Some Late Expenses Submissions in 2008

Some Late Expenses Submissions in 2008

Back in 2008, there were elections for Deputies and Senators.

In April 2009, a good five months after the Deputy elections, Deputy Trevor Pitman asked the question:

"Will H.M. Attorney General explain what legal action, if any, can be taken against a number of candidates (successful and unsuccessful but all ‘independents’) in the 2008 Deputies elections who, well into 2009, had still not supplied details to the Judicial Greffe, as required by law, of their electoral campaign expenses? "

The law at that time came under the Public Elections (Expenditure and Donations) (Jersey) Regulations, 2008. This was replaced in 2014 by the Public Elections (Expenditure and Donations) (Jersey) Law 2014.

The wording was remarkably similar in respect of election expenses:

“A candidate who fails, without reasonable excuse, to deliver a declaration, or further declaration, in accordance with this Regulation is guilty of an offence and liable to a fine."

That is identical to current wording. Also identical - the regulations also specified the same 15 days for submitting expenses – or facing a fine.

But there was a significant difference. Guilty of an offense meant liable to a fine, but it did not mean automatic disqualification from office – that came only in the 2014 regulations under article 18 which was linked to submissions as well as breaches of expenses - indeed everywhere the phrase "guilty of offense" was stated in the old regulations and taken to the new..

Article 18 of those regulations specified that anyone guilty of an offense, if elected, would automatically be disqualified, although they could stand again if they wanted to. Looking at the Hansard of the States sitting at the time, the focus of discussion was entirely on breaching expense guidelines, not late submission of expenses.

No one queried the additional penalty under that article would also apply to the late submission, and considerably change its legal meaning. Why should they? For all intents and purpose, the article read the same - and was probably understood by members voting on it as meaning the same – namely that a late submission was an offense which would be liable to a fine.

That is how the law had read, and no one, even Jeremy Macon who was proposing it, highlighted that it had now changed. All he said was:

“Article 18 contains important new provision about the consequences of conviction. This provision could not be included in the Triennial Regulations but is included in this draft law. As can be seen, a person who has been elected but who is convicted of an offence of breaching this law will be disqualified from office.“

Roy Le Herrissier spoke against Article 18, but only on the grounds of its giving a second change

“Well, you can get another chance and put yourself forward to see whether the public feel, as some kind of quasi-jury, you are okay to run again.” I think is very wrong and I think we should be up front with people and say one way or the other and not lead to this, quite frankly, excruciating public kind of debate.”

When the matter came up about people being charged for breaking the law, it was clear that Jeremy Macon had breaching expenses in mind alone: “Why charge them? Again, because we discussed this and if you were to leave some sort of discretionary amount, say for example there would be a discretion of perhaps plus 10 per cent, then the new threshold will just become plus 10 per cent, and therefore all you are doing is increasing the overall amount.”

He didn’t consider the paragraph on late submission at all, although clearly it is mentioned in Article 18!

The Attorney-General noted in his reply to Trevor Pitman in April 2009:

“The legal – as opposed to political - enforcement mechanism for these Regulations lies in the bringing of a criminal prosecution. Such a prosecution will be considered in cases where a file is prepared by the police and passed to the Law Officers’ Department, or alternatively to a Centenier, for a decision as to whether or not to prosecute.”

“The lodging of this question last week led me to make some enquiries of the Judicial Greffier. I understand there are two candidates from the Deputies’ elections, neither of whom were elected, who have not yet filed a note of their election expenses as the Regulations require. I believe the Greffier is pursuing that matter to the extent he can. As far as I am aware, the Law Officers Department have as yet received no such police files for consideration in relation to the 2008 Deputies’ elections.”

The Deputies elections took place in October, so there was a significant gap, but no action was taken.

Later, in 2011, Deputy Pitman asked the new Attorney-General the following:

“Would the Attorney General advise whether any of the 2008 election candidates, successful or otherwise, failed to comply with the Public Elections (Expenditure and Donations) (Jersey) Regulations 2008 requiring that they provide full details of their campaign expenses, and if so, would he specify which roles they were standing for (e.g. Senator, Deputy or Connétable), who the candidates were and what sanctions they faced, having failed to comply? If none, what was the reason for this?”

This gave rise to the following extra information:

“In relation to the current question I have made further inquiries and am informed by the Deputy Judicial Greffier that one expenses return remains outstanding and that the candidate, who was unsuccessful, had left the island shortly after the election and remains outside the jurisdiction. As a result no investigation could be concluded and it accordingly remains the case that no investigation files have been received by my department.”

Clearly, although there was a late submission by at least one candidate for Deputy – although an unsuccessful one – no action was taken, no prosecution brought, no fine levied.

The grounds for the delay are not stated, but evidently it was taken that the intent of the law – as opposed to the letter of the law – was to ensure expenses declarations were received in a timely manner, and clearly once they had been submitted in the case of one candidate still in Jersey, it was deemed not in the public interest to pursue the matter further.

So why should this case of Deputies Wickenden, Raymond and Mr Manning be different? After all, they all submitted their expenses, albeit outside of the 15 days requirement.

What needs to be answered is why a late submission was not deemed liable to prosecution and a fine in 2008 – when it was eventually received – and yet it is now?

It seems wholly unfair that some slack was given in the public interest in 2008 which is not given now. Legal decisions should show some degree of consistency with precedent, and if they do not, it should be explained why the precedent should be overturned.

And while the law has changed since 2008, part of the penalties remain identical - the fine for late submission - so if that was not pursued then, one wonders if any documentation or minutes were made of that decision. I suspect it was not deemed in the public interest, but unless someone from the Judicial Greffe checks, we shall not know.

And finally, why wait all this time before bringing a case? This is surely one of the oddest aspects. It is not as if there is any leeway in the strict letter of the law, so why the delay? That does not look good as far as justice is concerned, and it looks ever more like someone deciding to make a point, rather than just applying the law once it was broken.