Policing elections

Investigating electoral malpractice

Contents

Key principles

All investigations should follow the process of investigation and initial investigation factors must be duly considered.

Key principles for investigating electoral malpractice:

  • all allegations related to elections should be brought to the attention of the force election SPOC for consideration and direction
  • allegations are prioritised appropriately and within an acceptable timescale by the force election SPOC
  • unsubstantiated third-party allegations will result in no further action
  • an MoU on joint planning for elections and the reporting and investigating of electoral malpractice should be developed and implemented
  • the responsibility for recording and updating the progress of the allegations/investigations should be reviewed by a specific department within the force
  • the structure of roles and responsibilities in dealing with electoral matters is understood by all
  • a clear line of communication must be maintained
  • liaison with the CPS will take place at an appropriate time and advice is sought via the force election SPOC
  • the force election SPOC should monitor the investigations within force and regularly consult crime managers
  • any delays should be brought to the attention of commanders
  • force senior leadership team should support the force election SPOC, eg, adequate resources
  • the CPS is responsible for all charging decisions, including cautions. Any type of positive disposal must go to the CPS via the force election SPOC.

Time limits

Under section 176 RPA 1983, prosecutions under the Act must commence within one year after the offence was committed.

This may be extended to not more than 24 months after the offence was committed, on application made within one year of commission of the offence, if:

  • there are exceptional circumstances, and
  • there has been no undue delay in the investigation of the offence.

Prioritisation criteria for investigating electoral malpractice allegations

Investigations into electoral malpractice allegations will require effective prioritisation based on the following criteria:

  • urgency – the need to preserve and secure evidence
  • seriousness of the allegation
  • complexity of the allegation
  • size of the investigation.

Urgency

Certain allegations will require an immediate response. Offences such as personation and postal vote fraud will need to be dealt with efficiently.

Time delays are costly and will cause issues if fraudulent votes enter the count. The key to success is ensuring that sufficient staff are available in high-risk areas.

Allegations of electoral malpractice can escalate quickly. It is vital that those involved understand the allegation and the relevant legislation. Engagement with the ESM is also advised.

Seriousness of the allegation

Offences that seriously undermine the democratic process always take precedence over those which have minimal effect. The result of a small number of fraudulent postal votes cast in a local election could be as equally damaging as a larger number cast in a national election, resulting in the same amount of cost and effort in terms of police resources.

Complexity of the allegation

Where the nature of offences is complex, advice is available from various partner agencies if required:

  • the Electoral Commission can assist by explaining legislation and providing guidance
  • force legal services can assist with obtaining civil court orders to recover documentary evidence that is no longer in the public domain or where a judge’s consent is required to obtain such evidence, for example, access to ballot papers requires an order of either the County or High Court dependant on the election type
  • the returning officer where allegations involve them as the defendant in any civil applications made
  • the dedicated CPS election lawyers at the CPS headquarters in York and London can give advice about the evidence required to meet charging standards, relevant offences and the correct procedures to be followed
  • political parties at the national level have officers whose role it is to address the integrity of their members’ actions, for example, Compliance Officer or Nominating Officer; consideration may be given as to whether it would be beneficial and appropriate, via the force election SPOC, to consult the appropriate National Officer
  • the force election SPOC, who has working knowledge and understanding of the police role and responsibility in relation to policing all aspects of the elections.

Size of the investigation

The size of an investigation is important. An example of a large investigation is an allegation of fraud involving large numbers of postal votes. The offence may involve several offenders and large numbers of victims who may need to be traced and interviewed. In certain areas and communities it may be difficult to trace victims. When considering the size of an investigation, the SIO should set tight investigative parameters to ensure effective use of the force’s capabilities and that the available resources are not exceeded. Early liaison with the CPS may be valuable. For further information see managing investigations.

Managing multiple investigations and allegations

Where a number of allegations are received across a force at the same time, an allegation can quite easily be overlooked or it may be wrongly assumed that someone else has responsibility for its investigation.

There are a number of key principles that will assist police forces to ensure that they are capable of managing multiple allegations of election malpractice and fraud.

Managing material

Exhibits management principles should be in place.

The following additional considerations should be taken into account:

  • the effect on the count and on the local authority
  • powers of search and seizure
  • statutory timescales
  • forensic considerations
  • document management systems.

Depending on the size of the investigation and in line with APP on investigation, forces can consider appointing an exhibits officer who is not the investigating officer in the case. A document management system must be in place to keep a track of all exhibits.

Investigation strategy

An investigation strategy must be agreed between the force election SPOC and SIO. The agreement should be recorded in the SIO’s policy record. The investigation strategy should cover the same priorities of any criminal investigation.

An investigation into electoral malpractice should be approached in the same way as any other investigation.

Electoral malpractice offences

The primary legislation for electoral offences is RPA 1983.

Proceedings against a person in respect of any RPA offence must normally be commenced within one year of the offence being committed (in exceptional circumstances, this may be extended for a further year by the court).

In addition, the Political Parties, Elections and Referendums Act 2000 (PPERA) sets out rules for spending, finances and donations for elections and referendums.

There is no current legal requirement to include imprints on electronic election material, such as websites and emails, however, the Electoral Commission encourages campaigners to include them as good practice.

Imprints

An imprint must be added to printed election material (eg, leaflets, posters or adverts) that can reasonably be regarded as intended to promote or procure the election of a political party, candidate or groups of candidates. Imprints show who is responsible for the production and promotion of the material and help to ensure that there is transparency about who is campaigning at elections.

Rules on imprints

The rules on imprints apply to:

  • political parties
  • candidates
  • non-party campaigners (individuals or organisations that campaign at elections, but are not standing as political parties or candidates).

