Ball v Johnson [2019] 5 WLUK 457

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Last modified: 30/05/19 Author: In-house law team

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Misconduct in public office, and whether or not an allegation of misconduct in public office brought by political campaigners was a proper case for a summons to be issued in.

Facts.

The applicant brought a crowd-funded private prosecution against the proposed defendant, a sitting Member of Parliament, former Mayor of London and Secretary of State for Foreign and Commonwealth Affairs, Boris Johnson.  The application requested Westminster Magistrates’ court to issue a summons against the proposed defendant on the basis that Boris Johnson was alleged by the applicant to have committed three offences of misconduct in a public office.  The applicant based these assertions on the suggestion that, whilst in political office, the proposed defendant had repeatedly lied and misled the British public as to the cost of Britain’s membership of the European Union (EU).  This was committed by expressly stating, endorsing, or inferring that the cost of EU membership to Britain was some £350 million per week.

The proposed defendant responded by submitting that the prosecution was a political stunt, brought by a limited company (Brexit Justice Limited) of which the applicant was a director, who were determined to undermine the Brexit referendum result of 2016, and to limit or prevent the consequences of Brexit itself.  According to counsel for the proposed defendant the prosecutor was not even in a position to be able to proceed to trial, as much as they insisted that the intention was that a trial would eventually be begun. As such, the proposed prosecution was a politically motivated one, with the motive being to employ the criminal law, for the first time in English legal history, to regulate the content and quality of political debate.  As such, the proposed defendant asserted that the case was not one which was a proper case in which to issue a summons.  It was further put forwards by counsel for the proposed defendant that even if the facts as alleged were made out, they failed to come close to establishing the kind of misconduct which the offence of misconduct in a public office requires (as the offence requires that the prosecution provide proof that there has been a serious abuse of powers of the office, or a serious failure to exercise them at all; in this case, even if the fitness of the holder of the office was impugned, this is not to the point as there had been no abuse of the powers or duties of the office itself.

Issues.

Was this a case in which the judge could satisfy himself that this was a proper case in which a summons should be issued under the criteria set out by Widgery CJ in R v West London Stipendiary Magistrates ex parte Klahn [1979] WLR 933.  Was there an allegation of an offence known to law, of which the essential elements were prima facie present, over which the court has jurisdiction, the offence is not out of time, and in which was not a vexatious allegation?

Held.

The application was granted, and a summons issued.  Boris Johnson would be required to attend the Magistrates’ court for a preliminary hearing at which the case would be sent to the Crown Court.

The implications of this decision are, potentially, extremely significant.  This is the first time in which a court has held that a sitting Member of Parliament’s campaigning, and statements made by him in pursuit of their campaign, could constitute a potentially criminal abuse of office.  As such, there might be some concern that this could set a precedent for future challenges to be made over the statements made by politicians in their campaigning or in their public office.  This might be thought to have a deleterious impact on free political debate.

According to the presiding District Judge Coleman, the reason for this decision were as follows.  Firstly, Mr Johnson was acting in his official capacity as a public officer at the time at which he adopted and endorsed the “Vote Leave” campaign message asserting that UK membership of the EU cost £350 million per week.  The element of the offence of misconduct in a public office could describe circumstances in which a public officer does not conduct themselves properly, or does not act in accordance with the requirements of their position, or within the limit of their authority.  It was therefore irrelevant that the defence asserted that political speeches or campaigning were not part of the exercise of “powers of the state” as were put forwards as being necessary to allowing a qualifying offence to have been committed.  Instead, the public offices held by Mr Johnson provided him with status, authority, and influence which created a suggestion that he was acting in the course of a public office.  There was, furthermore, a prima facie suggestion that these figures were inaccurate or misleading, and that the defendant knew them to be misleading.

It was held that this did satisfy the threshold of seriousness as it was a statement of such a degree as to amount to an abuse of the public’s trust in the office holder, as there could be no more serious misconduct allegation against a Member of Parliament (or Mayor of London) than to lie repeatedly to the voting public about an issue in order to win the desired outcome from the voters.  District Judge Coleman held that the proposed prosecution was not vexatious, although he declined to give reasoning for this, and admitted that at the point at which the proceedings were begun some three years ago there was in fact some element of a political purpose being present.  This political purpose was, in the eyes of the judge, no longer pertinent at the point at which the present information was laid before the court.  In conclusion therefore, there was a prima facie evidence of an issue to be determined at trial, and the judge was satisfied that this was a proper case for a summons to be issued in.

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