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

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.

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10 thoughts on “Boris Johnson and misconduct in public office: 8 things you should probably know

  1. “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.”

    Mmn. I think you’re allowing your dislike of Mr Johnson momentarily to cloud your judgement here. If, hypothetically, lying whilst an MP/Mayor of London were a crime, then whether the £350M statements amounted to being a lie would be a question of fact to be decided at the trial – given how disputed the figure was, the threshold of a summons for such a hypothetical crime would undoubtedly be met. No doubt at trial Mr Johnson’s lawyers would have put up a strong argument that it did not amount to a lie.

    However, the reason for the eventual failure of the issuing of a summons was that there is no such crime, and despite the best efforts of the DJ and the private prosecution team, the offence of misconduct in a public office cannot extend to include “lying whilst an MP/Mayor of London”. Accordingly, Mr Johnson’s lawyers quite correctly focussed on the relevant matter at hand.

    If I claimed that your analysis of the Johnson case was so flawed it amounted to a crime of misleading the public whilst being a barrister, and tried to have a summons issued on that basis, you wouldn’t bother arguing before a DJ that your analysis was in fact correct; you’d simply point out that there is no such crime known to the law of England and Wales, nor anything even vaguely resembling it, and the summons should fail on that point. You would then rightly be scornful if I tried to claim that you proceeded on the basis that there was something wrong with your analysis since you hadn’t defended it in Court.

    I fear the same courtesy applies to Mr Johnson (even though obviously your summary of the case is a million times more accurate than his £350M claim!).

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  2. Apologies but the Justice system no longer works. The police are too underfunded and do not have the resources to do their job and subsequently become deceitful to meet their figures. For a criminal legal representation to have the time it requires to treat a case with the same merit as a private one means that these poor individuals would be working for less than the minimum wage. Yet without these individuals we have no system so they are flogged. There are NO repercussions for Judges or effective regulation in this area. This also must change alongside the desperately needed funding increases across the board. We have digressed to such a point of in high level of dishonesty and corruption now that a public enquiry should be called. I praise all the juniors who remain in the criminal Barr and are fighting for change. You are the only thing that can save our system from complete collapse.

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  3. Pingback: How do we solve a problem like Boris? | London Tribune

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  5. From the judgement:
    ’25. The alleged offence set out in the Application for Summons is that the Claimant
    “repeatedly made and endorsed false and misleading statements concerning the cost of
    the United Kingdom’s membership of the European Union”. It appears that if the
    Claimant had said/endorsed a figure of £350m per week gross, or £250m per week net,
    there would have been no complaint.’

    So, to say that “Indeed, the High Court judgment reads very much as if the judges were proceeding on the assumption that he certainly had lied, or misled” isn’t quite accurate.

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  6. “Indeed, the High Court judgment reads very much as if the judges were proceeding on the assumption that he certainly had lied, or misled”
    Very misleading. Of course the Court proceeded “on the assumption that he certainly had lied, or misled”, because the Court was testing whether the alleged conduct was capable of constituting the offence of Misconduct in Public Office. But it was just that, an assumption. Your post implies that the Court made, or by some sidewind implied, findings of fact. No no no, again no. This was judicial review. The issue of whether the allegations were true or not simply didn’t arise for consideration. You are right – this wasn’t any sort of vindication, but equally it was not a finding or even suggestion of misconduct.

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  7. Where as i appreciate the work you do I do find your own leanings come in to commentary a lot.

    Point 8

    “The alleged offence set out in the Application for Summons is that the Claimant “repeatedly made and endorsed false and misleading statements concerning the cost of the United Kingdom’s membership of the European Union”. It appears that if the Claimant had said/endorsed a figure of £350m per week gross, or £250m per week net, there would have been no complaint.”

    Boris did do this multiple times

    Many more examples out there including debates. The court didn’t look at if the claim was true as you said it want asked nor would it have been able to being a question of fact on a judicial review.

    The problem with the 350 million is not that he was wrong it was explained as gross and could be used. Is that people have taken 1 part of it out of context and just ran with it to demonize someone as to blame for a decision they dont like.

    You can contrast it with Sadiq Khan on price freeze, or Corbyn on tuition fee debt. Both made promises. Both refused to clarify (tuition fees actually had 2 shadow cabinet ministers approve of the belief it would be wiped) yet suffer no reputational hit from it. Boris actually clarified and corrected it.

    Which is crazy because there are many things which can be legitimately used to attack Johnson. But understandable when you look at the demographics attacking it.

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