Malicious prosecution and the risk to private prosecutors
There has been talk of a judicial review to the High Court of the District Judge’s decision, but even if this can be expedited, the appeal is most likely to fail. The High Court has made it clear that it will not hear challenges to a decision to prosecute save in wholly exceptional circumstances, none of which appear to apply here. The proper course is to defend the case in the criminal courts, which in this case will be the Crown Court.
It is possible in the Crown Court to apply to dismiss the case, and no doubt such an application will be made in this case. But even if such an application were to be expedited, it is highly unlikely that it could be heard before the end of June when Conservative MP’s have to decide on the names of the two candidates to put to their membership.
How will the fact of this prosecution affect the votes of MPs? It is doubtful that their views of the merits of the case will have been changed by the judge's decision. The threshold for issuing the summons was low - that is, was there a prima facie case - and the judge did not express a view on Johnson’s guilt or innocence. Many of us think that the prosecution is an outrage and that in the end the prosecution will go nowhere.
But there is a practical issue that has to be addressed. If Boris Johnson becomes Prime Minister in July, he will be the first ever serving Prime Minister to be forced to face a criminal prosecution while in office, and this at a time of national crisis. Criminal cases cannot simply be left to the lawyers to deal with. Preparation requires the client's instructions and the client’s focus, and that in turn needs time. Lots of it. And defendants in criminal trials are expected by the courts to attend the trial. Who knows how long this one might take? It won’t be swift. Courts can excuse attendance, but juries won’t necessarily take kindly to that. And after all, questions of liberty are at stake.
So whatever anyone’s views of the rights or wrongs of this case, there is no doubt that it is a hugely complicating factor for MPs in deciding whether or not to put Boris Johnson’s name forward to the membership, knowing that they in turn are likely to elect him if they do.
Unless the timing of the election is changed, it may just be that what appeared to be an advantage becomes a curse.
First published in The Spectator, May 2019
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