Edgell v Glover & Anor

The Petitioner, Kenneth Anthony Edgell, was a candidate in the local government elections held on 1^st May 2003 for the Broughton & Appleby Ward of the North Lincolnshire Council. There were six candidates for two vacancies. The votes as declared by the Returning Officer for the candidates were as follows:-

North Lincolnshire Council adopted an "all postal" ballot under a pilot scheme established pursuant to the North Lincolnshire District Council (Electoral Pilot Scheme) Order 2003 and implemented according to the North Lincolnshire District Council (Electoral Pilot Scheme) (No. 2) Order 2003 ("the No. 2 Order"). The scheme required a number of amendments being made to the statutory rules governing a postal ballot process. In particular, a simplified Declaration of Identity ("DoI") was provided for, which required the signature of the voter but, unlike rule 19 of the Local Elections (Principal Areas) Rules 1986, did not require the signature of the voter to be witnessed. A clear statutory purpose in legislating for the changes was to increase democratic participation and awareness, and increase the number of voters.

The voter received a composite form divided by perforation marks into three parts. One gave instructions on how to vote. Another comprised the DoI in the following terms:

The First Respondent, Mr Glover, received a single vote majority over the Petitioner. In the course of the count, which included many recounts, the Petitioner saw a ballot paper with a vote for the First Respondent being counted by an assistant, which had writing on it suggesting that the voter had not completed a DoI. It has been confirmed that the ballot paper in question, number 2965, had written on it:

By his Petition, Mr Edgell complains about ballot paper 2965 being included in the count and asserts that:-

On the 4^th July 2003, the rota judge, Jackson J., ordered a inspection of the documents and a recount. His order was in the following terms:-

On the 29^th July 2003 the Prescribed officer (Master Turner), in company with the parties and their representatives, checked all the declarations accepted as valid in an attempt to identify the DoI bearing the number 2965. In the process of the search other irregular or arguably irregular declarations were found. Two declarations, number 1403 and number 29, had no signature and six others had a cross in the place for a signature. At 11.48 am, no trace of a DoI numbered 2965 had been found and it was agreed there would be no further search for it. As a result of the fresh matters disclosed by the inspection, counsel for the parties requested that the recount should be adjourned to the rota judge for further directions. Paragraph 3.2 of Jackson J’s order was thereby adjourned. Having regard to the fresh disclosures in connection with the declarations, it was not an unreasonable course to adopt.

The Petitioner and the First Respondent sought an order that the matter should proceed by way of an application to the Divisional Court, on a special case, with a view to the election being declared void (see section 146(1) of the Representation of the People Act 1982). The Returning Officer, who was represented by counsel, resisted this course being taken on the grounds that the Senior Master should be directed to carry out further enquiries and investigations and to complete the recount which the parties had requested initially but which had been terminated. The judge delivered a short judgment and concluded as follows:-

The Returning Officer did not, as he could have done, appeal Mackay J’s Order. His explanation, which I accept as the reason why he did not do so, is that he regarded his function as responsive rather than adversarial and regarded Mackay J’s Order as procedural rather than substantive.

The substance of the argument which counsel for the Returning Officer advanced to Mackay J. was that the task of marrying up the numbers of the disputed declarations with the votes as cast could be done. It was accepted it would be time consuming, but it was submitted that before the court exercised its jurisdiction under section 48 of the Representation of the People Act 1982 to declare the election invalid it was necessary for these investigations to take place. The substance of the submissions advanced to Mackay J. by counsel for the Petitioner was that the task would be physically possible, but would "take ages" because it should not be limited to searching for the ballot papers numbered 1403 and 29 and that it was fraught with uncertainty because there was a distinct possibility that other ballot papers would be turned up without any declarations. There was, he submitted in theory, a question mark hanging over every ballot paper having regard to the elementary errors which had already been identified.

The Returning Officer was given leave to put in further evidence and he has done so by a statement dated 26^th August 2003. In addition he wrote a letter dated the 28^th August 2003 which was addressed to the parties. The ballot has been described in detail by the Returning Officer and it should be noted the election process has been evaluated by the Electoral Commission, whose Report is before the Court. The Commission were required to report by section 10(6)(9) of the Representation of the People Act 2000 according to five statutory evaluation criteria. The statutory criterion having relevance to the present matter is set out in section 10(8)(c) being the need to assess whether:

