Analysis

The private prosecution of Boris Johnson – what happens next?

By on
38

Criminal barrister Rhys Rosser explains

📸 Original image via Snowmanradio

It is extremely rare for a sitting MP to be prosecuted for an offence, let alone one of misconduct whilst in public office. During the last 12 months trials have concluded in the cases of Fiona Onasanya (perverting the course of justice) and Craig Mackinlay (South Thanet false expense declarations where he was acquitted). These will no doubt fade into obscurity following yesterday’s news of the private prosecution of Boris Johnson for the offence of misconduct in public office.

Background to proceedings

In order to commence proceedings, an “information” must first be laid in the magistrates court. There is no time limit on laying an information for an indictable only offence, such as that which Johnson faces.

The procedure for the laying of an information is governed by Part 7 of the criminal procedure rules (CPR). Where a prosecutor wants the court to issue a summons, the prosecutor must serve an information in writing on the court officer or present an oral information with a written record of the allegation it contains. It is ordinarily more appropriate to provide a written information rather than attending and providing it orally. There is no particular form that is required to be used, all that matters is that the document sent to the magistrate’s court contains the essential elements of an information. (R v. Kennet Justices ex p Humphrey and Wyatt [1993] Crim.LR 787)

It is extremely unusual for a magistrates court to hold a hearing to determine whether or not a summons should be issued. However, district judge Coleman decided that in the case of Johnson this would be appropriate, given the significant public interest in the case.
The decision to issue a summons is guided by the general principle that the summons should be granted unless there is a compelling reason not to do so. This residual discretion will be exercised if the prosecution appears frivolous or vexatious, or if there is some other compelling reason, e.g. undue delay. The minimum matters that must be proven are:

a. The allegation is an offence known to the law and the essential ingredients of the offence are prima-facie present;
b. The alleged offence is not out of time;
c. The court has jurisdiction;
d. The prosecutor has authority to commence the prosecution (this was considered in the case of R v West London Justices, ex parte Klahn [1979] 2 All ER 221).

The prosecution is being brought by Marcus Ball, the director of Brexit Justice Ltd. This was a company set up in December 2016, seemingly with the sole purpose of prosecuting Johnson for these offences. As a result of a crowdfunding campaign, he has raised approximately £200,000 to bring proceedings. Interestingly, on 19th April 2019 Mr Ball filed at Companies House that he was no longer a person with significant control of the business. It is perfectly appropriate for proceedings to be brought by either an individual or a company, the power being given by section 6 of the Prosecution of Offences Act 1985.

The application for a summons

It should be noted at the outset, that the test for granting a summons as set out above is relatively low. It would take a brave district judge to refuse to grant a summons on any of the grounds that are available.

There were substantial arguments advanced by both silks who have been instructed in the case. The prosecution essentially allege that whilst acting as London Mayor and as an MP, Johnson deliberately lied to the general public about the sums sent to the EU and that instead £350 million could be sent to the NHS. It is hard to forget the message being branded across the ‘Boris Bus’ as it became known.

Johnson, through his representatives, argued that the application was pursued for purely political purposes. There is clearly value in this argument given the name of the company that Mr Ball acts through and the apparent motive. However, the defence further sought to argue that there was no evidential basis — given the offence can be committed on a reckless basis, this is not necessarily true.

The court had to consider the various ingredients of the offence, in reality this simply was a consideration of whether or not Johnson had deliberately/recklessly made false or misleading representations to the public. The reality of the position is that it simply needed to be shown that there was prima facie evidence of the commission of an offence, not necessarily a difficult task. The prosecution can simply rely on Johnson’s repeated comments and the apparent inconsistency between sending the EU £10 billion a year and sending them £350 million a week (the equivalent of £20 billion a year).

The 2019 Legal Cheek Chambers Most List

One issue that has arisen and will no doubt be argued further, is whether or not Johnson was actually acting in public office when he made these comments. There arguably ought to be a distinction between those made acting in office and those made acting as a campaigner — there will likely be further argument in due course regarding the distinction.

The district judge also needed to consider whether or not the prosecution was vexatious. This received relatively limited discussion and it appears there may be more to the materials disclosed to the court than that in the public domain. In a case of such political nature, one would normally expect further discussion.

