No Go v Bojo
Divisional Court’s Reasoning for Quashing Issue of Summons Against Boris Johnson
On 3 July 2019 the Divisional Court (Rafferty LJ and Supperstone J) handed down its reasons for the decision to overturn the issuing of a summons against Mr Boris Johnson in one of the most high profile decisions in a private prosecution to date.
By way of background for those mercifully divorced from political news, the crowd funded private prosecutors, Brexit Justice Ltd and Marcus Ball, sought to prosecute Mr Johnson for the offence of misconduct in public office in relation to his oft repeated claim during the EU referendum that the UK sends £350 million a week to the EU. It was said that Mr Johnson was perfectly aware that this was a grossly inflated figure, and therefore he had committed the offence.
Rather than issuing the summons on the papers, District Judge Coleman held a full oral hearing, before deciding to issue the summons sought by the private prosecutor.
Mr Johnson’s legal team sought to challenge that decision on two grounds: first that the ingredients of the offence of misconduct in public office were not prima facie present, and, second that the DJ’s decision that the application for a summons was not vexatious, was irrational.
As expected, the judgment largely focuses on the limits of the offence of misconduct in public office, and the fact that there is a difference between holding a public office and acting in that capacity. Mr Johnson was not campaigning in the Brexit referendum as part of his duties as the Mayor of London or as an MP: he was expressing an opinion whilst holding a public office as opposed to acting in the course of that public office. Therefore the offence was not made out and the decision to issue the summons was quashe
The reasoning of the High Court is however of wider significance in a number of respects.
First the court flatly rejected the principal submission by counsel for the prosecutor that the claim being brought raised no public law challenge. The court emphasised that it was exercising its supervisory jurisdiction over an inferior court where it was being claimed that the lower court had made a flawed finding that the ingredients of the alleged offence were made out and that such a contention plainly raised a public law challenge.
Second, the court emphasised, referring to Kay and Sunderland, that the threshold test for issuing a summons is not a low one as was contended for by counsel for the prosecutor, and an application must be subjected to proper scrutiny. That was especially so when cases were sent directly to the Crown Court and was particularly important in the present case, in order not to confine the conduct of public officers in the proper performance of their duties.
Third, the judgment underlines the need for a very careful consideration of applications for summonses in order to start a private prosecution: the court was clearly unimpressed by the DJ’s relatively sparse reasoning which lacked “a rigorous analysis of the scope of the offence.”
Fourth, the court also indicated that, had it been necessary to do so, it would have quashed the DJ’s decision to issue the summons on the basis of her decision that the prosecution was not vexatious. Essentially the defence argument was that the proceedings were politically motivated, and ultimately aimed at bringing about a second referendum. The DJ had stated:
“I accept the defence submission that when the applicant commenced his consideration of whether to bring a private prosecution against the proposed defendant, some three years ago, there may have been a political purpose to these proceedings. However, the information for the summons was laid on the 28th February 2019 and that argument, in my view, is no longer pertinent.”
The court found that the passage of time since 2016 was no answer to a political motive. As they could detect no other reasoning to support the DJ’s conclusion, that decision was also flawed. It was not necessary to determine whether it was also irrational.
It is now almost inevitable that a well-funded defendant will challenge the issuing of summonses in a private prosecution. Where this happens the overwhelming message from this judgment is that decisions to issue summonses, or not to withdraw them, must be taken with care, subjected to rigorous scrutiny and sufficiently reasoned.
 R (Kay and another) v Leeds Magistrates’ Court  4 WLR 91
 R (DPP) v Sunderland Magistrates’ Court  EWHC 613