The Returning Officer has provided possible explanations for the error in connection with ballot paper 2965 and the errors giving rise to the unsigned declarations. As to 2965, he dismisses fraud. I need say no more about that. In his view the most likely explanation is that an assistant removed a ballot paper from an envelope without checking whether a matching DoI had been returned. I agree that could have happened, but one cannot exclude the possibility that the assistant did check, realised there was no DoI but nevertheless placed the ballot paper in the ballot box. A further possible cause for the loss of the declaration which he enumerates is that it was mislaid between the envelope being opened and it being passed to the elections officer for scanning. The Returning Officer observes that this seems unlikely "as only the supervisor and elections officer had access to these documents and were aware of the need to treat them carefully". The last possibility suggested by the Returning Officer is that the ballot paper was accompanied by a DoI but it was placed with declarations for a different ward. He observes that this is possible as the containers for declarations for all the wards were in the elections office. His observation in connection with this is:

I shall need to return to these possibilities, but it can be observed that none of them can be positively excluded and each of them point to different errors having occurred and, according to whichever occurred, different considerations arise. In the absence of being able to conclude what caused the error, all the circumstances have to be taken into account.

The Returning Officer has also carefully considered the possibilities in connection with the two unsigned declarations (1403 and 29). He dismisses fraud and I need say nothing more about that. He accepts a mistake was made, but points out that the ballot papers accompanying the declarations could have been rejected and therefore not counted. If, after further inspection, it was confirmed that the votes had not been counted there would (subject to any other errors) be equality between the Petitioner and the First Respondent. On any view the declarations were put by mistake in the receptacle for accepted declarations and unless further inspection takes place one cannot exclude the real possibility that the ballot papers were counted. It seems as likely that the declarations were put into the accepted box because the counterparts, the ballot papers, were put into the ballot paper box. On any basis the existence of an unsigned DoI did not receive an appropriate response by the assistant or assistants involved. Another possibility, according to the Returning Officer, is that the assistant did not check the declarations properly and, by mistake, placed both the declaration and ballot paper on the piles of valid declarations and ballot papers. He opines that the latter explanation is the more likely. Although the Returning Officer refers to "an assistant", I can see no basis for assuming it was the same assistant who made the errors in connection with each DoI nor can I see any basis for assuming that the same error was made in connection with each of the unsigned declarations.

There are a total of 2,723 ballot papers. In his letter dated the 28^th August 2003 the Returning Officer accepts that a limited number of errors are inevitable in any election involving thousands of votes. Indeed it is right to observe that an assumption which underlies the need to impose a statutory restriction on declaring an election invalid where errors occur is that inevitably there will be some errors. That said, the starting point of the detailed submissions which have been advanced on behalf of the Returning Officer is that, given the irregularities which the limited inspection disclosed, the court should not approach the irregularity constituted by ballot paper 2965 in isolation, but should stay its exercise of power to declare the election invalid by paying regard to what the position could be if, for example, ballot papers 1403 and 29 were votes cast for the Petitioner. If that were the case then, it is said, notwithstanding the irregularity in connection with 2965, the result would remain the same, namely Mr Glover would have been elected. He submits that until it is known what the consequences are it is not open to the court to conclude, in accordance with section 48(1) of the Representation of the People Act 1982, "whether it appears to the court that the result is not affected". Or, put positively, the evidence does not enable the court to conclude that the result is affected. For the purposes of argument, it seems the Returning Officer accepts that it would be open to the court to conclude that the result "might" be affected.

As to the crosses on six declarations, the Returning Officer submits that neither established principle nor the amended rules in connection with this pilot scheme required more than a signature. Further, that a cross can be a signature and that it should be regarded as a signature as required by the No. 2 Order and the declarations are to be regarded as "duly signed and authenticated". This issue is an important one for the purposes of the pilot scheme, but its resolution is not necessarily critical to the issue under section 48(1) of the Act.

The difference between the Returning Officer and the Petitioner and First Respondent is whether a further inspection should be ordered or whether the election should be declared invalid and I propose to examine that issue before returning to the validity of the declarations signed by a cross.

Section 145(1) of the 1983 Act provides:

Section 146(1) of the 1983 Act provides:

Section 48(1) of the Act provides:-

Section 127 of the 1983 Acts provides:

The issue as to whether the election should be declared invalid depends upon the true interpretation of section 48(1) and, in particular, the words:

It is common ground that section 48 substantially re-enacts section 37(1) of the Representation of the People Act 1949, the terms and effect of which were considered by the Divisional Court in Levers v Morris [1972] 1 QB 221 and by the Court of Appeal in Morgan v Simpson [1975] QB 151. The cases give rise to the following propositions, which are not controversial:

The Petitioner has questioned the election of the First Respondent and thus, in accordance with section 145(1) of the Act, the court must determine whether the First Respondent was duly elected; if not, whether any other person was duly elected or whether the election was void.

