Table Of ContentAlison HERNANDEZ
Criminal investigation into allegations
against the Police and Crime Commissioner
of Devon and Cornwall Police
Please note, this investigation was completed and submitted to the decision maker
before 8 January 2018, while we were still the IPCC. Therefore, the report will contain
th e investigator’s opinion that may differ from the final outcome. The report refers to
the IPCC and the Commission throughout, and does not reflect the new structure of
the IOPC.
Please note that redactions have been made on the basis of the harm test and
na ming policy, some minor amendments have been made following representations
and some typographical errors have been corrected.
Managed investigation report
Investigation information
Investigation name: Alison HERNANDEZ
IPCC reference: 2016/066000
IPCC office: Birmingham
Lead investigator: Det Supt Damian Barratt
Case supervisor: Tim Godwin
Commission delegate: Sarah Green
Status of report: Final
Date finalised: 19/04/17
Contents
Introduction .............................................................................................................. 6
The investigation ...................................................................................................... 6
Criminal offences under investigation ................................................................. 11
Summary of the evidence ...................................................................................... 13
Analysis of the evidence ....................................................................................... 38
Conclusions ............................................................................................................ 40
Appendix 1: The role of the IPCC............................................................................ 2
Appendix 2: Timeline of events .............................................................................. 5
Appendix 3: Investigation strategy ......................................................................... 9
Appendix 4: Challenges encountered in the investigation ................................... 8
Appendix 5: People referred to in this report ...................................................... 13
Appendix 6: Evidence referred to in this report .................................................. 15
Introduction
The purpose of this report
1. The lead investigator, Detective Superintendent Damian Barratt of West Mercia
Police, was appointed by the IPCC to carry out a managed investigation into
allegations that Ms Alison HERNANDEZ failed to properly declare election
expenses in 2015 when she acted as agent for Conservative candidate Kevin
FOSTER in the parliamentary constituency of Torbay for the General Election of
May 2015.
2. This investigation was managed by the IPCC because at the time the allegations
became known Ms HERNANDEZ had been elected as the Police and Crime
Commissioner for Devon and Cornwall and any investigation of a Police and
Crime Commissioner, must be dealt with in accordance with the Elected Local
Policing Bodies (Complaints and Misconduct) Regulations 2012, even though the
offence indicated may have been committed prior to their term of office.
3. This is my report for the commission. It summarises and evaluates the evidence,
and refers to relevant documents.
4. On receipt of this report, the Commission will decide whether to refer the case in
relation to Ms HERNANDEZ to the CPS. Decisions whether to refer Mr FOSTER
(or anyone else mentioned in this report) will be made by West Mercia Police.
The investigation
Terms of reference
5. The terms of reference for this investigation were approved by Commission
Delegate Sarah Green on 3 June 2016. The terms of reference specific to this
investigation are:
a) The investigation concerns the alleged conduct of relevant office holder, Ms
Alison HERNANDEZ, the newly elected Devon and Cornwall PCC.
b) To investigate expenses claimed and returns submitted by Ms Alison
HERNANDEZ in her role as election agent for Mr Kevin FOSTER during the
2015 General Election.
c) To prepare a final report for the Commissioner. On receipt of the final report,
the Commissioner shall determine whether an offence may have been
committed by the PCC and whether it is appropriate for it to be considered by
the Director of Public Prosecutions. The Police and Crime Panel and any
interested party, will be informed of whether or not the DPP has been asked to
consider the report. A copy of the report will be sent to the Police and Crime
Panel when published.
Background information – summary of allegations
For publication 4
6. West Mercia Police are conducting an investigation into the accuracy of election
expenses returns and declarations submitted by Kevin FOSTER (MP) and his
Election Agent Alison HERNANDEZ (now Police and Crime Commissioner for
Devon and Cornwall Police) following the UK Parliamentary election held on 7th
May 2015. Mr FOSTER was contesting the Torbay seat.
7. In order to summarise the allegations it is important to understand the rules and
regulations that surround elections in relation to spending, the training and
qualifications for election agents and the facts surrounding the candidacy of Mr
FOSTER. I will outline these issues before providing a summary of the allegations
in this case.
8. Rules on election spending
The Electoral Commission (EC) guidance for candidates and agents for the UK
Parliamentary General Election 2015 (UKPGE) explains the rules concerning election
spending.
In accordance with this guidance:-
The rules on spending apply to spending on activities to promote a candidate or to
criticise other candidates during the regulated period.
The regulated period
The regulated period is a set time when spending limits and rules apply. There were two
regulated periods for candidates contesting the UK Parliamentary general election
known as the long campaign and the short campaign.
The long campaign
For the UKPGE 2015, the long campaign began on 19th December 2014 and ended on
the day before an applicant officially became a candidate.
The short campaign
The short campaign began on the day an applicant officially became a candidate until
polling day, 7th May 2015.
The date an applicant becomes a candidate
The earliest date an applicant could officially become a candidate was the day that the
UK Parliament was dissolved, i.e. 30th March 2015.
