UK Offence Report

General restriction on referendum expenses

regulation 6(3) of The Local Authorities (Conduct of Referendums) (Wales) Regulations 2004

The provision has been revoked and no saving provision preserving liability for earlier conduct was found.

What the provision says

3 Where any referendum expenses are incurred in excess of the referendum expenses limit,

a person who knew or reasonably ought to have known that that limit would be exceeded, or who, without reasonable excuse, authorises another person to exceed that limit, is guilty of an offence.

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 This is the text as originally made; later amendments are not shown here.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
Objective fault
Burden of proof
An element of the offence, for the prosecution to prove

The prosecution must prove that the conduct happened and that it fell below the standard the provision sets. That is an objective test - what a reasonable person in the same position would have done, not what this defendant actually thought.

What a person personally believed or intended is not the question; the standard is what was reasonable.

“Without reasonable excuse” here is an element of the offence rather than a defence, so its absence is for the prosecution to prove (R v Charles [2009] EWCA Crim 1570).

Classifier’s reasoning: objective standard in the offence-creating words: ought to have known; qualified by reasonable excuse (an element; prosecution disproves once raised).

The defence, as drafted

ht to have known that that limit would be exceeded, or who, without reasonable excuse, authorises another person to exceed that limit, is guilty of an offence.

What would breach regulation 6(3)?

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. On these words an offence is committed where a person knew or reasonably ought to have known that that limit would be exceeded, or who, without reasonable excuse, authorises another person to exceed that limit.
  2. Doing what the provision prohibits, or failing to do what it requires under the Local Authorities (Conduct of Referendums) (Wales) Regulations 2004.

Penalty

Mode of trial
Either way — magistrates’ court or Crown Court
Maximum fine
£5,000
Maximum prison (summary)
6 months
Maximum prison (on indictment)
1 year

expressed as the statutory maximum (the prescribed sum): the same words mean £5,000 in England and Wales and £10,000 in Scotland.

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
Revoked
Revoked by
The Local Authorities (Conduct of Referendums) (Wales) Regulations 2008
Made
23 March 2004
In force from
24 March 2004
Extent
Not stated

How this was established: the instrument was revoked by a later instrument found in this corpus.

What the instrument is for

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

These Regulations, which apply only in relation to Wales, make provision for the conduct of referendums to be held by virtue of regulations or an order made under any provision of Part II of the Local Government Act 2000 (“the 2000 Act”). The Regulations also prescribe certain forms for use at a referendum under the Welsh Language Act 1993. The referendums will relate to the question whether a county or county borough council in Wales should adopt executive arrangements that include a mayor and cabinet executive, a mayor and council manager executive or a leader and cabinet executive. Regulation 3, to which Part I of Schedule 1 is relevant, prescribes the statement and the form of words of the question to be asked in the referendum. Regulation 4 requires public notice to be given of the local authority’s proposals under regulation 17 or 19 of the Local Authorities (Referendums) (Petitions and Directions) (Wales) Regulations 2001 (“the Petitions and Directions Regulations”), or an order under section 36 of the 2000 Act. The notice must specify the date of the referendum, various matters relating to the conduct of the referendum, and of the availability for public inspection of the local authority’s proposals. Regulation 4 also allows authorities to provide factual information about their proposals, outline fall-back proposals and the referendum, so long as the information is presented fairly. Regulation 5 imposes restrictions on the material that may be published, displayed or distributed by or on behalf of the local authority during the period of 28 days before the date of the referendum. Regulation 6 imposes a “referendum expenses limit” on the amount that may be incurred by way of “referendum expenses” (both terms are defined in regulation 6(1)). An offence is created for expenditure in excess of the referendum expenses limit. Regulation 7, to which Schedule 2 is relevant, provides for amounts relevant to the use of certain property, services and facilities to be treated as incurred by way of referendum expenses for the purposes of regulation 6. Regulation 8 applies the legislative provisions set out in column (1) of the Tables in Schedule 3 with the modifications shown in column (2) of those Tables, and makes some general modifications to those provisions. Regulation 9, to which Parts II and III of Schedule 1 are relevant, makes provision in respect of the wording of referendum ballot papers. Regulation 10(1) allows a county or county borough council to decide that voting at the referendum shall be conducted solely by post. It also makes some general modifications which apply where such a determination has been made. Regulation 10(2) applies where a determination has been made under regulation 10(1). It provides for the legislative provisions set out in column (1) of Schedule 4 to apply with the modifications shown in column (2). Regulation 11 makes provision for the functions of counting officers, and for the appointment of persons to act as observers at referendum polls (“polling observers”). Regulation 12 provides that, unless the poll at the referendum is to be conducted by post in accordance with a determination made under Regulation 10(1) the hours of polling shall be between 7 am and 10 pm. Regulation 13 makes provision in relation to the counting of votes at the referendum. Regulation 14, which is subject to regulations 16 and 17, deals with the result of referendums and further referendums. It specifies what authorities are to do in the event of a majority of “yes” votes (paragraphs (1) and (3)) and a majority of “no” votes (paragraphs (2) and (4)). Regulations 15 to 17 make provision for the result of referendums and further referendums to be challenged. Regulation 15 specifies the grounds of challenge and the period within which an application (a “referendum petition”) must be made. It also sets out the procedures applicable to referendum petitions, and applies, through Schedules 5 and 6, provisions of the Representation of the People Act 1983 and the Election Petitions Rules 1960. In the case mentioned in paragraph (1)(d), a referendum petition cannot be brought unless leave has been obtained from the High Court. Regulation 16 deals with the immediate consequences of the presentation of a referendum petition. Regulation 17 makes provision for the situation after an election court has determined a referendum petition. Regulation 18 provides for certain days to be ignored in calculating periods under regulation 4(1) and under certain legislative provisions applied by the Regulations. Regulation 19 exempts advertisements relating specifically to the referendum from regulations under the Town and Country Planning Act 1990 controlling the display of advertisements. Regulation 20 provides that premises used in relation to the referendum for public meetings or the taking of the poll shall be treated as unoccupied for rating purposes. Schedule 1 sets out — in Part I, the statement and the form of the question to be asked in the referendum, in Part II, the form of the front of referendum ballot papers, and in Part III, the form of the back of referendum ballot papers. Schedule 2 specifies the matters relevant for the purposes of the definition of “referendum expenses” in regulation 6(1). (These matters are similar to those set out in Schedule 13 to the Political Parties, Elections and Referendums Act 2000.) Schedule 3 identifies the provisions of Acts, Regulations and Rules that are applied, with or without modification, in relation to the referendum — Table 1 applies the provisions of the Representation of the People Act 2000 relating to voting by post or proxy. Table 2 applies provisions in the Representation of the People Act 1983, including provision in respect of personation and other voting offences and corrupt and illegal practices. Table 3 applies provisions in Schedule 2 to the Local Elections (Principal Areas) Rules 1986, which contain the rules (“the Principal Areas Rules”) applicable to the conduct of elections of the council of a county and county borough. Table 4 applies provisions of the Representation of the People (England and Wales) Regulations 2001 (“the Elections Regulations”) relating to applications for a postal or proxy vote and the proceedings on the issue and receipt of postal ballot papers. Schedule 4 identifies the legislative provisions that are applied in relation to the referendum where the local authority have determined under regulation 10(1) that voting in the referendum is to be conducted solely by post. Schedule 5 applies provisions of the Representation of the People Act 1983 for the purposes of referendum petitions. Schedule 6 modifies the Election Petition Rules 1960 for the purpose of their application to referendum petitions.

Read the full note and every offence in this instrument

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.

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