Sharma v Director of Public Prosecutions

For the criminal offence of knowingly making a false election-expenses declaration, the prosecution must prove both falsity and knowledge of falsity. An honest belief in the completeness and accuracy of the return is a complete defence. The candidate must examine the return sufficiently to be able honestly to make the statutory declaration, but the legislation does not impose an audit duty or make the candidate criminally responsible for the election agent’s dishonesty. Reliance on an agent is not, by itself, enough if the candidate has not examined the return at all. Where the candidate has examined it and honestly believed it correct, a conviction under section 82(6) of the Representation of the People Act 1983 cannot stand.

Dr Dev Sharma appealed by way of case stated from his conviction at Thames Magistrates’ Court for knowingly making a false declaration concerning election expenses in a 2002 bye-election. The declaration stated that he had examined his agent’s return and believed it complete and correct. The return recorded a £630 payment, although most of the underlying bill remained unpaid when the declaration was made.

The district judge accepted Dr Sharma’s evidence and honesty but held that his brief examination, focused on whether total expenditure was within the permitted limit, was insufficient. The central issue was whether the statutory declaration required a candidate to audit the agent’s work and investigate whether the agent had acted honestly.

1. Appeal allowed. The answer to the case stated was no. The conviction was set aside, and the successful appellant was awarded costs out of central funds, subject to assessment.
2. Section 82(6) of the Representation of the People Act 1983 creates a criminal offence requiring dishonesty. It is not an offence of negligence or absolute liability. The statutory scheme makes the election agent responsible for the candidate’s election expenditure, subject to limited exceptions. The candidate’s and agent’s duties remain separate and personal.
3. The elements identified in Jones v Whicher [1999] 2 Crim App R 253 were accepted: the defendant must have made the required declaration; the declaration must have been false because expenses were omitted or understated; and the defendant must have known it was false. An honest belief in the declaration’s truth, completeness and accuracy is a complete defence.
4. That summary was not exhaustive. A candidate who had not examined the return at all could knowingly make a false declaration that he had examined it. But a candidate who had examined the return and honestly believed it complete and accurate would not commit the offence merely because the agent had concealed unpaid expenses. The law did not require the candidate to perform an audit or investigate whether the agent was deceiving him.
5. The statutory provisions were interpreted consistently with the reasoning of Gibson J in the Irish decision concerning the Eastern Division of the County of Cork [1911] 6 O'M & H 318: the agent’s statutory duty and knowledge could not be imposed or imputed to the candidate. On the accepted facts, Dr Sharma examined the return, honestly trusted his agent and believed the declaration correct. His conviction therefore could not stand.

• High Court (Administrative Court): allowed the appeal by way of case stated from the conviction at Thames Magistrates’ Court. The court answered the stated question in the negative.