R v Rowe, ex parte Mainwaring

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE FARQUHARSON,LORD JUSTICE NOLAN,LORD JUSTICE PARKER
Judgment Date24 March 1992
Judgment citation (vLex)[1992] EWCA Civ J0324-1
Docket Number92/0277

[1992] EWCA Civ J0324-1

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

(DIVISIONAL COURT)

(Lord Justice Neill)

Royal Courts of Justice

Before:

Lord Justice Parker

Lord Justice Farquharson

and

Lord Justice Nolan

92/0277

The Queen
and
Mr. Commissioner Rowe Q.C.
Ex Parte Julia Mainwaring and Others

and

The Queen
and
Mr. Commissioner Rowe QC
Ex parte Belle Harris

MR. J. GOUDIE QC and MR. G. MILLAR (instructed by Messrs Deighton Guedalla) appeared on behalf of the Respondents (Applicants).

THE APPLICANT BELLE HARRIS appeared in person.

MR. M. BURTON QC and MR. R. ANELAY (instructed by Messrs Sebastian Coleman & Co.) appeared on behalf of the Appellants (Respondents).

MR. R. TOLSON (instructed by The Crown Prosecution Service) appeared on behalf of The Director of Public Prosecutions.

LORD JUSTICE FARQUHARSON
1

In October and November 1990 Mr. Commissioner Rowe Q.C. heard three election petitions arising from the local government elections held in the London Borough of Tower Hamlets on 3rd May 1990. The petitions related severally to three wards in the Borough, namely, St. Peters, St. Mary's and Bow. The petitioners (now the respondents) were the candidates who stood for election in those wards but were not successful. The respondents to the petitions were the Liberal Democrats who were elected for the three wards and the Director of Public Prosecutions. On 21st December 1990 the learned Commissioner dismissed all three petitions.

2

The petitioners then sought judicial review of the learned Commissioner's decision. The application was heard by the Divisional Court on the 8th, 9th and 10th October 1991 and on 20th December 1991 the court granted an order of certiorari quashing the Commissioner's decision and remitting the petitions to him for further consideration in the light of the court's judgments. The respondents now appeal against the decision of the Divisional Court.

3

During the months of March and April 1990, a number of Liberal/Democrat activists who were preparing for the May elections in the Borough conceived the idea of preparing and distributing a mock Labour leaflet among potential Labour supporters. The document was to contain a number of factually accurate statements of policy, in the sense that those statements had been made by various Labour spokesmen in the past. The statements selected for reproduction can fairly be described as politically tendentious and advocated policies which may not have been acceptable to Labour voters in the Borough. They were not all policies which were being relied upon by the Labour candidates in fighting the elections.

4

The plan came to fruition and two documents were prepared. The first was entitled "Labour News" and contained a number of statements of the kind described above. The second, which was printed on the reverse of the first, was to be distributed only in the Bow Ward, and purported to reflect the housing policy of the Labour party on two council estates in that ward. Again the text of this leaflet was not such as would necessarily command the support of Labour voters living in those wards.

5

It was conceded by the respondents that the document was intended to deceive those to whom it was directed. Some elements of subterfuge were involved in its preparation and distribution. As an election document it had to be indorsed with the name and address of the agent of the party publishing it. This requirement was complied with by those particulars being reproduced on the leaflets in minuscule print.

6

The distribution of the leaflets was arranged to take place only a day or two before the election so that there would be little time for the Labour party to publish another document disowning them. Distribution was to be carried out at night in the different wards by Liberal supporters who were not known in the ward concerned, to avoid any risk of the recipients being able to identify the source of the material.

7

The targets of the distribution were known Labour supporters or those who were anti-liberals. Copies of the leaflet referred to at the trial as P6 and P7 are attached to this judgment as a schedule thereto.

8

On 3rd May 1990 the petitioners (the respondents to this appeal but to whom I shall continue to refer as "the petitioners") sought and obtained an injunction restraining the respondents from further distribution of the leaflet. By then the distribution had taken place so the order was perhaps of little value to the petitioners.

