Office of Public Sector Information
PART 4 continued
119.—(1) An application for relief under this article may be made to the High Court or an election court or else, if in respect of a payment made in contravention of article 49(1), (2) or (3), to a county court.
(2) Where a person makes an application under this article he shall notify the Director of Public Prosecutions of the application and the Director or his assistant or representative may attend the hearing of the application and make representations at the hearing in respect of it.
(3) If it is shown to the court by such evidence as to the court seems sufficient—
(a) that any act or omission of any person would apart from this article by reason of being in contravention of this Order be an illegal practice, payment or employment;
(b) that the act or omission arose from inadvertence or from accidental miscalculation or from some other reasonable cause of a like nature, and in any case did not arise from any want of good faith; and
(c) that such notice of the application has been given in the Assembly constituency or electoral region for which the election was held, as to the court seems fit,
and under the circumstances it seems to the court to be just that either that or any other person should not be subject to any of the consequences under this Order of the act or omission, the court may make an order allowing the act or omission to be an exception from the provisions of this Order making it an illegal practice, payment or employment and upon the making of the order no person shall be subject to any of the consequences under this Order of that act or omission.
120.—(1) A person who is guilty of a corrupt practice shall be liable—
(a) on conviction on indictment—
(i) in the case of a corrupt practice under article 14(11) or 30, to imprisonment for a term not exceeding two years, or to a fine, or to both;
(ii) in any other case, to imprisonment for a term not exceeding one year, or to a fine, or to both; or
(b) on summary conviction, to imprisonment for a term not exceeding 6 months, or to a fine not exceeding the statutory maximum, or to both.
(2) In relation to an offence committed after commencement of section 281(5) of the Criminal Justice Act 2003, the reference in paragraph (1)(b) to 6 months must be taken to be a reference to 51 weeks.
(3) If it appears to the court by which any person holding a licence or certificate under the Licensing Acts is convicted of the offence of bribery or treating that the offence was committed on his licensed premises—
(a) the court shall direct the conviction to be entered in the proper register of licences; and
(b) the entry shall be taken into consideration by the licensing authority in determining whether they will or will not grant a renewal of the licence or certificate, and may be a ground, if the authority think fit, for refusing its renewal.
121. A person guilty of an illegal practice shall on summary conviction be liable to a fine not exceeding level 5 on the standard scale; and on a prosecution for an illegal practice it shall be sufficient to allege that the person charged was guilty of an illegal practice.
122. A person charged with a corrupt practice may, if the circumstances warrant such finding, be found guilty of an illegal practice (which offence shall for that purpose be an indictable offence), and a person charged with an illegal practice may be found guilty of that offence notwithstanding that the act constituting the offence amounted to a corrupt practice.
123.—(1) Subject to paragraph (3), a person convicted of a corrupt or illegal practice shall during the relevant period specified in sub-paragraph (4) be incapable of—
(a) being registered as an elector or voting at any—
(i) Assembly election;
(ii) election to the House of Commons;
(iii) election to the European Parliament;
(iv) election to the Scottish Parliament;
(v) election to the Northern Ireland Assembly; or
(vi) local government election; or
(b) being elected to the Assembly, the House of Commons, the European Parliament, the Scottish Parliament, the Northern Ireland Assembly or as a member of a local authority.
(2) If already elected to a seat in the Assembly or holding an elective office (as listed in paragraph (1)(b)), a person convicted of a corrupt or illegal practice shall vacate the seat or office in accordance with paragraphs (5) and (6).
(3) The incapacity imposed by paragraph (1)(a) applies only to a person convicted of a corrupt practice under article 14(11) or 30, or of an illegal practice under article 31.
(4) For the purposes of paragraph (1) the relevant period is the period beginning with the date of conviction and ending—
(a) in the case of a person convicted of a corrupt practice, five years after that date; or
(b) in the case of a person convicted of an illegal practice, three years after that date,
except that if (at any time within that period of five or three years) a court determines on an appeal by that person against the conviction that it should not be upheld, the relevant period shall end at that time instead.
