IN THE MATTER OF THE REPRESENTATION OF THE PEOPLE ACT 1983 AND IN THE MATTER OF THE LOCAL GOVERNMENT ELECTION FOR THE MAYBURY AND SHEERWATER WARD OF WOKING BOROUGH COUNCIL HELD ON 3RD MAY 2012
Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
MRS JUSTICE SLADE DBE
and
MR JUSTICE NICOL
Between :
MOHAMMED ALI | Petitioner |
- and - | |
MOHAMMED BASHIR RAY MORGAN | Respondents |
Joanna Torode (instructed by Michael Conn Goldsobel) for the 1st Respondent
Gavin Millar QC (instructed by Steel and Shamash) for the Petitioner
Timothy Straker QC (instructed by Peter Bryant, head of Democratic and Legal Services, Woking Borough Council) for the 2nd Respondent
Hearing dates: 27th July 2012.
Judgment
Mr Justice Nicol :
This is the judgment of the Court to which both members have contributed.
On 3rd May 2012 there were elections for Woking Borough Council. The successful candidate for the Maybury and Sheerwater Ward was the Liberal Democrat candidate, Mohammed Bashir. He received (or appeared to have received) 16 more votes than the Labour Party candidate, Mohammed Ali. On 24th May 2012 Mohammed Ali filed with the Election Petition Office (i) a letter, (ii) a Claim Form, (iii) an application notice and (iv) a schedule raising complaints about 73 votes which he said should be disallowed. Mohammed Ali could not be certain for whom those votes had been cast, but if at least 16 had been for Mohammed Bashir, then, on the basis that the Petitioner’s votes were unaffected, Mr Bashir should not have been declared the successful candidate.
On 21st June 2012 the Petitioner made an application for an inspection of the ballot and other election documentation. On 17th July 2012 Mr Bashir applied to have the petition struck out. Because no election court had at that stage been constituted, the applications came before us as a Divisional Court. We heard them on 27th July. It was agreed that it would be sensible to take the strike out application first. After a short retirement we announced that day that we dismissed the strike out application for reasons which we would give later. These are our reasons. We also gave various directions which, in the event, were largely agreed between the parties (including, as 2nd Respondent, the Election Returning Officer).
On behalf of Mr Bashir, Ms Torode advanced three grounds for submitting that the petition should be struck out:
The petition was not in the form required by the Election Petition Rules 1960 rule 4.
Contrary to rule 4(1)(b) the Petition did not state the result of the election.
Contrary to rule 4(1)(d) the Petition did not state the grounds on which relief was sought.
Mr Bashir's application notice had originally included a fourth ground, namely that the Petition did not state in what capacity Mr Ali presented his petition. However, Ms Torode made clear at the hearing that she did not pursue that ground. Mr Millar QC for the Petitioner opposed the strike out application. Mr Straker QC for the Returning Officer, Mr Morgan took no position on this application.
The governing legislation is the Representation of the People Act 1983. Section 127 makes clear that the exclusive procedure for questioning a local election is by an election petition. The same section prescribes the possible grounds. It says:
"An election petition may be questioned on the ground that the person whose election is questioned-
was at the time of the election disqualified, or
was not duly elected
or on the ground that the election was avoided by corrupt or illegal practices or on the grounds provided by section 164 or section 165 below, and shall not be questioned on any of those grounds except by an election petition."
Section 164 relates to the avoidance of an election on grounds of general corruption. Section 165 concerns the avoidance of an election because of the employment of a corrupt agent.
Section 128(3) provides that an election petition shall be in the prescribed form. In England and Wales the petition is presented to the High Court. A copy is then sent to the proper officer of the authority who publishes it in the area of the authority. There is a tight timetable for presenting s petition. It must be done within 21 days after the day on which the election was held - see s.129 and there are only limited circumstances in which it can be amended after that date. Section 182(1) allows for the making of rules of procedure.
