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 what you pay is more than £50
The difference between the commercial value and the price you pay is called notional spending. Notional spending of more than £50 will also be a donation.
Donations
A donation is money, property, goods or services which are given:
Towards your candidate spending Without charge or on non-commercial terms
And has a value of over £50. Anything with a value of £50 or less does not count as a donation.
9. Training and qualification for Election Agents Alan MABBUTT of Conservative Campaign Headquarters (CCHQ) was, at the time of the 2015 UKPGE, Head of Local Government and Legal Officer for the Conservative Party. Mr MABBUTT has confirmed that Election Agents would have been invited to training events, however, due to the passage of time CCHQ no longer hold records of who attended.
Mr MABBUTT can say that CCHQ sent each Agent a Campaign Pack and part of this was a 48 page ‘General Election 2015 Campaign Pack’ document.
This document covered all aspects of the election campaign and it gave advice around ‘Tracking your expenses’, namely:-
“It is vital that you produce a detailed campaign budget and keep track of your spending throughout the long and short election campaigns”.
“At any given time during the long and short campaign you should know exactly how much money you have spent and how much you have remaining in your budget”.
For publication 7 In addition to the literature distributed by CCHQ, the Electoral Commission also produced guidance, namely ‘UK Parliamentary general election 2015 – Guidance for Candidates and Agents’.
10. Facts surrounding Mr FOSTER’s candidacy Caroline TAYLOR was the Acting Returning Officer for Torbay Constituency during the 2015 UKPGE. She has provided a statement dated 20th July 2016 in which she confirms the following:-
That candidate Kevin FOSTER submitted his nomination paper (CT01), his consent to nomination form (CT02), his certificate giving authority to use the Conservative Party name (CT03) and his written request to use the Conservative Party emblem (CT04) to Torbay Council on 2nd April 2015.
No objections were raised and accordingly on 9th April 2015 Torbay Council’s Caroline TAYLOR published her statement of persons nominated (CT06).
Kevin FOSTER was elected as the Member of Parliament for the Torbay Constituency on 7th May 2015, the announcement being made on 8th May 2015 by the Returning Officer (Jane BARNBY).
Torbay and Totnes Constituencies
Torbay is divided into two Parliamentary areas – Torbay and Totnes. Torbay covers Torquay and most of Paignton. Totnes covers Totnes, Brixham, Dartmouth, Kingsbridge and Salcombe.
During the elections of May 2015, not only were local residents voting in the Parliamentary election, they were also voting for the local Mayor (who would cover the entire Torbay area covering both the Torbay and Totnes districts) and also for their local Government Councillors for Torbay Unitary Authority (again covering the Torbay and Totnes districts).
The successful Parliamentary candidate for the Totnes area was Dr Sarah WOLLASTON. She is not subject to any election expenses investigation.
11. Summary of the allegations In broad terms the allegations revolve around the following:- There are no accurate records of the expenses attributed to the battle bus visit which took place on the 29th April 2015, namely the transport itself, refreshments and accommodation. The date that Kevin FOSTER became a candidate appears to be inaccurate. Inaccurate recording of election expenses by attributing a proportion of some invoices to candidates involved in the local government and Mayoral elections that were being held on the same date. It would appear that some of these expenses should not have been divided up as they were.
For publication 8 On occasions when invoices were divided between Parliamentary, local and Mayoral campaigns, imprecise calculations were made thereby rendering the election returns inaccurate. Where some invoices were identified as being the responsibility of the Kevin FOSTER campaign, only a proportion of the invoice value has been recorded on the electoral expenses returns. Some invoices produced by suppliers have not been recorded on the electoral expenses returns. Postage costs appear to be under valued as has the use of direct mail. Telephone costs appear to be under valued. Discounts and items given for free have not been attributed to notional spending or recorded as donations. No recorded costs for any additional services provided by social media.
Criminal offences under investigation
12. The criminal offences considered in this investigation were as follows: Section 82 (6) Representation of the People Act 1983 Section 75 (5) Representation of the People Act 1983 13. All offences under investigation fall under the Representation of the People Act 1983 (RPA). S81 RPA
(1) Within 35 days after the day on which the result of the election is declared, the election agent of every candidate at the election shall deliver to the appropriate officer a true return containing as respects that candidate …
S82 RPA
(1) The return delivered under section 81(1) above shall be accompanied by a declaration made by the election agent in the appropriate form.
(2) At the same time that the election agent delivers that return, or within seven days afterwards, the candidate shall deliver to the appropriate officer a declaration made by him in the appropriate form……
(6) If a candidate or election agent knowingly makes the declaration required by this section falsely, he shall be guilty of a corrupt practice.
S84 RPA
… if a candidate or election agent fails to comply with the requirements of section 81 or section 82 above he shall be guilty of an illegal practice.
For publication 9 S75 (1) RPA states that “no expenses shall, with a view to promoting or procuring the election of a candidate at an election, be incurred by any person other than the candidate, his election agent and persons authorised in writing by the election agent …”
Section 75 (2) RPA states that “where a person incurs any expenses required by this section to be authorised by the election agent (a) that person shall within 21 days after the day on which the result of the election is declared deliver to the appropriate officer a return of the amount of those expenses, stating the election at which and the candidate in whose support they were incurred, and (b) the return shall be accompanied by a declaration made by that person verifying the return and giving particulars of the matters for which the expenses were incurred”.
Section 75 (5)
… if a person incurs, or aids, abets, counsels or procures any other person to incur, any expenses in contravention of this section, or knowingly makes the declaration required by subsection (2) falsely, he shall be guilty of a corrupt practice. 14. Defence R v. Jones and Whicher (1999)
“Honest belief in the truth of the declaration …is a complete defence…the nub of the offence is the declaration of an honest belief in the accuracy of a disclosure which is known to be incomplete or inaccurate”. 15. Application for extension of time (S176 RPA) The RPA imposes a 12 month time limit to commence proceedings from the date on which the offence is committed. This time limit can be extended by Order of a Court under S176 if it can be shown that there are exceptional circumstances for such an order and there had been no undue delay in the investigation.
On 19th May 2016 Devon and Cornwall Police made a successful application under S176 at Chippenham Magistrates Court. This order extended the time limit to commence proceedings by a further 12 months, therefore as Mr FOSTER and Ms HERNANDEZ submitted their signed declarations in relation to their expenses returns on 5th June 2015, the extended deadline for commencement of proceedings will be 5th June 2017. The application provides an extension for offences under section 82(6) and section 75(5) of the RPA.
Of note, both Mr FOSTER and Ms HERNANDEZ have been represented by Nama ZARROUG of Manleys Solicitors. From the outset she has stated that if CPS decides to prosecute in this case, then she will be paying particular attention to the information supplied to the District Judge by Devon and Cornwall Police. She is of the opinion that the S176 extension was granted only for the purpose of exploring and investigating the battle bus expenses and that such extension granted would not therefore cover any other irregularity arising. This point was particularly covered during the interview of Mr FOSTER.
For publication 10 On this point, Mr FOSTER commented in interview that he believed that in correspondence he received from Devon and Cornwall Police, they had been specific that the allegations surrounded the issue of the battle bus only. In reviewing this correspondence post interview, the letter referred to is dated 16th May 2016 but its content is much broader that just the battle bus, as Mr FOSTER implied. It specifically requests Mr FOSTER should “seek to retain all material including emails and other digital material which pertain to the 2015 general election campaign. This most particularly includes all matters relating to the use of the Conservative campaign bus, the volunteers and campaign material used by them”. A like version was sent to Alison HERNANDEZ on the same date.
In addition, to the above correspondence from Devon and Cornwall Police, the order of extension specifically cites “that there are exceptional circumstances which justify the granting of an application to extend time for investigation of alleged offences under sections 75, 81, 82 and 84 of the act”. Furthermore, the order goes on to direct that the Returning Officer/Torbay Council should not destroy records in relation to the 2015 General Election campaign for Mr FOSTER.
Whilst the information in the supporting application does make reference to the expenses around the Battlebus Campaign, the background section specifically states “it is alleged that…..candidates for the Conservative Party and their election agents deliberately concealed election expenditure incurred in respect of the campaign* [*refers to the UKPGE campaign] and made false declarations as to the accuracy of the return of election expenses signed and submitted by them.” In this respect the application talks about the whole return/declaration, not just the aspects in relation to the Battlebus. It will be for the Commissioner, the CPS and ultimately a court, if charges are brought, to determine if the extension covered the whole expenses return and extended the time limit for any offences under sections 82(6) and 75(5) that arose from this return.
Summary of the evidence
16. During this investigation a volume of evidence was gathered. After thorough analysis of all the evidence, I have selected the evidence I think is relevant and answers the terms of reference for my investigation. As such, not all the evidence gathered in the investigation is referred to in this report. 17. However, the methodology of the investigation, including key decisions that were made, strategies that were set, and details of people referred to in this report are included in the attached appendices.
18. General evidence pertinent to all allegations Election expenses return and signed declaration
The signed declaration for Alison HERNANDEZ, dated 5th June 2015 states:-
For publication 11 “I have examined the return of election expenses … delivered by me …and to the best of my knowledge and belief it is a complete and accurate return as required by law”.
The signed declaration for Kevin FOSTER, dated 5th June 2015 states:-
“I have examined the return of election expenses ….about to be delivered by my agent … and to the best of my knowledge and belief it is a complete and accurate return as required by law”.
Interviews of Kevin FOSTER and Alison HERNANDEZ
Interviews in connection with this allegation were recorded on a voluntary basis. Each suspect was represented by Nama ZARROUG of Manleys Solicitors and advance disclosure was provided. Interviews took place on 22 December 2016.
Interview of Kevin FOSTER
Kevin FOSTER confirmed that he has previous experience of being a local government election agent.
Mr FOSTER stated that he appointed Alison HERNANDEZ as his Agent as she had been employed by Torbay Conservative Association (TCA) as Election Manager and he believed she had received appropriate training as a result.
Mr FOSTER stated she was the obvious choice because of her qualifications albeit she did not have to produce any form of certificate to prove this1. In any event Mr FOSTER states he was aware that the representative for CCHQ within the region, called , had arranged training for her.
Mr FOSTER stated that HERNANDEZ managed the campaign budget but that he would be aware of where the budget stood when making decisions around additional spending.
Mr FOSTER stated that he was also aware of the available EC publications but ultimately he will state that it was Alison HERNANDEZ’ role to monitor the campaign spending.
Interview of Alison HERNANDEZ
Alison HERNANDEZ stated that she has previous experience of being an election agent albeit this was the first time she had acted as such in a Parliamentary election.
She stated that she had been offered training by CCHQ and she attended two events.
“Yes. There was two specific bits of training that we received. One is a week long course at the beginning when I was appointed as the campaign ….as the campaign manager which would have been in around 2013/2014, that would have happened. Early 2014. And then secondly, there was a two day course specifically on election law that took place as well which all the election agents that were new went on”.
1 However it should be noted election agents are not under a legal obligation to undergo formal training or gain a formal qualification
For publication 12 Ms HERNANDEZ stated that she did keep track of the UKPGE campaign expenditure and during this time there were discussions about how invoices would be split with other election campaigns running at the same time. Ms HERNANDEZ explained that it was agreed that for consistency invoices would generally be split into thirds; with one third of the cost going to the Parliamentary Candidate (Mr FOSTER), one third going to the Local Candidates and one third going to the Mayoral Candidate, where the product invoiced had been used by all three campaigns.
Ms HERNANDEZ stated that she no longer had copies of her records in relation to campaign spending. She can recall that some of the invoices in relation to the campaign were sent directly to TCA, however, she was in regular contact with the Association Treasurer, John COWIE, in order to discuss all invoices received.
Complainants
The main complainants in this case are Adrian SANDERS (the displaced former Liberal Democrat MP for Torbay) and Cordelia LAW. Both have provided witness statements containing their evidence in relation to the allegations made.
19. Evidence Pertinent to the Battlebus allegation No transport costs recorded Key evidence Documents recovered from Channel 4 News and witness evidence of Mr SANDERS and Ms LAW clearly shows that Battlebus 2015 visited Torbay on Wednesday 29th April 2015. presents an e-mail dated 23rd April 2015 from Mark CLARK (Founder and Director of ‘Roadtrip2015’) to Kevin FOSTER and Alison HERNANDEZ (NAP/1, document 3.8). This introduces the battle bus initiative. The email specifically states that the battle bus “…has the full financial, organisational and practical support of CCHQ” and requests that the bus visit the Torbay area on 29th April 2015. The email provides an agenda for the day (arriving at 9.45am and departing at 7.30pm). The strategy of the battle bus trip is quoted as being “…these campaign days are about voter conversations – not leafleting. As such we have done what we can to ensure that we have the right activists for this. We will also have some message training for the activists beforehand”.
