that it is “entirely consistent with the approach that should be taken at the outset of an investigation into non-recent child sexual abuse and acknowledges the need to gather all evidence, both towards and away from the allegation” ([1.2.3]).

So the inherent logical contradiction criticised by Henriques is now entrenched in this ‘two phase’ approach: how can an officer be required to “believe” the complainant, and then suddenly become objective and impartial in interviewing the suspect ([1.25])?

“Any policy involving belief of one party necessarily involves disbelief of the other party. That cannot be a fair system… That is a simple reversal of the burden of proof.” ([1.26], [1.27]) “The instruction foisted upon investigators to believe a ‘victim’ perverts our system of justice and attempts to impose upon a thinking investigator an artificial and false state of mind. If a judge were to direct a Jury to believe a complainant during evidence in chief, and only to question credibility thereafter, it would constitute a most  serious misdirection.” ([1.32]).

 

Rhetoric snags on legal duties

Moreover, the ‘belief’ injunction snags on (at least) six more protruding procedural nails for the police, from start to finish of an investigation:

  • their duty under the Criminal Procedure and Investigations Act 1996 Code of Practice para 3.5 to investigate *away* from the suspect is triggered at the complainant’s initial interview, yet the interviewer is instructed to “believe” the complainant in this and (presumably) subsequent interviews and in taking a witness statement (‘Nick’ gave 17 hours of recorded interviews over 6 months);

 

  • ex parte applications for search warrants give rise to a duty of candour to the court under Criminal Procedure Rule26(3), requiring a mindset of balanced scepticism in evaluating the consistency of the totality of the evidence (this duty was unlawfully breached in Operation Midland according to Henriques ([2.4.9 response to MPS], [2.4.47], [2.4.49], [2.4.51], [2.3.8.56]) and the district judge who issued the warrants, but not according to the Independent Office of Police Conduct);

 

  • files sent to the Crown Prosecution Service must identify and evaluate weaknesses in the prosecution case;

 

  • their common law duty to disclose any information which might assist the defence immediately arises if it would assist with the early preparation of their case including at a bail hearing (CPIA Code of Practiceparas 6.6, 7.1);

 

  • their specific duty to disclose any material casting doubt on the reliability of a prosecution witness, such as the complainant (CPIA Code of Practice para 7.3) and

 

  • their continuing statutory duty under the CPIA throughout the proceedings to disclose material to the defence which might undermine the prosecution case or assist the defence (CPIA s. 7A).

Henriques’ observation that “a genuine and truthful complainant has nothing to fear from a directive that prioritises investigation ahead of ‘belief’” ([1.35]) is unanswerable; a complainant is entitled to be treated with dignity and seriousness, but not to go unchallenged at any stage through probing questions.

It is inexplicable that the Home Office has rejected Henrique’s irrefutable and unqualified condemnation of the terminology of ‘believe the victim’ as impeding open-minded and impartial investigations. What greater evidence of this is required than Operation Midland?

The Rules should record plausible allegations for the narrow purposes of initiating investigations and quantifying police activity in various offence and geographic sectors. The College of Policing’s recommendation was correct: ‘belief’ is unnecessary for the Standard to be rigorous and effective. Investigative training must stress a neutral starting point, not expect officers to hold two conflicting mindsets. Otherwise mistrials will continue when police witnesses cannot defend the impartiality of their investigation under cross-examination, or refer to complainants as ‘victims’ whom they were required to ‘believe’ from the outset.

 

Laura Hoyano is a barrister at Red Lion Chambers, a Senior Research Fellow at Wadham College, Oxford, and a member of the Faculty of Law, University of Oxford. She represents the Criminal Bar Association on the end-to-end review of obstacles to the prosecution of serious sex offences being conducted by the Ministry of Justice and Home Office.

Guest post by Joanna Hardy: We need to talk about lunchtime

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A few years ago, a poster was stuck up in the robing room at Snaresbrook Crown Court. There was to be a charity raffle.

The prize? “Win lunch with the Snaresbrook Judges!”.