The decision

District judge Coleman effectively rejected the submissions advanced by Johnson and without making any factual findings issued the summons. In reality, this is not unexpected — the bar is extremely low at this stage; that will change.

What happens next?

As I understand, there is already a judicial review of the district judge’s decision to issue a summons. I do not anticipate that this will be successful, there is a prima facie case to answer and the ruling suggests that there is more to the case than simply a political motivation.

The High Court, who will hear the application by way of case stated, will decide whether the decision was made unlawfully — it would appear not at face value. Alternatively, they will consider whether or not the decision is Wednesbury Unreasonable, a well-known legal test which means they will decide whether the decision is so unreasonable that no reasonable district judge could have reached it.

There does not appear to be anything unlawful about this decision, however, there will be extensive argument about each element of the offence. One particular area of consideration will be whether or not this is actually in the scope of public office, it is akin to the Carbolic Smoke Company ‘mere puff’. This will take time to consider and there may well be an application for an interim ruling not to issue the summons in the intervening period.

Assuming the judicial review is unsuccessful, there will be a summons issued and Johnson will be required to attend at Westminster Magistrates Court in the near future. It is not possible to say which date this will take place on. This hearing will be extremely short, Johnson will indicate a not guilty plea and the case will be sent to the crown court, probably at Southwark, for a plea trial and preparation hearing within 28 days of that date.

What will be argued?

The defence will no doubt pursue various arguments. The first of these will be an application to dismiss which will submit that no jury, properly directed, could convict Johnson of the offences that he is charged with. This will take the evidence put forward by the prosecution at its highest. Once again, there will be an argument that Johnson was not acting in the scope of public office, in addition to further arguments likely about each individual ingredient of the offence.

Following this, I would expect there to be various applications for disclosure. Private prosecutions come under substantial scrutiny for their attempts to properly investigate cases and disclose the material that is held. Ball’s legal representatives will need to be extremely careful to schedule the material that they rely on and, arguably more importantly, that material which they do not rely on. If the prosecution cannot show that they have complied with the various disclosure guidelines and obligations, they will not be permitted to prosecute Johnson and the proceedings will be brought to an end.

There will then be an application that the proceedings are such that Johnson cannot receive a fair trial or that they are an affront to the general principles of justice. For example, the political motivation for the proceedings will come under substantial scrutiny and whether or not the criminal courts are being used simply for the purpose of pursuing a political cause. There may well be further grounds of abuse pursued.

Will there be a trial?

If none of these arguments succeed, then there will likely be a trial. This will be a crown court trial so heard before a judge and jury. There will be evidence seemingly called by members of the public who allege that they were misled into voting leave as a result of comments made by Johnson.

Given all of the arguments that will be pursued, it’s unlikely that a trial will happen in 2019 and so by the time he has to arrive at Southwark Crown Court, Johnson may well be the Prime Minister. That, as far as I’ve been able to tell, would be an entirely new situation.

Rhys Rosser is a junior tenant at 2 Bedford Row practising in criminal and regulatory law.

38 Comments

Anonymous

Very interesting article – more of this kind of stuff please, LC.

(70)(1)

Sally from Accounts

Does anybody know the hearing date???

(1)(0)

Anonymous

excellent explanation and article

(25)(0)

Anonymous

Great to see it properly set out by another lawyer. Does anyone know if the CPS have to take over under The Prosecution of Offences Act? I thought the criteria had to be is there a realistic prospect of conviction or is that just when CPS are taking the decision in accordance with their guide?
Or can they equally take over a case doomed to failure such as this and just discontinue it?
I don’t see how he could ever have a fair trial with a public so divided with entrenched issues on the subject. Surely statistically it would be impossible to find a Jury that bring no predudices on such an issue?
The company was founded in 2016 yet waits until the point that he launches a bid to be PM to start their proceedings. He has been even money with the bookies. Post that decision 9/4. And Gove in from 6/1 to 7/2 same day. It smacks surely of the criminal law being used to intervene in politics.
Final point – was Johnson really solely responsible for that bus campaign or just singled out for political reasons?

