Gerald Malone (Petitioner) v (1) Mark Oaten (1st Respondent) (2) Mrs Lindsay Garrett Fox (2nd Respondent)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BROOKE,MRJUSTICE GAGE,MRHARRIS |
| Judgment Date | 06 October 1997 |
| Judgment citation (vLex) | [1997] EWHC J1006-2 |
| Docket Number | P 128/97 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 06 October 1997 |
[1997] EWHC J1006-2
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand
London W2A 2LL
Lord Justice Brooke
Mr Justice Gage
P 128/97
In the matter of Representation of The People Act 1983
MR RICHARD PRICE QC appeared on behalf of the Petitioner.
MR DAVID PANNICK QC and MISS HELEN MOUNTFIELD appeared on behalf of the 1st Respondent
MR TIMOTHY STRAKER QC appeared on behalf of the 2nd Respondent.
MRPRICE: ….there had been a tie, then the tie would be for the purposes of the ordinances and its principles. So I do not take your Lordship to it unless your Lordship wishes me to do so.
Applying the law to the facts of this case, no party seeks to argue that the election was conducted otherwise than substantially in accordance with election law. However, having said that, there cannot be doubt that the omission to stamp the relevant ballot papers in this case did affect the result. If the votes on the unstamped ballot papers for the petitioner and the first respondent had been counted, then Mr Malone and not Mr Oaten would have won the election by a majority of two, if 55 ballot papers were unstamped because of errors on the part of the returning officer's staff.
My Lord, there is a small issue on that here. The returning officer argues that the lack of the official mark on the one torn ballot paper was probably due to voter action or voter error and not due to staff error in the polling stations. Your Lordships will have seen the argument on that at paragraph 18(6) of the case.
Does this matter?
MRPRICE: No, my Lord. We say that may be right and we would probably agree with it but in fact it makes no difference at all.
In these circumstances it is my respectful submission that on the authorities the court has no choice, in the circumstances that we are in, other than to declare the election void and enabling a by-election to be held. My Lords, that is, as we put it, this case and it need in effect go no further. But it is right that I should mention to your Lordships certain other matters that were drawn to the attention of the court by the returning officer as this petition proceeds.
We have read the papers carefully. We have read those matters. Do we need to pursue them?
MRPRICE: My Lord, I would respectfully submit not.
We have read them.
MRPRICE: In that case perhaps I can leave that aspect of it to my learned friend, Mr Straker, if he wishes to draw any particular matters to your Lordship's attention. But what we say about it in simple terms is that, whatever may be the position in relation to personated votes or tendered votes, that is no part of this case before this court, and there is no proper basis for this court effectively directing its own enquiry without bounds, without any knowledge of the result and with no, we would submit, legal basis for so doing.
If Mr Straker raises something in the course of reply we would be happy to hear you again.
MRPRICE: I am obliged. My Lord, the position at the end of day is that all parties are now in agreement that it is appropriate for this court not only to deal with the case by way of special case, but it is also agreed that there is no choice as to what the court should do; that in the circumstances the election has to be declared void and there has to be a by-election held in Winchester; and we submit that it is the interests of the electors of Winchester that this matter be resolved today.
So far as the court is concerned, the only declaration you would seek for this part of case is that the election is void.
MRPRICE: My Lord, it is. The consequential matters are initially for your Lordships to the extent that the court's decision has got to be then reported to the Speaker but beyond that——
What happens after that is a matter for Parliament.
MRPRICE: It is a matter for Parliament and the only other matter your Lordships will have to deal with ultimately is costs, but we can leave that.
MRPANNICK: My Lords, the first respondent, Mr Oaten, agrees with the petitioner for the reasons given by my friend, Mr Price. The court should declare it to be void, the parliamentary election for the constituency of Winchester which occurred on 1st May 1997. As your Lordships have heard, it is very unfortunate that, because of the failures of the election officials, a by-election has to be held. We agree with Mr Price that there is no alternative. It is not of course a matter for your Lordships but Mr Oaten is keen that a by-election should take place as soon as possible, and he of course looks forward to being returned again as the Liberal Demoract Member for Winchester in a manner that cannot be the subject of any legal challenge. Subject to that, my Lord, that is all I wish to say to your Lordships.
