UK Offence Report

Prohibition of expenses not authorised by election agent: candidates for return as constituency members and…

article 41(7) of The Scottish Parliament (Elections etc.) Order 2007

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, 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 This is the text as originally made; later amendments are not shown here.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 41(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 2007.

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
14 March 2007
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 revokes the Scottish Parliament (Elections etc.) Order 2002. The main changes to the 2002 Order reflect the changes made by the Electoral Administration Act 2006 to introduce a system of anonymous registration of electors, to enhance anti-fraud measures and in respect of the system for regulation of parties and campaign expenditure. Other, more minor, changes are required as a result of the Scottish Parliament (Constituencies) Act 2004, which made new provision in relation to the constituencies for the Scottish Parliament, and the Representation of the People (Scotland) (Amendment) Regulations 2006 which, inter alia, implemented provision relating to applications for an absent vote and regarding the conduct of absent voting. 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 32) makes provision about the franchise for the Scottish Parliament and the exercise of that franchise. Part III of the Order (articles 33 to 82) deals with election campaigns and election expenses at Scottish Parliament elections. Changes have been made to the provisions relating to election expenses comparable to those made by the Electoral Administration Act 2006 for elections to the UK Parliament. Part IV of the Order (article 83) along with Schedule 6, makes provision for legal proceedings. Part V of the Order (articles 84 to 95) makes miscellaneous and supplementary provision. Article 93 gives returning officers a power to correct certain procedural errors, in line with the power given by the Electoral Administration Act 2006 to returning officers at UK Parliamentary elections. Schedule 1 makes 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. Provision has been included for the effects of anonymous registration of certain electors and to ensure updated information is available when persons become registered, or their registration details change, in the period shortly before a poll. 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 2002 Order. Alterations have been made to allow for electronic counting of votes (though to retain an ability to count votes manually if a returning officer wishes to run an election on that basis) and to remove the names of party list candidates from regional ballot papers. It will be possible (though not obligatory) for both the constituency and regional ballot papers to be printed on the same sheet. Schedule 3 contains provision about absent voting. Changes have been made to provisions governing absent voting by persons with disabilities, to allow a greater variety of persons to attest applications for an absent vote by persons who cannot reasonably be expected to vote in person at a polling station. Schedule 4 makes provision about the issue and receipt of postal ballot papers. Changes have been made to remove the need for witnessing of postal voting statements (which have replaced the former declarations of identity). Provision is also made to allow a postal elector or their proxy to seek confirmation that their returned vote has been received. Schedule 5 makes provision for the combination of polls. In particular it deals with the combination of the poll at a Scottish parliamentary election with the poll at a Scottish local government election. 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 0.62.

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