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IN THE CENTRAL LONDON COUNTY COURT E40CL216 - MAYOR'S AND CITY OF LONDON

Guildhall Buildings Basinghall Street London EC2V 5AR

Friday, 19 July 2019

Before:

HIS HONOUR JUDGE DIGHT CBE

IN THE MATTER OF THE POLITICAL PARTIES, ELECTIONS AND REFERENDUMS ACT 2000; and THE POLITICAL PARTIES, ELECTIONS AND REFERENUDMS (CIVIL SANCTIONS) ORDER 2010 and IN THE MATTER OF AN APPEAL AGAINST THE DECISION TO IMPOSE DISCRETIONARY PENALTIES

BETWEEN :

DARREN GRIMES Appellant

- and -

THE ELECTORAL COMMISSION Respondent

______

MR T. STRAKER QC and MR F. HOAR (instructed by Saunders Law) appeared on behalf of the Appellant.

SIR J. EADIE QC, MR R. MEHTA and MR A. RATAN (instructed by Fieldfisher) appeared on behalf of the Respondent.

______

JUDGMENT

JUDGE DIGHT:

1 By this appeal Mr Grimes challenges the imposition on him by the Electoral Commission, in a final notice dated the 17th July 2018, of what are known as discretionary requirements in the total sum of £20,000 in respect of two offences which they found him to have committed in the reporting of expenditure in the campaign expenditure return filed as a result of participation by him and by an entity called BeLeave in the European referendum which took place on the 23rd June 2016. It is more precise to say that the Commission imposed no penalty in respect of the first offence but imposed the maximum penalty of £20,000 in respect of the second offence.

2 This appeal was originally due to be heard together with an appeal brought by Vote Leave, the designated organisation campaigning for a leave vote in the referendum. Vote Leave had been fined in excess of £60,000, but it has in the last few months paid the fines, and has discontinued its appeal. During the referendum period Vote Leave had donated approximately £650,000 to BeLeave which was paid directly to a Canadian data analytics company called Alternative IQ which carried out BeLeave's social media advertising.

3 The regulatory framework pursuant to which the requirements were imposed on Mr Grimes is contained in the Political Parties, Elections and Referendums Act 2000 (“PPERA”), and the European Union Referendum Act 2015 (“EURA”). This appeal and the hearings that have gone before have generated a considerable amount of heat. My job in this appeal is a relatively technical one, which is to decide whether the grounds advanced by Mr Grimes in the course of his appeal have been made out on a proper construction of the two Acts of Parliament that I have referred to, having regard to the material which was before the Commission.

4 The two offences are as follows: first, under s.122(4)(b) of the PPERA, which provides that:

"The responsible person commits an offence if without reasonable excuse he … (b) delivers a return which does not comply with the requirements of s.120(2);"

Section 120(2) provides:

"A return under this section must specify the referendum to which the expenditure relates, and must contain (a) a statement of all payments made in respect of referendum expenses incurred by or on behalf of the permitted participant during the referendum period in question;"

The Electoral Commission found to the criminal standard of proof that Mr Grimes had failed without reasonable excuse to deliver an accurate campaign spending return because in the return which he delivered he included the spending of BeLeave; he did not confine the return to his own campaign spending.

5 The second offence is said to have been committed in breach of s.117(3) PPERA, which provides:

"Where

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(a) during the referendum period any referendum expenses are incurred by or on behalf of anybody in excess of the limit imposed by subsection (1), and (b) the body is not a permitted participant, any person who authorises expenses to be incurred by or on behalf of the body is guilty of an offence if he knew or ought reasonably to have known that the expenses would be incurred in excess of that limit."

The Electoral Commission found, again to the criminal standard of proof, that BeLeave was not what is known as a "permitted participant" because it was not an unincorporated association which had notified the Electoral Commission that it intended to campaign in the referendum; that it therefore had a spending limit of £10,000; but that Mr Grimes had authorised expenses of approximately £675,000 to be incurred by or on behalf of BeLeave; and that before or at the time of doing so he knew or ought to have known that expenses would be incurred in excess of the relevant limit.

6 The core of Mr Grimes's case has always been: (1) BeLeave had at all material times been an unincorporated association rather than just a campaign name, and it was entitled to be a permitted participant in the referendum; (2) proper notice had been given to the Electoral Commission on behalf of BeLeave by Mr Grimes that BeLeave intended to campaign; (3) that BeLeave therefore, and not Mr Grimes, was a permitted participant; (4) that BeLeave therefore had a spending limit of £700,000; (5) that BeLeave was entitled therefore to incur and did incur referendum expenditure of £675,000-odd; (6) that Mr Grimes filed an accurate return on behalf of BeLeave which showed BeLeave's total expenditure; (7) and accordingly, on a proper construction of the PPERA and on the material before them, the Electoral Commission was not entitled to reach the conclusion to the criminal standard that either of the two offences had been made out.

7 In the course of this appeal I have been provided with a very considerable quantity of documents, both contemporaneous documents and documents prepared subsequently, including a substantial amount of written submissions on behalf of both parties. In the course of this judgment, I will only refer to those which enable me to reach my conclusions on the grounds of appeal.

8 I turn to look briefly at the factual background to the case. The first area of dispute, chronologically and logically, is about the nature of the entity known as BeLeave. My attention was drawn in the course of the hearing to emails which were said to suggest the existence of BeLeave from as early as December 2015 or January 2016. For example, there is an email dated 19th January 2016 from Steven Parkinson to Cleo Watson at Vote Leave, which says, of Mr Grimes:

"This guy is a former Liberal Democrat activist and a friend of a friend. I met him for a coffee in Newcastle over Christmas, and told him the best thing he could do to help us was to do a few videos and tweet them out. What he's done is even better than that."

Mr Parkinson then provided a link to BeLeave's Facebook page, which was obviously in existence by that time, and he went on to say:

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"If you like it, can we share one of his posts on our Facebook page or retweet him occasionally? That will keep him feeling loved, and hopefully encourage more people to do this sort of thing. He is a student in Brighton, so not sure if he's looking for a job, but he seems like somebody we could use to do more things if we like his work."

9 By 13th February 2016 it is apparent that BeLeave had a Twitter account. I have seen the record of account opening payment, and certainly by, or shortly after, that date the account was active, and there was a number of followers. All of the documents that I am about to refer to during this review of the background facts are documents which were in the hands of the Commission before they reached their final conclusions in this case.

10 On 3rd March 2016 the Statutory Instrument which set the date of the referendum cleared Parliament. During the course of the two weeks after that, it is apparent from the material before me that Mr Grimes was in continuing contact with Vote Leave. I have been shown, for example, an email dated 14th March 2016 between various officers at Vote Leave, confirming that they were content for BeLeave to use the Vote Leave logo.

11 On the following day, 15th March, Mr Grimes completed what is referred to as an application form to register as a campaigner for the referendum. The form says, at the foot of the front page, that it is for individuals or organisations, including political parties, who plan to spend more than £10,000 campaigning at the EU referendum. In the body of the form, which I infer was completed online, there are six sections. At the front of the form there are explanatory notes in respect of each of those six sections, explaining how the form should be completed. It is apparent to anyone who has looked at the form which he filed that, with the greatest respect, Mr Grimes was confused about how this should have been completed, because the details which he provided are not necessarily in a logical order in the sense that there is a slight non-sequitur between the way in which he completed some of the sections of the form. I am not suggesting that it was at all his fault because the form itself in my view was difficult to understand.

12 Section 1 of the form is headed, "Details of the referendum outcome", and the question is, "Outcome you intend to campaign for", in respect of which Mr Grimes ticked the, "Leave the European Union" box. Section 2 is headed, "Details of the individual organisation applying for registration". It is apparent from the notes, and from the relevant provisions in PPERA that this form is in a sense derived from, that a number of different types of entity are entitled to apply for registration; they could, for example, be individuals, companies or unincorporated associations.

13 Under the heading, "Name of individual or organisation", Mr Grimes entered, "BeLeave"; he did not put in his own name. In respect of the second box, "Campaigner name if different", there is no entry made by Mr Grimes. It seems to me likely that the requirement to provide "Campaigner name if different" is intended to refer to someone's real name as opposed to their trading name, if I can put it that way. Mr Grimes's personal details are then included, his address, his phone number, and, albeit mistyped, his email address.

14 Section 3 is headed, "Status". The relevant notes say: "You should tell us whether you are registering from within the UK or Gibraltar. You should tell us if you are registering as--", and then there is a series of bullet points:

an individual registered on the UK or Gibraltar electoral register; a political party registered with the Electoral Commission; a different type of organisation. OPUS 2 DIGITAL TRANSCRIPTION 3

The form starts off by asking the question in section 3, "Are you registering as an individual / organisation within the UK and Gibraltar?", in respect of which Mr Grimes crossed, "UK". And then, it asked the question, "Are you registering as an individual or political party?"