This prompted much mirth. An unimpressed barrister scrawled beneath it “Second Prize: TWO Lunches”. Another quipped that they would rather eat their own wig. Counsel threatened to enter their opponents into the raffle for a laugh, hoping to inflict an hour of judicial caesar salad on those who had wronged them.

This was all light-hearted. Everyone knows the Snaresbrook judges are really rather nice and, importantly, they have a dining room. And actual cutlery. The dark days of 2012 are long behind us and we try not to mention them in polite company.

I thought about that raffle a lot yesterday. I was wrestling with a Crown Court vending machine to extract my own lunch. A Kinder Bueno and a carton of Ribena. This was my seventh day of Vending Machine Bingo at a court with no catering facilities save for a roaring trade in the rare and disgusting delicacy of refrigerated packets of crisps.

The slot swallowed my money, the machine rumbled into action, the metal coil jammed and my chocolate bar was stuck. I eyed the machine for size and wondered if shaking it might be considered professional misconduct. I recalled that more people are killed by vending machines falling on top of them than from shark attacks. I decided not to risk it and poured more money in. Two Kinder Bueno. Jackpot.

I glanced at the time. A quarter of lunchtime had passed. I needed to see my client in the cells, see my opponent to discuss some evidence, finalise a document for the jury, consider some recent disclosure, return a frantic call from my clerk and, time permitting, use the bathroom. Clock ticking, time tocking, I shoved the chocolate into my mouth. “A speed lunch! The finest tradition of the bar”, a senior barrister bellowed at me as he commenced his own futile battle with the evil vending machine.

It was then I realised – we need to talk about lunchtime.

If a speed lunch, or no lunch at all, are traditions of the bar then they are bad ones. Like all traditions, we ought to occasionally ask ourselves why we are still doing them.

If the Wellbeing initiative is to conquer anything then her first victim must be the macho work culture that led us here. The at-all-costs attitude that shames people for basic activities like having a cup of tea or gathering their thoughts. The creeping obsession with sitting statistics and an unquestioning devotion to the “effective use of court time” has a price. Are we, as counsel, willing to pay it?

Because one thing we do find time to swallow is the frustration of being asked to perform a lunchtime miracle at a court that has closed the canteen, hired no recorders, broken the boiler, locked all the conference rooms and sealed off half the toilets. It is our shoulders that bear the loss of lunch, rest, and wellbeing to keep the show on the road, to keep the statistics high and to not keep anyone waiting.

As part of our Wellbeing revolution, we ought to now consider how we realistically structure the court day in the scorched landscape of cuts, closures and reduced facilities. It should be widely acknowledged that there will be trials and times when a longer lunch break, or multiple short breaks, are appropriate. Not always and not often. But for those trials where time is short, pressure is high and facilities are lacking we must call it out. We should be bold enough to insist that heavy tasks are undertaken within court hours and brave enough to recognise there is no shame in needing a rest. Justice is not a race and it will not be achieved by a drained, exhausted profession. We ought to now insist that the “effective use of court time” includes provision for us to remain effective too.

Joanna Hardy is a criminal barrister at Red Lion Chambers. She tweets @joanna__hardy

Don’t fall for Boris Johnson’s criminal justice con tricks

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Yesterday morning, newly-appointed Justice Secretary Robert Buckland told Radio 4’s Today programme of his pleasure that the Prime Minister is taking an interest in the criminal justice system. And certainly, after three years of wilful abandonment under Theresa May, I would in principle gladly welcome some Downing Street-level political attention on the ruinous state of our criminal courts.

When this attention is coupled with more money for the criminal justice system, this sounds very much like the sort of thing those of us working within have been crying out for. So surely we should all join hands with Mr Buckland and celebrate that in Boris Johnson we finally have a leader taking criminal justice seriously?

Don’t believe a word of it. The entire project is a con.

Starting with the “new money”. Mr Johnson has announced that 20,000 new police officers will be recruited over the next three years. This is vital, certainly, but falls far short of what is required, given that that figure barely replaces the number of officers cut since 2010. Meanwhile, not only is crime increasing, but investigations are becoming ever-more complex, with digital evidence sucking resources and quadrupling the effort that would have been required a decade ago.

