UK Offence Report

Constituency and individual candidates: prohibition of expenses not authorised by election agent etc

article 44(7) of The National Assembly for Wales (Representation of the People) Order 2003

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 This is the text as originally made; later amendments are not shown here.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 44(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 National Assembly for Wales (Representation of the People) Order 2003.

Penalty

Mode of trial
Either way — magistrates’ court or Crown Court
Maximum fine
Unlimited
Standard scale
Level 5
Maximum prison (summary)
6 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
28 February 2003
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 for the conduct of elections and return of members to the National Assembly for Wales (“the Assembly”) and other related matters. It replaces the National Assembly for Wales (Representation of the People) Order 1999 (“the 1999 Order”) as amended by the National Assembly for Wales (Representation of the People) (Amendment) Order 2002 (“the 2002 Order”) which are revoked. This Order reproduces the provisions of the 1999 Order as amended by the 2002 Order but with additional provisions which are needed as a result of changes made by the Representation of the People Act 2000 and the Political Parties, Elections and Referendums Act 2000 and which were not reflected in the 2002 Order. The principal changes made by this Order concern - a offences in relation to false statements in connection with applications for absent or proxy votes (article 13); b false statements and signatures in nomination papers (article 32); c a prohibition on the publication of exit polls (article 34); d the control of donations to constituency and individual candidates (article 39 and schedule 6); e the expenses of constituency and individual candidates (articles 50, 51 and 60-63); f the broadcasting of local items during an election period (article 66); and g incapacities on conviction of a corrupt or illegal practice (article 122). Part I of the Order makes general provision. Part II makes provision in connection with the Assembly franchise and its exercise. Part III makes provision in connection with campaigns at Assembly elections. Part IV makes provision in connection with legal proceedings and, in particular, election petitions. Part V makes miscellaneous and supplemental provision in connection with Assembly elections. Schedule 1 to the Order makes provision in connection with electors lists and registers. Schedule 2 makes provision in connection with absent voting at Assembly elections. Schedule 3 makes provision in connection with the issue and receipt of postal ballot papers at Assembly elections. Schedule 4 makes provision in connection with the combination of polls at Assembly and local government elections. Schedule 5 makes provision in connection with the conduct of Assembly elections and the return of Assembly members. Schedule 6 makes provision in connection with the control of donations to candidates. Schedule 7 contains forms of returns and declarations as to election expenses. Schedule 8 makes provision in connection with the use for Assembly election meetings of rooms in school premises and of meeting rooms. Schedule 9 modifies the Election Petition Rules 1960 in their application to Assembly election petitions.

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