Thursday, 31 January 2008

Wendibles, Wendibles, did you give the money back?

Remember the small one returned a donation made by a fellow by the name of Paul Green because he lives outwith the UK and it was an illegal donation?

Well, we all know about the section 56 breach, about how it is a strict liability offence (mens rea not required - ignore Sweet v Parsley it's not applicable in this case, but there is a line in decision of the Privy Council in Gammon (HK) Ltd. v. AG of HK that presumption of mens rea stands

"unless it can be shown that the creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act."
and section 56 does not have a defence attached to it- thanking m'learned friend) and how the offence is failure to return an impermissible donation.

So anyway, I don't want to talk about that, what I want to talk about is the returned donation. Her Imperial Wendyness assures us all that she has returned the donation (well, actually, and very bizarrely, she sent it to the Electoral Commission instead of back to Paul Green, but I'm assuming that no-one at the Commission hipped it).

The donation was sent back but where's the record? The Commission is obliged to enter such things in the register as soon as is practicable and, indeed, they do. In the register is a drop-down menu for "type of donation" under which you can find "impermissible donor" and you'll see the donations which have been returned. The latest to a regulated donee was in November when Andrew Mitchell MP returned £4,000. Where the money can't be returned it's forfeited to the Electoral Commission - the latest one of those was a party one where the Lib Dems gave up £40k on the 21st of December.

Wee problem - that returned donation isn't listed on the register.

So, here's the question - does Wendy still have that £950 and therefore still in breach of the law or is she telling us that the Electoral Commission has failed to observe the law of which it is guardian?

Have you given the money back Wendy?
Register of donations
69.—(1) The Commission shall maintain a register of all donations reported to them under this Chapter.
(2) The register shall be maintained by the Commission in such form as they may determine and shall contain the following details in the case of each such donation—
(a) the amount or value of the donation;
(b) (subject to subsection (4)) such other details as have been given in relation to the donation in pursuance of paragraph 2, 3, 6 or 7(a) or (c) of Schedule 6; and
(c) the relevant date for the donation within the meaning of paragraph 5 of that Schedule, and (in the case of a donation falling within sub-paragraph (2) of that paragraph) the details given in pursuance of that sub-paragraph.
(3) In the case of any donations reported to them under section 68, the register shall (subject to subsection (4)) contain the details given in pursuance of subsection (2) of that section.
(4) The details required by virtue of subsection (2) or (3) do not include, in the case of any donation by an individual, the donor’s address.
(5) Where any donation or donations is or are reported to the Commission under this Chapter, they shall cause the details mentioned in subsection (2) or (3) to be entered in the register in respect of the donation or donations as soon as is reasonably practicable.

Schedule 7
Part V
Register of donations
Register of recordable donations
15.—(1) Section 69 shall apply in relation to donations reported to the Commission under this Schedule (“relevant donations”) as it applies to donations reported to them under Chapter III of Part IV of this Act.
(2) But in its application in accordance with sub-paragraph (1), section 69 shall have effect with the modifications set out in sub-paragraph (3).
(3) Those modifications are as follows—
(a) subsection (2) shall have effect in relation to a relevant donation as if (instead of requiring the register to contain the details mentioned in paragraphs (a) to (c) of that subsection) it required the register to contain such details as have been given in relation to the donation in pursuance of paragraph 10(3), 10(4), 11(2), 11(3) or 11(4); and
(b) subsection (3) shall be read as referring to paragraph 14 and subparagraph (2) of that paragraph instead of to section 68 and subsection (2) of that section.


Tartan Hero said...

Calum, impermissible donations cannot be returned to the donor. They have to be submitted to the Electoral Commission who then 'donate' it to the Treasury. Once you donate illegally, you never get yer money back! Grant :-)

Tartan Hero said...

Sorry, I should have added, you only get 28 days to return the donation if you recognise that it is impermissible (and that then still requires to be notified to the EC), failing that impermissible donations must then be forwarded to the Electoral Commission

Hacksaw Jim Duggan said...

Never mind all that.

What did she spend the £17K on?!?

Tired of Excuses said...

Ahh yes, i can see a defence of "the cheque is in the mail yer honour" coming up soon.