UK Offence Report

Prohibition of expenses not authorised by election agent etc.: registered parties

article 40(7) of The Scottish Parliament (Elections etc.) Order 1999

This offence was read from the text as made, and no revised version was available, so a later revocation could not be ruled out. Check the current text at legislation.gov.uk.

What the provision says

7 Where any act or omission of an association or body of persons, corporate or unincorporate, is an offence declared to be

a corrupt or illegal practice by this article, any person who at the time of the act or omission was

a director, general manager, secretary or other similar officer of the association or body, or was purporting to act in any such capacity, shall be deemed to be guilty of that offence, unless he proves–

a that the act or omission took place without his consent or connivance; and

b that he exercised all such diligence to prevent the commission of the offence as he ought to have exercised having regard to the nature of his functions in that capacity and to all the other circumstances.

Text as made, from legislation.gov.uk. © Crown copyright, reused under the Open Government Licence v3.0. This is the text as originally made; later amendments are not shown here.

Who it binds, and what has to be proved

Binds
a person
Conduct
breaching the provision
Fault element
Strict liability
Burden of proof
Legal burden on the defendant

The prosecution must prove that the conduct happened. This is a strict liability offence as drafted: the provision uses no word of intention, knowledge, recklessness or negligence, so there is no need to show that a person meant to do it, knew about it, or was careless.

Intention, knowledge and carelessness are irrelevant to guilt. They may still matter a great deal to sentence.

The provision gives a defence the defendant must prove, on the balance of probabilities. A legal burden of that kind can be read down to a merely evidential one under section 3 of the Human Rights Act 1998 where placing it on the defendant would be disproportionate (R v Lambert [2001] UKHL 37; Sheldrake v DPP [2004] UKHL 43).

Classifier’s reasoning: no word of intention, knowledge, recklessness or negligence in the offence or its provision.

The defence, as drafted

uch capacity, shall be deemed to be guilty of that offence, unless he proves– a that the act or omission took place without his consent or connivance; and b that he exercised all such diligence to prevent the commission of the offence as he ought to have exercised having regard to the nature of his functions in that capacity and to al

What would breach article 40(7)?

These are illustrations, not law. They are generated from the provision’s own words to show the shape of the offence. Whether any particular conduct is caught depends on the full text, on any amendment since, and on the facts.

  1. Doing what the provision prohibits, or failing to do what it requires under the Scottish Parliament (Elections etc.) Order 1999.

Penalty

Mode of trial
Either way — magistrates’ court or Crown Court
Maximum fine
Unlimited
Standard scale
Level 5
Maximum prison (summary)
3 months
Maximum prison (on indictment)
2 years

level 5 is unlimited in England and Wales for offences committed on or after 12 March 2015 (LASPO 2012 s.85, S.I. 2015/664).

Sentencing

Offences of this kind are usually sentenced under the guidelines below. This is a mapping by subject, not a finding about this provision, and the links go to a search of the Sentencing Council’s own site.

Prosecution figures

No published per-offence figure was found for this provision, and it could not be matched to a Ministry of Justice offence code. Offences created by statutory instrument very largely do not have one. Absence of a figure is not evidence that the offence is unused.

Status and lifecycle

Current status
Status not determined
Made
10 March 1999
In force from
Not determined
Extent
Not stated

How this was established: read from the text as made; no revised version available, so later revocation could not be ruled out.

What the instrument is for

(This note is not part of the Order) — the explanatory note published with the instrument, © Crown copyright.

This Order makes provision as to the conduct of elections and return of members to the Scottish Parliament (“the Parliament”) which was established by the Scotland Act 1998. Part I of the Order contains general provisions concerning the commencement, citation and interpretation of the Order. Part II of the Order makes provision about the franchise for the Parliament and its exercise. Part III of the Order makes provision concerning election campaigns at Scottish parliamentary elections. Part IV of the Order (with Schedule 6) makes provision in connection with legal proceedings. Part V of the Order makes miscellaneous and supplemental provision, for example, in relation to the filling of certain vacancies. Schedule 1 makes provision in respect of electors lists and registers. Schedule 2 contains the Scottish Parliamentary Election Rules. Schedule 3 makes provision concerning absent voting. Schedule 4 makes provision about the issue and receipt of postal ballot papers. Schedule 5 makes provision concerning the combination of polls. Schedule 6 applies certain provisions of the Representation of the People Act 1983 with modifications, concerning with legal proceedings. Schedule 7 makes provision in connection with the use of rooms in school premises and meeting rooms for election meetings. Schedule 8 makes modifications of certain enactments which are consequential on the provision of the Order. The Appendix sets out certain forms for use at Scottish parliamentary elections.

Read the full note and every offence in this instrument

What Parliament said

Mentions of this instrument in Hansard. Parliamentary material is reused under the Open Parliament Licence v3.0.

Other offences in the same instrument

How this was identified as an offence

Everything above rests on the judgement that this provision creates a criminal offence, rather than mentioning one. That judgement is made by rule, from the words of the provision, and this is the rule that made it — with a confidence of 0.62.

Basis
the provision says an offence is committed “if” something happens
Confidence
0.62 of 1.00

A provision that states a penalty for an offence created elsewhere can read very like one that creates an offence, and the rules can mistake the one for the other. If the text quoted above sets a penalty for something made an offence by another provision, treat the classification on this page with that in mind, and read the instrument.

Check the source