Ms LAW observes that no costs for transportation in relation to the Battlebus visit are listed in the short campaign costs of Mr FOSTER when she believes its purpose was to promote the FOSTER campaign. She produces screen shots she has taken from the Twitter accounts for both Kevin FOSTER and ‘Roadtrip2020’ (CL03), (CL04), (CL05), (CL06), (CL07), (CL08) and (CL09) which she feels clearly show the battle bus being used in the Torbay Constituency promoting Kevin FOSTER’s campaign. Tweets include:
o ‘Today’s brilliant #Battlebus2015 team in Torbay with @kevin_j_FOSTER and @LiamFoxMP’ (CL04)
For publication 13 o ‘with ex-defence secretary @LiamFoxMP in Torbay assisting Kevin FOSTER @201 Torbay with #ELECTION2015 on #Battlebus2015’ (CL05) o ‘A huge thank you to all the #Battlebus2015 activists in #Torbay – amazing work today! @kevin_j_FOSTER #GE2015’ (CL07)
Mr SANDERS observes that the activists on board the battle bus were used specifically to support the Conservative candidate in Torbay. He states a Channel 4 researcher made direct contact with him and provided to him a three- page script (AS05) that each activist visiting Torbay was given. Page 1 covers national issues, page 2 regional issues and page 3 local facts and figures for the Torbay area including information about the Conservative and Liberal Democrat candidates. Mr SANDERS believes that the focus of such a script was to support the election of Kevin FOSTER in the Torbay constituency.
There are some general aspects covered within the ‘script’ document referred to by Adrian SANDERS that would appear to be party messages, however, when it comes to the local issues that the Conservatives wish to tackle specifically for Torbay, these are issues upon which Kevin FOSTER has campaigned:-
o Concern over possible funding cut to the English Riviera Tourism Company “Kevin hasn’t commented direct on this but supports plans for a Tourism and Retail Business Improvement District in Torbay” o Hotel proposal developments on the back of Torquay Pavilion and use of Cary Green for parking “Kevin has said he supports development of the pavilion but doesn’t want to see Cary Green destroyed” o Legal highs “Kevin is campaigning to stop the sale of legal highs”
Further, in his email of the 23rd April 2015, Mark CLARK asked for agreement for the battle bus to attend Torbay. S75 (1) RPA states that “no expenses shall, with a view to promoting or procuring the election of a candidate at an election, be incurred by any person other than the candidate, his election agent and persons authorised in writing by the election agent …” The EC guidance states that ‘if you authorise someone to incur candidate spending, then it is good practice to do so in writing and be clear how much is spent and on what’.
In relation to the bus itself, the email states that the FOSTER campaign would have “to arrange for any local transport in the seat. Please note that for legal reasons the Battlebus cannot ferry people around the seat”.
Finally, in relation to expenses and funding, the email stated the following:- “Our costs are met by donations and declared via CCHQ. We fund all activist refreshment. This is not an election expense. We fund all the hotel and transport. This is an election expense and is accounted for out of central campaign spend. You fund all election related materials. You expense this as appropriate”. During interview Mr FOSTER stated he was aware of the Battlebus visit but had no involvement with the message training or anything else. He disputed that the tweets presented by LAW showed a campaign on his behalf. He states Ms HERNANDEZ conducted checks concerning the e-mail from Mr CLARK to
For publication 14 ensure there would be no double accounting. Mr FOSTER did not contribute to the item Mr SANDERS refers to as a “script”. Mr FOSTER stated the e-mail was not asking for his approval for the Battlebus to come to Torbay; it was a national campaign and he asserts that if they wanted to they would have just come. Mr FOSTER did not travel on the Battlebus. During Interview Ms HERNANDEZ states that she did not authorise the visit, she merely facilitated it. She also stated she did not feel the tweets presented by Ms LAW showed evidence of a campaign to promote Mr FOSTER. She denied any involvement in the content of the “script” claiming that material she supplied for other purposes may have been used within it. Ms HERNANDEZ has no record of any of the advice she sought about the Battlebus visit as it was done in person. Ms HERNANDEZ did not travel on the Battlebus. Channel 4 News interview (dated 20th April 2016) between reporter and activist suggests activists were encouraged to talk about local Parliamentary Candidates on the Battlebus visits. Mr FOSTER stated in interview that no specific candidate was named by the reporter/activist and he felt this was a “loaded” media interview. Ms HERNANDEZ states she was not involved in the briefing of any activists and had minimal interaction with them. No recorded refreshment costs for activists Key evidence Ms LAW observes that there are no recorded refreshments costs for the activists. Amongst the Twitter screen shot she produces, there are photographs of the activists sat on and stood in front of the bus in Torquay town centre (CL03), (CL04) and (CL06) refer. The same people are then all sat down for lunch in Torquay, see (CL07) and (CL08). The refreshments offered to the activists, quite clearly seen in the screen shots (CL07) and (CL08) and the costs of evenings meals, referenced on (CL09) as “Great dinner speech from @LiamFoxMP supporting fantastic #Conservative candidate @kevin_j_FOSTER with #Battlebus2015”, plus accommodation for the activists were not accounted for in Kevin FOSTER’s election expenses return. Whilst Ms LAW does not recognise the venues from the photographs taken; she notes that in photograph (CL08) one of his campaign posters can be seen in the window of the venue. Mr SANDERS says, “Further during such a visit, I would have expected the activists to have been provided with some form of refreshment and possibly accommodation. I have read through the short campaign return and no such items feature”. The email from Mark CLARK (NAP/1, document 3.8) goes on to specifically state that in relation to lunch then the FOSTER campaign should organise it, however, “note we will pay for this” and “we need a light round of sandwiches and some biscuits. For lunch tea combined we will pay up to £7 in total per person …”. Mr FOSTER stated that refreshments did not appear as firstly they were only for activists (and therefore not an election expense) and secondly because of the inference that such refreshments could represent an offence of treating i.e. you had used food/drink to influence people to vote for you. Ms HERNANDEZ stated that volunteer refreshments were not a local election campaign expense and the e-mail from CLARK reinforces this. No accommodation costs for activists
For publication 15 Key evidence Those on board the battle bus were accommodated at the Travelodge, Glastonbury (ITN/Channel 4 documents provided by West Midlands Police). The recovered invoices associated with this accommodation cover accommodation from 26th April 2015 to 1st May 2015. In relation to accommodation it would seem reasonable that since the activists visited Torbay for 1 day (arrival 9.45am until departure at 7.30pm on 29th April 2015), that accommodation costs of 1 x night be associated to the Torbay visit. Mr FOSTER states this was part of the national campaign, he was not aware of the invoice and did not authorise, approve or pay it. His honest understanding was that the Battlebus was a national expense as clearly set out in the advice from the party in the e-mail from CLARK. Ms HERNANDEZ states she did not contribute to the accommodation costs and followed the guidance from CLARK in his e-mail that this was a national party expense. Canvass cards for the Battlebus Key evidence David THOMAS of Gold Print produces an invoice produced by Gold Print (DT16) for £127.46. The description of the ordered item is ‘2,276 laser print A4 canvass cards re battle bus Torbay’. The invoice is dated 28th April 2015. The invoice features on the short campaign return as item SC5/1. David THOMAS of Gold Print states that delivery dates are always the same date as the invoice is created. He says that this order was required as quickly as possible and that he worked into the evening to ensure delivery on time. The battle bus was visiting Torbay on the 29th April 2015 and the canvass cards were delivered on the 28th April 2015.
David THOMAS also states that the artwork for this item was presented by Alison HERNANDEZ on a USB stick and so he does not have a copy of the final artwork, however, he does recall that this item amounted to “a simple black on white job that was in the form of survey. Questions like who would you trust more with the economy in No. 10 – Cameron or Milliband? What do you think of this and that and the other? It also included questions on schooling and roads etc. Finally, it also asked on a score of 1 – 10 how likely would the person be to vote Conservative, Labour, UKIP etc”.
The Gold Print invoice that features within the FOSTER election expenses return is marked as being divided between the Parliamentary, the local council and Mayoral election with each contributing 33% to the invoice. Mr FOSTER declared £42.06. The invoice identifies the order as being specifically ‘canvass cards re battle bus Torbay’.
Ms LAW and Mr SANDERS both note the inclusion of canvass cards for the Battlebus in the short campaign as evidence that the Battlebus was campaigning for the local Parliamentary Candidate and was not a national expense.
For publication 16 Mr FOSTER states that the cards were in the end not used by activists on the Battlebus and were put into the short campaign expenses. Ms HERNANDEZ states the cards were not used by the activists so were put on the short campaign. The invoice was split into thirds as the cards were used by all 3 campaigns. She later found it was not necessary to declare these as they were voter intention cards (not publicity materials) so she feels they over- declared on this item. Battlebus - Summary Evidence is presented from a number of sources to suggest that the Battlebus was campaigning on behalf of Mr FOSTER and should have been declared in the short campaign. The suggested inference is that it was not declared as such in an attempt to reduce the short campaign costs. Mr FOSTER and Ms HERNANDEZ maintain that it was their honestly held belief that the Battlebus was a national campaign expense and point to the e-mail received from CLARK to support this. 20. Evidence pertinent to the date Mr FOSTER became a candidate Key Evidence The long campaign return identifies that the date upon which Kevin FOSTER became a candidate was 10th April 2015. Mr SANDERS disputes this date as he will say literature, namely a ‘My Plan’ leaflet (AS01) was being distributed in late March 2015 and so therefore, Mr FOSTER should have adopted the earliest date upon which he could be identified as a candidate, namely 30th March 2015. Mr SANDERS says that to give a later date would give FOSTER’s long campaign a 10 day advantage over the short campaign.
Evidence in support of Mr SANDERS claims can be found in Mr FOSTER’s election expenses returns as follows:-
(1) Under LC1/1 - In reviewing the long campaign invoice submitted for rental for 201 Union Street, Torquay, the invoice specifically identifies that the rental is for a period of 102 days. Since the long campaign commenced on 19th December 2014, 102 days later would in fact take that time frame up until 31st March 2015. This is indicative that Kevin FOSTER became a candidate on 30th March 2015. If he had become a candidate on 10th April 2015, then the rental would have been for a period of 112 days instead.
(2) Under SC2/1 - Similarly, the corresponding invoice for rental for 201 Union Street on the short campaign return shows rental for a 39 days period. This would mean that the short campaign started on 30th March 2015 (the time frame of 39 days taking the date up until 7th May 2015).
(3) Finally, a further indication that Kevin FOSTER became a candidate on the earliest date of 30th March 2015 is that Christmas cards (DT04) and (DT05) and calling cards (DT02) and (DT03) printed by Gold Print were produced in early December 2014 and both refer to ‘Your Prospective MP Kevin FOSTER’.
For publication 17 Mr FOSTER says he believed advice had been taken by Ms HERNANDEZ from Torbay Council Electoral Services on the date he became a candidate. Mr FOSTER’s solicitor highlighted that there did not appear to be any dishonest intent in this as even though he had a 10 day advantage in his long campaign his expenses for this period were thousands of pounds under budget.
Ms HERNANDEZ states that as Mr FOSTER was not a standing MP on the date Parliament was dissolved she believed he would become a candidate on the date that the official notice of poll was issued. She took advice from the local authority elections office on this point and they confirmed this.
Date Mr FOSTER became a candidate – Summary
There is evidence presented by Mr SANDERS and within Mr FOSTER’s expenses return to suggest he should have become a candidate on the earliest date possible. Mr FOSTER and Ms HERNANDEZ state that Ms HERNANDEZ sought advice on this point and they believed they had declared the correct date. Mr FOSTER’s solicitor highlights that there does not appear to be any dishonesty in this as it lengthened Mr FOSTER’s long campaign period for which his expenses were significantly under spent. It should be noted, that lengthening the long campaign also has the effect of shortening the short campaign period by 10 days and this budget was closer to being overspent, therefore, there could be a benefit in doing this, had Mr FOSTER and Ms HERNANDEZ, purposely declared the wrong date. From examination of the expenses claim submitted, it is however difficult to attribute significant spending to this 10 day period that could have adversely impacted on the short campaign budget. This is because the invoice dates do not generally relate to the date used, this is interpreted when then the invoices are entered onto the expenses return by the candidate and their agent and the invoice is entered onto the campaign that corresponds to when the item was used.
