Misconduct in public office: elements

The judge’s decision that there was a proper case to issue a summons against Boris Johnson for three offences of misconduct in public office, based on the allegation that he had endorsed two misleading statements as part of the Vote Leave campaign during the 2016 EU referendum while Mayor of London and an MP, was quashed. The Divisional Court, in allowing Johnson’s application for judicial review, held that the proposed application of the offence in the present case would extend the scope of the common law offence.

The interested parties applied for a summons against the claimant, Alexander Boris de Pfeffel Johnson (Johnson), alleging that he had endorsed two misleading statements displayed on the side of a bus as part of the Vote Leave campaign during the 2016 EU referendum and appeared elsewhere, and that during interviews shown on television, more than once Johnson had suggested that the UK parted weekly with that sum to Europe. At the time he had been Mayor of London and an MP. 

The judge decided that there was a proper case to issue a summons against Johnson for three offences of misconduct in public office (see [2019] All ER (D) 140 (May)). Johnson sought judicial review of the judge’s decision. 

Application allowed.

Issues and decisions

(1) Whether, as the interested parties contended, the claim raised no public law challenge (other than on the issue as to whether the application was vexatious) and the threshold test for the issuance of a summons was a low one. 

With respect to the public law challenge, the Administrative/Divisional Court, acting speedily and by granting interim relief, was exercising its supervisory jurisdiction over an inferior court. The error of law about which complaint was made had been bound to have led the judge to act in excess of jurisdiction and unlawfully by deciding to issue a summons where the ingredients of the offence had not been made out and which had been outside the scope of the offence. Further, such an error of law necessarily involved a finding that no judge properly directing herself as to the ingredients of the offence could, on the material before her, reasonably have found the offence made out. Johnson’s contention, that the judge had erred in law and made a flawed finding that the ingredients of the offence had been made out, plainly raised a public law challenge (see [17]-[20] of the judgment). 

With respect to the threshold, the interested parties’ contention, that the threshold test for the issuance of a summons was a low one, was wrong. Failure to insist upon a high threshold, so as to confine the offence of misconduct in public office within its proper ambit, would place a constraint upon the conduct of public officers in the proper performance of their duties, contrary to the public interest (see [20], [24] of the judgment) 

R (on the application of Director of Public Prosecutions) v Sunderland Magistrates Court [2014] EWHC 613 (Admin) applied; R (on the application of Kay and another) v Leeds Magistrates’ Court [2018] All ER (D) 128 (May) applied.

(2) Whether, as Johnson submitted, that the judge had made an error of law in finding all the ingredients of the offence had been made out, in particular in finding that: (i) he was ‘acting as such’ when making/endorsing the statement(s) of which complaint was made; and (ii) he had wilfully neglected to perform his duty and/or wilfully misconducted himself. 

With respect to acting as a public officer as such, the judge had erred in finding that Johnson as a public officer had been ‘acting as such’, when a proper analysis of breach of duty would have revealed the true position. It had not been sufficient to say that he had made the statements when in office as a MP and/or Mayor of London, and that the public offices held by Johnson provided status, but with that status came influence and authority. That did no more than conclude that he had occupied an office which had carried influence. That ingredient required a finding that as he had discharged the duties of the office he had made the claims impugned. If Johnson had simply held the office, and while holding it expressed a view contentious and widely challenged, the ingredient of ‘acting as such’ was not made out (see [29] of the judgment). 

With respect to wilful neglect and/or wilful misconduct, no authority had been shown suggesting that the offence could be or had been equated to bringing an office into disrepute or misusing a platform outside the scope of the office. There was no precedent for any office holder being prosecuted for misconduct in public office for wilfully making/endorsing a misleading statement in, and for the purposes of, political campaigning or even any comparable case. Contrary to the interested parties’ submission, that did matter, as what was alleged did not fall within the principles applicable to the offence (see [34], [35] of the judgment). 

The proposed application of the offence in the present case would extend the scope of the common law offence. There was no analysis by the judge of that aspect of Johnson’s submissions. Further, the ingredient of the offence ‘acting as such’ was not a matter for evidence at trial. The ingredient ‘wilfully neglects to perform his duty and/or wilfully misconducts himself’ required a rigorous analysis of the scope of the offence and of whether the judge’s conclusion would extend the established limits of the offence. None had been found (see [38]-[40] of the judgment). 

R v Rimmington; R v Goldstein [2006] 1 AC 459 applied; R v Mitchell [2014] EWCA Crim 318 applied; A-G’s Reference (No 3 of 2004) [2005] 4 All ER 303 considered.

(3) Whether the judge’s finding that the application had not been vexatious had been Wednesbury unreasonable. 

The passage of time since 2016 had been no answer to Johnson’s detailed submission that the political motive for the prosecution was apparent from evidence as far back as July 2016 and up to the institution of the prosecution in February 2019. Johnson was entitled to know why the judge had found that the prosecution had not been vexatious, but no reasoning to support her conclusion was detected. Accordingly, the decision would also be quashed on the basis that the finding that the prosecution had not been vexatious had been flawed. It was unnecessary to decide whether it had been Wednesbury unreasonable (see [44]-[46] of the judgment). 

Adrian Darbishire QC and Rachna Gokani (instructed by BCL Solicitors LLP) for Johnson. 

Jonathan Auburn (instructed by the Government Legal Department) for the defendant.

Jason Coppel QC and Anthony Eskander (instructed by Bankside Commercial) for the interested parties.

Karina Weller - Solicitor (NSW) (non-practising)