Case No: 2004/05932 B4
Neutral Citation Number: [2005] EWCA Crim 3185
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 1st December 2005.

Before :

LORD JUSTICE ROSE
(Vice-President of the Court of Appeal Criminal Division)

MR JUSTICE SIMON

MRS JUSTICE DOBBS

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Regina 

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Terence Holding

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(Transcript of the Handed Down Judgment of
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Mr William McCormick appeared on behalf of the Appellant (Terence Holding)
Mr Gareth Patterson appeared on behalf of the Respondent
Mr Steven Kovats appeared on behalf of the Department of Constitutional Affairs

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Judgment
Mr Justice Simon: 

Introduction
1.	On 1 October 2004 at the Crown Court in Basildon, the Appellant was convicted of 3 offences of incurring unauthorised election expenses, contrary to s. 75(1) and (5) of the Representation of the People Act 1983 ("the 1983 Act"). He was sentenced to a conditional discharge for a period of 2 years and was ordered to pay the prosecution costs.
2.	The trial was presided over by HH Judge Goldstaub QC. On 29 September, having heard extensive legal argument, the Judge gave a ruling under s.40 of the Criminal Procedure and Investigations Act 1996 in relation to the impact of article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") to a charge under s.75 of the 1983 Act. 
3.	The Appellant appeals the conviction which followed the Judge’s ruling on this point.

The facts

4.	On 1 May 2003 local elections were held for the Castle Point Borough Council, which covers the area of Canvey Island in Essex. There were six candidates in the Cedar Hall Ward. Jennifer Howlett, George Wilson and Charles Smith were Labour candidates standing for re-election; Peter Burch, Norman Smith and Norman Ladzrie were Conservative Party candidates standing against them.
5.	The case against the Appellant was that, in the days leading up to the ballot, he had intervened in the election and, by doing so, he had incurred unauthorised election expenses. He had trailed banners from a small aeroplane that he owned and flew, and distributed leaflets by posting them and by dropping them from his aeroplane so that they fell across the area. Both the banners and the leaflets contained statements directed at the three Labour councillors.
6.	The banner which was the subject of count 1 of the indictment was flown from an aircraft piloted by the Appellant over the area on 26 April 2003. It contained the words "Vote for decency - out with poofs, pervs and thieves." 
7.	The leaflets that were the subject of count 2 were entitled "Election Alert" and made allegations and comments directed at each of the Labour candidates.
i)	It alleged that Jennifer Howlett, when she was Mayor of Castle Point, had been apprehended for shoplifting from Tesco’s at Pitsea; and had been subsequently barred for life from all Tesco stores. The leaflet went on to describe her as "this old trout"; and accused her of failing to declare an interest when she subsequently spoke and voted against a planning application by Tesco.
ii)	It alleged that George Wilson and Charles Smith were a "pair of darlings", who "each claimed single occupancy of the same home just to reduce their council tax", and who had "no visible form of income other than the Benefit System and yet are able to run a Rolls Royce". The leaflet asserted that a "vote for this pair of Queens is a vote for the repeal of s.28 and takes us further down the road of degeneracy".
The words, "Published by Terry Holding, Charfleets. No political affiliations" were printed on each leaflet. The Appellant was not the pilot of the aircraft when it dropped the leaflets. 
The Appellant accepted at trial that he had also sent copies of the leaflet by first class post to all households in Cedar Hill Ward.
8.	The banner which was the subject of count 3 was flown from an aircraft piloted by the Appellant over the area on 1 May, and contained the words, "Go and vote. Don’t let apathy win or pervs and thieves."
9.	The Appellant was neither a candidate nor an election agent; nor was he authorised by any of the candidates’ election agents to incur expenses at the Castle Point elections on 1 May. He appears to have taken the action he did because he felt that the 3 candidates named in the leaflets, and alluded to in the banners, were unfit to hold office.
10.	Although there was no evidence that the Appellant’s conduct had contributed to their defeat, in the event all three Labour councillors lost their seats. All the Labour candidates deny the aspersions made against them.
i)	Mrs Howlett had sued the Appellant for libel prior to the election. The sting of the libel was said to be an allegation that she was a thief and/or shoplifter. She relied on the banners and the contents of the leaflets in aggravation of damage. She was successful in her action; and, on 24 October 2003, the High Court granted a permanent injunction against the Appellant prohibiting him from using the same or similar words.
ii)	Mr Smith and Mr Wilson sued for libel in respect of the content of the banners and the leaflets. The sting of the libel was said to be an allegation that they were benefit fraudsters. A defence of justification was pleaded; and, in the event, both men withdrew their action.
11.	It is unnecessary to say anything further about the truth or otherwise of these allegations since the Appellant was not charged with any offence which made the accuracy of the allegations relevant.

