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.