Nigel Farage says Reform hasn't taken an illegal penny. Here's what an illegal penny actually is, writes Daniel Barnett

The facts are simple enough.

A senior Reform adviser sits across a table from a man who says he's the British-based son of a wealthy American.

The father can't lawfully give money to a UK party.

What gets floated on camera is that the son puts his own name on the donation and the father's money reaches him first.

Reform says nothing unlawful was ever taken, calls the whole thing a hoax, and describes what viewers heard as 'pub talk'.

The adviser says he was entrapped. Nobody has been charged with anything, and I'm not suggesting they should be. This is analysis.

The relevant law is the Political Parties, Elections and Referendums Act 2000.

Under s54, a party can only take money from a permissible donor, which for an individual means someone on a UK electoral register. An American living in America isn't on it.

So no political party can legally accept a donation from him.

The son is a different matter.

If he's on the electoral register, he can hand over his own money tomorrow and nobody can complain.

But what matters is whose money it really is.

Section 61 of the Political Parties, Elections and Referendums Act 2000 makes it a crime to knowingly to enter into, or knowingly to do anything in furtherance of, an arrangement that gets money in from an impermissible donor by concealment or disguise.

Whoever moves the money is committing an offence. So is anyone inside a party who knowingly helps them do it.

The penalty is an unlimited fine or up to a year in prison.

On top of that the Electoral Commission can impose a civil penalty of up to £20,000 per offence (a figure the Government wants raised to £500,000).

Here's what I think about Reform's response.

The offence in section 61 doesn't need any money to move. The offence is complete the moment an 'arrangement' is entered into. Nobody has to write a cheque.

Everyone agrees Reform never banked a penny from the American donor, because the American donor never existed. That's beside the point.

What a court would want to know is whether the filmed conversation was an 'arrangement', or just two people talking about how an arrangement might work.

I won't pretend that line is easily crossed. Talking through a hypothetical isn't a crime. Agreeing that 'this is how it will be done' probably is. Any jury would have to decide which side of the line it falls on.

Somebody will ask whether the fact the donor was fictional means there can't be a criminal offence. It doesn't.

Under the Criminal Attempts Act 1981 you're judged on the facts as you believed them to be, so if the adviser thought the American was real, then for the purposes of an attempt he was real enough.

In truth attempt adds little here, because s61 is already about agreements rather than actual transfers.

Somebody else will say entrapment.

Entrapment isn't a defence in English law, and where the sting is run by journalists rather than the police, the best a defendant can do is argue the evidence should be kept out as unfair.

Judges aren't normally sympathetic to that argument from people who were willing participants.

So, no, there's probably no illegal penny. There doesn't have to be. Whether a criminal offence was committed turns on a much narrower question: did a casual chat turn into an 'arrangement'?

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Daniel Barnett is the presenter of the LBC Legal Hour and a barrister at Outer Temple Chambers.

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