Collusion between the CPS and the Tories? Caution

May 10, 2017

by Martin Odoni

The very frustrating announcement today by the Crown Prosecution Service that no individuals in the 2015 Election fraud would be prosecuted has been met with an inevitable chorus of disgust. A frequent objection on social media has been, “It’s a cover-up!” While I would certainly not rule out that possibility – probably more on the grounds of worry at the CPS that it would open a can of worms than because of darker motives – I do think a few words of caution are important.

It needs to be recognised that the CPS will never press charges in any circumstances in which it concludes that there is little chance of a successful prosecution. While I see no reason at all to doubt that the Tories’ misconduct was entirely cynical and deliberate, and the CPS does not appear to doubt it either, strong suspicions cut no ice within the law; there has to be strong evidence indicating a corrupt intent on the part of the individuals being prosecuted.

While the Conservative Party is seen as collectively operating corruptly, and the CPS has acknowledged that, it is a very dicey matter trying to convict individuals for an institutional crime. The CPS has doubtless seen evidence of the party aiming to bypass the rules as a collective, but a political party cannot be prosecuted in the courts as a collective. That is what the Electoral Commission is there to address, and, within the rather severe limits of its powers, it has already done so. (More on that later.) Within the courts, individuals have to be prosecuted instead, and if the evidence tied to specific individuals is not very strong e.g. the intent of the crimes committed as a party cannot be firmly tied to the instructions or deeds of any particular person, then the evidence will be deemed insufficient to justify a conviction.

To quote today’s CPS announcement; –

In order to bring a charge, it must be proved that a suspect knew the return was inaccurate and acted dishonestly in signing the declaration. Although there is evidence to suggest the returns may have been inaccurate, there is insufficient evidence to prove to the criminal standard that any candidate or agent was dishonest… It is clear agents were told by Conservative Party headquarters that the costs were part of the national campaign and it would not be possible to prove any agent acted knowingly or dishonestly.

(Bold emphasis added.)

Yes, it sounds bizarre that no one in the Conservative Party can be prosecuted for using national campaigning funds at a local level because the Conservative Party told them to, but once we recognise the need for individual misconduct to be firmly established, it does in fact make a kind of sense. The party broke the law by instructing its workers to behave in this way, but the party as a collective has already been investigated and punished by the Electoral Commission. The CPS does not have jurisdiction over that area. Party workers, as individuals, crying out, “I was only obeying orders” are allowed some latitude within the courts.

I have seen some people arguing on social media that there should have been a trial anyway, to get the charges and evidence aired for the public to see. I sympathise, but I do not agree. To argue for such a trial is to overlook the consequences of so-called ‘double-jeopardy’ rules within the 2005 Criminal Justice Act. Quite simply, when the accused is acquitted at the end of a trial, they cannot be re-tried more than once over the same accusation subsequently, unless analysis of the original trial’s proceedings finds that they were mishandled in such a way as to make the final verdict unsafe (a ‘mistrial’). The original double-jeopardy law, which banned any retrial subsequent to an acquittal, was scrapped in 2005, but replaced by a clause in the Criminal Justice Act that banned more than one retrial.

This law, I must stress, is correct; were the state to remove all remaining laws protecting against ‘double-jeopardy’, it would hand a worrying, and easily-abused, amount of power to the police force. For instance, any time a police officer took a personal dislike to anyone for any reason, he could arrest them on completely spurious grounds, take them to trial, and if/when the accused is acquitted, then the moment they leave the court, the officer could simply arrest them again out of sheer spite, and on the same pretext. That could carry on indefinitely, perhaps out of prejudice, perhaps out of vindictiveness – legalised police harassment, almost. Instead, as the law currently stands, a retrial can only happen once, and even then, only – and this is also very important – with the Court of Appeal’s approval.

Therefore, the restrictions on retrials must always be taken into consideration before recklessly pressing charges, and if the CPS feels there is not a strong enough case to secure a conviction, it will not risk triggering those restrictions. Clearly, the CPS has concluded that if a trial of Conservative Party members were to go ahead as matters stand, the likeliest outcome would be an acquittal, and, in the event that more and stronger evidence were to emerge subsequently, they may not be able to re-prosecute, and certainly not more than once.

