2. Intimidation of voters - undue influence
- Voters should be protected from being intimidated to vote in a particular way or not to vote.
- We welcome the UK Government’s review of the offence of undue influence and continue to support the modernisation and simplification of all aspects of this offence.
- Any changes to the current laws on undue influence must be clearly and simply defined with workable definitions.
- We continue to recommend that any changes should be made as part of a comprehensive reform of all electoral offences, as set out in the UK Law Commissions’ 2016 recommendations. Many electoral offences are complex, out of date and not easily understood and reforming undue influence alone risks adding further complexity without addressing many of the problems with the legislation.
- We would be pleased to work with the UK government and with prosecutors and police, who can advise on how the law will work in practice.
Simplifying the law on undue influence
Question 13: Do you agree that the law of undue influence requires greater clarity in its application? If not, please explain.
- We agree the law of undue influence requires greater clarity and we support a revised and more clearly defined offence.
- Simplifying undue influence would deliver one of the UK’s Law Commissions’ proposals, recommendation 11-4, for comprehensive electoral law reform. The Government should also bring forward proposals for implementing the other recommendations published in February 2016.
There must be trust and confidence in the integrity of the electoral process. Modern and clear electoral law offences are a central part of ensuring this. People who must comply with the law, and those who enforce the law, need to understand what behaviour is prohibited and the associated punishments.
We said, in our 2015 response to the Law Commissions’ consultation on electoral law reform that the offence of undue influence is perhaps one of the most complex of all electoral law offences and we would support simplification.
We also supported the simplification and modernisation of the offences of treating and bribery. These are also complex offences closely linked to undue influence.
We remain concerned that the changes proposed by the UK Government would not go far enough to simplify the current range of electoral offences. We continue to recommend that any changes to undue influence should take place as part of a comprehensive reform of electoral offences, alongside a simple, modernised process of challenging an election. Reforming undue influence alone risks adding further complexity without addressing many of the problems with the legislation.
Question 14: If it is decided to simplify the existing offence of undue influence, we do not propose to materially change the element of the offence relating to physical acts of violence or threat of violence. Do you agree? If not, please explain.
- We agree that physical acts of violence or threat of violence should stay in the offence of undue influence. However it should be simplified and clearly defined.
We think that the suggested definitions of physical acts of violence or threat of violence set out in the consultation document are a useful basis for simplification.
Question 15: Any act, whether lawful or unlawful, which is intended to cause harm to the individual and is carried out with the intention to make a person vote, vote in a particular way, or deter them from voting and should be captured within this offence. Do you agree? If not, please explain.
- We agree these should be covered by the offence. The UK Government should also revisit and simplify the definition of harm.
The Oxford English Dictionary contains three definitions of “harm”: physical injury, especially that which is deliberately inflicted; material damage and; actual or potential ill effects or danger. It is important that it is clear which of these definitions apply to the offence of undue influence.
Our understanding is that harm is meant to be broader than just physical injury. Therefore, any definition of harm put forward by the UK Government should include all three of the definitions listed above.
The consultation question does not refer to the offences of loss, damage or temporal and spiritual injury. These are captured under the existing offence of undue influence.
It should be clear whether these will be included under the definitions of harm or duress, or removed from the offence entirely. We would be concerned if they were removed entirely.
Question 16: We propose to retain reference to ‘direct and indirect’ acts which cause the elector harm. Do you agree? If not, please explain.
- We believe that this reference should be retained. What constitutes ‘direct and indirect’ acts must be clearly defined.
We believe an ‘indirect’ act is difficult to define and must be considered as part of clarifying the offence of undue influence. We think that the suggested definitions of direct and indirect acts which cause an elector harm set out in the consultation document are a useful basis for simplification.
Question 17: We propose that the redefined offence retains reference to offences committed by or on behalf of a perpetrator in relation to acts that cause the elector harm. Do you agree? If not, please explain.
- We agree that reference should be retained to “offences committed by or on behalf of a perpetrator”.
Question 18: We propose that the scope of section 115(2)(a) continues to include those acts which are carried out before and after the election. Do you agree? If not, please explain.
