The fraud investigation was threatening May's majority
The coincidence in timing of the Crown Prosecution Service (CPS) reviewing around 30 files of Conservative MPs and their agents and Theresa May’s sudden enthusiasm for a snap election has been recently highlighted by Scottish First Minister, Nicola Sturgeon.
With a House of Commons majority of just 17, the prime minister’s ability to retain the confidence of the house could have been jeopardised by a series of by-elections had several MPs been forced to resign as a result of prosecutions for electoral fraud.
In March, the CPS announced they were considering allegations that MPs broke local spending limits in the run up to the 2015 General Election, following publication of the Electoral Commission’s report on the subject. That report concluded the Conservative Party, was in breach of its obligation under s.80(3) of the Political Parties Elections and Referendums Act 2000 (“PPERA”) by:
- providing an incomplete statement of campaign spending;
- omitting campaign spending;
- and failing to include all required invoices and receipts.
It has been reported that the CPS is due to return with charging decisions in these cases by the end of May or early June, as the election campaign approaches its climax. As seen with the FBI’s re-opening, then re-closing, of Hillary Clinton’s personal email investigation prior to polling, any charging decision or the deferring of a decision until after the election will be highly contentious.
If a candidate is elected and subsequently convicted under the Representation of the People Act 1983 (RPA), they would be barred from political office. As well as this, there are a range of tangential legal complexities that need careful consideration.
Firstly, a positive charging decision is likely to cause serious strain on contempt of court laws which prohibit adverse comment on a defendant due to stand trial. If a candidate for election was charged with an offence, an opponent could risk arrest, injunction or prosecution for making adverse comment on the charges. Clearly the fact of the prosecution and an MP’s alleged fraud would be highly relevant to the electorate.
Secondly, these prosecutions could have been used as a reason to withhold the two-thirds majority required for an early election under the Fixed Term Parliaments Act. This could have been on the basis that in up to 20 constituencies the voters may be asked to place an ‘X’ on the ballot paper for a potential criminal accused of unfairly winning their seat.
Many of these potentially suspect results came in pivotal seats, notably South Thanet, where Nigel Farage was defeated by a reduced majority. A couple of days on the airwaves defending allegations of electoral fraud could have caused a considerable headache for the government.
Thirdly, the CPS, a public-facing apolitical branch of the civil service, is now facing a set of decisions with highly charged political ramifications at a time when every aspect of governance and power and the wider civil service is under intense pressure because of Brexit.
Allegations of candidates breaching spending limits is nothing new, and is not limited to any single party. Political factors have traditionally combined to limit criminal investigations and prosecutions. A losing candidate rejected at the ballot box who complains afterwards reeks of sour grapes. Moreover, candidates and their agents live in political glass houses; where few political parties or candidates would be keen for their own expense claims and declarations to be forensically examined.
The legislation also plays its part in limiting challenges. Responsibility for investigation lies with the Electoral Commission, but arrest and prosecution with the Police and CPS who do not share their level of expertise in this complex area of law.
The Law Commission made several recommendations to simplify and modernise our ‘complex, voluminous and fragmented’ electoral laws in its interim report last year. Notably, they recommended increasing the maximum sentence for electoral fraud to ten years custody. The government’s response to that report is still awaited.
It is arguable that the civil financial penalties which can be imposed on the parties under the PPERA do not serve as a credible deterrent, and there is no equivalent power under the RPA to impose civil financial penalties on individual candidates (where such penalties might be more effective). The £70,000 fine levied on the Conservative Party on this occasion may seem a small additional budgetary cost in the context of a national political party’s General Election spend.
Where there is appetite for a prosecution of a candidate or agent, the legal and evidential hurdles are significant. Any candidate and their election agent are obliged to make a declaration of their election expenses. If they either ‘knowingly’ make the declaration or ‘falsely’, he/she shall be guilty of a ‘corrupt practice’ (under s.82(6) RPA 1983).
Any prosecution would therefore need to satisfy a jury to the criminal standard that an MP or agent had ‘knowingly’ made a false declaration. A mistake or misunderstanding of campaign finance law could provide a defence of inadvertence, and there is no duty on a candidate to act as auditor or to second guess their agent’s work.
Whether there is sufficient evidence to overcome these clear evidential hurdles remains to be seen, but the scale of this investigation, and the fact that prosecutions are being considered, does seem to indicate a change in approach to regulation of elections.
Though apparently mundane in comparison to allegations of Russian spying in the US Presidential election, and foreign states distorting a nation’s political debate, the health of a democracy does depend on a relatively even playing field for candidates and parties.
In an era when our political system appears to be far from rude health, it is vital that the laws governing the functioning of elections are enforced and then clarified.
Ben Stuttard is a solicitor at Commons, the not-for-profit criminal law firm
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