In fact, as the notes suggest, and the relevant section of PPERA provides, it is not a binary decision because it is also possible to notify/register as another type of organisation, of which there is a whole series. However, on the face of the question contained in this part of the form there was only a choice between registering as an individual or as a political party. Mr Grimes crossed the box next to, "Individual". There is then an instruction which says, "Go straight to section 5, the declaration". He did not complete any of the boxes in the section below which is headed, "Other organisations", although there is a specific box for unincorporated associations. If he had ticked or crossed that box, he would have been asked to follow the rubric above it which says, "Tick the appropriate box for your organisation, and go to section 4, the details of your responsible person". In other words the ticking of one box (as an individual) leads to section 4 and ticking another box (as an other organisation) leads to section 5.

15 However, Mr Grimes went on to complete both section 4 and section 5. In section 4, which is headed, "Notification of the responsible person for your organisation", he put his personal details in, with his own name. On the face of it, that is intended to be filled in by someone who is notifying on behalf of one of the “other” organisations including an unincorporated association. He also then filled in section 5, “declaration by the responsible person for your organisation,” which he could fill in whether he was applying for himself or BeLeave. The declaration was, "I declare that I am authorised to sign this application in the capacity as responsible person and on behalf of the above-named permitted participant".

16 Mr Grimes did not fill in the final section, section 6. There was a debate with counsel as to whether he should have done so, if he were acting on his own behalf or on behalf of another organisation. The section 6 explanatory notes are not entirely clear as to what course he should have taken.

17 On the reverse of the form is a box in which it is said, "For Electoral Commission use only", and comprises four sub-boxes: "Date of receipt", "Checked by", "Date entered in database", "File reference number", but there is no document in the bundles of papers before me which shows that any of those boxes has been completed.

18 On the following day there were discussions within Vote Leave about the arrangements for BeLeave to be included in outreach events. There is an email of 16th March 2016 from Cleo Watson, headed, "Outreach events" which contains a list of organisations which Vote Leave was including among its supporters, and among them was, "BeLeave (Youth Group)".

19 On the 17th March the Electoral Commission carried out some checks to establish that Mr Grimes was on the electoral register at the address which he had given, and received confirmation that he was. On the 22nd March the Commission wrote to him at that address in a letter that made no reference to BeLeave, as follows:

"Dear Mr Grimes, Approval of registration as a registered campaigner. Thank you for your application to register as a registered campaigner of the referendum on the UK's membership of the EU. Your application was received on the 16th March 2016. I write to confirm that you have been added to the register of permitted participants of the referendum. Your date of registration is 15th March 2016. I enclose a copy of your entry as it appears on the register. It is important you notify OPUS 2 DIGITAL TRANSCRIPTION 4

us immediately if there is any error in these details so that they can be amended as soon as possible."

Over the page was stated:

"You can change your registration details, renew your registration, and submit spending and donation returns online. You can find more information on how to comply with the rules in our guidance-- "

-- which the document included a hyperlink to.

20 The registration form is dated 22nd March 2016, timed at 16.48, and contains the following registration summary:

"Primary name: Mr Darren Grimes." "Referendum: Referendum on the UK's membership of the EU." "Date registered [ultimately]: 15 March 2016." Under the heading, "Officers", and against the words, "Responsible person", are Mr Grimes's details. There is no reference, as I have already said, to BeLeave.

21 Mr Grimes did not write back to say that he was confused or that the document which the Commission had sent him did not reflect what he had intended, which was that BeLeave should be registered as the permitted participant rather than himself.

22 Nevertheless, it is apparent from the contemporaneous correspondence and some materials which were collated by the Electoral Commission later that BeLeave (whatever form it took) continued to be active in its campaigning. In a document within the papers before the Electoral Commission headed, "Appendix 36, recollection of Cleo Watson", who was “Head of Outreach” for Vote Leave, in relation to Mr Grimes and BeLeave, she wrote:

"We first became aware of Darren Grimes around Christmas 2015, when he was regularly reposting and retweeting activity from the Vote Leave campaign. By January 2016 he had started his own hashtag, #BeLeave, which morphed into the group BeLeave within his own account when others on social media with his views joined him. BeLeave's message was notably different to Students of Britain who were a close affiliate group to Vote Leave as they had a clear focus on internationalism and global trade links, and wanted to avoid debates about immigration numbers and membership costs. I was particularly impressed by BeLeave's campaign because it shared many of my own views on the debate.

The BeLeave messages and imagery had their own very specific brand, and broadcasters, journalists and thousands of voters were immediately interested in and inspired by their campaigning. Vote Leave was often asked by broadcasters to suggest young people to appear on panels or do interviews, and we would direct them to the BeLeave social media accounts explaining that they were a separate organisation but still campaigning for a leave vote. This is the closest way in which we worked together in my opinion. As is quite common in any working environment, we grew to greatly respect and enjoy the videos and interviews Darren and the team at BeLeave were doing, and when Darren, who lives in Brighton, said he would be coming to London in January [I take that to be 2016] I was delighted to meet him. We discussed the referendum in general, and I thought his views on the debate, which I largely shared, were fascinating. I was glad to invite him up to the

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office when he made trips to London, roughly once a month, to attend speeches and events, which we allowed the public to register for places online."

23 That was Ms Watson’s later recollection of events but is consistent with contemporaneous material. In the course of the same month in which Mr Grimes had submitted the notification application, Vote Leave, who were seeking to be designated as the leave campaigner, included a document which described BeLeave for the benefit of the Electoral Commission, somewhere between 22nd March and the end of March 2016, in the following terms, "BeLeave formal structure: unincorporated association". It gives Mr Grimes' personal address, and then continues:

"Objectives: BeLeave is a group representing young people in the campaign for a leave vote in the EU referendum. We believe in an optimistic vision of Britain, and we hope to inspire a generation to make an informed and rational choice. We want to put forward the optimistic case for leaving: a truly global community; unlimited employment opportunities; and a future with unleashed potential.”

“Interest in the outcome: the committee decided on the 30th December 2015 to recommend a leave vote in the referendum."

"Own membership: BeLeave has over 1,200 Facebook supporters, and over 1,300 Twitter followers. There is also a BeLeave contributors Facebook page dedicated to BeLeavers who want to take part in TV debates and media appearances."

"Referendum activity: The group launched in December 2015, and has engaged heavily with the issues young people face through EU membership via social media, creating unique graphics and images. BeLeave committee members have also featured on the BBC and Victoria Derbyshire show programmes talking about why they think we should leave. They are in the process of building their website, and held an action day on the 24th March called Rockspops(?) and to introduce their members to one another."

And then, it gave details of the Facebook and Twitter accounts.

24 Attached to that document, which I infer was part of the submission to the Commission for designation as lead campaigner, is a letter from Mr Grimes himself to Mr Elliott at Vote Leave dated 22nd March saying: "BeLeave is the group representing young people in the campaign for a leave vote in the EU referendum…” "BeLeave was formed on the 1st January 2016. Our objective from the outset and throughout has been to campaign for a leave vote in the referendum. We believe that Vote Leave is the only campaign capable of receiving true cross-party support, uniting the electorate and putting forward a credible optimistic case for leave, and therefore have decided to support it for official designation. Between the 1st January 2016 and the 22nd March 2016 representatives of the group have spoken in two televised or broadcast debates. We have a social media presence and following, now reaching over 1,000 subscribers on Facebook and another 1,000 on Twitter. The group has actively campaigned to reach out to younger voters using the internet as our main medium."

It was signed by Mr Grimes.

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25 My attention was also drawn to the Electoral Commission's analysis of the material received from Vote Leave in the course of working out who should be the designated campaign lead, and in particular a document which listed twenty-four affiliated interest groups, one of which was BeLeave. The Commission referred to the letter of support from Mr Grimes, which I infer is the letter I have just quoted from.

26 I have also seen a number of screenshots from BeLeave's webpage or Twitter account from which it is clear that certainly by the 24th April 2016 Beleave had in excess of 1,700 followers, and they had managed 722 tweets. They describe themselves in the following terms: "BeLeave is the group representing young people in the campaign for a leave vote in the EU referendum, putting forward an optimistic case for leaving".

27 At some stage around that time, Vote Leave itself was recognised under s.108 of the PPERA as the designated lead organisation. The referendum period was 15th April 2016 to 23rd June 2016. The evidence before the Commission showed continued work between Mr Grimes, Vote Leave and BeLeave. My attention was drawn to some emails in the course of the following month, during which a constitution was drawn up for BeLeave. The emails are between Cleo Watson and colleagues within Vote Leave, and a Mr Norton in particular. On 13th May 2016 Miss Watson wrote to Mr Norton:

"We need to set up BeLeave (a permitted participant) as soon as possible so that they can get a bank account, and get going on some activities. Please can you help? The gang are between eighteen and twenty-two, and really aren't equipped to do this alone."

28 The Electoral Commission relies on this as evidence that BeLeave was not then, on its interpretation of the material before and having regard to what they considered the relevant legal principles to be, an unincorporated association. What that evidence shows is that at that point in time Beleave had no constitution. However, as Miss Watson said, she plainly thought it was a permitted participant, and she recognised that there was a group of people involved, and that they were doing something, albeit they were not equipped to formalise their structures in the way that she intended. And her intention was that it should have a formal structure so that it could receive donations from Vote Leave.

