R v Tronoh Mines and Others  1 All ER 697; 35 Cr App Rep 196
On Oct. 19, 1951, the defendant, Tronoh Mines, Ltd....by its secretary, the defendant, Harold Edgar Barrenger, caused to be inserted in a newspaper owned by the defendants, The Times Publishing Co., Ltd., an advertisement which was headed "Tronoh -- Malayan Tin Group of Companies. Interim statement on dividend limitation," and contained criticisms of the Labour Party's financial policy... The advertisement concluded with these words:
"The coming general election will give us all the opportunity of saving the country from being reduced, through the policies of the Socialist government, to a bankrupt 'Welfare State'. We need a new and strong government with Ministers who may be relied upon to encourage business enterprise and initiative, under the leadership of one who has, through the whole of his life, devoted himself to national and not sectional interests..."
The three defendants were charged under s. 63 (1) (b) and s. 63 (5) of the Act of 1949 that in the city of London they unlawfully incurred expenses on account of issuing in the "The Times" newspaper an advertisement with a view to promoting or procuring the election of a candidate other than the Labour Party's candidate at the parliamentary election held in the constituency of the cities of London and Westminster during the general election on Oct. 25, 1951.... By a second count it was alleged that the expenses were incurred with a view to promoting or procuring the election of the Conservative candidate in the constituency referred to. [T]he defendants submitted that for an advertisement to offend against s. 63 (1) (b) it must be directed to a particular candidate in a particular constituency and not be in the general terms of the advertisement complained of, and that, as the prosecution had not tendered any evidence to that effect, there was no case to go to the jury against the defendants who were entitled to be acquitted.
McNAIR J: On the view I take of the construction of s. 63 (1) of the Representation of the People Act, 1949, this is not a case which I can properly leave to the jury. For the purpose of the observations which I am about to make, I assume that the jury could properly find on the evidence that the object, or, possibly, the primary object, of incurring the expenditure in question was to advance the prospects of the anti-Socialist cause generally, that those who incurred those expenses had in mind the general election of 1951, and that they desired to achieve their object by securing the election of a majority of candidates who were against the Socialist government, though, if the matter had been left to the jury, the jury might well have taken the view that they were not the objects or the primary object. The indictment contains two counts, charging the defendants with acting contrary to s. 63 (1) (b) and s. 63 (5) of the Act of 1949.
The Act of 1949 is a consolidating statute embracing the whole of the electoral law. So far as is material, s. 63 (1) provides:
"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 on account -- (a) of holding public meetings or organising any public display; or (b) of issuing advertisements, circulars or publications; or (c) of otherwise presenting to the electors the candidate or his views or the extent or nature of his backing or disparaging another candidate..."
Counsel for the defendants have submitted that, on the proper or reasonable construction of that section, the evidence tendered by the Crown does not establish any act which is prohibited by it. Section 63 (1) prohibits the incurring of expense on account of (a) holding public meetings, (b) issuing advertisements, or (c) "otherwise presenting to the electors the candidate or his views or the extent or nature of his backing or disparaging another candidate". It seems to me that (c) necessarily imports that the particular items specified in (a) and (b) must also, if they are to be caught by the prohibition, be items which have the effect of "presenting to the electors the candidate or his views or the extent or nature of his backing or disparaging another candidate." If this result had not been intended, it seems to me that para (c) would have run: "of presenting to the electors, whether by means specified in para. (a) or para. (b), or in any other way, the candidate or his views..." Furthermore, the Interpretation Act, 1889, s. 1 (1), provides that, unless the context otherwise requires, words importing the singular include the plural, and I think that the context here does necessarily require that references to the election of a candidate at an election means a candidate at a particular election and not candidates at elections generally. On the whole, therefore, although I appreciate that the point is fully arguable, I think that the construction contended for by the defence on this point is correct. It is not, however, necessary in a criminal case such as this to go to that length. It is sufficient to say that, in my judgment, it is a reasonable and possible construction. For, in the construction of a penal statute - to use the words of Lord Simonds in Howell v Falmouth Boat Construction, Ltd. ( 2 All E.R. 251) - "a man should not be put in peril on an ambiguity."