21. Evidence pertinent to other inaccuracies within the electoral expenses return St Austell Printing “Kevin FOSTER Newsletter” Key evidence This invoice features on the long campaign return for FOSTER (item number LC7). The invoice is dated 5th November 2014 and is produced by St Austell Printing Company in the total sum of £1,089. It describes the ordered items as ‘Kevin FOSTER Newsletter’. Written on this invoice is “3/5 costs as delivery occurred 3 days into long campaign – links to Royal Mail delivery slot”.
The long campaign return only records a value of only £653.40 and describes the item as ‘Lifestyle booklet for door to door’. The long campaign commenced on 19th December 2014. According to Royal Mail invoices that are included in the long campaign return, posting dates took place between 21st November 2014 and 9th March 2015 (item number LC08) and (item number LC04) refer. Since the Royal Mail invoices were entered onto the long campaign in full, it begs the
For publication 18 question that if the newsletters were to tie with the Royal Mail delivery dates then the full value of the newsletter invoices should feature in full too.
Mr FOSTER confirmed that despite the differing descriptions he believed the items to be one and the same. Mr FOSTER confirmed that he had reviewed the Royal Mail Delivery rota and it was clear that only 3/5ths of the delivery dates were within the long campaign period and on that basis, therefore, only 3/5ths of the invoice value for the ‘Kevin FOSTER newsletter’ was recorded on the long campaign election return. In relation to why the full postage costs were then stated, Mr FOSTER states that as it was within the long campaign (which was well under spent) they may have just declared the whole of the postage costs for safety’s sake. Ms HERNANDEZ confirmed that despite the differences in description on the invoice and that recorded on the election expenses return, they were in fact one and the same item. She stated that albeit the newsletters were ordered and delivered before the long campaign started, she utilised the only Royal Mail delivery slot available and that fell three days into the long campaign period and so she recorded the cost for the items that were used and delivered from then on in. In relation to the fact that she did not apportion the Royal Mail invoices in the same way, Ms HERNANDEZ stated that she had therefore over declared the value of the delivery costs themselves.
Summary - St Austell Printing “Kevin FOSTER Newsletter” It is clear there is inaccuracy in respect of only a proportion of the leaflet costs being declared in the long campaign yet the full costs of the corresponding postage invoice being declared. Mr FOSTER and Ms HERNANDEZ state that they accurately accounted for the costs of the leaflets used in this period but that they may have over-declared on the postage invoice. This represents inaccuracy but not for any dishonest benefit. Alternatively, it could be suggested that there has been an under-accounting of the leaflet costs designed to keep the long campaign expenses down, however, we know that the long campaign expenses are well under spent and therefore, there would be no potential benefit in this explanation.
Gold Print Invoice 5596 “Knock and drop leaflets”
Key evidence
Gold Print have produced an invoice for ‘Knock and drop leaflets’ which amounts to £180.00. The invoice is dated 2nd December 2014 and it features on the Mayoral and the Torbay local candidates returns.
From reviewing the Mayoral and local candidates returns, this invoice has written across it ‘1/3 Mayor, 1/3 MP, 1/3 Councillors’. The Mayor and Local Candidates have declared their third within their election expenses returns. Mr FOSTER’s election expenses return has accounted for the entire invoice value of £180 (see
For publication 19 long campaign item number 5596), when it seems clear from the Mayoral and local candidates returns that they utilised a significant proportion of the leaflets.
Mr FOSTER and Ms HERNANDEZ both state they felt (at the time) the whole invoice should feature in Mr FOSTER’s expenses return and that is why it did. Both could not account for the entries on the Mayoral and Local Candidate returns.
Summary - Gold Print Invoice 5596 “Knock and drop leaflets”
It is clear this reflects an inaccuracy in the expenses return for Mr FOSTER, however, it would not appear to reflect dishonesty as it shows over-accounting, which provides no benefit to Mr FOSTER or Ms HERNANDEZ.
No telephone costs recorded in the short campaign
Key evidence
Ms LAW says, “From the short campaign returns, that I downloaded, there were no telephone costs recorded. There is a notional invoice for telephone and broadband rental for 39 days at 55 pence per day which was issued by the Torbay Conservative Association (TCA) dated 28th May 2015 for a total sum of £21.45. This is identified in the short campaign return by the item number SC2/3. I believe that a campaign of this nature could not have been conducted without making a huge number of telephone calls. By way of comparison, I have read that the Police and Crime Commissioner electoral expenses return submitted by Alison HERNANDEZ showed that she spent £899 on telephone canvassing”.
Mr SANDERS makes the same observation in his witness statement.
FOSTER’s long campaign return recorded a combined cost of telephone and broadband amounting to only £56.10 (55 pence per day for 102 days) (item number LC1/3). For his short campaign he recorded a combined cost of telephone and broadband amounting to only £21.45 (55 pence per day for 39 days) (item number SC2/3).
In comparison, the PCC return shows that HERNANDEZ became a candidate on 8th April 2016 and the election was held on 5th May 2016 (a period of 29 days). For this campaign she recorded telephone canvassing expenses of £899.44 (submitted as a notional invoice from CCHQ).
Mr FOSTER stated that the telephone costs declared to him by TCA were the costs he recorded on his return. His solicitor highlights no evidence has been produced to show that calls had been made and not recorded or that invoices had been omitted from the return.
Ms HERNANDEZ states that telephone calls are too expensive and so albeit they had a specific BT landline installed purely for the Parliamentary campaign, this
For publication 20 was so that internet access could be gained. She stated that there were very few telephone calls made, hence the low value of the TCA notional invoice. Ms HERNANDEZ says she relied upon the accuracy of the notional invoice produced by TCA. Ms HERNANDEZ also stated that it was not a fair comparison to compare the Parliamentary election for FOSTER with her own PCC election as they each covered two completely different size areas.
Summary - No telephone costs recorded in the short campaign
Both LAW and SANDERS feel that the telephone expenses have been under- declared in the notional invoice from TCA which is then submitted on Mr FOSTER’s election expenses return. Mr FOSTER and Ms HERNANDEZ state the notional invoice was correct with Ms HERNANDEZ specifically stating that the invoice represented broadband costs only as very few telephone calls were made. There is no evidence that can show that the telephone was used more extensively and that the notional invoice is undervalued. If the invoice had been deliberately undervalued, this could represent a dishonest attempt to keep the short campaign costs down.
St Ives Management Services Invoice 60568 (Lapel Stickers)
Key evidence
This is an invoice produced by St Ives Management Services Ltd (SIMS) dated 16th January 2015 (ME06). The total invoice is for £21.83. The description of the ordered items is ‘lapel stickers’. They were delivered on 16th January 2015.
The invoice that features on the FOSTER short campaign return (item number SC4/1) is marked as being divided between the Parliamentary, the local and Mayoral election with each being allocated 33% of the invoice.
On reviewing the Mayoral and Local Candidate’s election returns it would appear that the Mayor declared £7.28 and each of the 35 local candidates (for Torbay and Totnes) declared 21 pence (total £7.35).
The accounts of TCA suggest that the invoice itself was paid in full by TCA from their account ‘TCA FOSTER Campaign A/C’, however, the SIMS statement of account held within the TCA accounts has handwritten upon it ‘33%’ and ‘50% left’. This tends to suggest that perhaps only half of the 33% FOSTER allocation was utilised. The FOSTER short campaign return shows an entry of only £3.50.
SIMS have produced a copy of one of the lapel stickers (ME07) and this indicates that they were specifically produced for Mr FOSTER’s use since his name features on the front. This raises the question of why such expenses should therefore be the joint responsibility of the Local Candidates and the Mayor.
Mr FOSTER states that he accounted for the proportion of stickers his campaign used within his expenses return i.e. they were responsible for the cost of one third
For publication 21 of the stickers and then only actually used half of their third. He cannot account for returns made for the Major and Local Candidates. He maintains the costs were split based on what proportion his campaign used. Ms HERNANDEZ also states the amount declared represents the amount of the stickers that were used.
Summary - SIMS Invoice 60568 (Lapel Stickers)
Based on the evidence presented in the notes on the invoices and the explanations of Mr FOSTER and Ms HERNANDEZ it is clear that their explanation that they declared only what was used has some credibility. The fact that the artwork displays Kevin FOSTER’s name may be indicative that this invoice should have been his sole responsibility and then if only 50% of the stickers were used he should have declared that cost as expenses. The inclusion of one third of the costs in the Mayoral and Local Candidates expenses indicates they used a proportion of the stickers. If this were a deliberate attempt to undervalue the proportion of the invoice Mr FOSTER were responsible for it would have the effect of undervaluing the short campaign expenses by approximately £18.33.
SIMS invoice numbers 61121 and 61122 (Correx Posters, small and large)
Key evidence
In relation to the small posters (61121) this is an invoice produced by SIMS (ME14). The total invoice is for £214.70. The description of the ordered item is a ‘Correx name and photo (small)’. It was delivered on 27th February 2015. SIMS have described a Correx as a Perspex type material, similar to the type used for ‘for sale’ boards outside properties.
The accounts of TCA tend to suggest that this invoice was paid in full by TCA from their account ‘TCA FOSTER Campaign A/C’ and the SIMS statement of account has handwritten on it ‘100%’. Although delivered during the long campaign period, the cost of the poster is recorded onto the short campaign return. The invoice attached to the short campaign return has handwritten upon it ‘100% FOSTER’, but yet only half the invoice amount (£107.35) is declared on the return.
Mr FOSTER confirmed that this was an invoice that was completely his responsibility as it relates to posters that featured only him. Once more, Mr FOSTER was confident that only half of the invoice value was included on the election expenses return because only half of the items produced were used during his campaign. Mr FOSTER acknowledged that the invoice itself states the quantity ordered as ‘1’, however, he confirmed that albeit the minimum quantity he could order was ‘1’, this would have been made up of a ‘batch’ of posters. Ms HERNANDEZ gives the same explanation.
Invoice 61122 relates to the same product but this time in large size (ME16). The total invoice is for £413.28. The description of the ordered item is a ‘Correx name and photo (large)’. It was delivered on 27th February 2015. The invoice attached
For publication 22 to the short campaign return has handwritten upon it ‘100% FOSTER’, but yet only half the invoice amount (£206.76) is declared on the return.
Mr FOSTER and Ms HERNANDEZ give the same account in relation to the large size posters.
Summary - SIMS invoice numbers 61121 and 61122 (Correx Posters, small and large)
Mr FOSTER and Ms HERNANDEZ explain that in the case of both of these invoices only 50% of the posters were used and hence this is why that proportion was declared on the short campaign return. The alternative explanation may be that more/all of the posters were used and that only 50% were declared in a dishonest attempt to keep the short campaign costs down. If this were the case then it would have had the effect of devaluing the short campaign by approximately £107.35 and £206.76 respectively.
The Beach Hut advertisement (SC4/7)
Key evidence
This is an invoice produced by The Beach Hut. The total invoice is for £210.60. The description of the ordered item is a ‘1 page ad in the Apr 15 edition of The Beach Hut, Preston and Paignton for the candidates’. The invoice is dated 19th March 2015. The invoice that features on the FOSTER short campaign return has written on it ‘1/3 KF, 1/3 M, 1/3 LG’.
Mr SANDERS produces the advertisement as (AS10) and he notes that the Mayor is not featured. The Beach Hut, have confirmed that there were two advertisements, one for the Paignton ward showing two local candidates and Mr FOSTER, the other for the Preston ward showing three local candidates and Mr FOSTER. There was no reference to the Mayor on either. Only one invoice was raised covering both advertisements. In reviewing the Mayoral election return, this invoice does not feature.
In reviewing the local candidates election returns, this invoice does feature on the returns of LEWIS, SYKES, TOLCHARD, CUNNINGHAM and SLADE (all of whom actually feature in the advertisements) where each has declared £15.15. Mr FOSTER has declared a value of £76.87.
On the basis that only local candidates and Mr FOSTER are mentioned in the advertisement it would appear unreasonable to include the Mayoral campaign and it would seem to stand to reason that the invoice itself should have been divided 50/50 between the Parliamentary and local campaigns.
Mr FOSTER acknowledged that the Mayoral campaign did not feature and perhaps it should have been written up to show only he and the local candidates featured. Mr FOSTER stated that he had not written on the invoice identifying the
For publication 23 split between campaigns and he commented that in any event the miscalculation would not have taken him over his spending limit and therefore he would have had no motive in deliberately recording this invoice inaccurately.