An applicant would become a candidate on 30th March 2015 if they or others had already
announced an intention to stand. For example, a party may have issued a press release
when a candidate was selected, or a candidate might have announced their intention at
a residents’ meeting.
If a candidate’s intention to stand had not been announced by the day of the dissolution
of Parliament, they officially became a candidate on the earlier of:-
For publication 5
The date a candidate or another person declared the candidate’s intention to
stand
The date when a candidate was nominated
Who may incur election spending
In accordance with Section 75 (1) RPA, in relation to candidate spending during the
regulated period, the only people allowed to incur election spending are:-
The agent
The candidate
Anyone authorised by the candidate or agent
Once appointed the agent must keep invoices or receipts for any payments of £20 and
above.
Spending limits
The EC guidance advises that candidate spending includes any expenses incurred,
whether on goods, services, property or facilities, for the purposes of the candidates
election during the regulated period. This includes:-
Items or services bought before the regulated period begins but used during it
Items or services given to you free of charge or given to you at a non-commercial
discount of more than 10%
Available spending
For the long campaign the available spending for Torbay Constituency for each
candidate amounted to £30,700 plus 6p per registered Parliamentary elector. There
were 75,298 registered Parliamentary electors giving each candidate total available
spending of £35,217.88.
For the short campaign the available spending for Torbay Constituency for each
candidate amounted to £8,700 plus 6p per registered Parliamentary elector. Considering
75,298 registered Parliamentary electors this gave each candidate total available
spending of £13,217.88.
What is included in candidate spending
Advertising of any kind e.g. posters, newspaper adverts, websites or YouTube
videos
Unsolicited material sent to voters e.g. letters, leaflets, emails (not sent in
response to specific queries)
Transport costs for you or your campaigners
Public meetings
Staff costs e.g. agents salary
Accommodation e.g. campaign office
Administrative costs e.g. telephone bills, stationery, photocopying and use of
databases
For publication 6
Items received free of charge or at a discount and ‘notional spending’
The EC guidance states that candidate spending includes any expenses incurred,
whether on goods, services, property or facilities and includes …items or services given
to you free of charge or given to you at a non-commercial discount of more than
10%...and includes accommodation e.g. campaign office - on this basis the furniture
could be considered to be an election expense.
The EC guidance states that you must recall the full commercial value of these items or
activities as candidates spending if:
You receive the item free of charge or at a non-commercial discount (i.e. special
discounts given to you that are not available on the open market) of more than
10% and
The difference between the commercial value and what you pay is more than £50
The difference between the commercial value and the price you pay is called notional
spending. Notional spending of more than £50 will also be a donation.
Donations
A donation is money, property, goods or services which are given:
Towards your candidate spending
Without charge or on non-commercial terms
And has a value of over £50. Anything with a value of £50 or less does not count as a
donation.
9. Training and qualification for Election Agents
Alan MABBUTT of Conservative Campaign Headquarters (CCHQ) was, at the time of
the 2015 UKPGE, Head of Local Government and Legal Officer for the Conservative
Party. Mr MABBUTT has confirmed that Election Agents would have been invited to
training events, however, due to the passage of time CCHQ no longer hold records of
who attended.
Mr MABBUTT can say that CCHQ sent each Agent a Campaign Pack and part of this
was a 48 page ‘General Election 2015 Campaign Pack’ document.
This document covered all aspects of the election campaign and it gave advice around
‘Tracking your expenses’, namely:-
“It is vital that you produce a detailed campaign budget and keep track of your spending
throughout the long and short election campaigns”.
“At any given time during the long and short campaign you should know exactly how
much money you have spent and how much you have remaining in your budget”.
For publication 7
In addition to the literature distributed by CCHQ, the Electoral Commission also
produced guidance, namely ‘UK Parliamentary general election 2015 – Guidance for
Candidates and Agents’.
10. Facts surrounding Mr FOSTER’s candidacy
Caroline TAYLOR was the Acting Returning Officer for Torbay Constituency during the
2015 UKPGE. She has provided a statement dated 20th July 2016 in which she confirms
the following:-
That candidate Kevin FOSTER submitted his nomination paper (CT01), his consent to
nomination form (CT02), his certificate giving authority to use the Conservative Party
name (CT03) and his written request to use the Conservative Party emblem (CT04) to
Torbay Council on 2nd April 2015.
No objections were raised and accordingly on 9th April 2015 Torbay Council’s Caroline
TAYLOR published her statement of persons nominated (CT06).
Kevin FOSTER was elected as the Member of Parliament for the Torbay Constituency
on 7th May 2015, the announcement being made on 8th May 2015 by the Returning
Officer (Jane BARNBY).
Torbay and Totnes Constituencies
Torbay is divided into two Parliamentary areas – Torbay and Totnes. Torbay covers
Torquay and most of Paignton. Totnes covers Totnes, Brixham, Dartmouth, Kingsbridge
and Salcombe.
