Marcus Ball vs Boris Johnson: summons quashed.

 Pic: Dominique from UK CC BY 2.0 via Wikimedia Commons

Boris Johnson will not be attending Westminster Magistrates Court to answer criminal charges after all. That follows the High Court's decision today to quash a summons issued on the 29th of May. 

The High Court has today quashed the summons issued by District Judge Coleman in Westminster Magistrates Court. It had required Boris Johnson to attend to answer allegations of misconduct in public office. The summons was issued on the application of a private prosecutor, Marcus Ball and with the aid of a crowd-funded campaign to instruct lawyers to pursue the case.

The High Court judges, Lady Justice Rafferty and Justice Supperstone, gave a ruling following written and oral submissions by QCs for both sides, and after a short adjournment. No written reasons have been provided so far. It may be that they will be provided in the next few days or weeks.

Thus at present, the reasoning of the High Court is unknown, but since this ruling brings to an end the criminal proceedings (subject to any appeal), I'll take a stab at what those reasons were:

The arguments submitted on behalf of Mr Johnson in the Magistrates Court, which were substantially repeated in the High Court, were that:

(a) There was not a prima facie (for which read 'at first glance', or 'on the face of it') case of misconduct in a public office against Mr Johnson, because there was no evidence that any statements made by him in the context of the EU referendum campaign were made 'in a public office', i.e. as part of his duties in the two public offices he held at the relevant times: Major of London and latterly as a Member of Parliament.

(b) There was not a prima facie case of misconduct in a public office because there was no evidence that Mr Johnson had been dishonest. That is to say, there was no evidence he had 'lied', as opposed to, shall we say, 'put a slant' on publicly available statistics - which were challenged and which he no doubt expanded upon on several occasions during the referendum campaign.

(c) The private prosecution was 'vexatious' within the legal meaning of that term, because it was politically motivated.

Having read the judgment of the District Judge, I suspect the High Court will have found for Mr Johnson on grounds (a) and (b) above, namely that there was no evidence on two key elements of the offence, and that the District Judge had acted 'unreasonably' to find to the contrary.

In point of fact, the way the District Judge dealt with the defence submissions regarding the evidence when she issued the summons, was to say the points raised were 'matters to be dealt with at trial' as opposed to matters to be considered by her when deciding whether to issue the summons. I suspect the High Court will disagree with that.

It may be that the High Court voices concerns about the political motivation of the private prosecutor but I think that is unlikely: if the allegations against Boris Johnson were based on strong evidence that he had stolen public funds for his own use, would a prosecution of them be halted because the prosecutor was a political adversary? I doubt it.

The prosecution case was perhaps fairly described as a stretch. As regards the connection between the statements made by Boris Johnson in the referendum campaign, and the public offices he held, the prosecution alleged that the fact he held those offices gave opportunity, prominence and authority to his statements. That is not quite the same as the statements having been made in the course of his duties as a public office holder. (The prosecution also referred to evidence apparently of Mr Johnson's ex-chief of staff saying that supporting leaving the EU was now 'official Mayoral policy', but there may be a question over how serious such a statement was intended to be).

As for whether Mr Johnson's statements regarding the alleged £350 million per week cost of being in the EU were 'lies', the prosecution relied in part on an answer Mr Johnson made in a particular TV interview. On that occasion, he said that 'the UK sent £10bn to the EU annually'. However, that answer would only be strong evidence of dishonesty if we could infer that Mr Johnson had divided 10 billion by 52 in his head, and had therefore realised that a £10bn annual cost of EU membership equated to around £192m per week, and not the £350m figure he used on other occasions.

In any event, in the prosecutor's 'information' placed before the District Judge, the prosecution appeared to hedge its bets somewhat as to whether Mr Johnson's £350m per week statement was 'a lie'. The information referred at one point to his statements made being 'false or misleading'. A misleading use of statistics in political discourse one suspects is not altogether uncommon and perhaps is qualitatively different from a 'false' one.

Where does this leave us? The first question will be whether there is to be an appeal. The judges in the High Court gave their conclusion very swiftly after hearing the arguments, so one assumes they are satisfied they are on firm ground. But then District Judge Coleman gave what was a detailed judgment in the Magistrates Court and so presumably felt that she was on firm ground in what may be the most high-profile judgment of her career. Nevertheless, the effect of the High Court decision is likely to be that they are satisfied she came to a conclusion which no reasonable District Judge could reach.

There is then the question of costs, which even at this early stage, are likely to have been substantial.

Assuming the High Court's decision stands, where does this leave such private prosecutions in the future? We'll have to wait for the written reasons, but if the High Court's ruling is based on a perceived lack of evidential sufficiency, then it shouldn't operate as a hindrance to future private prosecutions where there is sufficient evidence that a crime has been committed. The publicity this prosecution has garnered, and its at least limited success, suggest to me that such prosecutions, potentially with social-media driven crowd-funding, may become more rather than less common.

Gross negligence manslaughter - 'serious and obvious risk of death' requirement

image by: Guilhem Vellut, licence CC BY 2.0

Three recent judgments from the Court of Appeal emphasise the importance of there having been a 'serious and obvious risk of death' before a defendant's gross negligence can lead to a conviction for manslaughter. 

R v Kuddus [2019] EWCA Crim 837, in which the judgment of the Court of Appeal Criminal Division was published earlier this month, is a tragic case, and also the latest in a line of authorities from the Court in which it appears to seek to emphasise the importance of there having been a ‘serious and obvious risk of death’ present at the time of a defendant's actions, when considering whether the criminal offence of manslaughter by gross negligence has been committed.

The deceased in Kuddus was a 15 year old schoolgirl, Megan Lee, who lived in Oswaldtwistle near Blackburn. She suffered from - what she believed to be a mild - allergy to nuts.