There’s £85m for the Crown Prosecution Service, which sounds like a healthy sum, until you realise that it’s a fixed payment over two years, and that the CPS budget for 2018/19 was a quarter of a billion pounds less in real terms than in 2009/10. The CPS has lost a quarter of its staff and a third of its lawyers since 2010. Two tranches of £42.5m will not begin to fix the problems that plague prosecutions up and down the country.

There’s a promise of 10,000 new prison places, when the previous promise of 10,000 places in 2015 fell short by 6,000, and another 9,000 places alone are required simply to address the present, longstanding overcrowding. There is £100m for technology to aid prison security, but no mention at all of the extra prison staff needed to safely manage the new offenders, given that even after a recruitment drive in 2017, numbers are 15 per cent down since 2010. There has been a huge drain of experience since 2010, as the most experienced officers were among the first to go when the government decided to slash prison staff by over a quarter, at a time when the prison population has climbed.

But the problem extends far beyond inadequate promises to redress chronic underfunding. The propaganda accompanying these announcements betrays not only the Prime Minister’s trademark opportunism and dearth of intellectual rigour but the sticky, putrid tar clogging the heart of the Johnson Crime Agenda.

Announcing his plans in a series of weekend puffs in tame newspapers, Boris Johnson declared, “Left wingers will howl. But it’s time to make criminals afraid – not the public.” Declaring his mission to ensure that criminals “get the sentence they deserve,” Johnson continued a theme begun in his Telegraph columns on the campaign trail, when he railed against “early release” from prison and inadequate prison sentences being passed. The solution to our criminal woes, the subtext screams, is to lock up more people for longer.

And let’s make no mistake, punishment is a legitimate and important part of criminal sentencing. It is one of the five purposes of sentencing listed in statute, alongside the reduction of crime (including by deterrence), reform and rehabilitation, protection of the public and making reparations to victims. Few if anybody involved in criminal justice would disagree with the notion that people who commit crime should be punished in a way that reflects their culpability and the harm they have caused, and that for some people, notably the most serious violent offenders, lengthy prison sentences are inevitable.

However, the notion that longer prison sentences by themselves make any of us any safer is a fantasy. The notion in particular that knife crime will be solved if we simply lock up young men for years on end is a hoax. The public may well be protected from that particular individual for the duration of their incarceration, but the idea underpinning this rotten philosophy – that longer sentences have a deterrent effect on crime – has been shown to be bogus. What does act as a deterrent is not severity of sentence, but certainty. The likelihood of being caught and dealt with swiftly, in other words.

But crime reduction and prevention is not achieved solely by deterrence. Rehabilitation is a vital part of protecting the public. This is why, when dealing with complex, multi-causal offending intractably rooted in social and cultural problems, the courts may take the view that more can be done to protect the public by keeping a young man on the cusp of custody out of the prison warehouse estate, and offering focussed intervention in the community. Sending someone to prison usually means ripping them away from all and any stabilising factors they may have. They lose their job, their social housing and their relationship, and exit prison with no support network other than the new friends they’ve made inside. This is why the evidence suggests that reoffending rates are lower when offenders are kept in the community.

But the evidence is of no concern to the Prime Minister. This is why he is forced into infantile ad hominems as a pre-emptive rebuttal against the people who have read and studied the evidence, and might be minded to offer some as a counter to his claims that our system is soft.

We already have the highest incarceration rate in Western Europe. Prison sentences have on average got longer year-on-year. We have more prisoners detained on indefinite and life sentences than all the other countries in the Council of Europe.

The notion that our courts routinely hand out “soft sentences” is simply not true. When we do see “soft justice” stories in the headlines, they will either be an aberration, usually corrected on appeal, or they will be the product of inaccurate or dishonest reporting, removing context or omitting facts.

