Last week the legality of Boris Johnson’s prorogation of Parliament was ruled to be unlawful in a unanimous verdict given by the Supreme Court.
Just a week before, the Scottish Court of Session also ruled that the Prime Minister’s shutdown of Parliament was unlawful citing an attempt to stymie parliamentary debate over the ongoing issue of Brexit.
These historic rulings have been widely lauded as a sign of the strength of our judiciary in defending the rule of law and democracy.
But when it comes to challenging powerful politicians, one private prosecutor thinks that we are yet to see if our judiciary is able to “hold the powerful to account” when it comes to criminal law.
Not fit for purpose
In an exclusive interview with TLE, Marcus J Ball – founder of Stop Lying in Politics – spoke of the High Court’s recent decision to shut down his case against Johnson for the alleged offence of misconduct in public office.
”The justice system and police service is not fit for purpose when criminally prosecuting politicians,” he said.
Ball, who received a court order demanding that he pay the Prime Minister £100,000, has also announced that, in light of the Court’s decision, his legal team will continue their prosecution case to challenge Mr Johnson’s “lying”, confirming their decision to request permission to “judicially review the High Court’s ruling” on the case.
What is the basis of Ball’s case?
According to the private prosecutor, the case around the allegations that Johnson ‘lied’ over the amount of money the UK sends the EU.
Figures released by HM Treasury revealed that the largest sum of money sent to the EU in one year was £14.6billion in 2015, which, more than £5billion over the amount Johns claimed the UK sent the EU while campaigning in 2016.
Ball claims to have “evidence that Johnson knew this claim was false.”
‘A precedent worth fighting for‘
The case references two key points: Parliamentary convention and the case of R v Obeid.
In both it was established that MPs have a duty to act honestly and faithfully when 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.”
What’s happened so far?
In May, after three months of consideration, Westminster Magistrates’ Court ruled in favour of the case – that Johnson must face a full criminal trial at the Crown Court.
However, On 14th August, the High Court rejected an appeal for leave to the UK’s highest court that would see the private prosecutor attempt to prosecute Johnson over claims he lied during the 2016 EU referendum.
Lady Justice Rafferty – one of the High Court judges who threw the case out in June – made a brief announcement on the decision to block the case from the Supreme Court on Wednesday.
“This application for leave to appeal to the Supreme Court is rejected,” she said.
In a written judgement, the court said the crime of misconduct in public office was about “neglect of duties or abuse of state power”.
It said: “Not authority was shown to us suggesting that the offence can be or has been equated to bringing an office into disrepute or misusing a platform outside the scope of the office”.
But Marcus Ball and his legal team, disagree.
The problem with this criticism, according to Ball, is that on the previous page of their ruling, the High Court had quoted the Quach case, which had been presented to judges 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?”
In response to the High Court’s ruling, Ball applied for permission to appeal to the Supreme Court to make a strong argument “focused on public importance.”
However, the problem – according to the private prosecutor – was “we had to ask the same judges who had rejected our case for permission to appeal it.”
“They denied the request. They were blocking us. I don’t know why, because they didn’t provide any written reasoning for their decision.”
When asked, Ball said that he was “concerned” that a Court of Appeals judge was sitting on a case against someone who has “the power to impact their future career as Boris Johnson – the prime minister does – in the case.”
“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 change, 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.”
When asked, the private prosecutor argued that there may be a “perceived” conflict of interest which inspired the Court of Appeal judge who sat on his case in the High Court – Lady Justice Rafferty – to rule in the way she did.
“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 system of justice.”
Well-respected top judge
Mr Ball stressed that Lady Justice Rafferty 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.”
But, “I don’t feel comfortable with that and I think we can do better as a society having a judge ruling on a criminal case against an individual who is able to influence her promotion.”
It also appears from their ruling that the High Court has shut down the case based upon their belief that Mr Johnson was not acting as a public office holder at the time of the alleged offence.
However, according to Mr Ball “this would again be beyond their remit, given that the more senior Court of Appeal has already ruled that only a jury can make make that decision upon careful consideration of the evidence.”
“Their ruling appears to have completely ignored this precedent from the Cosford case, as ruled by Lord Justice Leveson.”
Is the judiciary fit for purpose in challenging powerful politicians?
According to the private prosecutor: “What’s important is that not only does the law need to be done, but to be seen to be done.
“Perhaps the High Court just decided that an elected Parliamentarians’ 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.
“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.”
No real separation of powers
Ball said that his experience of case has convinced him that “there is no real separation of powers.”
The private prosecutor also addressed recent criticism that has been levelled against his decision to crowdfund this case: “I think if people want to complain about crowdfunded cases they need to look at the source of the problem as opposed that.
“The reason we have to do that is because there is no true separation of powers the judiciary and politicians are interconnected – they are part of the same system”
Asked about why he had to crowdfund his case, he said that “you can’t go to the Crown Prosecution Service and Director of Public Prosecutions and ask them to initiate something against someone as powerful as Boris Johnson because they all have conflicts of interest when it comes to legal action, serious actions against big players like that.”
“These organisations rely upon politicians for their funding, their powers and if you go against the political class, you’re going to run into problems and life is not going to be made easier.
“Its for this reason that, while the judiciary is flexing its muscles in civil cases- when it comes to criminal cases our justice system is just not fit for purpose when prosecuting powerful politicians”