Rule 4 of the Election Petition Rules 1960 provides:
“(1) A petition shall be in the form set out in the Schedule to these Rules or a form to the like effect with such variations as the circumstances may require, and shall state –
a) in which of the capacities mentioned in s.121(1) or section 128(1) of the Act the petitioner or each of the petitioners presents the petition;
b) the date and result of the election to which the petition relates ...
c) ....
d) the grounds on which relief is sought, setting out with sufficient particularity the facts relied on but not the evidence by which they are to be proved......”
The Schedule to the 1960 Rules is set out in an annexe to this judgment.
We need to say a little more about the documents which were lodged by the Petitioner on 24th May.
The Claim Form This was the printed form for a claim under Part 8 of the Civil Procedure Rules. It named Mr Ali as the Claimant. The Defendants were Mr Morgan, the Electoral Returning Officer and “Cllr Mohammed Bashir”. Their addresses were given. Under the heading “Details of Claim” was written, “See attached report.” The statement of truth was signed by Mr Ali who described his position or office as “Alleged Candidate.”
The Application Notice The order sought was,
“To find the election result in Maybury and Sheerwater Ward in the Borough of Woking, Surrey on 3.5.12 unsafe and therefore null and void and to require a re-election for this ward.”
The information on which the applicant relied was,
“The Count took place on 4.5.12 on the day after the election. The result was LibDem 1088, Labour 1072, Tory 685, UKIP 345. It is our view that the narrow win by 16 votes can be fully accounted for by the enclosed Statement of Case. My agent had increased my vote by one by demanding a third recount with a new team of counters, which the ERO initially did not want to do. I lost the seat similarly to the Conservatives last year in 2011 by 45 votes. The ward has much the highest number of postal votes in the borough with a surge up to the April 18th closing date to over 1,500 and there were 165 rejected p.v. applications as well. (last year 165 rejects which was 15% of the votes cast). 70% of postal votes nationally, turn out to vote (this year 69% in this ward). This is much higher than at the polling stations. There were also 36 rejected ballots this year – also the highest in the borough). Persistent electoral irregularities began in the ward in 2004. In 2004 the CPS said ‘There is little doubt that (in Woking) a number of false votes for fictitious people have been tendered.’ But with witnesses refusing to testify for fear of victimisation, no prosecutions have been brought. In 2005 all the marked registers were lost so allegations of persistent double voting could not be checked and no explanation was given by the Council.”
The Claimant also named his then solicitor’s firm (not the firm who represented him on the present application).
The Schedule Attached to the application notice was a spread sheet which had the heading “identification of votes which should be disallowed”. There are 73 entries. Columns identified the ward, name of voter, address, number (presumably on the electoral roll), “reason for disallowing” and “Comment”. The reasons advanced varied. They included allegations that the voter was not resident in the ward, was abroad and could not have cast a postal vote, was under pressure to cast a postal vote, possible duplication, not legally entitled to vote, not resident at the address.
The Letter This was from Elizabeth Evans, the Labour Election Agent and enclosed a cheque for the required fee.
The Election Petition Rules require a petitioner to apply to a Master to fix the amount of security for costs. The Petitioner did this and the sum of £2,500 was specified. That security was provided and, in accordance with r.16 of the Election Petition Rules, notice was given to the Respondents that the Petitioner had complied with this obligation. Rule 16 requires a petitioner at the same time to serve a copy of the petition. In this case, the Petitioner served the documents to which we have referred in paragraphs 1 and 9 above. Ms Torode on behalf of Mr Bashir accepted that these documents were collectively to be regarded as “the petition”.
Failure to state the result of the election
Ms Torode submitted that this requirement is not satisfied if the petition does not, as a minimum, identify the successful candidate by name. If the form of petition in the Schedule to the 1960 Rules is adopted this will be clear from paragraph 2 because then all the candidates will be named and the petition will specify which of them was declared to be duly elected. She observed that this Court held in Scarth v Amin [2009] PTSR 827, [2008] EWHC 2886 (QB) that r.4(1)(b) did not oblige a petitioner to give the number of votes cast for each candidate.
