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IN THE IDGH COURT OF WSTICE

Claim No: C0/6545/2016

QUEEN'S BENCH DIVISION


CARDIFF DISTRICT REGISTRY
IN THE ADMINISTRATIVE COURT IN WALES
BETWEEN:
(1) JONATHAN BISHOP
(2) CRQCELS COMMUNITY MEDIA GROUP
Claimants
and

THE ELECTORAL COMMISSION


------------

Defemtant

SUMMARY GROUNDS FOR CONTESTING THE CLAIM

1.

The Defendant (D) resists the entirety of the Claimants' (Cs) claim and contends that

Cs should be refused permission to bring their claim.

All references to page numbers are to the paginated appendix to these Summary Grounds
unless expressly stated otherwise. Page numbers in the appendix are in the bottom right hand
comer of each page and are in the form "'P.l, P.2, etc.). For ease of reference and
completeness the appendix contains all the statutory materials referred to in these Summary
Grounds.

The decisions which Cs seek to judicially review

In the claim form Cs contend that they should be given permission to bring a claim

2.

for judicial review of three decisions taken by D:


a decision to investigate a potential electoral offence committed by Mr Jonathan

2.1

Bishop (Cl);

2.2

a decision that D was satisfied beyond reasonable doubt that C 1 had committed an
electoral offence contrary to s.47(1)(b) of the 2000 Act; 1

2.3

a decision to publish its finding to that effect.

Brief factual background to the claim


3.

D is an independent body set up under the Political Parties, Elections and

Referendums Act 2000 (the 2000 Act). Its functions are set out in the Act. They include
regulating the compliance by, amongst others, political parties and associated persons with
statutory requirements contained in the 2000 Act and other legislation.2 The statutory
requirements contained in the 2000 Act include a number of obligations on the treasurers of
political parties. Of particular relevance to this case is the obligation on the treasurer of a
registered party to submit an annual statement of accounts. 3 Failure to deliver a statement of

lP.24
2 2000

Act, s.145 (P.35)

2000 Act, s.45 (P.23)

accounts to D within the prescribed period, without a reasonable excuse, is a criminal


offence.4

4.

Action on Digital Addiction and Cyberstalking (ADAC) was a political party

registered by the Commission under the 2000 Act. ADAC was first registered with D as a
minor party on the 21st March 2012 as "The Pluralist Party''. A minor party is a party which
makes a declaration that it intends only to contest one or more parish or community
elections.5 The 2000 Act imposes less onerous reporting requirements on a minor party. For
example, a minor party is not required to submit an annual statement of accounts. 6 On the 18th
March 2015 "The Pluralist Party'' changed its party status from a minor party to a political
party, and as such became liable to comply with the requirement under s.45 of the ?OOO Act
to deliver an annual statement of accounts to D.7 On the 26th October 2015 "The Pluralist

Party" changed its name to ADAC. ADAC's constitution and financial scheme appear at
times to conflate ADAC and an entity called "The Crocels Cooperators Party''. ADAC's
constitution refers to ADAC being a member of "Crocels Community Media Group" (C2). D
only regulates political parties required to register under the 2000 Act: accordingly, D only
regulates ADAC under the provisions of the 2000 Act.

5.

ADAC's financial year end was the 31st December. ADAC's gross income or total

expenditure in that financial year did not exceed 250,000 and accordingly its statement of
accounts was exempt from a requirement of being audited.8 The deadline for submitting the

2000 Act, s.47 (P.24)

2000 Act, s.28(2)(d) (P.11)

2000 Act, s.34 (P.17)

7P.23
8

2000 Act, s.43(1) (p.21)

2015 statement of accounts was therefore the 30th April 2016.9 No such statement of accounts
was filed by ADAC's treasurer, Cl, within the required time.

Distinctly, ADAC's treasurer, Cl was required to confirm to D by the 31st October

6.

2016 that ADAC's details on the register of political parties remained accurate or to update D
if any changes had occurred. 10 No such confirmation or notification was filed with D. D is
required to deregister political parties if they fail to confirm their registered particulars in any
given year. 11 Accordingly, on the 18th November 2016, ADAC was statutorily deregistered by

D.

7.

