R (Begum (Sultana)) v Tower Hamlets London LBC
|England & Wales
|MR JUSTICE KEITH:,MR JUSTICE KEITH
|27 April 2006
| EWHC 1074 (Admin)
|Queen's Bench Division (Administrative Court)
|27 April 2006
 EWHC 1074 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Mr Justice Keith
The Queen On The Application Of
MR HUGH SOUTHEY (instructed by Birnberg Peirce and Partners) appeared on behalf of THE CLAIMANTS
MR TIM STRAKER Q.C. and MR ROBERT WALTON (instructed by the Legal Services Department, London Borough of Tower Hamlets) appeared on behalf of THE DEFENDANT
The three claimants —Sultana Begum, Mohammed Hassan and Fayaz Ali —were nominated as candidates in the local government elections due to take place a week today. The returning officer decided that their nomination papers were invalid. In this claim for judicial review, the claimants seek orders countermanding the election in which they would otherwise have been candidates, and requiring a fresh election to be held in which they will be allowed to stand as candidates provided that they lodge valid nomination papers. On 7 April, Goldring J directed that the application for permission to proceed with this claim for judicial review should be listed for hearing as a matter of urgency, with the substantive hearing to follow immediately if permission to proceed with the claim was granted. Unless otherwise stated, all references in this judgment to rules are references to the Local Elections (Principal Areas) Rules 1986 ( S.I. 2214/1986) ("the Rules") which govern this election, and all references in this judgment to sections of a statute are references to sections of the Representation of the People Act 1983.
The election in which the claimants wish to stand is the election in the St. Katherine and Wapping ward of the London Borough of Tower Hamlets. The ward is one of 17 wards in the borough, and each ward consists of three councillors. It is, of course, only the election in the St. Katherine and Wapping ward which the claimants wish to stop until they can stand in it. Elections in the other 16 wards can, of course, proceed. The claimants are all members of the Respect Party. They nominated a party activist, Shaun Doherty, to lodge their nomination papers on their behalf, and although Mr Doherty was technically not the claimants' agent, it is convenient to refer to him as if he was.
Rule 5(1) requires a candidate's nomination paper to be subscribed by 10 electors. Rule 5(3) requires the nomination paper to give the electoral number of each person subscribing it. On 7 March 2006, the deputy returning officer, Pat Parker, met Mr Doherty and the agents for a number of other candidates for election in the 17 wards. She gave them the new register of electors, which had been produced on 1 March 2006 and which replaced the previous one. She reminded them that the electoral numbers of subscribers to be referred to in nomination papers should be their new electoral numbers and not their old ones. That advice reflected rule 5(7), which in effect provides that the electoral numbers required to be given in nomination papers are the subscribers' electoral numbers in the register to be used at the election.
The deadline for the delivery of nomination papers at the Council's offices was 12:00 noon on 3 April 2006. There is a dispute over when the claimants' nomination papers were actually delivered. Mr Doherty says that he delivered them on 29 March. The returning officer says that they were delivered on 30 March, but either way they were delivered well before the deadline. In the light of rule 7(1), therefore, the claimants were "deemed to stand nominated" unless and until the returning officer decided that their nomination papers were invalid.
It is not disputed that the nomination papers of the three claimants gave the wrong electoral numbers for one or more of the claimants' subscribers. They gave the subscribers' electoral numbers in the old register and not the new one. One of the only two grounds on which a returning officer is entitled by rule 7(2) to treat a nomination paper as invalid is if the nomination paper "is not subscribed as… required [by law]". Some time after noon on 3 April, the returning officer decided that the claimants' nomination papers had not been subscribed as required by law, because they gave the wrong electoral numbers for one or more of the subscribers, and that the nomination papers were invalid for that reason. Although it once was, it is not now disputed that the nomination papers were indeed invalid for that reason.
The intervening events
On what basis, then, is it said that the election due to take place on 4 May should be countermanded, and a new election should take place with the claimants being allowed to stand in it? The answer lies in what is said to have happened in the few days following the delivery of the nomination papers. The claimants' case is that Mr Doherty delivered the nomination papers of a number of the Respect Party's candidates at a pre-arranged meeting with Mrs Parker on Wednesday 29 March. They included the claimants' nomination papers.
Mrs Parker telephoned him that evening. She told him that there were defects in a number of the nomination papers, and she went through those defects with him over the telephone, but she did not mention any defects in the claimants' nomination papers. The following day, Thursday 30 March, Mr Doherty returned to the Council's offices. He saw Mrs Parker again. He corrected the defects on some of the nomination papers there and then, but took the other nomination papers which needed to be corrected away with him. The day after that, Friday 31 March, he went back to the Council's offices. He had corrected some of the nomination papers which he had taken back, and they were delivered to Mrs Parker. He also delivered to her fresh nomination papers for some of the other candidates.
That evening, he was telephoned again by Mrs Parker. She told him that all the nomination papers were now in order, with the exception of one nomination paper for a candidate standing for election in the Limehouse ward. On the next working day, Monday 3 April, which was the last day for the delivery of nomination papers, Mr Doherty returned to the Council's offices at about 8:45 a.m. He saw Mrs Parker. He corrected the nomination papers for the candidate in the Limehouse ward, and delivered to her nomination papers for two other candidates. She told him that all the nomination papers he had delivered had been satisfactorily completed.
For her part, Mrs Parker recalls receiving a number of completed nomination papers from Mr Doherty on 29 March, but she did does not believe that they included the claimants' nomination papers. The basis for that belief is that she photocopied all the nomination papers delivered to her by Mr Doherty on 29 March. There were 39 in all. She then examined them to see whether they had been properly completed. She discovered that 21 of them had not been. She noted the defects on the photocopies she had made. She gave Mr Doherty the photocopies of the defective nomination papers when she saw him the next day so that he could see the defects for himself. Since the claimants' nomination papers were in fact defective, but since they had not been photocopied and the defects had not been recorded on them, she believes that they could not have been among the defective batch of nomination papers delivered to her on 29 March. She believes that they must have been delivered to her on 30 March, that they were not examined then, but that they were filed with the nomination papers delivered the previous day which had not contained any defects. So when she spoke to Mr Doherty on the evening of 31 March, she did not know then that the claimants' nomination papers were defective. Nor did she know that when she spoke to Mr Doherty on the morning of 3 April.
As for what she actually said on the evening of 31 March and on the morning of 3 April, she says that she told Mr Doherty on the evening of 31 March that all the nomination papers of which she was aware were fine, with the exception of the nomination paper for the candidate in the Limehouse ward. What she said to him on the morning of 3 April, so far as she can recall, was that all the nomination papers which he had delivered to her were correct, but that was subject to the returning officer's "formal acceptance, which would be confirmed by letter after the close of nominations".
Those facts should be seen in the context of the task facing the returning officer and her deputy. The first date for the delivery of nomination papers was Friday 24 March. There was an unusually high number of nomination papers by the deadline, a total of 238 for the 17 wards. Of those, 128 were received between 9:00 a.m. on 31 March and the deadline on 3 April. Of those, 40 to 50 arrived on the morning of 3 April.
The duty of the returning officer to examine nomination papers
Two arguments are advanced on behalf of the claimants. The first is that the returning officer failed to comply with the Rules in circumstances which entitled the claimants to orders countermanding the election and requiring a fresh election to take place at which they can stand. The rule on which they rely is rule 7(3), which provides:
"Subject to paragraph (3A), as soon as practicable after each nomination paper has been delivered, the returning officer shall examine it and decide whether the candidate has been validly nominated."
That rule is to be contrasted with rule 7(3A), which provides:
"If in the...
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