Election material must contain the name and address of:

  • The printer of the document.
  • The promoter of the material (the promoter is the person who has caused the material to be printed. If the promoter is acting on behalf of a group or organisation, they must also include the group or organisation’s name and address. This can be either a home or an office address).
  • Any person on behalf of whom the material is being published (and who is not the promoter)
  • The address should be the full postal address. PO box numbers are not acceptable.
How to position an imprint
  • Where the material is printed on a one-sided document, the relevant details must appear on the face of the document.
  • Where the material is printed on a document with more than one side, the required details must appear either on the first or the last page of the document.
  • If the election material is an advert in a newspaper or periodical, the advert does not need to include the printer’s details (although the name and address of the printer of the newspaper or periodical itself must appear on its first or last page).
Enforcing imprint rules

The imprint rules are contained in two pieces of legislation:

  • Section 110 RPA 1983
    The local imprint rules cover campaigning for particular candidate(s) standing in a particular electoral area (eg, ward or constituency), including doing so by campaigning against other candidates.
  • Section 143 PPERA
    The general imprint rules cover campaigning for one or more political parties or groups of candidates, including doing so by campaigning against other parties or candidates. PPERA imprint rules are regulated by the Electoral Commission. The Commission can impose civil sanctions for offences resulting from a failure to adhere to the imprint requirements of PPERA, without a referral to the police.
Section 126 PPERA has similar requirements and offences for campaign material that is produced and published at certain referendums.
Candidate imprint rules section 110 RPA 1983

Section 110 RPA 1983 requires that printed election material must include an imprint if it can reasonably be regarded as intended to promote or procure the election of a particular candidate in a particular electoral area.

Similar imprint rules apply under the relevant legislation for elections to the European Parliament, Scottish Parliament, National Assembly for Wales, Northern Ireland Assembly and the position of police and crime commissioner.

This includes material that can be intended for another purpose as well and it is immaterial that it does not expressly name the candidate.

The candidate rules apply to election material distributed as part of a candidate’s campaign and may also cover local non-party campaigners if they are campaigning for a particular candidate in a particular ward or constituency, including by campaigning against other candidates.

Offences under this section can be committed by:

  • the promoter of the material
  • any other person by whom the material is so published
  • the printer of the document.

A candidate or his or her election agent who would be guilty of an offence under this section is instead guilty of an illegal practice.

A defence is available if the person charged can prove that:

  • the contravention arose from circumstances beyond their control, and
  • they took all reasonable steps, and exercised all due diligence, to ensure that the contravention would not arise (and/or that a remedy was effected at the earliest opportunity).
Party imprint rules (PPERA)

The party imprint rules apply to political parties and general non-party campaigners campaigning for or against one or more political party, group of candidates, policy, issue or particular type of candidate.

Section 143 PPERA 2000 requires that imprints must be included on printed election material that can reasonably be regarded as intended to influence voters to vote for or against political parties or categories of candidates, including political parties or categories of candidates who support or oppose particular policies or issues, and is made available to the public or a section of the public.

These requirements are referred to as the party imprint rules. These rules apply to political parties and general non-party campaigners.

The Electoral Commission can impose civil sanctions for offences resulting from a failure to adhere to the imprint requirements of PPERA, without a referral to the police. For more information how the party imprint rules are enforced, visit the Commission’s website.

Note: in relation to both RPA 1983 and PPERA 2000:

  • ‘print’ means print by whatever means and ‘printer’ shall be construed accordingly
  • ‘the promoter’ in relation to any material to which this section applies, means the person causing the material to be published
  • ‘publish’ means make available to the public at large, or any section of the public, in whatever form and by whatever means.

 

Differentiating between the candidate and party imprint rules

The imprint rules under section 110 RPA 1983 cover campaigning for a particular candidate standing in a particular electoral area, including doing so by campaigning against other candidates.

The party imprint rules cover campaigning for one or more political parties or groups of candidates, including doing so by campaigning against other parties or candidates.

If any officer is unsure about whether election material falls within the candidate or party imprint rules, they should contact the force election SPOC. If the allegation relates to a party imprint offence, the force election SPOC should refer the matter to Dan Adamson or Richard Jordan at the Electoral Commission.

The Electoral Commission’s website has more information on the rules for political parties, general non-party campaigners and the Commission’s role as the regulator of political finance.

 

Investigating imprint allegations

If a report is made to the police regarding an imprint offence, the following steps should be taken:

  • obtain and check the original material to establish whether there has been a breach of the local imprint rules
  • make a record of the allegation for future reference and for reporting incidents of alleged electoral malpractice to the Electoral Commission
  • check to see whether this is a repeat offence by a particular candidate or local non-party campaigner
  • check to see whether there are other allegations being made about this candidate or local non-party campaigner
  • if this is a repeat offence or connected to another offence, consideration of whether it should be investigated and a full report submitted to the CPS.
Be aware that most breaches of local imprint rules are committed because of ignorance of the legislation rather than intent to avoid identification.
Police response to an allegation of a breach of imprint rules

If it appears that the breach has been committed out of ignorance and there was no intention to commit further offences, depending upon the force it may be possible to deal with the allegation by means of an advice letter to the candidate or local non-party campaigner. Advice should be sought from the CPS if there is any uncertainty regarding how to deal with an allegation.

Advice letter

The advice letter should outline the following:

  • the police have responsibility for ensuring electoral integrity
  • circumstances of the allegation
  • relevant legislation
  • that the documentation has been examined
  • the liability of the candidate (or printer or promoter)
  • information to raise awareness of the guidance
  • no further action to be taken on this occasion
  • if a further breach comes to light, this allegation could be considered as a supporting reason to prosecute
  • the offence carries a maximum penalty of an unlimited fine.