On the 14th November 2016, in accordance with D's Enforcement Policy, D

commenced an investigation into Cl's failure to file a statement of accounts pertaining to


ADAC within the requisite time. On the 22nd November 2016 D wrote to Cl, as the treasurer
of ADAC, to ask him to submit the missing statement of accounts and to explain why the
statement of accounts had'not been filed within the time required by s.45(1), that is by the 30th
April 2016. Cl replied by an e-mail sent at 20:11 on the 22nd November 2016, and 3 e-mails
sent in the early hours of the 23rd November 2016, all within% hour of each other, at 01:13,
01:31and01:50.

8.

The 4 e-mails have something of an unfocused quality. The first had a letter attached

dated the 22nd November 2000 which stated that it should be treated:

2000 Act, s.45(1) (P.23)

10

2000 Act s.32(1) (P.15)

11

2000 Act, s.33(2A) (P.16)

"as a counter-claim under the pre-action protocol for judicial review in respect of
the decision to deregister the party and professional negligence against Josh Dune."

As D understands the claim form, the claim now advanced by Cs does not seek to judicially
review D's decision to deregister ADAC.

9.

The 4 e-mails appeared to offer the following explanations for the failure to file

ADAC's statement of accounts within the time required by s.45(1) of the 2000 Act. 12

9.1

"The reason I did not submit the accounts is simple. I was told by Josh Dune that
after enough quarters ofNIL returns I would not have to make any more. When I
logged into the website it confirmed that I did not have to make any .fwther
submissions. Therefore, because the party's annual accounts were a NIL return, it
was my understanding that I did not need to submit them. On receiving notification
from Josh Dune that the party was deregistered and speaking with him personally, I
immediately logged into the website to submit the accounts as a NIL return."

9.2

"The Crocels Cooperators Party, trading as Action on Digital Addiction and


Cyberstalking ("the party"), is a member of the Croce ls Community Media Group,
whose accounting period started on 1January2015 and ended on 30June 2016, and
therefore the accounts were submitted within time based on the Group's financial
year, namely 30 November 2016. We have not been given the opportunity to update
our records to reflect this.financial year."

12

P.23
5

10.

C 1 eventually submitted a statement of accounts for ADAC for the year ending the

31st December 2015 on the 5th December 2016, some 219 days after they should have been
submitted to D. The party's accounts reported no income and no expenditure during the
financial year ending the 31st December 2015, confirming that the accounts were due no later
than 30 April 2016. 13

11.

On 16 December 2016, having considered all C 1's representations, D concluded its

investigation into Cl's failure to file ADAC's statement of accounts for the year ending 31st
December 2015 within the time required by s.45(1)1 4 of the 2000 Act and concluded that:
11.1

it was satisfied beyond reasonable doubt that C 1 had committed an offence contrary
to s.47(l)(b)1 5 of the 2000 Act, in that Cl, being the registered treasurer of the
registered political party ADAC, had in breach of s.45(1 )1 6 of the 2000 Act, without
reasonable excuse, failed to file with D a statement of accounts pertaining to ADAC
within the requisite time;

11.2

but, decided in its discretion not to seek to impose any fixed monetary penalty on C 1
pursuant to its powers under the 2000 Act, given all the circumstances of the case.

12.

On the 20th December 2016, D wrote to Cl, informing him of its decisions as set out

in the preceding paragraph and informing him that it would publish the results of its
investigation on the 17th January 2017 on D's website.
13

2000 Act, s.43 and s.45 (P21 and P.23)

14

P.23

15

P.24

16

P.23

Procedural background
13.

On the 23rd December 2016, Cs issued an application on an urgent without notice

basis, purportedly "in pending proceedings", seeking a prohibitory injunction restraining D


from publishing details of the results of its investigation. That application came before
District Judge Carson on the day it was issued. C 1 was present at the hearing before the
District Judge. The District Judge refused to hear the application on a without notice basis and
ordered that the application should be heard on notice to D on the first open date after the 2nd
January 2017. On the 29th December 2017, the Court issued the order made by the District
Judge and listed the on notice hearing for the 6th January 2017. On the 23rd December 2016, in
Cl's presence, the District Judge also ordered that:

"The

r' Claimant and the J!'a Claimant do by 12:00 noon on 30 December 2016 issue

and serve 'U[JOn the Defendant their claim with prescribed documents, and do by that
time serve the said application, its supporting documents and this Order 'U[JOn the
Defendant."

14.

