R (Electoral Commission) v Westminster Magistrates' Court
| Jurisdiction | England & Wales |
| Judge | Sir Paul Kennedy,Lord Justice Goldring,Lord Justice Waller |
| Judgment Date | 19 October 2009 |
| Neutral Citation | [2009] EWCA Civ 1078 |
| Docket Number | Case No: C1/2009/0272 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 October 2009 |
[2009] EWCA Civ 1078
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
QUEEN'S BENCH DIVISION
Mr Justice Walker
CO92772007
Lord Justice Waller
Lord Justice Goldring and
Sir Paul Kennedy
Case No: C1/2009/0272
Michael Beloff QC and Jasbir Dhillon (instructed by Treasury Solicitor) for the Appellant
The Respondent did not appear and was not represented
Alan Newman QC and Sam Blom-Cooper (instructed by Moreland & Co) for the Interested Party
Hearing dates : 28 th and 29 th July 2009
Sir Paul Kennedy :
Introduction
Having considered the fifth report of the Committee on Standards in Public Life under the chairmanship of Lord Neill of Bladen QC (the Neill Committee Report) the Government produced a White Paper, and Parliament then enacted the Political Parties, Elections and Referendums Act 2000 (PPERA). The statute established the Electoral Commission (the EC) and provided, amongst other things, that political parties should only accept donations in excess of £200 from individuals currently registered on an electoral register. To enforce that provision the statute provided criminal and civil sanctions. We are not in this case concerned with the criminal sanctions, but s.58(2) provides that where a political party has accepted a donation which, by reason of the statutory prohibition, the party is prohibited from accepting, then a Magistrates' Court –
“… may, on an application made by the Commission, order the forfeiture by the party of an amount equal to the value of the donation.”
Mr Alan Bown was at all material times a member of the United Kingdom Independence Party (UKIP), who made a number of donations to that party, and who was entitled to be registered as an elector, but, for the period between 1 st December 2004 and 2 nd February 2006 his name did not appear on any electoral register. During that period he made sixty-nine donations, totalling in excess of £360.000, but some were of less than £200. The remainder totalled £349,216.
The statute requires a political party which receives the donation to take all reasonable steps forthwith to verify the identity of the donor and whether he is a permissible donor (s.56.(1)). If not satisfied that a donor is a permissible donor a political party can return the donation within thirty days, and only if it fails to do so will it be regarded as having accepted the donation. UKIP did not return any of the donations totalling £349,216 within thirty days, or at all, so the EC on 16 th March 2007 applied to the City of Westminster Magistrates Court for an order for the forfeiture of an amount equal to the value of the donations.
In the Magistrates Court
The matter came before Judge Workman, the Senior District Judge (the SDJ), whose decision after a three-day hearing is dated 7 th August 2007. On behalf of the EC it was submitted that the only appropriate order in the circumstances was the order sought. The SDJ found it unnecessary to rule in relation to that submission (i.e. as to the width of discretion granted by s.58(2)) but he was “not attracted” by the submission which sought to fetter the statutory discretion. Having heard evidence from Mr Bown, the SDJ was unable to decide whether the failure to register Mr Bown's name on the electoral roll for the period between December 2004 and February 2006 was the result of a mistake made by Mr Bown, or the postal services, or the local office of Thanet District Council but, whichever it was, the SDJ was satisfied that it was a genuine, inadvertent error.
Before the SDJ it was admitted on behalf of UKIP that the party had not taken all reasonable steps to verify that Mr Bown was a permissible donor. It had not at any time between December 2004 and January 2006 checked the electoral roll (which is available, free of charge, to all registered parties), but the SDJ accepted the evidence of the party's treasurer that he had sought (and by inference obtained) an assurance from Mr Bown that he was on the electoral roll. As the SDJ said “in the unusual circumstances of this case that was clearly insufficient”.
