The Electoral Commission finally confirmed last Friday that it will not be appealing the judgment against it in July that cleared Brexit campaigner – and former BrexitCentral Deputy Editor – Darren Grimes of electoral offences. Despite his complete exoneration, Darren’s successful appeal against the findings of the Commission has been widely (and in some quarters perhaps wilfully) misunderstood. There have been widespread comments on social media to the effect that the judge decided to “let him off” because the Commission’s forms were complicated. In fact, Darren won comprehensively and the Electoral Commission was shown to be entirely at fault in its flawed findings against him.
The Commission’s decisions in respect of Vote Leave have also been subject to further comment in the light of the prominence of a number of its personnel in the new Government, not least the Prime Minister, Boris Johnson. Regrettably, financial considerations (it could have resulted in a seven-figure bill) meant that Vote Leave did not pursue its appeal against the Commission’s fine, but there are many elements of the judgment in Darren’s case which indicate that, had it gone forward, Vote Leave would also have succeeded in clearing its name.
Regarding Darren, His Honour Judge Dight did not “let him off” on grounds of youth, confusion or anything else. In a comprehensive judgment taking more than two hours to deliver, he found that the Commission had been wrong in fact and law when it determined that Darren had not notified his campaign group BeLeave as a permitted participant in the 2016 referendum, and had therefore submitted an incorrect spending return. The Commission’s case was that in March 2016 Darren had filled in the Commission’s form as an individual because he ticked the box for that option, and that in any event BeLeave did not, they claimed, exist as an unincorporated association at the relevant time, so couldn’t have been notified. In making its determination (after its third investigation of the matter, having found no violation in its first two investigations) the Commission:
- relied on (the judge found) an incorrect interpretation of the common law definition of an unincorporated association
- reversed the burden of proof that it should have applied in its investigation (by requiring Darren to prove facts rather than itself disproving those facts beyond reasonable doubt)
- incorrectly interpreted the relevant statutes
- relied on assertions from certain individuals (the self-styled ‘whistleblowers’) that were both self-contradictory and clearly inconsistent with proven facts
The judge found that BeLeave did exist, was capable of being a permitted participant in the referendum, was duly notified as such and that no breach of the spending rules in the referendum had been committed by Darren. In its investigation, the Commission alleged that it had not noticed BeLeave was named on the form and admitted that the form ‘on the face of it’ had actually notified it of BeLeave. The fact that the wrong box was ticked did not mean that Darren had not notified the Commission of BeLeave – it had been – and the ambiguous nature of that particular question, and the clear information elsewhere on the form, meant that the box-ticking error was not material to the effectiveness of the notification.
So for Darren, this was conclusive: the spending by BeLeave had been duly reported and no offence committed. This meant that in his case there was no need for the judge to consider whether the spending in question was incurred as part of a common plan with Vote Leave. The Commission had found that it was, and that it should have also counted as Vote Leave’s spending, which would have taken it over the statutory limit on campaigning during the referendum period. This was the reason for the fine imposed on Vote Leave.
Yet the Commission’s finding that there was a common plan between Vote Leave and BeLeave suffered from the same evidential and legal flaws that were exposed by Darren’s appeal: it was wholly reliant on the same ‘whistleblower’ evidence that the judge had found was the sole basis for the findings of fact made against Darren. The judge found that the Commission had failed to consider the considerable material provided by Darren and Vote Leave; and this material was just as much concerned with the joint spending allegations as it was with those affecting only Darren. This evidence cast doubt on the credibility of the ‘whistleblowers’, tended to show that the BeLeave expenditure was under its sole control and included minutes of meetings of Vote Leave in which steps were taken to ensure spending was kept separate. In an important piece of evidence, the Commission was directed to documentation from Facebook and Alternative IQ that none of the data from Vote Leave’s ‘target’ individuals was actually used by BeLeave.
While the judge made no specific findings regarding common plan expenditure, he did find that the Commission had reversed the burden of proof; it took evidence against Darren at face value; failed to consider evidence doubting the self-styled whistleblower’s credibility; and failed to consider evidence contradicting their accounts. The judge’s findings surely apply just as much to the Vote Leave issue as it does to whether BeLeave was an unincorporated association.
One critical finding the judge did make was that BeLeave did exist independently as an unincorporated association and had not just been established for Vote Leave to make a donation to it. This was a key plank of the ‘whistleblower’s’ – and the Commission’s – case against Vote Leave: that there was a joint plan with Darren to establish BeLeave, in order to divert funding that Vote Leave could not spend itself. Yet BeLeave, the judge found, had already existed for several months at the time of the donation from Vote Leave and was operating a campaign that both needed funding and was capable of making decisions as to how to use such funding.
It is unfortunate that Vote Leave ultimately could not raise the money to cover the financial risks involved in pursuing its appeal; their case was more complex than Darren’s, the court had refused to cap the costs that the Commission could have claimed from Vote Leave had the Commission won and the judge had refused Vote Leave permission to put the Electoral Commission’s key figures on the stand to be cross-examined. In the event, to the extent that the judgment in respect of Darren would have been relevant to Vote Leave (in particular the inconsistencies in the whistleblower evidence, the misapplication of the burden of proof and above all the Commission’s failure to consider relevant evidence provided by Vote Leave), the signs are that Vote Leave would very likely have succeeded in its own appeal.
Vote Leave is nonetheless still pursuing its Judicial Review of the Electoral Commission’s actions, which it has been fighting for the past year. In addition to the material it has already created for that Judicial Review, Vote Leave will now be able to highlight the new material that has resulted from Darren’s action, including the comments of the judge that undermine the claims of Vote Leave’s detractors.
So I trust that all BrexitCentral readers will share in my delight that Darren won his brave fight; indeed, all democrats should rejoice at the brave and tenacious way in which he took on the burden of challenging and exposing the Electoral Commission – a body which has now been shown to have made serious errors and misjudgments in discharging its functions.
A Schedule of the findings of the Electoral Commission and the evidence available to them but not considered was adduced in open court in Darren Grimes’ appeal and is available here
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