Fitch v Stephenson and Others
| Jurisdiction | England & Wales |
| Judge | MRS JUSTICE COX DBE,Mrs Justice Cox : |
| Judgment Date | 01 April 2008 |
| Neutral Citation | [2008] EWHC 501 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: M324/07 |
| Date | 01 April 2008 |
[2008] EWHC 501 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mrs Justice Cox Dbe
Mrs Justice Dobbs Dbe
Case No: M324/07
Graham Brodie (instructed by Patwa Solicitors) for the Petitioner
Timothy Straker QC (instructed by Leicester City Council) for the First Respondent
Guy Vassall-Adams (instructed by Steel & Shamash Solicitors) for the Second, Third and Fourth Respondents
Hearing dates: 25 th February 2008
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
This is the judgment of the Court, to which both members have contributed.
This petition, brought under s.127 of the Representation of the People Act 1983 (“the RPA”) by John Fitch, a defeated candidate, was presented on 24 th May 2007. The First Respondent was the Returning Officer for the election and the Second, Third and Fourth Respondents were the successful candidates.
The petition alleges that the First Respondent failed to count a proportion of the votes cast in the election and that this failure constitutes such an irregularity in the conduct of the election that it cannot be said to have been conducted substantially in accordance with the law as to elections, contrary to s.48(1) of the RPA. The Respondents contend that the result of the election was unaffected by the failure to count a proportion of the votes cast; that the rules were otherwise all complied with; and that the election should not be avoided. In addition the Respondents allege that the petition is defective in form and was improperly served. This is denied by the Petitioner.
On 25 th July 2007 Butterfield J ordered the parties to prepare a special case so that the case raised by the petition could be stated as a special case under s.146 (1) of the RPA, together with the question of whether any procedural steps taken or not taken debar further progress on the petition. A special case was prepared and agreed by the parties. The Court has accepted jurisdiction to treat the case as a special case.
Two issues therefore arise for determination, which are substantive and procedural, as follows:
a) Whether the failure to count a proportion of the votes cast was such that the election was not conducted substantially in accordance with the law as to elections, notwithstanding that the result was not affected;
b) Whether the petition is vitiated as a result of procedural failures.
The parties dealt with, and invited the court to deal with, the issues in the order set out. Accordingly, the court will deal with the substantive issue first, followed by the procedural issues raised by the Respondents.
The agreed facts
The agreed facts, so far as they are relevant to these issues, are taken from the case stated. Local Government Elections for the 22 wards of Leicester City Council were held on 3 May 200The Returning Officer, the First Respondent, was Tom Stephenson, and the Deputy Returning Officers were Charles Poole and Alison Scott.
The votes for each of the 22 wards were counted at Aylestone Leisure Centre on 4 May 2007, starting at 1pm. Each ward was designated a table, managed by a Table Leader. The Table Leader for Abbey Ward was Katharine Owen. A group of five or six tables was overseen by a Bay Leader. The Bay Leader under whom Abbey Ward fell was Phil Cobb.
The Returning Officer delegated in the ordinary way the majority of the tasks relating to the count, exercising general oversight and dealing with issues brought to his attention. The process of counting was split into three stages:
a) The Verification Stage;
b) The Sorting Stage; and
c) The Counting Stage.
The first two of these stages were properly executed. It is unnecessary, therefore, to rehearse the facts relating to them, which are set out at paragraphs 4 – 15 of the agreed Case.
Once the ballot papers were sorted, Ms. Owen put them into boxes ready for the Count Stage. However, she failed to check whether all the ballot boxes containing verified votes had been emptied on to the count tables and sorted.
The ballot papers were then counted. Thereafter, Ms. Owen performed a reconciliation exercise. This was incorrectly completed, as it showed that the reconciliation figure was close to the number of ballot papers accounted for. The provisional declaration was prepared based on the erroneous figures.
Ms Owen took the provisional declaration to Phil Cobb, the Bay Leader for Abbey Ward. Phil Cobb asked Ms. Owen if the figures reconciled. She told him the reconciliation had been close and, although not exact, within an acceptable variance. The Notes for Table Leaders Talk stated that the Reconciliation Sheet 'should more or less balance' – it may not balance by two or three votes if there had been a miscount within any of the counted bundles of 50 ballot papers, but if the result is very clear cut this would be acceptable. They decided to share the provisional result with the candidates and agents for the ward. This was done by Ms Owen, who cannot be sure which of the candidates and agents were present when she gave out the provisional result.
