Crowdfunded private prosecutor Marcus J Ball speaking to ITN outside Westminster Magistrates’ Court
Last week the legality of Boris Johnson’s recent dictator-like attempt to get his own way in Parliament (by shutting it down) was ruled to be unlawful by the Scottish Court of Session, thanks to brave lawyers like Jolyon Maugham QC. Meanwhile, our legal team and I are continuing our prosecution case against Mr Johnson in order to challenge another of his chosen leadership methods: lying. We have decided to request permission to judicially review the High Court’s ruling against our case.
Why? In short, because their ruling managed to contradict itself, the Law Commission, domestic Court of Appeal precedent and international common law rulings. The decision to deny certifying that the case is of general public importance is unsatisfactory: how can a case which deals with senior public officers repeatedly lying to the public about public spending figures not be of public importance? Bear in mind, that the judges who denied us permission to appeal and to certify that the matter is of general public importance are the same judges who said that they had to rule against us, as failing to do so would be “contrary to the public interest”. So, the case concerns the interests of the public, but it’s not of public importance? I’m not a lawyer, but even I can see that is one serious contradiction.
Before we begin, let’s briefly go over the case. According to HM Treasury the most amount of money we’ve ever ‘sent’ to the EU in one year was £14 billion 646 million in 2015. Hence, making Johnson’s claim that we ‘send’ £20 billion a year to the EU false by well over £5 billion of public spending a year at minimum. We have evidence that he knew that this claim was false.
According to Parliamentary convention, and the case of R v Obeid, among others, MPs have a duty to act as a ‘watchdog’ and ‘sentinel’ of the public; honestly and faithfully monitoring, scrutinising and criticising executive spending and decision making. Our case alleges that Johnson committed the criminal offence of misconduct in public office by repeatedly lying to the public about public spending. We aim to prove that it is illegal for elected public office holders to repeatedly lie to the public about matters of public spending and executive decision making. That’s a precedent worth fighting for.
Over 15,000 brilliant people have crowdfunded our case. It has caught the attention of millions of people around the world.
In May, after three months of careful consideration, Westminster Magistrates’ Court ruled in favour of our case, that Johnson must face a full criminal trial at the Crown Court. The story became a global news event, with everyone from BBC Worldwide and CNN to the Japan Times and Sohu news China covering it. Yet, almost immediately the High Court shut down the case after just three days with our papers. Why?
A part of our case alleges that Mr Johnson committed the offence by bringing his office and Parliament into ‘disrepute’ by repeatedly lying to the public. However, the High Court’s written ruling complained that “No authority was shown to us suggesting that the offence can be or has been equated to bringing an office into disrepute”.
The problem with this criticism is that on the previous page of their ruling they had quoted the Quach case, which we had shown to them and which states the following: “If the misuse of the information is of a serious nature and is likely to be viewed as a breach of the trust reposed in the office so as to bring the office into disrepute, the conduct will fall within the ambit of the offence whether or not it occurs in the course of public office”. How could they have missed that? Surely the judges read the case they were quoting from?
Alternatively, perhaps they decided that an elected Parliamentarian’s decision to lie to millions of members of the public about billions of pounds of public spending was not likely to breach public trust? If so, in my view they’ve overstepped. R v Chapman and R v France, both Court of Appeal authorities, ruled that the question of abuse of public trust is for a jury to determine and not for a judge. Again, we showed both of these misconduct in public office authorities to the High Court.
Worse than this, the High Court also quoted from the Law Commission’s excellent research on the offence within their ruling, which we had also shown to them. This publication theorised that a Member of Parliament could misconduct themselves by failing to act with the honesty and integrity required by the Code of Conduct for Members of Parliament, thereby bringing the “House of Commons into disrepute”.
This same Law Commission research also quoted Sin Kam-Wah v HKSAR which stated that, “Misconduct otherwise than in the performance of the defendant’s public duties may nevertheless have such a relationship with his public office as to bring that office into disrepute”. In total we showed them four such authorities, as well as the misconduct in public office case against PC Keith Wallis who was sentenced to a year in prison for lying during the Plegbate scandal.
Again, how could the High Court not have seen this? Could they really be quoting from authorities that they hadn’t taken the time to read in full? Westminster Magistrates’ Court spent three months carefully considering our case before ruling in its favour while The High Court spent only three days with our papers before they quashed that ruling.
Their ruling also disagreed with the District Judge from Westminster Magistrates’ Court in stating that: “We do not agree with the DJ that the ingredient of the offence, “acting as such”, is a matter for evidence at trial”.
