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.
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.”
However clever his arguments, and he has put together a superficially persausive case, I don’t think for a moment that he will succeed, and more importantly I think he is seriously wrong to bring the case at all.
To explain why, we need to look at the case and the law in more detail.
First, an outline of the facts, as Mr Ball sees them.
Boris Johnson held public office during the referendum campaign which began on 15th April 2016. He was Mayor of London until 9th May, and an MP throughout the whole period. There is no question that these were “public offices.”
Next, Mr Ball says he lied during the campaign. With the instincts of a good prosecutor he is concentrating on the simple and memorable statement that “we send £350M a week to the EU.” It was not true, he says, because it failed to take account of the “Fontainbleau abatement,” the agreement whereby Britain’s notional gross annual payment of £18B (or about £350M a week) was reduced by £5B to £13B (about £250M a week). Importantly, says Mr Ball, the £5M was not a sum sent back from Brussels (a rebate), it was never sent at all (an abatement). What’s more, given the number of times the £350M figure was corrected, Mr Johnson must have known it was not true. So it was, he says, a plain and simple lie to say that £350M a week was sent to the EU.
Clearly, says Ball, it was a lie about a very important issue, and dishonesty of that sort by someone holding public office constitutes, he says, the offence of “misconduct in public office.”
These are uncharted legal waters. I am not aware of any case in the democratic world in which a politician has faced prosecution for lying about a matter of public policy, although plenty have done so.
So we need to have a more careful look at the law.
Misconduct in public office is a common law offence. That means its ingredients are not set out in any Act of Parliament, they must be deduced from case-law. There is nothing wrong with that in itself. There are still quite a few common law crimes, notably murder, some types of manslaughter and perverting the course of justice. It does not necessarily mean that their definition is any less clear than that of statutory crimes.
Nevertheless, it has not received anything like the attention from the higher courts that crimes like murder have done. Indeed, as a recent Law Commission consultation paper pointed out, the offence “fell largely into disuse between the late 18th century and the beginning of the 21st.” The result is that the ambit and reach of the offence are distinctly fuzzy around the edges. As the Law Commission puts it:
“The offence is widely considered to be ill-defined and has been subject to recent criticism by the Government, the Court of Appeal, the press and legal academics.”
That said, it has received quite a lot of attention in recent years (it was, for example, much used, with results that can politely be called mixed, in the Operation Elveden trials arising out of allegedly corrupt relationships between News International journalists and police officers). Its scope was considered in most detail in a case unmemorably called Attorney-General’s reference (No.3 of 2003)  EWCA Crim. 868.
The facts of the Attorney-General’s reference were far removed from an allegation of a politician lying. They arose out of an allegation that police officers had failed in their public duty by “wilfully failing to take reasonable and proper care of an arrested person in police custody.” In fact the arrested person had died whilst in custody and the officers had also faced a manslaughter charge. The trial judge had ruled that they had no case to answer on either charge, but the Attorney-General brought the case before the Court of Appeal to ask for a more detailed and authoritative ruling on what the crime of misconduct in public office actually entailed. Somewhat reluctantly – because judges are generally unwilling to give broader rulings than demanded by the facts of the actual case they are considering – the Court agreed to give it. It is the closest we now have to an exhaustive definition of the law on misconduct in public office, although as with any authority it has to be understood against the background of the facts of the case itself.
After ranging over case-law going back to the sixteenth century (since you ask, Crouther’s case (1599) 2 Hawk PC 116 where a constable was indicted for “failing to make a hue and cry after notice of a burglary committed in the night,” a case which ought to terrify Police Commissioners who decree that scarce police resources are better devoted to logging online insults than making a hue and cry after burglars), the Court came up with the following definition:
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.
It would also be a departure in a new and profoundly unwelcome direction. Even before the Human Rights Act imposed a positive duty on courts to have regard to freedom of expression, the general direction of the criminal law during living memory has not been to extend but to restrict the ambit of speech crimes. Although plenty still exist, and although some “hate crimes” have been created by Parliament, over the last fifty years antique and common law criminal restrictions on freedom of speech have either ceased to be used or have been abolished. Obscene publications and displays, for example, are very rarely prosecuted now, unless they involve children. Lady Chatterley saw to that. Blasphemy and its unlovely twin blasphemous libel had a brief revival in the hands of Mary Whitehouse and her counsel, the sinister John Smyth (during the period he was prosecuting Gay News over a poem he was getting his kicks from caning evangelical Wykehamists in his garden shed), before being abolished by S.79 of the Criminal Justice and Immigration Act 2008. Criminal, obscene and seditious libel, were despatched by S.73 of the Coroners and Justice Act 2009. In S.33 of the Crime and Courts Act 2013 abolished the absurd offence of “scandalising the court” in England and Wales (it meant being rude about a judge), although it may linger on, I’m not quite sure, under the quaint description of “murmuring the judges” in Scotland and Northern Ireland. Mr Ball wants to develop the law in the opposite direction and to bring the criminal law into the very centre of political debate.
