R (Boris Johnson) v Westminster Magistrates Court [2019] EWHC 1709 (Admin)
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R (Boris Johnson) v Westminster Magistrates Court [2019] EWHC 1709 (Admin) concerned a successful challenge by Mr Boris Johnson to a District Judge’s decision to issue a summons for three offences of misconduct in public office arising from statements he made during the 2016 EU referendum campaign.
The application for summons, made in February 2019 by Brexit Justice Limited and Mr Marcus Ball, alleged that Mr Johnson had endorsed two misleading statements: “We send the EU £350 million a week let’s fund our NHS instead” and “Let’s give our NHS the £350 million the EU takes every week.” The first appeared on the side of a bus as part of the Vote Leave campaign, and both appeared on billboards. During television interviews Mr Johnson suggested that the United Kingdom parted weekly with that sum to Europe. At the material times he was Mayor of London and a Member of Parliament. The proposed counts alleged that between February and June 2016 (as MP and Mayor) and between April and May 2017 (as MP) Mr Johnson, as holder of public office, wilfully neglected his duty or wilfully misconducted himself by endorsing and making statements which were false and misleading without justification concerning the cost of European Union membership, thereby abusing public trust in his public office. The interested parties argued that the figure of £350 million per week was known to be misleading and was properly expressed either as gross or as a net £250 million per week. In espousing and promoting it Mr Johnson was said deliberately to have acted in a misleading way whilst using the platforms and opportunities afforded him by virtue of his public office, undermining the integrity of a public referendum and bringing both offices into disrepute.
On 29 May 2019 the District Judge decided there was a proper case to issue a summons. She found that there was prima facie evidence of the necessary ingredients of the offence. On the ingredient of “acting as such”, she rejected Mr Johnson’s submissions, holding that the defence arguments were trial issues. She stated that she accepted that the public offices held by Mr Johnson provided status but with that status came influence and authority, and concluded there was sufficient to establish prima facie evidence of an issue to be determined at trial. She also rejected Mr Johnson’s submission that the application was vexatious, finding that although when the applicant first commenced consideration of bringing a private prosecution some three years previously there may have been a political purpose, the information had been laid on 28 February 2019 and that argument was in her view no longer pertinent. On 4 June 2019 Supperstone J granted interim relief and ordered an expedited rolled-up hearing before a Divisional Court.
Mr Adrian Darbishire QC for Mr Johnson submitted that the District Judge made an error of law in finding all the ingredients of the offence were made out. Although it was common ground that Mr Johnson was a public officer at the material times, the District Judge erred in finding that he was “acting as such” when making or endorsing the statements of which complaint was made, and in finding that he wilfully neglected to perform his duty or wilfully misconducted himself. He further submitted that the finding that the application was not vexatious was Wednesbury unreasonable.
The Divisional Court first rejected the interested parties’ submission that the claim raised no public law challenge. The Administrative Court was exercising its supervisory jurisdiction over an inferior court, and the error of law bound to have led the District Judge to act in excess of jurisdiction and unlawfully by deciding to issue a summons where the ingredients of the offence were not made out. Such an error of law necessarily involved a finding that no District Judge properly directing herself could, on the material before her, reasonably have found the offence made out. The court also rejected the interested parties’ submission that the threshold test for issuance of a summons was a low one, referring to R (Kay) v Leeds Magistrates’ Court [2018] 4 WLR 91 and R (DPP) v Sunderland MC [2014] EWHC 613 (Admin). The magistrate was obliged to come to a judicial conclusion on whether to issue a summons, requiring a review of whether there was prima facie evidence of the ingredients of the offence. That level of analysis was particularly important now that indictable offences were sent direct to the Crown Court. Failure to insist upon a high threshold would place a constraint upon the conduct of public officers in the proper performance of their duties, contrary to the public interest.
Turning to the ingredients of the offence, the court set out the four elements of misconduct in public office identified in Attorney General’s Reference (No 3 of 2003) [2005] QB 73: a public officer acting as such; wilfully neglecting to perform his duty or wilfully misconducting himself; to such a degree as to amount to an abuse of the public’s trust in the office holder; and without reasonable excuse or justification. The two ingredients in issue were whether Mr Johnson, a public officer, was “acting as such” when he made the statements, and whether he wilfully neglected to perform his duty or wilfully misconducted himself.