On behalf of Mr Bashir, Mr Millar QC submitted that when the documents comprising the petition were read as a whole, it was quite clear that Mohammed Bashir was identified as the successful candidate. Although it was not essential to give the number of votes cast, they had been included by reference to the party affiliation of the candidates. It was clear from this that the election had been for a single councillor for the Maybury and Sheerwater ward. The Act required the candidate whose election was questioned to be a respondent to the petition. Apart from the Electoral Returning Officer, the only other respondent to this petition was “Cllr. Mohammed Bashir”. Reading the petition as a whole, Mr Millar submitted, it is clear that Mohammed Bashir had been the successful candidate for the seat on the Council for this ward.
We consider that Mr Millar is right in this regard. The petition did sufficiently identify the result of the election. Rule 4(1)(b) was complied with.
Failure to set out the grounds on which relief is sought and the particulars of facts relied upon
Ms Torode noted that the grounds on which an election can be challenged are limited to those set out in s.127 of the Act. The petition in this case did not make clear on which of those grounds Mr Ali relied. The application notice asked for an order that the election was “unsafe” but this matched none of the grounds. The particulars in the application notice and the attached schedule were very general and imprecise.
Mr Millar responded by saying that, although the word “unsafe” was inapt, it was clear from the Schedule that the petitioner was alleging that 73 votes should be disallowed. The application notice itself drew attention to the narrowness of the successful candidate’s win (by only 16 votes). Mr Millar submitted that the plain inference to be drawn was that the petitioner was alleging that the person whose election he was questioning had not been duly elected.
We consider that Mr Millar’s argument is also correct in this respect. In essence the challenge was about the number of votes which Mr Ali had received. The question raised by the petition was whether Mr Ali had received a majority of the votes properly cast. If 16 or more of the votes Mr Ali questioned (a) were indeed improperly included and (b) had been votes cast for Mr Bashir then Mr Ali ’s grounds would have been made out. We do not accept that the pleaded facts were insufficient. The Schedule did identify the particular votes which he sought to call into question. If there is any deficiency in the particulars provided (and we are not to be taken as saying that there are) we consider that this can be adequately addressed by an application for further particulars or witness statements.
Failure to adopt the form in the Schedule to the Election Rules
Elizabeth Evans, the Petitioner’s election agent, provided a witness statement as to how the petition came to be in the form that it was. She is not a lawyer. She said that she and others in the local Labour Party were concerned as to whether the result of the election had been affected by electoral fraud. They were aware of the need to try to assemble evidence. The Returning Officer released the marked register indicating which electors had voted on 15th May 2012 together with a schedule indicating the sequential order in which postal votes had been received by the Council. From their investigations they identified 73 cases where they suspected that votes had not been properly cast. On 23rd May 2012 a meeting of a group from the Labour Party decided that they had sufficient evidence to take civil proceedings.
One of those involved in conducting these investigations was Sabir Hussain, who had been the Labour Party’s Parliamentary candidate in Woking. Ms Evans said that on 24th May 2012 he spoke to a solicitor who was also a Labour Party activist in Slough and was told that there was likely to be a short deadline for the submission of election petitions. Mr Ali (the Petitioner) then spoke to a council official at Woking who confirmed that there was a 21 day deadline. She gave Mr Ali the name of the Election Petitions Officer (‘EPO’) at the Royal Courts of Justice and Mr Ali passed this on to Ms Evans. Ms Evans contacted him. Very fairly, she expressed her gratitude for the assistance he provided. She accepted responsibility for what was ultimately lodged with the Court, but said as well that she naturally relied on his advice.
At 16.49 on 24th May 2012 the EPO sent Ms Evans an email which provided a copy of a leaflet entitled “I want to challenge the outcome of an election and how do I apply for relief”. This included a section headed, “What does an Election petition contain?” It stated:
“An election petition must contain the following facts:
• the capacity in which the petitioner is acting;
• the date and result…
• the date from which the time for lodging the petition is calculated, if not within 21 days;
• the grounds on which relief is sought; and
• the relief claimed.
The petition must be signed by each petitioner; it cannot be signed by a solicitor on their behalf.