Ms HERNANDEZ stated she had taken advice from her Field Campaign Team on the advertisement featuring 3 local and 1 x Parliamentary candidate. On this basis they advised only 25% of the cost should be apportioned to the FOSTER campaign, however, Ms HERNANDEZ took the view that because all other costs had been split into thirds she would maintain a level of consistency with the way in which apportionments had been calculated on The Beach Hut advertisements, despite the fact that Mayoral campaign did not feature.
Summary - The Beach Hut advertisement (SC4/7)
The expenses for this advert have been split into thirds, despite the Mayor not featuring. Mr FOSTER accepts that with hindsight it could have been split 50/50 between himself and the Local Candidates but points out that as his short campaign was under spent, he had no dishonest motive. Ms HERNANDEZ states that she sought advice and the view was the invoice should have been split 4 ways (due to featuring a different number of local candidates) however to maintain consistency she split the invoice by thirds (in effect over-declaring). If the apportionment of the invoice were a deliberate attempt to devalue the short campaign then this would have had the effect of reducing it by approximately £28.43.
Gold Print invoice 5667
This invoice is produced by Gold Print (DT14) with a description of “Kevin FOSTER – final letter campaign”. The invoice features on the FOSTER short campaign return (SC5/2) and is marked as being split by thirds. The amounts paid by the Mayor, Local Candidates and Mr FOSTER do not tally and the effect is that it appears Mr FOSTER has over-declared (short campaign) by a maximum of £4.73. This does not appear dishonest as no gain is reflected. It appears to be an accounting error. Lyreco invoice 6260185755 This invoice is produced by Lyreco UK Ltd (LL04) and the ordered item is 15,000 window envelopes. The invoice features on the FOSTER short campaign expenses (SC 5/4) and is shown as being split into thirds. The amounts paid by the Mayor, Local Candidates and Mr FOSTER do not tally and the effect is that it appears Mr FOSTER has over- declared (short campaign) by a maximum of £52.29. This does not appear dishonest as no gain is reflected. It appears to be an accounting error or as Mr FOSTER ascertains in his account they would have used more of the envelopes so they paid more. Postal costs undervalued in the short campaign Key evidence Ms LAW says, “The short campaign return also features a notional invoice from Torbay Conservative Association dated 28th May 2015 which features £181.50 for postage. This is recorded under item number SC5/10. I note, however, that
For publication 24 there are no original postage receipts. Considering the number of envelopes purchased from Lyreco that were paid for by Kevin FOSTER’s campaign (which would equate to 5,000) I would have expected the postage costs to be considerably higher”.
The Lyreco invoice referred to by Ms Law has the exhibit reference (LL04). It is dated 31st March 2015 and features on the short campaign return under item reference (SC5/4). The invoice was for 15,000 envelopes. As the invoice was divided equally between the Parliamentary, local and Mayoral elections, then it would stand that 5,000 envelopes were available Mr FOSTER’s campaign. Of note a month after the purchase of 5,000 envelopes (LL04), there was an additional purchase of 2,000 envelopes. See invoice (LL05). This purchase was again made from Lyreco on 30th April 2015. This would suggest that the initial purchase of 5,000 had been exhausted.
Mr FOSTER confirmed that he had deliberately kept his postage costs to a minimum. He stated that a lot of his letters were hand delivered by volunteers and that when he was made aware that some of his literature had been posted by TCA (by franking), then he included this additional cost onto his own return too. Mr FOSTER stated that the number of envelopes purchased during his campaign wouldn’t necessarily have any bearing on the postage costs.
Ms HERNANDEZ stated that she relied upon the notional invoices supplied by TCA. She did not ask for any additional receipts in support of their calculation and in any event, she says she deliberately kept postage costs low. She comments that postage was predominantly made up of franking costs that she had not authorised. Ms HERNANDEZ stated that the quantity of envelopes used had been because they had been used for hand delivery.
Summary - Postal costs undervalued in the short campaign Both Mr FOSTER and MS HERNANDEZ maintain that postage costs were not undervalued, commenting that they used hand delivery where possible to keep costs down and the only costs were the few franked by TCA which are declared within the notional invoice. The alternative suggestion could be that the costs had been undervalued in order to reduce the short campaign costs considerably, however it should be noted that there is no evidence to show more excessive use of postage by the FOSTER campaign to support this.
TCA notional invoices submitted
Key evidence
John COWIE of TCA has been spoken with and he has produced the accounts for TCA for 2014 and 2015. At this stage he has not provided a witness statement and it is not likely this will be requested John COWIE identified that on the various invoices submitted with the FOSTER returns, the apportionments were marked on each of
For publication 25 the invoices. He has confirmed that he was responsible for these markings when an invoice was paid for by TCA.
Contained within the accounts are invoices that have been prepared on ‘Excel’ and these appear to represent notional invoices submitted to the FOSTER campaign under some of the headings featured on the long and short campaign returns, i.e. advertising; unsolicited material to electors; agent and other staff costs and accommodation and administration. All of these invoices (3 x long, 5 x short) are dated 1st June 2015. In comparing these to the TCA invoices actually submitted with the FOSTER returns, they are quite different. They differ in that those actually submitted are lower than the versions not submitted. Those submitted with the returns have been dated 28th May 2015 (see long campaign LC1, LC2 and LC3 and short campaign SC1, SC2, SC3, SC4 and SC5).
John COWIE believes that any genuine invoice submitted by TCA would feature the TCA official letter heading, whereas those presented in the accounts and with the return are simply ‘Excel’ spreadsheet printouts.
The question of whether the TCA notional invoices have been manipulated is raised.
Mr FOSTER stated that he was not an officer of TCA and therefore could not account for why two different versions of their invoices appeared to have been produced. All he could offer is that the Association were asked to provide invoices that accurately represented notional spending and upon receipt they were entered onto the election expenses return appropriately. Ms HERNANDEZ stated that she had not produced any of the TCA nominal invoices and could not account for why there were two different versions.
Summary - TCA notional invoices submitted
There are clearly differences in the two versions of the notional invoices produced by TCA. Mr FOSTER and Ms HERNANDEZ maintain that they submitted the notional costs as produced to them by TCA and cannot account for the differences. A weakness in this matter is that it is difficult to ascertain from Mr COWIE exactly who produced the excel spreadsheets showing the TCA notional invoices.
22. Evidence pertinent to items not featured in the FOSTER expenses return Postage invoices from TCA to Torbay Local Candidates TCA have produced an invoice dated 23rd April 2015 for £148.98 for franking postal vote letters. It features on the election expenses submitted by both Beryl MCPHAIL and Matthew PHILLIPS (both are Torbay local candidates). Written on the invoice that features on each of their election expenses returns is ‘1/3 Mayor, 1/3 MP, 1/3 Councillors’ MCPHAIL and Phillips have each declared £29.15 against this invoice. This leaves an outstanding balance of £90.68. There is no
For publication 26 entry made on the Mayoral election expenses return nor is there an entry on either the long or short campaign returns for the FOSTER campaign.
Mr FOSTER stated that franking costs were not authorised by him or his Agent, however, once such costs were realised, he believed they were included in the notional invoice for postage produced by TCA. Ms HERNANDEZ says that she had not authorised franking and as far as she is now concerned, following police disclosure, she believes that any franking costs incurred must have been added to the TCA notional invoice submitted with the FOSTER return.
TCA have also produced an invoice dated 21st April 2015 for £21.45 for franking postal vote letters. It features on the election expenses returns submitted by Jane BARNBY and Alan TYERMAN (both are Torbay local candidates). Written on the invoice that features on each of their election expenses returns is ‘share 1/3 MP, 1/3 Mayor, 1/3 Local Gov’. BARNBY and TYERMAN have declared their contributions towards this invoice. There is no Mayoral entry and there is no Parliamentary entry for the FOSTER campaign. Mr FOSTER and Ms HERNANDEZ provide the same explanation as for the above postal invoice relating to MCPHAIL and PHILLIPS.
Summary - Postage invoices from TCA to Torbay Local Candidates The above invoices from TCA to Local Candidates all indicate a proportion of the invoice which the FOSTER campaign is responsible for but there does not appear to be a corresponding invoice in the short campaign costs. This could be a deliberate omission to have the effect of reducing the postal costs by a total of approximately £56.81 in the short campaign. Alternatively, the explanation could be as offered by Mr FOSTER and Alison HERNANDEZ that they believed the costs were within the other notional invoice for postage from TCA (ref SC5/10 for £181.50). It should be noted that there are observations around this invoice (SC5/10) by Ms LAW who believes it is undervalued. Missing notional invoice for use of direct mail (My Plan 4) Key evidence Mr SANDERS explains, “Direct mail is where campaign literature is personalised, i.e. it features the specific name and address of an individual and appears as a direct appeal to that individual to vote in a particular way. This service is provided by a number of companies but it can prove to be an expensive undertaking”.
Mr SANDERS states, “Liberal Democrat members in Torbay were asked if they would drop off any literature that they received from opposing parties. As a result I received a number of ‘Direct Mail’ correspondence produced for the Conservative campaign. I now produce 4 such examples that were circulated (AS06), (AS07), (AS08) and (AS09). I note that the imprint on these shows that they were promoted by Alan MABBUTT on behalf of the Conservative Party, however, as I have previously mentioned, because I believe that a campaign to promote a named Constituency must be a campaign for that local candidate, then any associated campaign material for the Constituency should be attributed to the
For publication 27 local campaign. The repeated references in the Torbay examples to the Torbay constituency and voting Conservative could not have been for the promotion of any other cause than the election of Kevin FOSTER and therefore the respective costs of the ‘Direct Mail’ should have featured on his return”.
During the review of the TCA accounts produced by John COWIE, there was an email dated 20th May 2015 from a Ryan BALDRY to Alison HERNANDEZ . Mr BALDRY’s email address would suggest he was from CCHQ and the email states “Notional Invoice – My Plan 4 Direct Mail 2015. Total (production, postage, response and handling) - £6,830.65. If you have any questions regarding this invoice then please get in touch with ”. It seems that this invoice was then forwarded by Alison HERNANDEZ to John COWIE the same day with the message “For your info John, I’m about tomorrow to meet up for expenses if you’re about ..?” This notional invoice does not feature on the FOSTER return.
In reviewing exhibit (AS06) Mr FOSTER commented that this did not feature him personally and that SANDERS saying that this would constitute a local expense by virtue of the fact that the Torbay Constituency was mentioned was a matter for lawyers to decide. Mr FOSTER’s solicitor added that since the publications were not incurred or authorised by Mr FOSTER or Miss HERNANDEZ then it did not amount to election expenses. In reviewing (AS08) Mr FOSTER once more commented that the literature did not feature him personally and to his mind clearly promoted the national party. In reviewing (AS09) Mr FOSTER commented that he had neither received nor seen this literature before, but that it was a national party letter from Mr CAMERON. Mr FOSTER confirmed that he did not enter into any Direct Mail arrangement as the quantities and cost would be ridiculous for a local campaign.
In reviewing the email to Alison HERNANDEZ from Ryan BALDRY, Mr FOSTER stated that he did not know who Mr BALDRY was and stated he’d had no personal dealings with him. Mr FOSTER stated that the notional value referred to in that email was not something he was familiar with especially in light of the passage of time.
After reviewing (AS06), (AS07) and (AS08) Ms HERNANDEZ stated that she had nothing to do with the production of those letters, nor had she authorised them as they both appeared to be part of the national party campaign. Ms HERNANDEZ stated that direct mail was not used during the FOSTER campaign albeit Royal Mail did provide a free service whereby they “blanket dropped” literature house to house. This was unaddressed mail. Additionally, Royal Mail did provide additional services but this was not direct mail.
In relation to the email from Ryan BALDRY, Ms HERNANDEZ stated that she did not know who this was and she could not recall having received this email from him. Neither could she remember sending the email on to John COWIE.
