‘Should Vote Leave be prosecuted over its referendum propaganda?’ An article by Anthony Eskander
On 23 June 2016 over 33 million people voted in the EU referendum. Since that date there has been widespread anger from those who believe that the organisation ‘Vote Leave’ misled members of the public. Vote Leave is said to have done so by promoting two claims. First, that the UK sends £350 million to the European Union every week and this money would be spent on the National Health Service if the UK voted to leave the European Union. Second, that remaining in the European Union would lead to unrestricted immigration.
While the public may have grown used to politicians peddling what they believe to be lies, could the Crown Prosecution Service have jurisdiction to prosecute Vote Leave over its referendum propaganda? As a criminal barrister, in this article I will set out how Vote Leave could potentially find itself on the wrong side of the law.
What was said by Vote Leave?
Emblazoned on the Vote Leave campaign bus and on the Vote Leave website was a pledge that the UK sends £350 million to the EU each week which could be spent on the NHS. The Institute for Fiscal Studies called the £350 million figure “clearly absurd”, while the House of Commons Treasury Committee said the figure was “highly misleading”. The figure most likely came from the HM Treasury publication ‘European Union Finances 2015’. Within the publication it is stated that the estimated gross payments to the EU amounts to £17.779 billion. Divide this figure by 52 weeks and we arrive at £341 million. One can only guess that £341 million was rounded to the nearest 50, which is why the figure £350 million was preferred.
As to the claim that the money is ‘sent’ each week, in ‘European Union Finances 2015’, HM Treasury states the following: “the effect of the rebate is to reduce the amount of the UK’s monthly GNI-based payments to the EU Budget. It does not involve any transfer of money from the Commission or other member states to the Exchequer.” As such, the abatement is applied before the UK pays its contribution, meaning £350 million is not sent or taken. The conclusion therefore seems to be that the Vote Leave statement is incorrect. As for the claim “let’s give the NHS the £350 million the EU takes every week”, considering the EU does not take £350 million per week, it is not possible to give this hypothetical amount of money to the NHS. To put it in the form of an analogous question: would you like a slice of a cake that does not exist?
In respect of the immigration claim, the boldest statement was “TURKEY (population 76 million) IS JOINING THE EU”. The origins of this statement are not contentious. It has been well reported that Turkey has been engaging in discussions on joining the EU.
On a literal reading, this contention can only be correct if Turkey joining the EU is a certainty (after all, the statement says that Turkey ‘is’, rather than ‘might be’ or ‘probably will’). There has been no confirmation from Turkey or the EU to suggest that this is the case, meaning that if it is a certainty, not only have the public have been deceived, but Vote Leave are aware of the deception and refuse to inform the public of the same. There is no reason to believe that this proposition is anything but a farfetched conspiracy.
It thus appears that it is not a certainty, meaning the statement is false.
Did Vote Leave know they were making statements that were inaccurate?
While no one person has claimed ownership over the statements, we do know that Michael Gove, Boris Johnson, Gisela Stuart, Matthew Elliott, Dominic Cummings and Ian Davidson were all on the committee of Vote Leave within a ‘core group’. Their role within the group was to “coordinate between campaign committee meetings and meet on a daily basis”. Intelligent, educated and established individuals, they were challenged numerous times on the accuracy of the £350 million figure prior to the referendum. What’s more, since the referendum result several of these members have distanced themselves from these pledges. While Iain Duncan Smith downplayed it as “there was talk about it going to the NHS”, Boris Johnson implied that there may have been a misunderstanding: “we must reach out, we must heal, we must build bridges – because it is clear that some have feelings of dismay, and of loss, and confusion.” Further, Nigel Farage stated: “No, I can’t [guarantee £350 million would go to the NHS]. I would never have made that claim. That was one of the mistakes I think the Leave campaign made. It wasn’t one of my adverts, I can assure you. I think they made a mistake in doing that.”
