“No evidence of criminality has been uncovered”

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.

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