IN THE FOLKESTONE MAGISTRATES' COURT

IN THE MATTER OF AN APPLICATION UNDER SECTION 176 OF THE

REPRESENTATION OF THE PEOPLE ACT 1983

DECISION

THE APPLICATION
1.

This is an application brought by Kent Police under section 176 of the

Representation of the People Act 1983 (the Act) to extend the time for
prosecution of offences under section 81, 82 and 84 of the Act. There is also
a request for an order that Thanet District Council retain all relevant
documents.

2.

The Act provides that proceedings for offences must be commenced within
one year after the offence was committed but a magistrates court may
extend the time to commence proceedings to not more than 24 months after
the offence was committed.

3.

In order to the extend the time limit I must be satisfieda. That there are exceptional circumstances which justify the granting of
the application, and
b. That there has been no undue delay in the investigation of the offence
to which the application relates.

THE APPLICANTS AND THE INTERESTED PARTIES

4.

Kent Police appear represented by Timothy Straker QC and Sappho Dias.

5.

Craig Mackinlay MP for South Thanet and Nathan Gray his election agent
are represented as interested parties by James Laddie QC and Tamara

Jaber.

Mr Laddie has pointed out that he does not represent the

Conservative Party.
THE PROCEDURE
6.

The Act is silent as to the procedures to be followed when an application is

made. In his written arguments James Laddie QC submits that the hearing
should be in public and Craig Mackinlay MP and Nathan Gray have a right
to make representations as interested parties. Timothy Straker QC submits
that the procedure is, so long as the purposes of the Act are met, in the hands
of the Court and ordinarily the hearing should be ex parte. On this occasion
he takes no point on behalf of Kent Police as to appearance or the matter
being heard in open court.

7.

It is my view that the nature of the application is such as it would normally be

heard ex parte, however, I find that I have a discretion as to how to proceed
today. Kent Police put Craig Mackinlay MP and Nathan Gray on notice of
their application and have had no objection to them making representations.
The subject matter of the hearing is already largely in the public domain and
is a matter of considerable press and public interest. I decided to hear the
application in open court and allow representations from the interested
parties.

THE BACKGROUND
8.

The last General Election was conducted on the 7th May 2015. Craig
Mackinlay was returned as the MP for South Thanet. Nathan Gray was his
election agent.

9.

Election candidates and their agents are required to lodge declarations as to

the expenses incurred by their campaign in the so-called short period
leading up to the election. This has to be done within 35 days of the election.
In this case the relevant return was lodged by the Interested Parties on the
11th June 2015.

10.

Parliamentary candidates and the parties that they represent are subject to
statutory spending limits in terms of their election expenses. It is an offence
under the Act for a candidate and/or his agent to exceed those spending

limits; it is also an offence to submit a false return. An alleged breach of

either obligation may be prosecuted under the Act as an illegal practice. If
convicted, a person may be subject to various sanctions including being
barred from standing for Parliament or holding office for 3 years. Conviction
of a sitting MP for an illegal practice automatically voids the result of his or
her election.

The Act also provides for more serious offences

to be

prosecuted as corrupt practice and there are corresponding sanctions.

11.

On the 20th January 2016 Channel 4 News broke a story to the effect that
there may have been a breach of election expense returns by the
Conservative Party in South Thanet. Specifically, it was alleged that the
Conservative Partys national expenditure returns showed hotel bills which it
was suggested were to do with the local campaign rather than the national
campaign. This was a major story, because if those expenses should have
been declared on the Interested Parties local expenses return rather than
the Conservative Partys national return, the local expenses limit would have
been exceeded and an illegal practice may have been committed.

12.

The Electoral Commission became involved.

As I understand it the

Commission has no direct responsibility for candidates compliance with the

statutory spending limits and/or the accuracy of the candidates returns but it
does have jurisdiction over national party returns. On the 18th February the
Commission announced that it would be commencing an investigation into
the Conservative Partys 2015 expenses return.
13.

On the 29th February 2016, the Daily Mirror ran a story alleging that expenses
connected to the Conservative Partys General election battle bus had been
incorrectly attributed to national party spending when the expenses should
have been attributed to local election expenses. It was alleged that 23
Conservative MPs failed to declare expenses connected with visits from the
battle bus. South Thanet was one of the constituencies visited.

INFORMATION BEFORE THE COURT

14.

