Prosecuting Boris Johnson over “Brexit lies” would be an ill-conceived publicity stunt

Prosecuting Boris Johnson over “Brexit lies” would be an ill-conceived publicity stunt

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   September 14, 2018  
 
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Prosecuting Boris Johnson over “Brexit lies” would be an ill-conceived publicity stunt

A 28 year old Norfolk man called Marcus J Ball is trying to bring a crowd-funded private prosecution against Boris Johnson. He says that Mr Johnson lied while campaigning for the Leave campaign in the Referendum. Since he was at the time an MP (and until 9th May 2016 also Mayor of London) he was the holder of a public office. Mr Ball believes that lies told in the campaign mean that he has committed the offence of “misconduct in public office,” a serious criminal offence carrying an unlimited fine and potentially life imprisonment.

You can see his video here, in which he introduces himself as a “private prosecutor” and explains his case in more detail. Some will find it inspiring and rush to contribute to his prosecution fund. Others – and not just Boris Johnson political supporters – may be somewhat irritated by Mr Ball’s rather gloating tone, which they may find rather unseemly in a prosecutor.

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He estimates the case will cost £2M.

Mr Ball has left East Anglia and moved to London in order to pursue his dream. His mission, he says is:

“… to set a legal precedent in the UK common law that prevents political leaders from lying to the public in future.”

So far, he says has raised over £145,000. Some of this is used to pay himself a salary, some has been used to pay the lawyers: one firm of solicitors and two Queen’s Counsel, to advise him. The first, David Perry QC, advised him that his case did not stand much chance, so he asked for a second opinion from another, Lewis Power QC, who has, apparently, advised that “there are reasonable prospects for convicting Boris Johnson.”

You can see his video here, in which he introduces himself as a “private prosecutor” and explains his case in more detail. Some will find it inspiring and rush to contribute to his prosecution fund. Others – and not just Boris Johnson political supporters – may be somewhat irritated by Mr Ball’s rather gloating tone, which they may find rather unseemly in a prosecutor.

He estimates the case will cost £2M.

Mr Ball has left East Anglia and moved to London in order to pursue his dream. His mission, he says is:

“… to set a legal precedent in the UK common law that prevents political leaders from lying to the public in future.”

So far, he says has raised over £145,000. Some of this is used to pay himself a salary, some has been used to pay the lawyers: one firm of solicitors and two Queen’s Counsel, to advise him. The first, David Perry QC, advised him that his case did not stand much chance, so he asked for a second opinion from another, Lewis Power QC, who has, apparently, advised that “there are reasonable prospects for convicting Boris Johnson.”

The offence is committed when

“1. A public officer acting as such

2. wilfully neglects to perform his duty and/or wilfully misconducts himself

3. To such a degree as to amount to an abuse of the public’s trust in the office holder

4. without reasonable excuse or justification.”

So now we can see the legal outlines of Mr Ball’s case. There is no doubt that Mr Johnson was a public officer, if not as a Mayor then as an MP. If he wilfully told a lie that was surely misconduct, and the public should be able to trust their political leaders not to lie, particularly about something as important as leaving the EU. If it was in fact a lie, it is hard to see any reasonable excuse or justification for it.

Mr Ball has done a great deal of research, and his 97 page Brexit Justice Case Summary contains a comprehensive summary of the law, as well as a great deal of detail about (for example) when Mr Johnson repeated the £350M assertion, why it was not true and why he must have known it was not true. Once you get into the details things don’t appear quite so simple. I can’t say, for example, that I would much relish explaining to a jury the difference between a “rebate” and an “abatement,” or the accounting practice that involves notional sums of money being first included in and then deducted from EU budgets because of an agreement made by Mrs Thatcher decades earlier. It is all a long way from bodily fluids and fingerprints, but fortunately Mr Ball is unlikely to instruct me, even as the second of the two junior counsel that he thinks his case requires. On the face of it he has put together a pretty convincing argument that the £350M per week statement was intentionally misleading, if not an outright lie.

However, it is of course not enough merely to show that a person lied while holding a public office. He must also have lied while “acting as” an office holder. If, for example, Mr Johnson were to have lied to his wife about his whereabouts that would be a lie as an individual, not as an MP.

This requirement takes Mr Ball into more difficult territory. Mr Johnson was an MP while campaigning, but it was not his position as an MP or Mayor that enabled him to campaign. People who were not MPs were also campaigning during the referendum. Nor was he under any legal duty to campaign. These are significant points when the offence has often been explained in terms either of not carrying out or breaching a public duty imposed by the office. Mr Ball deals with the point in great detail in his 97 page document, largely because it seems to be an area on which he disagreed with Mr Perry’s advice (from which he quotes in part, while asserting “privilege” in respect of other parts). He points out, for example, that the Independent Parliamentary Standards Authority paid expenses to MPs to reimburse them for travelling on referendum related business, an indication he argues, that an MP would have been acting “as a public officer” when campaigning. On the other hand IPSA’s discretionary practice cannot possibly be determinative of a question of law.

It is perhaps no coincidence that there has not – sa far as I am aware – been a single prosecution over a politician lying about a matter of public policy in an election campaign. For hundreds of years it never occurred to anyone that the offence of misconduct in public office might apply to such cases. In fact, the courts have rightly gone out of their way to protect freedom of speech during elections. That is not to say the law could not develop to encompass such behaviour, the common law can be very flexible, but it would unquestionably be a radical new departure.

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