UK Offence Report

Details to appear on election publications

article 74(9) of The Scottish Parliament (Elections etc.) Order 2010

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

9 Where any material falling within paragraph (2)(a) is published in contravention of paragraph (2), then (subject to paragraphs (11) and (12))—

a the promoter of the material,

b any other person by whom the material is so published, and

c the printer of the document, shall be guilty of an offence and liable on summary conviction to

a fine not exceeding level

5 on the standard scale.

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 This is the text as originally made; later amendments are not shown here.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
contravening a requirement of the instrument
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

n to a fine not exceeding level 5 on the standard scale. 11 It shall be a defence for a person charged with an offence under this article to prove— a that the contravention of paragraph (2) arose from circumstances beyond that person’s control; and b that that person took all reasonable steps, and exercised all due diligence, to ensure that that contravention would not arise. 12 Any candidate or electio

What would breach article 74(9)?

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 the thing the provision prohibits under the Scottish Parliament (Elections etc.) Order 2010, whatever the reason for doing it.
  2. Where the requirement is a positive duty, letting the time for performing it pass without performing it.

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
16 December 2010
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 2007. 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 1 of the Order (articles 1 and 2) contains general provisions concerning the citation, commencement and interpretation of the Order. The Order will not apply to any elections held on or before 4th April 2011. New provisions on the control of donations to candidates will not apply to money or property provided before 5th January 2011. Part 2 of the Order (articles 3 to 31) makes provision about the franchise for the Scottish Parliament and the exercise of that franchise. Part 3 of the Order (articles 32 to 83) deals with election campaigns and election expenses at Scottish Parliament elections. This includes new provisions on details to appear on election publications, control of donations to candidates and pre-candidacy expenses. The polling places and districts are aligned with those used for Parliamentary elections. Part 4 of the Order (article 84) along with Schedule 6, makes provision for legal proceedings. Part 5 of the Order (articles 85 to 97) makes miscellaneous and supplementary provision. It increases, to 28 working days, the “minimum period” used to calculate the date of dissolution of the Scottish Parliament ahead of an ordinary general election. 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. 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 2007 Order. There is no separate timetable for by-elections. The responsibility for retention of certain documents after an election is transferred to the Constituency Returning Officer (previously the Sheriff Clerk). New provision is made for the rules to apply in the event of the death of a candidate. Schedule 3 contains provision about absent voting. New provision is made for access to and supply of absent voting records and lists. Schedule 4 makes provision about the issue and receipt of postal ballot papers. 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. Schedule 9 makes new provision about access to marked copies of the register and other documents retained by constituency returning officers after an election. 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 0.92.

Basis
the provision says a person is “guilty of an offence”
Confidence
0.92 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