Consideration should be given to forwarding a similarly worded advice letter to any identified printer or promoter, giving suitable advice. See the example of a letter template.

An offence under section 110 RPA 1983 may have implications for the submission of expenses relating to election campaigns covered in sections 75 to 85 RPA 1983.

False statement of fact as to candidate

It is an illegal practice for a person to make or publish any false statement of fact in relation to the personal character or conduct (rather than the political character or conduct) of a candidate, before or during an election, for the purpose of affecting the return of the candidate at the election unless they can show that they had reasonable grounds for believing, and did believe, the statement to be true – section 106 RPA 1983.

The words of the statement will be interpreted according to their real and true meaning and not necessarily according to their literal sense.

It is also an illegal practice under section 106(5) for any person, before or during an election, to knowingly publish a false statement of a candidate’s withdrawal at the election for the purpose of promoting or procuring the election of another candidate.

Note: criticism of public acts, however extravagant or perverse, is not in violation of section 106 (The Borough of Sunderland (1896) 5 O’M & H 53) nor is criticism of a person’s political career and conduct (The Cockermouth Division of the County of Cumberland (1901) 5 O’M & H 155).

During the election period there is often a heightened level of sensitivity around comments made by candidates and their supporters. These comments can be viewed as lies and fabrications intended to either enhance the candidate’s chances of obtaining an advantage through gaining favour with the electorate or to discredit an opponent. These comments or statements can be made in various formats, for example election material, the media, or political gatherings and tend to be concerned with the:

  • candidate’s promises, if elected
  • policies of opposition parties or candidates
  • personal integrity or character of an opposition candidate.

The offence can be committed by any person making or publishing the false statement. However, allegations are usually made against opposing candidates or their agents.

Investigating an allegation of false statement of fact in relation to a candidate

As with all allegations made about electoral malpractice a fast response will benefit the organisation. If an officer is contacted about allegations regarding a false statement in relation to a candidate, the officer should ensure that the statement:

  • was made before or during an election
  • was made for the purpose of affecting the return of any candidate at the election
  • is about a candidate’s personal character or conduct and not the candidate’s political intentions or failure to live up to promises.

Examples of previous allegations considered under section 106 RPA 1983 are available for information. The specific context will need to be considered in all cases.

Section 106 RPA 1983 allegations are prone to being unsubstantiated third-party allegations and as such, if no witness statement is provided to substantiate the allegation then there should be no investigation.

Where a false allegation is made that relates to criminality rather than morality or marginalisation, the case against the third party will be much stronger.

Officers should remember that harassment and public order legislation may offer an alternative to section 106 RPA 1983.

When considering an alleged breach of section 106 RPA 1983, the courts will have regard to the right to freedom of expression under Article 10 that attaches to the maker or publisher of the statement, balanced with candidate’s right to the protection of his or her reputation under Article 8 (the right to respect for private and family life). The right to freedom of expression is not engaged in relation to statements made dishonestly (see R (on the application of Woolas) v Parliamentary Election Court (2010) EWHC 3169 (Admin)).

Police response

It is a defence for a maker of such a false statement to show that they had reasonable grounds for believing, and did believe, the statement was true.

Complainants who believe that they have been slandered or libelled have the right to civil redress in respect of any allegation and as such should be advised that they may wish to seek legal advice. Any request for access to police investigation material should be made to the force’s legal services department.

If, after considering the above, officers have any queries about an allegation under this section they should seek advice from the dedicated lawyer at the CPS.

False registration information

It is an offence to provide false information to register to vote, or in connection with an application for a postal or proxy vote (section 13D(1A) RPA 1983). This includes provision of a false signature.

Officers should be mindful that an attempt to falsely register on the electoral register is often the primary step of setting up a fraudulent identity in order to commit fraud such as mortgage, banking or internet fraud.

This offence is not committed where the person charged did not know, and had no reason to suspect, that the information was false.

There are two reasons for creating a false entry on the electoral register. They are for the commission of fraud:

  • for purely financial purposes, namely obtaining an entry on the electoral register as a first step towards obtaining a credit rating
  • in relation to an election.
Voter eligibility

Nobody can vote until they are 18 years old.

A person can register to vote if they are 16 years old or over and a British citizen or a citizen of the Republic of Ireland, or a qualifying Commonwealth or European Union citizen who is resident in the UK. Such a person who is 16 or 17 can only register if they will be 18 within the lifetime of the electoral register.

Citizens of the European Union (who are not Commonwealth citizens or citizens of the Republic of Ireland) can only vote in European and local elections in the UK.

Prior to 2014 there were two methods by which any individual could be entered onto the register:

  • Annual canvas where a single member of the household signed to agree that the persons already entered on the register were still eligible and added new members of the household onto the register. This included younger members of the household reaching the appropriate age.
  • The completion of an individual application form, which required the signature of the individual.

Since June 2014 all applications to be entered onto the register must be on an individual basis. Applicants are required to provide their national insurance number (NINO) and date of birth (DOB) for additional security. Coupled with this requirement, the ability to submit such application electronically has been introduced, which does not need a signature.

Investigating false registration information

Where there is suspicion that a false entry has been created on the electoral register, a prompt response is essential. The existence of the individual should be verified prior to the submission of any items for forensic examination, and it should be established whether the elector consented to the application. The validity of the signature on the form should also be confirmed.

The local authority is best placed to make initial enquiries into allegations of false registration information. Dip sampling of suspicious forms can be considered where resources are limited. This tactic can limit the impact on police resources required in the first instance. However, once it is established that all or some of the dipped sample are fraudulent then all other affected ballot papers will have to be seen. Decisions on sampling strategy are taken by the ESM in consultation with the force election SPOC.

