R Wilson v Dover District Council

JurisdictionEngland & Wales
JudgeMr Justice Cranston
Judgment Date21 April 2016
Neutral Citation[2016] EWHC 2556 (Admin)
CourtQueen's Bench Division (Administrative Court)
Docket NumberCO/1921/2016
Date21 April 2016

[2016] EWHC 2556 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Royal Courts of Justice

Strand

London WC2A 2LL

Before:

Mr Justice Cranston

CO/1921/2016

Between:
The Queen on the Application of Wilson
Claimant
and
Dover District Council
Defendant

Mr G Kirk (instructed by Direct Public Access) appeared on behalf of the Claimant

Mr T Straker QC and Ms S Dias (instructed by Dover District Council) appeared on behalf of the Defendant

Mr Justice Cranston
1

This application for permission to apply for judicial review concerns the impending elections on 5 May. The claimant, Fergus Wilson, challenges the decision of the defendant returning officer to exclude him from the list of candidates for the election that day for the post of Police and Crime Commissioner for Kent. The application for permission was lodged with the Administrative Court office on 12 April. Lang J considered the papers that same day and while refusing interim relief ordered this expedited rolled up hearing. The defendant returning officer is the chief executive of Dover District Council ("the Council"). He appointed the head of Democratic Services in the council, Louise Cooke, to be his deputy.

2

Background

3

The background is this. The claimant is a businessman and property investor based in a village outside Maidstone in Kent. He aspires to take part in the election as an independent candidate for the post of Police and Crime Commissioner for the area.

4

The notice of election was published on 21 March setting out the place and times at which nomination papers were to be delivered.

5

The following day, Ms Cooke conducted a briefing for prospective candidates and agents. The claimant and his wife attended. There was a presentation of slides explaining the process. One slide explained that the council and the returning officer were legally distinct. Another set out the timetable, including the closing date for nominations, 4.00 pm, Thursday, 7 April 2016. Among the slides explaining the nomination process was one headed "Candidate checklist". It stated in part:

i. "Subscribers – all 100 subscribers must sign and have their name and voting area (local authority) printed. Each must also have their elector number printed. Use your copy of the electoral register to make sure the elector number of all subscribers are accurate. The register will also indicate which voting area (local authority) the elector is from."

6

There was also a blank copy of the form which the 100 electors had to sign with their details. Another slide stated that candidates were entitled to a copy of the electoral register:

i. "Request must be in writing by the candidate."

7

Another said:

i. " Strongly recommend that you make an appointment to have documents checked at submission. This enables errors to be corrected and helps avoid invalid nominations. Submissions should not be left to the last minute! Nominations must not to be posted — submit in person."

8

Those attending the briefing, including the claimant, were given printed copies of the slides.

9

The claimant was also handed a publication of the Electoral Commission entitled "Police and Crime Commissioner in England and Wales. Guidance for candidates and agents. Part 2a of 6 – Standing as an independent candidate". This contained the following paragraphs:

i. "1.16. All nomination papers, including the nomination form, consent to nomination and the home address form, must be delivered by hand to the place specified on the notice of election by… It is your responsibility to ensure that your nomination papers are delivered in the correct manner and by the required deadlines.

ii. Who can deliver the nomination papers?

iii. 1.17. Only a limited number of people may deliver your nomination form and home address form. These are:

• yourself

• your election agent…

• the proposer or seconder shown on the nomination form…

i. How must nomination papers be submitted?

ii. 1.19. The nomination form, home address form and the consent to nomination must be submitted by hand and cannot be submitted by post, fax, email or other electronic means."

10

Later in the guidance, under the heading "Signature of subscribers" are these paragraphs:

i. "1.88. The elector number of each subscriber as it appears on the electoral register, including the distinctive numbers or letters of the polling district, must be entered on the nomination form, as well as the name of the local authority in which they are registered…

ii. 1.89. You will be entitled to a free copy of the electoral register for each local authority, or part of a local authority, that is within the police area in which you are standing. You should use the registers to ensure that your nomination form is properly subscribed."

