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Prosecuting Boris Johnson: A Crowd Funding perspective

Private prosecutions are becoming increasingly common, but something quite special has happened in this arena – a politician is being criminally prosecuted for – allegedly - not telling the truth. Marcus Ball, a campaigner from Norfolk has brought a private prosecution against Boris Johnson for misconduct in a public office. He claims the Tory MP lied during the referendum campaign by saying, amongst other things, that Britain gave £350m a week to the European Union. I make no comment on the strength of the allegations, but the case is interesting on a few fronts:-

  1. It is a private prosecution. 

In the UK, most criminal prosecutions are brought by the Crown Prosecution Service (CPS). The CPS was established by the Prosecution of Offences Act 1985. The Act states that the CPS shall be the prosecuting service for England and Wales, headed by the Director of Public Prosecutions (DPP). The CPS have a duty to take over conduct of proceedings and prosecute on behalf of investigatory bodies such as the police, immigration officers, the Revenue and Customs and the National Crime Agency. However, Section 6 of The Prosecution of Offences Act provides any person with a right to institute criminal proceedings. The DPP does not have a duty to take over conduct of those proceedings, but may do so at any stage. In fact, a defendant can invite a public prosecutor to take over and stop or run the remainder of a prosecution.

  1. It is being Crowd Funded

Mr Ball founded Brexit Justice in 2016 and appears to have worked pretty much full time on the case. He has raised more than £200,000 through crowdfunding to pay for it and has called on the public to donate to his campaign. He said “When politicians lie. democracy dies”. Funding in a criminal case doesn’t normally come up for discussion in the media. The CPS is ultimately funded by the tax payer and the defendant will fund their defence through their own means or by way of a Legal Aid order. In this case, a light has been thrown on how potential private prosecutors advertise for direct financial assistance. What is a jury to think of a prosecution founded partly upon the enthusiasm of a ‘crowd’? Will judges give juries some direction on how they should approach the issue, particularly in a case where the funding has been widely discussed? What if the funding runs out prior to trial and the private prosecutor withdraws? Will a defendant politician complain and take action in those circumstances? In Haigh v Westminster Magistrates’ Court [2017] EWHC 232 (Admin), the Divisional Court upheld a rather significant wasted costs award following an abandoned private prosecution. The facts were quite unusual and Mr Ball can easily distinguish his cause, but it demonstrated that the court will use section 19 of the Prosecution of Offences Act 1985 in appropriate circumstances. It provides that the court may make an order for costs where ‘it is satisfied that one party to criminal proceedings has incurred costs as a result of an unnecessary or improper act or omission by, or on behalf of, another party to the proceedings’. Mr Ball’s Crowd Funding page openly states ‘We do not have enough funding to complete the case. We are in great need of further funding now’. I imagine Mr Ball would vigorously resist any attempt to rely upon section 19 in the event of withdrawal, but the significance of section 19 and cases like Haigh will not have been lost on his team.

Crowd Funding is starting to play a very important role in criminal prosecutions, but care must be taken to structure the funding correctly and apply it most cost-effectively to maximise the chances of finishing. Mr Ball’s campaign goes as far as publishing the costs involved and emphasises the low hourly rates at which his lawyers are working on the case. The transparency is noted. He has gone to some lengths in explaining and justifying his position. However, if Crowd Funding is to have a future in private prosecutions, adherence to the Private Prosecutor’s Code is going to be important in this respect. It is currently in draft, but the section on costs reads as follows:-

Legal advisers should warn private prosecutors for whom they act that adverse and/or excessive media publicity can make a fair trial impossible. This warning may be particularly important in cases that are crowdfunded and which therefore rely on publicity for their very existence. Given the detrimental effect that adverse publicity can have on a prosecution, crowdfunding must be approached and handled with caution.

  1. Boris has lodged an application for Judicial Review

A District Judge has ruled that there is prima facie evidence of an issue to be determined at trial and has issued a Summons in relation to the three allegations. This ordinarily means that a defendant will attend the Magistrates’ Court to answer the summons. Assuming the case continues, it will ultimately be dealt with at the Crown Court. However, the former foreign secretary’s lawyers argue the summons was unlawful and that the criminal proceedings should be suspended until the judicial review application is determined. If the application gets beyond the first hurdle, a more senior judge will decide whether the summons is lawful and whether any further proceedings will take place. Mr Ball is an ‘interested party’ and will oppose the application.

  1. The political element

Mr Ball makes no secret of his motivation. His group is, after all, called ‘Brexit Justice’. He remains publicly confident in his position and openly discusses how his team investigated other politicians involved in Brexit. After reviewing the evidence and considering the public interest in other cases, they decided the relevant test in the Code for Crown Prosecutors was not met. They take a different view in relation to Boris Johnson because ‘significantly more evidence’ exists. By undertaking this exercise, they hope to answer potential accusations that they have deliberately chosen to prosecute one side of a political scenario in which all sorts of sweeping statements were made on both sides.

Conducting politics so openly in court is fraught with difficulties and it can hand the advantage to a particular class of prosecutor – the one with deep pockets. Judicial Review is different. It scrutinises the lawfulness of decisions made or actions taken by a public body, rather than the rights or wrongs of the conclusion reached – although politics is not entirely alien to the High Court. If Mr Ball succeeds, it could create havoc amongst risk averse politicians who fear the intervention of large corporations as private prosecutors, disgruntled by comments made about their particular industry. This may be Mr Ball’s objective and there is a certain benefit in keeping politicians ‘honest’ by methods other than the ballet box. However, the wider implications are complex and the concept of ‘be careful what you wish for’ certainly applies.

If you want to know more about private prosecutions or whether a private prosecution might suit your case, please feel free to get in touch.

Evan Wright is a partner in the Business Crime and Regulation department. Sahar Handford is a solicitor in the same department, specialising in Judicial Review.

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