Once it has been established that applications are fraudulent, the possible impact on forthcoming elections should be considered. If it has been discovered that no elector exists, any applications in that name should be removed from the register. If this is not possible prior to the election then contingency plans to prevent the use of the ballot papers will be required. Where the elector has been found to be genuine but the postal/proxy application is false, these must be referred to the elections officer, who will correct the situation in accordance with the provisions of RPA 1983.

The position in relation to known/identified suspect(s) linked to the offence needs to be constantly reviewed as the investigation proceeds and is especially sensitive in the period directly leading up to any election.

The following considerations should be taken into account:

  • the strength of available evidence
  • the possible effect on the outcome of the election
  • organisational and reputational issues, and confidence in the democratic process.
Evidence gathering (false registration information)

Once the affected forms have been identified, a forensic strategy should be established to determine whether all or a limited sample should be submitted for forensic examination.

The knowledge and expertise of the ESM, or equivalent, in assisting the police is vital in helping the SPOC to formulate a forensic strategy.

If the original application to vote was for a bogus voter, this application should be obtained where possible and considered as part of the forensic strategy. In normal circumstances the original application can be supplied by the elections office without the requirement for a court order.

The original application to vote will provide evidential opportunities.

Handwritten or signed application

A handwritten or signed application will provide evidential opportunities from the handwriting. As this type of application will have been handled, fingerprint evidence may be available. Caution is required when submitting such forms for forensic examination as the process of chemically treating the documentation can destroy writing on a document. A good quality photocopy of the document should be obtained prior to submission and handwriting examination should be the first process undertaken if possible.

Printed document

A printed document will still provide opportunities from fingerprints. If the document is from an electronic source, such as the Electoral Commission’s website, it may contain an electronic tag or a form of identifier that can be used to identify an IP address which can lead to the location where the form was created.

Electronic application

An electronically submitted application will afford an opportunity to identify the source of the document.  The IP address will be recorded and forwarded together with the necessary registration details to the Electoral Registration Officer at the relevant local authority for safe and secure storage. The time when the form was downloaded will be shown as local UK time.  However, dependent on the source, any further opportunities of evidence gathering will have to be assessed.

Secondary sources of evidence

The original submission of the application form may provide secondary sources of evidence:

  • a posted form will offer opportunities from the envelope and stamp for fingerprints and DNA
  • a form submitted by hand may provide the opportunity of CCTV or Photofit evidence being available.
False application to vote by post or proxy

After the introduction of postal voting on demand in 2000 and before rigorous checks were introduced by the Electoral Administration Act 2006 and other legislation, postal vote applications were used to commit large-scale election related fraud designed to affect the outcome of an election.

Section 62A RPA 1983 details offences relating to the applications to register to vote by post and proxy.

Eligibility for a postal vote

A postal vote can be applied for by any person who is already a registered elector.

Eligibility for a vote by proxy

If a registered elector is unable to get to a polling station they can apply to vote by proxy.

The elector must appoint someone they trust to vote on their behalf.

A person may act as a proxy for no more than two registered electors who are not members of their immediate family. There is no limit on the number of family members for which an individual can act as a proxy.

An application for a proxy vote on a permanent basis must be attested by someone with the authority to vouch for the elector’s inability to vote in person. An application to vote by proxy for a single occasion must state why the proxy is needed but does not need to be attested. Written confirmation of the proxy voting arrangement must be sent to the elector at their registered address. This is an important anti-fraud measure.

To apply to vote by post or proxy an elector must sign the application form.

Investigating false application to vote by post or by proxy

It is an offence to falsely apply to vote by post or by proxy with the intention of depriving another person of a vote or gaining a vote or money or property to which a person is not entitled.

It is an offence to:

  • apply for a postal or proxy vote as some other person (whether living, dead or fictitious) or otherwise make a false statement in, or in connection with, an application for a postal or proxy vote
  • induce an ERO or a returning officer to send a communication relating to a postal or proxy vote to an address that has not been agreed by the voter
  • cause such a communication not to be delivered to the intended recipient.

A person who commits this offence or who aids, abets, counsels or procures its commission is guilty of a corrupt practice.

Although there is some overlap between section 62A and section 13D in relation to providing false information in an application for a postal or proxy vote, section 62A is the more serious offence and requires the guilty intention set out above.

The risk of electoral malpractice may be greater where there is:

  • an increased opportunity to influence the outcome of an election or referendum, for example, fewer votes are needed to win a seat at a local government election compared with a UK parliamentary election
  • likely to be a close contest
  • a community with limited language or literacy skills which may be more vulnerable to deception or less likely to realise that votes have been stolen.
Evidence gathering (false application to vote by post or by proxy)

To make an application for a postal or proxy vote, the individual must already be on the electoral register. Enquiries must first be made to establish how the initial registration took place, as this may provide further evidential sources and indicate the purpose of the application.

The reason why a person has applied to register to vote should always form part of the assessment of whether fraud has been attempted.

There are two motives for seeking to create a false entry on the register of electors. They are for the commission of fraud:

  • for non-electoral reasons such as benefit fraud, identity theft, illegal immigration purposes or financial fraud by obtaining an entry on the register as a first step towards obtaining a credit rating
  • in relation to securing a particular election result.

The first signs of registration, postal or proxy irregularities can include:

  • similar handwriting styles on application forms
  • numerous forms from the same address
  • numerous forms from the same IP address
  • an unexplained sudden increase in applications in a given area
  • intelligence sources.
Police response

Once it has been established that the postal/proxy applications are fraudulent, any impact that this may have on forthcoming elections should be considered.

Where it has been discovered that no elector exists, the name should be removed from the register. If this is not possible prior to the election, contingency plans to prevent the use of the ballot papers will be required.