For publication 28 Summary - Missing notional invoice for use of direct mail (My Plan 4) The e-mail from Mr BALDRY to Ms HERNANDEZ indicates that there was an additional notional invoice for £6,830.65 relating to the use of direct mail for “My Plan 4” that should have formed part of the short campaign expenses. Mr FOSTER and Ms HERNANDEZ argue that the direct mail examples produced by Mr SANDERS are national materials and any direct mail of this nature could not be considered an expense relating to the FOSTER campaign. Mr FOSTER states he is unaware of the e-mail and Ms HERNANDEZ states she can not recall receiving it (or forwarding it on) however, the presence of the forwarded e-mail to Mr COWIE tends to indicate she was aware of this e-mail (and the notional costs inferred within it) at the time it was sent. If this notional invoice was deliberately omitted it is significant as it totals £6,830.65 and the short campaign was only under budget by £1,024.46. Enquiries have been made with SIMS who produced other ‘My Plan’ material on behalf of the FOSTER campaign. They have confirmed that they did produce the ‘My Plan 4 Direct Mail 2015’ literature and they have produced a copy of their artwork for the Torbay constituency, which specifically identifies Mr FOSTER– his name and photograph feature. Additionally, the imprint on this artwork states that the literature was promoted by Alison HERNANDEZ on behalf of Kevin FOSTER. This artwork has not yet been included in a witness statement but will be referred to as (ME30). of SIMS has confirmed that this literature was ordered by CCHQ and that SIMS would be responsible for personalising it before they sent the completed literature to UK Mail who in turn would pass it to Royal Mail for delivery. The associated invoice is dated 2nd April 2015 and features total costs of £421,452.63 (ME31) a proportion of which, by virtue of the artwork specifically featuring Mr FOSTER, on my understanding of the law must fall to the local Parliamentary campaign.
SIMS invoice 58165 (Balloons, Posters, Rosettes and Lapel Stickers)
Key evidence
Ms LAW says, “…a key omission seems to be a SIMS Invoice Number 58165 totalling £1,105.99 which is stamped as a 100% expense for Kevin FOSTER, however, this invoice does not feature at all on the short campaign return, yet from the items I downloaded, it was included in a bundle of invoices attached to the short campaign return”.
This SIMS invoice is dated 10th March 2015 and is for £1,105.99. Having obtained a copy from SIMS (ME02), it can be seen that the items featured on that invoice are 500 Conservative branded balloons, 40 8’ x 4’ Correx posters, 40 4’ x 4’ Correx posters, 50 blue rosettes and 1,500 campaign lapel stickers. SIMS have provided samples of the relevant artwork for these items (other than the balloons and rosettes) and all would appear to lend themselves to the definition of ‘for the purpose of the candidate’s election during the regulated period’.
For publication 29 In reviewing the short campaign return, this invoice does feature in the bundle of invoices attached to that return and it is marked with an ‘X’ against FOSTER’s name, however, there is no mention of the invoice itself within the body of the return. From reviewing the Mayoral election return, it would appear he declared £553.00 towards this invoice. From reviewing the local candidates returns (for both Totnes and Torbay), it would appear that they declared £15.80 each amounting to £553.00 in total. The invoice has been paid in full by the Mayoral and the local candidates, however, the artwork would suggest that the invoice relates only to FOSTER.
Mr FOSTER’s solicitor commented, that perhaps the ‘X’ marked against Mr FOSTER’s name and written on the invoice itself may in fact indicate that this was not an item he was responsible for and therefore that could account for why the invoice did not feature on this campaign return. Mr FOSTER could only assume that the invoice related to balloons that were promoting the national campaign and so therefore did not feature on the local return.
In referring to Mr FOSTER’s prepared statement, it was identified that when he had stated that this invoice featured against short campaign entries SC3 and SC4, this appeared to be wrong as these two items featured completely different invoice numbers.
Initially Mr FOSTER cited as responsible TCA for the order and associated cost, but in having it pointed out to him that SIMS had advised that in fact Alison HERNANDEZ had placed the order, he suggested she answer questions about this invoice herself.
Ms HERNANDEZ stated that the invoice related to generic Conservative material that could be utilised during any campaign. She states that the only item from this order that was used during the FOSTER campaign were balloons, but that the cost of these were included in the gazebo hire that TCA had already provided a notional invoice for (albeit she states that that invoice may not have been that clear). In reviewing the short campaign return, the gazebo hire was recorded under item number SC3/1.
Ms HERNANDEZ identified that her prepared statement was inaccurate as she had first thought that the balloon, posters, rosettes and lapel stickers had been recorded against another short campaign item number. As a result Ms HERNANDEZ made necessary adjustments to her prepared statement stating that these items had not been utilised during the FOSTER campaign and was an order for Association use only.
Summary - SIMS invoice 58165 (Balloons, Posters, Rosettes and Lapel Stickers)
It is clear that the invoice for these items was not shared into thirds, as per the formula for all other expenses which were a shared cost. It appears that the Mayoral and Local Candidates have covered the entire cost of this invoice.
For publication 30 Artwork is indicative that items would have been used for the Parliamentary Campaign. Mr FOSTER states the items must have been generic/national and did not feature in his campaign, therefore, the invoice is not declared. Ms HERNANDEZ states the only items used by the FOSTER campaign were balloons and rosettes, which came as part of a “dressed gazebo” provided by TCA and for which a notional invoice was submitted. Interestingly, both Mr FOSTER and Ms HERNANDEZ initially provided different explanations in their prepared statements, attributing their share of this invoice under other invoices – both corrected this during interview.
If the above explanations offered were incorrect and this was an attempt to reduce the short campaign costs, then the effect would be to devalue the short campaign by either £368.66 (at one third of the invoice) or £1,105.99 (at the full cost of the invoice).
SIMS invoice 60567 (letterheads)
Key evidence
SIMS have produced an invoice for letterheads which amounts to £283.00. The invoice is dated 27th February 2015 (ME04). SIMS have also produced a copy of the corresponding artwork (ME05) and this is a letterhead showing Kevin FOSTER outside the Campaign Office in Union Street and also being involved in what appears to be a ‘colour run’. The strap line of the letterhead reads ‘A fresh approach for Torbay’ (ME05). This invoice was paid by TCA from their account ‘TCA FOSTER Campaign A/C’, however, the SIMS statement of account held by TCA is marked ‘Not used’.
Despite this order having been placed by Ms HERNANDEZ and the item ordered lending themselves to the definition of ‘for the purpose of the candidate’s election during the regulated period’, this invoice does not feature on the FOSTER election expenses return.
Mr FOSTER explained that the letterheads were ordered in anticipation of additional letters having to be sent out, however, this eventuality didn’t occur and so the letterheads went unused and so there was no requirement for the invoice to feature on the election expenses return. Ms HERNANDEZ recognised that this invoice was for the purchase of letterheads, however, she stated that they were never used and so were not accounted for in the election expenses return.
Summary - SIMS invoice 60567 (letterheads)
This invoice concerns an order for letterheads exclusively featuring Mr FOSTER, with an order placed by Ms HERNANDEZ. Both claim that whilst ordered the items were not used and therefore the invoice was not declared. If this were incorrect and the letterheads were used (it should be noted there is no evidence to show
For publication 31 this) then the effect of not declaring them would have devalued the long/ short campaign by £283.00 (dependent on the period during which they were used).
Lyreco invoices 6260183482, 6260184323, 6260184968 and 6260186540 (various stationery items)
Key evidence
Lyreco UK Ltd have produced an invoice for Megaframe self adhesive signs, inkjet cartridges, envelopes and A4 paper which amounts to £240.14. The invoice is dated 31st December 2014 (LL01). This invoice does not feature on the election expenses returned for the FOSTER campaign.
Lyreco UK Ltd have produced an invoice for A4 paper, and envelopes which amounts to £86.50. The invoice is dated 19th February 2015 (LL02). This invoice does not feature on the election expenses returned for the FOSTER campaign.
Lyreco UK Ltd have produced an invoice for inkjet cartridges and envelopes which amounts to £69.49. The invoice is dated 28th February 2015 (LL03). This invoice features on the Mayoral and local candidate’s returns, however, Lyreco have confirmed that this was an order placed by Alison HERNANDEZ. This invoice does not feature on the election expenses returned for the FOSTER campaign.
Lyreco UK Ltd have produced an invoice for BIC pens and envelopes which amounts to £47.80. The invoice is dated 30th April 2015 (LL05). This invoice features on the Mayoral and local candidates’ returns, however, Lyreco have confirmed that this was an order placed by Alison HERNANDEZ. This invoice does not feature on the election expenses returned for the FOSTER campaign.
Mr FOSTER and Ms HERNANDEZ said that items ordered on 31/12/14 and 19/02/15 were not used or were likely not used during the campaign and therefore were not declared. In relation to items ordered on 28/02/15 Mr FOSTER and Ms HERNANDEZ both thought this related to invoice (SC5/4) in their prepared statements. When pointed out this was a different invoice number Mr FOSTER stated he thought it may have been items ordered and used by TCA as there was reference to the name “ on the invoice and she is a volunteer who works for TCA. In relation to items purchased on 30/04/15 Mr FOSTER again believed these may have been items purchased but not used during the campaign. Ms HERNANDEZ said (in respect of this invoice) that everything that was utilised was included in the notional invoices from TCA.
Summary - Lyreco invoices 6260183482, 6260184323, 6260184968 and 6260186540 (various stationery items)
Mr FOSTER and Ms HERNANDEZ both initially ascertain that these stationery items were included under another invoice within the short campaign but then correct that assertion when they realise that item relates to another order reference number. Both state that these invoices represent items that were
For publication 32 ordered but that may have been for general TCA use or not used during the campaign. Ms HERNANDEZ states that any such items used would have been covered within the notional invoices from TCA. If these explanations are inaccurate then the omission of the invoices could represent a dishonest attempt to undervalue the short campaign by approximately £147.98 (at one third share) or £443.93 (if fully responsible for the costs). The fact that the Mayoral and Local Campaigns have contributed to some of these invoices perhaps indicates it is likely the FOSTER campaign should have also contributed. In addition, these invoices cover day-to-day stationery items ordered between 31/12/14-30/04/15, as such it is hard to conceive that none were utilised by the FOSTER long or short campaign.
Gold Print Invoice 5668 (A4 double sided leaflets)
Key evidence
Mr SANDERS refers to this piece of literature as (AS13). He complains that since this literature featured FOSTER, the Mayor and local candidates then the invoice should be divided into three accordingly.
Gold Print have confirmed that they produced this artwork on behalf of Robert EXCELL (DT19) and the order amounted to ‘5,000 A4 full colour double sided leaflets’. Mr EXCELL was a local Government candidate standing for the Tormohun ward. From Mr EXCELL’s return, instead of producing the Gold Print invoice, he produced his own invoice making reference to the invoice detail as ‘From Gold Print leaflets for Tormohun’. His invoice is dated ‘May 2015’ and is for £199. The invoice has handwritten upon it ‘Share of how to vote leaflets share MP, Mayor, Local Government’. In fact it would appear that Mr EXCELL’s invoice has a typo as the original invoice (DT18) produced by Gold Print is for £190.00.2
It would appear that the Mayor has declared £66.33 towards this invoice and the local candidates that feature on the leaflet, namely EXCELL, LANG and WAKEMAN, declared £22.11 each, totalling £66.33. There is no entry for this invoice on the FOSTER returns. Of note, Tormohun is within the Torbay district.
Mr FOSTER stated that the literature that was produced on this occasion was not approved or authorised by him or Alison HERNANDEZ and was not in a format he would have authorised. As a result this item does not feature on his election expenses returns. Ms HERNANDEZ stated that this was the first time she had
2 Upon notification of the publication of this report Mr Excell makes the following comments: ‘I myself did not submit the returns, as I was told that this was the job of the Agent – I supplied the information that he requested, which I assumed to be correct as the company Gold Print is owned and run by David Thomas, the Conservative Group Leader. This order of leaflets was requested by me as I did not have sufficient to cover the whole ward. The handwriting on the invoice was not written by me, if I remember correctly, and I was not aware of this added handwritten note. I do not remember which invoice was supplied by me to the agent.’
For publication 33 seen this piece of literature. She confirmed that it had not been authorised by her
Summary - Gold Print Invoice 5668 (A4 double sided leaflets)
Mr FOSTER and Ms HERNANDEZ claim they were arranged without their authorisation or knowledge and as such were not included in the election expenses return.
If the explanation provided by Mr FOSTER and Ms HERNANDEZ is not correct, then the omission of this invoice from the FOSTER return (at one third share) could represent an attempt to devalue the short campaign by approximately £63.33.