29 Mr Norton wrote back and said:

"The first question is whether they want to be a company or not - at this stage probably not, not worth it. (Women for Britain are not a company for example). In that case, they will need to agree a constitution for the association because the bank will want to see a set of laws that govern control of the money. We have a basic framework on the system, and the quickest thing is for them to come into the office on Monday, and we can whip through the points in turn (which is what I did with Women for Britain and the Veterans)."

30 Later the same day he wrote:

"Ahead of Wednesday, I attach our standard notes on this topic. The note on establishing a new group is probably redundant since BeLeave has been up and running for a while now, but there may be something in there that has been overlooked, so it's worth copying it round. The draft constitution is more important - if BeLeave isn't going to be a company, you will need some sort of document to

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evidence that the group exists, and that involves deciding a new things [maybe he means 'a few things'] (which are flagged yellow in the document)."

31 Within two days Mr Norton had drafted a constitution which was in circulation with the proposed officers for discussion. It appears that around that time the constitution was formalised. The constitution states that the association was known as BeLeave. It set out its aims. It stated that it was to have a campaign director, a bank account, a board; and then it identified the five board members: Mr Grimes, Mr Sanni, Mr Harwood, Miss Cremin, and Mr Winterton; and ascribed specific roles to each of them. It then provided how membership and votes were to be regulated. My attention was drawn to the following specific provisions:

"j. The association shall maintain a website which includes a facility for members of the public to register as supporters of the association. Supporters shall not be members of the association.”

"l. The association shall register with the Electoral Commission as a permitted participant in the referendum to be held on the 23rd June 2016. The campaign director [that is Mr Grimes] shall act as the responsible person for the purposes of the Political Parties, Elections and Referendums Act 2000 and related legislation." Finally the constitution dealt with dissolution and amendments to it.

32 The Commission relies on the creation of this constitution as the first formalisation of the organisation in a way that satisfied the common law definition of an unincorporated association, and points to the fact that a number of the obligations to be undertaken in accordance with the constitution are prospective. In fact, one can see from the emails and notes that I have already mentioned, including those emanating from Miss Watson and from elsewhere, that although some of the duties and obligations and steps are described in the constitution as prospective, they had already been undertaken, at least in the view of Miss Watson.

33 During the course of the referendum period, significant expenditure by Beleave was incurred, as I have already mentioned in the opening to this judgment. The referendum took place on 23rd June, and on 30th June Mr Grimes filed the campaign spending return. In section 1, under the heading, "Details of registered campaigner", he put, "Darren Grimes/BeLeave", and then the total of expenditure being, "£676,015.87". There is a declaration on the following page, which says, "I am an individual or other organisation including minor parties", and then he filled in section 2A on behalf of the responsible person making declarations as to the referendum expenses, as he also did in section 2B.

34 The return refers to the fact that there had been an audit of the expenses, and on the fifth page of the attachment there is a schedule of payments made which come to the total I first mentioned, which includes expenditure from 9th February 2016 to 22nd June 2016, the most substantial items of which were the payments made to Alternative IQ.

35 Item number 16 shows that the domain name "BeLeave.uk" had been purchased on 9th February 2016. The document was complete in one sense: it is said by the Commission to contain more information than was necessary in that it included BeLeave's expenditure when it should, on their case, only have included Mr Grimes's expenditure. The auditor's report was signed by a senior statutory auditor on behalf of the statutory auditors themselves and dated 4th August 2016: identified the name of the registered referendum campaign, which was, "BeLeave", and the name of the responsible person, "Mr Grimes". It set out the spending limit and the amount spent, and then stated: OPUS 2 DIGITAL TRANSCRIPTION 8

"We have examined the attached spending return for the 2016 referendum on the UK's membership of the EU prepared by BeLeave under s.120 of the PPERA. It is our opinion that the referendum spending reported by Darren Grimes fairly represents the campaign's spending between the 15th April 2016 and 23rd June 2016 as required by the PPERA."

Elsewhere it described Mr Grimes as "the campaigner's responsible person" and "the referendum campaigner", and their opinion, to be found on the second page, was that:

"The spending return fairly represents in all material respects the referendum spending incurred by or on behalf of the referendum campaigner which is used between 15th April 2016 and 23rd June 2016 in respect of the 2016 referendum on the UK's membership of the EU in accordance with the law. This report is intended solely for the use of the referendum campaigner, Darren Grimes, and the Electoral Commission in connection with the referendum campaigner's responsibilities under s.111 to 123 of PPERA as applied and modified by the European Union Referendum Act 2015."

36 In the course of February and March 2017 the Electoral Commission looked into and began to gather evidence as to whether Vote Leave had broken its spending limits by channelling money via BeLeave to Alternative IQ. Mr Grimes was involved in the steps that were being taken by the Commission at that stage to look at the spending. A decision was made by the Commission not to investigate, and they wrote to him to say so, and at the end of the letter reserved the right to look at other matters. That decision was ultimately the subject matter of an application for a judicial review by a group called The Good Law Project.

37 The current appeal arises out of an investigation which was opened by the Commission on 20th November 2017, and the aim at that stage was to look at whether or not Mr Grimes had delivered a return, but was incorrect in relation to monies that he received from Vote Leave. They wrote to him on the same day, saying:

"I'm writing to advise you that the Electoral Commission (the Commission) is conducting an investigation to establish whether or not Vote Leave Limited [and they gave the company number], you or Veterans for Britain, all being permitted participants in the June 2016 referendum on the UK's membership of the EU (the EU referendum) may have broken the campaign finance rules. In particular, the investigation concerns payments made by Vote Leave Limited to Aggregate IQ during the EU referendum campaign reported as donations to and spend by you and Veterans for Britain."

That letter does not specifically refer to the possibility that the two offences which are now under appeal had been committed.

38 Mr Grimes wrote on 24th November to say that as he thought the Commission’s review of his involvement had been closed:

"I no longer have all of my past correspondence with the Electoral Commission. Can you send me all of this at your earliest convenience."

39 In January the following year Mr Grimes was interviewed under informal caution in the course of which he was told that it was he who had been registered as an individual permitted participant for the referendum and he was asked about BeLeave. In particular, he OPUS 2 DIGITAL TRANSCRIPTION 9

was asked the question why he had registered as an individual, and he said, "That's a very good question, I must have just filled it out wrong. My intention was to register as BeLeave and not as Darren Grimes." to which, Miss Edwards, the interviewer, said, "Right, so from your point of view then, you're talking about a sort of campaign activity, are you talking about BeLeave?", and Mr Grimes interjected, "Absolutely". She carried on, "Rather than you as an individual?", and he said, "Yes". and she went on to say, "I'll probably use the two interchangeably, but if it's important that we make a distinction between the two, please do bring that distinction up, that would be very helpful". But Mr Grimes was not told and was not pressed on the distinction that has subsequently been made between them.

40 At the same time the Commission received information from others, including material which it received from Bindmans, the solicitors, who in the course of March 2018 provided some witness statements which hade been made by people who had formerly been involved with BeLeave, who the Commission described as “whistle-blowers”. The two principal witness statements that I want to refer to are one from Mr Gettleston and Mr Sanni, both dated 19th March 2018, both of which give Bindmans’ address as their address.

41 Mr Gettleston in his witness statement described his initial contact with Mr Grimes. In para.9 of his statement he went on to say in respect of the period between 19th February 2016 and 1st March 2016 that he was working with groups including BeLeave which were, "Primary Vote Leave groups which were intended to appeal to specific sectors of society".

42 Then, at paragraph11:

"I was aware that Darren had applied in February or March to the Electoral Commission for permission to register a campaign under his own name, however at this point BeLeave only existed on social media with accounts managed by Darren and supported by the Vote Leave outreach and design team. In conversation with Darren in December 2015 I had suggested BeLeave as a name for a leave youth wing. Much of the campaign was branded separately, and my understanding was always that it sat within the Vote Leave umbrella, receiving organisational support rather than being a wholly separate campaign organisation."

43 Mr Sanni on the same subject in his witness statement of the same date said at paragraph 7:

"I met Darren Grimes in the week of 21st March 2016 at the Out and Proud event organised by Vote Leave, which was the first event I helped with. In my first few days in the office, I also met Mark Gettleston, who was doing consultancy work for Vote Leave. It turned out that Darren, Mark and I all knew Chris separately. The first time I spoke to Mark he was working on the BeLeave website in the Vote Leave office. That was also the first time I heard of BeLeave. It was one of a number of Vote Leave outreach groups, which was particularly focussed on young progressive voters, and I was told that Mark had come up with the name along with the names for other groups, for example Green Leaves and Liberal Leave. I was also aware of other outreach groups such as Women for Britain, Australians for Britain, Vapers for Britain. My role was to work with outreach groups across Vote Leave. I also talked to Darren about the work he was doing at BeLeave, and he showed me some of the graphics he had been creating for the campaign. I was excited about these as they specifically mentioned some of the more progressive reasons for exiting the EU such as the pride of African farmers and the need to rekindle trade relationships with OPUS 2 DIGITAL TRANSCRIPTION 10

countries Britain had a moral responsibility towards. It recognised the current system as built to benefit the Europeans, people of colour at a disadvantage."

