The Homicide and Major Organised Crimes Command unit of the Metropolitan Police recently contacted organisers of Operation Croissant to tell them that their plan to hand out free croissants to commuters in London is banned as a “corrupt practice” under section 114 of the Representation of the People Act 1983.
Section 114 falls under the heading “Bribery, treating and undue influence”. Section 113 deals with bribery while section 114 deals with “treating”, which is exactly what it sounds like – giving somebody a treat to influence their decision to vote or refrain from voting. Section 114 reads:
(1 )A person shall be guilty of a corrupt practice if he is guilty of treating.
(2) A person shall be guilty of treating if he corruptly, by himself or by any other person, either before, during or after an election, directly or indirectly gives or provides, or pays wholly or in part the expense of giving or providing, any meat, drink, entertainment or provision to or for any person—
(a)for the purpose of corruptly influencing that person or any other person to vote or refrain from voting; or
(b)on account of that person or any other person having voted or refrained from voting, or being about to vote or refrain from voting.
(3) Every elector or his proxy who corruptly accepts or takes any such meat, drink, entertainment or provision shall also be guilty of treating.”
Section 114(1) tells us that “corrupt practice” is the offence and sub-section 2 sets out how the offence is committed. We see the word “corrupt” and “corruptly” repeated several times, according to my dictionary the word means:
1. having or showing a willingness to act dishonestly in return for money or personal gain.
"unscrupulous logging companies assisted by corrupt officials"
synonyms: dishonest, dishonourable, unscrupulous, unprincipled, amoral, untrustworthy, underhand, deceitful, double-dealing, disreputable, discreditable, shameful, scandalous;
1. cause to act dishonestly in return for money or personal gain.
"there is a continuing fear of firms corrupting politicians in the search for contracts"
synonyms: bribe, suborn, buy, buy off, pay off
So, to be corrupt a person should be acting dishonestly or causing another to do so – in the case of an election I’d suggest that means the person giving the treat is giving the treat as payment for the voting or the refraining from voting. Therefore, the mens rea of the offence must be that the person giving the treat dishonestly intends that the treat will influence the person receiving the treat to either vote or refrain from voting. You could also argue that the person giving the treat must intend the person receiving the treat will act dishonestly in making his or her decision to vote or not vote. At this point, it’s worth considering the intention of Parliament when this Act was passed and, we’ve already seen that “treating” falls into the same category as “bribery”. What’s the difference? Section 113 requires “money” to be paid to “induce any voter to vote or refrain from voting” while section 114 is effectively payment by anything other than money. Therefore, we can be sure that the intention of Parliament was to stop people being bribed for their vote.
So, the big question is, “were the plans of Operation Croissant a crime in the UK?” To answer that we have to look at their plans and intentions.
You can read their own words on their website. It seems that the plan was to travel from Paris with pastries and post cards with personal notes from Parisians that say how they feel about the UK remaining within the EU:
“The point is to show how close we are. It’s not a grand political gesture; it’s not designed to spark debate or court controversy. Quite the opposite. It’s simply an act of breaking bread.”
Let’s run through the offence. Are they “giving or providing any meat, drink, entertainment or provision”? Yes. Clearly they are. Next we ask, is the purpose to “corruptly influence that person or any person to vote or refrain from voting”? As we’ve seen, the Act is really asking whether the person giving the treat is doing so corruptly to influence the receiver to act dishonestly? I remind myself that section 114 reflects the bribery offence in section 113. I find that I cannot conclude that Operation Croissant, based on what they’ve said previously planned to act corruptly or to dishonestly influence voters.
On that basis, I cannot see that their plan would have breached section 114 of the Representation of the People Act 1983.
In saying this, I realise I am up against some pretty stiff competition from Professor Bob Watt, a specialist on electoral law at the University of Buckingham who takes the view that this sort of thing is clearly a crime and that the police were correct to prevent the organisers of Operation Croissant going ahead.