In light of the above, one can logically arrive at the conclusion that the Vote Leave campaign released statements, which it knew to be incorrect. In other words, Vote Leave may have deliberately misled the public.
With a poll by Ipsos MORI published on 16 June finding that “just under half (47%) think it is true that Britain sends £350 million a week to the European Union compared to 39% who think it is false (78% say they have heard of this statement)” and “forty-five percent think it is true Turkey will be fast-tracked into the European Union and their population of 75 million people will have the right to free movement to the UK while another 45% say it is false” there is an argument that members of the public would not have voted for the UK to leave the EU if they were aware that the statements were not true. The corollary of this is that if they had known and voted a different way or not voted at all there may have been a different result to the referendum.
Is there any criminal liability?
Misconduct in public office
To be guilty of this criminal offence it must be proved that a public officer wilfully neglected to perform his duty and/or wilfully misconducted 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.
According to the CPS analysis of the case law: “it does not seem that the person concerned must be the holder of an ‘office’ in a narrow or technical sense. The authorities suggest that it is the nature of the duties and the level of public trust involved that are relevant, rather than the manner or nature of appointment.”
Vote Leave were clearly targeting the public. One mantra on their website states: “together we can make a difference and win the referendum with grassroot support from campaigners like you.” It is thus arguable that Vote Leave had a duty not to knowingly mislead the public that they were targeting. It is equally arguable that there was a wilful abuse of the public’s trust by knowingly misleading them.
Simply because Vote Leave felt that leaving the EU was in the interests of the public, it does not mean that the public’s trust was not abused by being lied to. On the contrary, the public would expect that those who lobby the public in articles, web campaigns and television debates, on matters of such great importance, would not lie. Accordingly, one could rationally conclude that the threshold of “an abuse of the public’s trust” is met.
The final question is: can individuals be held accountable despite no single person admitting that the statement was created by him or her? The answer is yes. Misconduct in public office can be committed by wilful neglect or a failure to act. In the case of R v Dytham  QB 722, for example, a police officer was held to have been correctly convicted when he made no move to intervene during a disturbance in which a man was kicked to death. Therefore even if the person who first put forward the statements could not be identified, members of the board and committee failed to stop the statements being published, and later failed to withdraw the statements. This would be sufficient to constitute wilful neglect and / or a failure to act.
Can Vote Leave be prosecuted?
There are two obstacles to pursuing individuals for misconduct in public office. First, Article 9 of the Bill of Rights 1689, commonly known as parliamentary privilege. Second, ‘exclusive cognisance’, a phrase which describes areas where the courts have ruled that any issues should be left to be resolved by Parliament rather than determined judicially.
This meaning of both terms was illuminated by the Supreme Court in the case of R v Chaytor and others  UKSC 52. The case related to the false accounting of three ex-MPs – Mr Morley, Mr Chaytor and Mr Devine, and one member of the House of Lords – Lord Hanningfield. The case came about in the wake of the expenses scandal. The defendants in the case argued that the court did not have jurisdiction to try the case as to do so would infringe parliamentary privilege and would be against the principle of exclusive cognisance.
A report on parliamentary privilege published by a Joint Select Committee in 1999 explained that Article 9 of the Bill of Rights 1689 “protects the member [of Parliament] who knows what he is saying is untrue” and “abuse of parliamentary freedom of speech is a matter for internal self-regulation by Parliament, not a matter for investigation and regulation by the courts. The legal immunity principle is as important today as ever. The courts have a duty not to erode this essential constitutional principle.”
Applying the law to the current situation, if the campaign conducted by Vote Leave constitutes ‘proceedings in parliament’ then parliamentary privilege can potentially be invoked.
Proceedings in Parliament
Lord Phillips, giving the leading judgment in R v Chaytor, said:
“In considering whether actions outside the Houses and committees fall within parliamentary proceedings because of their connection to them, it is necessary to consider the nature of that connection and whether, if such actions do not enjoy privilege, this is likely to impact adversely on the core or essential business of Parliament.”