44 Those materials were relied upon by the Commission in the course of its investigation into these alleged offences, and are referred to in the reports that have been prepared by the Commission. However, the assertions made in those statements were not accepted by Mr Grimes as his solicitor's letter of the 3rd April 2018 to the Commission made plain. Under the heading, "The origins of BeLeave" in that letter, Saunders Law wrote:

"Mr Sanni initially claimed that BeLeave was an outreach group for Vote Leave set up by Vote Leave as he said on 'The World This Weekend' on the 24th March, and then on 'Good morning Britain' on Monday, 26th March. However, minutes later on the same programme he told the interviewer that it was Darren Grimes who had in fact set up BeLeave. After an interview with Mr Sanni, Carole Cadwalladr wrote that BeLeave had been set up by another volunteer, twenty-three-year-old fashion student Grimes. Cadwalladr then goes on to say, 'When Sanni joined the BeLeave team, it had already become extraordinarily successful in appealing to liberal and left-wing supporters on Facebook and other social media. Using videos and other messaging, it often appeared to be the exact opposite of the largest Vote Leave and Leave.EU campaigns. BeLeave had already been active on social media since at least February, a month before Mr Sanni claimed to have met any of the people involved. Claims that Mr Grimes was simply a puppet of Vote Leave were not even supported by those who oppose him'."

45 The writer went onto to set out his client’s position about Mr Sanni's involvement with BeLeave. What is apparent is that the version of events which had appeared in those witness statements were being challenged by Mr Grimes in some detail, and it was a matter for the Commission to investigate and make findings about. The investigation report prepared by Miss Edwards was dated 20th May 2018. It is a relatively long and detailed report. It was not sent to Mr Grimes for comment; it was an internal report. It set out the steps that had been taken to investigate the alleged offences, and the views which had been formed. Under the heading, "Purpose of this report", para.1.1 reads:

"This report provides relevant information and recommendations so that an initial determination can be made (a) in relation to the offences under investigation, and (b) whether the case should be referred to the Sanctions Advisor to consider what, if any, further action to take."

46 It is important to note at this stage that the scope of the investigation covered not only Mr Grimes but principally Vote Leave, the designated lead campaigner, and also Veterans for Britain. Subsequently, in part 1 of the investigation report under the principal heading, "Registration of BeLeave" there is a sub-heading "Registration of Mr Grimes" under which the following appears:

"On 15 March 2016 Mr Grimes submitted an application to register as a permitted participant for the EU referendum. He put the name of the campaign as BeLeave, and put himself down as the responsible person, however he ticked the box to say that he was registering as an individual. The registration checks were done on the basis that he was registering as an individual. The registration assessment made no mention of BeLeave. Under s.105 PPERA, 'Any individual resident in the UK or registered in an electoral register as defined can be a permitted participant'. Mr Grimes met this criteria. Mr Grimes was registered as an individual campaigner. You can see the registration papers here [and I assume that is a hyperlink]." OPUS 2 DIGITAL TRANSCRIPTION 11

Paragraph 7: "We did not appear to notice the use of the name BeLeave at the point of registration or at any point subsequently when Mr Grimes sent emails with BeLeave in the subject line. Mr Grimes did not at any point notify us that there was any error in the registration details."

Paragraph 8: "Mr Grimes delivered his campaign spending return in the name of Darren Grimes / BeLeave. He obtained an order at court in the name of BeLeave with him listed as the responsible person."

Paragraph 9: "After we contacted him in August 2016, Mr Grimes provided a constitution with a list of board members. He has told us that he registered as an individual in error. He meant to register BeLeave as an unincorporated association."

Then there is a passage which starts at para.10, under the heading, "Analysis of BeLeave's status: "We have looked at the evidence as to whether BeLeave was eligible to register in March 2016. Our conclusion explained below is that it was not. There was nobody, and in particular no unincorporated association, called BeLeave until May 2016. The analysis below looks at the evidence for this against the criteria for being an unincorporated association for the purposes of PPERA." Under the heading, "Two or more persons", para.11 continues as follows: "Legal have advised that unincorporated associations are private arrangements with a contractual basis. The contract between the members may be by way of the constitution rules or an implicit but sufficiently clear understanding between two or more people."

The footnote refers to Conservative and Unionist Central Office v Burrell [1982] WLR 522.

Paragraph 12: "Prior to May 2016 the evidence points to there not being two or more people taking actions in the name of BeLeave. Evidence from Mr Gettleston up to mid-April 2016 only references Mr Grimes in connection with the BeLeave name. Evidence from Mr Sanni is from March 2016; he was also working on activities in the name of BeLeave. He worked at proposals for a donor, for example, so there may have been two people working on the campaigns with the name BeLeave at this point. However, given the lack of clear evidence, in my view we cannot conclude that there was a private arrangement with a contractual basis between Mr Grimes and Mr Sanni."

Paragraph 13: "BeLeave's constitution, drafted for them by a Vote Leave lawyer on the 18th May 2016 changes the position. This email evidence from Mr Sanni shows him and Mr Grimes agreeing to the constitution and the roles given to them within it. Mr Grimes has told us that Vote Leave was at his request simply assisting BeLeave by drafting the constitution. Either way, prior to this point, there was no constitution."

Paragraph 14:

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"The constitution gives five board members. We have not been able to contact them all as Mr Grimes has told us he no longer has contact details for them, and we cannot find them elsewhere. However, we have been in contact with one of them, Shahmir Sanni, who has given evidence to show he and Mr Grimes were conducting activities in the name of BeLeave from May 2016 onwards. We know, for example, that the two of them signed an application for a bank account in late May 2016."

Paragraph 15: "We can therefore be satisfied that at least two people, Mr Grimes and Mr Sanni, were carrying out activities in the name of BeLeave from early 2016, however the first evidence of any kind of agreement between them as to a specified common purpose or any rules or agreement on their roles or duties to achieve that common purpose is that May 2016 constitution."

47 Miss Edwards therefore recommended in para.28 of that section of the report that:

"The Commission can be satisfied beyond reasonable doubt that from about 18th May 2016 there was an unincorporated association called BeLeave; on the 13th June 2016 Mr Grimes on behalf of BeLeave incurred referendum spending well in excess of £10,000; that BeLeave was not a permitted participant at that point or since; and that Mr Grimes knew it."

48 In para.29 she said:

"On this final point I note that Mr Grimes did on the face of it attempt to register BeLeave, however when he did so he knew there was no unincorporated association called BeLeave. It ought to have been clear to him from our guidance and the law that the notification under s.106 would therefore be rejected as ineligible. Further, Mr Grimes was asked explicitly to check his registered details. He did not advise the Commission that he was registered as an individual in error. Mr Grimes has only described the situation as a 'mistake' on his part."

49 In part 2 of the report Ms Edwards went on to consider joint spending between Vote Leave and Mr Grimes, repeating in para.18 that between December 2015 and May 2016 BeLeave was effectively a campaign name only, and her recommended finding in para.42 was that Mr Grimes appeared to be carrying out online activity promoting a leave outcome in late 2015 / 2016, and that BeLeave's subsequent existence as an unincorporated association was a direct consequence of Vote Leave's actions in sourcing potential donors.

50 Then, in the third section of the report, which looked at his spending return, Ms Edwards recorded, at para.11, that Mr Grimes had not intended to register as an individual campaigner.

51 This document was then considered by Mr Adamson at the Commission who on 1st June 2018 completed a “sanction and forfeiture decision” form in which he repeated some of the contents of Miss Edwards's report. He started by saying, in respect of the alleged offence under s.122(4)(b), "The facts of this case are fairly straightforward", and moved on in the second section to deal with s.117(3), saying:

"This matter is more complex. On 15th March 2016 Mr Grimes submitted a notification to register a permitted participant for the EU referendum. He put the name of the campaigner as BeLeave, and put himself down as the responsible person." OPUS 2 DIGITAL TRANSCRIPTION 13

Two paragraphs later on, he recorded, again: "We did not appear to notice the use of the name BeLeave at the point of registration or at any point subsequently when Mr Grimes sent emails with BeLeave in the subject line [a direct quote from Miss Edwards's report]."

52 He went on to say that if the application in March had been treated as an application for BeLeave it would have been rejected. That is if of course the name BeLeave had been noted, which he said it had not.

53 Mr Adamson then prepared the Initial Notice dated 5th June 2018 which précised the investigation report, set out the Commissions’ findings and its proposals, and included in para.30, so far as BeLeave is concerned, the conclusion that the Commission was satisfied, and one can take that as meaning satisfied beyond reasonable doubt, that up to around 18th May 2016 there was no unincorporated association called BeLeave.

"There were individuals producing online content with the branding of BeLeave, and the evidence of steps being taken by those individuals to secure funding for this activity. Some of those individuals were working on behalf of Vote Leave when doing this, however at that time no unincorporated association called BeLeave was in existence."

