«INTRODUCTION 1.1 The classical law governing electoral campaigns developed in the 19th century for UK Parliamentary elections. The modern law is ...»
RESEARCH PAPER: THE REGULATION OF
THE CAMPAIGN AND ELECTORAL OFFENCES
The law stated in this research paper may be in parts out of date. This paper is
made available online for the benefit of those who are interested in fuller
exposition of electoral law than is contained in our Consultation Paper.1 Our
definitive statement of the law is contained in that paper, however, and readers
should beware that the law and citations in this paper may not be fully up to date, as our work researching electoral law commenced in 2012.
1.1 The classical law governing electoral campaigns developed in the 19th century for UK Parliamentary elections. The modern law is principally set out in Part 2 of the 1983 Act, which also governs local government elections in England and Wales and elections to the Greater London Authority. For other elections, discrete legislative measures refer to the 1983 Act and apply some or all of its regulatory provisions, with or without modifications. Some of the main modifications relate to voting systems involving the closed party list system.
1.2 We shall consider the regulation of the campaign in three parts. First, there is the regulatory structure – the way in which electoral law lays down and seeks enforcement of its rules. Secondly, there are the offences themselves which vary in range and content. We have included these in the table at Appendix A to this paper. We consider in detail some of the offences, particularly those that seek to govern how electoral campaigns are run, and to protect the integrity of the election. Finally, an important part of regulating the campaign involves laying down detailed rules governing election expenditure, which we turn to in the third part of this paper.
Electoral offences and their place within the regulatory structure
1.3 Electoral law lays down detailed rules. Some are administrative in character, and their breach can be a ground for invalidating the election, although it is also an offence for electoral administrator knowingly to breach such rules. Others relate to the conduct of the public generally, and candidates and campaigners in particular. It is the regulation of the campaign that we focus on in this paper.
1.4 Elections excite strong feelings and tension and when the classical election law was laid down violence, rioting, largesse and intimidation were serious concerns.
The modern regulatory structure is a consequence of these concerns. It seeks to regulate public conduct at election time (and thus the election campaign) by laying down criminal offences. We refer to these generally as “election offences”, and set them out appendix A to this paper.
Electoral Law: A Joint Consultation Paper (9 December 2014)
1.5 Some general criminal offences may be relevant in the election law context, such as offences against the person, public order offences and bribery under the Bribery Act 2010, but this project is not concerned to review the criminal law generally. Our focus is on the special offences that exist to regulate electoral conduct.
PROSECUTION OF ELECTORAL OFFENCES
1.6 Criminal offences need to be prosecuted, and election law specifically directs public prosecutors to consider bringing prosecutions. The Directors of Public Prosecutions (“DPP”) for Northern Ireland and England and Wales respectively, and the Lord Advocate for Scotland, have a duty under section 181 of the 1983 Act to consider making inquiries and instituting prosecutions where information is given to them that an electoral offence has been committed.2
1.7 There is no public regulator for electoral conduct at the campaign level. At the national level, the regulation of political parties is overseen by the Electoral Commission, which can also impose civil penalties for wrongdoing. Other than private enforcement through the election petition jurisdiction, criminal prosecutions are thus the chief way of enforcing election law’s regulation of campaign conduct.
Time limit for prosecutions
1.8 The time limit for commencing proceedings is one year from the commission of the offence, which in exceptional circumstances can be extended to 24 months on application to a magistrate’s court, provided an application to extend time is made within the year.3 Prosecutorial discretion
1.9 Allegations of electoral offences often originate from returning officers, rival candidates or their respective staff. If the primary information indicates that an offence may have been committed police enquiries will normally be requested.
The police will take statements from the complainant and the returning officer and interview the alleged offender. If the police make arrests it will fall to the Crown Prosecution Service (CPS) to decide whether to prosecute. The prosecutor must consider whether a prosecution is in the public interest and whether there is sufficient evidence to provide a realistic prospect of conviction.
1.10 In its guidance to prosecutors the CPS states that purpose of the relevant legislation is to maintain the integrity and probity of the electoral process. A prosecution for major infringements will normally be in the public interest. A prosecution may not be in the public interest, and a caution administered by the police or the provision of advice as to future conduct may suffice in the following
Representation of the People Act 1983 s 181 read with ss 204(5) and 205(1)(aa) Representation of the People Act 1983, ss 176(1), (2A) (2B) and (2F)
1.12 Plainly public prosecutors will take into account a balance of factors when deciding whether to use public resources to bring an apparent wrongdoer to account. However, it is worth noting that if a wrongdoer, for example a candidate who has failed to submit a return of expenses, has not won the election, it is difficult or even impossible to show that the breach affected the result. Some electoral offences seek to regulate electoral conduct irrespective of whether it affects voting. Those who do not win the election but are wrongdoers cannot be challenged by election petition, and so criminal prosecution is the only way of giving bite to the law they have infringed.
Judicial relief from offences
1.13 Quite apart from the question whether it is in the public interest to prosecute, a person may proactively apply for relief under section 167 of the 1983 Act. The application is to the High Court or Court of Session, an election court or it is if in respect of the time for the sending in and payment of election expenses, a county court or sheriff. The application for relief is on notice to the Director of Public Prosecutions or Lord Advocate in Scotland, who may attend the proceedings and make representations. Under this jurisdiction the court has a discretion to exempt an innocent act, payment or employment from being an illegal practice if it is shown that it arose from inadvertence, accidental miscalculation or some similar other reasonable cause. Notice of the application must have been given in the relevant constituency or authority as the court seemed fit.
