Notional election expenditure not required to be authorised in order to constitute election expenses


Re: R v Mackinlay & Ors [2018] UKSC 42

This appeal considered the criminal proceedings initiated against the respondents in June 2017 when they were charged with offences contrary to the Representation of the People Act 1983, relating to election expenses.

The question of law certified by the Court of Appeal (Crim Div) as a point of law of general public importance was as follows: “Do property, goods, services or facilities transferred to or provided for the use or benefit of a candidate free of charge or at a discount (as identified in section 90C(1)(a) of the Representation of the People Act 1983 (as amended)) only fall to be declared as election expenses if they have been authorised by the candidate, his election agent or someone authorised by either or both of them?”

Court of Appeal had held that the Representation of the People Act 1983, s 90C (the notional expenditure provision) requires authorisation of expenses before the need for them to be declared arises.

The Supreme Court unanimously allowed the appeal, answering the certified question in the negative. There is no room in the language of s 90C for an additional requirement that the provision of services must have been authorised by the candidate or his election agent, or by someone authorised by either of them. The test is whether the goods, property or facilities are used by, or on behalf of, the candidate.

Sarah Hannett and Clare Montgomery QC were involved in this case.