54 On 2nd July 2018 Saunders Law LLP on behalf of Mr Grimes made substantial representations, and provided a number of documents to the Commission. Those are referred to by Mr Bob Posner in the Final Notice dated 17th July 2018, which he signed off. It is the conclusions reached in the Final Notice which are the subject matter of this appeal,. He prepared, prior to signing off the Final Notice, an internal note dated 11th July 2018 about the intended final decision, saying that he had considered the Commission's initial findings as well as the representations from Saunders Law. He dealt with some of the representations in detail, in particular he dealt with the comments made by Mr Grimes’ solicitors about the evidence of Mr Sanni and Mr Gettleston saying:

"The representations say that the Commission does not set out the effect and weight attached to the evidence of Mr Sanni and Gettleston. The Commission conducts its investigations thoroughly and in line with its important policy. During each investigation all evidence is carefully considered with appropriate and proportionate weight placed on evidence. The initial notice is clear in content and reasonable with the relevant documents cited and provided, there is no prejudice or unfairness arising from this. To the contrary, the reason for the Commission's initial findings are plain to see and understand, with opportunity for representations to be made before consideration of a final decision."

55 He went on to find, on the third page of the document, as follows:

"The Commission remains satisfied at the point at which Mr Grimes registered as a permitted participant BeLeave cannot be said in law to have been an unincorporated association. The Commission does not consider that the evidence reasonably suggests that there was a sufficient formalisation of the relationship between Mr Grimes and others campaigning using the BeLeave name or brand prior to this point. Therefore, the only capacity in which Mr Grimes could have been registered as a permitted participant was as an individual, that is the capacity in which he was registered. And given the opportunity to confirm on the registration whether there were any errors in his registration, he did not do so. The responsibility in relation to OPUS 2 DIGITAL TRANSCRIPTION 14

registration rests with the applicant, and any submission to the effect that Mr Grimes acted under a misapprehension are relevant to mitigation rather than whether the offence was committed."

56 Mr Posner then prepared and signed off the final decision, which runs to some twenty-one pages. He identified both offences which he found proved, and identified the fact that he had found them proved beyond reasonable doubt. He re-cited passages from Miss Edwards's report. He upheld the same conclusions that she had reached. In particular in relation to the constitution of BeLeave he said that constitution was:

"The first evidence of any kind of agreement between you as to specified common purposes, or any rules or agreement on your roles or duties to achieve that common purpose."

And held in paragraph.32:

"The Commission was therefore satisfied that up to around the 18th May 2016 there was no unincorporated association called BeLeave. They were individuals producing online content with the branding BeLeave and evidence of steps being taken by those individuals to secure funding for this activity. Some of those individuals were working on behalf of Vote Leave when doing this, however at that time no unincorporated association called BeLeave was in existence."

57 One can see that that reflects, almost word for word, some of the passages that I have quoted from the earlier documents. Mr Posner, having come to the conclusion that the offences were made out, looked at the aggravating and mitigating factors before turning to the appropriate discretionary requirement to be imposed.

58 I should mention two specific comments in paragraphs 58 and 59: Paragraph 58:

"The Commission were satisfied that you were acting under the significant influence of, and possibly the direction of, Vote Leave. Whilst that does not change the responsibility you had to ensure you complied with the law, it may mean that you acted in the genuinely mistaken belief that Vote Leave would ensure you complied with the law."

Paragraph 59:

"The evidence suggests that you were not particularly clear as to what you were doing in terms of compliance, for example, the return delivered in the name of both yourself and BeLeave indicates a lack of understanding of who was the registered campaigner. The Commission also notes that you were very young and inexperienced in responsibilities attached to political campaigning."

59 Attached to the Final Notice was a document described as a final report, which again reiterated a number of the findings that had already been made. It set out in more detail what the Commission had to find before they could conclude that BeLeave was an unincorporated association. It stated in paragraph4.11:

"In order to meet the legal definition of an unincorporated association, BeLeave had to be an association of 'two or more persons which carries on business or other activities wholly or mainly in the UK and whose main office is there': s.45(2)(h) OPUS 2 DIGITAL TRANSCRIPTION 15

PPERA. By the act of drafting a constitution Vote Leave facilitated the creation of BeLeave as an unincorporated association. By agreeing to that constitution, BeLeave's board members created an unincorporated association. That association BeLeave came into existence on or around the 18th May 2018."

In paragraphs 4.51 to 4.53 the report set out his analysis of the evidence relating to registration.

60 That is the totality of the material up to the point when the discretionary requirements were imposed. The notice of appeal in this case was lodged on 14th August 2018. The appellant has a statutory right of appeal under para.6(6) of sch.19C to the PPERA, which provides that:

"A person on whom a discretionary requirement is imposed may appeal against the decision to impose a requirement on the ground that: (a) the decision was based on an error of fact; (b) the decision was wrong in law; (c) on case of a variable monetary penalty that the amount of the penalty is unreasonable; [we can skip over (d)]; (e) that the decision is unreasonable for any other reason."

61 Article 8(2) of the Political Parties, Elections and Referendums (Civil Sanctions) Order 2010 says on an appeal under para.6(6) of sch.19C:

"The county court may: (a) withdraw the requirement on notice; (b) confirm the requirement on notice; (c) vary the requirement on notice; (d) take such steps as the Commission could take in relation to the act or omission giving rise to the requirement or notice; (e) remit the decision whether to confirm the requirement or notice, or any matter relating to that decision, to the Commission."

62 It is common ground that the Electoral Commission can only find a breach of the regulatory regime if it is satisfied beyond reasonable doubt that the elements of the offence have been made out. What is reasonable is to be viewed objectively not subjectively. In a judgment which I gave in this case in February this year, I held that on a proper construction of the legislation discretionary requirements are civil penalties even though the Electoral Commission has to find that the relevant offences have been proved to the criminal standard; and that an appeal from the decision takes the form of a review before a judge at the county court rather than a hearing de novo, and the county court is not intended, in my view, to be the primary finder of facts but a reviewer of the Commission’s determination of factual matters.

63 In a separate case, Leave.EU v The Electoral Commission (Unreported 21st March 2019) in respect of the approach which the court should take on a review of findings of fact, I held at para.17 to 19 as follows:

Paragraph 17:

"It seems to me that I have to bear in mind that the process is a review rather than a hearing de novo. Secondly, that the grounds of appeal are limited by statute and that OPUS 2 DIGITAL TRANSCRIPTION 16

there is a burden necessarily on the appellant to establish an error. It is not for me to retry the issue raised by the grounds of appeal. Thirdly, if the approach were to be as Leave.EU submits, it would mean putting myself in the position of the Electoral Commission at the time of the decision with all the material and the factual context which applied at the time that they made their decision on questions of fact."

Paragraph 18:

"In my judgment it cannot have been the intention of Parliament that an appeal court should have to delve into such a large volume of material and absorb every detail of the whole of the investigation which will have been taken into account by the Electoral Commission to resolve this ground of appeal, i.e. that the decision was based on an error of fact."

Paragraph 19:

"Fourthly, it seems to me that I have to respect the fact the decision maker under the legislation is the Electoral Commission not the court, and the approach which I think should be taken is whether looking at the material to which the appellant draws the attention of the court, have they shown that the Electoral Commission fell into error. If there is a range of different possible factual analyses of the material it seems to me that the court should not ask what it would have decided in the Electoral Commission's position but whether the decision of the Electoral Commission fell within the reasonable range of findings even if the court might not have alighted one exactly the same conclusion as the Commission."

64 My view as to the appropriate test has not changed since that decision. It would be rather inconsistent if I had changed my mind. As far as I am aware, no appeal court has said that my conclusion in that case was wrong. Yet. In my judgment therefore, the test is whether an appellant has shown that it was not open to the Electoral Commission to reach the relevant factual finding, to the criminal standard, on the material available to the Electoral Commission at the time.

65 In the course of this appeal and in line with my conclusions in my two earlier decisions referred to above, I ruled that the appellant was not entitled to rely in this appeal on fresh evidence which had not been before the Electoral Commission at the time that it made its decision, nor was he entitled to cross-examine the decision maker as to how and why the decision was made. The decision that I have to make is confined to a review of the material that was before the Electoral Commission at the time that it made the decision contained in the Final Notice.

66 The first category of the statutory grounds of appeal (a), errors of law, is a well known ground which requires no further comment. I need to say something very briefly about ground (e), which is that the decision to impose discretionary requirements was unreasonable for any other reason. I will turn to look at it below when I consider the appellant's argument that the process undertaken by the Commission was an abuse, and that the decision itself was unreasonable.

67 I paraphrase the pleaded five grounds of appeal:

(1) That the Commission erred in law in attributing to the appellant or BeLeave any expenses that were incurred as a part of the common plan with Vote Leave.

OPUS 2 DIGITAL TRANSCRIPTION 17

(2) That the Electoral Commission erred in law in finding that the appellant had committed an offence by including more information in the spending return than he was obliged to. (3) That the process of investigating the appellant was an abuse such that the Electoral Commission erred in law in reaching its decision, or that the decision was unreasonable for any other reason, in other words statutory ground (e). (4) That the Electoral Commission made the following errors of fact: (a) In finding that BeLeave was not an unincorporated association until May 2016; (b) In finding that the appellant's notification of participation in the election was made on behalf of himself rather than BeLeave; (c) In finding that the spending return was filed on behalf of himself rather than BeLeave; (d) In finding that the appellant incurred common plan expenses with Vote Leave; (e) In finding that the appellant did not have a reasonable excuse under s.122(4) because of the poor layout of the initial registration form. (5) The amount of the penalty imposed was unreasonable.

