Election campaign expenses: Battle of the Battlebus.

In the context of criminal litigation, highly nuanced issues like the declaring of election campaign expenses boil down to the usual challenge, namely proving dishonesty rather than error.

The widespread media coverage of this controversial area only highlights just how difficult it can be to establish a case to the criminal standard of proof.

These days it is not particularly difficult to show whether a specific declaration, within any context, is inconsistent with the truth. To take one parallel example, a Housing Benefit claimant may declare they have no capital or assets, but a financial check might then indicate they hold an ISA worth £20,000. In criminal law, the difficulty lies not in establishing that inconsistency, but in showing that particular claimant deliberately withheld their ISA from their application, aware that it ought to have been disclosed. Proving the over-payment of Housing Benefit is easy: proving dishonesty is not.

In this way, proving that acts or omissions incur criminal liability usually requires not only that the fact declared is untrue or incomplete, but also that there is a guilty mind making the conscious choice to either disclose, selectively present, or withhold certain pivotal information.

One can apply the same principle to a tax investigation or a fraudulent trading investigation. Often the suspect will say either they had honestly misunderstood the true position, or had been misled or wrongly advised by a third party. Of course, the more intelligent and aware the suspect is in their own right, the less plausible this argument might be.

Within the political sphere, this difference also explains how the Electoral Commission might find a number of political parties in breach of election expenses rules, in the strict sense. However, a successful criminal prosecution requires a Court to be sure a particular suspect had a guilty mind when incorrectly (or incompletely) declaring those expenses.

In March 2017 the Electoral Commission imposed a fine of £70,000 on the Conservative party for submitting incorrect or incomplete campaign spending declarations. The Prime Minister confirmed the party have since paid that fine, and accepted that errors were made particularly in distinguishing national campaign spending with local campaign spending. At the time, the Chair of the Electoral Commission Sir John Holmes said “Our investigation uncovered numerous failures by a large, well-resourced and experienced party to ensure that accurate records of spending were maintained and that all of the party’s spending was reported correctly.”

Yet, in May 2017 the Crown Prosecution Service determined that no criminal charges would be brought following investigations by 14 police forces into the very same events. According to Nick Vamos, the CPS lawyer with conduct: “Although there is evidence to suggest the returns may have been inaccurate, there is insufficient evidence to prove to the criminal standard that any candidate or agent was dishonest”.

That decision left only one file outstanding - that of the Kent Police investigation into the Thanet South seat which was won by Craig Mackinlay MP in May 2015, beating former UKIP leader Nigel Farage by almost 3,000 votes.

After further consideration by the CPS, Mr Mackinlay and two of his staff Mr. Nathan Gray and Ms Marion Little are now being prosecuted under section 75(5) of the Representation of the People’s Act 1983. The charges allege knowingly making a false statement in election expense return forms. There are two different returns in question during the 2015 general election run-up: one for the period 19 December 2014 – 29 March 2015, and another for the return 30 March 2015 - 7 May 2015 (Mr Gray is implicated only in the latter return). The maximum sentence for these offences is 12 months imprisonment.

All three pleaded ‘not guilty’ to all charges on 4 July 2017 at Westminster Magistrates' Court. The matter has been listed at Southwark Crown Court on 1 August 2017, meaning a trial by jury will determine the matter probably during 2018.

The evidence has not yet been tested by a Court and it remains to be seen whether, unlike in the 14 other police investigations, there is sufficient evidence here for a jury to be sure that any of these three defendants knowingly took part in submitting false returns. Within the familiar context of ‘innocent error versus dishonesty’, this could provide a fascinating insight into the way modern political campaigns are organised, funded and accounted for. The case continues.

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