11

The claimant prepared his nomination papers. As regards his 100 subscribers, he explains in his two witness statements that when he e-mailed some of the boroughs in Kent, they did not provide him with the full electoral roll or reply to his request for the electoral roll. Consequently, he was unable to enter the electoral numbers of his subscribers alongside their names, in the limited time he had available. In fact, in the subscribers forms which he did submit, there were no electoral numbers at all entered alongside any of the names. The claimant states that he considered it reasonable to suppose that the defendant returning officer would have the numbers and could fill them in against the background of the difficulty which arises these days with closed electoral rolls.

12

There was some discussion between the claimant and Ms Cooke via e-mail in the days running up to the deadline of 4.00 pm on 7 April 2016. Ms Cooke e-mailed the claimant on 2 March asking whether he could provide a telephone number so she could run through a few things with him. He did not provide a number, but asked instead whether he could pay the nomination fee by debit card. She e-mailed again on 4 April that they could take payment once the nomination papers had been checked, offering him an appointment the following day. He replied that he could not attend, but she could take the money from his card. The same day she repeated what she had said about payment and asked when his papers would be ready. He replied, "Wednesday".

13

On 5 April Ms Cooke offered him another appointment. Instead, he posted his papers, guaranteed delivery the next day, marked for the attention for the chief executive of the council. The nomination forms arrived in the chief executive's post at the council on 6 April, apparently just after 11.00am, and in the electoral office at 2.00 pm. The covering letter from the claimant said, amongst other things:

i. "Due to the unavailability of the electoral rolls, my people have had to collect the names and signatures without. We have therefore taken the addresses so that you are able to add the missing poll numbers, but it is an impossible task with the closed electoral roll."

14

After discussion with the chief executive, in other words the returning officer, Ms Cooke e-mailed the claimant at 2.31 pm that the nomination papers had to be hand delivered; that they had been sent to the council, not to the election office; and that none of the subscribers had their elector numbers included. Consequently, the claimant's papers were invalid. She added that he would receive a formal notification in due course.

15

During the course of the afternoon, there was e-mail exchange between Ms Cooke and the claimant. In one of his e-mails, the claimant stated that when he attended the meeting on 22 March Ms Cooke had been asked, not by himself, who had to deliver the papers. The answer was that parties did not have to attend themselves, but could send someone:

i. "I was the only candidate there, so your comments were directed towards agents."

16

At 7.22 pm the Defendant issued a formal notice declaring that the claimant's nomination was invalid. In his statement the claimant says that he did not see that e-mail until the following morning. By that time, he says, it was too late to do anything by the 4.00 pm deadline. As a result of the formal notice, the claimant's name was not included when the final list of six candidates for the post was published in the late afternoon of 7 April.

17

The claimant, as I have said, lodged an application for judicial review. In his claim form he seeks an order to quash the defendant's decision not to include his name on the list of candidates. He also seeks to have the election postponed if needed. He contends that there is no reason why the polling cards cannot be reprinted and campaigning undertaken during the next fortnight.

18

The legal framework

19

The statutory framework for elections to the office of Police and Crime Commissioner is contained in the Police and Crime Commissioner Elections Order 2012, 2012 SI No 1917, schedule 3. Rule 5 of that schedule is headed "Nomination of candidates". Rule 5(1) provides that each candidate must be nominated by a separate nomination paper:

i. "delivered to the police area returning officer at the place fixed for the purpose —

(a) by the candidate in person, or

(b) by the proposer or seconder of the candidate, or

(c) by the candidate's election agent…"

20

Rule 10(1) requires the returning officer to fix the place at which nomination papers are to be delivered to the returning officer and provides that he or she must attend there when they are delivered and to consider the making of objections to them. That rule reflects the law which dates back as far as the Ballot Act of 1872, which...

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