Southwest Colour invoice SW267953 (banners)
Key evidence
South West Colour produced an invoice for banners for £720.00. The invoice is dated 31st March 2015 and it features on the return of the Mayor. On the invoice is written ‘1/3 Mayor, 1/3 MP, 1/3 councillors’. The Mayoral campaign has declared 1/3rd to the invoice value, amounting to £240.00 and from reviewing the returns of the local candidates for both Torbay and Totnes it features on their returns too. Together the local candidates have declared £240.10. There is no recorded entry on the WOLLASTON return and this invoice does not feature on the election expenses return for the FOSTER campaign.
Mr FOSTER stated that without reviewing the artwork for this particular banner, he could not confirm whether it was campaign material or not. He stated that he could not recall authorising such spending nor could he comment on Sarah WOLLASTON’s return. In reviewing the invoice Ms HERNANDEZ stated that this was not something that she authorised albeit she was aware that some banners had been purchased by TCA and displayed in the Totnes area.
Summary - Southwest Colour invoice SW267953 (banners)
Mr FOSTER and Ms HERNANDEZ both comment that without seeing the artwork for these banners, they could not confirm if it was campaign material or not. Both maintain the banners were not spending authorised by them. Both explanations point to the banners not being authorised by or used for the campaign. The inclusion of the banners at one third in both the Mayoral and Local Candidates returns does however indicate that the banners were a shared resource with the FOSTER campaign and Ms HERNANDEZ acknowledges she was aware of banners used in the Totnes area. If the banners had been purposely omitted from the short campaign costs then the benefit would have been to reduce the campaign costs by approximately £240 (at one third of the invoice cost).
For publication 34 Accommodation and administration by TCA (Preston office)
Key evidence
The Mayoral and local candidates returns shows that TCA produced a notional invoice for £1,680 for accommodation and administration covering a 16 day period (according to John COWIE, the time frame having been worked out on the part time hours worked by who was responsible for typing and administrative duties for TCA). The invoice is dated 28th May 2015. The invoice that features on the Mayoral return is marked as ‘1/3rd Mayor, 1/3rd MP, 1/3rd Councillors’.
The Mayor has declared £540.00 on his return and the local candidates (Torbay and Totnes) have declared £21.54 each amounting to £732.36 in total. There is no recorded entry on the WOLLASTON return and this invoice does not feature on the election expenses return for the FOSTER campaign.
Mr FOSTER stated that all of his campaign was run from 201 Union Street, Torquay and that he did not utilise services from anywhere else and that any administrative costs were accurately recorded on his return. Ms HERNANDEZ denies using the Preston office for their services, using only their own campaign centre in Torquay.
Summary - Accommodation and administration by TCA (Preston office)
This notional invoice is produced by TCA and features in the returns of the Mayoral and Local Candidates’ expenses returns (at one third each) for accommodation and administrative services from TCA. It does not feature in the FOSTER return, however both Mr FOSTER and Ms HERNANDEZ say that this was because these services were not used and they ran their campaign entirely from their campaign centre in Torquay. If this is not the case and the services of TCA were used as described in the notional invoice, then not including this invoice (at one third) devalues the FOSTER short campaign by approximately £560.
Refurbishment of the FOSTER campaign centre
Key evidence
Ms LAW says, “I note also that on one of the tweets that there was a photograph of the Conservative Campaign Centre with the comment ‘The Campaign Centre has had a revamp thanks to Torbay Council’s old furniture. Somewhere nice for you to sit and use free wifi if we’re busy’. My only observation around this is that surely there should have been a notional invoice for the donated future. I now produce a copy of the tweet (CL02)”.
The EC guidance states that candidate spending includes accommodation e.g. campaign office. On this basis the furniture could be considered to be an election expense. There is no record on the FOSTER return that would represent the donated furniture.
For publication 35
In relation to the furniture provided for use in the campaign office, Mr FOSTER stated that he believed the photograph produced by Ms LAW was one from 2013. Mr FOSTER’s solicitor believed that in fact this was not from Twitter as claimed by Ms LAW, but was a Facebook post. Both questioned why the date was omitted from the screenshot. In any event, Mr FOSTER stated that such a donation did not amount to an election expense and that his responsibilities around his campaign centre had been fully declared. Mr FOSTER and his solicitor question whether such an accusation is malicious.
Ms HERNANDEZ stated that the rental that the FOSTER campaign paid to TCA for the rental of 201 Union Street, the FOSTER campaign headquarters included the furniture that was already there.
Summary - Refurbishment of the FOSTER campaign centre
The “tweet” produced by Ms LAW suggests that the campaign centre had been refurbished with furniture donated by Torbay Council. Mr FOSTER states this is an old picture and was not taken within the long or short campaign period. Ms HERNANDEZ states that the furniture came with the office and was included in the cost of rental from TCA. Alternatively, if this was an undeclared donation, which should have been declared as election expenses, then non-declaration would have had the effect of reducing the long/short campaign by the value of the furniture (depending on when the furniture was used).
Social Media
Mr SANDERS says, “Kevin FOSTER had a massive social media campaign on both Facebook and Twitter. I am aware that not all services provided by social media are free of charge and some specific services come at a cost. To this end, I am surprised that there are no entries in either the long or short campaign return that reflect the use of social media”. Mr FOSTER stated that he had not entered into any agreements with social media where any additional cost would be incurred. Ms HERNANDEZ stated that she did not incur any additional services from social media providers that would attract a fee, she only used services offered for free.
Analysis of the evidence
23. In order to assist the Commissioner in making her determinations it was necessary for me to analyse the evidence. In doing this, I considered whether I could determine any objective truths from the evidence. In other words, any independent evidence that I could rely upon to decide what happened. I also considered whether any version of events obtained during the investigation was inherently implausible or significantly undermined by other evidence.
24. Where the evidence contained credible conflicting evidence of events, it is not appropriate for me to make findings of fact. This would be for a court or tribunal to do.
For publication 36 25. There is witness evidence from Mr SANDERS and Ms LAW that points to inaccuracy in the long and short campaign returns of Mr FOSTER. Some of these irregularities are based on the perception/belief of the witnesses. Mr FOSTER argues that these observations/accusations may be considered malicious. Some of the perceived inaccuracies are however supported by the documents available within the relevant expenses returns for Mr FOSTER and the other Conservative candidates. 26. The evidence from Mr SANDERS, Ms LAW and Channel 4 News regarding the Battlebus visit, is largely open to interpretation of the Electoral Commission guidance on whether such a visit was a national or Parliamentary Candidate Campaign expense. Whilst some elements of the evidence presented support it is a Parliamentary Campaign expense, this is undermined by the e-mail from Mark CLARK (CCHQ) that advises candidates the Battlebus visit is a national Party expense. This e-mail supports the defence available to Mr FOSTER and Ms HERNANDEZ in relation to this specific allegation. 27. The Electoral Commission (EC) have completed a separate investigation into the Conservative Party spending, which includes the 2015 UK Parliamentary General Election. The final report detailing the conclusion of the EC investigation was published on 16th March 2017. One aspect of their investigation was to consider if the Conservative Party Treasurer, Mr Simon DAY, had committed offences under Section 82(4)(b) PPERA in relation to the Party return regarding the 2015 General Election and in particular in relation to the Battlebus Campaign. The EC have concluded in their report that whilst they found no evidence of the Party funding the Battlebus Campaign with the intent that it would promote local candidates they failed to identify that there was a clear risk of this happening and did little or nothing to mitigate that risk. It is the view of the EC from their investigation that candidate campaigning did take place during the Battlebus Campaign and the party made an inaccurate assumption that all spending in relation to the Campaign should be reported by the Party.
The EC cannot say what proportion of the £102,483 spent on the Battlebus Campaign (by the Party) was candidate spending, as they have not sought to identify this in their investigation. This is due to the fact that underreporting by candidates is an offence under the RPA, which is outside the EC remit and a matter for the police to investigate. The EC therefore concluded that Mr DAY did commit an offence under section 82(b)(4) PPERA in relation to this matter and have imposed the maximum financial penalty for this offence, which is £20,000 (it should be noted the Party have been fined a total of £70,000 in relation to other offences found by the EC investigation). In determining the penalty, the EC have taken into account the advantage obtained by the Party and the candidates, as a result of the omissions made from the candidate returns.
Under Section 83 of PPERA, campaign spending returns must be accompanied by a signed declaration to the EC by the Treasurer of the Party, who is required to state that they have examined the return and to the best of their knowledge it is accurate. It is an offence under Section 83(3) of PPERA for the Treasurer to knowingly or recklessly make a false declaration. This cannot be dealt with by civil sanctions and as such the EC have referred Mr DAY to the Metropolitan Police Service to consider whether to investigate him for this offence. It should be noted that the offence under section 82(6) RPA requires a candidate to knowingly make
For publication 37 a false declaration, there is no mention of recklessness, therefore, the points to prove are slightly different to the offence under PPERA (for the Treasurer).
Overall, it is clear that there is some overlap in the EC investigation and the police investigation into Mr FOSTER and Ms HERNANDEZ. The view of the EC that a proportion of the Battlebus spending should have been recorded as candidate (not Party) spending, tends to support the case that the return by Mr FOSTER and Ms HERNANDEZ was false3. However, the suggestion that they knowingly made a false declaration, may be undermined by the inaccurate advice they received from the Party on how the Battlebus spending should be recorded. 28. There is evidence presented by Mr SANDERS and within Mr FOSTER’s own election expenses return to suggest the date he declared himself a candidate is incorrect by 10 days. This would have the effect of lengthening the long campaign period and reducing the short campaign period. Given how Mr FOSTER’s expenses returns stood for the respective campaigns (see below) some benefit could be argued, however, from examination of the returns it is hard to find significant expenses within the 10 days to support this argument and indicate that the Mr FOSTER/Ms HERNANDEZ intentionally (and dishonestly) submitted an incorrect date. 29. The evidence gathered from the expenses returns of Mr FOSTER, the Mayoral Candidate and Local Candidates, along with information from TCA and local suppliers provide evidence to suggest that there are inaccuracies within the expenses return of Mr FOSTER. 30. Some inaccuracies appear to be accounting errors and some reflect over- accounting to both the long and short campaigns, albeit in very minor amounts. 31. There are a number of alleged inaccuracies that could have had the effect of reducing spending within both the long and short campaign of Mr FOSTER. In relation to the long campaign return, Mr FOSTER’s budget was significantly under spent by a total of £17,889.93. In relation to the short campaign return, Mr FOSTER’s budget was under spent by only £1,024.46. 32. There are a number of items that represent potential inaccuracies within the short campaign, where it is difficult to quantify a resulting financial impact. These include; the Battlebus visit, irregularity in Mr FOSTER’s declaration date, undervaluing of telephone and postal costs, manipulation of TCA notional invoices, and donated furniture. 33. There are also a number of items where it is possible to attribute a resulting financial impact based on the inaccuracy alleged (during the short campaign period). These include: Lapel stickers £18.33 Posters (small) £107.35 Posters (large) £206.76 Beach Hut advertisement £28.43 Postage invoice £49.66
3 However it should be noted that the EC made no specific conclusions about whether any expenses incurred by the Battlebus in Torbay constituency should have been included on Mr Foster’s return
For publication 38 Postage invoice £7.15 Direct mail (organised by CCHQ) £6,830.65 Balloons, posters, rosettes, lapel stickers £368.66 Letterheads £283.00 (could have been spilt between long and short campaign if used) Lyreco invoices (stationery) £147.98 Gold Print A4 leaflets £63.33 Banners £240.00 Accommodation and administration at TCA £560.00 These items (if proven to have been omissions from the short campaign) total £8,911.30. This is significant given an under spend of only £1,024.46 in the declared short campaign expenses by Mr FOSTER. Furthermore, the collective value of this potential over spend would provide a benefit in Mr FOSTER and Ms HERNANDEZ making deliberate omissions from the short campaign expenses return. 34. The inaccuracies indicated within the returns are in some cases open to interpretation as to whether an error has been made. This interpretation is somewhat subjective dependent on the individual’s interpretation of the Electoral Commission guidance. 35. The relevant offences under the RPA require proof that Ms HERNANDEZ knew the declaration was false. Mr FOSTER and Ms HERNANDEZ argue that any falsities were not made knowingly. Mr FOSTER and Ms HERNANDEZ provide plausible explanations for many of the irregularities found which lend themselves to offering the defence available under the RPA. 36. In relation to some of the irregularities, there is evidence which may tend to undermine the explanations provided by Mr FOSTER and Ms HERNANDEZ. 37. If all the expenditure above should have been included in the returns then an offence under Section 76 RPA may have been committed in relation to each time of expenditure, after the limit had been reached. Initial CPS Advice in this case states that they consider that the relevant date of the offence, relates to the point in time when the expense is incurred, as opposed to the date the election expenses return is made. So although such an offence amounts to an “illegal practice”, this offence is now out of time. This offence is out of time as the expenses involved would have been incurred during the short campaign period i.e. prior to 7th May 2015. Any offence under this section, therefore would have already been out of date at the point at which Devon and Cornwall Police made their application for an extension under the RPA on 19th May 2016. Given this this investigation cannot consider offences under section 76 RPA. A person convicted of an illegal practice may be subject to a fine; has to vacate their seat and they are unable to be elected to the House of Commons or hold elective office for a period of 3 years. Therefore a motive for dishonestly making a false declaration under s86, could be to seek to avoid prosecution for that offence and its consequences. 38. In relation to an offence under Section 82(6) (where a candidate or election agent knowingly makes the declaration required falsely) he shall be guilty of a corrupt practice. ‘Corrupt practice’ is an either way offence. A person convicted of a corrupt practice on indictment may be imprisoned for a term not exceeding 12 months, a
For publication 39 fine or both. For a person convicted of a corrupt practice summarily they may be imprisoned for a term not exceeding 6 months, a fine or both. A person convicted of a corrupt practice has to vacate their seat and they are unable to be elected to the House of Commons or hold elective office for a period of 5 years.