The Representation of the People Act 1983

12.	At the heart of this appeal is the proper construction of s.75 of the 1983 Act. It will be necessary, later in this Judgment, to consider the historical development of the law. However, at the time that the prosecution was brought, s.75 appeared under a heading "Prohibition of expenses not authorised by the election agent"; and read as follows:
(1) No expenses shall, with a view to promoting or procuring the election of a candidate (or, in the case of an election of the London members of the London Assembly at an ordinary election, a registered political party) at an election, be incurred by any person other than the candidate, his election agent and persons authorised in writing by the election agent on account -
(a) of holding public meetings or organising any public display; or
(b) of issuing advertisements, circulars or publications; or
(c) of otherwise presenting to the electors the candidate or his views or the extent or nature of his backing or disparaging another candidate; or
(d) in the case of an election of the London members of the London Assembly at an ordinary election, of otherwise presenting to the electors the candidate’s registered political party (if any) or the views of that party or the extent or nature of that party’s backing or disparaging  any other registered political party.
but paragraph (c) or (d) of this subsection shall not -
(i) restrict the publication of any matter relating to the election in a newspaper or other periodical or in a broadcast made by the [BBC] or [SPC] or in a programme included in any service licensed under Part I or III of the Broadcasting Act 1990 or Part I or Part III of the Broadcasting Act 1996; or
(ii) apply to any expenses incurred by any person which do not exceed in the aggregate the permitted sum (and are not incurred by that person as part of a concerted plan of action), or to expenses incurred by any person in travelling or in living away from home or similar personal expenses.
(1ZA) For the purposes of section (1)(ii) above, "the permitted sum" means -
(a) in respect of a candidate at a parliamentary election, £500;
(b) in respect of a candidate at a local government election, £50 together with an additional 0.5p for every entry in the register of local government electors for the electoral area in question as it has effect on the last day for publication of notice of the election; …

Section 75(5) provides that any person who incurs expenses in contravention of s.75 shall be guilty of an offence.
13.	As we have already noted the Appellant was charged with two offences under s.75(1)(a) and (5): organising a public display in the form of flights with banners, and with one offence under s.75(1)(b) and (5) issuing circulars in the form of leaflets. He was not charged under s.106 which makes it an offence to publish a false statement of fact about a candidate, without being able to show both a belief, and reasonable grounds for the belief, in the truth of the statement.

The issues before the Judge

14.	The Defence argued as follows:
i)	Section 75(1)(a) and (b) engaged the Appellant’s right to freedom of expression guaranteed under Art.10 of the Convention.
ii)	An absolute bar on the incurring of expenditure under s.75(1)(a) and (b) was incompatible with Art.10, see Bowman v. UK (1998) 26 EHRR 1. Consequently
iii)	Section 75(1)(a) and (b) should be "read down" pursuant to s.3 of the Human Rights Act 1998 so as to allow the same level of expenditure as permitted under s.75(1)(c).
15.	These submissions were rejected by the Judge. In a carefully reasoned ruling, the Judge went through the legislative history. He accepted that the Appellant’s Art.10 rights were engaged by s.75(1)(a) and (b); but concluded that, on proper analysis, the Prosecution did not involve a violation of article 10 and that s.75(1)(a) and (b) did not violate the Appellant’s Art.10 rights. He ruled that there was an absolute bar to the incurring expenditure under s.75(1)(a) and (b); and that it was not permissible to read and give effect to the section in a way which would permit the same level of expenditure as permitted under s.75(1)(c).
16.	At the trial much of the evidence was agreed; and, in the light of the Judge’s ruling, the essential issue for the jury was whether the Appellant incurred the expenses in relation to the banners and the leaflets "with a view to promoting or procuring the election of a candidate." It was common ground that the "permitted sum", within the meaning of s.75(1ZA) was £73.28. There was evidence that the cost of the aviation fuel during the two flights made by the Appellant came to a total of about £26; and the Appellant gave evidence that the cost of sending copies of the leaflet by first class post to all households in Cedar Hill Ward amounted to over £1,000.