During the elections of May 2015, not only were local residents voting in the
Parliamentary election, they were also voting for the local Mayor (who would cover the
entire Torbay area covering both the Torbay and Totnes districts) and also for their local
Government Councillors for Torbay Unitary Authority (again covering the Torbay and
Totnes districts).
The successful Parliamentary candidate for the Totnes area was Dr Sarah
WOLLASTON. She is not subject to any election expenses investigation.
11. Summary of the allegations
In broad terms the allegations revolve around the following:-
There are no accurate records of the expenses attributed to the battle bus visit
which took place on the 29th April 2015, namely the transport itself, refreshments
and accommodation.
The date that Kevin FOSTER became a candidate appears to be inaccurate.
Inaccurate recording of election expenses by attributing a proportion of some
invoices to candidates involved in the local government and Mayoral elections
that were being held on the same date. It would appear that some of these
expenses should not have been divided up as they were.
For publication 8
On occasions when invoices were divided between Parliamentary, local and
Mayoral campaigns, imprecise calculations were made thereby rendering the
election returns inaccurate.
Where some invoices were identified as being the responsibility of the Kevin
FOSTER campaign, only a proportion of the invoice value has been recorded on
the electoral expenses returns.
Some invoices produced by suppliers have not been recorded on the electoral
expenses returns.
Postage costs appear to be under valued as has the use of direct mail.
Telephone costs appear to be under valued.
Discounts and items given for free have not been attributed to notional spending
or recorded as donations.
No recorded costs for any additional services provided by social media.
Criminal offences under investigation
12. The criminal offences considered in this investigation were as follows:
Section 82 (6) Representation of the People Act 1983
Section 75 (5) Representation of the People Act 1983
13. All offences under investigation fall under the Representation of the People Act
1983 (RPA).
S81 RPA
(1) Within 35 days after the day on which the result of the election is declared, the
election agent of every candidate at the election shall deliver to the appropriate officer a
true return containing as respects that candidate …
S82 RPA
(1) The return delivered under section 81(1) above shall be accompanied by a
declaration made by the election agent in the appropriate form.
(2) At the same time that the election agent delivers that return, or within seven days
afterwards, the candidate shall deliver to the appropriate officer a declaration made by
him in the appropriate form……
(6) If a candidate or election agent knowingly makes the declaration required by this
section falsely, he shall be guilty of a corrupt practice.
S84 RPA
… if a candidate or election agent fails to comply with the requirements of section 81 or
section 82 above he shall be guilty of an illegal practice.
For publication 9
S75 (1) RPA states that “no expenses shall, with a view to promoting or procuring the
election of a candidate at an election, be incurred by any person other than the
candidate, his election agent and persons authorised in writing by the election agent …”
Section 75 (2) RPA states that “where a person incurs any expenses required by this
section to be authorised by the election agent (a) that person shall within 21 days after
the day on which the result of the election is declared deliver to the appropriate officer a
return of the amount of those expenses, stating the election at which and the candidate
in whose support they were incurred, and (b) the return shall be accompanied by a
declaration made by that person verifying the return and giving particulars of the matters
for which the expenses were incurred”.
Section 75 (5)
… if a person incurs, or aids, abets, counsels or procures any other person to incur, any
expenses in contravention of this section, or knowingly makes the declaration required
by subsection (2) falsely, he shall be guilty of a corrupt practice.
14. Defence
R v. Jones and Whicher (1999)
“Honest belief in the truth of the declaration …is a complete defence…the nub of the
offence is the declaration of an honest belief in the accuracy of a disclosure which is
known to be incomplete or inaccurate”.
15. Application for extension of time (S176 RPA)
The RPA imposes a 12 month time limit to commence proceedings from the date on
which the offence is committed. This time limit can be extended by Order of a Court
under S176 if it can be shown that there are exceptional circumstances for such an order
and there had been no undue delay in the investigation.
On 19th May 2016 Devon and Cornwall Police made a successful application under
S176 at Chippenham Magistrates Court. This order extended the time limit to commence
proceedings by a further 12 months, therefore as Mr FOSTER and Ms HERNANDEZ
submitted their signed declarations in relation to their expenses returns on 5th June 2015,
the extended deadline for commencement of proceedings will be 5th June 2017. The
application provides an extension for offences under section 82(6) and section 75(5) of
the RPA.
Of note, both Mr FOSTER and Ms HERNANDEZ have been represented by Nama
ZARROUG of Manleys Solicitors. From the outset she has stated that if CPS decides to
prosecute in this case, then she will be paying particular attention to the information
supplied to the District Judge by Devon and Cornwall Police. She is of the opinion that
the S176 extension was granted only for the purpose of exploring and investigating the
battle bus expenses and that such extension granted would not therefore cover any other
irregularity arising. This point was particularly covered during the interview of Mr
FOSTER.
For publication 10
Description:Alison HERNANDEZ, the newly elected Devon and Cornwall PCC. Advertising of any kind e.g. posters, newspaper adverts, websites or YouTube.
