Introduction

Mackinlay & Ors v R ([2018] UKSC 42) is a landmark decision by the United Kingdom Supreme Court that delves into the intricate aspects of electoral law, specifically concerning the declaration of election expenses under the Representation of the People Act 1983 (RPA 1983) as amended by the Political Parties, Elections and Referendums Act 2000 (PPERA 2000). The case primarily examines whether election expenses that are free or discounted must be authorized by the candidate or their election agent to be declared as such.

The defendants in this case faced charges related to the knowingly making of false declarations concerning election expenses. The crux of the matter revolved around the interpretation of Section 90C of the RPA 1983, which deals with notional expenditure arising from property, goods, services, or facilities provided free of charge or at a discount to a candidate.

Summary of the Judgment

The Supreme Court unanimously allowed the appeal, holding that Section 90C of the RPA 1983 does not require that free or discounted election expenses be authorized by the candidate or their election agent to fall within the scope of declarable election expenses. The court clarified that Section 90C operates independently of the authorization requirement set out in Section 90ZA concerning actual election expenses. Consequently, the certified question posed by the Court of Appeal—whether free or discounted expenses must be authorized to be declared as election expenses—was answered in the negative.

Analysis

Precedents Cited

The judgment referenced R v Jones and Whicher [1999] 2 Cr App R 253, particularly highlighting Lord Bingham of Cornhill CJ's analysis regarding the criminal liability for knowingly making false declarations. This precedent underlines the necessity of a dishonest state of mind for certain offenses, distinguishing them from strict liability offenses.

Legal Reasoning

The Court meticulously dissected the statutory language of Sections 90C and 90ZA of the RPA 1983. It emphasized that Section 90C imposes a threefold test to determine whether free or discounted services constitute election expenses:

• The services or goods must be provided free of charge or at a discount exceeding 10% of their market value.
• They must be used by or on behalf of the candidate.
• If the candidate had paid for these services, such expenses would qualify as election expenses under Section 90ZA.

The defendants argued that authorization should be a requisite for Section 90C to apply, aligning it with the provisions governing actual election expenses under Section 90ZA. However, the Court held that no such language exists in Section 90C, and thus authorization by the candidate or their agent is not a necessary condition for notional expenses to be declared.

The Court further reasoned that adding an authorization requirement to Section 90C would deviate from the legislative intent and the statutory framework established to regulate both actual and notional election expenses.

Impact

This judgment has significant implications for future electoral campaigns and the reporting of election expenses:

• Increased Responsibility for Candidates and Agents: Candidates and their agents must diligently account for all free or discounted services used during campaigns, irrespective of whether they authorized such expenses.
• Broader Scope of Declarable Expenses: The decision broadens the interpretation of what constitutes election expenses, ensuring greater transparency and accountability in election financing.
• Guidance for Political Parties: Political parties, especially national ones supporting multiple constituencies, need to meticulously track and apportion expenses to avoid inadvertently breaching expenditure limits.

Complex Concepts Simplified

Conclusion

The Supreme Court's decision in Mackinlay & Ors v R reinforces the comprehensive nature of electoral regulations by affirming that Section 90C's provisions on notional expenditure operate independently of authorization requirements. This interpretation ensures that all relevant election expenses, whether actual or notional, are transparently reported and regulated, thereby upholding the integrity of the electoral process. Candidates and their agents must now exercise heightened diligence in declaring notional expenses to remain compliant with election finance laws.