In December 2016, Megan and a friend ordered a curry via Just Eat from a nearby curry house. The defendant, Mr Kuddus, was the proprietor and chef. Megan’s friend included an informal comment with their order that suggested an issue with nuts and prawns.

The 'nuts and prawns' comment was not passed onto the defendant. A meal was prepared and provided. Megan fell ill while eating it and subsequently died from a cardiac arrest. All the dishes provided by Mr Kuddus’ restaurant to the girls were later found to contain traces of peanut protein.

Mr Kuddus, and the member of staff who failed to pass on the reference to ‘nuts and prawns’ to him, were convicted of manslaughter by gross negligence.

Mr Kuddus’ appeal against conviction was allowed by the Court of Appeal. Sir Brian Leveson, President of the Queens Bench, gave the judgment of the Court. He found that Mr Kuddus had failed in his duty to put in place appropriate systems to prevent customers with declared allergies being served food to which they were allergic. However, there was no evidence that at the time of failing to put in place such systems, i.e. over the weeks and months that Mr Kuddus had been in charge of the restaurant, that a reasonable person would have foreseen a serious and obvious risk of death as a result.

Put another way, by failing to take sufficient care with allergens, it would have been reasonably foreseeable to someone in Mr Kuddus’ position that there was a risk to customers of suffering allergic reactions. There was a possibility that any such reactions might be serious. There was a possibility they might even be fatal. But that was not the same as a serious and obvious risk of death at the time Mr Kuddus failed to put in place such systems in his restaurant, and therefore the offence of gross negligence manslaughter could not be made out.

Sir Brian also found that the trial judge’s direction to the jury was insufficiently clear, in so much as it dealt with whether Mr Kuddus had been alerted to the comments about Megan’s nut allergy submitted by her friend. The trial judge directed the jury to consider whether the allergy had been declared to the curry restaurant (which in point of fact was owned by a limited company) whereas the judge should have directed the jury to consider whether the allergy had been declared to each defendant specifically.

Commentary:

The case of Kuddus follows two earlier Court of Appeal authorities, Sir Brian Leveson giving judgment in both, where the Court stressed the importance of the element of a ‘serious and obvious risk of death’ being present when considering whether a defendant’s actions amounted to gross negligence manslaughter.

In R v Rudling 2016 EWCA Crim 741, the Court of Appeal refused the prosecution’s application for leave to appeal against a ruling of a trial judge stopping a case at half-time. The trial judge had ruled that there was no case to answer where a GP who had failed to spot that a 12 year old boy was suffering from a life-threatening disease. The boy died a short time later.

Sir Brian found that, at the time the doctor concerned had received details of the boy’s symptoms via his mother over the phone, a reasonable person would have foreseen a possibility the boy was suffering from a potentially fatal disease. However, that did not equate to there being a ‘serious and obvious risk of death’. Such a level of risk would not have been apparent without physically examining the boy, which the defendant had not done.

In R v Rose 2017 EWCA Crim 1168, the defendant, a Boots optometrist, had been asked to carry out a routine eye-examination of a 7 year old boy. During that examination, she had negligently failed to examine the interior of the boy’s eye-balls. Five months later, he died from a build-up of fluid on the brain. Had the defendant conducted a full routine eye examination she would have identified the condition in time for the boy’s life to be saved.

The Court of Appeal overturned the defendant’s conviction. It ruled that the case should have been withdrawn from the jury at the close of the prosecution case. Similarly to its reasoning in the case of Rudling, and the case of Kuddus, the Court of Appeal found that, at the time of the routine eye examination, there was insufficient evidence that a reasonable optometrist would have foreseen a serious and obvious risk of death if they failed to examine the interior of their patient’s eyeball. There was a possibility of missing an issue with the eyeball, a possibility that any such issue might be serious. There was a possibility that, if unchecked, any such issue might prove fatal. But that did not equate to a serious and obvious risk of death.

Final thoughts:

Cases of manslaughter by gross negligence are often highly controversial. On the one hand is the defendant - often an otherwise law-abiding member of the public who did not dream they might be committing a criminal offence. On the other hand is the death of an innocent victim, caused at least in part by the defendant’s potentially negligent actions. In all three cases I’ve referred to the victims were children.

The recent judgments I've referred to from the Court of Appeal do not purport to make new law. Rather they are intended simply to further elucidate the elements of the offence of manslaughter by gross negligence as set out by the House of Lords in the leading case of Adomako [1995] 1 AC 171.

However, these judgments serve as a strong reminder that a prosecution for gross negligence manslaughter requires some evidence that the defendant’s actions occurred in circumstances where there was a serious and obvious risk of death. That may provide some reassurance for medical professionals, and anyone else, who work in circumstances where their mistakes may lead to a possibility of serious harm.

What must also be remembered is that, although defendants in the cases I've referred to above were ultimately found Not Guilty of gross negligence manslaughter, that does not mean they did not face serious consequences as a result of their negligent actions: Mr Kuddus, the curry house proprietor, pleaded guilty to Health and Safety and Food Hygiene offences, and received a sentence of 5 months imprisonment for those in any event. Doctor Rudling, and Ms Rose the Optometrist, almost certainly faced serious disciplinary action from their regulatory bodies, perhaps preventing them continuing to earn a living in their chosen profession.

What the Court of Appeal seems to have been trying to achieve in these judgments I've referred to is, to ensure that - where individuals have been negligent, and even where that negligence has caused or contributed to a fatality - that negligence does not result in a liability for criminal gross negligence manslaughter save where it is exceptionally bad, or 'gross'; and where it occurred in circumstances where there was an obvious and serious risk of death.