Holding, R. v

On its ordinary wording, section 75 of the Representation of the People Act 1983 imposed an absolute bar on unauthorised third-party expenditure for public displays and publications. However, section 3 of the Human Rights Act 1998 required a compatible reading. The permitted-sum exception had to extend to all categories in section 75(1), rather than only the residual categories expressly named.

That reading did not go against the grain of the legislation. It preserved a proportionate limit on electoral spending and avoided an unjustified restriction on freedom of expression under article 10.

The appellant was convicted at the Crown Court at Basildon of three offences of incurring unauthorised election expenses contrary to section 75 of the Representation of the People Act 1983. The expenses concerned two aircraft banners and election leaflets distributed during a local election. He was neither a candidate, an election agent, nor authorised by an election agent.

The trial judge held that section 75(1)(a) and (b) imposed an absolute bar on the expenditure and that the permitted-sum exception did not apply. On appeal, the central issue was whether that construction was compatible with article 10 and, if not, whether section 3 of the Human Rights Act 1998 required the provision to be read differently.

1. Appeal allowed in part. The court quashed the convictions on counts 1 and 3, concerning the banners flown from aircraft, but upheld the conviction on count 2, concerning the leaflets.

2. On ordinary statutory construction, section 75(1) of the Representation of the People Act 1983 drew a deliberate distinction. Paragraphs (a) and (b), covering public displays and publications, imposed an absolute bar on unauthorised third-party expenses. The permitted-sum proviso expressly applied only to the residual activities in paragraphs (c) and (d). The legislative history confirmed that construction.

3. The court nevertheless accepted the majority view in Bowman v. UK [1998] 26 EHRR 1. A total practical barrier to third-party election expression was disproportionate under article 10. The court declined to follow the minority view in that case.

4. Applying the principles in Ghaidan v. Godin-Mendoza [2004] 2 AC 557, section 3 of the Human Rights Act 1998 required the court to give section 75 a Convention-compatible meaning. Section 3 permits a construction departing from the otherwise unambiguous wording, provided it does not go against the grain of the legislation. Extending the permitted-sum proviso to paragraphs (a) to (d) met that requirement. The precise words used to achieve the reading were immaterial.

5. The fuel costs of the two flights were below the agreed permitted sum of £73.28. The jury had therefore been misdirected and those convictions could not stand. There was, however, evidence that the leaflet production and distribution costs exceeded £1,000. The misdirection did not render that conviction unsafe.

• Court of Appeal (Criminal Division) — allowed the appeal in part, quashing two convictions and upholding one.
• Crown Court at Basildon — on 1 October 2004, convicted the appellant of three offences under section 75 of the Representation of the People Act 1983, following a ruling that the permitted-sum exception did not apply to section 75(1)(a) or (b).