In reaching my decision I have considered the followinga. Application by Detective Sergeant 9606 Brian Gilham of the Kent and
Essex Serious Crime Directorate under section 176 of the Act;

b. Supporting Statement of Louise Kate Edwards, Head of Regulatory

Compliance and Casework at the Electoral Commission, dated the
17th May 2016;
c. Written submissions of Timothy Straker QC and Sappho Dias on
behalf of the Police;
d. Written submissions of James Laddie QC and Tamara Jaber on behalf
of the Interest Parties;
e. Supporting documentation submitted on behalf of the Interested
Parties, which includes press extracts and correspondence;
f. The oral representations made at court during the hearing;
15.

I did not hear any oral evidence from witnesses.

THE POLICE APPLICATION

16.

DS Gilham in his written application summarises the background as he sees

it and then continues:
A decision has been made that each police force affected should consider
applying to local magistrates to extend the time limit for prosecuting these
offences by a further 12 months. Whilst we do not have any specific evidence
to date, it is anticipated that the Electoral Commission investigation will
provide that evidence.
I understand that to extend the time limit I need to evidence a) exceptional
circumstances b) no undue delay.
Whilst these allegations have been in the public eye for some time, the
evidence indicating that some expenses incurred may be a local expense as
opposed to a national expense, has only been provided by Channel 4 news
on the 3 May 2016 and further information is being provided that evidence is
still with the Electoral Commission.
As a result of the information presented by the Electoral Commission I have
reasonable grounds to suspect that offences may have been committed
under the Representation of the People Act 1983 in relation to the expense
submissions and declarations for the South Thanet constituency.

In making this application I request that the time limit for prosecution be
extended for a further 12 months, providing an overall time limit of 24 months
from the date of signing the expenses declarations.
I also seek a further order to ensure that the officers at Thanet District Council
do not destroy paperwork, which includes the concerned expenses returns
after the original 12 month expiry.
Thanet District Council has been contacted and has raised no concerns in
the granting of this order and do not wish to make any representations.
17.

Louise Edwards provides a detailed statement on behalf of the Electoral

Commission in support of the application to extend the time limit. She
explains the Commissions functions and the regulation of campaign
spending under the Act, and the relevant offences that the Act creates. She
states that the Commission set standards for well-run elections and its aim
is to ensure integrity and public confidence in the UKs democratic process
by working to support a healthy democracy. She notes that the Commission
has an important role in the regulation of political party finances and has a
number of investigatory and enforcement powers in this regard.

18.

She states that the Commission are investigating offences in connection

witha. Campaign expenditure by or on behalf of the Party and/or its
candidates in three by-elections in Clacton, Newark and Rochester
and Strood in 2014 (which are now out of time for offences under the
1983 Act);
b. Campaign expenditure by or on behalf of the Party and/or its
candidates in the South Thanet constituency during the 2015 general
election (she describes these as the South Thanet matters);
c. Campaign expenditure by or on behalf of the Party and/or its
candidates on the Battlebus campaign activity, including costs
incurred on transport and accommodation, during the 2015 campaign
(she describes these as the Battlebus matters).

19.

She sets out a chronology of the Commissions investigation and comments:

The Commissions investigation will not be completed before the one year
period in section 176(1) of the RPA expires. The Commissions investigation
in respect of potential offences under the PPERA [the Political Parties
Elections and Referendums Act 2000] is ongoing. This is due both to its
complexity and to the fact that the investigation has been delayed and
hindered by the failure of the Party to provide complete and timely disclosure
of relevant material. This has led to the unprecedented step of making an
application to the High Court for a document and information disclosure
order. As a result the Commission has not been in a position to make any
evidence relevant to potential RPA offences available to police forces
sooner.
In line with our enforcement policy we will bring to the attention of the relevant
police force any evidence of potential RPA offences as soon as possible. We
anticipate that the Commissions investigation will continue into the autumn.
20.

Louise Edwards submits that there are exceptional circumstances for the
following reasons:a. The Battlebus campaign with organised transportation of groups of
activists with expenses met by the party is new;
b. The Channel 4 News allegations indicate the potential for offences
committed in a significant number of constituencies on an
unprecedented scale and the Commission has had to liaise with a
large number of police forces;
c. The relationship between the Partys national return and multiple local
candidate returns is fundamental to ascertaining how the Party
attributed its spending across them;
d. There is very significant public interest in the matter. The implications
of the allegations made by Channel 4 News are that individuals and/or
the Conservative and Unionist Party may have committed deliberate
acts intended to circumvent the party and election finance rules as set
out in the RPA and PPERA. That in turn may have led to candidates
spending more than the legal limit (and more than their opponents).

21.

She concludes:These allegations go to the very heart of our democracy. The party and
election spending rules are intended to ensure that financial resources do
not determine the outcome of elections.

