Knight v Nicholls and Another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE TUCKEY,LORD JUSTICE SEDLEY,Lord Justice Tuckey,LORD JUSTICE WALL |
| Judgment Date | 29 January 2004 |
| Neutral Citation | [2004] EWCA Civ 68 |
| Docket Number | A2/2004/0048 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 January 2004 |
[2004] EWCA Civ 68
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
(MR JUSTICE CRESSWELL)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Tuckey
Lord Justice Sedley
Lord Justice Wall
A2/2004/0048
MR J HOWELL QC (instructed by Steel & Shamash) appeared on behalf of the Appellant
MR R PRICE AND MR J FINDLEY (instructed by (1) Penningtons and (2) Sharpe Pritchard) appeared on behalf of the Respondents
Rule 19 of the Local Elections (Principal Area) Rules 1986 (LEPAR) says that:
"The returning officer shall, in accordance with regulations made under the Representation of the People Act 1983 issue to those entitled to vote by post a postal ballot paper and a declaration of identity . . . together with such envelopes for their return . . . as may be prescribed by such regulations."
What is the extent of the obligation to "issue" the ballot paper "to" the voter? Does it require delivery to him?
These questions arise on appeal from the Divisional Court (Cresswell and Fulford JJ) who dismissed an election petition by Martin Knight and declared that the first respondent, his main opponent in the election, had been validly elected as the local councillor for the Belle Vale and Hasbury ward of Dudley on 1st May 2003. The petitioner received 1,132 and the first respondent 1,172 votes. The returning officer is the second respondent to the petition.
The Divisional Court gave special leave to appeal its decision because of the importance of the point raised in the context of postal voting. The point is important because similar rules apply to parliamentary elections (Schedule 1 to the 1983 Act — Rule 24 is the same as LEPAR rule 19) and the right to vote by post has been considerably extended by recent legislation (the right is now available on demand; previously it was only available for cause) .
The Divisional Court dealt with the petition as a special case in accordance with section 146 of the 1983 Act. The case helpfully summarises the relevant statutory provisions, the facts and the issues.
I start with the statutory framework. Section 48(1) of the 1983 Act says:
"No 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 . . . above if it appears to the tribunal having cognisance 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 effect its result."
LEPAR were made under section 36 of the 1983 Act. Rule 19 comes in the section headed "Action to be taken before poll". Rule 18 requires the returning officer to publish notice of the poll with details of the day and hours fixed for it and the situation of each polling station. The remainder of this section and the following section of the rules are concerned with the setting up and conduct of the poll at polling stations. I shall have to refer to these provisions later but, as rule 19 contemplates, the procedures for postal voting are contained in regulations. The relevant regulations which came into force in February 2001 (at the same time LEPAR rule 19 in its present form), are now in Part V of the Representation of the People (England and Wales) Regulations 2001 under the heading "Issue and Receipt of Ballot Papers".
Regulations 65 to 78 are headed "Issue of Postal Ballot Papers". Regulation 67 says that "no person may be present at the proceedings on the issue of postal ballot papers other than the returning officer and his clerks". Regulation 71 prescribes the time when postal ballot papers are to be issued: not until after 5 pm on the eleventh day before the date of the poll, for those entitled to vote by post for an indefinite or definite period; as soon as practicable, in cases where there has been an application to vote by post at a particular election.
Regulation 72 is headed "Procedure on Issue of Postal Ballot Paper". It requires the paper to be stamped, its counterfoil marked with the elector's number, and a mark to be made in the absent voters list "to denote that a ballot paper has been issued to the elector" (Subparagraphs (1) to (3)) . Subparagraph (7) says:
"The address to which the postal ballot paper, the declaration of identity and the envelopes . . . are to be sent is —
(a) in the case of an elector the address shown in the absent voters list.
Regulation 76 which is headed "Delivery of Postal Ballot Papers" says:
"(1) For the purpose of delivering postal ballot papers, the returning officer may use —
(a) a universal postal service provider;
(b) a commercial delivery firm; or.