9

Thereafter within the time prescribed by the rules the petitioners began proceedings praying for determinations that the respondents were not duly elected and that the elections were and are void. They contend that the respondents were guilty of undue influence within the meaning of section 115 of the Representation of the People Act 1983. An allegation that the respondents were guilty of making false statements contrary to section 106 of the same Act was not persisted in in the Divisional Court.

10

Section 115(2)(b) provides:

"A person shall be guilty of undue influence if by abduction duress or any fraudulent device…he impedes or prevents the free exercise of the franchise of an elector…or so compels induces or prevails upon an elector either to vote or to refrain from voting."

11

The first question which the learned Commissioner had to decide was whether the leaflet was a fraudulent device within the meaning of the subsection. He subjected the various statements in the leaflet to a careful scrutiny by comparing them with other statements made on behalf of the Labour party in the months preceding the election. His purpose in so doing was to determine whether the contents of the leaflets, properly construed were true. The learned Commissioner examined each statement contained in the leaflet in turn and concluded that all of them accurately recorded statements of policy made at different times by Labour spokesmen. In construing section 115(2)(b) on this point the learned Commissioner held that "a fraudulent device" meant a device which was false and which was made with intent to deceive knowing that it was false. He had no doubt that there was an intention to deceive by the manner of the distribution of the leaflet but because the leaflet was not false in its content, it did not fall foul of the subsection. He could not see how to broadcast the truth was a "fraudulent device".

12

It is now agreed on all sides that the Commissioner fell into error in coming to this conclusion. The leaflet does not cease to be fraudulent simply because its contents are true. It is plain that the leaflet was made up to give the appearance of a Labour publication, which it was not. The devious efforts to conceal its origin demonstrated that it was intended to deceive the various recipients to whom it was delivered. In short, the leaflet lied about its own genesis and in those circumstances it was in my judgment clearly fraudulent. As Neill L.J. said in the Divisional Court:

"I can see no answer to the allegation that those leaflets were fraudulent devices. They told a lie about their own provenance. They were not Labour leaflets or leaflets which the Labour party had selected or approved. They implied that they contained material which the Labour party wished to emphasize at that stage of the campaign. They were intended to deceive".

13

Counsel for the respondents has not sought to uphold the Commissioner's decision in this respect and it does not feature in the notice of appeal.

14

By the terms of section 115(2)(b) it is not enough to show that a person has created a fraudulent device. It must also be proved that by that fraudulent device he impeded or prevented the free exercise of the franchise by an elector, or that he acted as otherwise provided in the subsection. Before the learned Commissioner the petitioners called some sixteen witnesses whose evidence was directed to this issue. The learned Commissioner in his judgment analysed the evidence of each of these witnesses (pp. 36—40) and expressed his conclusions whether they were impeded or prevented (in the free exercise of the franchise) or in some cases "compelled induced or prevailed upon" in the following terms) at pages 151—2):

"They fall into distinct groups. Miss Ali and the Macready family are one group. I shall consider them separately.

The other electors can be described as follows. They know P6 and P7 was a Liberal leaflet, or they were told so fairly quickly, or they voted before seeing it and many of them, in both groups, had not known before getting P6 and P7 what Labour were saying and doing, and actually held views opposite to Labour's. In all these cases they were only a short time in thinking P6 and P7 were Labour leaflets. They soon found out otherwise.

In Miss Ali's case, she said she was influenced against Labour and so did not vote. I do not accept that. I have analysed her evidence earlier. I do not think she was affected.

In the case of each member of the Macready family, he or she said they were turned against Labour. But I simply am not satisfied of that. Each of them purported to be a strong Labour supporter, but their knowledge of Labour standpoint was wrong, as I find. I have set out my reasons earlier. And they were friends and neighbours of the Tenants Association candidate for whom they voted. I think they knew very little about Labour. They were happy to vote for their friends. Thus, to summarize, in all the cases apart from Ali and Macready, there was either no deception, or only a momentary or fleeting or short lived one, and so it was not a real deception or impediment. In the cases of Ali and Macready, I am not...

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