News broke across most of the mainstream media today of the questioning by police ‘under caution’ of Tory MP Craig McKinlay in relation to electoral expense fraud – and that numerous Tory MPs have been warned by police to expect news of possible charges.
The BBC’s Newsnight programme – ironically just after News at Ten had completely ignored the issue – covered the events and quoted Tory Cabinet Ministers:
What I’m hearing from within the Cabinet is a confidence that there will not be successful criminal prosecutions. What I’m told is for that to happen, you’d have to prove intent, intent to deceive. And this source told me that… it’d be very difficult to say that an MP intended to deceive.
If your first instinct on hearing that ‘confidence’ was, “Well, they would say that“, join the club. If your second was ‘ignorance is no defence‘, have a gold membership – it’s true that, in most cases, not knowing the law does not exonerate you if you break it.
But what about this specific case of election expenses – are the Tories blowing smoke, are they falsely confident or do they have a point?
Let’s see. The first and best-known area of law that applies is the Representation of the People Act 1983 (RPA). The Electoral Commission published a case study about Zac Goldsmith’s election expenses, in which they outline the two key areas of the RPA and how they apply:
So, the second point in the RPA could possibly be escaped by claiming ignorance and lack of intent. But under the first, a candidate or their agent does not need intent – all that needs to be shown is that they ‘ought reasonably to have known‘.
Here is an example of the information that the Electoral Commission provides to every election candidate at the start of the campaign, with some commentary:
In the light of this information being provided to every candidate, could anyone argue that there is the slightest doubt that every Tory candidate implicated in this huge scandal ‘ought reasonably to have known‘ – they and their electoral agent and Tory HQ organisers.
But that’s not the end of their problems. Last year, legal expert David Allen Green wrote a blog for the Financial Times about the electoral expenses scandal. He had this to say:
Hard limits apply to legal electoral expenditure and breaking those limits is to break the law – intent is not a factor.
Imagine you get nicked for speeding and try to get out of it by claiming you had no intent to speed – it doesn’t matter, the fact of breaking the limit is what matters.
Under the statute referred to by Mr Green, the only relevant question is the factual one of whether the expenses incurred were local – and, if they were, whether the hard limits were broken. Clearly, since they have interviewed Craig McKinlay under caution and have put other MPs/agents on notice to await news of charges, police consider those facts to be established.
So, on two counts – the RPA’s condition ‘ought reasonably to have known’ and on Mr Green’s second statute that simply requires fact – the Tories’ ‘confidence’ is, in fact, nothing but wishful thinking.
Let’s make sure nobody is fooled by their false confidence and propaganda – and that each and every culprit faces the consequences of their hubris and actions.