(5) Where paragraph (2) applies to any person, he shall (subject to paragraph (6)) vacate the seat or office in question at the appropriate time for the purposes of this section, namely—
(a) the end of the period which is the period prescribed by law within which notice of appeal may be given, or an application for leave to appeal may be made, by him in respect of the conviction; or
(b) if (at any time within that period) that period is extended—
(i) the end of the period as so extended; or
(ii) the end of the period of three months beginning with the date of the conviction,
whichever is the earlier.
(6) If (before the appropriate time mentioned in paragraph (5)) notice of appeal is given, or an application for leave to appeal is made, by such a person in respect of the conviction, he shall vacate the seat or office in question at the end of the period of three months beginning with the date of conviction unless—
(a) such an appeal is dismissed or abandoned at any earlier time (in which case he shall vacate the seat or office at that time); or
(b) at any time within that period of three months the court determines on such an appeal that the conviction should not be upheld (in which case the seat or office shall not be vacated by him).
(7) Where such a person vacates a seat or office in accordance with paragraph (5) or (6), no subsequent determination of a court that his conviction should not be upheld shall entitle him to resume his seat or office.
(8) If a person convicted of a corrupt or illegal practice has already been elected to a seat in the Assembly or to an elective office as listed in paragraph (1)(b), he shall (in addition to being subject to the incapacities mentioned in paragraph(1)(a) and (b)) be suspended from performing any of his functions as an Assembly member, or (as the case may be) any of the functions of that office, during the period of suspension specified in paragraph (9).
(9) For the purposes of paragraph (8) the period of suspension is the period beginning with the date of the conviction and ending with—
(a) the date on which the seat or office is vacated in accordance with paragraph (5) or (6); or
(b) where paragraph (6)(b) applies, the date on which the court determines that the conviction should not be upheld.
(10) Any incapacity or other requirement applying to a person by virtue of paragraphs (1), (2) and (8) apply in addition to any punishment imposed under articles 120 or 121 but each of those paragraphs has effect subject to article 126.
124.—(1) A person convicted of a corrupt or illegal practice under the 1983 Act shall be subject to the incapacities imposed by article 111 as if at the date of the conviction he had been reported personally guilty of that corrupt or illegal practice.
(2) Section 174 of the 1983 Act shall apply to any incapacity imposed under this article as if the incapacity was imposed under section 160 of that Act.
125. A person convicted of a corrupt or illegal practice under the European Parliamentary Regulations 2004(53), in addition to the incapacities set out in those regulations, shall for the relevant period set out in article 123(4) be incapable of being elected to or sitting in the Assembly, and if already elected to the Assembly, he shall vacate the seat as from the date of conviction.
126.—(1) Where—
(a) any person is subject to any incapacity by virtue of the report of an election court; and
(b) he or some other person in respect of whose acts the incapacity was imposed is on a prosecution acquitted of any of the matters in respect of which the incapacity was imposed,
the court may order that the incapacity shall thenceforth cease so far as it is imposed in respect of those matters.
(2) Where any person who is subject to any incapacity as mentioned above is on a prosecution convicted of any such matters as are mentioned above, no further incapacity shall be taken to be imposed by reason of the conviction, and the court shall have the like power (if any) to mitigate or remit for the future the incapacity so far as it is imposed by article 110 in respect of the matters of which he is convicted, as if the incapacity had been imposed by reason of the conviction.
(3) A court exercising any of the powers conferred by paragraphs (1) and (2) shall make an order declaring how far, if at all, the incapacities imposed by virtue of the relevant report remain unaffected by the exercise of that power, and that order shall be conclusive for all purposes.
(4) Where a person convicted of a corrupt or illegal practice is subsequently reported to have been guilty of that practice by an election court, no further incapacity shall be imposed on him under article 110 by reason of the report.
(5) Where any person is subject to any incapacity by virtue of a conviction or of the report of an election court, and any witness who gave evidence against that person upon the proceeding for the conviction or report is convicted of perjury in respect of that evidence, the incapacitated person may apply to the High Court, and the court, if satisfied that the conviction or report so far as respects that person was based upon perjury, may order that the incapacity shall thenceforth cease.