68 After the exchange of the grounds of appeal and the respondent's notice and appellant’s reply, the parties agreed a narrower list of the issues arising between them. Those raise in a slightly different way the matters of dispute between the parties as is apparent from what can be derived from the grounds and the respondent's notice, and puts in more specific terms the questions which it is suggested I should ask myself, including the proper construction of the provisions of the Act which Mr Grimes is said to have been guilty of. I am not going to read that list of issues into the judgment because while I aim to deal with all the issues in the list, I am not going to address them in the order in which they have been set out, and I am only going to focus on those which in my view it is necessary to decide in order to determine whether the grounds of appeal, which is the basis on which the challenge is made to the decision contained in the Final Notice, have been made out.

69 I look now at the structure of the regulatory regime:

Section 105 of PPERA, headed, "Permitted participants" provides insofar as material as follows: "(1) In this part permitted participant in relation to a particular referendum to which this part applies means: (a) the registered party by whom a declaration has been made under s.106 in relation to the referendum, or (b) any of the following by whom a notification has been given under s.106 in relation to the referendum, namely: (i) an individual resident in the United Kingdom or registered on an electoral register as defined by s.54(8) or (ii) anybody falling within any of para.(b) and (d) to (h) of s.54(2). (2) In this part responsible person means: (a) if the permitted participant is a registered party: (i) the treasurer of the party or (ii) in the case of a minor party the person who for the time being notified to the Commission by the party in accordance with s.106(2)(b); (b) if the permitted participant is an individual that individual; (c) otherwise the person or officer for the time being notified to the Commission by the permitted participant in accordance with s.106(4)(b)(ii)."

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Section 54(2) provides that: "For the purpose of this part the following are permissible donors."

Subparagraph (h) reads:

"Any unincorporated association of two or more persons which does not fall within any of the preceding paragraphs which carries on business or other activities wholly or mainly in the United Kingdom and whose main office is there."

Section 106(3) provides:

"For the purposes of s.105(1) an individual or body gives a notification to the Commission under this section if he or it gives the Commission a notification which identifies the referendum to which it relates and the outcome or outcomes for which the giver of the notification proposes to campaign."

Section 106(4):

"A notification under this section must: (a) if given by an individual state: (i) his full name; and (ii) his home address in the United Kingdom or if he has no such address in the United Kingdom his home address elsewhere, and be signed by him; (b) if given by a body falling within any of the paragraphs (b) and (d) to (h) of s.54(2) state: (i) all such details in respect of the body as are required by virtue of any of the subparagraphs (4) and (6) to (10) of para.2 of sch.6 to be given in respect of such a body as the donor of a recordable donation, and (ii) [more importantly in this case] the name of the person or officer who will be responsible for compliance on the part of the body with the provisions of Chapter 2, and be signed by the body's secretary or a person who acts in a similar capacity in relation to the body."

Under s.160(6) the word "body" is defined as follows:

"'Body' without more means a body corporate or any combination of persons or other unincorporated association."

Section 107 of the PPERA deals with the register for the purposes of s.105 and says:

"(1) The Commission shall maintain a register of: (a) all declarations made to them under s.106; and (b) all notifications given to them under that section. (2) The register shall be maintained by the Commission in such a form as they may determine, and shall contain in the case of each such declaration or notification all of the information supplied to the Commission in connection with it in pursuance of s.106."

Then, to complete the picture, s.109 sets out the process for becoming a designated organisation for the purposes of s.108, and in ss.(1) provides:

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"A permitted participant seeking to be designated under s.108 must make an application for the purposes of the Commission."

Subsection (2) particularises the documents that must be provided with the application, and the period within which they must be provided.

70 A dispute has arisen between the appellant and the Electoral Commission as to the effect of completing the application form in this case. The appellant emphasises that the legislation that I have just referred to, and in particular s.106, refers to notification rather than application for registration.

71 The appellant submits, as is plain from the recital of the evidence that I have already given, that the Commission did not turn their mind to the question of whether BeLeave should have been registered as the person on behalf of whom the notification had been given until the investigation started, and therefore it follows that at the date of the registration of Mr Grimes as the permitted participant the Commission did not consider whether BeLeave had notified its intended participation.

72 Miss Edwards in her report said in para.29 that:

"Mr Grimes did on the face of it attempt to register BeLeave. However, when he did so, he knew there was no unincorporated association called BeLeave. Mr Grimes has only described the situation as a mistake on his part."

But that is not a matter the Commission turned its mind to at the time, namely in March 2016.

73 The Commission says that they wrote to Mr Grimes telling him who had been registered, and asking him to confirm that the entry on the register was correct. On behalf of Mr Grimes, it is submitted that the Commission cannot shift the responsibility for the defects in their registration process by asking Mr Grimes to confirm the accuracy of an incorrect entry which has been made as the result of a mistake by the Commission.

74 It seems to me that the notification for registration provisions contained in s.106 and 107, although they are intended to work together, have to be looked at separately. I accept Mr Straker's submission that to become a permitted participant within the meaning of s.105 what one has to do is to give notification under s.106. That is the plain meaning in my judgment of the words used in s.105(1)(b). And you can give notification if you are an individual resident, or in (ii) a body falling within subparagraph (h) of s.54(2) an unincorporated association.

75 The effect in my judgment of notification in accordance with s.105 is to confer on the individual or body notified to the Commission the status of a permitted participant. That is consistent with s.106(3) because the two provisions have to be read together. The details that have to be given are set out in s.106(4). All of those details, it may be thought, were given by Mr Grimes on behalf of BeLeave. Sections 105 and 106 do not talk of a process of application for registration, unlike s.109 which talks about an application for designation. It talks about a process of notification.

76 Sections 105 and 106 have to be read together with s.107 because what s.107 requires is that the Commission shall maintain a register of notifications given to them under s.106. But there is not a provision, as far as I can see, and none that I have been taken to, to say that the register is in some way conclusive as to the status of the person who is otherwise a permitted OPUS 2 DIGITAL TRANSCRIPTION 20

participant within the meaning of s.105, nor does it say what the impact is of there being errors in the register. I accept the submission that Mr Grimes filled in the form on behalf of BeLeave and notified on behalf of BeLeave, and I accept the submission that just because he was asked the question about whether the registration was correct, cannot affect the fact that he notified on behalf of BeLeave rather than himself.

77 There is a separate dispute between the appellant and the Electoral Commission arising out of these provisions, namely as to the role of the Electoral Commission, because the appellant says that in election law the duty of the returning officer is confined to determining whether the application or notification document is good in form, in other words on its face, and it is not for the Electoral Commission to investigate whether it is accurate or not, and that the Commission cannot, save in one limited circumstance, reject it.

78 As a matter of electoral law, and I was taken to a number of cases, it is said that there is no discretion save in respect of offensive names to reject a notification document under PPERA. There is no power on behalf of the Electoral Commission to investigate notifications, and that the Act does not provide any machinery to do so. I was referred to a number of authorities in support of that proposition including Sanders v Chichester, a decision of the divisional court comprising Dyson J, as he then was, and Thayne Forbes J, dated 11th November 1994, in which Dyson J set out the limited powers of returning officers.

79 I was also referred to two later decisions: one by Scott Baker J, as he then was, in R (on the application of De Beer) v The Returning Officer for the London Borough of Harrow [2002] EWHC 670; and Begum & Others v The Returning Officer for the London Borough of Tower Hamlets [2006] EWCA Civ 733, a decision of the Court of Appeal presided over by Sir Anthony Clarke, then Master of the Rolls, and Rix and Maurice Kay LJJ.

80 Agreeing with Scott Baker J in the earlier case the Master of the Rolls said:

"That the court should be extremely slow to intervene. It should only do so in the most exceptional case. Parliament has conferred duties (but not discretions) on returning officers, and has made express provisions as to how any decision of the returning officer might be challenged, namely by petition before an election court after the election. Save in a wholly exceptional case the court should in my opinion allow the statutory machinery to work as set out in the Act and the rules."

81 The Commission argued on this area of dispute that what it was doing was not exercising a discretion but asking itself the question whether objectively viewed the conditions for notification and therefore for registration had been met. That involved the deployment of an objective test and no exercise of discretion. It is submitted that, viewed in that light, the Electoral Commission has the right to check whether the conditions are met, and that the Sanders case is not authority for the proposition that they cannot. And that it follows, on a proper construction of s.107(1) that if the Commission has a duty to maintain a register of notifications, they also have a right to check, for example, notifications made in the name of a non-existent company to determine whether that name should be put on the register.

82 Mr Straker QC disagreed, saying that the role is confined to looking at the form of the document only. Sir James Eadie QC argued that the Act does not allow one to give notification on behalf of an entity which does not exist at the time of notification. I was taken by Sir James to a relatively recent decision of Supperstone J, sitting in the Administrative Court in R (on the application of the English Democrats Party) v The Electoral Commission [2018] EWHC 251 (Admin). in which His Lordship was looking at OPUS 2 DIGITAL TRANSCRIPTION 21

similar provisions in the PPERA which uses the same wording as s.107, in particular, s.23(1) of the Act, which provides that:

"A new register of political parties shall be maintained by the Commission, and shall be maintained in such form as the Commission may determine."