Conclusions
39. On receipt of my report, the commission delegate must decide if there is an indication that a criminal offence may have been committed by any person under investigation. 40. If they decide that there is such an indication they must decide whether it is appropriate to refer the matter to the CPS. 4
41. The commission delegate may wish to consider whether it is appropriate to refer this/these individuals to the Crown Prosecution Service for the following offences:
Name Criminal offence
Ms Alison HERNANDEZ S.82 (6) Representation of the People Act 1983
Mr Kevin FOSTER S.82 (6) Representation of the People Act 1983
4 Commission Delegate Sarah Green referred the allegations against PCC Alison Hernandez to the Crown Prosecution Service (CPS) in April 2017. West Mercia Police also referred the linked allegations relating to Kevin Foster MP. The CPS decided in May 2017 that no criminal charges will be brought against Ms Hernandez or Mr Foster.
For publication 40
Alison HERNANDEZ
Criminal investigation into allegations against the Police and Crime Commissioner of Devon and Cornwall Police
Managed investigation report
Appendices Appendix 1: The role of the IPCC
The IPCC carries out its own independent investigations into complaints and incidents involving the police, HM Revenue and Customs (HMRC), the National Crime Agency (NCA) and Home Office immigration and enforcement staff when the seriousness or the public interest require it.
The IPCC is also responsible for investigating any allegations of criminal conduct made about an Elected Local Policing Body, such Police and Crime Commissioners (PCCs) or the Mayor of London.
We are completely independent of the police and the government. IPCC commissioners by law may never have worked for the police.
Commissioners provide oversight in these cases, providing strategic direction and scrutinising the investigation. The investigation At the outset of an investigation a lead investigator will be appointed who will be responsible for the day to day running of the investigation. This may involve taking witness statements, interviewing subjects to the investigation, analysing CCTV footage, reviewing documents, obtaining forensic and other expert evidence, as well as liaison with the crown prosecution service (CPS) and other agencies.
They are supported by a team including other investigators, lawyers, press officers and other specialist staff.
Meaningful updates are provided to stakeholders both inside and outside the IPCC at regular intervals.
Throughout the investigation, a series of reviews and quality checks will take place.
The IPCC often makes early contact with the crown prosecution service (CPS) and are sometimes provided with investigative advice during the course of the investigation however we are asked by the CPS to keep any such advice confidential. Final reports Once the investigator has gathered the evidence they must prepare a report. The report must then be given to the commissioner who will decide if there is an indication that a criminal offence may have been committed by any of the subjects of the investigation and whether it is appropriate to refer the case to the CPS for a charging decision. Criminal proceedings If there is an indication that a criminal offence may have been committed by any subject of our investigation the IPCC may refer a subject to the crown prosecution
Appendices 2 service. They will then decide whether to bring a prosecution against any person. If they decide to prosecute, and there is a not guilty plea, there may be a trial. Relevant witnesses identified during our investigation may be asked to attend the court. The court will then establish whether the defendant is guilty beyond all reasonable doubt. Publishing the report After all criminal proceedings relating to the investigation have concluded, and at a time when the IPCC is satisfied that any other proceedings will not be prejudiced by publication, the IPCC will publish its investigation report.
Further redactions might be made to the report at this stage to ensure that individuals’ personal data is sufficiently protected.
Appendices 3 Appendix 2: Timeline of events
Date Event
13 x members of the public contact D&C with a view to reporting their concerns in relation to the FOSTER campaign. Of these only 2 could provide any evidence in relation to their concerns, the Between 6 remainder only having reported the matter after being prompted March 2016 and to contact their local Police Force by the Channel 4 news report 17 May 2016 they had seen.
12 May 2016 Referral to IPCC by OPCC
17 May 2016 Referral with
Section 176 (2A) RPA 1983 application made by D&C to 19 May 2016 Chippenham Magistrates Court for extension to time limit.
Meeting with EC, CPS, other forces (held at EC, London). Also in attendance West Midlands Police who holds national 27 May 2016 portfolio for election fraud.
Terms of Reference as approved by IPCC Commissioner Sarah GREEN
(1) The investigation concerns the alleged conduct of relevant office holder, Ms Alison HERNANDEZ, the newly elected Devon and Cornwall PCC
(2) 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
(3) 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 Panel and any interested party will be informed 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 and Panel 03 June 2016 and published.
Economic Crime Unit make 1st contact with D&C (as per 1st 21 June 2016 email correspondence between and D&C).
Attend Torbay Council and collect all documentation referred to in 04 July 2016 the statement of Caroline TAYLOR
Appendices 4 Meeting with Adrian SANDERS and collect documentation 05 July 2016 referred to in his statement
Meeting with and collect all documentation 19 July 2016 referred to in his statement
Meeting with Robert EXCELL and collect all documentation 20 July 2016 referred to in his statement
Meeting with Cordelia LAW and collect all documentation referred 20 July 2016 to in her statement
20 July 2016 Caroline TAYLOR of Torbay Council signs her statement
and collect EC, Channel 4/ITN material. Contains statements of (EC); (EC); (Channel 4); (West Midlands Police); (West 30 August 2016 Midlands Police).
30 September 2016 DPA submitted to Lyreco UK Ltd
30 September DPA submitted to St Ives Management Services (SIMS) (re. client 2016 FOSTER/HERNANDEZ)
30 September 2016 DPA submitted to The Beach Hut
SIO meeting, Holford Drive, Perry Barr, Birmingham - hosted by 14 October 2016
18 October 2016 DPA submitted to Gold Print (re. client FOSTER/HERNANDEZ)
21 October 2016 Call to CCHQ re enquiries into training offered to election agents
21 October 2016 DPA submitted to St Austell Printing Company
25 October 2016 of Lyreco signs her statement
27 October 2016 DPA submitted to Gold Print (re. client )
27 October 2016 DPA submitted to TCA
04 November DPA submitted to St Ives Management Services (SIMS) (re. client 2016 CCHQ)
Attend Torbay Council and collect all election expenses returns 07 November submitted by local Torbay and Totnes candidates together with 2016 Mayoral election expenses return submitted by Gordon Oliver.
Appendices 5 07 November 2016 Cordelia LAW signs her statement
08 November 2016 Robert EXCELL signs his statement
08 November 2016 Adrian SANDERS signs his statement
08 November 2016 David THOMAS of Gold Print signs his statement
09 November Attend Exeter Council in order to collect election expenses return 2016 submitted by Alison HERNANDEZ following the PCC election
09 November 2016 signs his statement
28 November 2016 DPA submitted to South West Colour Laboratories Ltd
09 December 2016 Disclosure provided to Manleys Solicitors
13 December 2016 of SIMS signs his statement
21 December West Midlands Police provide email copies of the statements of 2016 and
22 December Interviews take place with Kevin FOSTER and Alison 2016 HERNANDEZ
Appendices 6 Appendix 3: Investigation strategy
Terms of Reference
Terms of Reference as approved by IPCC Commissioner Sarah GREEN:-
(1) The investigation concerns the alleged conduct of relevant office holder, Ms Alison HERNANDEZ, the newly elected Devon and Cornwall PCC
(2) 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
(3) 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 Panel and any interested party will be informed 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 and Panel and published.
A Policy File has been maintained throughout the investigation to record details of and rationale for all key decisions and strategies developed.
An investigative structure was established to ensure that West Mercia Police, as managed by the IPCC in this case, could conduct a timely, thorough and impartial investigation in accordance with the agreed terms of reference.
Protocols have been established to ensure clear lines of communication between respective parties, recognising the reputational interdependencies involved.
These included the arrangements with the National Policing Co-ordination of enquiries with the Electoral Commission to ensure that evidence gathered at a national level and specifically relating to the ‘Battlebus’ were appropriately collected and incorporated into the specific investigation into the conduct of Alison HERNANDEZ.
The investigation was intelligence led and examined all aspects of the expenses identified and declared as part of MP Kevin Foster’s General Election campaign (Long and Short). This was complicated by the joint arrangements in place at the time, relating to simultaneous Local and Mayoral elections, which led to new lines of enquiry that were required to be completed in order to comprehensively investigate in accordance with the agreed terms of reference.
Appendices 7 Appendix 4: Challenges encountered in the investigation
Time limit for Representation of the People Act offences
The RPA imposes a 12 month time limit to commence proceedings. This time limit can be extended by Order of a Court under S176 RPA if it can be shown that there are exceptional circumstances for such an order and there had been no undue delay in the investigation.
It was determined that the relevant date in connection with this enquiry would be the date upon which both Alison HERNANDEZ and Kevin FOSTER signed the declarations submitted with their election expenses returns.
The signed declaration for Alison HERNANDEZ, dated 5th June 2015 states:-
“I have examined the return of election expenses … delivered by me …and to the best of my knowledge and belief it is a complete and accurate return as required by law”.
The signed declaration for Kevin FOSTER, dated 5th June 2015 states:-
“I have examined the return of election expenses ….about to be delivered by my agent … and to the best of my knowledge and belief it is a complete and accurate return as required by law”.
On 19th May 2016 Devon and Cornwall Police made a successful application under S176 at Chippenham Magistrates Court.
Obtaining material from Channel 4/ITN, the Electoral Commission and CCHQ
West Midlands Police hold the national portfolio in connection with election fraud on behalf of the National Police Chiefs Council (NPCC). As a result they took the lead in connection with liaison with the Electoral Commission who in turn were directly communicating with Channel4/ITN and CCHQ.
Following the first meeting with all involved Police Forces, Assistant Chief Constable for West Midlands Police, identified the difficulties created by the clear interconnection between the EC investigation and any subsequent Police investigation. The EC are responsible for the regulation of national campaign spending by the party, whereas the Police are responsible for the investigation of individuals at local constituency level.
The following terms of reference were set:-
(1) Local forces retain ownership of their own investigations, conducting any local actions under the direction of a Senior Investigating Officer (SIO), for example interviewing of candidates and agents, or gathering local material from returning officers.
Appendices 8 (2) Local forces will determine their own governance and investigation structure within force.
(3) The force SIO will set and deliver their own investigation plan and local actions, relating to their individual offences, maintaining clear records as they see fit.
(4) The National Co-Ordinator will support local forces in the delivery of their investigation plans by collating and assessing all locally identified actions from forces that could have an impact on one or more force.
(5) The National Co-Ordinator team will act as the point of contact and collation for any national actions, for example liaising with Channel 4 or the Conservative Party and will then prevent duplication by forces, whilst ensuring actions are conducted in an efficient and appropriate manner.
(6) The National Co-Ordinator team will review all material held by the Electoral Commission and identify any gaps in the evidence and material, ensuring it is disseminated to all forces/SIO’s.
(7) The National Co-Ordinator will facilitate the communication amongst all force SIO’s regarding progress with national actions.
(8) The National Co-Ordinator should be made aware of any individual approaches to CPS regarding local investigations and relevant outcomes.
(9) The decision making regarding individual investigations will remain with the local force SIO, who continue to manage their local investigation as they see fit, updating the National Co-Ordinator with any pertinent enquiries/actions.
The above structure will allow for the investigations to be managed in an efficient and effective manner, ensuring forces do not duplicate actions. The National Co-Ordinator will provide a support function to SIO’s that will allow for best practice to be shared across all parties and consistency in approach.
