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English and Welsh Courts - Miscellaneous
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Cite as:  EW Misc 15 (MagC)
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IN WESTMINSTER MAGISTRATES' COURT
29th May 2019
|ALEXANDER BORIS de PFEFFEL JOHNSON||PROPOSED DEFENDANT|
DECISION AND REASONS OF DISTRICT JUDGE M. COLEMAN
413) this is an unusual and exceptional application with a considerable public interest and it is right that full reasons are provided to the unsuccessful party.
"The proposed defendant was a holder of 2 public offices. He was a Member of Parliament and also the Mayor of London. 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.
The law dictates that misconduct to such a degree requires a criminal sanction. There is no justification or excuse for such misconduct. To that end Mr Johnson was written to by the prosecution (applicant) on 16th November 2018 and invited him to provide an explanation and grounds for his belief in the accuracy and truth of the comments made. The prosecution (applicant) expressly informed the proposed defendant that it could provide any such exculpatory material to the court at this stage. Whilst the proposed defendant was not obliged to, he has tendered no such explanation or material."
THE OPEN HEARING
As Lord Widgery CJ succinctly observed in Klahn, when faced with an application of this sort:
"The magistrate must be able to satisfy himself that it is a proper case in which to issue a summons."
This application is brought for political purposes. The position presented to the Court is that this is a disinterested attempt to improve the standards of political debate. The reality of this enterprise is different. The 'Prosecutor' (a limited company) is 'Brexit Justice Limited'. Brexit Justice Limited is the product of a campaign to undermine the result of the Brexit referendum, and/or to prevent its consequences. The company and this application owe their existence to the desire on the part of individuals such as Mr Ball to undermine the referendum result. The 'Brexit justice' which is ultimately sought is no Brexit.
The application is a (political) stunt. Its true purpose is not that it should succeed, but that it should be made at all. And made with as much public fanfare as the prosecution can engender. While all questions of law are of course for the Court, it is relevant to note that, in taking this course, the Applicant disregarded distinguished advice against prosecution, preferring to impugn the competence and integrity of the source of that advice. The Applicant insists that the intention is that the case should proceed to a trial, yet it is in no position for that to happen. These are relevant facts for the Court to consider, when addressing the necessarily broad question which must be answered, is the Court satisfied that this is a proper case for the issuing of a summons?
Consistent with it bearing a political motive, the application does not disclose an evidential and legal case for the issuing of a summons. The application represents an attempt, for the first time in English legal history, to employ the criminal law to regulate the content and quality of political debate. That is self-evidently not the function of the criminal law. Specifically, a complaint about the way in which a political campaigner has deployed publicly-available statistics in the services of a political debate is not a proper basis for the criminal offence of misconduct in public office.
In any event, the alleged facts here do not come close to establishing the kind of misconduct with which the offence is concerned. The misconduct offence depends upon proof of the serious abuse of the powers of the office (or a grave failure to exercise them at all). The nature of the alleged misconduct and the context of it are far from the scope of this offence. The essence of the offence is of abuse of the public office, not poor conduct by a public official. It follows that, even if there were evidence of conduct which reflects on the fitness of the office holder or even shows him to be unfit to hold the office, that is nothing to the point unless it amounts in itself to an abuse of the powers or duties of the office itself."
- The discretion to issue a summons is not unfettered or unlimited. The general principle is that a summons ought to be issued pursuant to a properly laid information unless there are compelling reasons not to do so, most obviously if an abuse of process or impropriety is involved, or whether it would be vexatious to issue a summons, in other words whether there is the presence of an improper ulterior purpose and/or long delay. The consequences may be significant but the threshold to grant a summons is low.
• There is no obligation or requirement for a person seeking the issue of a summons to approach the police first, though this may be a relevant circumstance in any particular case.
• The court at this stage is not making any findings of fact and is not adopting the role of a court of trial.
It would appear that the magistrate should at the very least ascertain:
a) the allegation is of an offence known to law, and if so, that the essential ingredients of the offence are prima facie present
b) the offence alleged is not out of time
c) the court has jurisdiction
d) the informant has the necessary authority to prosecute
e) the court may and indeed should consider whether the allegation is vexatious
f) since the matter is properly within the magistrate's discretion it would be inappropriate to attempt to lay down an exhaustive catalogue of matters to which consideration should be given stop plainly he should consider the whole of the relevant circumstances.
Reference (Number 3 of 2003)  EWCA Crim 868 :
1. a public officer acting as such.
2. 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. does so without reasonable excuse or justification.
"in our judgement, the proper approach is to analyse the position of a particular employee or officer by asking 3 questions:
- What is the position held?
- What is the nature of the duties undertaken by the employee or officer in that position?
- Does the fulfilment of those duties represent the fulfilment of one of the responsibilities of government such that the public have a significant interest in the discharge of that duty which is additional to or beyond an interest in anyone who might be directly affected by a serious failure in the performance of that duty?
If the answer to the last question is "yes" the relevant employee or officer is acting as a public officer: if "no", he or she is not acting as a public officer
"For present purposes, it is accepted that a Member of Parliament and/or the Mayor of London are "public officials", parts of the duties associated with those roles forming, as the test was put in Cosford (per headnote), "the fulfilment of one of the responsibilities of government."
As will be seen below, that of course does not mean that everything done by such a person will itself form part of the responsibilities of government, or the discharge of that office. Electoral or referendum campaigning is not the 'fulfilment of one of the responsibilities of government'.
The Committee on Standards in Public Life ("CSPL") observed as long ago as 1998 that the government does not participate in general election or referendum campaigns. While the conduct of an election (returning officers, election officials, provision of polling stations etc.) is undoubtedly the fulfilment of one of the responsibilities of government, the actual conduct of campaigning is not.
