Alison HERNANDEZ Criminal investigation into allegations against the Police and Crime Commissioner of Devon and Cornwall Police Please note, this investigation was completed and submitted to the decision maker before 8 January 2018, while we were still the IPCC. Therefore, the report will contain the investigator’s opinion that may differ from the final outcome. The report refers to the IPCC and the Commission throughout, and does not reflect the new structure of the IOPC. Please note that redactions have been made on the basis of the harm test and naming policy, some minor amendments have been made following representations and some typographical errors have been corrected. Managed investigation report Investigation information Investigation name: Alison HERNANDEZ IPCC reference: 2016/066000 IPCC office: Birmingham Lead investigator: Det Supt Damian Barratt Case supervisor: Tim Godwin Commission delegate: Sarah Green Status of report: Final Date finalised: 19/04/17 Contents Introduction .............................................................................................................. 6 The investigation ...................................................................................................... 6 Criminal offences under investigation ................................................................. 11 Summary of the evidence ...................................................................................... 13 Analysis of the evidence ....................................................................................... 38 Conclusions ............................................................................................................ 40 Appendix 1: The role of the IPCC............................................................................ 2 Appendix 2: Timeline of events .............................................................................. 5 Appendix 3: Investigation strategy ......................................................................... 9 Appendix 4: Challenges encountered in the investigation ................................... 8 Appendix 5: People referred to in this report ...................................................... 13 Appendix 6: Evidence referred to in this report .................................................. 15 Introduction The purpose of this report 1. The lead investigator, Detective Superintendent Damian Barratt of West Mercia Police, was appointed by the IPCC to carry out a managed investigation into allegations that Ms Alison HERNANDEZ failed to properly declare election expenses in 2015 when she acted as agent for Conservative candidate Kevin FOSTER in the parliamentary constituency of Torbay for the General Election of May 2015. 2. This investigation was managed by the IPCC because at the time the allegations became known Ms HERNANDEZ had been elected as the Police and Crime Commissioner for Devon and Cornwall and any investigation of a Police and Crime Commissioner, must be dealt with in accordance with the Elected Local Policing Bodies (Complaints and Misconduct) Regulations 2012, even though the offence indicated may have been committed prior to their term of office. 3. This is my report for the commission. It summarises and evaluates the evidence, and refers to relevant documents. 4. On receipt of this report, the Commission will decide whether to refer the case in relation to Ms HERNANDEZ to the CPS. Decisions whether to refer Mr FOSTER (or anyone else mentioned in this report) will be made by West Mercia Police. The investigation Terms of reference 5. The terms of reference for this investigation were approved by Commission Delegate Sarah Green on 3 June 2016. The terms of reference specific to this investigation are: a) The investigation concerns the alleged conduct of relevant office holder, Ms Alison HERNANDEZ, the newly elected Devon and Cornwall PCC. b) To investigate expenses claimed and returns submitted by Ms Alison HERNANDEZ in her role as election agent for Mr Kevin FOSTER during the 2015 General Election. c) To prepare a final report for the Commissioner. On receipt of the final report, the Commissioner shall determine whether an offence may have been committed by the PCC and whether it is appropriate for it to be considered by the Director of Public Prosecutions. The Police and Crime Panel and any interested party, will be informed of whether or not the DPP has been asked to consider the report. A copy of the report will be sent to the Police and Crime Panel when published. Background information – summary of allegations For publication 4 6. West Mercia Police are conducting an investigation into the accuracy of election expenses returns and declarations submitted by Kevin FOSTER (MP) and his Election Agent Alison HERNANDEZ (now Police and Crime Commissioner for Devon and Cornwall Police) following the UK Parliamentary election held on 7th May 2015. Mr FOSTER was contesting the Torbay seat. 7. In order to summarise the allegations it is important to understand the rules and regulations that surround elections in relation to spending, the training and qualifications for election agents and the facts surrounding the candidacy of Mr FOSTER. I will outline these issues before providing a summary of the allegations in this case. 8. Rules on election spending The Electoral Commission (EC) guidance for candidates and agents for the UK Parliamentary General Election 2015 (UKPGE) explains the rules concerning election spending. In accordance with this guidance:- The rules on spending apply to spending on activities to promote a candidate or to criticise other candidates during the regulated period. The regulated period The regulated period is a set time when spending limits and rules apply. There were two regulated periods for candidates contesting the UK Parliamentary general election known as the long campaign and the short campaign. The long campaign For the UKPGE 2015, the long campaign began on 19th December 2014 and ended on the day before an applicant officially became a candidate. The short campaign The short campaign began on the day an applicant officially became a candidate until polling day, 7th May 2015. The date an applicant becomes a candidate The earliest date an applicant could officially become a candidate was the day that the UK Parliament was dissolved, i.e. 30th March 2015. An applicant would become a candidate on 30th March 2015 if they or others had already announced an intention to stand. For example, a party may have issued a press release when a candidate was selected, or a candidate might have announced their intention at a residents’ meeting. If a candidate’s intention to stand had not been announced by the day of the dissolution of Parliament, they officially became a candidate on the earlier of:- For publication 5 The date a candidate or another person declared the candidate’s intention to stand The date when a candidate was nominated Who may incur election spending In accordance with Section 75 (1) RPA, in relation to candidate spending during the regulated period, the only people allowed to incur election spending are:- The agent The candidate Anyone authorised by the candidate or agent Once appointed the agent must keep invoices or receipts for any payments of £20 and above. Spending limits The EC guidance advises that candidate spending includes any expenses incurred, whether on goods, services, property or facilities, for the purposes of the candidates election during the regulated period. This includes:- Items or services bought before the regulated period begins but used during it Items or services given to you free of charge or given to you at a non-commercial discount of more than 10% Available spending For the long campaign the available spending for Torbay Constituency for each candidate amounted to £30,700 plus 6p per registered Parliamentary elector. There were 75,298 registered Parliamentary electors giving each candidate total available spending of £35,217.88. For the short campaign the available spending for Torbay Constituency for each candidate amounted to £8,700 plus 6p per registered Parliamentary elector. Considering 75,298 registered Parliamentary electors this gave each candidate total available spending of £13,217.88. What is included in candidate spending Advertising of any kind e.g. posters, newspaper adverts, websites or YouTube videos Unsolicited material sent to voters e.g. letters, leaflets, emails (not sent in response to specific queries) Transport costs for you or your campaigners Public meetings Staff costs e.g. agents salary Accommodation e.g. campaign office Administrative costs e.g. telephone bills, stationery, photocopying and use of databases For publication 6 Items received free of charge or at a discount and ‘notional spending’ The EC guidance states that candidate spending includes any expenses incurred, whether on goods, services, property or facilities and includes …items or services given to you free of charge or given to you at a non-commercial discount of more than 10%...and includes accommodation e.g. campaign office - on this basis the furniture could be considered to be an election expense. The EC guidance states that you must recall the full commercial value of these items or activities as candidates spending if: You receive the item free of charge or at a non-commercial discount (i.e. special discounts given to you that are not available on the open market) of more than 10% and The difference between the commercial value and