An example of an election petition can be found at the back of the Election Petition Rules 1960…and Atkins Court Forms, volume 18(1).”
Under the heading “How can I get further advice?” it stated,
“The staff in the Elections Petitions Office can advise you on the procedure for issuing an election petition but they cannot give you legal advice or any indication of whether you are likely to be successful. …”
The EPO’s email also gave a link to the electronic version of 1983 Act and he referred Ms Evans to the sections dealing with the conduct of local government elections and those concerning offences. The Act does not itself give the form of an election petition.
In a further email at 18.00 the EPO said that Ms Evans might wish to use the CPR Part 8 claim form as a template for her application for relief and sent a link to an electronic version of that form. He sent a further link to the template for an application notice which he said she could use to apply to set down security for costs.
By this stage it was the evening of 24th May 2012, the last day for lodging the petition. Ms Evans said in her witness statement that she and her colleagues appreciated that they had no choice but to seek costly legal advice. However, at that time of day they were unable to obtain it. Doing the best she could with the advice she had obtained from the EPO she completed the documentation which we have referred to at paragraph 1 above and hand delivered it to the Royal Courts of Justice before midnight on that day.
Ms Torode submitted that the authorities show that compliance with the requirements of Rule 4(1) of the Election Petition Rules is mandatory. In summary, we comment on these as follows:
In Hobson v Fishburn [1991] LGR 56 the Court struck out an election petition because the petitioner had relied on his right to have been elected in place of the successful parliamentary candidate, but, because he was under 21, he was (at that date) ineligible to have become an MP. The result was harsh because the petitioner could have petitioned in his capacity as a voter, but the Court would not allow him to amend the petition since the time for lodging it had expired. It is, though, an example of a case where a specific requirement in r.4(1)(a) could not be met.
In Ahmed v Kennedy [2003] 1WLR 1820 the Court of Appeal dismissed an appeal against a decision to strike out an election petition. The petitioner had failed to notify the respondents of the amount and nature of the security and thus had not complied with s.136(3) of the Act. As Simon Brown LJ said at [28] there had been a complete failure to give the required notice in the prescribed time. There may be other errors (for instance where the amount of the security was misstated or certain particulars were omitted) which would not necessarily amount to fatal non-compliance. The Court rejected an argument on the Appellant’s behalf that the public interest in resolving allegations of electoral irregularity should mean that the petition ought to be allowed to proceed notwithstanding the failure to comply with s.136. At [40] Simon Brown LJ said,
“Flexibility and discretion are all very well but there is merit too in certainty, not least in the field of electoral challenge. It is undesirable to have someone serving in public office with doubts surrounding the legitimacy of his election.”
May LJ agreed with Simon Brown LJ. Clarke LJ in a short concurring judgment emphasised at [54] that this was a case where no notice at all had been given within the prescribed period (and there was no jurisdiction to extend time). He left open whether the Court would have power through s.157(3) of the Act and CPR r.3.10 to treat a defect in a timeous notice as a failure to comply with a relevant rule. Alternatively, a court might treat a notice which substantially complied with the provision of s.136(3) as sufficient compliance. He added that he would expect the Court to exercise such a power in favour of a petitioner only rarely, “because I can see no reason in principle why petitioners and their solicitors should not read the relevant provisions of the 1983 Act and the 1960 Rules which are quite simple, and apply them in accordance with their terms.”
In Saghir v Najib [2005] EWHC 417 (QB) the Petitioners failed to serve on the respondents a copy of the petition as lodged with the Court. What they served was a different version of the petition. In addition the Petitioners failed to lodge the necessary security in time and could not therefore give notice that they had done so. Accordingly, there was a complete failure to comply with r.6 of the Election Petition Rules. The petition was struck out.