Which brings us to Johnson’s public statements. Because at the centre of his musings on criminal justice is a rich stuffing of bullshit. He has lied and lied and lied. He lied when he claimed that “a convicted rapist out on early release” had raped again (the man in question was neither a convicted rapist nor out on early release). He lied when he suggested that the notion of allowing some prisoners to be released on temporary licence was “criminally stupid” (the government’s own evidence shows that reintegrating prisoners into the community in this way cuts reoffending). When he told the Mail this weekend that there are “thousands of “super prolifics” – criminals with more than 50 convictions to their name – who are being spared jail altogether”, he did not tell you that one of the reasons they were spared jail might be that they were being sentenced for non-imprisonable offences. He is lying to you when he tells you that the solution to crime is More Police, More Prisons.

He is lying so that he can turn the volume up to 11 on his remix of “Prison Works” to ensure the oldies at the back of the conference hall can hear in the run-up to the inevitable autumn general election.

And while Mr Johnson is lying to you, the rest of the criminal justice system rots.

Courts are being closed down and sold off all over the country. Half of all magistrates’ courts have been closed, meaning that defendants, victims and witnesses are forced to travel for hours on ineffective public transport to their “local” court.

Of those courts remaining standing, many are unfit for purpose. Decaying, crumbling buildings with no working lifts, holes in the roofs, sewage leaking into public areas, no air conditioning in summer and no heating in winter. In some, the public cannot even get a glass of water.

Of the courts that remain unsold, all are now run at artificially low capacity due to Ministry of Justice restrictions on “court sitting days”. We have, in many large city Crown Courts, the farce of full-time, salaried judges being forced to sit at home taking “reading days” – their perfectly serviceable courtrooms sitting locked and empty – while trials are fixed for Summer 2020 due to an alleged “lack of court time”.

We still have the abominable system of “floating trials” and “warned lists” – where defendants, witnesses and lawyers are expected to give up days or weeks of their lives just sitting around at court on the off-chance that a courtroom suddenly becomes free to take their trial. When, inevitably, no courtroom becomes free (because the MoJ won’t pay for the sitting day, ibid), their case is adjourned for months, and the cycle begins again.

The one thing that does act as a deterrent to criminals – certainty – is being eroded by ensuring that justice is doled out literally years after the event, because the government will not pay for the courts to process cases clogging the pipeline.

Meanwhile legal aid is being stripped away from citizens, forcing them to self-represent in cases in which their liberty is on the line.

This is why I am angry. Not because I’m a “lefty” inherently resistant to Boris Johnson’s white hot public service reforms. I’m angry because as a prosecutor I am still having to sit down with crying witnesses week after week and explain that their torment is being prolonged for another six months because the government refuses to pay to keep courtrooms open. I’m angry because the Innocence Tax – the policy that forces the wrongly accused to pay privately for their legal representation and then denies them their costs, bankrupting them, when they are acquitted – is not even in the political peripheral vision. I’m angry because our Prime Minister is a man who looks at the record rates of death, violence, suicide, overcrowding and self-harm in our prisons and whose first question is, “How do we get more people in there?”. I’m angry because the notion that you “crack down on crime” by chucking a few more police officers onto the streets and shoving more and more people into our death-riven prisons is a con. It is a con to victims of crime, and it is a con to you, the public. I’m angry because we have the indignity of a dishonest, cowardly and exploitative Prime Minister fiddling with his Party’s g-spot while the criminal justice system burns.

Don’t fall for his con trick.

Boris Johnson and misconduct in public office: 8 things you should probably know

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On 7 June 2019, the High Court brought to a halt the attempted private prosecution of Boris Johnson for misconduct in public office. Today, the full judgment has been published. There has been a lot of commentary surrounding this case, not all of it based on a firm (or even rudimentary) grasp of the facts. So breaking it down, what exactly has gone on here? Eight (likely-to-be) FAQs spring to mind.

  1. What the dickens is going on, legally speaking?

 On 29 May 2019, District Judge Coleman sitting at Westminster Magistrates’ Court granted an application by Marcus Ball and Brexit Justice Limited for a summons against Alexander Boris de Pfeffel Johnson, the proposed defendant, in respect of a contemplated private prosecution seeking to charge the aforementioned Mr Johnson with three counts of misconduct in public office, contrary to common law. On 7 June 2019, the Administrative Division of the High Court granted permission in respect of a claim by Mr Johnson for judicial review of the District Judge’s decision and quashed the granting of the summons, having found that the District Judge erred in law in her findings.