As a result of the above, West Midlands Police secured the evidence of Channel 4 news by way of a production order.
In relation to material held by CCHQ this has since been secured by the EC. CCHQ provided some material on service of a notice by the EC, however, on 29th April 2016, the EC wrote to CCHQ’s legal representatives giving a final extended deadline to provide all outstanding material by 1pm on 9th May 2016. CCHQ did not provide any further material by that extended deadline and so on 9th May 2016 the EC served CCHQ with a final notice (under the terms of PPERA) with an extension until 10am on 16th May 2016.
On 12th May 2016 the EC made an application to the High Court for a document and information disclosure order under PPERA. This was in respect of CCHQ’s continued failure to comply with notices served upon it. On the afternoon of 12th May 2016 CCHQ provided to the EC several boxes of material that it said responded fully to all outstanding requests for material.
Appendices 9 Anticipated EC findings/report
The EC has the function of monitoring compliance with the restrictions and other requirements imposed by Section 145 Political Parties Elections and Referendums Act 2000 (PPERA), including those in Part V relating to campaign expenditure. Section 145 also provides the Commission with the function of monitoring compliance with the restrictions and other requirements imposed by other Acts in relation to the election expenses incurred by or on behalf of candidates at election and donations to such candidates or their election agents.
After EC contact with CCHQ and in line with its Enforcement Policy, the EC assessed whether it should open an investigation in respect of the Party’s 2015 UKPGE spending return. The EC’s policy is to open investigations where it has reasonable grounds to suspect that an offence under PPERA has been committed and where the EC considers that use of public funds to investigate can be justified in the public interest.
The conclusion of the assessment was that the evidence disclosed potential criminal offences under Section 82(4)(b) and Section 83(3)(a) of PPERA and that a formal investigation should be opened.
The final report detailing the conclusion of the EC investigation was published on 16th March 2016. One aspect of their investigation was to consider if the Conservative Party Treasurer, Mr Simon DAY, had committed offences under Section 82(4)(b) PPERA in relation to the Party return regarding the 2015 General Election and in particular in relation to the Battlebus Campaign. The EC have concluded in their report that whilst they found no evidence of the Party funding the Battlebus Campaign with the intent that it would promote local candidates they failed to identify that there was a clear risk of this happening and did little or nothing to mitigate that risk. It is the view of the EC from their investigation that candidate campaigning did take place during the Battlebus Campaign and the party made an inaccurate assumption that all spending in relation to the Campaign should be reported by the Party.
The EC cannot say what proportion of the £102,483 spent on the Battlebus Campaign was candidate spending, as they have not sought to identify this in their investigation. This is due to the fact that underreporting by candidates is an offence under the RPA, which is outside the EC remit and a matter for the police to investigate. The EC therefore concluded that Mr DAY did commit an offence under section 82(b)(4) PPERA in relation to this matter and have imposed the maximum financial penalty for this offence which is £20,000 (it should be noted the Party have been fined a total of £70,000 in relation to other offences found by the EC investigation). In determining the penalty the EC have taken into account the advantage obtained by the Party and the candidates, as a result of the omissions made from the candidate returns.
Under Section 83 of PPERA, campaign spending returns must be accompanied by a signed declaration to the EC by the Treasurer of the Party, who is required to state that they have examined the return and to the best of their knowledge it is accurate. It is an offence under Section 83(3) of PPERA for the Treasurer to knowingly or recklessly make a false declaration. This cannot be dealt with by civil sanctions and as such the EC have referred Mr DAY to the Metropolitan Police Service to consider whether to investigate him for this offence. It should be noted that the offence under
Appendices 10 section 82(6) RPA requires a candidate to knowingly make a false declaration, there is no mention of recklessness, therefore the points to prove are slightly different to the offence under PPERA for the Treasurer.
Overall, it is clear that there is some overlap in the EC investigation and the police investigation in to Mr FOSTER and Ms HERNANDEZ. The view of the EC that a proportion of the Battlebus spending should have been recorded as candidate (not Party) spending tends to support the case against Mr FOSTER and Ms Hernandez. However, the fact that they knowingly made a false declaration, may be undermined by the inaccurate advice they received from the Party on how the Battlebus spending should be recorded.
Links to other candidates expenses – Mayoral; local candidates (Torbay), local candidates (Totnes), UKPGE 2015 return from Dr Sarah WOLLASTON (Totness candidate) and PCC election return (HERNANDEZ)
In view of the fact that it transpired that many expenses incurred during the FOSTER UKPGE 2015 campaign were shared expenses it became necessary to review the returns submitted for all elections held locally.
Torbay is divided into two Parliamentary areas – Torbay and Totnes. Torbay covers Torquay and most of Paignton. Totnes covers Totnes, Brixham, Dartmouth, Kingsbridge and Salcombe.
During the elections of May 2015, not only were local residents voting in the Parliamentary election, they were also voting for the local Mayor (who would cover the entire Torbay area covering both the Torbay and Totnes districts) and also for their local Government Councillors for Torbay Unitary Authority (again covering the Torbay and Totnes districts).
The successful Parliamentary candidate for the Totnes area was Dr Sarah WOLLASTON. She is not subject to any election expenses investigation.
All Torbay and Totnes returns were obtained from Torbay Council.
Additionally, complainants made a comparison against the election expenses return submitted by Alison HERNANDEZ following the PCC elections. A copy of this return was obtained from the Police Area Returning Officer (PARO) for these elections who sat within Exeter City Council.
All returns have been reviewed and analysed in order to determine which supplier invoices were split and the respective apportionment value/calculation attributed to each candidate.
Freedom of Information (FOI) requests
West Mercia Police have received 4 x FOI requests. These were received on the 25th November 2016, 13th December 2016, 23rd December 2016 and 11th January 2017.
Appendices 11 As a very brief précis, the information asked for has covered areas such as the full details of meetings and communication between West Mercia Police and the EC; results of enquiries to date; number of investigators and their rank together with the respective hours spent on the enquiry. These have taken a considerable amount of time to review with consideration being given to whether the information can be disclosed or whether an exemption applies under the FOI Act.
Public/press interest
Coupled with the FOI requests detailed above there has been a significant press interest in the investigation. These requests have also taken time to review and this has had to be done in consultation with the IPCC Press Office and in line with the agreed press strategy.
Appendices 12 Appendix 5: People referred to in this report
The IPCC categorises people in three different ways: Subjects of the investigation (people whose conduct was the subject of the investigation). Witnesses (people who gave evidence for the investigation). This includes significant witnesses (people who saw or heard or otherwise witnessed a significant part of the incident). Experts (people with expertise in a particular area who were instructed by the IPCC to provide their expert opinion) Not everyone spoken to during the course of the investigation is referred to in this report. This report makes reference to the following people: Subjects Ref Name Role Date notified Interviewed
1 Kevin FOSTER UKPGE 2015 16th May 2016 22nd candidate for December Torbay 2016 constituency
2 Alison Agent for Kevin 16th May 2016 22nd HERNANDEZ FOSTER during December this UKPGE 2015 2016 campaign
Witnesses Ref Name Role Type of Interviewed witness
1 Detective 12th August Constable, West 2016 Midlands Police
2 Caroline TAYLOR Acting Returning 20th July Officer for Torbay 2016 Constituency
3 Adrian SANDERS Former Torbay MP 8th November 2016
4 Cordelia LAW Resident of Torbay 7th November 2016
Appendices 13 5 David THOMAS Owner of Gold 8th Print November 2016
6 Account Director, 13th St Ives December Management 2016 Services (SIMS)
7 Credit Control 25th October Supervisor, Lyreco 2016
8 John COWIE* TCA Treasurer 12th December 2016
* John COWIE was Treasurer for TCA at the time of the UKPGE 2015 and he was responsible for producing notional invoices to the FOSTER campaign. He has been able to produce copies of the Association’s accounts for years 2014 and 2015 and contained within these are those notional invoices, together with supporting evidence to show how each notional invoice was calculated.
It would appear Mr COWIE had a deputy at the time called – he has not yet been spoken to.
Expert witnesses Ref Name Expertise Terms of Report reference provided
Appendices 14 Appendix 6: Evidence referred to in this report
Throughout this investigation a volume of evidence was obtained and reviewed. Not all the evidence gathered during the investigation has been referred to in this report. This report makes reference to the following relevant evidence:
Ref Evidence Details Obtained
NAP1 From a copy of Email dated 23rd April 2015 29th and 30th (Document documentation June 2016 3.8) recovered from the EC
CT01 Torbay Council Nomination paper for Kevin 5th July 2016 FOSTER
CT02 Torbay Council Consent to nomination form 5th July 2016 for Kevin FOSTER
CT03 Torbay Council Certificate giving authority to 5th July 2016 use the Conservative Party name submitted by Kevin FOSTER
CT04 Torbay Council Written request to use the 5th July 2016 Conservative Party emblem submitted by Kevin FOSTER
CT06 Torbay Council Statement of persons 5th July 2016 nominated
AS01 Adrian SANDERS March ‘My plan’ leaflet 5th July 2016
AS05 Adrian SANDERS Script utilised by battle bus 5th July 2016 activists
AS06 Adrian SANDERS Example of direct mail 5th July 2016 circulated by the Kevin FOSTER campaign
AS07 Adrian SANDERS Example of direct mail 5th July 2016 circulated by the Kevin FOSTER campaign
Appendices 15 AS08 Adrian SANDERS Example of direct mail 5th July 2016 circulated by the Kevin FOSTER campaign
AS09 Adrian SANDERS Example of direct mail 5th July 2016 circulated by the Kevin FOSTER campaign
AS10 Adrian SANDERS The Beach Hut magazine 5th July 2016 April edition tagged showing it was delivered on 1st April 2015 in the Preston Ward
AS13 Adrian SANDERS Campaign literature believed 5th July 2016 to be ballot leaflet
CL02 Cordelia LAW Twitter photograph 25th July 2016 screenshot of campaign office
CL03 Cordelia LAW Twitter photograph 25th July 2016 screenshot
CL04 Cordelia LAW Twitter photograph 1st July 2016 screenshot
CL05 Cordelia LAW Twitter photograph 1st July 2016 screenshot
CL06 Cordelia LAW Twitter photograph 1st July 2016 screenshot
CL07 Cordelia LAW Twitter photograph 1st July 2016 screenshot
CL08 Cordelia LAW Twitter photograph 17th August screenshot 2016
CL09 Cordelia LAW Twitter photograph 1st July 2016 screenshot
DT02 David THOMAS Copy invoice 5597 dated 2nd 19th October December 2014 for £258.00 2016
DT03 David THOMAS Artwork relating to invoice 19th October 5597 2016
DT04 David THOMAS Copy invoice 5598 dated 3rd 19th October December 2014 for £1,595.00 2016
Appendices 16 DT05 David THOMAS 6 samples of the Christmas 19th October cards produced under invoice 2016 5598
DT14 David THOMAS Copy invoice 5667 dated 27th 19th October April 2015 2016
DT16 David THOMAS Copy invoice 5670 dated 28th 19th October April 2015 for £127.46 2016
DT18 David THOMAS Copy invoice 5668 dated 27th 29th November April 2015 for £190.00 issued 2016 to Robert EXCELL Photographer
DT19 David THOMAS Copy artwork relating to 29th November invoice number 5668 2016
ME02 Copy invoice 58165 dated 14th October 10th March 2015 for £1,105.99 2016
ME04 Copy invoice 60567 dated 14th October 27th February 2015 for 2016 £283.00
ME05 Artwork relating to invoice 14th October 60567 2016
ME06 Copy invoice 60568 dated 14th October 16th January 2015 for £21.83 2016
ME07 Artwork relating to invoice 14th October 60568 2016
ME14 Copy invoice 61121 dated 14th October 27th February 2015 for 2016 £214.70
ME16 Copy invoice 61122 dated 14th October 27th February 2015 for 2016 £413.28
LL01 Copy invoice number 30th September 6260183482 dated 31st 2016 December 2014 for £240.14
Appendices 17 LL02 Copy invoice number 30th September 6260184323 dated 19th 2016 February 2015 for £86.50
LL03 Copy invoice number 30th September 6260184968 dated 28th 2016 February 2015 for £69.49
LL04 Copy invoice number 30th September 6260185755 dated 31st March 2016 2015 for £431.82
LL05 Copy invoice number 30th September 6260186540 dated 30th April 2016 2015 for £47.80
Appendices 18