Thursday, 30 May 2019

Private prosecution commenced against Boris Johnson

Updated 7 June

A District Judge sitting at Westminster Magistrates' Court has decided that a summons will be issued to bring Mr Boris Johnson MP before the court in respect of allegations of misconduct in public office.

The decision to issue the summons was handed down by District Judge (Magistrates' Courts) Margot Coleman and has been published by the Judiciary - see Marcus Ball v Alexander Boris de Pfeffel Johnson

It is important to note
that the judge was concerned ONLY with the question of whether to issue a summons.  The judge was not required to make findings of fact and did not do so.  The power of a Magistrates' Court to issue a summons is in the Magistrates' Courts Act 1980 s.1 -

On an information being laid before a justice of the peace that a person has, or is suspected of having, committed an offence, the justice may issue -

(a) a summons directed to that person requiring him to appear before a magistrates' court to answer the information, or

(b) a warrant to arrest that person and bring him before a magistrates' court.

See also Criminal Procedure Rules Part 7 - Starting a prosecution in a Magistrates' Court

Issuing a summons is a judicial function involving the exercise of a discretion which is subject to control by judicial review in the High Court - R (Kay) v Leeds Magistrates' Court [2018] EWHC 1233 (Admin) - Gross LJ and Sweeney J.   This case contains useful discussion of the duties placed by the law on a private prosecutor including a duty of candour.

The allegations:

The District Judge said -

"The prosecution focuses on 2 timeframes. The first is the period between 21 February 2016- 23 June 2016, with the earlier date reflecting the date when Mr Johnson announced his decision to vote to leave the European Union (EU) and the later date being that of the EU referendum.

The second period is between 18 April 2017- 3 May 2017 which reflects the period commencing upon the date when the 2017 general election was announced until the date when Parliament was dissolved.

The proposed defendant was at all material times a member of Parliament. Further, during the first period, he was until 8 May 2016 the Mayor of London.

During both time periods outlined above, the (proposed) defendant 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. Whilst doing so he was acting as a public officer and using the platforms and opportunities offered to him by virtue of his public office. Further the defendant knew that such comments were false or misleading in that he had on other occasions used accurate figures and showed a clear understanding of how to quantify UK spending in respect of the EU. 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."

Private Prosecution:

The prosecutor in this case is a limited company) - 'Brexit Justice Limited

The right to bring a private prosecution was preserved by the Prosecution of Offences Act 1985 s.6.

Misconduct in Public Office:

Misconduct in Public Office is a common law offence triable on indictment only - i.e. in the Crown Court before a Judge and Jury.  In the event of a conviction, the maximum sentence available is life imprisonment.  In practice that enables the court to impose any appropriate sentence.

This offence was discussed by the Court of Appeal (Criminal Division) in  Attorney-General's Reference 3/2003 [2004] EWCA Crim 868 - Pill LJ, Hughes and Aikens JJ.   At para 61 Lord Justice Pill said:
  1. The circumstances in which the offence may be committed are broad and the conduct which may give rise to it is diverse. A summary of its elements must be considered on the basis of the contents of the preceding paragraphs. The elements of the offence of misconduct in a public office are:
  2. 1. A public officer acting as such (paragraph 54). 2. Wilfully neglects to perform his duty and/or wilfully misconducts himself (paragraphs 28, 30, 45 and 55).
    3. To such a degree as to amount to an abuse of the public's trust in the office holder (paragraphs 46 and 56 to 59).
    4. Without reasonable excuse or justification (paragraph 60).
    As with other criminal charges, it will be for the judge to decide whether there is evidence capable of establishing guilt of the offence and, if so, for the jury to decide whether the offence is proved.
Interestingly, the court did not elaborate on the situations when an individual is acting in a public office other than to say (para 54) - "It is clear from the authorities that the defendant must be a public officer acting as such.  In the absence of submissions on those ingredients, which may in some circumstances present problems of definition, we do not propose to elaborate on them."


Crown Prosecution Service - Private Prosecutions

Supreme Court - R (on the application of Gujra) v CPS [2012] UKSC 52 - this case related to the CPS taking over a private prosecution with a view to stopping the prosecution.

UK Human Rights blog - Owain Thomas QC - Boris Johnson summonsed to face criminal charges


The High Court has quashed the summons - BBC News 7 June.  Judgment to be given later.

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