Boris Johnson summoned to face criminal charges
29 May 2019
District Judge Coleman, a judge sitting in the Westminster Magistrates Court, has issued a summons for Boris Johnson to appear in the Crown Court. He will face three charges alleging misconduct in a public office in a private prosecution brought by Marcus Ball. The offences alleged are indictable only which means that they can only be heard in the Crown Court.
Marcus Ball, a 29-year-old businessman who has brought the proceedings with the help of crowdfunding, alleges that the frontrunner for the Tory leadership lied about the amount of money which the UK sends to the EU both during the referendum campaign and during the general election campaign in 2017.
The controversial claim that £350m a week was sent by the UK to the EU and could better be spent on public services in the UK instead was a particularly eye catching aspect of the Leave campaign and attracted considerable criticism at the time and since. Some of that criticism particularly from the Institute of Fiscal Studies which branded the claim “absurd” and UK Statistics Authority whose chair described the claim as a misuse of statistics forms an important part of the case.
At issue in this procedural hearing was whether the court should issue a summons for Boris Johnson to attend court. He opposed the application and lost. He will be required to appear therefore be required to attend court for a preliminary hearing and the case will then be sent to the Crown Court.
Unusually, the case was heard in public and full reasons have been given in a written judgment. Essentially the judge has decided that while the allegations are unproven accusations and no findings of fact have been made, having considered all the relevant factors this is nevertheless a proper case to issue the summons for a serious issue to be tried.
The elements of the alleged offence
The offences of misconduct in a public office are as follows:
The defendant must be
1. a public officer acting as such
2. who wilfully neglects to perform his duty/or wilfully misconducts himself
3. to such a degree as to amount to an abuse of the public’s trust in the officeholder
4. and does so without reasonable excuse or justification.
Boris Johnson accepted that he was a public officer because he was at the time a Member of Parliament and then, later, Mayor of London. So far, so straightforward. But he denied that he was acting “as such” when he made the statements in question. His position was that he used the information in the course of a political campaign — first the referendum and then the general election — and that he did not use the “figure for any purpose other than in the course of a contested political campaign”. He then argued that
The claim was based upon information that was, at all times, freely available to all. As with very many claims made in political campaigns, it was challenged, contradicted and criticised.
Accordingly, it was not sufficiently associated with his public office.
This argument was rejected with the judge ruling that there was a prima facie case that he was acting as such when making the statements and that his argument that in making these statements he was not discharging any public function is an issue to be raised at the trial.
Wilful neglect / misconduct
Mr Johnson also denied that there was prima facie evidence of this partly because again he argued that in making these statements he was not discharging any public duty and that secondly the complaint of inaccurate information is a common one in the course of political campaigns and that no complaints to the Parliamentary Commission for Standards for example had been made.
The judge rejected this argument too. She dismissed the idea that there was no link between his statement and his public office stating that “with that status comes influence and authority”, and decided that it should be left to the trial to decide whether any breach of duty had taken place.
Abuse of the public’s trust
The judge here noted that there was a high threshold for an abuse. However, Marcus Ball’s case was that making misleading statements which are known to be untrue could hardly be more serious. The judge agreed that this element was prima facie satisfied.
Finally, the judge found that there was prime facie evidence that the conduct was not readily explainable. She noted here the significant and trenchant criticism of the use of the figure. This gave rise to a real issue for the trial.
This decision is bound to have significant consequences. There is the prospect that the leading contender for the Tory leadership and to be the next Prime Minister will be contesting a private prosecution at the same time and one which at its heart raises issues of the trust which the public is entitled to have in its politicians.
It will not be lost on those on the Brexit side of the argument that that issue of public trust is said also to lie at the heart of their concerns about the way in which the UK has handled the process of withdrawal so far, which has led to the UK contesting EU elections so long after the referendum result with, seemingly, no real end in sight.
The political implications for Mr Johnson, the Conservative Party and the country more broadly may be very significant.
Owain Thomas QC is a barrister at One Crown Office Row.