R v Mackinlay & Ors [2018] UKSC 42

The Supreme Court considered whether free or discounted property, goods, services or facilities provided for a candidate's benefit only count as election expenses if authorised by the candidate or agent. The Court held authorisation is not required under section 90C of the Representation of the People Act 1983.

Facts

The respondents, including Craig Mackinlay, Nathan Gray and Marion Little, faced criminal charges relating to alleged false declarations of election expenses, or aiding and abetting such offences, in connection with a parliamentary election campaign. The case raised questions about how expenditure undertaken by a national political party in support of a local constituency candidate should be accounted for under electoral law. A particular illustration discussed was the so-called ‘battlebus issue’, concerning national party activists campaigning in key constituencies.

The point of statutory construction was raised as a preliminary issue at a preparatory hearing under Part III of the Criminal Procedure and Investigations Act 1996, before any jury had been sworn. The Court of Appeal had certified a point of law of general public importance and had favoured the defendants’ construction. The Director of Public Prosecutions appealed to the Supreme Court.

Issues

The certified question was:

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?

In essence, the Court had to determine whether the authorisation requirement found in section 90ZA(4) of the Representation of the People Act 1983 applied to the notional expenditure provision in section 90C.

Arguments

The Crown

The Crown submitted that campaigning activity by the central national party may be free or discounted services within section 90C, and so accountable for by the candidate, whenever three conditions were met: (i) the services were provided for the use or benefit of the candidate; (ii) they were made use of by or on behalf of the candidate; and (iii) the circumstances were such that, had expenses been actually incurred by or on behalf of the candidate, they would be election expenses. The Crown also relied on consequentialist arguments concerning the avoidance of evasion of expenditure controls and maintaining equivalence between party-supported and independent candidates.

The Defendants

The defendants contended that national party campaigning could not amount to election expenses for which the candidate had to account unless authorised by the candidate, agent, or someone authorised by either of them. Authorisation was, they argued, a central feature throughout the legislation, reflected in section 90ZA(4) and analogous provisions across the statutory scheme. They also argued that without an authorisation requirement, the task of an election agent would become impossible where national party campaigning incidentally benefitted local candidates.

Judgment

The Supreme Court, in a judgment delivered by Lord Hughes (with whom Lady Hale, Lord Mance, Lord Hodge and Lord Lloyd-Jones agreed), allowed the appeal and answered the certified question ‘No’.

The Court held that section 90C poses a threefold test in subsections (1)(a) and (b): (1) whether services were provided for the use or benefit of the candidate either free of charge or at a discount of more than 10%; (2) whether they were made use of by or on behalf of the candidate; and (3) whether, if expenses had actually been paid by or on behalf of the candidate, those expenses would be election expenses. If those conditions are satisfied, the deeming provision in section 90C(2) operates so that the notional expenditure is treated as incurred by the candidate.

The Court found there was no room within that statutory sequence for an additional requirement of authorisation by the candidate or agent. The test under section 90C is one of use, not of authorisation, and is plainly different from the test in section 90ZA(4) which governs when actual expenses are regarded as incurred by or on behalf of the candidate. This reading was confirmed by the express provision in section 90ZA(1) that the definition of election expenses there is subject to section 90C: section 90C provides an additional category of notional expenditure rather than incorporating the authorisation requirement of section 90ZA(4).

Lord Hughes drew attention to the deliberate distinction in language between section 90C(1)(a)(ii) (‘for the use or benefit’) and section 90C(1)(b) (‘made use of by or on behalf of’). Mere benefit is not sufficient; there must be positive use by the candidate or by someone acting on the candidate’s behalf, and ordinarily this would involve conscious activity. Use by a campaigner would not be regarded as on behalf of a candidate who had positively refused the benefit.

The Court rejected the consequentialist arguments as having little substance, observing that deliberate evasion would be deterred on either construction. Although the practical task of separating national from local expenditure may be difficult, that difficulty arises from the statutory scheme of mutual exclusivity rather than from section 90C itself. The Court also noted that the more serious offence of knowingly making a false declaration requires a dishonest state of mind, citing R v Jones and Whicher [1999] 2 Cr App R 253, and that section 86 provides a specific power to relieve from sanctions where the strict liability offence has been committed despite good faith.

Implications

The decision clarifies that, under section 90C of the Representation of the People Act 1983, notional expenditure in the form of property, goods, services or facilities provided to a candidate free or at a discount must be declared and counted towards the statutory limit if used by or on behalf of the candidate, regardless of whether the candidate or agent authorised the provision. Authorisation is not a precondition for liability to declare such expenses.

The Court emphasised, however, that the requirement of ‘use by or on behalf of the candidate’ has substantive content: it requires positive, ordinarily conscious, activity by the candidate or someone acting on his behalf, and a candidate who refuses to accept the benefit will not be treated as making use of it. This significantly mitigates the breadth of the provision and provides some protection to candidates and agents who do not embrace national party activity in their constituency.

The decision is significant for political parties, candidates and election agents, particularly given the practical reality that national party activity may overlap with local campaigning. It highlights the difficulty agents face in determining what must be included in returns where local and national expenditure interact, but also confirms that the serious offence of knowingly making a false declaration requires dishonesty, and that statutory relief is available under section 86 for good faith breaches.

The judgment is confined to the certified question of statutory construction and does not determine any factual issue in the prosecution. The Court was careful to note that other technical questions of electoral law may also bear on the overlap between national and local expenditure but were not before it.

Verdict: Appeal allowed. The certified question was answered ‘No’: property, goods, services or facilities provided free or at a discount under section 90C of the Representation of the People Act 1983 do not require authorisation by the candidate or agent in order to fall to be declared as election expenses; the test is the threefold one set out in section 90C(1)(a) and (b).

Source: R v Mackinlay & Ors [2018] UKSC 42