What Is This ‘Private Prosecution’ of Boris Johnson?

(Bloomberg) --

Boris Johnson, the Conservative Party front-runner to become the next U.K prime minister, has often been accused of lying, even before he was a politician. But now he faces a criminal lawsuit over his statements -- and one that comes not from the state but a 29-year-old British entrepreneur. It’s only possible because of an ancient quirk of English law that allows for a private prosecution. And it’s a tool that’s becoming increasingly fashionable.

1. What is a private prosecution?

Under English common law, prosecution hadn’t traditionally been thought of as a matter for the government -- it was typically a victim who brought a case against a perpetrator. It was only in the late nineteenth century that the first director of public prosecutions was appointed. Still, the right to bring a private prosecution was preserved in legislation from 1985 and to this day empowers individuals to act like a “prosecuting authority” and investigate and see a case through to a verdict and sentencing by a judge.

2. Who can bring a case?

In theory, anybody. Playwright Oscar Wilde famously lost a private prosecution for libel in 1895. Several private cases were filed after 1989’s Hillsborough football disaster. Companies can also act as private prosecutors. That has led to repeated complaints that the practice creates a two-tiered justice system, benefiting wealthy individuals who can afford to bring an expensive private case. In the Boris Johnson lawsuit, the campaigner, Marcus Ball, is crowdfunding the attempt and has so far raised half his 500,000 pound ($632,500) target. Ball says Johnson must be held accountable for misconduct in public office -- especially the “infamous” falsehood he repeated during the Brexit referendum campaign that Britain sent 350 million pounds per week to the European Union. Johnson replies that the software entrepreneur is politically motivated by opposition to Brexit.

3. Why aren’t government prosecutors prosecuting?

In the U.K. the Crown Prosecution Service (CPS) is the main prosecuting authority, but cutbacks by successive governments have shrunk the department’s budget by 34% in the last ten years, to around 500 million pounds. Private prosecutors, including the parents of a murdered teenager who saw a failure to deliver justice by the state, have stepped in where the CPS has pulled back. The CPS has the power to take over a private prosecution at any time and can choose to either continue or stop it. Department officials must decide whether there’s a public interest in taking over the prosecution and whether there’s sufficient evidence. If the case doesn’t come from a police investigation, it’s less likely there would be a need for the CPS to take it over, according to its own guidelines.

4. How will the Johnson case proceed?

The judge ruled that Johnson has a case to answer and must now attend court to face the allegations of misconduct in public office. The charges in these proceedings are then heard in the Crown Court, a higher criminal court, with a potential sentence of life imprisonment. Johnson’s legal advisers have options too. They could seek a judicial review of the magistrate’s decision or plead with the CPS to take over the case and discontinue it.

5. What does this mean for Johnson’s political career?

The unprecedented attempt to privately prosecute Johnson for public misconduct could be an embarrassment at a sensitive time for the politician, who is the favorite to succeed Prime Minister Theresa May after she steps down on June 7. No date has yet been set for Johnson’s court appearance, but it normally takes three to four weeks after a court summons is issued for an individual to appear, putting it somewhere in June. The Conservative leadership contest is expected to be completed by late July.

The Reference Shelf

• Bloomberg: Boris Johnson is slim, trimmed and ready to fight for power.
• Tory grandee Chris Patten calls Johnson “mendacious” on Bloomberg TV.
• Bloomberg Businessweek on the winding tale of another private prosecution.
• How private prosecutions were used after the Hillsborough disaster: Washington Post
• Crown Prosecution Service guidelines on private prosecutions.
• Bar Council report on U.K. funding for justice in the age of austerity.

--With assistance from Tim Ross.

To contact the reporter on this story: Jonathan Browning in London at jbrowning9@bloomberg.net

To contact the editors responsible for this story: Anthony Aarons at aaarons@bloomberg.net, Andy Reinhardt, Christopher Elser

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