When rejecting the submission made on behalf of the EC that there should be an order for the forfeiture of an amount equal to the value of all of the donations made when Mr Bown was not a permissible donor, the SDJ expressed the view that Part IV of The Act (entitled “Control of Donations to Registered Parties and their Members etc”), which includes s.58(2), “was designed to ban foreign donations to political parties”. As the SDJ found, Mr Bown's donations were not foreign donations. They were made in the belief that they were permissible, by a man entitled to registration on the electoral roll.
The SDJ considered it appropriate to order only the forfeiture of a sum equal to the value of donations received from Mr Bown after a meeting between officials of the EC and the then treasurer of UKIP, at which “the party was aware that Mr Bown was not on the electoral roll”. The SDJ made a mistake as to the date of the meeting, which he said took place on 19 th June 2005. It is common ground that the only meeting of that type took place later, on 13 th December 2005, but UKIP makes no complaint about the order made by the SDJ.
The application for Judicial Review
The statute, in s.59(2) gives a registered political party a right to appeal to the Crown Court but no such right is granted to the EC, so it can only challenge the decision of a Magistrates' Court by means of Case Stated or by means of judicial review. The SDJ refused to state a case, so the EC sought judicial review, contending that the SDJ had (1) erred in law in his construction of PPERA; (2) not made a valid exercise of his discretion under s.58(2) when he refused to order forfeiture of £349,216; (3) erred when giving the date of the meeting as 19 th June 2005 and (4) failed to give adequate reasons for rejecting the EC's case. Permission to apply for judicial review was granted on 11 th March 2008 and the case was heard on two days in September and October 2008.
Additional Facts
The SDJ made no reference to the undisputed history of relations between the EC and UKIP before the meeting in December 2005, although he was aware of it. As it has always been part of the case for the EC that the history is of some importance I summarise it here before turning to the background of the legislation, the relevant statutory provisions and the decision of the judge.
In 2001 UKIP accepted a donation of £50,000 from Sir Jack and Lady Hayward. Sir Jack was not on the electoral roll at the address provided by UKIP. The EC, in two letters, sought an explanation, and asked for UKIP's explanation of its systems to check that donors were registered as electors and were therefore permitted donors. At a meeting between the then treasurer of UKIP and representatives of the EC the treasurer said that UKIP had added to its internal donation report a request for the electoral registration address of any individual donor, but at some time between May 2004 and May 2006 that request was removed from the report form, to simplify the form.
On 14 th April 2005 (four and a half months after Mr Bown ceased to be a registered elector) the EC, by e-mail, asked the then treasurer of UKIP to explain donations, apparently from him, but attributed to two separate addresses, those donations having featured in the party's return (Form RP10) for the last quarter of 2004. There was no reply to that e-mail, despite a reminder sent on 13 th May 2005, and the flow of donations continued, so on 24 th June 2005 the EC sent another e-mail raising questions about the donations which featured in the form RP10 for the first quarter of 2005. Again there was no response, but the flow of donations still continued and was reflected in the Form RP10 for the second quarter of 2005. That led to a letter from the EC to UKIP dated 5 th October 2005 asking the party to check the names and addresses of a number of donors, including Mr Bown, and to provide correct details for each.
Prior to December 2004 Mr Bown had been on the electoral roll maintained by Thanet District Council. On 18 th October 2005 the EC contacted that local authority and established that Mr Bown had not been on its electoral register since 2004. On 24 th October 2005 the EC passed that information to Mr Smith, then treasurer of UKIP, who said that Mr Bown had been using forwarding addresses and promised an email with Mr Bown's registered address. On 28 th October 2005, in response to a further telephone call from the EC, Mr Smith said that Mr Bown was away, and that he had not been able to obtain the address at which Mr Bown was recorded on the electoral register, but that he believed Mr Bown had been on the register when donations were made. Mr Smith maintained that position for a time, and then on 15 th November 2005 provided an address in Broadstairs at which he said that Mr Bown was registered as an elector. The EC already knew from Thanet District Council that he was not registered at that address, but UKIP continued to assert that he was registered at that address at the meeting held on 13 th December 2005. Mr Smith also said that he did not personally check the electoral register. He relied on others at the local level knowing whether or not donors were registered.
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