127.—(1) A person guilty of an offence of illegal payment or employment shall, on summary conviction, be liable to a fine not exceeding level 5 on the standard scale; and on a prosecution for such an offence it shall be sufficient to allege that the person charged was guilty of an illegal payment or employment as the case may be.
(2) A candidate or election agent who is personally guilty of an offence of illegal payment or employment shall be guilty of an illegal practice.
(3) Any person charged with an offence of illegal payment or employment may be found guilty of that offence, notwithstanding that the act constituting the offence amounted to a corrupt or illegal practice.
128.—(1) A proceeding against a person in respect of any offence under any provision contained in this Order shall be commenced within one year after the offence was committed, and the time so limited by this article shall, in the case of any proceedings under the Magistrates' Courts Act 1980(54) for any such offence, be substituted for any limitation of time contained in that Act.
(2) For the purposes of this article the laying of an information shall be deemed to be the commencement of a proceeding.
(3) A magistrates' court may act under paragraph (4) if it is satisfied on an application by a constable or Crown Prosecutor—
(a) that there are exceptional circumstances which justify the granting of the application; and
(b) that there has been no undue delay in the investigation of the offence to which the application relates.
(4) The magistrates' court may extend the time within which the proceedings must be commenced in pursuance of paragraph (1) to not more than 24 months after the offence was committed.
(5) If the magistrates' court acts under paragraph (4), it may also make an order under paragraph (6) if it is satisfied, on an application by a constable or Crown Prosecutor, that documents retained by the relevant registration officer in pursuance of rule 69 of Schedule 5 may provide evidence relating to the offence.
(6) An order under this paragraph is an order—
(a) directing the relevant registration officer not to cause the documents to be destroyed at the expiry of the period of one year mentioned in rule 69 of Schedule 5; and
(b) extending the period for which he is required to retain them under that rule by such further period not exceeding 12 months as is specified in the order.
(7) The making of an order under paragraph (6) does not affect any other power to require the retention of the documents.
(8) An application under this article must be made not more than one year after the offence was committed.
(9) Any party to—
(a) an application under paragraph (3); or
(b) an application under paragraph (5),
who is aggrieved by the refusal of the magistrates' court to act under paragraph (4) or to make an order under paragraph(6) (as the case may be) may appeal to the Crown Court.
129. Proceedings in respect of an offence under this Order alleged to have been committed outside the United Kingdom by a Commonwealth citizen or citizen of the Republic of Ireland or a relevant citizen of the Union may be taken, and the offence may for all incidental purposes be treated as having been committed, in any place in the United Kingdom.
130. Where—
(a) any corrupt or illegal practice or any illegal payment or employment; or
(b) any offence under article 76,
is committed by any association or body of persons, corporate or unincorporate, the members of the association or body who have taken part in the commission of the offence shall be liable to any fine or punishment imposed for that offence by this Order.
131. On—
(a) any prosecution for a corrupt or illegal practice or for any illegal payment or employment; and
(b) any proceedings for a penalty under article 57,
the certificate of the appropriate returning officer at an Assembly election—
(i) that the election mentioned in the certificate was duly held; and
(ii) that the person named in the certificate was a candidate at the election,
shall be sufficient evidence of the facts stated in it.
132. The certificate of a registration officer that any person is or is not, or was or was not at any particular time, duly registered in his register in respect of any address shall be sufficient evidence of the facts stated in it; and a document purporting to be such a certificate shall be received in evidence and presumed to be such a certificate unless the contrary is proved.
133.—(1) Where information is given to the Director of Public Prosecutions that any offence under this Order has been committed it is his duty to make such inquiries and institute such prosecutions as the circumstances of the case appear to him to require.
(2) The Director by himself or by his assistant or by his representative appointed under paragraph (3) may and, if the election court so requests him, shall attend the trial of every Assembly election petition.
(3) The Director may nominate a barrister or solicitor to be his representative for the purposes of this Part.
(4) There shall be allowed to the Director and his assistant or representative for the purposes of this Part (other than his general duties under paragraph (1)) such allowances for expenses as the Treasury may approve.
