Morgan v Simpson

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeTHE MASTER OF THE ROLLS,LORD JUSTICE STEPHENSON,LORD JUSTICE LAWTON
Judgment Date18 Jul 1974
Judgment citation (vLex)[1974] EWCA Civ J0718-1

[1974] EWCA Civ J0718-1

In The Supreme Court of Judicature

Court of Appeal

Appeal of Petitioners from judgment of the Divisional Court on 31st October 1973.

Before:

The Master of the Rolls (Lord Denning),

Lord Justice Stephenson and

Lord Justice Lawton.

In the Matter of the Representation of the People Acts and

In the Matter of a Local Government Election for Croydon North East? Greater London Council, held on 12th day of April 1973

Between
Gladys Emma Morgan
Dennis Willoughby Adams
Margery Labinia Cheek
Albert William Elliott and
Jacques Arnold Arnold
Petitioners Appellants
and
David Howard Simpson and Alan Blakemore
Respondents

Mr. EDWARD ADEANE (instructed by Messrs. Penningtons and Lewis & Lewis) appeared on behalf of the Appellant Petitioners.

Mr. ASHLEY BRAMALL (instructed by Messrs. Lewis Silkin & Partners) appeared on behalf of Mr. Simpson, Respondent.

Mr J. BURRELI (instructed by Messrs. Sharpe Pritchard & Co.) appeared on behalf of Mr. Blakemore, Respondent.

Mr. ANTHONY SCRIVENER appeared on behalf of the Director of Public Prosecutions but was excised from attendance immediately the appeal was called on.

THE MASTER OF THE ROLLS
1

On Thursday, 12th April, 1973, the electors of Croydon North- East went to the polls. It was for the election of a Councillor on the Greater London Couic. There were three candidates. The result was so close that there were several re-counts. On the next day, Friday, 13th April, 1973 the Returning- Officer announced the result:

"Morgan The Conservative Candidate 10,329

Simpson The Labour Party Candidate 10,340

Steggles Liberal 2,940

Rejected ballot papers

Want of official mark 44

Voting for more candidates than voter entitled to vote for 11

Writing or mark by which the voter could be identified 10

Unmarked or void for uncertainty 17

82

2

The name of the candidate elected is SIMPSON".

3

The scrutineers examined the rejected ballot papers. They went through the 44 which had been rejected for "want of an official mark." They found that these 44 electors voted in this way:-

For Morgan 31

For Simpson 13

4

So if those 44 ballot papers had been counted and not rejected, Miss Morgan would have won. She would have receive 10,329 plus 31, that is, 10,360. Mr. Simpson would have received 10,340 plus 13, that is, 10,353. So Miss Morgan would have been elected by a majority of seven over Mr. Simpson.

5

In consequence, the solicitors for those concerned agreed to state a case for the opinion of the High Court. The rejectedballot papers were inspected. It was found that mistakes had been made by the officers at the polling stations. It was their duty to stamp an official mark on each ballot paper as it was issued to a voter. But, by mistake, in the hurry, they failed on some occasions to do it. It happened at 18 polling stations. At most of them only one, two or three ballot papers were issued unmarked. But at each of two polling staions four were issued unmarked. And at one polling station, seven were issued unmarked. In all those 44 cases, the officers issued a ballot paper to a voter without stamping it. The voter went into the compartment. He placed a cross on it opposite the name of his choice. Then he put the ballot paper into the ballot box, as any ordinary voter does.

6

There were directions for voters. They were exhibited on a printed notice at each of the polling stations. But rarely does anyone read them. I do not suppose that any of these 44 voters read them. These are three of the directions:-

"1. The voter should see that the ballot peper, before it is handed to him, is stamped with the official mark.

2. The voter will go into one of the compartments and, with the pencil provided In the compartment, place a cross on the right-hand side of the ballot paper, opposition the name of the candidate for whom he votes, thus 'X'.

3. The voter will then fold up the ballot paper so as to show the official mark on the back, and leaving the compartment will, without showing the front to any person, show the official mark on the back to the presiding officer, and then, in the presence of the presiding officer, put the paper into the ballot box, and forthwith leave the polling station.'