The Issues on the Appeal. 

17.	The issues between the Prosecution and the Defence on this appeal remain largely the same as those before the Judge; and focus on the extent to which the Judge was bound to give effect to the majority view of the European Court of Human Rights in the case of Bowman.
The Appellant also gave notice that he intended to seek a declaration under s.4 of the Human Rights Act that s.75(1)(a) and (b) of the 1983 Act are incompatible with Art.10 of the Convention. In these circumstances the Department of Constitutional Affairs ("the Department") has exercised its rights under s.5(2) of the Human Rights Act to be made a party to the Appeal.
18.	Mr Kovats, who appeared for the Department, submitted that:
i)	The "permitted sum" provisions applied to s.75(1) (a) and (b) as a matter of statutory construction; 
ii)	if not, the Court should apply s.3 of the Human Rights Act so that s.75(1) is read, and given effect, in such a way that the "permitted sum" provisions apply to s.75(1)(a) and (b);

The construction of s.75(1).

19.	In our view it is clear, as a matter of the normal reading of the words of s.75(1), that there is an absolute bar on incurring unauthorised expenses in relation to the matters covered by subsection (1)(a) and (b). The wording can be expressed shortly:
No expense shall … be incurred by any person other than [the specified persons] … on account of (a) …; or (b) …; or (c)…; or (d); 
but paragraph (c) or (d) of this section shall not … (ii) apply to expenses incurred by any person which do not exceed in the aggregate the permitted sum …

The proviso expressly applies to paragraphs (c) and (d); and paragraphs (c) and (d), being governed by the word "otherwise", apply to a residual class of activity not falling under paragraphs (a) and (b).
20.	The legislative history supports this construction.

The Legislative History

21.	Before 1918 there were limits on the election expenses of candidates and their agents; but no limits on the amounts that third parties might expend in an election. Section 34(1) the Representation of the People Act 1918 provided:
A person other than the election agent of a candidate shall not incur any expenses on account of holding public meetings or issuing advertisements, circulars or publications for the purpose of promoting or procuring the election of any candidate at a parliamentary election unless he is authorised in writing to do so by such election agent.
22.	It follows that under the 1918 Act there was a complete prohibition on unauthorised expenditure.
23.	Section 34 was considered by the Court of Criminal Appeal in R v. Hailwood [1928] 2 KB 277, where it was held that an intention to prevent the election of one candidate necessarily amounted to an intention to promote the election of any other candidate standing in the same election. At p.281 Avory J, delivering the judgment of the Court, observed that Parliament’s intention in enacting s.34 was to "put a stop to" the practice of third-persons incurring expenditure.
The position now is, in regard to expenses of the kind described in the section, that if the election agent has not authorised the expenses it is an offence to incur them; and that if he has authorised them he must return them as part of the candidate’s expenses.

24.	Section 34 of the 1918 Act was replaced by s.63 of the Representation of the People Act 1949. Section 63 of the 1949 Act retained the two categories of electoral expenditure referred to in s.34; but added a third category in respect of which, rather than having a complete prohibition on expenditure, it was permissible to incur expenses subject to a limit.
25.	It is clear from the way in which s.63 was framed that the intention of Parliament was to continue the complete prohibition on unauthorised expenditure incurred in relation to holding public meeting, organising public displays and issuing advertisements, circulars or publications, with a view to promoting or procuring the election of a candidate. In contrast, and in the circumstances set out in paragraph (c), a limited amount of expenditure was allowed (10 shillings or 50p).
26.	Section 63 of the 1949 Act provided:
(1) No expenses shall, with a view to promoting or procuring the election of a candidate at an election, be incurred by any person other than the candidate, his election agent and persons authorised in writing by the election agent on account -
(a) of holding public meeting or organising any public display; or
(b) of issuing advertisements, circulars or publications; or
(c) of otherwise presenting to the electors the candidate or his views or the extent or nature of his backing or disparaging another candidate:
Provided that section (c) of this subsection shall not -
(i) restrict the publication of any matter relating to the election in a newspaper or other periodical; or
(ii) apply to any expenses not exceeding in the aggregate sum of ten shillings which may be incurred by an individual and are not incurred in pursuance of a plan suggested by or concerted with others, or to expenses incurred by any person in travelling or in living away from home or similar personal expenses.