 

  1. And for the English speakers among us?

 In 2016, Marcus Ball set up a crowdfunding website inviting donations to fund a private prosecution of Boris Johnson for misconduct in public office, arising out of statements made by Mr Johnson during the 2016 referendum campaign, at a time when he was Mayor of London and a Member of Parliament. The offending statements relate to the well-known “We send the EU £350 million a week, let’s fund our NHS instead” claim. The first step in a criminal prosecution is to apply for a summons, which compels an individual to appear before a magistrates’ court. The District Judge (DJ) sitting at Westminster Magistrates, having heard legal argument from lawyers for Mr Ball and Mr Johnson, granted a summons. Mr Johnson “appealed” by seeking a judicial review of the decision to grant a summons, arguing that the decision was wrong in law. The High Court agreed, and quashed the decision to grant the summons.

 

  1. Why is a summons so important?

Quite simply, in this context no summons means no prosecution. Summonses are routinely issued against defendants in criminal prosecutions, usually with absolutely no challenge. But this being a private prosecution, opposing the granting of the summons was a way of trying to derail the prosecution at the very earliest stage (and very successfully, as it turned out).

An application for a summons will be granted by a magistrate (or a District Judge) if the magistrate is satisfied that the allegation is an offence known to law, and if the essential ingredients of the offence are prima facie (on its face) present. The court is not deciding whether a person is in fact guilty of an offence; simply whether there is, on the face of the case, evidence of its core ingredients. The court must also consider whether there are compelling reasons not to issue a summons, including – importantly for our purposes – whether the application is vexatious (which may involve the presence of an improper ulterior purpose).

In most public prosecutions, these things are not even an issue: the case will have been investigated by the police, referred to the Crown Prosecution Service and reviewed by a lawyer to check that it meets the evidential and public interest tests for charging, and the threshold for issuing a summons will obviously be met. But the issue is less clear cut in cases where the law is being used for a novel purpose. And using the law of misconduct in public office to prosecute a politician for false or misleading statements made during a political campaign is certainly novel. Hence things got a little sticky.

 

  1. What is “misconduct in public office”?

Misconduct in public office is a centuries-old common law offence (so developed by the courts rather than set out in legislation), which has been used to prosecute such varied allegations as MEPs claiming irregular expenses, police officers selling stories to journalists, healthcare professionals engaging in relationships with prisoners, the false statement given by a police officer in the “Plebgate” affair, and the Bishop of Gloucester entering into relationships with trainee priests.

If you think this sounds somewhat wide-ranging, you’d be right. And this – the vague and ill-defined scope of the offence – is one of the reasons that misconduct in public office is currently the subject of a consultation by the Law Commission, which is considering recommendations for how it might be reformed. Nevertheless, there has been a steady rise in the number of prosecutions for the offence, from 2 in 2005 up to 135 in 2014.

The test, as set out in a 2005 judgment of the Court of Appeal, has four key elements. Misconduct in public office arises where:

i. A public officer acting as such

ii. wilfully neglects to perform his duty and/or wilfully misconducts himself

iii. to such a degree as to amount to an abuse of the public’s trust in the office holder

i.v without reasonable excuse or justification

 

  1. How was it said that misconduct in public office applies in this case?

The argument of Mr Ball was quite simple: at the time of knowingly making plainly misleading statements, Boris Johnson was a holder of public office. There was little argument that the statements were misleading. Lying to or misleading the public amounts to an abuse of public trust in that office, hence there is, on its face, evidence to meet the ingredients of the offence. The District Judge broadly agreed.

 

  1. Why did the High Court disagree?

Firstly, a word about judicial review. An application to the High Court for judicial review is not simply a rerun of the case before a different court; it is a claim that there has been an error of law in the way the judge in the court below approached the case. If the High Court feels that it would have reached a different decision to the magistrates, but is not satisfied that the magistrates were wrong in law, it will not interfere.

