Private prosecutions (or ‘doing a Boris’)
A District Judge sitting at Westminster Magistrates’ Court has authorised a summons to be issued against the prominent conservative member of parliament, Boris Johnson. This follows a private prosecution brought before the court.
The allegations relate to alleged conduct during the Brexit referendum campaign. In particular the prosecution relies upons the ‘£350m per week for the NHS slogan’ that adorned the side of the Leave campaign buses.
Unless other steps are taken to the stop this prosecution, Johnson will have to appear in court to answer these charges and face trial at the crown court.
Misconduct in public office?
The allegation faced by Johnson is one of misconduct in public office. In order to be found guilty it must be proved that he was:
- a public officer acting as such
- who wilfully neglects to perform his duty/or wilfully misconducts himself
- to such a degree as to amount to an abuse of the public’s trust in the officeholder
- and does so without reasonable excuse or justification.
The issue identified early on by his legal team is that he was not acting in his position as MP or Mayor of London when he made the statements that are the subject of the prosecution. The assertions were made during a contested political campaign and were therefore not sufficiently associated with either office.
Why is this unusual?
The unusual aspect of this case is that this is a private prosecution crowdfunded by individuals who support the prosecution.
How often is there a private prosecution?
In England and Wales, the vast majority of prosecutions are undertaken by the Crown Prosecution Service. In addition there are also a large number of other public bodies that regularly prosecute cases. These will usually be of a specialist nature. These bodies include the Environment Agency, Serious Fraud Office, Local authorities and the Civil Aviation Authority etc.
There are also very few well-known organisations that regularly bring private prosecutions. These include, most notably, the RSPCA in respect to allegations of animal cruelty.
Private individuals choosing to bring private prosecutions are relatively rare.
Are private prosecutions always allowed?
The Supreme Court has reiterated quite recently that private citizens have a constitutional right to prosecute alleged crimes before the courts.
Some companies and individuals’ resort to private prosecution when they feel that the State has failed to act.
There are many safeguards to prevent vexatious prosecutions, such as:
- Scrutiny before a summons is issued
- Abuse of Process remedies
- The ability of the Crown Prosecution Service to take over a private prosecution
- A new proposed code for private prosecutors drafted by specialist firms who conduct this type of work
- Risk of adverse costs orders if the prosecution is unwarranted
Despite these safeguards there are still some concerns. We will be particularly alert when a private prosecutor is involved to ensure that your rights as a defendant are protected. Issues that will be particularly relevant will concern disclosure and fair prosecution practice. We will not hesitate to seek full costs recovery on behalf of a client if the prosecution ought not to have been brought in the first place.
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