7

Now those directions are more observed in the breach than in the letter. Rarely does a voter look to see that the ballot paper is stamped with the official mark. At least I never do. Rarely does a voter go back to the presiding officer and show him the official mark on the back. At least I never do. Often enough the polling station is not suited for it. It is so furnished that the natural thing is for the voter to go straight from the compartment to the ballot box and put his paper in it without showing it to the presiding officer.

8

So I should think that the 44 mistakes were due largely to the fault of the officers in the polling stations and very little to the fault of the voters. If their votes are not to count, they are disfranchised without any real blame attaching to them.

9

Such being the facts, I turn to the law. It depends on section 37 of the Representation of the People Act, 1949, It says:-

"No local government 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 the local election rules if it appears to the tribunal having cognizance of the question that the election was so conducted as to be substantially in accordance with the law as to elections and that the act or omission did not affect its result."

10

That section is expressed in the negative. It says when an election is not to be declared invalid. The question of law in this case is whether it should be transformed into the positive so as to show when an election is to be declared invalid. So that it would run:-

"A local government 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 the local election rules) if itappears to the tribunal having cognisance of the question that the election was not so conducted as to be substantially in accordance with the law as to elections or that the act or omission did affect the result."

11

I think that the section should be transformed so as to read positively in the way I have stated. I have come to this conclusion from the history of the law as to elections and the cases under the statutes to which I now turn underlining the important points.

12

The common law method of election was by show of hands. But if a poll was demanded, the election was by poll - see Anthony v. Seger (1789) 1 Hag. Con, 8 at page 13. A poll was taken in this way:- The returning officer or his clerk had a book in which he kept a record of the votes cast. Each voter went up to the clerk, gave his name and stated his qualification. The clerk wrote down his name. The voter stated the candidate for whom he voted. The poll clerk recorded his vote. (Sometimes the voter went up with a card on which the particulars were written: and these were written down by the poll clerk.) After the poll was concluded, the votes were counted and the result announced. But the poll book was open to inspection. Then, if required, there was a scrutiny at which a vote could be challenged, for example, by showing a voter was not qualified to vote. In that event his vote was not counted. So the result was decided according to the number of votes cast which were valid votes. Sometimes the returning officer or his clerk might refuse to record some of the votes without good cause. If it were found that the rejected votes would have given a different result, the election would be vitiated - sen Faulkoner v. Elger (1825) 4 B. & C. 449. If they would not have affected the result, the election was good, but the rejected voter could have an action for damages against the returning officer - see Ashby v. White (1703) 2 Ld. Raymond 938.

13

Such as the method of election at common law. It was open. Not by secret ballot. Being open, it was disgraced by abuses of every kind, especially at Parliamentary elections. Bribery, corruption, treating, personation, were rampant. These were not investigated by the Courts of Law. They were the subject of petition to Parliament itself. Often members were unseated and elections declared invalid. If you should wish to know what happened, you will find it in Power: Rodwell & Drew Reports of Controverted Elections, and in Charles Dickens' account of the election at Eatonsville.

14

In 1868 the Judges were brought in for the first time. By the Parliamentary Elections Act, 1868, a petition to unseat a member was to be tried by a Judge of one of the Superior Courts. He was to make a report to the Speaker: and his report had the same effect as that of an Election Committee previously. After that Act, the Judges tried many election petitions. Nearly all of them were for bribery, corruption and treating. Most of them will be found in O'Malley & Hardcastle's reports. There is one relevant to our present case. It arose out of an election at Taunton in 1868. It shows that, when a petition alleged that the unsuccessful candidate had the majority of legal votes, the manner of ascertaining the truth was by a scrutiny of the votes. If, on the scrutiny, it was found that he had obtained the majority of legal votes, the sitting member was unseated and the defeated candidate was returned, see Leigh and Le Marchant (Second edition) page 75, where this proposition is better stated than in the report of Waygood v. James (1869) L.R.4. CP 361.

15

Then in 1872 Parliament passed the Ballot Act 1872. It revolutionised the system of voting at elections. It provided for voting by secret ballot. It prescribed rules and set out forms ofballot papers. It contained a provision as to...

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