Where the elector has been found to be genuine but the postal/proxy application is false, these must be referred to the elections officer, who will correct the situation in accordance with the provisions of RPA 1983.

Personation

Section 60 RPA 1983 describes personation as a situation where an individual votes as someone else, either in person at a polling station or by post or as a proxy.

Alternatively, it is a person who votes in person or by post as proxy for a person he/she knows or has reasonable grounds for supposing to be dead or fictitious, or when he/she knows or has reasonable grounds for supposing that his/her appointment as proxy is no longer in force.

The offence applies whether or not the person being personated is living, dead or fictitious.

A person who commits or aids, abets, counsels or procures the offence of personation is guilty of a corrupt practice.

If the intended personation comes to the attention of the police in advance of it taking place, disruption tactics should be considered in order to prevent the offence occurring.

Investigation of personation

An extract of the electoral register is provided to each polling station showing who is eligible to vote there. When a ballot paper is issued, the presiding officer or poll clerk will place a mark on the register against the name of the elector who arrives to vote. The first indication of a personation offence is usually where an individual arrives to vote and there is already a mark on the register against their name to show that a ballot paper has been issued.

Any assessment of a report of personation must include the risk of human error by the presiding officer or clerk having simply placed the mark against the wrong voter on the marked register.

If tactics are adopted which involve posting police officers to polling stations, they should be fully briefed in advance about the purpose of their role. Further information is available from maintaining order and preventing undue influence outside polling stations. Briefings should include that they are not allowed to become involved in preventing the vote being cast or preventing the presiding officer from carrying out their duties. If suspects attend the polling station, they must be allowed to carry out the act of voting before the officer intervenes.

Witness statements

In all reports of personation, witness statements will be required from the presiding officer and polling clerk at the polling station.

Consideration may be given in advance of any election to using template statements, which could be included in packs supplied to each presiding officer. Training in the use of such statements could be included in the training provided to presiding officers and polling clerks.

Evidence gathering (personation)

A fraudulent ballot paper will also afford forensic opportunities, which should be considered as soon as it is established that the ballot paper is the subject of personation.

The marked register completed by the presiding officer to record who has been issued with a ballot paper is also subject to a destruction policy under the regulations (Rule 57(1) Schedule 1 of RPA 1983 (Parliamentary Election Rules)) and a court order will be required to cover the production and retention of this as evidence. Advice should be sought from force legal services, the force election SPOC and ESM, or equivalent, regarding destruction dates and policies.

Personation by proxy or postal vote

Where the report of personation is found to be linked to the false application for a postal/proxy vote the original application forms may afford some evidential opportunities, and arrangements to seize and preserve them should be put in place.

For postal voting, the postal vote statement (which should be signed by the voter and show their date of birth) must be checked against the details supplied when the application to vote by post was made. When investigating postal voting, officers should consider offences relating to false statements under sections 62A(1) and 62A(2) RPA 1983.

False statement in nomination paper

Qualification for nomination

It is an offence to knowingly supply false details on a nomination paper. This includes any of the signatures. In order for a candidate to stand for office in an election, completion of a nomination paper is required which must set out which of the required criteria are met.

In order to be allowed to stand for office in a local election a candidate must be:

  • 18 years old on the day of nomination
  • a British citizen, an eligible Commonwealth citizen or a citizen of any other member state of the European Union.

In addition, they must meet at least one of the following four qualifications:

  • be registered as a local government elector for the local authority area in which they wish to stand from the day of their nomination onwards
  • have occupied as owner or tenant any land or other premises in the local authority area during the whole of the 12 months before the day of their nomination and the day of election
  • have worked in the local authority areas as the main or only place of work during the 12 months prior to the day of their nomination and the day of election
  • have lived in the local authority area during the whole of the 12 months before the day of their nomination and the day of election. For local government elections, a candidate is required to have a link to the area which they wish to represent. The candidate should reside, work or occupy land or premises in the area covered by the local authority.
Offences also apply to other types of election. Note: the criteria will vary depending on the type of election, eg, UK parliamentary elections.

The Commission has produced guidance for candidates intending to stand at elections across the UK in May 2016. These can be accessed from the Commission’s website.

The eligibility and disqualification criteria for prospective candidates is set out in Part 1 of the guidance for each type of election. For example the advice for candidates standing for election as a Police and Crime Commissioner draws attention to the disqualification at:

1.4       You have ever been convicted of an imprisonable offence. This disqualification applies even if you were not actually imprisoned for that offence, or the conviction has been spent.

Further information is available from the Electoral Commission’s website.

Completion of a nomination paper is required, which must set out which of the above criteria are met. It also requires the support of 10 electors (one proposer, one seconder and eight assentors who sign to say they support the candidate’s nomination). All 10 are required to sign the nomination paper and must be included on the register of electors for the area in which the election is to be held. The number of assentors may vary for different types of election. The nomination paper also gives details of the candidate’s name, date of birth, address and political description (if any).

False details on a nomination paper

Under section 65A(1) RPA 1983 a person is guilty of a corrupt practice if that person causes or permits to be included in a document delivered or otherwise furnished to a returning officer for use in connection with the election:

  • a statement as to the name or home address of a candidate at the election which he/she knows to be false or
  • where the election is a parliamentary election a statement under rule 6(5)(b) of Schedule 1 to this Act which he/she knows to be false or
  • anything which purports to be the signature of an elector who proposes, seconds or assents to the nomination of such a candidate but which he/she knows
    • was not written by the elector by whom it purports to have been written, or
    • if written by that elector, was not written by him/her for the purpose of signifying that he/she was proposing, seconding or, as the case may be, assenting to that candidate’s nomination
  • a certificate authorising the use by a candidate of a description if he/she knows that the candidate is standing at an election in another constituency in which the poll is to be held on the same day as the poll at the election to which the certificate relates.