27.	We have been referred to the Parliamentary debates reported in Hansard in relation to paragraph (c). The Hansard Reports show that paragraph (c) was intended to cover such miscellaneous items as the purchase of party favours and the cost of a telegram telling someone to vote for a particular candidate. It is interesting to note, in the light of events which followed, that Mr J.C.S. Reid QC MP (as he then was) proposed that, rather than introducing a new undefined category in paragraph (c), all expenses at a low level should be permitted. The Attorney-General replied on behalf of the Government, that such a proposal was attractive in its simplicity, but
sometimes undue simplicity in legislation leads to complications in administration. 
These were fateful words.
28.	The 1983 Act was a Consolidation Act. Section 75 retained the distinction between expenditure in respect of which there was a complete prohibition (paragraphs (a) and (b)) and those in respect of which a level of expenditure was permitted. 

The Bowman Case

29.	In February 1998 the European Court of Human Rights considered a prosecution for an offence contrary to s.75 of the 1983 Act in Bowman v. U.K.  
30.	Mrs Bowman led an anti-abortion organisation, which considered that electors should be informed about the opinion of candidates regarding abortion and related issues; and distributed leaflets in Halifax about the voting records and attitudes to abortion of three candidates at the 1992 General Election. At the time the limit on expenditure under s.75(1)(c)(ii) had been increased from 50p to £5. 
31.	As a result of Mr Patterson’s researches we have seen the indictment in Bowman which shows that, in contradistinction to the present case, the charge did not specify the paragraph under s.75(1) which was alleged to have been breached. This may explain the lack of specificity in parts of the judgment of the European Court of Human Rights in the Bowman case, where no clear distinction is drawn between paragraphs (a) and (b), which contain an absolute bar, and paragraph (c), where a permitted sum is allowed. The indictment in Bowman charged Mrs Bowman with incurring "expenses of issuing publications …". This fell clearly within the absolute prohibition of paragraph (b). In the event, the prosecution of Mrs Bowman was dismissed by the Crown Court because the summons had been issued out of time. However, Mrs Bowman took her case to Strasburg arguing that the case should never have been brought against her.
32.	The Grand Chamber held by 14 votes to 6 that there had been a violation of Art.10. The majority stated (at paragraph 38) that s.75 had the purpose of contributing to securing equality between candidates; but that the section did not satisfy the test of necessity and was disproportionate.  
33.	Paragraph §47 of the Majority Judgment was expressed as follows:
In summary, therefore the Court finds that s.75 of the 1983 Act operated, for all practical purposes, as a total barrier to Mrs Bowman’s publishing information with a view to influencing the voters of Halifax in favour of an anti-abortion candidate. It is not satisfied that it was necessary thus to limit her expenditure to £5 in order to achieve the legitimate aim of securing equality between candidates, particularly in view of the fact that there were no restrictions placed on the freedom of the press to support or oppose the election of any particular candidate or upon political parties and their supporters to advertise at national or regional level, provided that such advertisements were not intended to promote or prejudice the electoral prospects of any particular candidate in any particular constituency. It accordingly concludes that the restriction in question was disproportionate to the aim pursued.
34.	In 1999 there was an amendment to the 1983 Act to take into account the fact that elections to the London Assembly are from a party list. The Greater London Authority Act 1999 inserted paragraph (d) into s.75(1) of the 1983 Act, and amended the provisos so as to permit limited expenditure in the circumstances covered by the newly introduced paragraph (d). 
35.	The reason for the 1999 amendment not addressing the Bowman decision was that the decision was being considered by the Committee on Standards in Public Life, under the Chairmanship of Lord Neill of Bladon. In paragraphs 10.51-10.71 of its 5th Report the Committee considered the implications of the Bowman judgment and made a recommendation as to how the Bowman decision could be satisfied. The recommendation did not address the possible difference between paragraphs (a) and (b) on the one hand and paragraphs (c) and (d) on the other. 
36.	Paragraph 10.61 reads:
The immediate effect of Bowman is that it will be necessary for the United Kingdom legislature to amend section 75 of [the 1983 Act] so as to raise the limit on expenditure above £5. We note that in connection with the recent election of the Northern Ireland Assembly the Government raised the limit to £100. We do not know what considerations persuaded the Government that £100 was the appropriate figure. It appears to us still to be a very small sum of money to be able to spend on circulating a leaflet within a constituency or on organising meetings during an election period

