As the SKWAWKBOX covered this morning, the CPS (Crown Prosecution Service) has decided not to prosecute some 28 Tory MPs, candidates and their election agents over alleged breaches of electoral law on local campaign spending. A spokesperson for the CPS apparently told the BBC that, for charges to be brought, it had to be proven beyond reasonable doubt that those accused knew they were signing false declarations – and that because they were supposedly told that the expenses were national expenses, this was impossible.
This is deeply problematic for at least two reasons. Firstly, it’s not the job of the CPS to decide ‘beyond a reasonable doubt’. The CPS’ ‘Code for Crown Prosecutors‘ does not give ‘beyond reasonable doubt’ as a basis for the decision to prosecute. It gives ‘more likely than not’:
‘Beyond reasonable doubt’ is for a jury to decide, not the CPS. The CPS has to consider whether a jury is ‘more likely than not’ – in other words, a 50.000001% chance is enough to proceed.
In that case, the key question becomes what were the MPs/candidates/agents accused of? Were they accused of a crime where you have to know you’re committing it, or is ignorance a defence?
Here’s what the Electoral Commission (EC) notes on electoral expenses say are the standards for an offence of breaching spending limits:
The test for criminality is that those accused knew – or ought reasonably to have known the limit would be exceeded. 2.2 mentions ‘knowingly’, but it’s only half of the legal requirement.
What do the EC rules about allocation of expenditure say? Ought candidates and their agents ‘reasonably to have known’? Here’s the wording candidates/agents are given by the EC before an election:
It’s made clear that things like transport costs, letters, leaflets, staff costs, accommodate, phone costs, food – all of which were involved in the battle-bus campaigns according to interviews with Tories by a Tory publication – count toward the spending return.
EC notes are also provided that show how expenses must be apportioned if any part of them relates to a local campaign:
Can any candidate reasonably not know?
What’s more, as the SKWAWKBOX covered in March, legal expert David Allen Green wrote a 2016 piece for the Financial Times about the electoral expense scandal – and pointed out that other legislation also applied to the cases – legislation in which intent was irrelevant:
He went on:
The central issue in the current police investigations is whether the expenses to do with the “battle buses” which visited a number of marginal constituencies, and hotel expenses for various activists and campaign workers who appear to have worked in marginal constituencies, are a local expense which should have been returned. If so, then it would appear the strict spending limits in a number of constituencies were breached, and a criminal offence had been committed.
In other words, while seriousness and dishonesty are relevant to deciding which type of offence has been committed, the mere fact of a breach of the limits is enough to say there has been one.
In 1999 an MP – a Labour MP – was prosecuted for breaching her expense limits. Fiona Jones, MP for Newark, was put on trial and convicted of one of the charges. She was sentenced, barred from the House of Commons and had the Labour whip withdrawn.
The conviction was overturned on appeal, but the legal process was allowed to run its course and the case was put before a jury to decide – unlike in the case of the 28 Tories.
Jeremy Corbyn today expressed ‘surprise’ at the decision. Given history and the details of the relevant rules and laws, there will be many people today suspecting that this is an Establishment whitewash.
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