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: “Ruth Davidson was not a ‘person attending the proceedings’ so it seems unlikely she could be accused of any offence. The police report is likely to be concerned only with the person or persons present at the postal votes being opened who passed that information on to her.”
The first part of Chalmers’ statement is correct, but the second part is questionable. The implication of Davidson’s claim that “there are people in the room who have been sampling those ballot boxes, taking tallies, and their reports have been very positive for us” is that there was a coordinated exercise to take tallies and centrally analyse the results. Prosecuting activists who were told to do it, told it was legal and not prevented from doing it openly by counting staff might be iniquitous. However if the practice was coordinated and postal vote agents were asked to take tallies, the people coordinating and asking could potentially be prosecuted for inciting electoral fraud and conspiracy to commit electoral fraud. Two political parties, one in private and the Labour Party in public, have responded to these and related allegations by arguing that the practice is legal. The only people arguing that the law is unclear are people associated with parties potentially being investigated for the offence. At the moment it is unclear whether the police have uncovered sufficient evidence for COPFS to launch prosecutions for either tallying or organising the tallying, but having the headquarters of parties arguing that the practice is legal while the Electoral Commission argues that it is illegal creates a strong public interest in bringing a prosecution to clarify the law.