In Ali v Haques (10th December 2006 DC) the Divisional Court struck out an election petition because it had not been served in accordance with the Election Petition Rules and the Act. The respondents were served at the Town Hall and not at their residential addresses. At [37] the Court commented,
“Whilst the petitioners can suggest that there was no prejudice, because it appears that all of the respondents actually received the documents, and only the third respondent may have received those documents outside the five day time limit, the fact remains that the election rules set out a hard and fast regime which must be applied to the question of service. It is plainly important, in the context of an election, that a court should not be vested with some discretion to be exercised ex post facto in relation to the requirements of the statute and the rules, because that might be seen as interference with the electoral process and discrimination as between the candidates for the election. The point militates not only against the existence of any discretion, but also against the exercise of any discretion if such was thought to exist.”
We have already mentioned that in Scarth v Amin (above) the Divisional Court rejected an argument that the requirement in r 4(1)(b) of the Election Petition Rules to state “the result of the election” required a petitioner to specify the number of votes cast for each candidate. The Court affirmed at [15] that the requirements of rule 4 of the Election Petition Rules were mandatory so that if they were not complied with the petition would be struck out. It said at [16]
“There are competing public interests at stake. On the one hand, the rules requiring timely and proper presentation of a petition are strict, because it is in the public interest that there should be clarity as to who has been elected. But this public interest does not, in our judgment, require such a construction of rule 4.
[17] On the other hand, there is a countervailing public interest that there should be free and fair elections ‘under conditions which will ensure the free expression of the people’, see article 3 of the First Protocol to the European Convention of Human Rights and Fundamental Freedoms and Part II of Schedule 1 to the Human Rights Act 1998…It would be wrong in principle to adopt an interpretation of the 1960 Rules which placed conditions upon the presentation of valid petitions which were more restrictive than necessary to achieve the certainty that is required, and which obstructed the determination of what opinion the people had expressed.”
In Miller v Bull [2010] 1 WLR 1861 [2009] EWHC 2640 (QB) the petition complied with the rules and had been properly served. The petitioner had also provided the requisite security. However he did not give notice of that provision within the time prescribed by r.6 of the Election Petition Rules. He did subsequently, but outside the time limit. Tugendhat J. refused to strike out the petition. On Court of Appeal authority he was obliged to hold that there was no power to extend the time limit. However, he held that Article 3 of the First Protocol to the ECHR meant that the prohibition on enlarging time had to be set aside. He noted that none of the parties had submitted that, if the court had power to enlarge time, it should refuse to do so.
Ms Torode’s argument was straightforward. Rule 4 requires the petition to be in the form in the Schedule to the Rules or to like effect with such variations as the circumstances may require. This petition was not in the form set out in the Schedule and the differences were not because they were required by the circumstances of the case. Compliance with Rule 4 is mandatory and, since it was not observed, the petition should be struck out.
Mr Millar responded that the substantive requirements of Rule 4(1) (i.e. paragraphs (a)-(d)) were fulfilled. The Respondent’s remaining objection was one of barren technicality. Striking the petition out for any such deficiencies would preclude investigation of the Petitioner’s allegations of serious electoral faults. If necessary, the Court should follow the same course as in Miller v Bull and find a requirement to adopt the form in the Schedule to the Rules would be incompatible with Article 3 of the First Protocol to the ECHR.
In our judgment there was substantive compliance with the requirements of Rule 4(1). In sub-paragraphs (a) – (d) the Rule identifies the important matters which must be conveyed by a petition. It is either conceded or we have held above that the petition in the present case did indeed comply with each of those substantive requirements. The templates which Ms Evans used - for a Part 8 Claim and an application notice - were not the same as those set out in the Schedule. However, the adoption of these models caused no prejudice to the Respondents. Neither Ms Torode nor Mr Straker QC on behalf of the Returning Officer have suggested any prejudice. The Returning Officer treated the combination of documents that we have mentioned in paragraph 1 as the petition and it was these which he published in accordance with his duty under s.128(4) of the Act.
Rule 4 itself does not contemplate slavish adherence to the form of the Schedule. It permits a form “to like effect”. We consider that the petition presented here was to like effect because it conveyed the essential information required by the subparagraphs of r.4(1) and because the departures from the form in the Schedule caused no prejudice.
