Monday, 10 June 2019

This article follows a post I put out on LinkedIn on Friday 7th June at about 2pm relating to Boris Johnson’s successful Judicial Review of District Judge Margot Coleman’s decision on 29th May to issue a summons against him for offences of Misconduct in Public Office, having considered the information laid by a private prosecutor, Marcus Ball.

As I write this, on Monday morning, my post has received over 5000 views, 18 likes, 32 comments and has been reshared twice. My post read simply “I dare say we haven’t heard the last of this. It will be interesting to read the judgment when it is published”. The debate that has followed has been fascinating with eloquent arguments for and against the decision being rehearsed, as well as a question questioning why the judgment will be interesting.

As its title suggests, Judicial Review is a means of challenging a Court’s decision; in this case it is not a direct challenge against the private prosecutor, although of course it does have that effect.

The usual method of challenging a summons is for a defendant to ask the Director of Public Prosecutions to intervene in the case and in effect stop it by taking over and thereafter discontinuing against the accused. One ground for making such an application is that the case is a malicious prosecution.

However, the District Judge went on record: according to the Guardian she stated “The allegations which have been made are unproven accusations and I do not make any findings of fact. Having considered all the relevant factors I am satisfied that this is a proper case to issue the summons as requested for the three offences as drafted. The charges are indictable only. This means the proposed defendant will be required to attend court for a preliminary hearing, and the case will then be sent to the crown court for trial. The charges can only be dealt with in the crown court.”

The relevant factors the District Judge considered would have included a detailed case summary, a procedure that has recently been set out in the Criminal Procedure rules. The questions she will have asked herself are the same questions posed by the 2019 amendment to the Code for Crown Prosecutors: is it in the public interest to bring such a case - an answer that I dare say she will have found relatively straight forward to answer bearing in mind the case had been crowd funded with apparently more than £300,000 being raised; and, whether there is sufficient evidence to secure a realistic prospect of conviction.

It would appear that Boris Johnson’s legal team have focussed on the public interest angle to argue that the prosecution is politically motivated and therefore malicious. I cannot speculate further. The High Court will have examined this decision in detail. Marcus Ball’s lawyers will want to see the written judgment before deciding on whether the High Court’s decision can be challenged or not. Meanwhile the debate is likely to rage further.

One lesson is already clear for lawyers advising private prosecutors – we have to warn clients that Judicial Review is a possibility.

Jeremy Asher
Senior Associate
Business Risk and Regulation Team
ashfords.co.uk
j.asher@ashfords.co.uk
01392 333824