R v MacKinlay
| Jurisdiction | England & Wales |
| Judge | Lord Hughes,Lady Hale,Lord Mance,Lord Hodge,Lord Lloyd-Jones |
| Judgment Date | 25 July 2018 |
| Neutral Citation | [2018] UKSC 42 |
| Court | Supreme Court |
| Date | 25 July 2018 |
[2018] UKSC 42
Lady Hale, President
Lord Mance
Lord Hughes
Lord Hodge
Lord Lloyd-Jones
Appellant (Director of Public Prosecutions)
Timothy Straker QC
John McGuinness QC
Tom Little QC
(Instructed by Crown Prosecution Service, Special Crime & Counter Terrorism Division)
Respondent (Craig Mackinlay)
Richard Price QC
David Mason QC
Francis Hoar
(Instructed by Manleys Solicitors)
Respondent (Nathan Gray)
Patrick Gibbs QC
(Instructed by Manleys Solicitors)
Respondent (Marion Little)
Clare Montgomery QC
Stephen Ferguson
Sarah Hannett
(Instructed by Blackfords LLP)
Intervener (The Electoral Commission)
Richard Gordon QC
Gerard Rothschild
(Instructed by Fieldfisher LLP)
Heard on 23 May 2018
(with whom Lady Hale, Lord Mance, Lord HodgeandLord Lloyd-Jonesagree)
This appeal raises a point of pure statutory construction relating to the manner in which election expenses are required to be calculated and declared. It is important to appreciate that the point is raised not, as it might in other circumstances have been, on an application for judicial review or a declaration as to the law, but as a preliminary question in a criminal prosecution. The defendants face charges of knowingly making false declarations in relation to election expenses, or aiding and abetting or encouraging or assisting such offences. The parties asked the judge to determine the point on a preparatory hearing pursuant to Part III of the Criminal Procedure and Investigations Act 1996 (“the 1996 Act”). The criminal trial, although technically begun by the preparatory hearing, has yet to take place, and no jury has yet been sworn. No one can yet know what the real issues will turn out to be at that trial. No one can yet know what the evidence will be, still less which facts will be disputed and which common ground. The present question of statutory construction may arise at the trial, or it may not. If it does arise, it is unknown at this stage what its impact may be on the trial. For this reason it is important that this judgment is directed to the pure question of law, and that as little as possible is said about what the allegations are or what the facts may turn out to be, lest there be risk that the jury's consideration of the case is affected. It is also for this reason that there are automatic statutory restrictions in the 1996 Act upon reporting of preparatory hearings and any appeals therefrom. This judgment is public and can be reported in the usual way. But reporting must not go beyond what is in this document together with the formal details permitted by statute: see the section on reporting restrictions in para 31 at the end of this judgment.
The question of law certified by the Court of Appeal (Criminal Division) as a point of law of general public importance was as follows:
“Do property, goods, services or facilities transferred to or provided for the use or benefit of a candidate free of charge or at a discount (as identified in section 90C(1)(a) of the Representation of the People Act 1983 (as amended)) only fall to be declared as election expenses if they have been authorised by the candidate, his election agent or someone authorised by either or both of them?”
Whilst that question might also arise in other contexts connected with elections, in the present case it is raised by one of the realities of modern campaigning. Political parties are often national in organisation. At a general election, a national party may typically field candidates standing as adherents to the party in all or many of the constituencies in the country. At such an election, the legislation imposes separate limits on the expenditure which is permitted to the candidate locally and to the party nationally. Both the constituency candidate and the national party are required to submit returns setting out their expenditure, and demonstrating that it falls within the limits applied to them. But national party activity will typically amount to some support for the constituency candidates standing in its interests. Especially if the constituency is regarded by a party as marginal, the activities of the national party in the constituency may well be extensive. So also they may if the constituency candidate is a leading member of the national party, or for that matter if one of the competing candidates is a prominent member of another party. The question will arise when expenditure undertaken by the national party falls to be accounted for as candidate expenditure, and to be limited by the ceiling applied to constituency candidates, and when it should be returned by the national party and governed by the different limit applied to national parties. An illustration of the question is given by what was described by the judge as “the battlebus issue”. If the national party sends a liveried coach containing activists into key constituencies and they there campaign for the party and/or its candidates, do the expenses fall to be accounted for nationally or locally? That is by no means the only possible example of the problem, nor is it the only one which may be in issue in the proposed trial in the present case. Anyone familiar with modern election campaigns will appreciate that there may be many other situations where work undertaken by national parties potentially overlaps with, or arguably amounts to, the support of one or more local candidates. The certified question which this court is called upon to answer is likewise only one of a number of technical questions of electoral law which may bear upon this potential overlap. This judgment is, however, confined to that certified question.
Since the 19th century, legislation has imposed limits upon a candidate's election expenses. The current statute is the Representation of the People Act 1983 (“RPA 1983”). Some of the rules and concepts in that Act effectively date from Victorian times; others have been added by successive modern adjustments, and amendments have continued since 1983.
Until 2000 there were no rules about national expenditure by political parties. They were introduced by the Political Parties, Elections and Referendums Act 2000 (“PPERA 2000”). That Act also made some amendments to RPA 1983.
The two statutes adopt similar general schemes to control expenses. The principal (but not the only) controls are these.
(i) They list, in Schedules to the Acts, the kinds of expenditure which count as declarable expenses (and some kinds which do not).
(ii) They prescribe who may incur those expenses, and thus fix responsibility on identifiable persons. In the case of constituency expenses, those persons are the candidate, his agent, and others if authorised by either of them. In the case of party expenses, those persons are the party treasurer and deputy treasurer, or others if authorised by either. Similarly, the statutes prohibit payment of expenses by persons other than those specified.
(iii) They impose financial limits on the expenses which may be incurred and paid.
(iv) They require a specified person to make a return of the expenses incurred. In the case of the constituency, that person is the appointed election agent of the candidate. In the case of party expenditure, it is the party treasurer. Moreover, the returns must be accompanied by formal declarations of accuracy. Those must be made by the person making the return and, in the case of the constituency, also by the candidate.
(v) Each of the statutes contains a provision including in the expenses which must be declared, and which must fall within the relevant limit, the cost of things which are supplied either free of charge or at a discount to the candidate or party as the case may be, where that cost would, if paid for by the candidate or party, be election expenses. These are sometimes referred to, although not in all the statutes, as “notional expenditure”.
As will be seen, the certified question in this case asks about the relationship between the second and fifth of these controls.
It is a feature of the legislation that the two categories of expenses, local and national, whether or not they may in practice overlap, are treated as mutually exclusive. When PPERA 2000 introduced controls over party expenditure it labelled it in section 72 “campaign expenditure”, and defined it as:
“(2) ‘Campaign expenditure’, in relation to a registered party, means (subject to subsection (7)) expenses incurred by or on behalf of the party which are expenses falling within Part I of Schedule 8 and so incurred for election purposes.”
The meaning of “election purposes” in this subsection is wide: it is defined thus in subsection (4):
“‘For election purposes’, in relation to a registered party, means for the purpose of or in connection with —
(a) promoting or procuring electoral success for the party at any relevant election, that is to say, the return at any such election of candidates —
(i) standing in the name of the party, or
(ii) included in a list of candidates submitted by the party in connection with the election; or
(b) otherwise enhancing the standing —
(i) of the party, or
(ii) of any such candidates,
with the electorate in connection with future relevant elections (whether imminent or otherwise).”
It follows that if the definition stopped there, all party activity which has the purpose of enhancing the standing of any of its candidates would count as campaign...
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