Section 107(1)(b) it will be recorded says that:

"The Commission shall maintain a register of all notifications given to them under that section."

And ss.(2) provides that:

"The register shall be maintained by the Commission in such forms that they may determine [so the wording is not different]."

83 The decision itself turned on whether the Commission was entitled to remove from the description of the English Democrat Party a phrase or a series of words which it found to be offensive, and his Lordship found that they were. My attention was drawn in particular however to para.43 of his judgment where he considered the powers of the Commission. His Lordship concluded:

"Section 23(1) of PPERA provides (see para. 9 above) that the new registers (a) shall be 'maintained' by the Commission, and (b) shall be 'so maintained in such form' as the Commission may determine. I agree with Mr Coppel [who was acting for the Commission] that it is clear from the wording of ss. (b) that ss. (a) is not concerned with the form of the registers but with their content. I accept Mr Coppel's submission that the Commission does not 'maintain' the register by allowing non-compliant entries to remain on it. The maintenance of a register involves a continual process of securing that both new entries onto it and existing entries satisfy the requirements for being on the register. The Commission maintains the register by ensuring that each entry meets current, rather than historic, requirements."

84 In paragraph 44 he went on to say that, "There are nine registers created by PPERA, each of which the Commission must maintain", and he referred specifically to s.107, "The register of declarations and notifications for the purposes of s.105” adding:

"The draftsman is presumed to use words consistently in a statute. If the claimant is correct in its construction of. s23(1) then in respect of all nine registers that the Commission must maintain it cannot do anything about existing entries that no longer satisfy the requirement for being on the register, unless and until asked to do so by the registered party. I cannot accept that is so. The Commission's function of maintaining the registers (s.23(1)) is separate from and additional to its functions of granting an application to be registered (s.28) and granting an application to have an entry in the register altered (s.30). I am satisfied that s.23(1) of PPERA gives the Commission the vires to make the decision."

85 It was argued on that basis that the decision not only is binding on me, but that the reasoning should lead me to the conclusion that the Commission has a duty in maintaining the register of notifications also to check that those notifications, and the entries, continue to satisfy the requirements for being on the register, which would include in this case whether the conditions of s.54(2)(h) are met in respect of BeLeave.

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86 It was submitted on behalf of Mr Grimes that Supperstone J's decision was not in point because it was concerned with a different subject matter, a different register, a different registration process, a continuing position rather than a one-off position that applies in this case; and that it does not compel me to the conclusion which the Commission suggests, and that if it were to do so, it would be in conflict with the Sanders, Begum and De Beer cases.

87 In my judgment, the decision of Supperstone J on the construction of s.107(1) and (2) is binding on me, and I should follow it, notwithstanding the submissions of Mr Straker to the contrary. It seems to me that on a proper construction of s.107, for the reasons given by Supperstone J in para.43, the Commission is given the power to check whether the requirements for being on the register are satisfied, and to apply an objective test in undertaking that check.

88 The point to be noted however in this case is that while, if they were correct about the nature of BeLeave at the time that the application was made and notification was given, the Electoral Commission might have rejected the notification because in their view it did not satisfy the requirements, they did not in fact reject it because they did not notice the reference to BeLeave, and they have not subsequently taken any steps to modify the register in any way.

89 I want to move on against that background then to look at the offences themselves. The first of the two offences which I have mentioned is that which is said to have been made out under s.122 of PPERA. I have already quoted at the beginning of this judgment the terms of s.122(4)(b) and the need for the spending return to comply with s.120(2)(a). The material words are that:

"The return must contain a statement of all payments made in respect of referendum expenses incurred by or on behalf of the permitted participant during the referendum period".

90 The appellant submits:

(1) That this is a penal statue, and any ambiguities have to be resolved in favour of the subject, i.e. narrower rather than wider, having regard to what was said by the House of Lords in R v Bloxham [1983] 1 AC 109. (2) That what is required by the plain words of the provision is a statement of all the payments made. (3) That all Mr Grimes's payments, given that he was the person who was in the frame on the offences found, were in the return. (4) There is no express requirement not to include other payments. (5) Therefore there was no breach of this obligation. (6) It would not offend against the public policy requiring full disclosure of expenditure, if one is looking for a purposive construction of the provision, if those filing a return were to take an over-cautious approach. It would be unreasonable if such an approach gave rise to criminal liability. (7) In any event, it is sometimes rather difficult to work out as a matter of law what is a referendum or election expense and what is not. (8) The construction favoured by the appellant promotes clarity. (9) In any event it was BeLeave which was notified and should have been registered, and if that were the case, no offence could have been committed.

91 The Electoral Commission submits:

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(1) That an overinclusive return is a false return because it cannot be a statement of all the payments made using the words of the provision if it includes payments that were not made, in other words not made by the person making the return. (2) That the maker of the return cannot verify it in accordance with s.123(2) as, "A complete and correct return as required by law". (3) The underlying policy is clarity, transparency and public confidence, and to achieve this, the rules in relation to returns have to be strictly complied with.

92 In my view one has to focus on the fact:

(1) That notification of someone intended to be a permitted participant is the key to this offence, not registration. The status of being a permitted participant, as I have already said, is governed by notification. If notification for BeLeave was given, then it was the permitted participant (ie Beleave), and not Mr Grimes, who was obliged to file a return. (2) In my view when one looks at the application for registration in this case it was, in my judgment, BeLeave that was notified to the Commission as the permitted participant rather than Mr Grimes. One only has to look at the form and the wording of s.106. (3) When one turns to the specific wording of s.120(2)(a) the words of the section are plain. It talks about a return which must contain a statement of all the payments made. The provision does not talk about things that may not be included in the return. In my judgment, particularly when one is looking at this as a potential penal statute, the language which is used has to be observed.

93 In filling in a form which contained extraneous material, it seems to me Mr Grimes did not fail to "provide a statement of all the payments" in the wording of the subsection. It is in my judgment not right to look to s.123(2) and (4) to construe s.120(2) in the context of what is a separate, penal provision. They are separate provisions, and provide for separate offences, albeit one civil in nature and one criminal. It might have been open to the Commission to charge Mr Grimes under s.123 with making a false declaration, but they chose not to do so. It does not mean, however, that in filing an overfull return he breached s.120(2) on its narrow construction. In my judgment therefore, he is entitled to succeed on that ground.

94 So far as s.117(3) is concerned, the principal question is the finding of the Commission that BeLeave was not an unincorporated association before the 18th May 2016. That is Mr Grimes’ fourth ground of appeal. It is a material element underpinning the conclusion of the Electoral Commission on the facts in respect of their conclusions concerning both s.122 and s.117. I have already set out the reasons for that by reference to s.106(4)(b) and s.54(2)(h).

95 The appellant alleges that in respect of this finding the Commission erred both in law and fact. They say that, as far as the law is concerned, the Commission used an overly narrow definition of an unincorporated association, and Mr Straker offered the definition, "Any combination of persons pursuing activities together as an unincorporated association for the purposes of s.54(2)(h) and the Act", saying that it could be an association of two people. He gave various examples, including groups of people playing in cricket teams and similar informal groups. He reminded me of various decisions of the higher courts in which the view has been taken that the description "unincorporated association" could cover a multitude of different arrangements.

96 In R v L & Another [2008] EWCA Crim 1970, the Court of Appeal, headed by the then Hughes LJ, in considering what amounted to an unincorporated association said at para.11:

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"There are probably almost as many different types of unincorporated association as there are forms of human activity. This particular one was a club with nine-hundred-odd members, substantial land, buildings and other assets, and it had no doubt stood as an entity in every sense except the legal for many years. But the legal description 'unincorporated association' applies equally to any collection of individuals linked by agreement into a group. Some may be solid and permanent; others may be fleeting, and / or without assets. A village football team, with no constitution and a casual fluctuating membership, meeting on a Saturday morning on a rented pitch, is an unincorporated association, but so are a number of learned societies with large fixed assets and detailed constitutional structures. So too is a fishing association and a trade union. And a partnership, of which there are hundreds of thousands, some very large indeed, is a particular type of unincorporated association, where the object of the association is the carrying on of business with a view to profit."

Paragraph 12:

"At common law, an unincorporated association is to be distinguished from a corporation, which has a legal personality separate from those who have formed it, or who manage it or belong to it. The most numerous species of corporation is the limited liability company, but there are of course other types, such as chartered professional associations, local government bodies and indeed bishops. At common law, as the judge succinctly held, an unincorporated association has no legal identity separate from its members. It is simply a group of individuals linked together by contract. By contrast, the corporation, of whatever type, is a legal person separate from the natural persons connected with it."

