Private Prosecutions and Misconduct in Public Office

The decision to issue a summons for Boris Johnson has prompted fevered speculation about the impact it will have on his leadership bid for the Conservative Party. But lawyers from across the political spectrum should be just as interested in what the decision says about private prosecutions and the offence of misconduct in public office.

Over the past decade, private prosecutions have become ever more fashionable. Instead of using the civil courts, there is an increasing realisation, among lawyers and the general public, that the criminal courts can, in the right case, offer an equally effective – and certainly more dramatic – means of seeking redress.

Perhaps surprisingly, the evidential threshold for obtaining a summons in a private prosecution is relatively low. Many applications for a summons are made on the papers without the defendant being present (or even knowing that a summons has been applied for). Once the defendant becomes aware that trouble is brewing, his or her lawyers have limited scope to resist the summons – they can only argue, among other matters, that the essential ingredients of the offence are not present, or that the allegation is vexatious.

In Mr Johnson’s case, the allegation is misconduct in public office. This choice of offence is unsurprising. There is no election-specific statutory offence of providing false or misleading information, except in relation to a candidate’s character or conduct (contrary to section 106 Representation of the People Act 1983). Misconduct in public office is an ill-defined common law offence, much criticised by law reform bodies such as the Law Commission. But this works to the private prosecutor’s advantage; its nebulousness is its virtue.

Because it is so nebulous, public prosecutors such as the CPS are wary about prosecuting misconduct in public office. This is reflected in the CPS published guidance, which states that the offence should be strictly confined and not prosecuted in unprecedented cases. It is difficult to square this guidance with the prosecution of Mr Johnson which is now afoot – to use the offence to prosecute a politician who has made allegedly false or misleading claims during a political campaign is quite remarkable.

For this reason, Mr Johnson’s legal team will almost certainly now invite the CPS to apply its own guidance, so as to take over and discontinue the prosecution. They will be able to argue, and forcefully so, that there is no public interest in prosecution, since it will serve to stifle free speech and debate in political life, which is a cornerstone of a functioning democracy. Indeed, in Operation Elveden, this tension resulted in many public prosecutions being discontinued against journalists for aiding and abetting misconduct in public office. Similar considerations must apply in the context of a political campaign. Importantly, the court which granted the summons against Mr Johnson has no power to consider these public interest factors. Indeed, the (unstated) reason why the District Judge may have published a detailed judgment on Mr Johnson’s case is that it makes it easier for the CPS to explain why it is discontinuing.

If the CPS do discontinue the prosecution, or if the summons is quashed on judicial review, or indeed if the case is dismissed against Mr Johnson in the Crown Court – all of these outcomes are ultimately less important than the symbolic value of the case. It sends a message to lawyers and the general public that any person, whether holding high office or not, can rapidly become a defendant in a criminal prosecution brought by another private citizen. A well-advised private citizen can pick an appropriately nebulous offence which is sufficient to get a summons granted – and this in itself may be enough to inflict an important tactical, financial or reputational blow on your adversary.

This article was co-authored with Alice Lepeuple