On the first ingredient, the court held that the words “as such” plainly meant acting in the discharge of the duties of the office. The Law Commission Report on Misconduct in Public Office stated that the question of whether an individual was “acting as such” was usually answered by determining the duties to which he or she was subject as a result of being required to carry out a state function. The District Judge erred in finding that Mr Johnson as a public officer was “acting as such”, when a proper analysis of breach of duty would have revealed the true position. It was not sufficient to say that he made the statements when in office and that the public offices he held provided status with influence and authority. That did no more than conclude that he occupied an office which carried influence. This ingredient required 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” was not made out. The interested parties’ reliance upon the Australian case of Quach [2010] VSCA 106 provided no support for their contention that demonstrable untruths were sufficient to bring the teller of them within the ambit of the offence.
On the second ingredient, the court stated that whilst there was a great variety of circumstances in which the offence of misconduct in a public office may be charged, in Attorney General’s Reference there must be a breach of duty by the officer. Misconduct in public office bites on breaches of duties which constitute the offence itself. All the cases shared the common feature of corrupt abuse of public power for personal gain or gross neglect in failing to comply with the core duties of the office. The offence would be made out only if the manner in which the specific powers or duties of the office were discharged brought the misconduct within its ambit. Consequently at the time of the alleged misconduct the individual must be acting as, not simply whilst, a public official. This common law offence consistently considered neglect of duties or abuse of state power. No authority suggested that the offence could be equated to bringing an office into disrepute or misusing a platform outside the scope of the office.
Mr Coppel QC for the interested parties accepted that there was no precedent for any office holder being prosecuted for misconduct in public office for wilfully making or endorsing a misleading statement in and for the purposes of political campaigning. The court held that what was alleged did not fall within the principles applicable to the offence. Parliament had legislated to control certain false campaign statements which it considered an illegal practice, including the Representation of the People Act 1983. Parliament twice made a choice not to do precisely that which the interested parties now sought to achieve. The Electoral Commission Report on the 2016 referendum recognised that during a referendum campaign it was the role of campaigners to debate the relative merits of the arguments and claims being made, and that official data would be presented by campaigners in a way that favoured their argument – that was the nature of political campaigns.
The court held that the proposed application of the offence would extend the scope of the common law offence. Lord Bingham in R v Rimmington [2006] 1 AC 459 said that if the ambit of a common law offence was to be enlarged, it must be done step-by-step on a case-by-case basis. The court found no analysis by the District Judge of this aspect of Mr Johnson’s submissions. The ingredient of the offence “acting as such” was not a matter for evidence at trial. Further, the ingredient “wilfully neglects to perform his duty or wilfully misconducts himself” required a rigorous analysis of the scope of the offence, and of whether the District Judge’s conclusion would extend the established limits of the offence, and the court had found none.
On the issue of vexatious prosecution, the court considered a document “Motive and Conduct” prepared by Mr Johnson which distilled aspects of contemporaneous news stories from which material posted by the interested parties on social media (subsequently deleted) could be deduced. Examples included a 2016 crowdfunding website listing objectives including funding a judicial review and other legal action to prevent Brexit and prosecution of Vote Leave leaders; a July 2016 interview stating that “The dream scenario would be a series of Leave politicians being prosecuted for misconduct in public office; prison sentences for politicians who have lied to the public and a second referendum”; and various other statements between 2016 and 2019 linking the prosecution to overturning Brexit. The District Judge found that although when the applicant commenced his consideration of bringing a private prosecution there may have been a political purpose, the information for summons was laid in February 2019 and that argument was no longer pertinent. The court held that the passage of time since 2016 was no answer to Mr Johnson’s detailed submission that the political motive for the prosecution was apparent from evidence as far back as July 2016 and up to the institution of the prosecution in February 2019. Mr Johnson was entitled to know why the District Judge found that the prosecution was not vexatious but the court detected no reasoning to support her conclusion. Although it was not necessary given the court’s other conclusions, it would also have quashed the decision on the basis that the finding that the prosecution was not vexatious was flawed.
In short, permission was granted, the claim succeeded, and the court quashed the District Judge’s decision to issue a summons on the basis that she erred in law in finding the ingredients of the offence of misconduct in public office were made out when the alleged conduct did not fall within the proper scope of the offence.
Director of Public Prosecutions v Sunderland Magistrates’ Court [2014] EWHC 613 (Admin)
R v Mitchell [2014] 2 Cr App R 2
Rimmington [2005] UKHL 63; [2006] 1 Cr App R 17, [2006] 1 AC 459
R (Kay and another) v Leeds Magistrates’ Court [2018] 4 WLR 91
Attorney-General’s Reference (3 of 2003) [2004] EWCA Crim 868, [2005] QB 73