Alexander Boris De Pfeffel Johnson v Westminster Magistrates' Court
| Jurisdiction | England & Wales |
| Judge | Lady Justice Rafferty,Mr Justice Supperstone |
| Judgment Date | 03 July 2019 |
| Neutral Citation | [2019] EWHC 1709 (Admin) |
| Docket Number | Case No: CO/2148/2019 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 03 July 2019 |
[2019] EWHC 1709 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE RT. HON. Lady Justice Rafferty
THE HON. Mr Justice Supperstone
Case No: CO/2148/2019
and
Adrian Darbishire QC and Rachna Gokani (instructed by BCL Solicitors LLP) for the Claimant
Jonathan Auburn (instructed by GLD) for the Defendant
Jason Coppel QC and Anthony Eskander (instructed by Bankside Commercial) for the Interested Parties
Hearing date: 7 June 2019
Approved Judgment
Lady Justice Rafferty and
This is the judgment of the court:
Introduction
This claim for judicial review challenges the decision of a District Judge (Magistrates Court) (“the DJ”) who at Westminster Magistrates' Court on 29 May 2019 decided that there was a proper case to issue a summons against Mr Boris Johnson (“the Claimant”) for three offences of misconduct in public office. The application in contemplation of a private prosecution was on 20 February 2019 made by Brexit Justice Limited, alongside Mr Marcus Ball, the interested parties (“IP”) to this claim.
On 4 June 2019 Supperstone J granted interim relief and ordered that there be an expedited rolled-up hearing of the application, to be heard by a Divisional Court.
The facts alleged
The allegation is that the Claimant 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 was displayed on the side of a bus as part of the Vote Leave campaign during the 2016 EU referendum. Each also appeared elsewhere, for example on billboards. During interviews shown on television, more than once the Claimant suggested that the UK parted weekly with that sum to Europe. At the time he was Mayor of London and a MP.
The proposed counts, each pleading misconduct in public office contrary to common law, were:
i) that between 21 February 2016 and 23 June 2016 as a holder of public office namely a Member of Parliament and whilst acting as such the claimant wilfully neglected his duty and/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;
ii) that between 21 February 2016 and 8 May 2016 as a holder of public office, namely the Mayor of London and whilst acting as such, the claimant wilfully neglected his duty and/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;
iii) that between 18 April 2017 and 3 May 2017 as a holder of public office namely a Member of Parliament, and whilst acting as such, the claimant wilfully neglected his duty and/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 argument advanced by the IP was that the figure of £350 million a week was known to be misleading. It was properly expressed either as gross, or as a net £250 million per week. In espousing and promoting it, the Claimant 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. During a political campaign the Claimant misrepresented or twisted statistics in the public domain so as to score a political advantage.
The Claimant's answer is that even were that contention made good, still lacking is the necessary relationship with his duties and powers as a public official. Central to his submissions is that the crucial distinction is between acting as a public official on the one hand and acting whilst a public official on the other. It was not in issue that the conduct impugned had as its sole purpose the boosting of a political campaign. As is commonly the case, once made, the assertion as to £350 million (derived from information freely available) was criticised contradicted and challenged, not least by the IP.
Legal Framework
When determining an application for a summons a magistrate must ascertain whether the allegation is of an offence known to law, and if so whether the essential ingredients of the offence are prima facie present ( R (DPP) v Sunderland MC [2014] EWHC 613 (Admin) (“ Sunderland”)).
In Attorney General's Reference (No 3 of 2003) [2005] QB 73 (“AG Ref 2003”) the Court of Appeal identified the four elements of the common law offence of misconduct in public office as:
i) a public officer acting as such
ii) wilfully neglects to perform his duty and/or wilfully misconducts himself
iii) to such a degree as to amount to an abuse of the public's trust in the office holder
iv) without reasonable excuse or justification.
At paragraph 43 the court referred to the case of Shum Kwok Sher v HKSAR (2002) 5 HKCFAR 381 from the Court of Final Appeal in Hong Kong, which held that a public official culpably misconducts himself if he wilfully and intentionally neglects or fails to perform a duty to which he is subject by virtue of his office or employment without reasonable excuse or justification. He also culpably misconducts himself if with an improper motive he wilfully and intentionally exercises a power or discretion which he has by virtue of his office without reasonable excuse or justification.
The decision of the DJ
The DJ received written and oral submissions from the Claimant. She was given by the IP an explanatory note signed by Lewis Power QC setting out details of the alleged offences and background circumstances. It included the author's approbation of the stance of the IP, his analysis and interpretation of how the law applied to the Claimant and the attribution of blame to him. We felt confident in our ability to decide the case without reference to it.
Also provided was a document headed Motive and Conduct prepared by the Claimant.
The DJ's analysis of the ingredients of the offence in issue on this challenge was as follows:
“27. ACTING AS SUCH
33. I have considered Mr Darbishire's [counsel for the defendant] skilfully argued submissions but at this stage I am considering only whether there is prima facie evidence, which will be made available before trial, of the necessary ingredients of this aspect of the offence. I consider that the defence arguments set out above are trial issues to be determined following service of all the evidence. That stage has not yet been reached…
34. WILFULLY NEGLECTS TO PERFORM HIS DUTY/OR WILFULLY MISCONDUCTS HIMSELF
42. I do not accept [the Claimant's submissions] for the purpose of considering whether there is prima facie evidence of this aspect of the offence. I accept that the public offices held by Mr Johnson provide status but with that status comes influence and authority.
43. I am satisfied there is sufficient to establish prima facie evidence of an issue to be determined at trial of this aspect. I consider the arguments put forward on behalf of the proposed defendant to be trial issues.”
Further, the DJ rejected the Claimant's submission that the application for a summons was vexatious (paras 56–57).
Grounds of Challenge
Mr Adrian Darbishire QC, for the Claimant, submits that the DJ made an error of law in finding all the ingredients of the offence were made out. In particular he submits, albeit it is common ground that the Claimant was a public officer at the material times, the DJ erred (1) in finding that he was “acting as such” when making/endorsing the statement(s) of which complaint is made; and (2) in finding that the Claimant wilfully neglected to perform his duty and/or wilfully misconducted himself.
Further, Mr Darbishire submits that the DJ's finding that the application was not vexatious was Wednesbury unreasonable.
The Parties' Submissions and Discussion No public law challenge
The first point taken by Mr Jason Coppel QC, for the IP, is that the claim raises no public law challenge (other than on the issue as to whether the application is vexatious).
We do not accept this submission. The Administrative/Divisional Court, acting speedily and by granting interim relief, is exercising its supervisory jurisdiction over an inferior court. The error of law about which complaint is made was bound (as we find, see below) to have led the DJ to act in excess of jurisdiction and unlawfully by deciding to issue a summons where the ingredients of the offence were not made out and which was outside the scope of the offence.
Further, such an error of law necessarily involves a finding that no DJ properly directing herself as to the ingredients of the offence could, on the material before her, reasonably have found the offence made out. In Sunderland the court stated:
“22. In any event [the lay magistrate] was obliged to come to a judicial conclusion on whether or not to issue either or both summonses, and that required a review of whether there were prima facie evidence of the ingredients of the common law offence. We have set them out. Had he conducted a rigorous analysis of the legal framework, he could not reasonably have concluded that there was such. …
26. This case shouted out for legal advice to a lay magistrate. That advice should have been that he should consider the letters of summer 2013 to which we have referred, the interstices of which would have...
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