Cs breached the District Judge's order in that it transpires that Cs did issue a claim for

judicial review on the 30th December 2016, but did not contrary to the order serve it on D
until around 14:30 on the 5th January 2017. Cs and D had been in frequent e-mail contact in
the interim, but Cs chose not to serve the claim form until the day before the return date of
their application for an injunction.

15.

Cs application for an injunction crone before His Honour Judge Keyser QC sitting as

an additional judge of the High Court of Justice on the 6th January 2017. Cs did not attend.
His Honour Judge Keyser QC, applying the test in R (on the application ofMedical Justice) v
Secretary ofState for the Home Department [201 O] EWHC 1425 (Admin) for the grant of a
prohibitory injunction on an interim basis in a judicial review claim, dismissed the application
giving two reasons in his judgment:
15.1

that Cs underlying claim (Cs claim form was before the learned Judge) had no real
prospect of success at trial; and

u
15.2

in any event, the balance of convenience would strongly favour allowing D to publish
the outcome of its investigation, thereby allowing D to perform its statutory functions
in accordance with its published policy and in a fully transparent way.

16.

His Honour Judge Keyser QC ordered Cl to pay D's costs of the application

summarily assessed in the mnount of 5, 160.

u
17.

D understands that Cs have been before the courts since on various applications.

Consistent with Cs approach to the unsuccessful application for an injunction those


appearances have been without notice to D. As far as D is aware all Cs applications were
unsuccessful. Amongst the applications is an application to stay the judicial review process to
allow Cs to pursue D's internal complaints process. That aspect has been adjourned for
consideration on paper after determination of Cs' application for permission. D's complaints
process relates exclusively to "issues of customer service" and it is considered that as such it
will not be relevant to the complaints advanced by Cs. If Cs are granted permission, it is
respectfully contended that a stay would not be appropriate.

Despite the fact that it is somewhat unusual for a defendant to file evidence at this stage in the
process, given that a witness statement was filed by D in opposition to Cs' application for an
injunction and is to hand and addresses the issues raised in the claim, it is appended to this
document.

The claim
It is not entirely easy to identify the essential elements of Cs' case. In the claim form

18.

Cs contend that they should be given permission to bring a claim for judicial review of the
three decisions listed in paragraph 2 above.

-------------------------------------------------

19.

The relevant statutory provisions under which the various decisions were made are:

19.1

s.45(1)17 of the 2000 Act which, imposes an obligation on the treasurer of a registered
political party to file a statement of the party's accounts with D within 4 months (if
the accounts are exempt from auditing requirements contained in s.43 18 as ADAC's
are) of the end of its financial year.

19.2

s.47(1)(b)1 9 of the 2000 Act, which makes it a criminal offence to breach the
obligation contained in s.45(1)2 without reasonable excuse.

17

P.23

1s P.21
19

P.24

20

P.23

19.3

Schedule 19B21 to the 2000 Act, which provides D with investigatory powers where it
believes that an offence under the 2000 Act may have been committed.

19.4

Part 1 of Schedule 19C22 to the 2000 Act, which confers civil enforcement powers
upon D. It will be seen that the way in which those civil enforcement powers operate
is that if D is satisfied that a person has committed an offence under the Act then D
may take civil enforcement action. That action can take 2 forms: the imposition of a
fixed monetary penalty23 and/or the imposition of a discretionary requirement24 upon
that person.

In the present case, it is principally the powers to impose a fixed monetary penalty
which appear to have been foremost in D's mind. Where D proposes to issue a notice
imposing a fixed monetary penalty against a person, it must first issue a notice of its
proposed intention giving the person an opportunity to pay the proposed penalty or a
specified lesser sum or to make representations regarding why no fixed monetary
penalty should the imposed (a paragraph 2(1) notice). 25 If a person who receives a
paragraph 2( 1) notice makes representations, they must be considered by the D and a
decision will then be made whether or not to issue the notice imposing a fixed
monetary penalty (a paragraph 2(4) notice). 26 If such a notice imposing a fixed

21

P.37

22

P.49

23

Part 1 of Schedule 19C to the 2000 Act, paragraph l(l)(a) (P.51)

24

Part 1 of Schedule 19C to the 2000 Act, paragraph 5(1)(a) (P.54)

25

Part 1 of Schedule 19C to the 2000 Act, paragraph 2 (1) to (3) (P.52)

26

Part 1 of Schedule 19C to the 2000 Act, paragraph2(4) and (5) (P.52)

10

monetary penalty is imposed upon a person, they may appeal that notice to the
County Court.27

