“No evidence of criminality has been uncovered”

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As reported in The Herald, the police investigation into allegations of postal vote tallying, with Police Scotland announcing “After an assessment no evidence of criminality has been uncovered and we do not intend to report anyone in relation to offences under the Act.” Other than making it clear that there will not be prosecutions, it is still unclear whether there was widespread tallying of postal votes in the referendum. As Martin Williams notes in The Herald: “Police Scotland did not respond to questions asking for the rationale of their assessment”.

The announcement seems to have been interpreted as a statement that the police investigation did not find any evidence of postal vote tallying in the referendum. An alternative interpretation is that the Crown Office accepted the Labour Party argument that taking tallies of postal votes was not an offence. However the use of the term “criminality” may be significant. In everyday usage “criminality” is almost synonymous with “crime”, but its narrower meaning has an implication of being related to the state of mind of the person who commits the illegal act, so an act can be criminal, but because of the person’s state of mind there is no criminality. The use of the term avoids the latinate term mens rea, literally “guilty mind”, defined in the Oxford Dictionary of Law as: “The state of mind that the prosecution must prove a defendant to have had at the time of committing a crime in order to secure a conviction”. For the last year the argument has been put forward by those under investigation that it was believed that taking postal vote tallies was not illegal, and if it was argued that it is illegal, then the belief that it was not illegal would mean that there was not mens rea, so there would be “no evidence of criminality”. The obvious counter-argument to this is that the practice in Scotland has been taking place since at least 2007 and no member of any party has ever mentioned it on the record, which seems to imply it takes place with a “guilty mind”. The Millar legal opinion may not have been obtained due to postal voting agents being challenged at an English election, but instead may have been sought to bolster an argument of no mens rea in the face of the Scottish investigation. Without the precedence of previous prosecutions or clarity in the legislation it is still unclear whether the practice of tallying is illegal, and if the practice is illegal, it is unclear how stringent is the requirement in Scots Law to establish mens rea to gain a conviction.

All of this is an arcane debate in electoral law, but the police comment’s ambiguity and their apparent refusal to answer further questions means that after a year-long investigation the public are none the wiser about whether the police found evidence of postal vote tallying.

A Conspiracy Theory

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After almost a year the police investigation into Ruth Davidson’s comments about the taking of tallies in the Scottish referendum has finally concluded and a report has been submitted to the Crown Office. This event seems only to have been covered by The Herald, The National and The Scotsman. Very little about the progress of this investigation has leaked out into the public domain; all three articles reporting on the conclusion of the investigation frame it as being about Ruth Davidson.

James Chalmers, professor at Scotland’s second most prestigious law school, is quoted in the National as saying:

Davidson: “I wasn

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The police investigation into allegations of postal vote sampling in the Referendum has now completed and a report passed to the Crown Office. In an interview for the Sunday Herald, Paul Hutcheon asked Ruth Davidson about the references she made on television alluding to Better Together taking tallies of postal votes.

Davidson is quoted by Hutcheon as saying:

Further Information on Electoral Commission Released under FoI

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A further FoI request to the Electoral Commission (FOI 81 15), not submitted by me, seeking information on correspondence on counting of postal votes has uncovered some more information in how the Electoral Commission responded to allegations of postal vote tallying in the referendum and to the Labour Party’s legal opinion that tallying is legal. The emails show that in the week following the referendum the Electoral Commission liaised with Police Scotland and with Crown Office to respond to the initial allegation following Davidson’s comments in a way that was agnostic to whether the practice was or was not illegal.
The Commission emailed the Labour Party on 12th March stating that the Commission’s view was that the taking of tallies at postal vote openings was an offence, but the Labour Party, Director of Audit emailed the Commission on 25th March seemingly unaware of this clarification or the revision to the guidelines.
The heavily redacted CRM log of 27th March seems to be a reference to a party other than Labour, though it is unclear to whom it refers.

