Ball v Johnson [2019] EW Misc 15 (MagC)

Ball v Johnson [2019] EW Misc 15 (MagC)
Westminster Magistrates’ Court, District Judge M. Coleman, 29 May 2019.

Subsequent outcome: the High Court quashed this decision in Johnson v Westminster Magistrates’ Court [2019] EWHC 1709 (Admin). The original decision authorised a summons; it did not establish that Boris Johnson had committed a criminal offence. The later ruling must be read alongside it.

The application and allegations

Marcus Ball and Brexit Justice Limited sought a private prosecution of Boris Johnson for three alleged offences of misconduct in public office. The complaint concerned his endorsement of the claim that the United Kingdom sent £350 million a week to the European Union during political campaigning.

Two proposed counts related to the 2016 referendum campaign: one concerned Johnson’s position as an MP and the other his position as Mayor of London, which he held until 8 May 2016. A third concerned his position as an MP during the 2017 general election campaign before Parliament was dissolved.

The applicants alleged that the statements were knowingly false or misleading and that Johnson had used the influence associated with his offices to promote them. Johnson’s lawyers disputed that the allegations could establish the offence, even if their factual basis were proved. They also argued that the proceedings pursued a political purpose connected with opposing Brexit.

What the District Judge had to decide

The question was whether to issue a summons, not whether Johnson was guilty. District Judge Coleman expressly stated that she was making no findings of fact and that the accusations remained unproven.

Following R v West London Metropolitan Stipendiary Magistrate, ex parte Klahn, she considered whether the allegation disclosed an offence known to law, whether its essential ingredients were prima facie present, and whether the procedural requirements for a prosecution were satisfied. She also considered whether the application was vexatious or an abuse of process.

The common law offence, as explained in Attorney General’s Reference (No 3 of 2003), required a public officer acting as such, wilful neglect of duty or wilful misconduct, an abuse of the public’s trust of the necessary seriousness, and the absence of reasonable excuse or justification. The central dispute concerned the connection between the campaigning statements and Johnson’s official duties.

Why the summons was initially authorised

The defence accepted that an MP and the Mayor of London held public offices. It argued, however, that political campaigning did not itself discharge their official duties or exercise state power. Misusing publicly available statistics in debate was therefore different from abusing the powers of an office.

District Judge Coleman considered that the offices brought influence and authority as well as status. She treated the defence’s arguments about the relationship with official duties as issues for trial, and found sufficient prima facie material on the ingredients of the offence. She also rejected the allegation of a vexatious prosecution. Although there may previously have been a political purpose, she considered that argument no longer pertinent when the information was laid.

On 29 May 2019 she authorised the summons for the three proposed offences. Because they were indictable only, her decision contemplated a preliminary appearance followed by proceedings in the Crown Court. That proposed progression was overtaken by judicial review.

Why the High Court quashed the decision

Rafferty LJ and Supperstone J heard Johnson’s challenge and published their reasons on 3 July 2019. They rejected the suggestion that scrutiny at the summons stage could be treated simply as a low threshold. A magistrate had to examine rigorously whether the alleged conduct fell within the offence; a legal defect could not be postponed until trial.

The decisive distinction was between acting as a public officer and acting while holding public office. It was insufficient that Johnson’s offices gave his statements influence. The alleged conduct had to involve the discharge of the office’s duties. Expressing a contentious view during political campaigning did not establish that connection.

The court also required a qualifying breach of official duty. Bringing an office into disrepute or using a platform associated with it was not, without more, the relevant misuse of official power. The proposed prosecution would extend the common law offence beyond its established limits.

Legal certainty mattered here. Drawing on R v Rimmington, the court explained that a common law offence could not be expanded in one large step to punish conduct not previously clearly within its scope. It also referred to Parliament’s specific, narrower regulation of false electoral statements about candidates. The District Judge had not adequately analysed these limits.

There was a further defect in her treatment of motive. The passage of time did not answer evidence linking the proposed prosecution to political objectives up to the institution of proceedings. Her conclusion that the application was not vexatious lacked supporting reasoning. The High Court would also have quashed on that basis, although it did not need to decide whether that conclusion was Wednesbury unreasonable.

Outcome and significance

The High Court granted permission for judicial review, allowed Johnson’s claim and quashed the summons decision. Neither decision determined his criminal guilt. The important lesson is procedural and substantive: an application to begin a prosecution must disclose the actual ingredients of the alleged offence. The original summons ruling cannot safely be cited as establishing that the campaigning statements amounted to misconduct in public office.

Sources: the full District Judge’s decision and the full High Court judicial review judgment.