The offence is concerned with the manner in which the specific powers or duties of the public office are discharged. This element is in part reflected in the requirement that, at the time of the misconduct alleged, the individual must be acting as a public official. This element is obviously closely connected with the requirement that the evidence must show a breach of the duty of the office, which is addressed below. We recognise that the arguments overlap to a significant extent, although the result is the same however the elements are approached.
Here, the misconduct alleged concerns Mr Johnson's adoption and repetition of the Vote Leave campaign message concerning the £350m per week. No allegation is made, nor could any be made, that Mr Johnson adopted or commended that figure for any purpose other than in the course of a contested political campaign. 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, and many examples of this process are furnished in the material supplied by the Applicant.
In drawing upon freely-available public statistics for the purpose of a political argument, Vote Leave, and those who supported and spoke for that campaign, were clearly not acting as public officials, nor exercising any public power. They made no claim to special knowledge of the sums expended by the UK, they exercised no official powers in promoting that message and the provision of figures about UK spending formed no part of Mr Johnson's official duties.
There is no example where a public official has been taken to be 'acting as such' in remotely comparable circumstances. The Applicant has, with respect, overlooked for the purposes of their argument the substance of the misconduct cases. Certainly, there are examples of relevant breaches of duty where the public official abused the power given to him by virtue of his office, albeit that the misconduct fell outside the scope of his authority (see below). In all of these cases, the individuals concerned were exploiting the official powers of the office for corrupt private advantage. That is the gist of the misconduct offence.
The allegation made here is of a wholly different kind. The claim is that, on the campaign trail, Vote Leave (and Mr Johnson specifically) twisted or mis-represented public statistics to make a political point. Such conduct, if proved, lacks entirely the necessary relationship with the actual duties and powers of the public offices concerned.
The kernel of the offence is that an officer, having been entrusted with powers and duties for public benefit, has in some way abused them, or has abused his official position."
The alleged conduct here is the misuse of statistics in the course of non-party, national debate, in order to burnish a very public political argument, participation in which is not a duty of any official position nor the exercise of any official power. The situation here shares none of the features of the "various circumstances in which the offence has been applied" and does not begin to 'bear the indicium' of the harm which the offence is designed to address. As noted, the offence is not concerned with poor behaviour by public officials, but with the abuse of official power: the proper territory of the offence is serious misconduct in the discharge of a public office and not poor conduct by someone who is a public official (even when that takes place in public).
The misconduct alleged here could not sensibly be characterised as being "incompatible with the proper discharge of the responsibilities of his public offices"; it has, in truth, nothing to do with the discharge of those offices. And that link is essential; the conduct must be incompatible. In other words, it must be logically or practically impossible for the individual to engage in the misconduct alleged, whilst simultaneously exercising the specific powers and discharging the duties of his/her office in a proper way."
"It is further served that the UK statistics authority described the figure as misleading. The Institute for Fiscal Studies described the same as plain "absurd" Further, the UK Statistics Authority has said that the EU membership figure of £19 billion a year or £350 million per week is "not an amount of money that the UK pays to the EU each year." Moreover, the Authority Chair has described the use of the figure by Mr Johnson as "a clear misuse of official statistics" The Chair, Sir David Norgrove, observed further directly to Mr Johnson that:
"I am surprised and disappointed that you have chosen to repeat the figure of £350 million per week in connection with the amount that might be available extra public spending when we leave the European Union"
"It is submitted that the facts alleged by the Applicant do not come close to establishing a qualifying breach of duty. None of the acts complained of took place in the course of Mr Johnson's direct parliamentary or mayoral duties, but in the course of political campaigning. In no case is there the slightest connection between the statistic in issue and Mr Johnson's public duties, and at no point is it alleged that he had, or claimed to have, any special knowledge or authority in relation to them. There is no trace in the allegation of the abuse of the powers of the office, of corruption or of any dishonest motive. The motive alleged is that, like all those involved in any form of political debate, Mr Johnson sought to present the publicly available facts in a manner which supported the position he wished to advance.
The Applicant complains that in doing so, Mr Johnson "failed to check the accuracy of that which he chose to advance", or that he presented the statistics in a manner which, by reason of the use of a gross figure when a net figure was called for, was misleading and wrong. These are common complaints, the kinds of complaints which are the proper substance of political debate, public contradiction and the judgment of the electorate, all of which ensued in this instance.
If there were some genuine element of impropriety, the conduct would presumably merit investigation by the bodies charged with the maintenance of the standards of the office holder, here the Greater London Authority and the Parliamentary Commissioner for Standards. The latter of course is responsible for ensuring compliance with the very Code of Conduct upon which the Applicant now relies. The Applicant has made no such complaints."
WITHOUT REASONABLE CAUSE OR JUSTIFICATION
IS THE PROSECUTION VEXATIOUS
I repeat what is stated above. The allegations which have been made are unproven accusations and I do not make any findings of fact. Having considered all the relevant factors I am satisfied that this is a proper case to issue the summons as requested for the three offences as drafted. The charges are indictable only.
This means the proposed defendant will be required to attend this court for a preliminary hearing, and the case will then be sent to the Crown Court for trial. The charges can only be dealt with in the Crown Court.
29th May 2019.
Note 1 R v West London Metropolitan Stipendiary Magistrate, ex parte Klahn  WLR 933, at 936E [Back] Note 2  EWCA Crim 466;  3 WLR 1064 [Back]
Note 1 R v West London Metropolitan Stipendiary Magistrate, ex parte Klahn  WLR 933, at 936E [Back]
Note 2  EWCA Crim 466;  3 WLR 1064 [Back]