BY JAMIE FOSTER

Boris Johnson faces what must be a completely vexatious private prosecution by businessman Marcus Ball for misconduct in public office over the £350 million per week claim made during the referendum campaign. It is timed to come just as his leadership bid is being made. It is clearly a political stunt by a Remain campaigner that has no proper basis in law. Boris’ lawyers will have two distinct lines of defence they can run on his behalf. Firstly, that he was not acting in his public office during the campaign. He was merely acting as a campaigning politician. As he was not acting in his public office he cannot be guilty of misconduct in public office. Secondly, the figure was true.

The figure is worked out retrospectively and the Office for National Statistics has just released the figure which shows:

• Payment to Brussels, net of rebate and money returned to the UK: £9.4 billion a year, or £181 million a week.
• Payment to Brussels, net of rebate: £13.9 billion a year, or £267 million a week.
• Gross payment to Brussels: £18.9 billion a year, or £363 million a week.

The argument then becomes whether it is a lie to use a gross figure to describe the payment. Remainers argue that the gross figure is misleading because it doesn’t take into account the rebate we receive. The trouble with this argument is that the rebate is earmarked for projects that we have to pay into so we do not have control over the rebated money. Due to this talking about the net figure is also misleading. There are lots of occasions on which we speak about gross figures in describing finances. When we talk about pay we talk about the gross figure we are paid not the after tax net figure. When we talk about tax we talk about the gross figure that is taken from us, not the net figure after rebates.

In the end it will be a court case arguing about semantics. The extent to which what Boris said was political speech rather than ordinary speech bears some thinking about. Campaigning politicians use language designed to elicit a response rather than to communicate exactitudes. The criminal courts are not the place to police the extent of the truthfulness of political speech. The effect on democracy if every campaigning politician risked going to jail for their campaigns would be chilling. If politicians are seen to be liars they can be punished by the public not supporting them and not voting for them.

It is no coincidence that this trial surfaces at the time of Boris’ leadership bid. This is a political stunt designed to do him as much harm as possible. It is punishing him for being the figurehead of the leave campaign. It is a shame that the Criminal Courts are not better equipped to defend themselves from being used for political ends in politically motivated prosecutions.

Boris has always been a controversial politician but it is a pity that the normal rules of behaviour don’t seem to apply to his enemies. They seem to feel that in attacking Boris all bets are off and they can do whatever they want with no limit. There is no downside for those bringing this court case. The money they have crowdfunded will mostly go to the lawyers they instruct to bring the prosecution. Even if they lose they will not be asked to pay costs unless it can be shown they committed misconduct in the way the case was argued.

Hopefully this case will fail to have a negative effect on Boris’ chance of leadership. The country needs him to lead us in the right direction over Brexit. He is the natural choice for leader of the Tory party, the only leadership contender with real public popularity. The Tory party needs him to counter the effect of the Brexit party. The country needs him to take the Brexit mess firmly in his hands and get us out of the EU. His time is now and it would be a real shame if a silly political stunt like this court case was able to derail him.

In the end he will have to trust in the court to deliver justice in his case. Hopefully a wise judge will realise the iniquity of this case and help to crush it. It is proving a distraction from the main event of the leadership of the Tory party and the eventual resolution of Brexit. Let’s hope it is a flash in the pan and is over quickly and painlessly. The last thing we need is a miscarriage of justice to add to the Brexit woes.