If the law was as Mr Ball believes it to be, it would mean every MP’s speech, and every slogan in a political campaign, would potentially be a matter for the police to investigate; indeed, they might be accused of “misconduct in public office” if they failed to do so. It would have a chilling effect on debate: get a fact wrong and your opponent will demand your arrest, and even if the police refuse, you will run the risk that a single issue activist will bring a private prosecution. Fanatics for one cause or another would be delighted to use the criminal law, or the threat of it, to silence their political opponents. In the battle for crowd-funding, the justice of a particular case will matter less than its popularity, or perhaps more to the point the ability of the prosecutor to mobilise his or her supporters on social media.
Those most in the firing line would not necessarily be minorities – after all Boris Johnson was in the majority – but inevitably it will be those promoting minority opinions who are most likely to be targeted.
What Mr Ball, with respect, does not seem to have appreciated is that a politician lying in a public debate about a matter of public policy is in no way comparable to the types of cases that have, until now, been understood to be covered by the offence. Almost without exception, office holders prosecuted for misconduct have done things secretly or at the very least not publicly. Part of the essence of the offence in practice has been either the private neglect to perform an official duty or the covert abuse of an official position for a personal or improper motive.
Politicians debating policy, on the other hand, are not doing anything private or covert or underhand. By definition they are making their points – good or bad, honest or dishonest – publicly, where they are scrutinised by their opponents. Of course they are constrained by law to some extent: the civil law of defamation, for example, and the criminal law of the Public Order Act. Mr Ball himself refers to S.106 of the Representation of the People Act 1983, which makes it “an illegal practice” to make “any false statement of fact in relation to [a] candidate’s personal character or conduct” if done for the purpose of influencing the election; but that is a tightly restricted, non-imprisonable, statutory offence, not a general prohibition on dishonest statements in debate. The law dates from 1895 and there are very good reasons why Parliament chose to restrict its scope to statements of a personal nature, as explained by Thomas LCJ in R. (on the application of Woolas) v. Parliamentary Election Court  EWHC 3169 :
“It was as self evident in 1895 as it is today, given the practical experience of politics in a democracy, that unfounded allegations will be made about the political position of candidates in an election. The statutory language makes it clear that Parliament plainly did not intend the 1895 Act to apply to such statements; it trusted the good sense of the electorate to discount them.”
Of course politicians ought not to lie, but the place to refute dishonest political arguments is in debate, not in a police station interview under caution, or in the Crown Court years later. Indeed, the very idea that political arguments should be “policed” by the state is alarming.
In fact, of course, the £350M claim was refuted in the referendum campaign as often as it was made. The Remain campaign and numerous journalists again and again pointed out that it was false and explained why.
If Mr Ball were correct then Boris’s crime would be one of arbitrary and inconsistent application. It would catch some politicians but not others in some campaigns but not others. It would extend an already difficult law into a new area and in doing so it would create a legal dogs’ dinner.
The referendum campaign, for example, was unusual for political campaigns because Mr Johnson remained an MP and thus an office holder throughout; in an ordinary election campaign Parliament has been dissolved and there are no longer any MPs. Thus, if Mr Ball is correct, a lie told in a referendum campaign could be a crime while the same lie told in an election campaign would not be.
In an ordinary election other anomalies would exist. Although MPs cease to hold office when Parliament is dissolved, ministers continue to do so. Thus, in an election campaign the same statement might land one candidate in gaol (if he or she were a minister) but could be said perfectly lawfully by others. If an election is held next month Mr Johnson – who would no longer be an MP – would be free to lie through his teeth (and would be certain of being listened to), while a junior minister in the Department of Trade and Industry of whom no-one has ever heard could be arrested for saying exactly the same thing. The fact that a suggested interpretation of the law would have an arbitrary and capricious effect is a good argument for assuming that the interpretation is wrong.
Of course it could be said that this law already creates anomalies. That is true, and as the Law Commission has recently said:
“The offence is widely considered to be ill-defined and has been subject to recent criticism by the Government, the Court of Appeal, the press and legal academics.”
That it is already a bad law is not an argument for developing it to make it even worse. It is, if anything, an argument for preventing its further extension.
Mr Ball says he wants to bring about “a beginning to the end of lying in politics.” Like a youthful Nicholas Parsons he says he wants to do so not just in Britain, but “to other common law jurisdictions around the world.” Relying, a little ironically given his mission to end dishonesty in politics, on the CIA World Factbook he suggests that convicting Boris could effect the laws of a whole string of countries, including Australia, India and the United States as well as the frigid and virtually uninhabited atoll of South Georgia and the South Sandwich Islands, and the bleak Pacific prison island of Nauru.
I think it is very doubtful that the reverberations of his crowd-funded prosecution will ever effect the law of South Georgia, let alone that of the United States.
Private prosecutions are still unusual in English law,where most prosecutions are brought by the Crown Prosecution Service. They are open to abuse for many reasons, one being that private prosecutors often lack the objectivity necessary to handle the great responsibility that bringing a prosecution entails. Judging by his video, for all his cleverness, objectivity may be an attribute that Mr Ball lacks. Fortunately there is a well-established procedure for the Director of Public Prosecutions to take over and discontinue a private prosecution, either if there is no reasonable prospect of conviction, or if prosecution is not in the public interest. Should Mr Ball decide to start this prosecution one of the first things the new DPP, Max Hill QC, should do after he takes up his position next month is to take it over and close it down. It is an ill-conceived publicity stunt and an abuse of the criminal law.