(21)(1)

JBT

The CPS can take over the case. If they do, they can discontinue or prosecute.

(7)(0)

craig mcclaren stevens

Papers were submitted some time ago long before May resigned. Ball first started in September 2018 building a potential case. Johnson’s political advancement has no bearing on the case and it is not designed to interfere with the decisions on Brexit rather make politicians answerable for their actions spoken or written. Johnson is considered innocent and can receive the same treatment as any other citizen for a fair trial.

(0)(0)

Labour|HRA|Brexit|j.r.moss

Yes this may be rare but something like this being tried and sentenced will surely tighten the leash on politicians.

(9)(3)

Anonymous

It seems to me that the position of the Criminal Division is to say “We have extremely shoddy procedure which is patently open to abuse, but this case cannot be abuse of process because our procedure is so bad”.

The judgment should be read by all and the author is too kind on how several matters are dealt with.

All part of the general rot and decline we have tolerated in Criminal Law. Perhaps set piece displays of staggering ineptitude involving celebrities and politicians will achieve more than the protests have.

So sad to see the legal system exposed this way.

(6)(5)

G Miller

I’ve donated!

(6)(10)

Anonymous

I’ve donated

(0)(2)

Anonymous

NO DEAL

NO DEAL

GIRFUY

(6)(4)

Anonymous

It’s absurd.

Unless they pack the jury with at least 10 absolute hard-core remoaners, there isn’t gonna be a chance of a conviction, as it is so obviously a political stunt.

(8)(6)

Malcolm

Yes it is a political stunt but, he lied and because of this people thought the NHS would get £350m each week of additional funding. In my humble view, that lie persuaded many people to vote leave.

(7)(6)

Anonymous

‘Lying’ per se (in and of itself) is not a criminal offence (‘crime’) in England, nor it was so back in 2016. It is simply not a crime in this country if it is not perjury, making a false declaration or fraud.

(0)(0)

Anonymous

A Remainer writes…

This prosecution is foolish, a vanity action and offensive to the process of criminal justice. It diminishes the (already low) reputation of the criminal law and wastes very limited resources.

Political stunts are becoming more common in all areas of the law. There should be some general discretion given to judges to bin this sort of nonsense early on the ground of collateral purpose (if the discretion exists already there will never be a stronger case for its exercise.)

Anyone who believes in the UK staying a member of the EU ought to condemn this prosecution. It will just turn people off the cause.

(15)(4)

Anonymous

I disagree with you here, but only on the reason. I just simply do not trust District Judges (or worse, civil/lay Magistrates) being entrusted either with the various more complicated ‘points of law’, or with the exercise of discretion. Quite rightly, the Administrative or Divisional Court will hopefully perform the execution on Friday the 7th properly and ‘deal’ with it stone cold, instead of doing a botched job, as the ‘inferior’ courts are bound to do. Are Magistrates’ Courts even deemed (proper) ‘courts of record’ here in England (and Wales) anyway?!

(0)(0)

Bad luck Bojo

THIS IS GONNA BE BIBLICAL

(4)(6)

Anonymous

Excellent article – thanks for the clear explanation.

Whatever your views on Brexit or Boris, or indeed the bus, this is clearly a politically-motivated, vexatious and abusive action. The DJ’s decision is obviously wrong, and if allowed to stand will open the door to endless similar, abusive proceedings, which will rapidly bring the legal system into disrepute (to the extent that it isn’t already).

(7)(4)

Anonymous

Typical lawyer, stick well and truly inserted 6 inches up.