It is not contended that the election was not conducted as to be substantially in accordance with the law as to elections. The Petitioner’s case is that the First Respondent was not duly elected. It follows that the court must consider:

For a person to be "duly elected" the election must have been conducted substantially in accordance with the law and his election must not have resulted from one or more invalid votes being counted in his favour. Although the argument has ranged over a number of considerations, it is right to emphasise that Mr Edgell’s Petition is based upon a complaint that Mr Glover was not duly elected because he received one invalid vote, namely a vote on a ballot paper not supported by a DoI. The inspection ordered by the court has established that the vote on ballot paper 2965 was not supported by a DoI and the complaint has been made out. On the facts, had no other errors been disclosed, the court would have been bound to conclude that Mr Glover was not duly elected because there was "an equality of votes" between Mr Edgell and Mr Glover. Section 139(6)(b) provides that if it appears that there is an equality of votes between any candidates at the election "… the court shall decide between them by lot and proceed as if the one on whom the lot then falls had received an additional vote" (see Levers v Morris where the court drew a lot).

Neither the Petitioner nor either of the Respondents has invited the court to treat the case as one in which "it appears there is an equality of votes", although the Petitioner and the First Respondent are to be taken as having argued that the First Respondent was not "duly elected". Nor has the First Respondent under section 139(5) of the Act invited the court to conclude that the Petitioner was not duly elected. The explanation for this state of affairs is that the inspection, having disclosed two DoIs which are not signed, the precise number of valid votes to be attributed to either the Petitioner or the First Respondent cannot be ascertained without further inquiry by way of inspection.

In effect, the submission advanced by Mr Straker QC for the Returning Officer is that on the material before the court, the court simply does not know whether the First Respondent was duly elected and the result has been affected. At best, all it can do is to conclude that it might have been affected. He does not ask the court to conclude that the First Respondent was duly elected nor that it appears there is a state of equality of votes between them nor that the stage has been reached for a declaration of invalidity, but he asserts the court must proceed to order further inspection.

The words "it appears" are not uncommon in a variety of statutory provisions concerning an inquiry or assessment of facts. In the case In Re Kensington North Parliamentary Election [1960] 1 WLR 762, Streatfeild J., with whom Slade J. agreed, said this in connection with the previous provision, section 16 of the Representation of the People Act 1949:

On the evidence before the court it is common ground that the First Respondent cannot at this stage be regarded as duly elected. The Returning Officer’s submissions amount to an acceptance that it is not presently demonstrated, or that it cannot appear to the court at the moment that the First Respondent is duly elected. But his argument is that if further investigations are carried out it might, after all, show that he was duly elected because the two unsigned declarations may have accompanied votes which have been counted for the Petitioner. On analysis, the Returning Officer desires the court to order an inquiry which might show, contrary to both the contention of the Petitioner and the First Respondent, that the First Respondent was duly elected.

As it appears to me, on the information presently before the court, it is impossible to conclude that the First Respondent was duly elected. No one has suggested the court can conclude that he was. On the evidence before the court, therefore, it appears that the result is affected by the error or omission in connection with ballot paper 2965. The only countervailing material arises from the known errors in connection with the two unsigned declarations. But to be an effective countervailing factor only one circumstance must have occurred. I am not persuaded that much weight can be given to the only contemplated circumstance, namely that, after further inspection, it might be discovered that the two ballot papers unsupported by signed declarations were votes counted for the Petitioner. I do not give it much weight because equally they may have been votes in favour of the First Respondent or one vote may have been for the Petitioner and one for the First Respondent or they may have been cast in favour of other candidates.

The argument for the Returning Officer which was pressed upon the court came close to the suggestion that a standard of proof, not far short of the criminal standard of proof, has to be applied because of considerations of the public interest in upholding elections and of the expectation of electors that no election will be declared invalid unless it appears, beyond doubt, that irregularities affected the result. The aim of section 48, it is submitted, is to preserve an election. As a corollary, the argument is that everything that can possibly be done should be done before an election is declared invalid. Mr Straker submitted that electors would consider it strange if they could be told:

I reject the argument, in principle, that the threshold for satisfaction on the issue is at a level which excludes the court from concluding that the result was affected under section 48(1) when there is evidence before the court that the result is affected, but also evidence that if further enquiries are carried out there is a remote possibility the conclusion will be shown to be wrong.

Mr Straker emphasised that, this being an election conducted substantially in accordance with the law and, as he points out, the favourable subject of a report from the Electoral Commission, the court should be slow to draw any inferences or be influenced by the possibility that if the process of inspection was to go further it might throw up further irregularities. I am not impressed by the submission. The Electoral Commission reported before the errors and irregularities were disclosed on the inspection. It was aware of the issue on 2965, but properly made no comment. Its criteria were not focused on the detail with which the court is concerned.