The Supreme Court determined that submitting the claims for expenses in R v Chaytor “does not form part of, nor is it incidental to, the core or essential business of Parliament, which consists of collective deliberation and decision making”.
Applying this to the present case, the EU referendum is clearly connected to parliamentary proceedings; the decision has dramatic consequences which permeate not only through the day-to-day work of the executive, but the legislative and judiciary as well. That said, Vote Leave is not a political party, nor is it affiliated with one particular party. The board and committee members are not exclusively politicians. While the result may impact the core or essential business of Parliament, the campaign did not. The campaign did not form part of, nor was it incidental to, the collective deliberation and decision making of Parliament.
Accordingly, it is arguable that no privilege arises.
There is a strong argument in saying that due to the fact that any crimes committed were not committed by politicians in the course of their duties as members of Parliament (as opposed to being public figures generally), Parliament would have no jurisdiction to hear the case.
In the event that this conclusion is incorrect, R v Chaytor sheds light on the definition of exclusive cognisance. Lord Phillips ruled that Parliament did not have an exclusive right to prosecute crimes committed by its members.
Lord Rodger went further, stating that parliamentary privilege was irrelevant to the expense scandal case as ‘ordinary crimes’ were not protected by privilege. He opined that the only question required to be asked was “does the matter for which the appellants are being prosecuted in the Crown Court fall within the exclusive jurisdiction or cognizance of Parliament – or, more particularly, of the House of Commons?” He came to the view that if the answer was yes, then the court had no jurisdiction to hear the case, but if the answer was no, then Article 9 of the Bill of Rights did not give the appellants the right to have the prosecution stopped on the ground of parliamentary privilege.
Does misconduct in public office meet the definition of ordinary crime? The difficulty in answering this question is the fact that there is no definition of ordinary crime. Lord Rodger simply refers to the judgment of Stephen J in Bradlaugh v Gossett (1884) 12 QBD 271, 283, where he compared an ordinary crime (such as theft) to a separate sort of crime, such as sedition where a Member of Parliament says something seditious in the exercise of his freedom of speech in the House. It appears therefore that a crime is not ordinary if it has a more than a trivial nexus to proceedings in parliament.
Turning to the present case, the statements were not made in parliament, rather they were created and published by an organisation with members of parliament on its board and committee. In other words, there is an absence of a more than trivial nexus between the statements and proceedings in parliament, which is required to transform the crime of misconduct in public office from an ordinary crime to a crime cognisable only in Parliament. The criminal courts’ ability to hear the case should not, therefore, be restricted by exclusive cognisance.
As rehearsed herein, the relevant facts and the proper inferences that can be drawn from those facts, gives rise to the potential conclusion that Boris Johnson, Michael Gove and others on the board / committee of Vote Leave have committed offences of misconduct in public office or conspiracy to commit misconduct in a public office. The Crown Prosecution Service would have jurisdiction to prosecute in such circumstance.
Even if the above analysis is correct, it is not to say that a prosecution is inevitable; the CPS may take a different view, or decide that it is not in the public interest to prosecute. If a decision is made not to prosecute, there could be non-criminal ramifications, such as members of Vote Leave being questioned as part of a public inquiry or by a Parliamentary Select Committee.
Finally, there is a possibility that a decision is made to hold a second referendum, it being a potential remedy to any injustice served by Vote Leave misleading the public.
‘The views and opinion expressed herein are the Author’s own’
Boris Johnson MP, writing in the Telegraph 26 June 2016: http://www.telegraph.co.uk/news/2016/06/26/i-cannot-stress-too-much-that-britain-is-part-of-europe–and-alw/
R v Chapman & Others  EWCA Crim 539 (siting the Court of Appeal judgment in Attorney General’s Reference (No.3 of 2003)  EWCA Crim 868;  Q.B. 73)
Lord Phillips, para 47, R v Chaytor
Lord Phillips, para 62, R v Chaytor
Lord Roger, para 104, R v Chaytor