Under section 65A(1A) a person is guilty of a corrupt practice if, in the case of any relevant election, that person makes in any document in which he/she gives his/her consent to his/her nomination as a candidate:

  • a statement as to his/her date of birth
  • a statement as to his/her qualification for being elected at that election, or
  • a statement that he/she is not a candidate at an election for any other constituency the poll for which is to be held on the same day as the poll at the election to which the consent relates

which he/she knows to be false in any particular.

The two most common complaints and breaches of these sections relate to a false signature of an assentor, and false address of the candidate.

Investigating a false statement in a nomination paper

Caution should be exercised when receiving such complaints, especially where they are being received from a rival candidate.

Ensure a statement of evidence is always obtained.

If one or more of the signatories to the nomination form has signed a nomination form that has already been accepted for another candidate, the returning officer must reject the later nomination form. If the later candidate discovers this near to the deadline for receiving nominations, they may be tempted to fraudulently submit a new form which they have signed on behalf of their supporters.

However, in local government elections, an elector can act as proposer, seconder or assentor for as many nominations as there are vacancies in their ward.

It should also be noted that the returning officer receiving the application is only under a duty to check that the assentors are registered as electors within the constituency and that they have not signed any other person’s nomination paper for that election. They are required to accept the remainder of the nomination paper on face value.

If a complaint is received within the period wherein a candidate is able to withdraw the nomination, the investigation should proceed as quickly as possible in order to allow the candidate to be withdrawn. This could avoid the requirement to submit an election petition at a later date.

If the allegation is made after the last date on which a candidate may withdraw their nomination, the election must proceed with the disputed candidate’s name on the ballot paper.

It is preferable to conduct the investigation in the post-election period as this mitigates the risk of the police being accused of influencing the outcome of the election.

Investigating the validity of an assentor’s signature

A visit to the assentor will usually clarify whether the signature is genuine or not, but the investigator also needs to be aware of external factors that may impact on the authenticity of the allegation. These include:

Cultural issues
In some communities the head of the family may take it upon themselves to agree and either sign for other family members or allow another to sign the names of other family members. Similar factors can also be experienced in the wider community when community leaders are involved.
Embarrassment issues
 Many assentors do not realise at the time of signing that the fact that they have signed will be made public. This is especially prevalent when dealing with the more marginal parties.
Political misconduct
When a supporter of a candidate signs as assentor for a rival with a view to making a false statement later in relation to that signature in order to discredit the originating candidate.
Victim of fraud
An assentor may have signed the nomination paper without the knowledge that it is a nomination paper, eg, the papers may be disguised or presented as a petition.

A common defence put forward in these cases is that the candidate did not collect the signatures and/or that the form was left in a public area allowing persons to sign unsupervised. In both instances the candidate can claim not to have known that the signatures were false.

Investigating the validity of the address of the candidate

A common allegation relates to the stated main address of the candidate. In local government elections, a candidate is required to have a link to the area which they wish to represent. They should reside, work or occupy land or premises in the area covered by the local authority. Although there is no residency requirement for parliamentary elections, this may still be relevant because of the political expediency of being seen to be part of the community.

The form of local connection needed to stand in a local government election is one of the following:

  • the candidate is on the local government register for the area of the authority when nominated (and subsequently), or

for the 12 months leading up to being nominated (and up to polling day), they have:

  • occupied as owner or tenant any land or other premises in that area, or
  • had their principal or only place of work in that area, or
  • resided in that area.

Since it is necessary to be resident in the area to register as a local government elector, two of these four options involve residence. Residence is not a clear-cut concept and care needs to be taken to establish the full facts in any particular case. For example, many candidates will have more than one residence and may acquire an address within the local authority area or the ward in which they wish to stand as a candidate. This is allowed within the law.

Candidates may raise questions about the existence of a second home as a chance to discredit a rival.

Any claims made that a candidate has lied about their residency on their nomination paper will require support from a statement of evidence qualifying this allegation.

Usually the quickest way to investigate such allegations is to visit the address provided and ascertain if the candidate does in fact reside at the address. When considering this approach, however, care needs to be exercised to avoid providing any rival candidates with opportunities to use this to their advantage, such as having the press in attendance. When seeking to determine residency at the address, signs of the requirements associated with daily life, such as clothing, bedding, personal effects, postal items, utility and banking accounts should be looked for. Consideration should also be given to how often the candidate is at the premises and the purposes of their presence there, although temporary absences, even of a long duration, will not necessarily mean that the candidate is not resident. It may, therefore, be necessary to make similar enquiries in respect of any other addresses at which the candidate may be resident, in addition to that in their nomination papers, so that a comparison can be made.

The view of the CPS may be required in the first instance to determine whether what was found at the location amounts to residency. Other types of elections may have different requirements. Advice should be sought at an early stage.

In the run-up to polling day, careful consideration should be given to the conduct of house-to-house police enquiries as this may lead to adverse publicity for the candidate. This could result in reputational damage for the force, which may be accused of attempting to influence the outcome of the election.

Bribery

A person guilty of bribery is guilty of a corrupt practice under section 113 RPA 1983.

A person is guilty of bribery if he/she, directly or indirectly, by himself/herself or by another person acting on his/her behalf:

  • gives any money or procures any office to or for any voter or to or for any other person on behalf of any voter or to or for any other person in order to induce any voter to vote or refrain from voting, or
  • corruptly does any such act as mentioned above on account of any voter having voted or refrained from voting, or
  • makes any such gift or procurement as mentioned above to or for any person in order to induce that person to procure, or endeavour to procure, the return of any person at an election or the vote of any voter, or
  • if upon or in consequence of any such gift or procurement as mentioned above he/she procures or engages, promises or endeavours to procure the return of any person at an election or the vote of any voter.

