John Philip Considine and Jan Didrichsen and John Henry Cornforth

JurisdictionEngland & Wales
CourtQueen's Bench Division
JudgeThe Hon. Mr. Justice Jack
Judgment Date24 Nov 2004
Neutral Citation[2004] EWHC 2711 (QB)
Docket NumberCase No: M/310/04

[2004] EWHC 2711 (QB)

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

Before:

The Honourable Mr. Justice Jack

Case No: M/310/04

Between:
John Philip Considine
petitioner
and
(1) Jan Didrichsen
(2) John Henry Cornforth
respondents

Helen Mountfield (instructed by Nicholson Graham & Jones) For The Petitioner

Gavin Millar Qc (instructed by Margaret J. Taylor, Town Clerk, Kingston-upon-hull City Council) For The First Respondent

Alan Newman Qc (instructed by Benson Mazure) For The Second Respondent

Hearing dates: 9 November 2004

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.

The Hon. Mr. Justice Jack

Mr Justice Jack:

Introduction

1

On 10 June 2004 an election was held for the election of councillors to the Kingston upon Hull City Council. There were five candidates for the Derringham Ward Electoral Division and one was to be elected. Mr John Cornforth representing the United Kingdom Independent Party was declared to have received 945 votes and to have been duly elected. Mr John Considine, an independent candidate, was the runner-up with 938 votes. Mr Cornforth therefore had a majority of 7. By his election petition presented to the court on 30 June 2004 Mr Considine prays that the election of Mr Cornforth should be declared void. Shortly stated the ground of petition is that a number of voters in the ward did not receive ballot papers. The petition is opposed by Mr Cornforth. The returning officer, Mr Jan Didrichsen, took a neutral position though submissions were made on his behalf to assist the court.

2

The petition has proceeded by way of a special case under section 146(1) of the Representation of the People Act 1983, rather than by trial. This means that the petition must be determined on the basis of the facts set out in the special case, rather than on the basis of facts as they might be found by the court. It was here agreed that the court should also take account of contemporaneous documents appended to the case, but should not take account of other factual material which has been appended to it.

3

In common with other local elections being held on 10 June 2004 the election for Kingston upon Hull City Council was combined with elections to the European Parliament. The combined poll was conducted under pre-existing election legislation as amended by the European Parliamentary and Local Elections (Pilots) Act 2004 and the European Parliamentary and Local Elections (All-Postal) Pilots Order 2004 made under the 2004 Act. Schedule 2 to the 2004 Order contained the European Parliamentary and Local Elections Pilots Rules 2004. The 2004 Act named Yorkshire and the Humber as a pilot region, thus enabling the Kingston upon Hull City Council to be brought within the ambit of the 2004 Act, Order and Rules. The Act was passed, and came into effect, on 1 April 2004. It provided that, where it applied, an election must be held by postal voting only. The 2004 Order was made, and came into effect, on 27 April 2004. The 2004 Rules provided by paragraph 3 that as soon as practicable the returning officer should send or deliver to each elector an information card giving specified information about the elections. Rules 10 and 14 provided for the returning officer to issue ballot packs to voters as soon as practicable after 5 pm on 17 May and not later than 1 June 2004. The ballot packs were to contain ballot papers for each election, a declaration of identity, envelopes, instructions, and where a barcode was used, information about it, all in prescribed form. Rule 19 provided that the returning officer might use a universal postal service provider, a commercial delivery firm or a clerk appointed under rule 23 for the purpose of delivering ballot papers. 'Papers' seems an error for 'packs'. The timetable was tight.

4

There were 163,616 persons eligible to vote in the 20 wards comprised within the area of Kingdom upon Hull City Council. 8,873 persons were eligible to vote in the Derringham ward.

