IvanV wrote: ↑Thu Jan 27, 2022 10:49 pm
jdc wrote: ↑Thu Jan 27, 2022 7:25 pm
WFJ wrote: ↑Thu Jan 27, 2022 6:13 pm
I agree with you that Johnson has, or at the very least should have, responsibility for what goes on in No 10. That is why this is so politically damaging for him, and should, in any sane world, result in him resigning or being kicked out. But this is very different from legal misconduct in his duties. As I said before, I am not a lawyer, but I cannot see him facing legal action from this. Beyond maybe a fine for breaking the regulations.
Having skim-read chapter 2 of this
https://assets.publishing.service.gov.u ... -WEB11.pdf I tend to agree with you, WFJ.
Thanks for this reference. I think it makes clear that ministers are "in public office", and so do not benefit get crown immunity. For example it cites the case of an attempted prosecution for misconduct in public office of one Boris Johnson, for actions he took when was a minister. The case was thrown out, not because he was a minister, but because he was not acting as a minister when he took those actions. I suspect it might have fallen at later hurdles had it not fallen at that one. But I agree it makes clear that partygate is nowhere near "misconduct in public office".
Was he a minister at the time? I believe that he was only an MP, and his wikipedia page suggests that too. He was made foreign minister by terry may in July 2019, 1 month after the referendum. And the judgement was that his actions as part of the leave campaign were not part of the duties of his public office, which, as a backbench MP, were far less than the duties he has as prime minister.
Look at example 2.25. A prison nurse had an affair with a prisoner. She was in public office, but the affair part was her private life (it just happened to be happening where she worked and she had to use her special access to get there). She was prosecuted & lost on appeal.
Johnson (and all the other c.nts partying with him) were doing exactly the same - being in public office and using their special access to get to the places to do the private things.
Lord Justice Leveson, outlined the following test for determining whether the offence could apply:
(1) What was the position held?
(2) What was the nature of the duties undertaken by the employee or officer in that position?
(3) Did the fulfilment of those duties represent the fulfilment of one of the responsibilities of government such that the public had a significant interest in the discharge of that duty extending beyond an interest in anyone who might be directly affected by a serious failure in the performance of the duty?
I would also point you to 2.60 & 2.61
2.60 In some of these cases, there may be other offences that could also be pursued; for example, offences contrary to the Fraud Act 2006 may apply, or the defendant may have committed data protection offences contrary to the Data Protection Act 2018.
2.61 The starting point for prosecutors in these circumstances is that the statutory offence should ordinarily be pursued,62 and this is reflected in CPS prosecution guidance.63 However, there may be circumstances where a misconduct in public office charge is considered more appropriate, in particular where the statutory offence fails to capture adequately the abuse of public trust involved in the offending conduct, or the maximum penalty available is inadequate given the seriousness of the conduct.
Obviously the COVID regulations are the most appropriate and obvious breaches, but given the repeated nature of them and the wilfulness of them and the position that the PM holds (namely that of prime f.cking minister), then there is an argument to be made (following the emboldened part above) that a misconduct in public office charge is appropriate.
Looking at the rest of it, I would say that only senior people (e.g. the PM or any other ministers or senior civil servants involved) should be prosecuted for misconduct in public office. The other people are too junior to warrant a prosecution.