No Criminal Charges for Tory MPs - The (Battle) Bus Has Left The Station

10.05.17 | |


The bus has left the station, it seems.  This morning’s announcement by the CPS of the DPP’s decision not to prefer charges will come as great relief to those Conservative Party MPs and officials who were subject to investigation over the party’s spending during the 2015 general election campaign.  Although we are told one file, relating to Craig Mackinlay (the MP for Thanet South) remains under consideration, and so perhaps the battle over the battle bus is not quite parked just yet.

 

In one sense, though, the DPP’s decision comes as no surprise; prosecution of those candidates or election agents for allegedly exceeding electoral spending limits would have been controversial, and not as simple as the press might have us believe.  The evidential burden was a very high one, and the CPS said that whilst the Conservative Party’s returns may have been inaccurate, there was insufficient evidence to prove that any candidate or agent was dishonest. 

 

Had charges been brought, what legal issues would have been likely to arise?

 

Labelling Expenses Incorrectly

The general allegation was that the labelling of expenses as national rather than local spending (in relation to activity such as dispatching busloads of activists to key seats) allowed those fighting for election to achieve a financial advantage over his or her opponents. The ceiling for national expenditure is £100,000 as opposed to £7,150 for local expenditure (plus 5p or 7p per electoral register entry, depending on whether it is a county or borough constituency).  In other words, the complaint is that those guilty of “mislabelling” were able to achieve less than a level playing field with the hope of securing a better electoral advantage.

 

This, in short, was the complaint and doubtless if charges had followed it would have been the substance of any prosecution opening to a Jury (or Judge alone if summary jurisdiction). The Judge or Jury would have also doubtless been told that this is electoral fraud and that the public perception of such fraud undermines democracy and weakens the United Kingdom’s strong tradition of free and fair elections.

 

The Issues – Far from Clear Cut

Party campaign spending at elections is regulated under the Political Parties Elections and Referendums Act 2000 (PPERA). There are two types of spending by and on behalf of parties at elections: party campaign spending and candidate spending, the former loosely termed “national” and the latter “local”, and different rules apply to both. It is perhaps this simplistic shorthand that creates a misconception that the differentiation between the two is easily discerned. This is not always the case and doubtless the DPP recognised this.

 

Party campaign spending is authorised to promote the party and its policies generally. For example, national newspaper adverts for the party, or leaflets explaining party policy. It also includes spending on promoting candidates at elections where the party nominates a list of candidates for a region, rather than individual candidates for local areas.

 

By contrast, candidate spending is when a candidate authorises campaigning to promote them at an election. For example, leaflets, billboard advertising, websites and campaign staff costs.

 

It is not difficult to see that there may be very many situations where the spending on certain activities may be very much a mixture of both, and the question then becomes what is the dominant purpose of those activities, and where is the line drawn between the two types of expenditure.

 

The Possible Charges & Potential Defences

Under Section 76(2) Representation of People Act 1983 any candidate or election agent who—

“(a) incurred, or authorised the incurring of, the election expenses, and

 

(b) knew or ought reasonably to have known that the expenses would be incurred in excess of that maximum amount, shall be guilty of an illegal practice.”

 

(2)That maximum amount is—

(a) for a candidate at a [F6 parliamentary general election, being an election]—

(i) in a county constituency, [F7 £7,150] together with an additional [F8 7p] for every entry in the register of electors F9. . . and

(ii) in a borough constituency, [F10 £7,150] together with an additional [F11 5p] for every entry in the register of electors F12. . .[F13 (aa)for a candidate at a parliamentary by-election, £100,000;]”

 

To be found guilty of an offence the person charged must be proved to have incurred or authorised the incurring of the election expense, and to have known (or they ought reasonably to have known) that the expenses would be incurred in excess of that maximum permitted amount. The test, then, is a high one and where the line between the two types of expenses is “not clear cut” or “blurred”, juries and judges may well have found themselves troubled in trying to unpick this.  The decision of the DPP not to prefer charges no doubt recognised this.

 

Within 35 days after a general election, the election agent must make a true return of all expenses incurred by or on behalf of the candidate (section 81). The return must be supported by a declaration by the candidate stating that they have examined it and that ‘to the best of my knowledge and belief it is a complete and correct return as required by law’ (section 82 and schedule 3).

 

By section 82(6): ‘If a candidate or election agent knowingly makes the declaration required by this section falsely, he shall be guilty of a corrupt practice’.  The offence under section 82(6) is far more serious than that under section 76(2), the former being an “illegal practice” the latter being a “corrupt practice”. To be guilty of an offence under section 82(6) the candidate or election agent must be proved to knowingly have been dishonest by making a false declaration. It follows that where there is a declaration that is proved to be in fact false, to be guilty the candidate or election agent must be proved to have known (or ought reasonably to have known) that the expenses would be incurred in excess of that maximum amount. If they reasonably believed otherwise, this would be a defence - both to charges under section 76, and those under section 82(6). It follows that where the “local” expenses ceiling has been exceeded, but only because they reasonably believed the expense incurred was in fact a “national” one, that would be a complete defence.

 

In addition to the above defences there is a very limited statutory defence or excuse. Under section 86 RPA 1983 a candidate or election agent may apply to the High Court, Election Court or County Court if he or she has an authorised excuse for the error or false statement contained within the declaration or return. The ambit of the authorised excuse is limited to illness, absence or misconduct of others, or inadvertence related to the said circumstances.

 

So whilst the press and opponents of the Conservative Party would have had us believe that the prosecution and conviction of those who faced investigation was clear cut, a deeper analysis demonstrates that this was not necessarily so, and the decision of the DPP announced today is an understandable one.

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