At a preparatory hearing ahead of a criminal trial, a question arose about how the Representation of the People Act 1983 then treated campaigning support provided free or at a discount. The Supreme Court distinguished a benefit supplied for a candidate from support actually used by or on behalf of that candidate.
A legal question before the trial
This 2018 appeal arose from charges about election expenses. The parties asked the trial judge to determine a question of statutory interpretation in advance of trial. Lord Hughes, giving the Court’s unanimous judgment, confined the decision to that question.
Local expenses and national spending
The Representation of the People Act 1983 limits a constituency candidate’s election expenses. The election agent must deliver a return, and both the agent and the candidate must declare that it is accurate. The Political Parties, Elections and Referendums Act 2000 later limited a national party’s “campaign expenditure”. The two categories are mutually exclusive: anything that must go into a candidate’s return is not the party’s campaign expenditure.
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National campaigning can still help local candidates, especially in a marginal constituency or where a candidate is prominent. As an illustration, not a finding, the judgment refers to a national party sending a liveried coach of activists into constituencies, described by the judge as the battlebus issue. The certified question is narrower. It asks whether property, goods, services or facilities supplied free of charge or at a discount fall to be declared as election expenses only if authorised by the candidate, the election agent, or someone authorised by either or both of them.
Authorised spending and notional expenditure
For expenses actually incurred, section 90ZA(4) says they are incurred by or on behalf of the candidate only if incurred by the candidate, the agent, or a person authorised by either. Authorisation is also used to restrict who may incur or pay election expenses. Section 90C deals with a different situation, sometimes called notional expenditure. It applies where property or goods are transferred, or property, goods, services or facilities are provided, free or at a discount of more than 10 per cent of market value or the commercial rate, and they are made use of by or on behalf of the candidate in circumstances where the cost, if actually incurred by or on behalf of the candidate, would be an election expense. The calculated amount is then treated as incurred by the candidate and must be declared unless it is not more than £50. That provision is also subject to Part 2 of Schedule 4A.
The Crown argued that constituency campaigning by the central party can fall within section 90C without authorisation. The defendants argued that authorisation runs through the legislation, so national campaigning cannot be a candidate’s election expense unless the candidate, the agent, or someone authorised by either of them has authorised the expenditure. Otherwise, they said, an agent could not know what to declare when party activity benefits a candidate who has not sought or authorised it. The Court of Appeal accepted the defendants’ construction.
Why authorisation is not required
Lord Hughes held that section 90C poses three questions. Were the services, goods, property or facilities provided for the candidate’s use or benefit free or at the specified discount? Were they made use of by or on behalf of the candidate? If the candidate had paid, would the cost have been an election expense? If so, section 90C(2) deems the amount to have been incurred by the candidate although it was not actually incurred by him. Those conditions leave no room for an additional authorisation requirement. The test is use, not the test in section 90ZA(4).
Section 90ZA(1) expressly makes its definition of election expenses subject to section 90C. Section 90ZA(4) identifies when actual expenses are incurred by or on behalf of the candidate. Section 90C adds a further category treated as incurred by the candidate; it does not adopt the authorisation wording. Nothing in the 1983 Act, or in the equivalent provisions governing parties and other campaigners, required a different reading. The court did not need the Crown’s arguments about evasion or equality with independent candidates, and did not regard them as having great substance.
Benefit is not the same as use
The difference in wording is deliberate. Section 90C(1)(a) requires the services to be provided “for the use or benefit” of the candidate, but section 90C(1)(b) counts their cost only if they are “made use of by or on behalf of the candidate”. Lord Hughes accepted that making use involves positive, and ordinarily conscious, activity by the candidate or someone on the candidate’s behalf. It is not enough that the services merely benefit the candidate. He thought it unlikely that use by a campaigner would be treated as use by or on behalf of a candidate who had positively refused the benefit. Use and authorisation may differ on some facts, but they will often be closely related. Who acted on the candidate’s behalf remains a question for the evidence.
Donation rules are consistent with that reading. Free or discounted services may also be a donation, and acceptance will ordinarily involve awareness by the recipient. That may illuminate “made use of”, but it is no reason to import section 90ZA(4) into section 90C. Nor can the plain reading be displaced because it may be inconvenient, or because its application to the overlap between national and local spending may not have been foreseen. From the material before the court, Electoral Commission guidance had addressed both apportionment and free or discounted services, but did not appear to alert readers to the link between them.
Mutual exclusion does not mean that overlapping spending automatically becomes a constituency expense. The two regimes must be separated and, if necessary, apportioned, and that is what makes the agent’s task difficult. Knowingly making a false declaration requires a dishonest state of mind: the defendant must know that the declaration ought to have included something it omits. Lord Hughes referred to the judgment of Lord Bingham of Cornhill CJ in R v Jones and Whicher, which counsel for the intervening Electoral Commission underlined and which the Crown did not suggest should be qualified. Simple failure to make a correct return is a separate strict-liability offence, but the Act gives a power to grant relief where it was committed despite good faith. Both offences can also lead to disqualification from elective office, subject to relief where specified excuses are established and good faith is proved.
Verdict: The Court unanimously allowed the prosecution’s appeal. Under section 90C as then worded, prior authorisation was not a condition of notional expenditure. Whether support had been used by or on behalf of a candidate was a separate factual question. The Court made no finding of guilt.
Source: R v Mackinlay and others (Respondents) [2018] UKSC 42