Similarly, transparency and

accountability in relation to campaign spending by local candidates and

political parties is essential, in order to ensure confidence in the electoral
process.
The Electoral Commission humbly submits that these circumstances are truly
exceptional; and that there is a very strong public interest in ensuring that the
police are able to investigate these allegations properly, justifying an
extension of the time limit for investigation of offences under section 176(1)
of the RPA.
SUMMARY OF SUBMISSIONS OF THE POLICE
22.

Timothy Straker QC for the Police argues the application should be granted.

23.

He submits there are exceptional circumstances:a. The public interest and the national interest lie in securing an electoral
process with integrity. If the electoral process cannot be policed or
monitored then the process is both tainted and lacking in integrity;
b. Parliament recognised that it was going to be appropriate for an
extension of time for the initiation of a criminal charge. Parliament
plainly wanted there to be an opportunity for the investigations to be
made and for prosecutions, if warranted, to follow;
c. It is an exceptional circumstance when the party seeking to take
advantage of the time limit is the party of government. It would be
foolish to suppose that the party of government does not lend its
support or tacit support to the opposition to a continued effective
investigation of this matter;
d. This is a matter that exceptionally involves a substantial public
concern;
e. The very large number of potential offences is exceptional;

f. He asks rhetorically what could be more exceptional that a candidate,

supported by one national party, defeating a leader of another national
party by the use of national funds for a local campaign;
g. The tension that exists between the national and local is exceptional;
h. The breadth and complexity of the Commissions investigation is
exceptional;
24.

Mr Straker submits it is apparent there has been no undue delay:a. The return by the candidate precedes by a considerable time the
national return;
b. The national matter with the boxes of material only being supplied was
in the hands of the Electoral Commission who were in turn dependent
on the national party, which had supported the candidate, supplying
the material. This material was not provided until the 12 May 2016
c. It is not strictly correct to talk of a statutory division of responsibility;
d. The Act is concerned with the question whether there has been undue
delay in the investigation of the offence and not whether the person
who makes the application has been guilty of undue delay;
e. The investigation of the offence is and was principally a matter of
consideration of the material relating to hotel or battle bus expenses
borne nationally but, as it appears, being local expenses.

The

sequence of events spelt out by Louise Edwards reveals no delay in

investigation.
SUMMARY OF SUBMISSIONS OF THE INTERESTED PARTIES
25.

James Laddie QC argues that the application should not be granted.

26.

He submits the circumstances are not exceptional:

a. The conditions imposed by Parliament to justify an extension of time
have deliberately been set at a very high level there is a need for
certainty about elections and electoral challenges;

b. Exceptional suggests that there must be unusual circumstances

beyond those that would exist in a typical case where election
offences are being investigated;
c. Public interest will never be exceptional, without more, as there will
almost always be a public interest in prosecution and accordingly it
will never be exceptional;
d. DS Gilham fails to provide any exceptional circumstance to justify
grant;
e. DS Gilham cannot rely on recently discovered evidence as all the
evidence in the case is and was publicly available;
f. The police cannot rely on the Electoral Commission investigation as
there is a statutory division of responsibility between the Commission
and the Police. The former is responsible for investigating national
party spending and the latter are responsible for investigating
candidate spending;
g. The Commission only commenced an investigation in this case
because Kent Police declined to do so. The fact that Kent Police may
now have changed its mind is not a basis for pretending that
exceptional circumstances exist.
27.

He submits there has been undue delay:

a. The police have failed to show such diligence and expedition as
would be shown by a competent prosecutor conscious of his duty to
bring the case to trial as quickly as reasonably and fairly possible.
b. The application fails to provide an accurate account of the
investigation. The allegations became public in January and February
2016 and Kent Police decided not to investigate and reported this to
the Commission in mid-February. There could hardly be a clearer
example of undue delay than a conscious decision not to investigate
at all;
c. The allegations in relation to the Battlebus emerged via the Mirror on
the 29th February 2016 and not on the 3rd May;

d. The only investigative step apparently taken by Kent Police in the four
months since the story broke is a letter to Mr Mackinlay on the 14th
March 2016 asking him two questions;
e. Delay is the defining feature of the investigation, if it can be described
as an investigation at all.
DECISION - EXCEPTIONAL CIRCUMSTANCES
28.

I have no hesitation in concluding that there are exceptional circumstances

which justify the granting of the application largely for the reasons given by
Louise Edwards in her witness statement and added to by Mr Straker at
court.

29.

