05 May 2015
General Election 2015: Dealing with Improper Conduct
Head of Business Crime and Regulation at Slater and Gordon Lawyers, examines the way in which the authorities can tackle any dishonest practices found in the run up to the General Election.
Lord Acton famously said; “Power tends to corrupt and absolute power corrupts absolutely.”
As we approach one of the most tightly fought elections in modern times and the prospect of a hung parliament looms large the pressure to get across the winning line in first position may never have been so great.
The legal tools to counter the risk of improper electoral practices are found in the Representation of the People Act 1983 (“the Act”).
Under the Act, the Director of Public Prosecutions, and in Scotland, the Lord Advocate, have a duty to consider making inquiries and if necessary institute prosecutions where they have been provided with information that an electoral offence has been committed. Interestingly any such case will be referred to the Special Crime and Counter-Terrorism Division of the CPS.
The CPS guidance on prosecutions for infringing electoral law states that the main purpose of the Act is to “maintain the integrity and probity of the electoral process”. However, it then continues that prosecuting major infringements will be in the public interest, perhaps implying that minor electoral offences may not be.
The guidance states that an offence may not be in the public interest if it has since been remedied, could not have influenced the result of the election process, was committed by mistake or was of a technical nature not infringing the ‘spirit’ of electoral legislation. Such breaches may be dealt with by a caution or even the provision of advice.
On the other side of the equation, infringements of electoral law that might affect the result of an election will increase the ‘public interest’ factor and so lean in favour of prosecution even where the breach is fairly minor.
Electoral offences have a one year time limit between commission of the offence and commencement of proceedings, although this may be extended by a further year with the permission of a Magistrates’ Court in England and Wales, but not Scotland.
What are the principal offences prescribed by the Act?
The Act makes the giving of money as an inducement to vote or refrain from voting a criminal offence. ‘Bribery’ also covers a gift, loan or office, place or employment for himself or any other person.
If a payment is made prior to an election, bribery is assumed to have been committed, whereas if it was made after the election as a result of a person having voted or not voted, the payment must be made ‘corruptly’, in pursuance of a previous understanding, for the offence to be made out.
It is also an offence to either before, during or after an election directly or indirectly giving or providing any food, drink, entertainment or provision to corruptly influence any voter to vote or refrain from voting. The offence equally applies to someone corruptly partaking of the food, drink or entertainment. Treating requires a corrupt intent and does not apply to ordinary hospitality.
An offence will also be committed if someone directly or indirectly make use of or threaten to make use of force, violence or restraint, or inflict or threaten to inflict injury, damage or harm in order to induce or compel a person to vote or refrain from voting. A person may also be guilty of undue influence if they impede or prevent any voter from freely exercising their right to vote even where the attempt is unsuccessful.
Punishment of Electoral Offences
Under the Act, offences which are listed as ‘corrupt practices’ – as the majority of the above are – are punishable by up to two years imprisonment, a fine or both, if tried in the Crown Court. If tried summarily, such offences are punishable by six months’ imprisonment, a fine not exceeding the statutory maximum, or both.
Further to the Act, the election of any person who has been found, either personally or by his agents, guilty of a corrupt or illegal practice, will be void.
The Act states that anyone found personally guilty of a corrupt practice is prohibited from holding any elected office (and for personation and other voting offences, also from voting in any election) for a period of five years.
As already noted the CPS is unlikely to press charges over a genuine mistake in relation to electoral offences and is likely to only seek a prosecution where the offence may have affected the result of an election.
Election officials, campaigners and even voters should be aware of the law and seek further advice from experts if they are uncertain about relevant electoral behaviour.
Those who wilfully try to break the electoral rules in the 2015 push for power should know that the criminal law is there to deal with them.
At Slater and Gordon, we have over 30 years’ experience in the field of business crime and are independently recognised as market leaders.
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