(c) clerks appointed under . . . the election rules."
The returning officer is required to obtain receipts for the numbers of envelopes delivered to any postal provider or delivery firm and postage is to be prepaid on such envelopes. Return postage is to be prepaid on the envelopes for returning the ballot papers.
Finally, Regulation 78 which is headed "Lost Postal Ballot Papers" says:
"(1) Where a postal voter has not received his postal ballot paper by the fourth day before the day of the poll, he may apply (whether or not in person) to the returning officer for a replacement ballot paper.
(2) Such an application shall include evidence of the voter's identity.
(3) Where the application is received by the returning officer before 5 pm on the day before the day of the poll and the returning officer —
(a) is satisfied as to the voter's identity; and
(b) has no reason to doubt that the postal voter did not receive the original postal ballot.
He shall issue another postal ballot paper.
A replacement ballot paper is to be issued in the same way as the original but —
"(6) Where a postal ballot voter applies in person, the returning officer may hand a replacement ballot paper to him instead of delivering it in accordance with Regulation 76."
A postal ballot voter cannot vote in person. He commits a criminal offence if he does so. The instruction he receives with his ballot paper is to return it to the returning officer in the envelope provided, together with the declaration of identity, without delay. LEPAR Rule 39 provides that a postal ballot paper shall not be taken to be duly returned unless it is returned to the returning officer by hand or by post, or to a polling station by hand and it "reaches the returning officer or polling station . . . before the close of the poll".
So I turn to the facts which I extract from the special case. For the present purposes they can be shortly stated.
The second respondent properly delegated his responsibility for the statutory postal voting procedure to Ms Cockell, Dudley's acting Electoral Services Officer.
597 electors were eligible to vote by post in the Belle Vale and Hasbury ward. Envelopes containing the postal ballot documents required by the regulations were issued for each such elector. On 23rd April 2003 the Royal Mail collected 535 envelopes for first class delivery to their addresses from Ms Cockell's office. The remaining 62 envelopes were collected by the Royal Mail two days later.
By Tuesday 29th April, Ms Cockell had been notified by 44 postal voters that they had not received a postal ballot paper. Under the Regulation 78 procedure replacement papers were prepared and collected by a Royal Mail manager that day. The manager was to deliver them personally to the addresses of the voters concerned. The following day (the day before the election) Ms Cockell was informed that a further 62 postal voters had not received ballot papers. Replacement papers were again prepared and delivered to the nearby Royal Mail offices by 3 pm that day. Two identified Royal Mail employees were to deliver these papers personally to the addresses concerned. Between 3 pm and the Regulation 78 deadline of 5 pm, a further 3 cases were notified. Replacement papers were delivered by Ms Cockell's staff to the addresses of two of these electors. The third elector's wife collected his replacement ballot paper.
Nevertheless, despite this effort, after extensive review of the postal voting in this election by the returning officer and the Prescribed Officer (the Senior Master of the Queen's Bench Division) and a questionnaire to the voters concerned, the special case says that:
"The parties accept that a number of postal ballot papers in excess of 52 were received on 1st May and a number of, or in excess of, 58 were received after 1st May."
No-one criticises the returning officer or his staff. The failure to deliver ballot papers in time resulted from some unidentified failure by the Royal Mail. Nevertheless, the question remains (as Cresswell J put it) whether "there was an omission on the part of the returning officer in that he failed to 'issue to' (LEPAR rule 19) in the sense of deliver to 58 (and a further 52) voters a postal ballot paper in time to enable them to cast their votes by post".
Of this, Cresswell J said:
"I do not accept the petitioner's submission that the effect of LEPAR rule 19, when read with Part V of the Regulations, is to impose on the returning officer strict liability if postal ballot papers are not delivered by the Royal Mail to voters in time to enable them to cast their vote by post. Regulation 76(2) sets out what a returning officer is required to do when he uses the Royal Mail...
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