The Representation of the People Act 1983 (“RPA”) is the primary piece of legislation creating the criminal offences relating to elections which CPS has to consider. Although couched in terms of Parliamentary or local government elections, subsidiary and secondary legislation applies it to a variety of “elections” including Mayoral elections, Welsh Assembly elections, and referendums, for example.
The starting point is section 181 of the Representation of the People Act 1983. Section 181(1) imposes a duty on the Director to “make such inquiries and institute such prosecutions as the circumstances of the case appear to him to require where information is given to him that any offence under the Act has been committed”. There is thus discretion whether to request police enquiries or not – for example, if a candidate in a local election has failed to submit a return of election expenses as required by Section 81 of the Act, and the candidate has not been elected, it may not be necessary to have police enquiries. It enables us at an early stage to identify whether there has potentially been a breach of the law and in certain cases simply advise that there has not. There is no power for the CPS itself to investigate or to direct police officers to do so. Although the Act refers to the Directors duty, by virtue of section 1(7) of the Prosecution of Offenders Act 1985 any Crown Prosecutor can exercise the functions of the DPP.
All allegations of breaches of the Representation of the People Act must be referred to the CPS Special Crime Division (SCD). Should you be approached by the police seeking to investigate election offences, they should be directed to the Authorised Professional Practice (“APP”). This can be accessed from the College of Policing web-site or via the Electoral Commission website. It provides useful guidance on offences and practice. It was designed and written as a practical guide to officers investigating election offences.
The APP makes it clear that the police will not deal with anonymous complaints or where the “complainant” will not provide a Section 9 Statement.
The CPS is responsible for all charging decisions, including cautions. Any type of positive disposal must go to the CPS via the police force’s election Single Point Of Contact (“SPOC”).
Practically, it is always worthwhile when advising the police, particularly when they have received a complaint from a political opponent, to suggest that they get the complainant to identify which of the provisions of the RPA they claim have been breached.
Section 176 lays down the time-limit for the commencement of proceedings for any offence under any provision contained in or made under RPA 1983. That applies to summary only offences which would normally, by virtue of the Magistrates’ Courts Act 1980, be subject to a 6 month time-limit.
Proceedings against a person in respect of any offence to which Section 176 applies must be commenced within one year after the offence was committed. For the purpose of Section 176, the laying of information is deemed to be the commencement of the proceedings. There are circumstances in which the time limit can be extended but an application to a Magistrates’ Court do so must be made within the 12 month time limit.
Certain documents, ballot papers counterfoils, marked lists of electors etc (by which the way an individual voted can be ascertained) which must be sealed by the Returning Officer after the election, cannot not be obtained by the police using their normal powers. Should the need arise SCD should be asked for advice.
The Act separates offences under the categories of corrupt and illegal practices (some of the latter may only be illegal practices if committed by the candidate or his election agent). There are also other offences, in the RPA 1983, which do not fall into either category and which specify their own penalties. These include offences such as tampering with nomination papers, ballot papers etc. contrary to Section 65 of the RPA.
By virtue of Section 168(1)(ii) of the Act the maximum penalty on indictment for a corrupt practice is a year's imprisonment or fine or both. The exceptions are a conviction for Section 60 (personation) and Section 62A (fraudulent application for an absent vote) which carry 2 years.
An illegal practice is punishable, by virtue of Section 169 of the Act, on summary conviction with a level 5 fine.
By virtue of Section 175(1), a person guilty of an offence of illegal payment or employment is liable to a level 5 fine. This means that they are triable only in the Magistrates’ Court. A candidate or election agent personally guilty of such an offence is guilty of an illegal practice.
Under Section 173 certain consequences follow upon a conviction for a corrupt or illegal practice, namely a person convicted of a corrupt or illegal practice shall be incapable for the relevant period of being elected to the House of Commons or holding any elective office. Additionally, a person convicted of a corrupt practice under Section 60 or an illegal practice under Section 61 is incapable of being registered as an elector for the relevant period. The relevant periods for Sections 60 and 61 are 5 and 3 years respectively.
The principal purpose of the relevant legislation is to maintain not only the integrity and probity of the electoral process but public confidence in it. 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.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.
- 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, given the section 181 discretion, the provisions of advice as to an individual’s future conduct.