This is not to say that I am content with the CPS’ decision. As Craig Murray has pointed out, the investigation the CPS has carried out seems to have been a little too narrow in scope. Moreover, given how obstructive the Tories appear to have been to the investigation as well, one might argue that the CPS has not been skeptical enough of the party’s protestations of innocence. However, I imagine that argument works just as well the other way; the Tories’ obstructive behaviour has probably made it more difficult for the CPS investigators to find the evidence needed in the first place.

It should be emphasised that the CPS has certainly not suggested, as the Tories are trying to spin it, that there is no evidence of corrupt or illegal behaviour. Instead the conclusion is only that there is not strong-enough evidence against individuals to secure a conviction. Therefore, if there really has been CPS collusion with the Tories, it has been of a pretty careless variety.

The more definitive problem that I can see is not the CPS, but the Electoral Commission’s lack of ‘teeth’. The Commission is the body in charge of dispensing justice at the party level, and it carried out that role two months ago, meting out a record-largest punishment. But the problem was that that punishment was restricted to a maximum fine of £70,000. That would have been a phenomenal deterrent back in, say, the 1960’s. But today, given inflation, and the almost horrifying amounts of money some Tory backers have at their disposal, it is relatively ‘small potatoes’. The Tories probably see fines like £70,000 as a way of purchasing an Election now, and they may not be the only party to see it that way either.

That is the real concern, and the real reason the Tories are getting away with it. Not collusion, but obsolete safeguards. The Electoral Commission must be granted the power to hand out far stronger punishments in the modern era, including fines of up to £1,000,000, and ad-hoc harsher spending caps.

I am not dismissing the possibility of collusion of course, but for the CPS, the decision to prosecute is never as straightforward as it might first appear, and on balance, I suspect today’s announcement is more just a sad case of the letter of the law interfering with those trying to enforce it.

It is frustrating, I agree, but I can understand it.

4 Responses to “Collusion between the CPS and the Tories? Caution”

  1. Sophia.George 💋 Says:

    Reblogged this on Site Title and commented:
    So in a nutshell, we are now in a dictatorship. Appalled xxx

  2. Florence Says:

    You have surmised that the decision revolves around intent, but it is clear that the way the battle bus was commissioned, with the busses being met by local canvassing teams, with local materials and scripts for the volunteers on local issues and the local candidate, that this was a knowing mis-use of national resources. I think most people, the common ones usually populating juries, would find the very fact that the Tories took court action to try and prevent the handover of evidence to the police may be circumstantial but is actually shrieks “guilty”.

    I agree that you’d have to be pretty generous in suspending disbelief about the protestations of innocence by the parties in question.

    The public interest has been totally failed though. This is essentially a blank cheque to commit national resources in local elections, conveniently close to the GE short campaign to be a big wink and a nudge. The public have been left without any meaningful election law, at a time when the Tories are being richly supported by the UK rich list.

    It’s not frustrating, frankly it is terrifying.

    • Martin Odoni Says:

      All of what you say is true, and I am not in any way trying to imply that the intent of the Tories is ambiguous. I am simply pointing out that while the indicators of corruption are very strong, they are not explicit enough to count as strong evidence in a court of law. From that, I am also trying to cool assumptions that the CPS are complicit in a cover-up. It’s not beyond all possibility, but it’s unlikely. They really were hampered by the lack of clear evidence specific to individuals, and it isn’t their fault that the law has given them such a narrow area of jurisdiction. Were they allowed, as they should be, to prosecute parties instead of just individuals, I don’t think there is any doubt that senior figures in the Conservative Party would be in the dock before the end of the summer. Even if their involvement could not be proven, the party leader and the party chairman of the time, among others, would be required to accept responsibility for what happened. But as they can only be investigated as individuals, and their roles in it are not clear enough from the evidence, they have gotten away with it.

      Yes, the public interest has been failed, but that’s not really the failing of the CPS. It’s just one more reason why electoral reform in this country is decades overdue.

  3. It’s good to see a calm voice on this subject. I admit I was infriated by the decision, but you are absoutely right. We do however need to point out in a way that does not leave us liable to prosecution as threatened by the tory leader, that insufficient evidence is not the same as innocence.

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