In the end common sense has prevailed – and swiftly. When District Judge Margot Coleman decided last week to issue a summons against Boris Johnson for misconduct in public office it looked as if the case would drag on for weeks or months. But exceptionally the High Court today intervened in the criminal case to stop it now, recognising that it would have inevitably failed had it made it to the Crown Court.
The arguments in court today centred around the nature of the crime that Boris Johnson was alleged to have committed. Misconduct in public office is an offence aimed at public officials who misuse their public position to such an extent that it constitutes a gross breach of trust. A prison officer helping to smuggle in drugs for prisoners, for example, or police officers feeding confidential information to the media.
The key argument in the current case was that though Johnson was undoubtedly a public office holder – both as mayor of London and as an MP – he was not exercising the duties of his office or any official powers when canvassing in the referendum. He was in the same position as any other campaigner, whatever their day job.
That may seem a narrow, technical point but there were wider issues of much greater importance. Had this case been allowed to go further, a jury would have been asked to rule on whether statements made in a political campaign – that had been the the subject of vigorous political debate from the outset – broke the law.
The right to freedom of speech cannot be entirely unfettered. Statements made to incite racial hatred are rightly criminalised. But this case was of an entirely different order. It was an attempt to involve the criminal law in an area of legitimate political debate. Had it succeeded, a chilling precedent would have been set.
Political campaigns by their very nature involve the strenuous advocacy of a particular position. They frequently contain exaggerations, puffs and even half-truths. The answer has to come from political opponents exposing the flaws in these arguments, not in court cases, or from judges or juries. If we involve criminal law in legitimate political debate, we undermine democracy itself.
Finally, a word about our system, which allowed a hopeless private prosecution to begin and one which, by its very existence, had the potential to harm Johnson.
Surely the time has now come to consider whether cases of this kind can only be brought with the consent of the DPP. If that had been the law, the case against Boris Johnson would have gone nowhere.
This article first appeared in The Spectator