Were the Rules to require a more exact compliance with the form in the Schedule, we consider that they would attract the criticism which Tugendhat J. levelled at rule 19 of the Election Petition Rules in Miller v Bull. In order to achieve compatibility with the Convention the Court read down rule 19 to disapply the provision prohibiting enlargement of time for compliance with rule 6. The same Convention rights, Article 3 of the First Protocol and Article 6, are in issue in this case. The requirement, as far as it is possible to do so, to achieve compatibility with Convention rights reinforces the construction of rule 4 we have already reached that documents giving the information required by the rule taken together are ‘to like effect’ to the form in the Schedule.
We have reached this conclusion without reliance on the sequence of events which led to the presentation of the petition in this case. However, if we had been obliged to strike out the petition, the petitioner and his supporters would have been entitled to feel aggrieved. The leaflet which they were sent (see paragraph 19 above) encouraged them to look to the Elections Petitions Office for advice on the proper procedure. Ms Evans did. The Office directed her to the template for a Part 8 clam form and an application notice. Those were the forms she used. Furthermore, the leaflet described what was in the Election Petition Rules as “an example of an election petition”, not as a form which had to be used on pain of being struck out. Atkin’s Court Forms (mentioned in the leaflet) may, we suspect, not feature these days even in every solicitor’s library. But Ms Evans was no lawyer. As Tugendhat J. said in Miller v Bull at [4], “It is not uncommon for petitioners acting in person to make mistakes in attempting to comply with the rules, notwithstanding the fact that to a lawyer the rules appear clear enough. In this case the petitioner simply mistakes while doing his best.” That was also true in the present case.
For all of these reasons we dismissed the application to strike out the petition.
We then gave directions in relation to the Petition. These were largely agreed. The Returning Officer through Mr Straker asked that the scrutiny of such ballots or other documents as were necessary should take place in Woking. He contended that while such a scrutiny in connection with other petitions sometimes took place at the Royal Courts of Justice, the practical difficulties of transporting these materials to London meant that it would be easier to carry it out in Woking. Initially, Mr Millar argued that the usual location for the scrutiny should be adopted (i.e. it should take place at the Royal Courts of Justice). However, on further reflection, he said that he was neutral as to the location of the scrutiny. Local government staff could do the job as well as court staff. In either case they would work to the instructions of the Commissioner. The First Respondent expressed no view on this issue. In these circumstances, we acceded to the proposal of the Returning Officer and directed that the scrutiny should take place in Woking.
We ordered that the 1st Respondent should pay the costs of the Petitioner and the Returning Officer to be assessed on the standard basis if not agreed.
Annexe
SCHEDULE
ELECTION PETITION
In the High Court of Justice,
Queen’s Bench Division
In the Matter of the Representation of the People Act, 1983
And in the matter of a Parliamentary [or Local Government] Election for [state place]
Held on the day of , 19.
The Petition of A. B. of [and C.D. of ]
shows: -
That the Petitioner A.B. is a person who voted [or had a right to vote] at the above election [or was a candidate at the above election] [orin thecase of a parliamentary election claims to have had a right to be elected or returned at the above election] and the Petitioner C.D. [state similarly the capacity in which he presents the petition].
That the election was held on the day of , 19, when E.F, G.H and J.K. were candidates , and on the day of , 19 , the Returning Officer returned E.F and G.H to the Clerk of the Crown as being duly elected [or in the case of a local Government election and E.F and G.H were declared to be duly elected].
That [state the facts on which the Petitioner[s] rely].
That [in the case of a petition mentioned in section 122(2) or (3) or section 129(2), (3) or (4) of the above Act state the event on which the time for the presentation of the petition depends and its date].
The Petitioner[s] therefore pray[s]: -
That it may be determined that the said E.F was not duly elected [or returned] and that the election was void [or that the said J.K. was duly elected and ought to have been returned] [or as the case may be].
That the Petitioner[s] may have such further or other relief as may be just.
Dated this day of , 19 .
(signed)
PETITIONER[S]
This petition is presented by whose address for service is
[and who is agent for of ],
[solicitor for the said Petitioner].
It is proposed to serve a copy of this petition on of [and of ] and on the Director of Public Prosecutions.