Treating

It is a corrupt practice under section 114(2) RPA 1983 for any person to corruptly, either before, during or after an election, directly or indirectly give, provide, or pay wholly or in part the expense of giving or providing, for the purpose of corruptly influencing a voter, any:

  • meat
  • drink
  • entertainment or provision to any person.

It is also a corrupt practice under section 114(3) to corruptly accept or take any such meat, drink, entertainment or provision.

Investigating an allegation of treating

Where an allegation of treating is made, the following are the first points to consider:

  • Was the act of offering the refreshments, gift or other reward done with the intention of corruptly influencing the voter in refraining to vote or voting?
  • Has the person making the report accepted any part of what was offered? If they have, and did so with corrupt intent, they have also committed this offence.
  • Who is the complainant and how do they know the information concerning the allegation of offence?
  • Has the complainant and any witness given a witness statement?
  • Under what circumstances was the treat offered?
  • Were cultural factors in play?

This offence is also committed by those accepting what is offered. This means that it will not only be the person who allegedly made the offer who is the subject of a police investigation.

Where the complaint is made by a rival candidate or party worker, this aspect is often overlooked and they do not realise that it will not only be the person making the offer who will be the subject of a police investigation. The complainant should be alerted to the possible adverse outcome that could arise from such a complaint.

Cultural factors can affect this offence in that among many cultures the provision of refreshments is considered to be socially acceptable, and it would be perceived as an insult should refreshments not be provided. It is critical that the advice of an independent social leader/expert is sought regarding the cultural factors, and any such advice should be entered into evidence in the form of a witness statement.

Undue influence

The section 115 RPA 1983 offence of undue influence refers to incidents where a person exercises undue influence or compels a person to vote or refrain from voting at an election.

A person is guilty of undue influence if he/she, directly or indirectly, by himself/herself or by any other person on his/her behalf:

  • makes use of or threatens to make use of any force, violence or restraint, or
  • inflicts or threatens to inflict any temporal or other spiritual injury, damage, harm or loss upon or against any person in order to induce or compel that person to vote or refrain from voting, or on account of that person having voted refrained from voting.

Alternatively a person is guilty of undue influence if by abduction, duress or any fraudulent device or contrivance:

  • he/she impedes or prevents or intends to impede or prevent the free exercise of the right to vote of an elector or proxy for an elector, or
  • compels, induces or prevails upon or intends to compel, induce or prevail upon an elector or proxy for an elector either to vote or to refrain from voting.

The above offence requires the use of an amount of physical force or threat that will have a detrimental effect upon the elector in order to influence their decision making, or in some manner prevents the elector from voting.

Investigating undue influence

As part of the preventive measures put in place by the police before the election, contacts need to be established at a high level within parties and with agents of independent candidates. This is to prevent the escalation of complaints against campaigning activities of opposing candidates and to defuse an escalation situation should it arise. The force election SPOC can ensure that the relevant contacts are in place.

It is important that any persons alleging the offence of undue influence are fully aware of the scale of criminality required in relation to this offence.

A complainant must provide a witness statement evidencing the undue influence, the format this took and the resultant detrimental effect upon themselves.

Rival candidates are known to make complaints about the actions or perceived actions of their opponents. Often the behaviour being described cannot be substantiated by any identifiable person directly witnessing it. In many cases the behaviour of candidate, canvassers, and party workers will not amount to an offence of undue influence.

If the behaviour meets one or more of the above criteria, the number of complaints is important. If there is a single complaint, the political motivation of the complainant should be considered.

Timing of the investigation

If the allegation of undue influence appears to have substance, the timing of the investigation should be carefully considered. An investigation prior to the election date could have an adverse effect on a candidate’s success. The involvement of the candidate in the alleged undue influence must be duly considered.

If the candidate has no direct involvement and the behaviour can be prevented from continuing by direct contact with the party, agent or candidate then, subject to preservation of evidence issues, it may be preferable to conduct the investigation after the election date.

This will prevent accusations against the police of interference with the outcome of the election.

Election expenses and donation offences

Offences under the RPA relating to candidate expenditure will normally fall to the police to investigate. The Electoral Commission has prescribed powers to investigate and sanction offences by parties and other types of campaigning groups in the Political Parties, Elections and Referendums Act 2000 (PPERA), but does not have the same powers in relation to candidates under the RPA (1983). If there is any doubt as to whether an offence has occurred under PPERA or the RPA, the Electoral Commission should be contacted for advice.

Candidates election expenses offences

 

Candidates generally appoint an election agent, who takes most responsibility for managing the campaign expenses. A candidate may be their own agent.

Candidates and agents are required to provide a return of the candidate’s expenditure during their campaign to the Returning Officer. The return must be provided within a set timescale after the result of the election is declared. They must also provide supporting documentation for the return in the form of invoices and receipts for payments. The return must also include details of any donations received with a value over £50. The return must be accompanied by a declaration by the candidate, and the candidate’s agent, that the return is true and accurate. Failing to provide the return, either of the declarations, or making a false declaration, are all offences, subject to various caveat provisions.

Candidates are also subject to a spending limit for the campaign, and spending in excess of that limit is also an offence. Should an alleged imprint offence lead to a candidate exceeding the allowance for their expenses, this should be treated in the same way as any other breach of the spending limit.

There are also offences under RPA in relation to third parties who campaign for or against particular candidates. This is distinct from third parties who campaign for or against political parties, which are regulated under PPERA by the Electoral Commission.

