Boris Johnson has been summoned to appear in the criminal courts: Is the case just a political stunt or ground-breaking litigation? Following a crowd funding campaign, Mr Ball has brought a private prosecution concerning claims made by Mr Johnson during the 2016 EU referendum and 2017 General Election. The three counts, alleging misconduct in public office, focus on the claim that the UK was sending £350 million a week to the EU. The prosecution contend that Mr Johnson repeatedly misled the British public as to the cost of EU membership.

On 23 May 2019, District Judge Margot Coleman handed down written reasons determining that the case was a proper one in which to issue a summons (not making findings of fact or as a trial court). The judge considered: (1) whether the offences were known to law (yes, under the common law); (2) whether the ingredients of the offence were prima facie present (below) (3) whether the prosecution was vexatious (the judge decided it was not).

The Legal Basis

Misconduct in public office is an unusual basis for prosecution. The offence is also currently subject to review by the Law Commission. In AG’s Reference (Number 3 of 2003) [2004] EWCA Crim 868 it was held that the offence included the following elements. It is committed by a

• public officer acting as such who
• wilfully neglects to perform his duty and/ or wilfully misconducts himself
• to such a degree as to amount to an abuse of the public’s trust in the office holder
• without reasonable excuse or justification.

The Law Commission has noted the absence of definition throughout the offence. It also questions the significance of the requirement that a public officer be “acting as such”. It is therefore notable, that with regard to (a), the judge considered detailed argument for Mr Johnson that the conduct alleged was not part of him “acting as” a public official and that campaigning would not have the necessary link with “the actual duties and powers of the public offices concerned”. The judge was satisfied that there was prima facie evidence.

Element (b), “wilful”, refers to deliberate or reckless conduct. The prosecution contend that there is “ample evidence” that Mr Johnson knew the statement was false (At a future trial it may be relevant that consequences of the alleged conduct, although not an ingredient of the offence, require consideration in determining whether the conduct falls far below the expected standard). The judge was satisfied that there was prima facie evidence noting: “I accept that the public offices held by Mr Johnson provide status but with that status comes influence and authority”.

As to (c), the degree of trust, the judge noted the high threshold required. The allegations were that the conduct “was a huge lie calculated to mislead the electorate”. For Mr Johnson it was contended that the required threshold was not met. The judge was satisfied that the element was prima facie satisfied. In relation to (d), the judge was also satisfied as to the prima facie evidence that the statements had been made “without reasonable cause or justification”.

 The Next Stage

The alleged offences are only triable in the Crown Court. Mr Johnson is now expected to appear at the Magistrates’ Court for a preliminary hearing and then the case will be sent to the Crown Court for trial. It is probable that Mr Johnson will initially seek to challenge the District Judge’s decision via a ‘case-stated’ appeal to the High Court on a point of law (Magistrates’ Courts Act 1980, s.111).

Mr Ball hopes the prosecution may result a landmark legal case about the conduct of public officials during elections. So far, the courts have notably refused permission for judicial review in “Brexit” cases on judicial review (e.g. R (Webster) v SOS for Exiting The European Union, [2018] EWHC 1543 (Admin); R (Wilson) v Prime Minister [2019] EWCA Civ 304). However, in this case, the District Judge’s determination is clear and the public interest is high. If the case proceeds, it will throw the development of the law in this area firmly into the spotlight.