In a recent decision of the High Court of England and Wales, the Court upheld the claim of the new British Prime Minister for judicial review in Alexander Boris de Pffeffel Johnson v Westminster Magistrates’ Court.

The claim challenged the decision of a District Judge (DJ) of the Magistrates’ Court who decided that there was a proper case to issue a summons against the colourful politician, Mr Boris Johnson, for three alleged offences of misconduct in public office. The application was made in contemplation of a private prosecution by Brexit Justice Limited and Mr Marcus Ball, the interested parties (IP).

The allegation made was that Mr Johnson endorsed misleading statements regarding the British National Health Service which were festooned on the side of a bus as part of the Vote Leave Campaign (we do not propose to describe Brexit formally at this point). The argument advanced by the IP was that the statements were known to be misleading and that the claimant acted in a deliberately misleading way whilst using the platform afforded to him by virtue of his public office.

Mr Johnson made the submission that there is a crucial distinction between acting as a public official on one hand and acting whilst a public official on the other. Not at issue between the parties was that the impugned conduct had as its sole purpose the boosting of a political campaign.

In the Magistrates’ Court, Mr Johnson had submitted that the application for the summons was vexatious. That argument was rejected but no reasons were given. In the judicial review claim, Mr Johnson argued that the DJ made an error of law in finding that all of the constituent ingredients of the common law offence of misconduct in public office had been made out. The High Court was not swayed by the argument of the IP that the judicial review claim raised no public law challenge and the Court further went on to discuss the ambit of the common law offence. It concluded that Mr Johnson was entitled to know why the DJ found that the prosecution was not vexatious. The Court added that, notwithstanding that a failure to give reasons was dispositive of the matter, that it would also have quashed the decision of the Magistrates’ Court because the finding that the prosecution was not vexatious was flawed.

The decision will be of significance in all common law and offshore jurisdictions as an example of alleged misconduct in public office, accusations of which are increasing.