Please note that while Returning Officers are required to provide copies of the election expenses return submitted by candidates to the Electoral Commission, the RO is not required to provide the invoices and receipts. The RO should, therefore, be approached in the first instance if invoices and receipts are required for any police investigation.

Offences relating to election spending or donations

The Commission is responsible for monitoring compliance with the legislative controls relating to candidates, agents and political party expenditure during an election campaign. If it appears that an offence has been committed relating to donations reporting by a candidate or political party or election spending by a political party, Dan Adamson or Richard Jordan at the Electoral Commission should be informed by the force election SPOC.

Evidence handling

Non-police partner agencies are largely from areas of the public sector where scene preservation or forensic awareness do not form part of their everyday activities.

Any election staff who may come into contact with election material should be provided with local authority guidance for handling evidence.

Local authority staff will need awareness of how to handle voter applications and ballot papers as well as how to secure suspicious items and continuity of the item prior to the police obtaining it.

The police should be working to guidelines on exhibits management.

Protecting and preserving evidence

Prior to the submission of any items for forensic examination, the existence of the elector should be verified. It should also be established if the elector consented to the application and the validity of the signature on the form should be established.

RPA 1983 places a legal requirement on officials involved in the election process on how to store certain documents and who can have access to them. This is especially important in relation to ballot papers which, depending upon the election type, will require an order of either the County or High Court.

Original documentation should be retained

An agreement should be in place for suspicious forms to be isolated and handled as little as possible. Envelopes and plastic document pockets can be used for this purpose. As partners may have little experience of forensic issues, the police should consider supplying items such as gloves and evidence bags, as required.

Where a number of suspicious postal ballot papers are received, it is possible to have them opened under controlled circumstances. This allows for the envelope and other documentation to be seized at the point of opening and for a pre-agreed identifier to be put in place, which can allow later identification of the ballot paper linked to that envelope and associated documentation.

Any packaging, eg, envelopes or carrier bags, should be retained and placed within a sterile container where possible.

Suspected forms/packaging should be seized by the police at the first opportunity. A statement should be obtained exhibiting each form/packet separately and cross-referencing the exhibit references where necessary within the statement.

While conducting reviews of material seized, it must be recognised that even when main parties have agreed to local and national protocols to refrain from completing or handling this form of material it is not illegal for them to do so. As long as the individual exists and has agreed to the form being completed and the individual has, of their own free will, signed the form no offence has been committed.

Policy management

It is the responsibility of the SIO to maintain a record of decisions in their policy record. Some partner agencies may not maintain logs of events or decisions so it is important that decisions made in conjunction with partner agencies are recorded. It may be beneficial on occasion to share policy decisions. The CPS should be made aware of the existence of a policy log.

Identifying witnesses

Every effort should be made to identify suspects and witnesses as early as possible. Failure to make early identification of witnesses and to obtain all evidence as soon as possible can damage any investigation. Witnesses may be placed under undue pressure not to assist with the police enquiry, and their evidence may become contaminated by the views and comments of others. Supporting evidence such as CCTV and forensic evidence should always be sought.

Unsubstantiated third-party allegations

Candidates may use each other’s background or political career and beliefs to gain advantage over their rivals during a political campaign. This can include making representations to the police, media and local authority which cannot be substantiated. Reporting alleged offences to the police can be a deliberate tactic to promote a candidate’s campaign by stating that another candidate or party is being investigated by the police. Once they have done this and achieved the outcome desired, they may have little appetite in taking their allegations further.

Any candidate or member of the public who makes an allegation of electoral crime or malpractice is required to provide a full (MG11) statement. This must record the allegation in full and provide what evidence they have to support it, otherwise there will be no investigation.

If a person refuses to provide a statement or cannot provide any supporting information or evidence, the information received may be dealt with as intelligence. They must be informed that if they make statements unsupported by evidence, no action may be taken. If it appears that the referral is malicious, the informant should be warned that making a false accusation could result in them being investigated for wasting police time or other serious offences. Hearsay alone will not be sufficient to start an investigation.

A robust approach should be taken when dealing with unsupported allegations. This will avoid wasting resources on investigating allegations that will never result in a prosecution.

The decision not to pursue any unsubstantiated allegation should be recorded and documented.

Exit strategy

It is important that complainants’ and witnesses’ expectations are managed appropriately. During political campaigning, tensions may be running high and the following guidelines must be met:

  • The force election SPOC should give reasons (in writing) why the investigation is not being continued and a copy of this retained. The local authority should be notified of the decision made (this may necessitate a joint press strategy to communicate any decision).
  • If relevant, an explanation of why the allegation does not constitute an offence, or how it may be managed should be provided, for example, issuing an advice letter for an imprint offence.
  • If a serious allegation is made or the complainant is persistent, a face-to-face meeting may be useful to explain the reasons why the case is not being pursued. The following roles may be invited to attend:
    • returning officer and/or ESM
    • commander/SIO
    • regional party representative or chairperson
    • community leader if appropriate
    • friend of the complainant or legal or party representative.

A record of the meeting should be made and any concerns of the complainant recorded. The dedicated CPS lawyer will not attend and this should be explained to the complainant prior to the meeting.

The meeting should detail the police investigation and outline the strengths and weaknesses of the case. A summary of the investigation process, anonymised as appropriate, should be discussed.

The rights of the complainant to make an official complaint are unaffected. The Electoral Commission will not investigate any complaints about a police investigation and the local authority will only investigate allegations made against its own staff about internal issues or procedures.

The force election SPOC may, if appropriate, advise the complainant of their right to seek legal advice regarding civil redress.

A note of discontinuance must be obtained from the CPS. This report must not be supplied to a complainant or third party but its contents may be referred to in any correspondence with a complainant.

Page last accessed 22 July 2018