Mackinlay and Others, Regina v: SC 25 Jul 2018

A trial had not yet been begun, but the court was now asked a point of pure statutory construction relating to the manner in which election expenses are required to be calculated and declared. The defendants face charges of knowingly making false declarations in relation to election expenses, or aiding and abetting or encouraging or assisting such offences. The parties asked the judge to determine the point on a preparatory hearing and the CACD certified the question: ‘Do property, goods, services or facilities transferred to or provided for the use or benefit of a candidate free of charge or at a discount (as identified in section 90C(1)(a) of the Representation of the People Act 1983 (as amended)) only fall to be declared as election expenses if they have been authorised by the candidate, his election agent or someone authorised by either or both of them?’
Held: No. The appeal was allowed.
The test for the operation of section 90C is the threefold one: ‘ Section 90C asks, by subsections (1)(a) and (b), three questions about the expenditure it is considering. If those questions are answered ‘yes’, then by subsection (2) it stipulates that the expenditure shall be ‘treated . . as incurred by the candidate’ for the purposes of the Act. That is a deeming provision. If the conditions are satisfied, the notional expenditure becomes by statute the same as if it had been actually incurred by the candidate, even though it has not actually been incurred by him. The three questions can be simplified for present purposes by expressing them in terms of services, but of course the same applies to goods, property or facilities. The questions posed by subsections (1)(a) and (b) are:
1. Were the services provided for the use or benefit of the candidate either free of charge or at a discount of more than 10% of commercial value? (subsection (1)(a))
2. Were they made use of by or on behalf of the candidate? (subsection (1)(b)) and
3. If the services had actually been paid for (expenses actually incurred) by or on behalf of the candidate, would those expenses be election expenses incurred by or on his behalf (and thus subject to the various controls imposed by the Act)? (also subsection (1)(b)).’
Lady Hale, President, Lord Mance, Lord Hughes, Lord Hodge, Lord Lloyd-Jones
[2018] UKSC 42, UKSC 2018/0091
Bailii, Bailii Summary, SC, SC Summary, SC Summary Video, SC 2018 May 28 am Video, SC 2018 May 28 pm Video
Representation of the People Act 1983, Political Parties, Elections and Referendums Act 2000
England and Wales
At CACDMackinlay and Others, Regina v CACD 1-Apr-2018
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Updated: 09 August 2021; Ref: scu.620136