(5) The costs incurred in defraying the expenses of the Director incurred for those purposes (including the remuneration of his representative) shall, in the first instance, be paid by the Treasury, and shall be deemed to be expenses of the election court; but if for any reasonable cause it seems just to the court so to do, the court shall order all or part of those costs to be repaid to the Treasury by the parties to the petition, or such of them as the court may direct.
134.—(1) The authority having for the time being power to make rules of court for the Supreme Court(55) may make rules for the purposes of Part 3 of this Order and this Part.
(2) In relation to the power conferred under paragraph (1) to make rules—
(a) that power shall be exercisable by statutory instrument, and be treated for the purposes of the Statutory Instruments Act 1946 as if conferred by an Act of Parliament on a Minister of the Crown, and
(b) a statutory instrument containing rules under paragraph (1) shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(3) Subject to any rules made under paragraph 1, the Election Petition Rules 1960(56) shall have effect (subject to the modifications set out in Schedule 9) in relation to an Assembly election petition as if made in the exercise of the power conferred by paragraph (1).
135.—(1) The rules of the Supreme Court with respect to costs to be allowed in actions, causes and matters in the High Court shall in principle and so far as practicable apply to the costs of petition and other proceedings under Part 3 of this Order or this Part and the taxing officer shall not allow any costs higher than would be allowed in any action, cause or matter in the High Court on a standard basis.
(2) Where any costs or other sums are, under the order of an election court or otherwise under this Part, to be paid by any person, those costs or sums shall be due from that person to the person or persons to whom they are to be paid and, if payable to the Treasury, shall be a debt due to Her Majesty and in either case may be recovered accordingly.
136.—(1) Any notice, legal process or other document required to be served on any person with reference to any proceeding for the purpose of causing him to appear before the High Court, a county court, or any election court, or otherwise or of giving him an opportunity of making a statement, or showing cause, or being heard by himself before any court for any purpose of this Part may be served—
(a) by delivering it to that person, or by leaving it at, or sending it by post by a registered letter or by the recorded delivery service to his last known place of abode in the Assembly constituency or, as the case may be, electoral region for which the election was held; or
(b) if the proceeding is before any court in such other manner as the court may direct.
(2) In proving service by post under this article it shall be sufficient to prove that the letter was prepaid, properly addressed, and registered or recorded with the postal operator (within the meaning of the Postal Services Act 2000(57)) concerned.
137.—(1) In this Part, unless the context otherwise requires—
“candidate” has the same meaning as in Part 3 of this Order and the saving in article 83(1) applies in relation to this Part as in relation to Part 3;
“costs” include charges and expenses;
“date of the allowance of an authorised excuse” has the meaning assigned to it by article 58(9);
“Licensing Acts” means the Licensing Act 2003(58) and the Acts amending that Act, or the corresponding enactments forming part of the law of Scotland or Northern Ireland;
“money” and “pecuniary reward” shall be deemed to include—
any office, place or employment;
any valuable security or other equivalent of money; and
any valuable consideration,
and expressions referring to money shall be construed accordingly;
“payment” includes any pecuniary or other reward;
“prescribed” means prescribed by rules of court; and
“return as to election expenses” means a return made under article 52.
(2) For the purposes of section 119 of the 1998 Act(59) anything required by this Part to be published by the Presiding Officer of the Assembly shall be treated as being required to be published by the Assembly.
138. Article 85 applies in computing any period of time for the purposes of this Part as it applies for the purposes of Part 3 of this Order.
S.I. 2004/293. Back [53]
1980 c. 43. Back [54]
When section 59(1) of the Constitutional Reform Act 2005 (c. 4) comes into force, references to “Supreme Court” are to be construed as references to the “senior courts of England and Wales”. Back [55]
S.I.1960/543 and see the footnote to paragraph 1 of Schedule 9. Back [56]
2000 c. 26 (section 125(1)). Back [57]
This provision will be repealed at the end of the initial period, and it will be a matter for the new Presiding Officer of the Assembly and the new National Assembly for Wales to determine how publication shall be effected. Back [59]
The National Assembly for Wales (Representation of the People) Order 2007