24 September 2014, 4.30pm
Someone emailed a list of Electoral Commission staff and redacted names
Subject: RE: Alleged Breach of Requirement of Secrecy by [redacted] Postal Ballot Agents

Hi Folks

Apologies for the delay on this as we’ve been speaking with Police Scotland and COPFS to agree an approach which will help to manage the inevitable high volume of interest in this issue.

We’ve provisionally agreed the following lines:

For the media:
“Schedule 7, paragraph 7 of the Scottish Independence Referendum Act 2013 sets out the rules which cover the requirement of secrecy for those attending the opening of postal ballot paper envelopes. Any breach of these rules would be for the police to investigate and, as such, any complaints we have received in relation to this matter have been brought to the attention of the Police Service of Scotland.”

For public enquiries (in which a member of public alleges an offence has been committed):
“Schedule 7, paragraph 7 of the Scottish Independence Referendum Act 2013 sets out the rules which cover the requirement of secrecy for those attending the opening of postal ballot paper envelopes. Any breach of these rules would be for the police to investigate and, as such, the allegation referred to in your e-mail has been passed to the Police Service of Scotland.”

If anyone has any major issues with these lines, could you let me know asap please?

Thanks

15 January 11:53
Internal Electoral Commission email from Bob Posner, Director of Party and Election Finance
Subject: Party Reps Tallying Votes at Counts

Attached is a QC advice obtained by the Labour Party. Gerald Shamash, their lawyer I and party officials gave me a copy of it yesterday with a request that we indicate back to them whether we agree with the advice (which they like and agree with) They intend to share the advice with some other parties and either share or inform of its content to the Cabinet Office, probably AEA and SOLACE too. They did not say when they would do this.

The topic is ‘tallying’ by party reps at counts. Is it lawful? The advice says it is. I was informed that the advice was triggered because [redacted] of Cabinet Office said at a meeting ROs would not for the May polls be permitting tallying at postal vote openings. The Labour party (and no doubt others) want to tally as usual.

I said we would have a read of the advice and let them know (back to Gerald Shamash possibly) if we wished to comment and if we did what that was. Over to EA to consider with legal colleagues. Worth in the meanwhile acknowledging back to Mr Shamash we are reviewing it? Kindly keep me in the loop.

Bob

15 January 14:29
Internal Electoral Commission email from Tom Hawthorn, Head of Policy to Bob Posner, Director of Party and Election Finance
Subject: RE: Party Reps Tallying Votes at Counts

Given the equivalent provision is subject to an ongoing police investigation in Scotland, shouldn’t we exercise some caution here?

Presume we can contact Gerald using details on CCM.

T

15 January 15:58
Internal Electoral Commission email from Bob Posner, Director of Party and Election Finance to Tom Hawthorn, Head of Policy
Subject: RE: Party Reps Tallying Votes at Counts

Agree Tom. I did point out to them that the police investigation is live. We can come to a view on the QC Advice, and depending on what it is decide if that affects any response we would be comfortable making.

Bob

16 January 12:59
Internal Electoral Commission email from Louise Footner, Senior Lawyer to Bob Posner, Director of Party and Election Finance

Bob

Thanks for forwarding this opinion. The advice sets out the arguments for one interpretation (ie that tallying does not contravene the secrecy provisions). We will review in legal and discuss with EA. Whilst agreeing with you and Tom as to the need to be circumspect until the Procurator Fiscal’s investigation is completed, legal and EA have already identified this as an area where we may be required to give a view fairly quickly once the investigation is complete. So its something we are already starting to look at, and will discuss before a final view is reached

This also came up at the SOLACE conference yesterday.

I’m happy to send a holding response to Gerald Shamash.

Louise

16 January 15:16
Internal Electoral Commission email from Tom Hawthorn, Head of Policy.
Subject: RE: Party reps tallying votes at counts

Just FYI, I spoke to Andy earlier today and he said that he would try to speak to the Crown Office to see what timescales they’re working to.

