Scottish Elections (Representation and Reform) Act 2025 Explanatory Notes

Offences

Section 54 – Offence of breaching section 52

173. Section 54 sets out the offence, defences and penalties applicable to the regime. Subsection (1) provides that where electronic material is published without an imprint (in contravention of the requirements in section 52), the relevant third party who is the promoter of the material and any person on behalf of whom the material is being published (if not the promoter) becomes liable for a criminal offence. The penalties are set out in subsection (2) and defences in subsections (3), (4) and (5).

174. Under subsection (7) a court must notify the Electoral Commission when a person is convicted of an offence under subsection (1) and the sentence imposed, as soon as is practicable.

Section 55 – Individual culpability where organisation commits an offence

175. Despite the general exclusion of liability for individuals acting as such there is still potential for an individual to commit an offence, where they are the controlling mind of an organisation. Section 55 makes provision for certain persons associated with different types of organisations to be held criminally liable for committing an offence under section 54, in addition to the organisation.

176. For that to happen, any person referred to in this section as a “responsible individual” must have consented to, or connived in, the organisation’s commission of the offence. Subsection (4) sets out a table explaining which type of person is a “responsible individual” in relation to different types of organisation listed in the table. For example, the director or secretary of a company, and a partner in a firm, are responsible individuals, so potentially have criminal liability for offences under section 54 committed by the company or partnership, respectively.