The relevant legislation relating to Electoral offences can be found in:
- the Representation of the People Act 1983 (the Act);
- the Representation of the People Act 1985;
- the Political Parties, Elections and Referendums Act 2000;
- the Electoral Administration Act 2006.
Subordinate legislation is contained in the Representation of the People Regulations 1983 and 1986. European Elections are covered by relevant sections of the Act by virtue of Regulation 5(1) and Schedule 1 of the European Parliamentary Regulations 1986.
The purpose of the Electoral Administration Act 2006 ("EAA") is to improve the security around how people vote. The concern is that registration may not simply be used as a prelude for electoral fraud but one of the means whereby a new identity is created for the purpose of banking fraud.
The EAA creates two new offences which came into force on 11 September 2006.
Section 15 EAA inserts section 13D to the Representation of the People Act 1983 ("RPA") and creates an offence of supplying false information to the Electoral Registration Officer, in connection with the registration of electors. The elements of the offence are: the provision of any false information to an Electoral Registration Officer for any purpose in connection with the registration of electors. This offence is summary only and carries a maximum sentence of six months imprisonment. The pre-existing offence contrary to regulation 23 of the Representation of the People (England and Wales) Regulations 2001 only affected people who responded to the specific request for details of an elector, for example, name and date of birth, sent out to the head of each household annually; it did not affect people who applied of their own volition outside that specific request period.
Section 40 EAA inserts section 62A, this makes it a specific offence to make a fraudulent application for a postal or proxy vote.
The elements of the offence are:
- the engagement by a person in an act at a parliamentary or local election;
- with the intention of depriving another of an opportunity to vote or making for himself or another a gain of a vote to which he or the other is not otherwise entitled.
An example of an act, specified in subsection 2 of section 62A, is applying for a postal or proxy vote. This offence is triable either way and carries a maximum sentence of two years imprisonment.
In addition to the two offences created, section 70 EAA inserts section 176(2A) of the RPA providing that an application may be made to a magistrates' court for an extension of the current 12 month time limit for bringing a prosecution by up to a year. The court may grant an extension, if it is satisfied that there are exceptional circumstances' justifying the grant of the application, and that there has been no undue delay in the investigation of the offence.
The principal purpose of the relevant legislation (Representation of the People Acts 1983 and 1985, Elections and Referendums Act 2000, and the Electoral Administration Act 2006), is to maintain the integrity and probity of the electoral process. Proceedings for major infringements will normally be in the public interest.
Proceedings for other infringements may not be in the public interest in situations where:
- the offence is of a "technical" nature which does not infringe the spirit of the legislation;,
- the offence was committed as a result of a genuine mistake or misunderstanding;
- the offence could not have influenced the result of the election process; or
- the offender has remedied any breach of the law.
If the offence falls to be considered under one or more of the criteria above , the matter may be dealt by way of a caution administered by the police or, where appropriate, the provisions of advice as to an individual's future conduct.
In practice, it may be difficult to prove that the result of an election has been affected by an infringement. However, the fact that a breach has or may have affected the result of an election is a factor to be taken into consideration in deciding whether proceedings should be instigated. Whilst every case will of course turn on its own facts, where there is clear evidence that a breach has affected the result or is likely to have done so, the public interest is more likely to require a prosecution - even if the infringement itself is relatively minor.
There are three categories of electoral offence under this Act.
- Corrupt practices;
- Illegal Practices;
- Miscellaneous Offences.
Corrupt practices are triable either way, illegal practices and miscellaneous offences are triable only summarily. Proceedings for any category of offence under the Act must be commenced within one year after the offence was committed.
Allegations of electoral offences often originate from returning officers or rival candidates and their agents. When information is given to the Director that an election offence has occurred, it is his or her duty under section 181 of the Act to make such inquiries and institute such proceedings as the circumstances appear to require.
If the primary information indicates that an election offence may have been committed police enquiries will normally be requested. Those enquiries will normally be confined to the taking of statements from the complainant and the returning officer and an interview with the alleged offender.
All cases involving election offences must be referred to the Special Crime and Counter-Terrorism Division (SCCTD). This should be done before a decision to prosecute is taken, and should contain the full facts relating to the case. The Head of SCCTD or other designated persons will then decide whether to retain conduct of the prosecution.