In my judgment the combination of circumstances before me is wholly

exceptional and goes far beyond the usual circumstances that would exist in
a typical case where election offences are being investigated. These
circumstances are:a. The election campaign with the use of the Battlebuses and the
organised transportation of groups of activists, with overnight
accommodation, subsistence and travel expenses met by the Party
rather than the local candidate;
b. The nature and extent of the enquiry with the involvement of the
Electoral Commission and investigations taking place not just in South
Thanet but across the country. As Louise Edwards points out this is
on an unprecedented scale.
c. The fundamental relationship between the Partys national return and
the multiple local candidate returns with the national return being
submitted to the Commission on the 6th November 2015 and the
consequent delay in the start of the investigation.
d. The very significant public interest in the matter being fully
investigated. I cannot agree with Mr Laddie that public interest will

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never be exceptional. Whilst there will almost always be a public

interest in investigation of offences under the Act the weight of the
public interest will depend on the nature and extent of the allegations
being investigated. In this case the allegations are far reaching and
the consequences of a conviction would be of a local and national
significance with the potential for election results being declared void.
DECISION - UNDUE DELAY
30.

I must also be satisfied that there has been no undue delay in the
investigation of the offence to which the application relates. In my judgment
this issue is more finely balanced than whether exceptional circumstances
exist.

Mr Laddie has advanced some compelling arguments.

For the

purposes of this hearing he has accepted that the starting date for
considering undue delay is the date at which the story broke on the 20th
January 2016.
31.

A central question is the extent of the investigation by Kent Police. I am not

satisfied on the information before me, that there has to-date, been any
substantive or meaningful investigation by Kent Police. There was an initial
decision not to investigate that appears to have been reversed as a result of
pressure from the Electoral Commission and concerns in the media. The
Police investigation was opened in March perhaps with the letter to Mr
Mackinlay on the 14th - I have not been given a definitive date. I have also
not been informed of any other actions taken by Kent Police to investigate
the offences themselves.

It seems they have, so far, relied on the

investigation by the Electoral Commission.

32.

Mr Laddie submits that Kent Police can and should have investigated the
allegations and their failure to do so inevitably leads to the conclusion that
there has been undue delay.

33.

I do not accept that the police refusal and then subsequent failure to
investigate necessarily leads to finding of undue delay. I also do not accept
the initial submissions of Mr Laddie that the investigatory roles of the
Commission and the Police must be considered separately and in isolation

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they are not sandboxed. As with any investigation the police can take the
components of the evidence they use from a range of sources, even other
investigatory bodies.
34.

In my judgment the Police can step back, for whatever reason, and allow the
investigation to be progressed by the Commission provided that overall there
is no undue delay in the investigation of the offences to which the application
relates. There is no requirement in the Act that the investigation must be
conducted by the police or, as Mr Straker points out, even prosecuted by
them.

35.

The relationship of the potential offences committed by the Party and the
potential offences committed by the candidate is so closely entwined that
inevitably a considerable body of the evidence will be the same or overlap.

36.

Similarly there is a close relationship between the potential offences both

locally and in other constituencies under investigation such that, in my
judgment, they cannot be considered or investigated in isolation (the
Battlebus for example), this makes the overall investigation more complex
and time consuming.

37.

Having considered the chronology of events provided by Louise Edwards it

is clear that the Commission has taken a lead role in the investigation since
soon after the allegations came to light with the Commission commencing its
investigation in February 2016 and progressing it throughout March, April
and May.

This investigation relates not only to the Conservative Party

campaign expenditure but also to the campaign expenditure of its candidates

(see paragraph 36 of her statement) and so is directly related to the offences
which are the subject of this application.
38.

She refers both to the complexity of the overall investigation and the delay
caused by the failure of the Party to provide complete and timely disclosure
of relevant material such that application had to be made to the High Court.
The fact that the Commission had to seek disclosure of information in the
High Court indicates that it does not believe that all relevant evidence is in
the public domain and as readily available as Mr Laddie asserts. Louise
Edwards anticipates that the Commission investigation will continue into the

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autumn. I find that it is unlikely that any decision could be made on whether
to prosecute individual candidates or others until the outcome of that
investigation is known.
39.

Since these allegations came to light a little over four months has elapsed.
The reality is that that is not a long time for an investigation of this type.

40.

Taking all these factors into account I am satisfied that there has been no
undue delay in the investigation of the offences to which this application
relates.

DISCRETION
41.

In his written submissions Mr Laddie argues that I should exercise a

discretion not to make the order sought principally on the grounds of material
non-disclosure. I find that it is in the interests of justice that the investigation
is pursued to its conclusion whether or not there has been any material nondisclosure by the Police.

42.

Taking into account the information provided in the statement of Louise

Edwards about the expected length of the investigation I find that it is
necessary for an order to extend the time to commence proceedings for the
specified offences to not more than 24 months after the offence was
committed.

ORDERS
43.

I make both the orders sought by Kent Police.

District Judge J. S. Barron

1st June 2016

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