In this case, Boris Johnson’s arguments were twofold: firstly, the District Judge made an error of law in finding that (i) and (ii) of the ingredients were prima facie made out. That error of law meant that the judge had no power to grant a summons. Secondly, the District Judge’s finding that Mr Ball’s application was not vexatious (which if found would afford a ground for not granting a summons) was “Wednesbury unreasonable”. “Wednesbury unreasonableness” is a legal concept wearily familiar to law undergrads, but for the lay person is perhaps best summarised as “batshit cray cray”. If the High Court finds that a decision of a court was “so unreasonable that no judge properly directing itself could reasonably have reached that decision”, it can quash it.

So, taking the contested elements in turn:

While Boris Johnson undoubtedly held public office (times two), the key three words are “acting as such”. It is not enough that someone be a public official; they must be acting as such in committing the alleged misconduct. As the High Court made clear:

“It was not sufficient to say that he made the statements when in office as a MP and/or Mayor of London, and that “the public office held by Mr Johnson provides status but with that status comes influence and authority”. That does no more than conclude that he occupied an office which carried influence. This ingredient requires a finding that as he discharged the duties of the office he made the claims impugned. If, as here, he simply held the office and whilst holding it expressed a view contentious and widely challenged, the ingredient of “acting as such” is not made out.”

 As for whether he had “wilfully neglected to perform his public duty or wilfully misconducted himself”, the High Court was scathing of the way in which the District Judge had approached this question. The notion of false political statements falling within the ambit of “wilful misconduct” has no precedent. The High Court observed that certain types of false statement made during election campaigns are offences, having been specified as “illegal practices” by Parliament (for instance publishing a false statement about a candidate). Parliament had not chosen to specify generally false claims about, say, statistics, as illegal practices; for the courts to extend the ambit of “misconduct in public office” to encompass such things would be a significant and far-reaching decision. The law requires that people know clearly what conduct is and isn’t criminal; common law offences like this therefore should not be enlarged by the courts “with one large leap”. None of this, the High Court found, had been given proper consideration by the District Judge.

Therefore, while the threshold for granting a summons is low compared to, say, the threshold for convicting a Defendant (where the evidence has to make the magistrates or jury sure of guilt), a magistrate is still required to conduct a rigorous analysis of the legal framework and whether there is on the face of the evidence enough to satisfy the ingredients of the offence. The District Judge had not conducted such an analysis, and her conclusions were, in the High Court’s view, wrong in law.

 

  1. What did the High Court say about the political motivations of the private prosecution?

 Boris Johnson’s lawyers argued that Mr Ball’s application was politically motivated and vexatious, and that this provided another reason as to why it was wrong in law for the District Judge to issue a summons. The District Judge’s findings on this argument left something to be desired:

“I accept the defence submission that when the applicant commenced his consideration of whether to bring a private prosecution against the proposed defendant 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 longer pertinent.”

The apparent suggestion that a political motive conceived in 2016 arising out of the EU Referendum has dissipated now in 2019 is, with respect to the judge, a curious reading of the current political temperature. When one considers the catalogue of public statements made by Marcus Ball about the proposed prosecution between 2016 and 2019, it is troubling that the District Judge’s certainty in dismissing the presence of political motivation isn’t supported by any meaningful reasoning. The High Court described the DJ’s finding as “flawed” because of the absence of reasoning, and said that it would have quashed the decision to issue a summons on this ground alone. (Because of this, the High Court said it was unnecessary for them to go on to consider whether, as well as being flawed for lack of reasoning, the finding was also “Wednesbury unreasonable”).

 

  1. So this is a moral victory for the future Prime Minister, surely? He has been found to have acted entirely properly.

No, no, no, no and no. No. Just no. And no again. No. The judgment can absolutely not be interpreted as any sort of vindication of Boris Johnson’s character. Indeed, the High Court judgment reads very much as if the judges were proceeding on the assumption that he certainly had lied, or misled, and the challenges to the District Judge’s decision by Boris Johnson’s own lawyers were not concerned with a defence of his character or conduct. Rather his case succeeded on the basis that he may well be a liar or a rotter or a charlatan, but such conduct does not of itself meet the legal criteria for misconduct in public office. So a victory, certainly. But hardly the glowing character reference his supporters might suggest.