UK Offence Report

Other voting offences

article 27(7) of The Scottish Parliament (Elections etc.) Order 2002

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 For the purposes of this article

a person who has applied for

a ballot paper for the purpose of voting in person, or who has marked, whether validly or not, and returned

a ballot paper issued for the purpose of voting by post, shall be deemed to have voted, but for the purpose of determining whether an application for

a ballot paper constitutes an offence under paragraph (4) above,

a previous application made in circumstances which entitle the applicant only to mark

a tendered ballot paper shall, if he does not exercise that right, be disregarded.

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 This is the text as originally made; later amendments are not shown here.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
No statutory defence — prosecution proves everything

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 states no defence, so the prosecution bears the burden on every element of the offence.

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

What would breach article 27(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 2002.

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
6 November 2002
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 sets out afresh the provisions as to the conduct of elections for, and the return of members to, the Scottish Parliament, established by the Scotland Act 1998. The Order consolidates, with amendments, the provisions of the Scottish Parliament (Elections etc.) Order 1999 (“the 1999 Order”) and the amendments made to that Order by the Scottish Parliament (Elections etc.) (Amendment) Order 2001 and the Scottish Parliament (Elections etc.) (Amendment) (No. 2) and (No. 3) Orders 2001. All of these Orders are revoked by this Order, apart from some minor and consequential, technical amendments made by Schedule 8 to the 1999 Order to primary and subordinate legislation. The main changes to the 1999 Order reflect the introduction by the Representation of the People Act 2000 of a new system of “rolling registration”. Under this system the register of local government electors continues in force indefinitely. Eligibility to vote at elections for membership of the Scottish Parliament depends on registration in the register of local government electors. The changes from the 1999 Order concern, principally, absent voting, voting by proxy, and the issue and receipt of postal ballot papers. Other changes to the 1999 Order are required as a consequence of the establishment of the electoral commission and the new provisions about the registration of political parties and election campaigns and election expenses made by the Political Parties, Elections and Referendums Act 2000. Other, more minor, changes are required as a result of the Postal Services Act 2000, the Representation of the People (Scotland) Regulations 2001 and the Representation of the People (Scotland) (Amendment) Regulations 2002. The Electoral Commission has been consulted on the draft of this Order, as required by section 7 of the Political Parties, Elections and Referendums Act 2000. Part I of the Order (articles 1, 2 and 3) contains general provisions concerning the commencement citation and interpretation of the Order, and revocation of earlier Orders. The Order will not apply to any elections where the last date for the publication of the notice of that election precedes the date when the Order comes into force. Part II of the Order (articles 4 to 30) makes provision about the franchise for the Scottish Parliament and the exercise of that franchise. Part III of the Order (articles 31 to 80) deals with election campaigns and election expenses at Scottish Parliamentary elections. Part IV of the Order (article 81) along with Schedule 6, makes provision for legal proceedings. Part V of the Order (articles 82 to 92) makes miscellaneous and supplementary provision. In particular article 85 provides that the minimum period of dissolution of the Scottish Parliament under section 2(3) of the Scotland Act 1998, will be 21 days, computed in accordance with rule 2 of the Rules set out in Schedule 2 to the Order. This reduces the “minimum period” provided in the 1999 Order by 4 days. Schedule 1 makes fresh provision about the free supply and the sale of the register of local government electors to MSPs, their election agents and to candidates standing for election to the Scottish Parliament and also the election agents of registered political parties in respect of list MSP candidates. The provision made in respect of MSPs and candidates for election to the Scottish Parliament is similar to that made in respect of MPs and councillors by the Representation of the People (Scotland) (Amendment) Regulations 2002 and elections to the UK Parliament and Scottish local councils. Schedule 2 contains the Scottish Parliamentary Election Rules. They are substantially in the same form as the earlier Rules set out in Schedule 2 to the 1999 Order. Schedule 3 contains provision about absent voting. This incorporates changes comparable to those made by the Representation of the People Act 2000 for elections to the UK Parliament. Schedule 4 makes provision about the issue and receipt of postal ballot papers. This contains provision comparable to that made by the Representation of the People Act 2000 in respect of elections to the UK Parliament. Schedule 5 makes provision for the combination of polls. In particular it deals with the combination of the poll at a further Scottish parliamentary election with the poll at a Scottish local government election. As a result of the Scottish Local Government (Elections) Act 2002, the ordinary election of councillors is to be synchronised with the ordinary general election for membership of the Scottish Parliament. Part II of Schedule 5 modifies the Scottish Parliamentary Election Rules set out in Schedule 2 to this Order, and Part III modifies the Scottish Local Government Elections Rules set out in Schedule 2 to the Scottish Local Government Elections Rules 2002. Schedule 6 applies, with modifications, provisions of the Representation of the People Act 1983 concerning legal proceedings, for the purposes of Scottish Parliamentary Elections. Schedule 7 provides for the use of rooms in school premises and meeting rooms for election meetings. The Appendix sets out 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 0.75.

Basis
the provision says the conduct “constitutes an offence”
Confidence
0.75 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