(0)(1)

Steve

I cannot see that the prosecution having a political motive is relevant. This is particularly so given that what is complained of is a political lie. It’s hardly likely that a pre-Brexit campaigner would seek to prosecute another pro-Brexit campaigner for a dishonest campaign, and therefore any prosecution is going to come from the other side.
It’s different when the state prosecutes with political motive, as that would be an improper use of state power.
Furthermore, what exactly is the objective of the ‘political’ motive everyone keeps talking about? Neither damaging Boris’s chances in the Tory leadership election nor depriving the Tory party and his constituents of his services as an MP are political objectives. It seems that the argument is ‘I’m a politician, this is a prosecution, if it’s successful my personal political objectives would be impeded, therefore this is a politically motivated prosecution.’
This prosecution does not prevent a no-deal Brexit supporter from being elected to the job, it doesn’t prevent or even make one whit less likely the possibility of Brexit taking place, it doesn’t promote the interests of Remainers over the interests of Leavers, it doesn’t promote the interests of Labour (or any other party) over Tories. Other persons will be able to look after the interests of his constituents and so far as I’m aware he has no actual Party duties or responsibilities at this time.
What it would do is punish a man who has demonstrated several times that he has no compunction against being dishonest if it promotes his interests.

(6)(2)

Anonymous

If it has a ‘political motive’, then, according to R (on the application of SG and others (previously JS and others)) (Appellants) v The Secretary of State for Work and Pensions ([2015] UKSC 16), “Whether the cap should be higher is a political question. It is not the function of the courts to determine how much public expenditure should be devoted to welfare benefits.” (Press summary)

Lord Reed: (Para 72) “Whether that level of benefits ought to be paid by the state is inherently a political question on which opinions within a democratic society may
reasonably differ widely. It is not the function of the courts to determine how
much public expenditure should be devoted to welfare benefits.”

The only question here is, are only the motives political, or are the motives so strongly political as to make the whole prosecution application inherently political. An inherently political prosecution is also usually considered ‘an abuse of process’, and for both reasons it means a ‘(permanent) stay’ (i.e., it cannot go ahead).

(0)(1)

Anonymous

It’s due to the repeal of S15 of the Theft Act and the replacement of it with the much wider fraud by false representation. If you say something which you know is untrue with a view to making a financial gain, that is suffient. The old law required prove of an actual gain or if an attempt was charged more than a preparitory act. This was deliberate by Parliment as they wanted to widen criminal liability. It made criminal actions which were not previously criminal, for example standing on a box to look over the wall of a football ground in order to watch the game for free.

If you lie on a job application, even if the lie is absurd and the employer is not fooled for a moment, you have made a false statement with a view to gaining a financial advantage (getting the job and the salary) and you comit the offence. If you lie in an election campaign even if the lie is absurd and voters are not fooled for a moment, you have made a false statement with a view to gaining a financial advantage (getting elected and the MP’s salary).

I agree with you that it’s difficult to see how the offence could be made out here as even assuming a false statement was made the was not an election for a paid office so neither side stood to gain financially by winning. The offence can be committed with the intention of causing loss to another, but that would be impossible to prove. The Fraud Act is certainly wide enough to cover political candidates who lie to get elected in a general election. Perhaps they should be more careful what legislation they vote for.

The CPS do however pretty often prosecute ordinary people who lie to get jobs. Should an MP be treated any differently?

(12)(2)

Anonymous

“I accept the defence submission that when the applicant commenced his consideration of whether to bring a prosecution against the proposed defendant, some 3 years ago, there may have been a political purpose to these proceedings. However, the information for the summons was laid on 28/2/19 and that argument in my view is no longer pertinent”
This part of the judgement quoted verbatim must be wrong. I would have thought the opposite to be the case. To say their was a political motive 3 years ago, though not now is surely designed to have the maximum political impact. The proposed defendant was even money favourite with bookmakers the day that news broke out to 9/4. So whether designed to or not it had that effect. A point the lawyers will no doubt being to the notice of The High Court in the JR proceedings

(4)(1)

Anonymous

As set out in the article though, the grounds on which the Court can refuse to issue a summons are very limited. Being politicaly motivated is not one of them. That could be a consideration to stay under a limb 2 abuse of process application, But that is something which can only be considered by the court trying the case. I don’t think you can say the DJ was wrong to issue the summons.

(5)(3)

Anonymous

Limb 1 (unlawfulness/ultra vires), not Limb 2 (unfairness), as the expected JR application now turned out. For one thing, the repeated (and deliberate, no doubt at Marcus’s personal request and insistence) use of the words ‘lies’ and ‘lying’ in order to prejudice any fair future trial for Boris Johnson.