Ms Owen then handed the result directly to the Electoral Services Manager, Alison Scott. The Abbey Ward result was the second result handed to her. Ms Scott checked with Charles Poole, the Deputy Returning Officer, that a result could be processed if brought to her directly by a Table Leader. He confirmed it could. Ms Scott then entered the result into the system, with the assistance of her deputy, Stuart Hayden. The result was then circulated to the Web team and Communications Unit, and given to the Returning Officer to declare.
Ms Owen returned to the Abbey Ward table and asked the counters to stay behind to help other wards. The space and staff for the Abbey Ward count was then utilised by an adjacent count. Ms Owen asked if she could assist any of the counts, but was not needed. Some time later, she returned to the Abbey Ward table area, and began stacking the Abbey Ward ballot boxes. She then discovered a ballot box with several bundles of ballot papers inside. She looked through one bundle, and it was clear that it had not been sorted.
Ms Owen informed Mr Poole that she believed that some of the votes had been excluded from the final count for the Abbey Ward. In order to ensure that no similar mistakes occurred, Mr Poole undertook to carry out independent checks of all the documentation for each draft result. Thereafter, he began an assessment of the situation with the Abbey Ward count.
Mr. Poole asked Dan Jewson and Francis Connolly (Table Leader and Count Assistant respectively for Eyres Monsell Ward), and Ms Owen, to accompany him to a secure room adjacent to the main Hall, where the ballot boxes had originally been received and where there was some space to investigate the situation. Access to the room was restricted to authorised election personnel only.
Mr Poole informed Mr Jewson and Mr Connolly that it seemed that a ballot box for Abbey Ward containing verified ballot papers had mistakenly been excluded from the count, and that confirmation was required as to whether or not such an error had been mad e. Ms Owen returned to the main Hall and discovered another box of verified but uncounted ballot papers at the Abbey Ward table. She returned to the side room and indicated that there was more than one box. She and Francis Connolly returned to the counting hall and located the other box, which was brought back to the side room with the paperwork and ballot paper account for the Abbey Ward count. The ballot boxes had been unsealed and opened but contained votes which, whilst verified, obviously had not been sorted.
The Bay Leader under whom Abbey Ward fell, Phil Cobb, also went into the side room, and, with Mr Jewson, considered the paperwork for the Abbey Ward. Mr Cobb noticed that incorrect figures had been brought forward onto the summary sheet, which made it seem like the reconciliation was within an acceptable margin of difference. In actual fact, the number of ballot papers counted before the result was declared did not by a large margin match the number verified as having been issued in the day of the election: the number of ballot papers counted was 4930 of the 9099 issued i.e. 4169 of the ballot papers issued, or 45.8% had not been counted.
Francis Connolly and Dan Jewson emptied the boxes onto a large table, and verified that the number of uncounted votes matched the total number of votes missing from the Abbey Ward. They then separated the mixed and single party votes, and counted the single party votes. The mixed party votes were then counted using the sticky strip system, with the assistance of several other staff, and the results were checked several times.
This unofficial count showed that the result of the election for Abbey Ward would not have been different had all the votes been counted. Mr Jewson informed Mr Poole of the result of the unofficial count. All the paperwork for the Abbey Ward count and the counted ballot papers were then placed in one ballot box, which was kept secure until it was collected with the other ballot boxes by election staff.
Independently of that process, Mr Poole received two telephone calls from Liberal Party candidates, Mark Farmer and Margo Henry, suggesting that there was a disparity between the votes cast and the declared result for Abbey Ward. At around 10pm, Mr Poole met with the three Liberal Party candidates at the Aylestone Leisure...
To continue reading
Request your trial
-
Jacqui Quinn-Leandro v Dean Jonas
...S.L.T. (Sh Ct) 114 . 113 At page 726. 114 At page 729. 115 Divisional Court, 14th December 1995, (referred to in Fitch v Stephenson [2008] EWHC 501, at paragraph 116 [2003] EWHC 2566, at paragraph 25. 117 At paragraph 22 of the judgment. 118 In paragraph 245 of the judgment. 119 At paragrap......
-
Dean Jonas Petitioner v Jacqui Quinn-Leandro Marilyn Simon Lorna Simon The Electoral Commission Respondents [ECSC]
...the result was affected or not." See also Edgell v Glover [2003] EWHC 2566; Considine v Didrichsen [2004] EWHC 2711; Fitch v Stephenson [2008] EWHC 501. In Edgell v Glover the formulation of the test is further explained as follows (paragraph 23) as later approved in Considine v Didrichsen ......