Criminal charges for Brexit bus claims

The infamous Brexit bus

LBC radio tweeted a report that Lord Sugar, a cross-bench member of the House of Lords, told them that the people behind the infamous Brexit bus claim (and similar claims) should face criminal charged against them. Judging by the response to that tweet a lot of people agree and I’ve seen a number of people, lawyers included, arguing that fraud or misconduct in public office charges should be brought. But, how successful would such a bus-based criminal charge be in practice?

First, let’s just remind ourselves of the facts. On the 23^rd June 2016, the UK voted in a referendum on whether it should remain a member of the European Union. In the run up to that vote various arguments were put forward by both sides – a few of the arguments were sensible but an awful lot were fantastical, e.g. David Cameron’s claim that a vote to leave the EU would inevitably lead to World War Three. On the Leave side, the most disputed point that is still being talked about is the suggestion that if we left the EU the membership subs could be spent on the NHS instead. The point was variously phrased but was put by Gisela Stuart, co-chair of Vote Leave thus, “every week we send £350m to Brussels… I would spend it on the NHS.”

With respect to the Leave campaign, I think it is fair to say that this argument was flawed in pretty much every wat possible. First, as many Brexiteers now point out, Vote Leave had no power to promise anything and so despite the repeated suggestion that £350m could be ploughed into the NHS the claim was never anything beyond the advertising puff claimed by the Carbolic Smoke Ball Company. I think that must be correct – Vote Leave had no basis to campaign for a particular policy post-Brexit so any suggestions they made for post-Brexit Britain cannot be more than a mere suggestion of what might be. The second flaw in the promise is the £350m figure itself. The number was widely criticised at the time and shown conclusively to be inflated by a shade under £100m per week. 

Gisela Stuart, leading Labour Brexiteer

That brings us neatly to the first of the two serious contenders for a charge against those promoting the Brexit-bus claims: fraud.

Fraud

The Fraud Act 2006 (I can’t believe it’s eleven years old already… seems like only yesterday I was complaining I’d only just got to grips with the old law on fraud) codified fraud into three separate offences: Fraud by false representation, by failing to disclose information, and by abuse of position. On the face of it we need to be looking at false representation and abuse of position.

By false representation

Fraud by false representation requires that a person dishonestly makes a false representation and in so doing he intends to make a gain for himself or loss to another or to expose another person to the risk of a loss. A representation may be express or implied and can be as to fact or law or even to the state of mind of the person making the representation or to another person’s state of mind. The person making the representation must know that his assertion is untrue or misleading. Note that the question is what the defendant knew not what he ought to have known – a defendant might be guilty if he wilfully shuts his eyes to the obvious, R. v Augunas [2014] 1 Cr. App. R. 17.

The statement that “we send the EU £350 million a week”, which was printed on the side of the Brexit-bus is demonstrably false. It is difficult to see how the people in Vote Leave could seriously believe that figure to be true, especially as not only are all the figures publicly available but we have evidence of the Chair of the UK Statistics Authority writing to them on the 27th May 2016 spelling out that this claim was false. We should also note that Michael Gove, a leading member of Vote Leave, was criticised on live television http://www.mirror.co.uk/news/uk-news/michael-goves-eu-facts-350-7924412  for using the £350 in May 2016 and the Chair of the UK Statistics Authority had written an open letter to Norman Lamb MP criticising Vote Leave’s use of the £350m figure as early as 21st April 2016. The Brexit-bus was unveiled on the 11^th May 2016.

So, I think we can conclusively say that not only was the £350m claim untrue but also that it is difficult to see how those making the claim were not aware that the claim was untrue and misleading to anybody hearing it. Was the claim made dishonestly? It may be there was an honest motivation but it is difficult to see how parroting demonstrably incorrect figures for months on end could be done any way other than dishonestly.

What was the motivation of those making the claim? I would suggest that it was to convince voters that they should vote to leave the EU. Did they intend to make a gain for themselves? Beyond getting their own way, I don’t see what gain any of them could hope to make and it’s worth noting that gain or loss here means a gain or loss of money or other property. It does not extend to a gain in kudos, political or ideological gains. Did they intend to cause another person to lose money or property? Again, I do not see how that could be successfully argued. In any event, I would cite the case of R v Masterton, Unreported, April 30, 1996, CA (94 02221 X5) in which the Court of Appeal quashed the conviction of a company director who had used false invoices to placate his fellow directors who were unhappy with the performance of assets the company had purchased. It seems, Mr Masterton admitted that he had used the documents to avoid having to use his own money to make up losses to his fellow directors, although there would have been no legal requirement for him to do so. The Crown had argued that by trying to keep what he already had he had made a gain – keeping what you already have can count as a gain – however, the Court of Appeal took the view that an intention to improve relations with business partners did not involve monetary gain and an intent to retain his own cash that was never at risk was too artificial a concept to allow the conviction to stand. I would argue that somebody who seeks to convince voters to side with their cause is analogous to the company director who seeks to improve relations with business partners – the intention is simply not to make a monetary gain.