Yes, Mr Straker.
MRSTRAKER: My Lord, the position of the returning officer is as stated in the skeleton argument which I put in, which I trust your Lordships have. In short form it is this: certain matters plainly, in my submission, had to be brought to the attention of the parties and to the court. But those matters—the questions on personated and tendered votes—can be seen now not to affect the outcome of this petition so that, as I say at the top of the second page of my skeleton, the court, bearing in mind its inquisitorial role, can be reasonably satisfied that it has all the information necessary to dispose of the matter and that no further step is needed to deal with the petition.
Secondly, the information enables the court to reach a conclusion that, although the election was conducted substantially in accordance with the rules, the admitted breaches of official duty—and it does not matter whether it be in respect of 54 or in respect of 55—did affect the result with there being no realistic prospect that the situation as to tendered or personated votes affects the position. That is because, as your Lordships will have seen, of the way in which the numbers worked out and more particularly because neither the petitioner nor the first respondent seeks to pursue those particular matters. So the consequence is, as has been stated, that on the relevant authorities the court should void the election in respect of the Winchester Constituency.
My Lord, that is the position of the returning officer in respect of the case stated.
There seems to be nothing for you to answer, Mr Price.
MRPRICE: There does not, my Lord.
Since the court has an inquisitorial role of its own I will give a short judgment before hearing submissions as to costs.
(As approved by the judge)
There is before the court a petition by Gerald Malone, who was an unsuccessful candidate in the parliamentary election for the constituency of Winchester held on 1st May 1997. The first respondent, Mark Oaten, was the successful candidate at that election and the second respondent, Lindsay Garrett Fox, was the returning officer.
On 2nd May 1997 the acting returning officer declared that the number of votes received for these two candidates, who received the most votes, was as follows:
Gerald Malone 26,098
Mark Oaten 26,100
The result of the election was finally declared at about 6.15 p.m. on 2nd May after two recounts. At the conclusion of the second recount the acting returning officer declared that he had rejected 233 ballot papers of which 55 were rejected for want of an official mark.
On 15th May 1997 the petitioner presented this election petition in which he contended, among other things, that the first respondent was not duly elected. On 18th June 1997, on the application of the petitioner and with the consent of the other parties to the petition, Mr Justice Butterfield made an order pursuant to rule 56(1) of the Parliamentary Election Rules that the 55 ballot papers rejected for want of the official mark, and two other ballot papers in respect of which objection had been taken to their rejection on behalf of the petitioner, should be produced and inspected before the prescribed officer, Master Turner; that these ballot papers should be reserved for consideration by the court; and that the prescribed officer should prepare a report to the court on the results of the inspection.
On 21st June 1997 these ballot papers were duly produced and inspected before the prescribed officer. At this inspection it was confirmed that 55 ballot papers did not bear the official mark and it was ascertained that the otherwise valid votes recorded on these papers were, so far as the petitioner and the first respondent were concerned, Gerald Malone 22, Mark Oaten 18. If the votes on these ballot papers had been eligible to be counted, Gerald Malone would have won the election by two votes instead of losing it by two votes.
Other matters have been properly drawn to the attention of the court by the returning officer. They do not affect the result of the election or the outcome of this petition and I need not say anything more about them.
The conduct of the election was governed by the provisions of the Representation of the People Act 1983 as amended, and the Parliamentary Elections Rules contained in Schedule 1 of that Act.
"23.-(1) The proceedings at a parliamentary election shall be conducted in accordance with the parliamentary elections rules in Schedule 1 of this Act.
(2) It is the returning officer's general duty at a...
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