5

The returning officer employed specialist printers to prepare the ballot packs for all voters and to provide them to the Royal Mail for delivery to voters. The printers contracted to provide the ballot packs by 24 May but did not in fact deliver them to the Royal Mail until 1 June, the last day. Through an error made by the printers in assembling the packs a number of packs sent to voters in the Derringham ward had ballot papers for the Marfleet ward instead. The papers had the names of the Marfleet candidates on their face – though they were not there identified as Marfleet candidates, and on the back was printed 'Election for Marfleet Ward.' Paragraph 26 of the special case states:

'This appeared to affect at least Moorhouse Road and Wold Road, in which some 779 electors were registered, though the extent of the problem is not clear. There appears to be no pattern whereby it can be established which electors received the wrong papers, nor how many were affected. The petitioner's evidence indicates that 17 electors in Derringham Ward received only papers for the Marfleet Ward, and two further electors initially received papers for the Marfleet Ward, and received replacements substantially after the issue date of 1 June 2004.

Paragraph 26 is not to be read as suggesting that the petitioner's evidence indicated that only 17 Derringham electors received papers only for the Marfleet ward: the petitioner produced statements from 17 Derringham voters that they had only received Marfleet ballot papers. The circumstances in which the statements were obtained are not in evidence. It is not known how many others there may have been. Paragraph 27 mentions the printer's reference to 'a handful' of papers being manually misfed. In the circumstances I do not think that we should rely on the remark for any real guidance as to the numbers involved.

6

The error quickly became apparent and on 3 June the returning officer issued a press release to the Hull Daily Mail, which was also released to The Yorkshire Post on 4 June. It said:

'This is an error by the printers which we believe has affected a very small number of residents. There was no way of knowing this had happened until the papers had been sent out. We are rectifying the situation immediately and will get replacement papers out to anyone affected. [Italics inserted] We have received only six telephone calls, all within one ward, but would ask anyone who has received a ballot paper not relating to their ward to ring ***** straight away and we'll get a paper out to them. We would stress that there is still plenty of time to vote.'

An article appeared in the Hull Daily Mail on 3 June. It quoted the passage in italics but said that officials urged persons affected to ring the number given. It reported the Council leader as saying that 200 households were affected. That figure is not substantiated and it is unknown how it was arrived at. We cannot rely on it. An article also appeared in The Yorkshire Post, which again quote the italicised passage as well as the request to ring the number. The importance of the italicised passage is that it can suggest that new ballot papers will be sent out without the need for action on the part of a voter. This was how some voters understood them. Bulletins were also issued through Radio Humberside: their terms are not in evidence. 34 ballot packs with the correct Derringham ballot paper were issued to affected voters on 4 June and another 34 up to 10 June, a total of 68.

7

The special case states:

'The consequence of these errors is that an unknown number of electors in the Derringham Ward did not receive ballot papers for the Derringham Ward election, to which they were entitled, but received instead ballot papers for the Marfleet Ward election, to which they were not entitled.

It cannot be established that every elector who received the wrong ballot papers heard or read any of the media announcements about the error before the election, and of those who did, some understood the Returning Officer would of his own motion ensure that they all had replacement ballot papers, without the need for them to take any active steps themselves to obtain them. They were unaware that the Returning Officer would only issue a replacement paper if they made contact with the Guildhall.'

[Paragraphs 30 and 31]

8

The issues on which we were addressed all arise in connection with section 48(1) of the Representation of the People Act 1983. This provides:

48(1) No local election shall be declared invalid by reason of any act or omission of the returning officer or any other person in breach of his official duty in connection with the election or otherwise of rules under section 36 or section 42 above if it appears to the tribunal having cognizance of the question that –

(a) the election was conducted so as to be substantially in accordance with the law as to elections; and

(b) the act or omission did not affect the result.

9

The issues which arise under the section here can be summarised as:

(a) Was the returning officer in breach of his official duty?

(b) If he was, does it appear that the election was nonetheless conducted so as to be substantially in accordance with the law as to elections?

(c) If he was and the election was so conducted, does it appear that the breach did not affect the result?

Was there a breach of the returning officer's official duty?

10

That this is the first question for us to consider is shown by the decision of the Court of Appeal in Knight v Nicholls [2004] EWCA Civ 68. There it was alleged that the returning officer was in breach of his duty because a number of postal ballot papers had been received late through the failure of the Royal...

To continue reading

Request your trial
4 cases

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT