Johnson v Westminster Magistrates' Court

For a summons alleging misconduct in public office, the magistrate must rigorously ascertain whether the allegation discloses an offence known to law and whether its essential ingredients are prima facie present. The expression “acting as such” requires conduct in the discharge of the duties of the office, not conduct undertaken merely while the defendant holds public office. The offence is concerned with breach of official duty or abuse of official power, together with the required degree of gravity. It does not ordinarily extend to political statements made outside the scope of office merely because they use the office-holder’s influence or platform. A court should not enlarge the ambit of a common law offence by a substantial leap. A summons may also be quashed where the decision to issue it is legally flawed or the application is vexatious.

The claimant, then a Member of Parliament and formerly Mayor of London, sought judicial review of a decision by a District Judge at Westminster Magistrates’ Court on 29 May 2019. The judge had decided that there was a proper case to issue a summons for three alleged offences of misconduct in public office arising from statements about the United Kingdom’s payments to the European Union during political campaigning.

The claimant argued that the allegations did not disclose the necessary ingredients of the common law offence, because the statements were made for political purposes and were not made in the discharge of his official duties. He also argued that the proposed private prosecution was vexatious. The central issues were whether he was “acting as such”, whether the alleged conduct involved wilful neglect or misconduct in breach of official duty, and whether the magistrate had applied the correct threshold.

1. Permission and outcome. The claim succeeded and the decision of the District Judge was quashed.
2. The Administrative Court rejected the submission that the claim raised no public law issue. An error of law concerning the ingredients of an offence could lead the magistrate to act in excess of jurisdiction by issuing a summons where the alleged conduct fell outside the offence.
3. The threshold for issuing a summons was not merely low. Applying R (DPP) v Sunderland Magistrates’ Court [2014] EWHC 613 (Admin) and R (Kay and another) v Leeds Magistrates’ Court [2018] 4 WLR 91, the magistrate had to identify an offence known to law and rigorously examine whether its essential ingredients were prima facie present. A summons should not issue where the application was vexatious, an abuse of process or otherwise improper.
4. The words “acting as such” meant acting in the discharge of the duties of the public office. It was insufficient that the claimant made the statements while holding office, or that the office gave him status, influence and authority. The alleged statements were made for political campaigning and were not alleged to have been made in the discharge of parliamentary or mayoral duties.
5. The offence required a breach of official duty or wilful misconduct in the exercise of official power, together with conduct sufficiently serious to amount to an abuse of public trust and without reasonable excuse or justification. The court relied on Attorney General’s Reference (No 3 of 2003) [2005] QB 73 and R v Mitchell [2014] 2 Cr App R 2. The authorities concerned corrupt abuse of public power for personal gain or gross neglect of core official duties. They did not support treating political campaigning, misuse of a platform or bringing an office into disrepute as sufficient in itself.
6. Quach [2010] VSCA 106 did not assist the interested parties. Although that decision recognised that misconduct could have a sufficient connection with public office, it emphasised incompatibility with the proper discharge of the office’s responsibilities. It did not establish that allegedly untrue statements automatically fell within the offence.
7. The proposed prosecution would extend the common law offence. Under R v Rimmington [2006] 1 AC 459, read with R v Clark (Mark) [2003] 2 Cr App R 363, any enlargement had to proceed step by step and case by case, consistently with legal certainty. No such extension was justified.
8. The District Judge had given no adequate reasoning for rejecting the claimant’s detailed case that the prosecution was vexatious. Although it was unnecessary to decide whether that conclusion was Wednesbury unreasonable, the decision would also have been quashed on that basis.

The claim was a judicial review of the District Judge’s decision at Westminster Magistrates’ Court dated 29 May 2019. The Administrative Court granted permission, allowed the claim and quashed that decision.