If a person served with a paragraph 2(1) notice pays the sum specified in it, they
cannot then be convicted of the offence to which the notice relates.28 Similarly, if a
person is made the subject of a paragraph 2(4) notice, they cannot then be convicted
of the offence to which the penalty relates.29
It will be noted that even where D is satisfied beyond reasonable doubt that an
offence under the provisions of the 2000 Act has been committed by a person, D
retains a discretion as to whether to seek to impose a fixed monetary penalty upon
that person: paragraph 1(1) specifies that "The Commission may by notice impose a
fzxed monetary penalty on a person

if satisfied beyond reasonable doubt that the

person ... has committed a prescribed offence under this Act ... " 30 It is that discretion

which D exercised in the C 1's favour in the present case.

19 .5

Schedule 2031 to the 2000 Act, which specifies what the penalty for various offences
under the 2000 Act may be, including an offence contrary to s.47(1)(b).32 Such an
offence is summary only and is punishable upon summary conviction by a fine not
exceeding level 5.

27

Part 1 of Schedule 19C to the 2000 Act, paragraph 2(6) and (7) (P.52)

28

Part 1 of Schedule 19C to the 2000 Act, paragraph 4(1) (P.53)

29

Part 1 of Schedule 19C to the 2000 Act, paragraph 4(2) (P.54)

30

Part 1 of Schedule 19C to the 2000 Act, paragraph l(l)(a), emphasis added (P.51)

31

P.71

32

P.71
11

20.

The basis for the challenge to each of the decisions is not explicitly given in the claim

form but the decisions appear to be challenged on grounds of irrationality and/or on the basis
that the decisions were inconsistent with the Human Rights Act 1998.

21.

Cs' main complaint appears to focus upon a statutory defence to the electoral offence

under s.47 .33 The offence is committed unless the registered treasurer of a party has "a
reasonable excuse." C's contention appears to be that Cl had a reasonable excuse, which the

Respondent has rejected or ignored irrationally. In fact D gave careful consideration to the
"reasonable excuse" defence and rejected it on rational grounds.

22.

As the Respondent understands Cs' case the following arguments appear to be made

for the contention that C 1 had a reasonable excuse for his failure to file a statement of
accounts pertaining to ADAC by the 30th April 2016:
22.1

Cs contend that C 1 became confused as to his obligations under s.45(1 )34 following a
conversation with a representative of D (a Mr Josh Dunne). Cs claim that, having
been informed that because 4 consecutive nil quarterly returns had been filed there
was no obligation to file a further quarterly return unless a donation or loan was

received, C 1 concluded that there was no obligation upon him to file an annual
statement of accounts.

This argument confuses two distinct obligations to which C 1 was subject. In addition
to the s.45(1) obligation, the treasurer of a registered party is also obligated to file a
quarterly return regarding donations and loans made to the party.35 If a registered

33

P.24

34

P.23

35

2000 Act, s.62 as to donations and s.71M as to loans (P.25 and P.29 respectively)

12

party has filed 4 consecutive quarterly returns pursuant to that obligation showing the
receipt of no donations or loans then it need not thereafter file another quarterly
return, unless it receives a donation or a loan. 36
As Cs' case is understood, C 1 contends that as a result of a conversation with Mr
Dunne ofD on the 18th November 2016 in which Mr Dunne explained that no
quarterly return (required by s.62 and s.71M of the 2000 Act}3 7 need be filed as a
result of the application of a relevant exemption, C 1 assumed that and genuinely
although mistakenly believed that no statement of accounts (required by s.45(1)) need
be filed.

(\,
Importantly, it is not alleged that Cl was ever told that there was no obligation on
him to file an annual statement of accounts. Nowhere in D's records is there any
indication that Cl was told that either. Accordingly, it is not accepted that any
-------------------------

--------~--------.

misleading advice was tendered and not accepted that any confusion as to Cl's
obligations arose as a result of anything said or done by D.

If Cl was confused as to his obligations it is because he failed to properly acquaint


himself with his obligations under the 2000 Act.