Crown Prosecution Service Legal Guidance “Code for Crown Prosecutors Considerations” http://www.cps.gov.uk/legal/d_to_g/election_offences (last visited 18 August 2014) Relief from non-compliance with duties as to expense returns
1.14 A court may also grant relief to a candidate or election agent under section 86 of the 1983 Act in respect of any failure to deliver the return or declarations as to election expenses, or in respect of any error or false statement in them, by reason of illness, death, misconduct or inadvertence. It must grant relief to a candidate for acts and omissions of the election agent in relation to the return and declarations where these are without the sanction or connivance of the candidate and the candidate took all reasonable steps to prevent it. One major point of difference is that where a candidate proves that the offending conduct of his agent occurred without his sanction or connivance, and that he took all reasonable means for preventing it, relief is not discretionary and must be granted.5
1.15 The concept of inadvertence has received judicial consideration. It was held that it included a negligent act or omission in good faith, but not a reckless and plainly not a dishonest flouting of the law.6 Even experienced professionals and lawyers could be excused for their inadvertence in failing to consult the legislation. It is a question of fact in every case whether the degree of carelessness involved in committing the offence was such that professionals could not have committed the offences inadvertently.7
1.16 A successful applicant for relief under sections 167 is not subject to any of the consequences under the 1983 Act of the offending conduct. That person is effectively immune from criminal prosecution and a winning candidate avoids the invalidity of the election. Although worded differently, excuse or relief under section 86 has the same effect.
The regulatory significance of the labels “corrupt” and “illegal” practice
1.17 All electoral offences are criminal and subject to prosecution and trial under ordinary criminal procedure. Some have no other public law significance. Others, however, are also labelled as “corrupt” or “illegal” practices. Offences which have
this label gain special significance in public law terms:
1.18 Corrupt practices are offences triable “either way”, attracting a maximum sentence upon conviction on indictment of one year’s imprisonment (two years for personation and postal voting offences), or a fine, or both, and on summary conviction six months’ imprisonment, or a fine not exceeding the statutory maximum, or both. Illegal practices are summary offences attracting a fine not exceeding level 5 on the standard scale.13
1.19 These are not particularly severe maximum sentences given the seriousness of some of the offences and the potential scale of wrongdoing.14 Properly understood, however, corrupt and illegal practices are special electoral offences the punishment for which includes not only the fine or custodial sentence, but also the nullity of the election and disqualifications from future election. These are likely to be strong incentives for candidates and political campaigners to comply with the law.
1.20 Sometimes, corrupt or illegal practice is a merely a label applied to an offence if it is committed by the candidate. At other times, it is an offence that can be committed by the public generally, and thus a mark of a serious electoral offence.
EXAMPLES OF CORRUPT AND ILLEGAL PRACTICES AS A LABEL ONLY
1.21 Some corrupt and illegal practices are so labelled because an electoral offence is committed by the candidate or agent. Into this category fall “illegal payments” and illegal employment under sections 107, 111 and 112 of the 1983 Act. Section 175(1) of the 1983 Act governs the simple offences while a candidate or election agent who is personally guilty of the offence commits an illegal practice under section 175(2) of the 1983 Act. The sentence is the same, but the vitiating and disqualifying consequences of guilt are triggered.
1.22 The same can be noticed in relation to the offence contrary to section 110 of the 1983 Act of publishing election literature without complying with the legal requirements to include various other persons’ names and addresses. If the offence is committed by a candidate or agent it is under section 110(12) labelled an illegal practice. Again, a single offence is labelled “illegal” practice if committed by candidates or agents.
CORRUPT AND ILLEGAL PRACTICES TO MARK SERIOUSNESS OF AN ELECTORALOFFENCE
1.23 Other special offences are such because of the serious nature of the wrongdoing, or its centrality to the regulation of electoral law. Thus offences of bribery, undue influence, personation or postal voting offences or multiple voting are marked out as more serious offences than simple electoral offences, irrespective of who commits them. Others can only be committed by the public as opposed to the candidate and their campaign: for example, providing money or property in support of a candidate’s election expenses otherwise than to the agent, contrary to section 71A of the 1983 Act.
Level 5 on the standard scale and the statutory maximum are currently both set at £5,000.
From a date to be appointed, both will increase to a fine of any amount: Legal Aid, Sentencing and Punishment of Offenders Act 2012, s 85(1).
Difference between corrupt and illegal practices
1.24 As the labels indicate, there was once a qualitative difference between “corrupt” and merely “illegal” practices. The 19th Century legislation put the common law offences of bribery, treating, and personation on a statutory footing in an attempt to rein in corruption at elections. By 1883 electoral offences included two key categories of offences. Corrupt practices involved an element of intentionality in the wrongdoer. Illegal practices involved the commission of acts, even honestly, which the legislation sought absolutely to prohibit.
1.25 This rationale has not survived the passage of time and the creation of further offences. For example, it is a corrupt practice to incur certain expenses without the authority of the election agent contrary to section 75(5) of the 1983 Act. We consider this further below in this paper. This is imposes strict liability for campaign spending by those unaffiliated to the candidate and unauthorised by the election agent (third persons), beyond a legally permitted sum. It is designed to protect the efficacy of the law’s limitation on campaign expenditure by candidates, which might otherwise be evaded through spending by sympathetic third persons. It is not a defence that a third person did not know that they have exceeded the legal limits. Were it an illegal practice, an accidentally overspending third person would be able to apply for relief of the offence, and to rely on innocent mistake to evade punishment.