97 My attention was also drawn to a slightly earlier decision of the now-retired Swift J in Heathrow Airport Limited v Garman [2007] EWHC 1957 QB, where she was asked to consider the grant of injunctive relief against a protest which was being carried on at Heathrow. Her judgment concerns the ability of the civil courts in accordance with the Civil Procedure Rules to entertain claims brought against representative members of organisations, but in the course of her decision in looking at the various protest groups that her case concerned Her Ladyship considered the question of what constitutes an unincorporated association. In respect of the organisation called Plane Stupid, at paragraph 72 she said:

"Plane Stupid does not have a conventional organisational structure, constitution or membership. However, it has a website, electronic contact details, local groups (each of which has a contact email address), named officers and administrators and a telephone number for the many press enquiries it receives. It distributes regular newsletters, organises direct action training and workshops, attends meetings and conferences (for example, the regional conference of a major political party) to put forward its views and it acts as a point of referral for other organisations. It has organised and carried out a number of direct action protests in the past and was instrumental in organising activity for the National Day of Action against short haul flights. It is clear from all its literature that those who support the organisation have a unanimity of purpose, namely to press their demands by means of direct action, including unlawful direct action. An entrance on its MySpace site is significant: 'Our role has not been to overlap with other groups who have entered into discussion with industry and government ... Plane Stupid should complement the work of these NGOs [non-governmental organisations] that are established and expert in the areas

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of conventional campaigning and lobbying while remaining distinctive, focused, direct action-orientated and different'."

Paragraph 73:

"I am entirely satisfied that Plane Stupid fulfils the necessary characteristics of an unincorporated association and that its supporters have identical aims, objectives and interests."

Her Ladyship therefore made orders against them in their representative capacities.

98 Mr Straker emphasised the loose nature of the combination of individuals, the fleeting nature of the membership, the casual nature of the membership, which both the Court of Appeal and Swift J in the cases I have referred to held to amount to unincorporated associations. He says that in applying the law, whether one takes the definition on which the Electoral Commission relied (which they took from the case of Burrell, which I will come to in due course) or all the law in the cases which I have just referred to, the Commission made errors of fact. They overlooked the early campaigning expenditure; they failed to take proper account of the activities which were evidenced in the chronology I have given from January 2016. He made the submission and urged the conclusion that it is obvious that everything that was done prior to the creation of a constitution for Beleave in May 2016 must have been done as a result of some sort of agreement which fulfils the requirements of an unincorporated association.

99 He sought, so far as the law is concerned, to persuade me that the definition of an "unincorporated association" for the Act is looser in fact than Hughes LJ would have it in R v L by reference to the definition of "body" in s.160(6) of the Act which I have referred to above.

100 The Electoral Commission says that the common law definition of what amounts to an unincorporated association is still to be found in the decision of the Court of Appeal in the case of Conservative and Unionist Central Office v Burrell [1982] 1WLR 522, in which the principal judgment was given by Lawton LJ, the subsequent judgments being given by Brightman LJ and Fox LJ. At p.525 from A to E Lawton LJ recognised that he was deciding what amounted to an unincorporated association in construing a Corporation Tax provision to be found in the Income and Corporation Taxes Act 1970. His Lordship held:

"It is against this statutory background that a meaning has to be given to the words 'unincorporated association'. It is sufficiently like a 'company' for it to be put in the charging section within the ambit of that word. The interpretation section makes it clear that the word 'company' has a meaning extending beyond a body corporate but not as far as a partnership or a local authority. I infer that by 'unincorporated association' in this context Parliament meant two or more persons bound together for one or more common purposes, not being business purposes, by mutual undertakings, each having mutual duties and obligations, in an organisation which has rules which identify in whom control of it and its funds rests and upon what terms and which can be joined or left at will. The bond of union between the members of an unincorporated association has to be contractual. This was accepted by the Special Commissioners and was the basis of their conclusion. The point of law which arises is whether on the facts they found they could properly have come to the conclusion which they did. The facts are set out fully in the case. For the purposes of this judgment I need do no more than refer to those which I consider to be relevant to the point of law." OPUS 2 DIGITAL TRANSCRIPTION 26

101 Sir James Eadie also referred me to Chapter 1 of Ashton & Reid on Clubs and Associations which I have read. He submitted that the real distinction in the law was between a banner put on an organisation under which it worked and a contractual basis for the relationship between the members; and that particularly bearing in mind the potential criminal liability that could be incurred under s.153 on the part of an unincorporated association, there was every good reason to insist on clarity in the statutory scheme as to what amounted to an unincorporated association. He said on the material before the Commission it properly distinguished between a banner or brand and an unincorporated association based on contract, and correctly held that it was an unincorporated association only from the date of the constitution in May 2016. And as I mentioned when I looked at the document, he submitted that the constitution itself is prospective in its contemplation of a number of events and fulfilment of obligations.

102 In looking at these competing submissions I remind myself that to find Mr Grimes guilty under s.117(3) the Electoral Commission had to be satisfied beyond reasonable doubt that at the date of notification BeLeave was not an unincorporated association. And in looking at both the law and the facts, I have come to the conclusion, for the following reasons, that the threshold they applied in deciding whether it was an unincorporated association was too high. And that as a matter of fact they looked at it from the wrong angle.

103 So far as the definition of unincorporated association is concerned, with great respect to Mr Straker it does not seem to me that s.106(6) and the definition of "body" really helps, because the body has to fall within s.52(4)(h) for the purposes of s.105 before it is a body which is of relevance. It is therefore s.52(4)(h) which is the key definition for the purposes of notification. It seems to me that provision incorporates the common law principles as to what amounts to an unincorporated association, and in that respect there is relatively little to choose between what Hughes LJ said and what Lawton LJ said in the cases which I referred to. The consistent elements are that it is a combination of people who have an agreement between them in relation to what they are undertaking. That might take many different forms; it does not need to be a formal contract; it can in my judgment be, at its lowest level, an understanding between them, a tacit understanding, as to what and how they are going to pursue an objective so long as they agree that they are part of the organisation at the relevant time.

104 It is important to have clarity but in my judgment the Electoral Commission put it too high. The degree of certainty that they were looking for, as is apparent from the report and the notices, does not fit very easily with the very many different shapes which an unincorporated association can take.

105 Further, so far as their factual findings are concerned, and the way they approached the analysis of the evidence, in my judgment the Commission put the matter the wrong way round.

106 Standing back, it seems to me, having regard to the investigation that followed, that the question the Commision asked themselves was whether Beleave was an unincorporated association (at the date of notification), whereas to convict Mr Grimes of the offence with which he was effectively charged, they should have asked themselves whether they could be satisfied beyond reasonable doubt that Beleave was not an unincorporated association. That required them to reject all of the material which Mr Grimes and his advisers had put before the Commission and which had come through other sources in which it had been suggested that there was an arrangement or an understanding prior to May 2016.

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107 One only has to go back and look at the material that I set out in my precis of the background to the appeal to see that there was a certain amount of evidence which could have led the Commission to the conclusion that there was an unincorporated association at the relevant time. But the finding that was reached was:

"Given the lack of clear evidence, in my view we cannot conclude that there was a private arrangement with a contractual basis between Mr Grimes and Mr Sanni."

The Commission should have been asking themselves whether they could conclude that there was not.

108 There is little in the documents to guide me about how the Commission analysed the material that had come from Miss Watson and the emails that were sent from Vote Leave which, perhaps equivocal, nevertheless demonstrated on one view that the unincorporated association existed prior to May 2016. There is little to assist me with the Commission’s thought processes between the Initial Notice and Final Notice, bearing in mind the quantity of material they received in representations from Saunders Law LLP in that period.

109 In fact, as I read the Commission’s conclusions, they did not decide beyond reasonable doubt that BeLeave was not an unincorporated association, and that therefore they could not have been a permitted participant.

110 I do not therefore go on to consider whether Mr Grimes had the relevant knowledge. It seems to me that it would be otiose to do so. Nor do I go on to consider the argument about the attribution of expenditure under s.117 of the PPERA.

111 I want to add a few brief words about ground 3 of the grounds of appeal, the alleged abuse of process. I am not going to set out the opposing submissions which are to be found in detail in the skeleton arguments, because it seems to me that at some point somebody, and it seems to me inappropriate for me to do it now, has to grapple with what statutory ground (e) means, what does "unreasonable for any other reason" in the context mean? The ground of appeal is that the decision to impose discretionary requirements was unreasonable for any other reason. I am not at all sure that that ground embraces the process which precedes the decision as opposed to confining one to looking at the four corners of the decision itself. And it is not necessary to decide that question for the purpose of this appeal. Had I been pressed, I would have found against Mr Grimes on that point.

112 Nor will I, unless the parties want me to, rule on the reasonableness of the sanction. My only observations would be this: that there was in my view only one series of acts undertaken by Mr Grimes which came in for criticism, and therefore although those acts gave rise to two offences (in the Commission’s view) it was appropriate (in my view) for them only to impose one penalty. In my judgment it was not conceivably the worst offence within the range of offences covered by those which may fall under s.117(3). It was recognised that Mr Grimes was neither deliberate in what he did in failing to meet his obligations according to the Commission nor dishonest. Nor does it appear from what the Commission has said that there was a lack of transparency. I would have been sympathetic to a reduction in the amount of the penalty if I had upheld the imposition of it, but for the reasons I have already given, I do not need to decide this issue.

113 Yesterday Mr Straker posed the question, "Where did it all go wrong?" His suggested answer was in the failure to deal carefully with the application to register. I respectfully agree.

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114 For those reasons therefore I quash the decision. ______

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