Finally, we must ask did they intend to expose another to a risk of loss? As has already been said, the clear intention of Vote Leave was to convince voters to side with them in the referendum. Here we can look at Boris Johnson’s pro-EU article in which he predicts an “economic shock” from a vote to leave the EU. But, is recognising the risk of an economic shock the same as intending to expose another to a risk of loss? I cannot find any case law on this point although I suspect that a court would say that hamstringing the government’s policy making abilities by exposing politicians to the threat of criminal charges for making political decisions would not be conducive to good public policy since governments must always balance the risk of harm to some groups versus potential benefits to other groups or even long-term benefits to those who are short-term losers.

Because of the lack of intention to make a gain, cause a loss or expose a sufficiently identifiable and close group of people to a loss I doubt whether a charge of fraud by false representation has any legs.

By abuse of position

On the face of it, this sounds like a promising charged; however, I would tentatively suggest that it has an even worse prospect of success that fraud by false representation.

Fraud by abuse of position requires a person to occupy a position in which he is expected to safeguard, or not to act against, the financial interests of another person. To secure a conviction the prosecution must convince a jury that a person in such a position dishonestly abused that position with an intention to make a gain for himself, a loss to another or to expose another to a risk of loss.

While many of the people involved in Vote Leave were senior politicians, some even in cabinet before and after the referendum, I would suggest that is insufficient to found a charge. Reading the wording of the Act suggests that the defendant must have an obligation to a specific person rather than a vague obligation to act in the best interests of the people within the nation. The explanatory notes to the Act tell us that such a position would include a director to his company, an employer to her employee, business partners or relationships within the family, e.g. I hold money in the bank that belongs to my children who are too young to operate an account for themselves.

We can therefore safely say that none of those working in Vote Leave were in the necessary position to fall foul of this provision. Even if they were, the prosecution would face the same difficulty in proving an intention to cause loss, expose to a risk of loss or to make a gain as they would for a charge of fraud by false representation.

Misconduct in public office

That brings us to our final possible allegation: misconduct in public or judicial office.

Misconduct in public office is a judge made offence, which is defined in Att.-Gen.’s Reference (No. 3 of 2003) [2004] 2 Cr.App.R. 23, CA as one committed by a public officer acting as such who wilfully neglects to perform his duty and/or wilfully misconducts himself to such a degree as to amount to an abuse of the public’s trust in the office holder without reasonable excuse or justification.

I have seen lawyers arguing that those working for Vote Leave who held public office at the time may be guilty of this offence because by making false claims, such as those on the Brexit-bus, they abused the public’s trust in the office holder. With respect to those making such claims they are no different to the US second amendment fans who conveniently forget that the right to bear arms comes only as part of the need for a well-regulated militia, in other words, they seem to be missing out the beginning bit of the law.

Let’s take the three main faces at Vote Leave: Boris Johnson, Michael Gove and Gisella Stuart. All three were MPs at the time and Mr Gove was Lord Chancellor and Secretary of State for Justice, a cabinet level position. They were clearly public office holders at the time. But, that is not the only requirement. We must also ask ourselves whether they were acting as such when they campaigned for Brexit?

Messrs Johnson and Gove are Conservative MPs while Mrs Stuart was a Labour MP. All three were campaigning against the official position of their parties (although I admit the Tory position was much clearer than the Labour position), none were doing so in their capacities as either constituency MPs or members of the Government. Were they acting as public office holders while campaigning? I would argue that they were not. The important point is that it is not enough that the office holder merely does something wrong to undermine confidence in themselves – if it were then every MP having an affair would be guilty of an offence – what is required is that the person is fulfilling one of those duties of his or her public office in such a way that the misconduct in fulfilling that duty is an abuse of the public’s trust.

Even if they were acting in their capacity as office holders we must then ask ourselves what duty were they neglecting to perform or wilfully misconducting themselves in? Again, we must conclude that in campaigning for Vote Leave none of the office holders were failing to perform a duty and I cannot see any obvious argument that they were misconducting themselves in their office. If they were not acting as public office holders and not fulfilling one of the responsibilities of their office then they cannot have abused the public’s trust in them as office holders.

In one article, I read it was suggested that a person need not be a holder of a public office to be guilty of misconduct in public office. That is, with respect, misleading at best. Most of the attempts to prosecute non-office holders have been to charge them as secondary parties. They have usually been journalists swept up in prosecutions against public officers who have leaked information to said journalists. In order to charge a non-office holder working at Vote Leave as a secondary party would require the prosecution to identify (and presumably then prosecute) a principal offender, i.e. a holder of public office. As we have already seen, it seems unlikely that in making the £350m Brexit-bus claim anybody was acting as a public office holder I do not see on what basis somebody could be charged as a secondary party to an offence.

Conclusion

As an ardent Remainer, I cannot but reach the conclusion that based on the publicly available facts there is no basis for bringing criminal charges against members of Vote Leave for claims made regarding our contribution to the EU and what any savings from the membership fees could be spent on.

I’m also forced to the conclusion that those seeking criminal prosecution are vindictive wishful thinkers set upon revenge against adversaries who bettered them in the polls. For what little it’s worth, my suggestion would be that now we are on this ridiculous path to Brexit we should forget the sniping at past enemies and concentrate on getting the best exit-deal for the UK, one which preserves our access to the European markets with the minimum restrictions and so does as little harm to the UK as is possible.