However, according to the ruling of Lord Justice Leveson, Mr Justice Mitting and Mr Justice Males in the Court of Appeal within R v Cosford it doesn't really matter if they agree with the District Judge or not. They ruled that “The issues for the jury were whether the appellants or any of them held a public office; whether each, in turn, wilfully misconducted herself in the performance of her public duties; and whether the conduct of each, in turn was such as to be deserving of criminal condemnation and sanction. The latter two questions were issues of fact for the jury...”. Meaning that the High Court have seemingly contradicted a ruling from a more senior court that we had indeed already presented to them.
When determining ‘acting as such’, a trial jury’s consideration of the evidence does of course matter. It is in fact vital to determining what duties the accused was acting under. It just so happens that our evidence includes Boris Johnson stating on video that he believed his campaigning to have been a ‘Burkean duty’ of his office as our case itself argues. We also had evidence that he made campaigning for leave an ‘official Mayoral policy’ and used Mayoral resources, the Mayoral diary and staff time on said policy. On top of this we have evidence that the Independent Parliament Standards Authority offered Johnson, and all other MPs, public money in the form of expenses for their referendum campaigning activities because they considered them to be a part of their ‘Parliamentary functions’.
What did the High Court have to say about these points? Nothing, they ignored them.
In response to the High Court’s ruling we applied for permission to appeal to the Supreme Court by highlighting what we believe to be their errs in law and also by making a strong argument focused on public importance. The problem was that we had to ask the same judges who had rejected our case for permission to appeal it.
They, unsurprisingly, denied the request. What was surprising was that they also refused to give us a certification of public importance. This meant that we were (in the absence of a successful judicial review challenge to their decision) legally incapable of applying directly to the Supreme Court. They were blocking us, but why? We don’t know, because they didn’t provide any written reasoning for their decision, despite the official Supreme Court guidance being to give an explanation. To make matters worse, they didn’t even allow us the opportunity to argue the point in Court.
According to this decision, a misconduct in public office case, voluntarily funded by thousands of members of the public, against our nation’s top elected Parliamentary public office holder, which has been brought to legally challenge his ability to lie to the public about the spending of the public purse, is not a matter of public importance. All of this at a time in which our society is plagued by fake news and lying in politics.
The unique situation of our case is extremely concerning. In 2006 the process to appoint judges was changed in order to separate political power from judicial power. Despite this, Court of Appeal judges can only be promoted to the Supreme Court once the Chancellor, who is appointed by the Prime Minister, processes their name and the Prime Minister gives said name to the Queen. Lady Justice Rafferty, the Court of Appeal judge who shut down our case in the High Court, has a reputation for being a very intelligent, popular, and well-respected top judge who many consider an appropriate choice for a promotion to the Supreme Court.
Choosing to shut down a case against the man who can stop that from happening and then refusing to allow the Supreme Court to review her decision, without giving any explanation at all, has certainly not given me confidence in the UK’s systems of justice.
I understand that this perceived conflict may not be immediately obvious to everyone given the unprecedented nature of prosecuting a sitting Prime Minister. However, I feel that we can do better than this and this issue is certainly worthy of an open and healthy public debate.
In my view, no judge should be making decisions on a criminal case against someone who can determine their future career prospects. If they must, they at least need to produce a carefully researched and reasoned ruling or better yet recuse themselves. Saying nothing risks saying everything in this instance.
For the reasons touched upon in this piece and several others our intention is to apply for permission to judicially review the High Court’s decision. Mr Johnson is innocent unless proven guilty and I ask all those who comment on this case to keep that firmly in mind.
Some may criticise me for raising the issues that I have in this article. But understand this, I’ve spent over three years of my life working far more than full time hours on this case. That’s years of case research and writing, evidence gathering, legal team building, witness recruitment, fund raising, communications management and more. An immense effort at great risk to myself, which has put me into considerable financial difficulty. Why have I spent the final years of my twenties doing this?
Because I believe that elected public office holders like Boris Johnson and Tony Blair should not have the legal freedom to repeatedly lie to the public. I have a duty to my case, my country, over 15,000 people who have backed us and to myself, to defend our work. If any lawyer makes a decision about our case without having done their reading and without explaining themselves, I have a responsibility to highlight that. I would be failing as a crowdfunded private prosecutor if I did not. All of us are victims of lying in politics. I have a duty to all of us to fight for this case.
When politicians lie democracy dies. Let’s do something about it. Let’s continue the prosecution case against Boris Johnson.
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