(0)(0)

Anonymous

Surely this would open a black hole to political lies/misjudgment. Lies should be dealt with but not with criminal proceedings, particularly where it is dealing with politics and more ambiguous as to whether the claims hold validity (ie suggesting one could reduce employment or something)

I don’t know why everyone’s discussing Brexit in the comments – it’s obviously related but who has the energy to bring it up every time?!

(0)(0)

Steve

You seem to have missed the point that this was not Boris putting forward a political opinion, it was purported to be a statement of fact.

It’s one thing to say ‘if we leave the EU the NHS will be better off’, it’s quite another thing to say ‘we are sending £350m a week to Europe which we can keep for ourselves if we leave’.

(5)(1)

Anonymous

Even deliberately stating (with malice (of aforethought)) untruth as fact is NOT actually a crime in England. No such offence or crime exists in the laws of this country called ‘Lying’. ‘Should’ or ‘should not’, it simply ‘cannot’, full stop. Any such law, if it even exists in the common law, would directly contravene Arts 9 (freedom of thought, conscience and religion) and 10 (freedom of expression) and also indirectly Arts 6 (right to a fair trial), 11 (freedom of assembly and association) and 14 (prohibition of discrimination) of the ECHR.

(1)(0)

Chris Hepburn

A terrible indictment of the decline of the British legal system.
Johnson is pond slime, however politically motivated prosecutions orchestrated by a professional buffoon that craves his Warholian 15 mins would have Denning spinning in his grave.
It speaks to a systemic decline of moral integrity within the British legal system.
I returned to the UK after many years overseas.
When I left the UK a lot of country solicitors had Wodehousian Qualities (SIC).
Today a lot of country solicitors are engaged in the vilest of the vile, personal injury.
When I left the UK they were silk’s of note involved in public interest law, now they are busy throwing paper at corp dross on behalf of other corp dross and we have professional fakes like Helena Kennedy.
So very sad to see what has happened to the British Legal System.
We have become as inept as that pariah we seem to be busy emulating.
Shades of Larry H Parker and Cyrus Vance, a buffoon dining out on his Fathers name.
I wonder what went wrong?.

(1)(3)

Aaron Baum

The Johnson Case is needed to show the Executive that they can not corrupt Court Proceedings as HMCTS and the Government Legal Department do on a regular basis in that the Leader of the Executive, if Johnson becomes Prime Minister, will carry the can for the regular Misconduct in Public Office by the executive and that the Case will be a show Trial demonstrating that the Rule of Law is sacrosanct and that the Trial will deter Lying from Politicians in the weeks and months ahead
Brexit relies on attacking the Rule of Law with a free for all of lying all round and that the Judiciary have to take this opportunity to help restore the Rule of Law whilst the Trial will elicit what “No Deal” means as we still do not know
Any Judicial Review will Fail as there has been no unlawful act by the Prosecutor and that the Scale of the alleged Lying requires a Trial in the Public Interest

(3)(1)

Steve

Why has Johnson issued an application for judicial review? Shouldn’t he rather have appealed the decision?

(0)(0)

Anonymous

There is no right of appeal as it is neither a conviction or a sentence. So it is JR or nothing. Borris liked the summons procedure well enough when he was mayor, issuing a million summons against Londoners a year. If they were innocent they all had to go through the trial procedure as they couldn’t afford to pay for a private JR. Now its him, off he goes to the High Court to say its not fair.

(5)(1)

Scep Tick

It says a lot about the principles of people with money in this country. The plebs say something they don’t like so they raise a fortune to prosecute. Tony Blair launches a war that kills 100,000 foreigners and the silence is deafening.

(3)(1)

Anonymous

Decisions taken either in the House of Commons or in the House of Lords cannot be subject to actions in the courts. Parliamentary privilege.

(0)(0)

craig mcclaren stevens

Papers were submitted some time ago long before May resigned. Ball first started in September 2018 building a potential case. Johnson’s political advancement has no bearing on the case and it is not designed to interfere with the decisions on Brexit rather make politicians answerable for their actions spoken or written. Johnson is considered innocent and can receive the same treatment as any other citizen for a fair trial.

(1)(0)

Comments are closed.

Related Stories