I reject the submission that the court is not entitled to draw inferences in connection with the character of the errors which it is established have been made. The Returning Officer has done so by suggesting likely explanations for the errors. I fail to see, in a situation where it is generally accepted that any election process is likely to give rise to error, and where errors have been established as having occurred, why one should proceed upon the assumption that the next inspection will not throw up any more errors. Due regard to the range of causes which could have given rise to past errors and the potentiality of future errors being disclosed go to the question of the weight which should be attached to the pursuit of the one circumstance in which the result could turn out not to be affected after all.

It is one thing to carry out a inspection where there has been an appearance of error alleged in a Petition and to find on the inspection, which will commonly be ordered, that there was no error. It is quite another to order a inspection to see whether an error proved to have affected the result could nevertheless be counteracted by the result of further errors.

I accept that the exercise of judgment by way of an assessment of the evidence under section 48(1) must be carried out having regard to the seriousness of the consequences of making a declaration. Obviously, therefore, it is relevant to consider whether further investigations can be carried out, but the court is not bound to order them simply because the investigations are possible. The potential value of such investigations will depend upon what they might show. If they are only likely to affect the evidence presently before the court in a limited and remote circumstance, then to order the investigation is simply delaying the time at which the court will, at a later date, have to declare the election invalid. The inherent uncertainty attendant upon the only relevant result which could affect the matter is, in my judgment, sufficient and substantial and points to the need for a resolution of this Petition by an Order of the court now rather than later. I recognise that an election will give rise to substantial expense, but the expenses in connection with the petition and inspection will not be insignificant. The time involved and the uncertainty have to be weighed.

One solution, suggested by Mr Straker, is that the court should immediately invite Master Turner to inform the court in whose favour the votes on ballot papers 1403 and 29 were cast. On the assumption that the six declarations with a cross upon them are valid, he submits that is all that need be done. The justification for limiting the inspection to the examination of the two ballot papers is that no sufficient case has been made out on the basis of the errors established to date to justify any further investigation. In particular, he submits it is not necessary to carry out the exercise of matching votes cast with all the declarations.

There are a number of flaws in this approach:

It had originally been submitted that the inspection should extend to the investigation of all the ballot papers and the declarations. For that reason, Mackay J. refused to order a further inspection. I accept that the court has an inquisitorial function, but fairness requires that it is performed having regard to the processes which have been adopted in a particular case. Mackay J. was not determining an issue in connection with the true meaning of section 48(1). But had the Returning Officer made the submission he has made to this court, namely that section 48(1) required further inspection to be made, the issue would have been raised and considered and the Petitioner and the First Respondent would have been on clear notice of the position before consenting to proceed by way of a special case. They could have considered whether they wished to proceed by way of a trial.

In so far as the submissions for the Returning Officer do require this court to review the decision of Mackay J. in connection with the value to be given to a further inspection, I agree with the decision reached by Mackay J.

For myself, I see no reason to assume that the errors made in connection with Declarations of Identity are limited to the three disclosed. The range of possibility as to the source of error, by different assistants, demonstrate the variety of areas in which mistakes could have been made. This is not to suggest that the election was not substantially in accordance with the law as to elections, but to recognise that where one vote only separated the Petitioner and the First Respondent the impact of any error is likely to be important.

Rule 39 of the No. 2 Order states that the Returning Officer shall only count "such of the ballot papers as have been duly returned and record the number counted" (emphasis added). Rule 39(3) states "a ballot paper shall not be taken to be duly returned unless –

Reference is made to the case of Selby v Selby [1817] 3 Mer 2 at page 6 where Grant MR, after the word "signing", said

In Goodman v Eban (J) Ltd [1954] 1 All ER 763, to which reference has also been made, the Court of Appeal had to consider whether a rubber stamp facsimile of a solicitor’s firm on a bill of costs met the requirement for the bill to be "signed". The facts are very different, but Sir R Evershed (MR) observed as follows in connection with authentication:

I regard the use of a cross as presenting some difficulty for the requirement of authentication because it conveys no personal attribute or connection with the name of the voter. A signature has the attribute of purporting to be the signature of the name it represents. A cross can be placed by anyone and does not purport to be connected with any named person.

That said, the No. 2 Order did away with the requirement for a witness and the potentiality for disenfranchisement of the illiterate is a weighty consideration. I lean to the view it must have been considered in the legislative process but one cannot be confident it was.

The point is important for the future, but a decision is not required for the purpose of this case, if my Lord, David Clarke J. agrees with this judgment. I believe attention should be given to the issue by the legislature but, for the moment, decline to decide the point.

I would declare the election for the Broughton & Appleby Ward to be invalid.

I agree.

The Returning Officer’s suggested explanations for the three errors, coupled with his comment that a limited number of errors are inevitable in any election involving thousands of votes, lead me to the view that the court should not strain to uphold an election which contained known errors and which produced a bare majority of one vote for a successful candidate. The fact that this was a novel form of postal-only ballot under a pilot scheme tends to reinforce that view in the present case.