Tom

19 January
Louise Footner, Senior Lawyer, Electoral Commission emailed Gerald Shamash, Labour Party.

Dear Gerald

Bob Posner has passed to me your QC

Cabinet Office Discussed Postal Vote Tallying with Labour Party in January

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Following a Freedom of Information request asking the Cabinet Office for copies of any communications relating to postal vote tallies, I have received a copy of this email exchange between the Labour Party and the Cabinet Office in January 2015, and also a reference to the practice at an Electoral Integrity Roundtable in February 2015. The correspondence implies that Paul Docker, ?Head of Electoral Administration at the Cabinet Office, had raised the issue of postal vote tallying with parties following the Acting Returning Officer at a byelection warning Labour Party postal vote agents to desist from tallying, which I believe to have been the Rochester & Strood parliamentary byelection held on 20th November 2014. The emails allude to the Millar legal opinion, but it is still unclear whether the trigger for Labour seeking the opinion was the Police Scotland investigation or the warning in the byelection.

On 6 January 2015 Mike Creighton, the Labour Party’s Director of Audit, Risk Management and Property emailed Paul Docker, ?Head of Electoral Administration at the Cabinet Office.

On 6 January 2015 at 18:16, ?Mike Creighton? ?? wrote: Hi ?Paul?

“The Labour Party (and no doubt others) want to tally as usual”: Electoral Commission in January

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The Electoral Commission was passed a copy on January 14th 2015 of the Labour Party’s legal advice arguing that the counting of votes at postal vote openings was legal. This is confirmed in the following internal email from Bob Posner, the Commission’s Director of Party and Election Finance and Legal Counsel. The comment in the email that “The Labour Party (and no doubt others) want to tally as usual“ implies that the Electoral Commission were aware that the counting of votes at postal vote openings was an established practice. As far as I am aware the Commission did not respond to this advice until the Labour Party brought it up at the Parliamentary Parties Panel in March.

GeraldStramash

Postal Vote Sampling: “Labour Party would not advise campaigners they should not undertake this activity”

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The Electoral Commission have just published the minutes of their Parliamentary Parties Panel meeting on 3rd March which triggered the sharing of the Labour Party’s legal opinion included and discussed in a previous post.

At this meeting Mike Creighton, Labour Party Director of Audit and Risk Management is minuted as arguing “the Labour Party would not advise campaigners they should not undertake this activity which he believes is important for maintaining confidence in elections“. This seems to be an admission that the Labour Party have been systematically taking tallies of postal votes at postal vote openings, although until now they have avoided admitting this publicly. Exactly how a practice that the Electoral Commission has consistently argued is illegal can simultaneously be a secret and “important for maintaining confidence in elections” is unclear.

The full section of the minutes is:

“4. Postal vote sampling

4.1 Mike Creighton [Labour Party, Director of Audit and Risk Management] raised the issue of permissibility of postal vote sampling as outlined in Section 66 of the Representation of the People Act 1983. Andrew Scallan [Electoral Commission, Director of Electoral Administration] confirmed that the Electoral Commission had looked at its guidance in light of the request to do so by the Labour Party but in its view, the guidance was correct. He noted that there was an ongoing case in Scotland that police were looking into; Bob Posner [Electoral Commission, Director of Party and Election Finance and Legal Counsel] stated that the police were looking at the evidence as a basis for their investigations.

4.2 Creighton stated the Electoral Commission

Labour Party Argued in December that Postal Vote Counting Was Legal

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On 29th December the Labour Party received legal advice from Gavin Millar QC of Matrix Chambers that the tallying or counting of postal votes at postal openings was not an offence under the Representation of the People Act. Why they requested this advice is unclear at the moment, but the cost and the potential reputational risk when this information entered the public domain implies they must have had a significant justification. It does suggest that committing electoral fraud by counting postal vote papers may be institutional in the UK Labour Party.

Advice1

Advice2

Advice3

The Labour Party submitted this opinion to the Electoral Commission, who replied to them on 12th March that this was not the view of the Commission:

We consider that the reference to