Could Vote Leave be prosecuted for its EU referendum campaign propaganda?

The legal case for suing the pro-Brexit campaign for its misleading information.

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Since the result of the EU referendum, there has been widespread anger from those who believe that the organisation Vote Leave misled members of the public. While the public may have grown used to politicians failing to deliver on promises, could Vote Leave be prosecuted over its referendum propaganda?

Leaving politicians aside, does the law permit lying? One example of where it does not is when a witness lies to the court during a trial. The witness can subsequently be charged with perverting the course of justice. This is true even if the offence was a victimless crime.

Another example is where a director lies to the shareholders of a company. The ramifications include the director being charged with fraud by abuse of position, fraud by false representation and other similar offences.

What happens if a politician lies to the general public? Historically, not much. This is despite the fact that what politicians say and do can affect the lives of millions of people. So, why, therefore, should the lies of parliamentarians be treated differently to the lies of a member of the public perverting the course of justice, or of a director misleading shareholders?

Members of Parliament are democratically elected to act as the representatives of their constituency. They are trusted not to mislead the very people who voted them into power, yet the sanctions for failing to do so appear obsolete. Many people feel that this is not right.

So why have politicians not been held accountable in the past? Primarily because of two concepts: parliamentary privilege and exclusive cognisance.

Parliamentary privilege is a legal immunity for those in Parliament, meaning politicians can for the most part say what they want without having to worry about the consequences. If we cast our minds back to John Hemming MP and Ryan Giggs; this was an example of parliamentary privilege being invoked.

Exclusive cognisance is a concept whereby any issues involving parliamentarians should be left to be resolved by Parliament rather than determined judicially.

Many people believe that Vote Leave lied to the public in the build-up to the EU referendum. Two examples of this are the claim that the EU costs the UK £350m each week, and suggesting that Turkey is about to join the EU.

If Vote Leave knew that these statements were not true, then it is arguable that members of Vote Leave deliberately misled the public in publicising the statements. If this is true, then these members could find themselves before a Crown Court judge charged with misconduct in public office.

Can parliamentary privilege and exclusive cognisance be relied upon in this instance? The Supreme Court, when it had to rule on this very question in relation to the expenses scandal, determined that when it came to crimes committed by MPs which were not related to parliamentary proceedings, parliamentary privilege and exclusive cognisance could not be relied upon.

This means that members of the board and committee of Vote Leave are exposed to being charged with an offence of conspiracy to commit misconduct in public office. To be guilty of this offence, the prosecution – whether by way of a state or private prosecution – must prove that the particular member, while acting as a public officer, wilfully neglected to perform his or her 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.

Were members of Vote Leave acting as public officers? According to the Crown Prosecution Service 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.”

It can accordingly be argued that the members assumed a position of public office by targeting the public.

If members of Vote Leave were acting as public officers, then the law suggests that there was a duty to not knowingly mislead the public. If so, and if there is enough evidence to prove that there was a wilful abuse of the public’s trust by misleading them without reasonable excuse or justification, then there is a reasonable prospect of members of Vote Leave being convicted.

What’s the point in prosecuting? Many voters feel that had the lies not been told, there may have been a different referendum result; in which case it could be reasoned that the original referendum was not necessarily a true public mandate.

That said, it is not within the powers of a criminal court to order a second referendum. The purpose of any prosecution should therefore be to ensure that there is justice for all those who trusted that the statements of Vote Leave were factually accurate and who now feel that they were taken for fools. Similarly, the purpose should be to ensure that where a criminal offence is committed politicians are not treated any more favourably than other people who hold positions of trust.

Anthony Eskander is a barrister at Church Court Chambers. The views and opinion expressed here are the author’s own. He tweets @EskanderAnthony.