Paragraph 10.64 was as follows:

We suggest for consideration by the Government that the amended figure to be inserted in section 75(1)(ii) should be more than £100 and should be of the order of £500. We believe that this would provide an allowance sufficient to cover, for example, the production and distribution of a leaflet throughout a constituency or the publication of an advertisement in a local newspaper.
37.	Recommendation 54 of the Neill Committee was that
Section 75(1)(ii) of the Representation of the People Act 1983 should be amended to allow third-party spending in support of (or to the prejudice of) a candidate in a general election to be increased from £5 to £500.
38.	It is to be noted that the Neill Committee’s recommendation for satisfying the requirements implicit in the Bowman decision appears to have overlooked the fact that amending the "permitted sum" in s.75(1)(ii) would not affect the bar on expenditure on items covered by paragraphs (a) and (b). When the matter was debated in Parliament there appears to have been a similar oversight.
39.	Section 131 of the Political Parties, Elections and Referendums Act 2000 ("the 2000 Act") inserted subsection 1ZA into s.75 if the 1983 Act, increasing the permitted expenditure from £5 to £500 for a parliamentary election and £50 plus 0.5p per elector for local elections. It is clear from the Parliamentary debates that the Government’s intention was give effect both to the Bowman decision and the Neill Committee’s recommendations. 
40.	During the course of the debate in committee on 24 October 2000, the Minister (Lord Bach) said this:
The £5 limitation on third party expenditure has been held by the European Court of Human Rights in the case of Bowman v the United Kingdom to be tantamount to a total ban; and, as such, constituted an unjustifiable restriction on a person’s right to freedom of expression … It was not the principle of the limit that offended Art.10, but the particular limit of £5.
The Minister then quoted §10.64 of the Neill Committee which suggested the increase to £500 and commented. 
We believe that this would provide an allowance sufficient to cover, for example, the production and distribution of a leaflet throughout the constituency or the publication of an advertisement in a local newspaper.
41.	Again the problem created by the pre-existing framework of s.75, and the bar on expenditure on items which fell under paragraphs (a) and (b), was not recognised. 
42.	As Mr Kovats put it, a mistake was made because nobody considered the difference between paragraphs (a) and (b) on the one hand and (c) and (d) on the other, and Parliament "erroneously" worded s.131 of the 2000 Act so as to increase the permitted expenditure proviso in respect of paragraphs (c) and (d) only.