There is a more straightforward answer to Cs point. The s.45(1) statement of accounts


was due by the 30th April 2016. A conversation to which the Cl was a party held on
the 18th November 2016 (6 months later) cannot possibly have constituted a
reasonable excuse for failing to submit the statement of accounts on time. D has no
record of a conversation between C 1 and Mr Dunne prior to the 18th November 2016
in which filing obligations of any sort were discussed. There is no record of a

36

2000 Act, s.62A as to donations and s.71P as to loans ((P.27 and P.33 respectively)

37

P.25 and P.29 respectively

13

conversation broaching upon Cl's filing obligations relating to quarterly returns, a


return relating to ADAC's registered details or an annual statement of accounts.38

22.2

As a variant of the same argument, Cs contend that given the position in relation to
the quarterly returns, D should have drawn an inference as to the likely content of a
hypothetical statement of accounts pertaining to ADAC. The stance is obviously
without merit First, as has already been explained, the quarterly return obligation and
the statement of accounts obligation emerge from entirely different sections (indeed
Parts) of the 2000 Act An exemption relating to the quarterly returns does not apply
to statements of account. Second, it is obvious that the quarterly returns only relate to
donations and loans, whereas a statement of accounts may disclose other forms of
accounting activity of the registered party and that a failure to file such a statement of
accounts will hide that activity. The two distinct obligations were directed by
Parliament to different purposes and intended to address different mischiefs.

22.3

A further argument advanced by Cs is that ADAC had changed its accounting year
and that accordingly the statement of accounts were not due to be filed by the 30th
April 2016. That cannot have been the case because in order to change its accounting
year ADAC would have been obliged to apply to D for approval to do so pursuant to
s.26(7) of the 2000 Act No such request for approval was ever made. This argument
too cannot have constituted a reasonable excuse for failing to file a statement of
accounts pursuant to s.45(1) by the 30th April 2016.

38

See paragraph 42 of the witness statement ofMs Kay Walker (P.9).

14

22.4

C's also advance an argument that in some way the concept of a reasonable excuse as
it operates in relation to the statutory regime and case-law pertaining to tax should be
applied by analogy to the obligations imposed under the 2000 Act. There is no reason
why such an approach should be ta.ken and no reason why what constitutes a
reasonable excuse in the context of one statutory regime should be equated with what
would constitute a reasonable excuse under a different regime. In passing, it is noted
that the expression "reasonable excuse" as used in the 2000 Act has been the subject
ofjudicial consideration in the County Court.39 No analogy with the statutory regime
pertaining to tax was drawn.

23.

As to Cs unfocussed references in the claim form to alleged breaches of human

rights. It is important to recall that pursuant to the scheme of Part 1 of Schedule 19C to the
2000 Act, Cl has not been found guilty of any offence. All that has happened is that D has
concluded as part of an investigation that it is satisfied that C 1 did commit an offence
contrar)r to s.47(1 )(b) of the 2000 Act such that its discretion to impose a fixed monetary
penalty under paragraph 1 of Schedule 19C to the 2000 Act was engaged. D exercised that
discretion in Cl's favour by deciding not to seek to impose a fixed monetary penalty. All D
has done since is to publish on its website the result ofits investigation.40 It is repeated: Cl
has not been convicted of any offence.

24.

D's publication of the results of its investigations is a fundamental aspect of D's

transparency. As the statutory regulator ofpolitical party finance, with a duty to "monitor

The Labour Party v The Electoral Commission, Central London County Court, 28111 June2016 per
HHJ Dight at paras 70 to 77. A copy of the decision is appended to this document at the end of the
extracts from the 2000 Act (P.79 to P.97, the relevant paragraphs are at P.95)

39

http://www.electoralcom.mission.org.uk/our-work/roles-and-responsibilities/our-role-as-regulator-ofpolitical-party-finances/making-an-allegation

40

15

and secure compliance, "41 it is imperative that D is able to alert the pu.blic and stakeholders
of the outcome of its investigations into breaches oflegislative requirements without delay, to
maintain public confidence in the statutory controls, and to act as a deterrent to those who
might commit breaches in the future. That is all the more the case given the circumstances in

which the 2000 Act was enacted. It was enacted because the public had lost confidence in the
way in which political parties were regulated as a result of a perceived (and actual) lack of
transparency.

25.

In passing it is noted that C2 appears to have no locus to bring any claim.

26.

It is respectfully contended that C's claim raises no arguable issue and that Cs should

be refused permission to pursue their claim and ordered to pay D's costs of filing the
Acknowledgment of Service in the sum of 1660.00.

26th January 2017

Gwydion Hughes
9 Park Place
Cardiff

41

2000 Act, s.145 (p.35)

16