I have reached the decision that on the evidence no reasonable jury could find that the advertisement in question was presenting to the electors of any constituency any particular candidate, still less presenting to the electors of the constituency of the cities of London and Westminster either the Conservative candidate or any candidate other than a Socialist candidate or his views.
Counsel for the defendants, Tronoh Mines, Ltd. and Mr. Barrenger, also contended that this construction is supported by the consideration that s. 63 (1) does not prohibit the incurring of expenditure of the nature covered by the section absolutely, but only sub modo, and, therefore, the fact that the section itself provides no way in which the particular form of advertisement in question, namely, an advertisement in a national newspaper, which circulates generally throughout the country, supporting the views of a particular party and not those of a particular candidate, can be authorised, lent strong support to the view that the particular form of advertisement in question was not prohibited. If expenses incurred on account of the items specified in (a) (b) and (c) , being supported in writing by the election agent, are permissible and authorised by the election agent, then, by virtue of sub-s. (2), the person who incurs them has to make a return to the returning officer of the amount of those expenses, stating the election at which and the candidate in whose support they were incurred. The prescribed form referred to in sub-s. (3) is set out in the Representation of the People Regulations, 1950 (S.I., 1950, No. 1254), which took effect after approval by resolution of both Houses of Parliament, and is Form W., and it is clear that that form is inappropriate for making a return of expenses of the kind with which we are here concerned. There is no way in which the expenditure, on the hypothesis I have stated, incurred in relation to all elections can be apportioned for the purpose of any particular return for a particular election. That consideration alone seems to me to lend strong support to the view that the section is not intended to prohibit expenditure incurred on advertisements designed to support, or having the effect of supporting, the interest of a particular party generally in all constituencies, at any rate at the time of a general election, and not supporting a particular candidate in a particular constituency.
Counsel for The Times Publishing Co., Ltd. has based an argument on the general structure of the group of sections -- ss. 60 to 78 -- headed "Election expenses". Those words, "Election expenses", are, according to recognised canons of construction, to be regarded as forming part of the statute itself, and may, at any rate in the case of doubt, but, probably in all cases, be used to provide the key to the general construction of each section which follows under that heading. Election expenses are defined in s. 103 as follows:
"'Election expenses' in relation to an election means expenses incurred, whether before, during or after the election, on account of or in respect of the conduct or management of the election."
The result of s. 171 (1) is that "election" here means a parliamentary election, and that term "parliamentary election" is itself defined by s. 17 (1) of the Interpretation Act, 1889, in terms which make it plain that it means an election for a particular constituency and not a panoply of elections commonly known as a general election. Accordingly, it seems to me that this group of sections is dealing with an election for a particular constituency, and it would be contrary to the ordinary canons of construction to impose the prohibition of s. 63 (1) in the circumstances of the present case. In other words, what is prohibited by this section is the incurring of expenditure of one of these particular categories which has the effect of supporting a particular candidate or candidates in a particular constituency, which, if authorised by the election agent, would form part of the election expenses for that constituency and thus be subject to the statutory maximum of expenditure for that constituency. I, therefore, accept the submission of counsel for The Times Publishing Co., Ltd. that s. 63 (1) does not prohibit expenditure, the real purpose or effect of which is general political propaganda, even although that general political propaganda does incidentally assist a particular candidate among others. There may be instances where there has been an incursion by a party or body into an election, but there is no evidence or suggestion of anything of that kind in the present case....
I have come to the conclusion that no reasonable jury could find that the expenditure in question here was prohibited on this construction of the Act. That being so, I need not pause to consider the special position of the third defendants, The Times Publishing Co., Ltd., and the question whether, on any view of the statute, it could be said that there was any evidence against them. Furthermore, the conclusion which I have reached on the general construction of the section renders it unnecessary for me to express any final view on the question whether the proof of intention, object, or view to promote or procure the election of candidates generally of one particular party or in opposition to one particular party in all elections held at one general election could be sufficient evidence, on which a jury could act, of specific intent such as is charged in the present case, viz., the intent of promoting or procuring the election of a particular candidate or candidates at a particular election. But I must say, having listened to the arguments on this point, I am strongly of the opinion that in a case such as this it would be necessary to prove affirmatively the specific intent relating to the particular election.