The argument

43.	On behalf of the Department, Mr Kovats relied on the errors which we have sought to identify. He argued that the Bowman Judgment, the Neill Committee and the words of the Minister are all admissible to establish the mischief that s.131 of the 2000 Act was intended to address; and relies on the words of Lord Millett in Ghaidan v. Godin-Mendoza [2004] 2 AC 557 at §60:
Ordinary principles of statutory construction include a presumption that Parliament does not intend to legislate in a way which would put the United Kingdom in breach of its international obligations. 
On this basis, he submitted that the Court should construe s,75 as if the permitted sum proviso applied to all of paragraphs (a) to (d).
44.	We do not accept that submission. The legislative history shows that, in each of the 1918, 1949 and 1983 Acts, there was a prohibition of all unauthorised third party expenditure on the matters now specified in paragraphs (a) and (b) of s.75(1). That approach was replicated in the 2000 Act. We do not consider that a recognition that a mistake was, or may have been, made in the drafting of s.131 of the 2000 Act entitles this Court to put matters right by any ordinary principle of statutory construction.
45.	For the Prosecution, Mr Patterson submitted that we should take a different course. He argued that, although s.2(1)(a) of the Human Rights Act required the Court to "take into account" judgments of the European Court of Human Rights, this Court was not required to follow the decision of the majority in the Bowman case. He invited us to follow the minority view that the terms of paragraphs (a) and (b) of s.75(1) were not in conflict with Art.10. While we accept that there is little in the reasoning to suggest that Art.10 rights would have weighed so heavily in the balance on the facts of the present case, we are not persuaded that we should disregard the views of the majority expressed on the particular section with which we are dealing. It is clear that both the Neill Committee and the Government considered that the majority view should be followed and implemented in domestic legislation. We share their view.
46.	The relevant question on this appeal is, in our view, whether this Court should apply s.3 of the 1998 Act. Section 3 is headed "Interpretation of legislation" and provides:
(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with Convention rights.
47.	On this point all parties referred us to the leading case of Ghaidan (see above). In our view the following principles emerge from that case:
i)	Section 3 is an interpretive and not an amending provision. Parliament has retained the right to enact legislation which is not Convention compliant, see Lord Nicholls at §30 and 33. 
ii)	In looking for the intention of Parliament, due weight must be given to the intention evidenced by s.3 of the 1998 Act itself, see Lord Steyn at §40. 
iii)	Section 3 is not dependant on finding an ambiguity or absurdity in the text in order to bring it into conformity with a convention right, see Lord Nicholls at §29, Lord Steyn at §44 and Lord Millet at §67. 
iv)	Where section 3 comes into play, it obliges the Court to give an abnormal construction to the statutory language and one which cannot be achieved by resort to standard principles and presumptions, see Lord Millett at §60; and the words of Lord Nicholls at §31
…once it is accepted that section 3 may require legislation to bear a meaning which departs from the unambiguous meaning the legislation would otherwise bear, it becomes impossible to suppose Parliament intended that the operation of section 3 should depend critically upon the form of words adopted by the parliamentary draftsman in the statutory provision under consideration.
However, 
v)	Section 3 cannot be used to go "against the grain" of the legislation, see Lord Nicholls at §33 and Lord Rodger of Earlsferry at §121. 
vi)	Section 3 is the primary means of ensuring compatibility with Convention rights, and a declaration of incompatibility is a last resort, see Lord Steyn at §46.
vii)	The precise form of words read in for the purpose of s.3 is of no significance. "It is their substantive effect which matters", see Lord Nicholls at §35.
48.	Adopting this approach we are quite satisfied that the permitted sum proviso should be applied to paragraphs (a)-(d) of s.75 of the 1983 Act. If it were necessary to be more specific we would read down the words of s.75 by deleting the word "or" after the words in sub-paragraph (i) and inserting the words, "and this subsection shall not", at the start of sub-section (ii). We note that clause 27 of the Electoral Administration Bill, which is designed to correct the previous drafting error, adopts this approach.

The Outcome of the Appeal

49.	It follows that in our view, HHJ Goldstaub QC was right to rule that s.75(1) was compatible with Art.10 of the Convention; but was wrong to rule that there was an absolute bar in unauthorised third party election expenses in relation to the matters specified in paragraphs (a) and (b). It follows that the Judge misdirected the Jury when he told them that the Appellant "was not allowed to promote a candidate by incurring any election expenses", see p.4e of the transcript of the summing up.
50.	It was agreed at the trial that the expenses incurred in the flights were some £12 and £14 respectively, being the cost of the aviation fuel. As these sums were less than the permitted sum allowed under the proviso the convictions on count 1 and 3 must be quashed. In reaching this conclusion we would not, however, wish to be taken to have agreed that the permitted sum is to be calculated by reference only to the fuel cost of a flight.
51.	Because there was Prosecution evidence from which an inference of excessive expenditure could be properly be drawn, there was a case to answer on the cost of producing the leaflets under count 2, as Mr McCormick was bound to accept. The Appellant gave evidence that the cost of producing the leaflets was over £1,000, which was considerably in excess of the permitted sum. It was not, and could have been, argued that the current limit on the permitted sum was incompatible with Art 10. It follows that, despite the misdirection, the conviction of the Appellant on count 2 was safe.
52.	Accordingly we quash the convictions under counts 1 and 3 and uphold the conviction under count 2. To that extent the appeal is allowed.