- We agree that this offence should cover acts carried out before and after the election. There should be no uncertainty as to what is an offence.
- In our 2015 response to the UK’s Law Commissions’ consultation on electoral law reform, we asked that additional consideration be given to the issue of when electoral offences can be committed. We still hold this view.
The law currently takes a variety of different approaches to when electoral offences can be committed. Some offences may be committed ‘before, during or after an election’, some can only be committed ‘before or during an election’ and others can only be committed ‘at an election’.
There may be justifiable reasons for different approaches being taken for each offence, or it may be that a more consistent approach should be taken. Either way, we would like to see greater clarity in the law on the timing of when offences are committed to ensure greater consistency. People who must comply with the law, and those who enforce the law, need to understand what behaviour is prohibited and the associated punishments.
Question 19: Do you agree that the offence should continue to cover actions of duress? If not please explain.
- We agree that the offence should continue to cover duress with a clear definition.
We said in our 2015 response to the UK’s Law Commissions’ consultation that duress should be retained. Consideration should be given to its definition to avoid complicated drafting and to separate it from ‘duress’ as used in criminal and contract law.
The law should stop anyone from forcing a person to vote for a particular candidate or to not vote at all. However, it is important that when defining a simplified undue influence offence, it does not conflict with the right to freedom of expression.
Many people will legitimately want to persuade others to vote for certain candidates, and any restrictions on this freedom will need careful consideration. We are conscious that there are some electors who may be more vulnerable to pressure or undue influence because of their personal position within a family, social group or wider community, who might benefit from greater protection. We would expect any modernised definition of undue influence or duress to be capable of identifying and being applied to this type of influence.
Question 20: Any redefined offence would still look to cover actions of trickery. Do you agree? If not, please explain.
- We agree that the actions of trickery should remain and should be clearly defined.
The UK government could use the simplified definition of the actions of trickery set out in the consultation document rather than the existing definition: ‘any fraudulent device or contrivance’. We think that the suggested definitions of the actions of trickery set out in the consultation document are a useful basis for simplification.
Intimidation at polling stations
Question 21: Do you agree that the scope of the offence should remain the same, subject to including a specific reference to intimidation at polling stations? If not, please explain.
Question 22a: Do you agree that the offence should specifically capture intimidatory behaviour carried out inside or outside of the polling station? If not, please explain.
Question 22b: If so, do you agree that the definition should include behaviour which falls below the current requirement of physical force, violence or restraint?
- We do not agree with adding a specific reference to intimidation at polling stations to the offence of undue influence. Simplifying and modernising the offence of undue influence, and providing clear definitions, should ensure intimidation at polling station is covered without needing to make a specific reference to it.
- However, if the UK Government decides to include specific reference to intimidation at polling stations there must be a clear, workable definition of what activity should and should not be prohibited.
We agree that electoral law should include offences that deter and punish intimidation and coercion of voters, which can be used by police forces and prosecutors in addition to general public order offences.
However, we also agree with the 2016 UK’s Law Commissions’ concerns about lowering the bar of undue influence to include any behaviour which could be reasonably considered as intimidation at a polling station. The Law Commissions highlighted that perceptions of what is “intimidation” will vary, and therefore must be clearly defined. This will ensure that rights to free speech and assembly are not infringed. It would also be important to ensure that people understand what is “outside a polling station”.
Consideration of additional electoral law offences
We want the UK Government to consider creating the following postal voting offences:
- In our response to the recommendations from Sir Eric Pickles’ 2016 review of electoral integrity we supported extending the offences contained in Section 66 of the RPA to postal voting. The secrecy of the ballot protections that apply to in person voting, would then apply to postal ballots. There should be greater consistency and equivalency between offences which may be committed in a polling station or at a count, and elsewhere, including in a voter’s home.
- We recommend that the UK’s Governments should change the law so that candidates, parties and campaigners are not allowed to handle or take completed absent vote applications or postal ballot packs from voters, but ensure sufficient safeguards are in place to protect legitimate assistance.