Kerry McCarthy is innocent!

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

and that

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.