04
Jun
19
Articles
Boris Johnson and misfeasance in a public office

Half the fun in being a Treasury junior must lie in going along to courts to oppose the more outlandish summonses and claims issued by people with a bee in their bonnet about the actions of public figures. Robbie Manson, who described himself as a peace campaigner, made several attempts to get criminal summonses issued against Tony Blair, Jack Straw and Geoff Hoon over the Iraq war. The Magistrates were having none of it and nor did the Administrative Court when Mr Manson sought judicial review of the Magistrates’ refusal to issue summonses.

This time though, a campaigner has got a summons past the initial stage. I refer of course to the well-publicised summons against Boris Johnson, who is accused of having committed the crime of misfeasance in a public office because of what he said whilst campaigning on behalf of the Leave campaign back in 2016. The Criminal Procedure Rules give an opportunity for the proposed defendant to a summons to be heard as to whether it should be issued, and so a hearing took place in public on 23rd May in which counsel for the proposed prosecutor and the proposed defendant each made submissions to the District Judge as to why it was or wasn’t appropriate for a summons to be issued. That resulted in what is effectively a written judgment by the District Judge on 29th May in which the Court held that there was a case to answer and that a summons should be issued. The judgment, described by the District Judge as “full reasons”, is available here: https://www.judiciary.uk/wp-content/uploads/2019/05/Ball-v-Johnson-FV-290519.pdf.

Misfeasance in a public office is a tort as well as a crime, and so it is familiar to police lawyers. It involves the deliberate and knowing abuse of a public office.

One obvious problem for someone accusing a politician of committing misfeasance by lying during a referendum campaign, is the difficulty of showing that when the alleged lies were told the politician was acting qua officeholder and not qua campaigner.

That point was taken during the hearing on 23rd May, and in the judgment the DJ quotes from Mr Johnson’s counsel’s submissions on it. The relevant extract from the judgment is:

“Mr. Darbishire QC puts forward the following argument, reproduced with his consent from his skeleton argument:

“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.”

Those are formidable submissions. They make what is a very good point of law, which is that the crime isn’t committed unless the person committing the misconduct is actually exercising the power or purporting to exercise the power that comes with the office.

One would have thought there would have to be some pretty compelling evidence to get over this hurdle. However having quoted the extract above, the District Judge’s ruling on it was

“I have considered Mr. Darbishire’s 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.”

That is a very disappointing ruling which fails to do justice to the submissions made on it. If there isn’t any evidence that all of the elements of the offence are satisfied, the defendant has the right not to be harried by the issue of a summons. If there is such evidence, it is incumbent upon the Court to identify it so that the defendant can understand why he has lost and also so that an appellate court can see whether the lower court has made a mistake. One simply cannot tell from the ruling what evidence the District Judge had in mind as amounting to prima facie proof that the alleged lies were told in the course of performing public duties as officeholder. The ruling on this point could be paraphrased as “I’ve seen the papers and I think this should go to trial”. That is not good enough. Regardless of what one thinks about either the defendant in this case or indeed any other case, they deserve better than to be told by the District Judge at the end of a contested hearing that their submissions are unsuccessful without any real analysis of why that is.

Written by or involving: Geoffrey Weddell
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