Or at least I think she may be.
She’s trying to get re-elected as an MP, and is as it happens Labour’s new media campaigns spokesman. But she’s in trouble, for having tweeted which parties a sample of postal voters had chosen. Here’s her statement on the matter.
There’s been a fair amount of speculation as to what offence she might have committed. Mark Park, who knows a lot about election law, initially suggested the disclosure could be contrary to section 66A of the Representation of the People Act 1983. I don’t think this can be right, though (and Mark agrees). The heading to the provision tells us it’s about exit polls, and it’s drafted so as to catch precisely what an exit poll is. Since what Kerry McCarthy tweeted was the results of actual votes, rather than being based on information given by voters after they voted, the section doesn’t apply.
In the BBC article, Bristol City Council suggest there might be an offence under section 66(4)(d). But that can’t be right either since it arguably only prohibits communication of who any particular ballot paper is cast for. It is not clear on its face that it catches disclosure of the results of an anonymous sample. And once you accept that it’s not clear, you have to apply the presumption that penal statutes are to be narrowly construed – in other words, you have to resolve the ambiguity in favour of the defendant. So Kerry McCarthy’s not guilty of that one, either.
If there’s an offence, I think it must be under section 66(4) simpliciter, as an old-fashioned Latin-spouting lawyer might put it. It’s not an offence under any of section 66(4)(a) to (d) – I’ve already dealt with subsection (4)(d), and subsections (4)(a) to (c) prohibit disclosure of information about the “official mark” (whatever that is) or of the number on a ballot paper. But the stem of section 66(4) – the bit before paragraphs (a) to (d) – imposes a duty on anyone attending proceedings in connection with the receipt of postal ballot papers to maintain, and aid in maintaining, the secrecy of the voting. If she’s breached that duty, she may have committed an offence under section 66(6).
But was she subject to the duty at all? It only applies to someone attending proceedings in connection with the receipt of postal ballot papers. In her statement, Kerry McCarthy says
On hearing the results of a random and unscientific sample of postal votes, I posted them on Twitter. It was a thoughtless thing to do…
which suggests she may not have attended proceedings at all, but rather heard the information from someone else who did. If that’s right, it may be that person who committed an offence, and not Kerry McCarthy at all.
I suppose there might be an argument that she aided or abetted the disclosure, by passing on the information to a much wider audience than the original audience of herself (presumably) alone, and that she’s therefore herself guilty of it. But, without doing extensive research into the application of the law of secondary liability here, I think there could be real legal difficulty with prosecuting her on this basis. How can she really be said to have assisted the offence if everything she did happened after the principal offence was complete? The Law Commission’s 2007 paper on assisting and encouraging crime suggests (from para. 2.30, especially paras. 2.32 and 2.33) that
what matters is that [Kerry McCarthy]’s assistance or encouragement has some impact on the course of conduct that ends in the commission of the offence
The authorities speak of there having to be “a connection” between [Kerry McCarthy]’s conduct and P committing the principal offence. In A-G v Able, Mr Justice Woolf said that that there has to be a “sufficient” connection. However, the precise nature of this sufficient connection is elusive. It is best understood, at least where [Kerry McCarthy]’s conduct consists of assistance, as meaning that [her] conduct has made a contribution to the commission of the offence.
On the first approach, she’s certainly committed no offence. It must be doubtful in the circumstances that her own action really is “connected” to the principal offence in the sense of having contributed to it.
In any event, I think she can rest easy. Since she has removed the tweet now, since it appears to have been a genuine mistake (however silly) and since it’s unlikely to have influenced the election result, the CPS guidance on election offences suggests it will not be considered in the public interest to prosecute, even if the evidence is there.
Nice to know that attempting to influence an election is not perceived as breaking any law.
So, if I make the genuine mistake of leaving my sailing safety knife (used to cut any ropes or other material if I’m trapped under water after a capsize) in my car when not sailing I’ll probably be convicted, and risk going to jail, because its a “strict liability offense” because she and her fellow Labour MPs had some knee jerk reactions and were lazy in passing legislation.
Yet she can get away showing utter contempt for the spirit of electoral law because:
“In any event, I think she can rest easy. Since she has removed the tweet now, since it appears to have been a genuine mistake (however silly)”
And MPs wonder why they are held in utter contempt?
And also why we get frustrated with lawyers, no matter how objective your opinions.
Perhaps we can invoke Labour’s court of public opinion to pass our own judgment and sentence?
PS I’m not a troll, I have been taking your RSS feed for a couple of years for the educational value of your blog.
Simon, the court of public opinion gives judgment on Thursday 6th May.
On my own blog I have looked at some of these electoral offences. They are interesting and have a lengthy history going back, at least, to the Reform Act 1832. Dickens wrote about elections in, I think, Pickwick Papers where he referred to the election at “Eatanswill”.
The CPS guidelines referred to by Head of Legal are also interesting.
Another blog has been looking at a certain event in a certain Northern constituency. Unlike the blog writer, I am personally far from convinced that there is an offence and I am definitely convinced that the CPS will apply their guidance and not prosecute.
.-= ObiterJ´s last blog ..Under the Radar: the Stockholm Plan for Justice =-.
She has removed her tweet, and in a dew days, the voters will remove her. My ex’s MP (she a lifelong Labour voter and former party member), noted her as a “New Labour pod”.
Good to have you commenting, Simon – I’m glad to say comments here are of high quality, and we don’t get name-calling really.
Actually I think this case may well show that electoral law has a few holes in it. No doubt it’s been drafted to tackle actual problems – but this one hasn’t been foreseen, and isn’t dealt with. Perhaps it needs to be considered.
I have to say I’m not a great fan of postal voting generally – it’s so open to abuse and it dents the idea that we all vote on the same day. I’d rather everyone voted in person, subject to really necessary special arrangements.
Sarah “Nice to know that attempting to influence an election is not perceived as breaking any law.”
Thankfully Sarah, it isn’t, otherwise an awful lot of people would be in trouble: candidates and their parties, newspapers and journalists, bloggers, trades unions, employers’ organisations all of whom try to influence the way electors vote, and the outcome of the election.
Good post Carl. One thing to add is that (as I commented over on my site) the exit polling provisions have been interpreted in the past to cover postal vote information, but that’s been by “the authorities” looking at previous cases rather than in a case upheld in a court of law; i.e. that is not conclusive legal precedent but it’s still useful to know how others have viewed it.
.-= Mark Pack´s last blog ..Weirdest comment by a mainstream politician so far =-.
Thank you for the well post.I also think that good due dilligence in selecting a divorce attorney is essential.
i say that Well, it’s amazing. The miracle has been done. Well done.
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[…] Carl Gardner, author of the Head of Legal blog, writing on an issue of electoral law and the prospect that Labour Twitter Tzar, Kerry McCarthy who is standing as a a candidate again may have broken the law, says: Kerry McCarthy is innocent! […]
Could not agree more with your sentiment that we need to get back to voting in person. As things stand, the present general election is wide open to corruption due to the postal voting system.
.-= ObiterJ´s last blog ..Partisan gain appears to be all that matters =-.