The Representation of the People Act 1983
| Jurisdiction | England & Wales |
| Judge | Mr Justice Tugendhat |
| Judgment Date | 26 November 2008 |
| Neutral Citation | [2008] EWHC 2886 (QB) |
| Date | 26 November 2008 |
| Court | Queen's Bench Division |
| Docket Number | Case No: M330/08 |
[2008] EWHC 2886 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
The Hon Mr Justice Tugendhat and the Hon Mr Justice Christopher Clarke
Case No: M330/08
In The Matter Of: The Representation Of The People Act 1983
And In The Matter Of A Local Government Election For The Ward Of Manningham In The Metropolitan Borough Of Bradford, In The County Of Yorkshire.
Mr Craig Montgomery (of Steel & Shamash) for the First Respondent
Mr Timothy Straker QC (instructed by Sharpe Pritchard) for the Second Respondent
The Petitioner did not appear and was not represented
Hearing date: 31st October 2008
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HON MR JUSTICE TUGENDHAT AND MR JUSTICE CHRISTOPHER CLARK
MR JUSTICE TUGENDHAT AND MR JUSTICE CHRISTOPHER CLARK
Approved Judgment :
Mr Justice Tugendhat:
This is the judgment of the Court.
On 1 May 2008 a local government election was held for the Manningham Ward of Bradford Metropolitan District Council. The Petitioner, Mr Scarth, was a candidate. Mohammed Amin was declared to be duly elected. On 19 May Mr Scarth issued a petition asking the court to declare that Mr Amin was not duly elected and that the election was void. On 29 July 2008 the Second Defendant, the Returning Officer, gave notice of an application for an order that the Petition be struck out or dismissed, on the ground that the requirements of the Election Petition Rules 1960 SI 1960 No 543 (“the 1960 Rules”) were not complied with. This application is now before us sitting as a Divisional Court under rule 13 of the 1960 Rules.
The Returning Officer for the election also holds the permanent office of Chief Executive of the Council. Mr Straker QC appeared before us representing the Returning Officer. Mr Montgomery appeared for the First Responent, Mr Amin. Mr Amin had issued no application notice, but Mr Montgomery supported the application by the Returning Officer.
The Petitioner is a retired person, living in Bradford on modest means. He did not appear, but we have read e-mails that he has written to the court.
Also before us are two applications made by the Petitioner, the first being by Notice dated 29 September 2008 for permission to amend the Petition by removing the Returning Officer as a defendant. The second, made by Notice dated 20 October 2008, is that his application to amend be heard by this Court before the Returning Officer's application to strike out the Petition.
There are two rules of the 1960 Rules, rules 4 and 6, which Mr Straker submits have not been complied with by the Petitioner, and he submits that there are two separate breaches of rule 6, making three breaches in all.
The Petition so far as material reads:
“1. That the Petitioner, Norman Scarth is a person who was a candidate at the above election.
2. That the election was held on the 1 st day of May 2008 when Norman Scarth was a candidate, & on the 2 nd day of May 2008, Mohammed Amin was declared to be duly elected.
3. That Norman Scarth was unlawfully arrested & unlawfully imprisoned by West Yorkshire Police, to prevent him campaigning for votes. This was on orders from very high up, & it was specifically stated that he was to be detained ' until voting had ended'. He was then released without charge. (It is notable that in his election material, Norman Scarth had been critical of West Yorkshire Police). Furthermore, at the vote count on 2 nd May 2008, Norman Scarth (as a courtesy, & hoping she would be concerned) handed a draft of his intended Petition to the Deputy Returning Officer, following which he was seriously intimidated by the police, & threatened with further arrest, though he was behaving with complete propriety. He was specifically prevented from going near the place where 'spoilt' voting papers were being examined by other candidates.” (emphasis original).
The chronology of relevant events is as follows:
i) 1 May: the election
ii) 14 May is the date of a letter addressed by Mr Scarth to the Elections Petitions Office. In the letter he refers to a conversation the previous day with the court, and to the receipt by e-mail from the court of forms on 14 May. The letter states that there are enclosed copies of the Petition and of an Application Notice to the Senior Master to fix the amount of security for costs. Also said to be enclosed are three cheques, one of £360 for the Petition, one of £40 for the Application for security for costs and one of £2,500. As to this cheque the letter states:
“In the event that the Master decides a lesser sum is appropriate, then no doubt you will act accordingly”.
iii) 16 May is the date of the court stamp on the letter of 14 May. The stamp is that of the Action Department and records the receipt of two amounts of £360 and £40. On the same day the Fees Remission Department of HMCS issued a Remission Certificate in respect of the court fee of £360.
iv) 19 May is the date on which the Petition was signed.
v) 20 May:
a) The Petition was stamped by the Senior Master's Department
b) The Senior Master ordered security for costs in the sum of £2,500 in the following terms:
“IT IS ORDERED that the amount of security to be given by the Petitioner as required by section 136(1) of the Representation of the People Act 1983 be fixed at £2,500 to be given by payment into the Court by 4pm Friday 23 rd May 2008”
c) The Petitioner dated a document addressed and sent to the Respondents and to the Director Of Public Prosecutions giving notice to them that:
“a Petition to have the election in Manningham Ward declared void has been lodged with the Election Petitions Office … and payment of £2,500 as security for costs has been made”.
d) Mr Mather, Head of the Council's Democratic Services, received a telephone call from Ms Sobers, an official of the Council's Electoral Services Unit, to the effect that an election Petition had been handed to her unit's Reception desk by Mr Scarth. The Petition was brought to Mr Mather, and he telephoned to the staff of the Returning Officer to ask them to inform the Returning Officer that an election Petition had been received. Mr Mather states that he cannot recall if he provided to the Returning Officer a paper copy or an e-mail copy of the Petition, there being no record that he did.
e) According to a witness statement of Mr Amin, which we accept, the petitioner called at his home in Bradford when Mr Amin was not there. He left an envelope with Mr Amin's son, and Mr Amin found that it contained the Petition when he returned home later that day.
vi) 22 May 2008 the Court Funds Office issued a Receipt timed at 16:12 for the sum of £2,500 in respect of the Petition (identified as “ Scarth v Amin”). The receipt bore the notation “CH” which we take to mean that the payment was by cheque. The receipt stated: “The above amount has been lodged into court …”
vii) 2 June 2008: the office of the Chief Executive of the Council received a letter dated 28 May from Her Majesty's Court Service enclosing the Election Petition presented by Mr Scarth. The letter was logged into the office electronic database and passed to the Returning Officer for his attention on the day of receipt. Ms Cheesman Riley is an official of this office, and describes these events from her search of the records, not from her personal recollection.
The Petition referred to in the letter of 14 May is not the document that is referred to as dated 19 May and stamped 20 May. The explanation for this is given in each of two statements by the Petitioner dated 29 September 2008 made in support of his application to amend the Petition by removing the Returning Officer. He says that in his original Petition he named as Respondent only the successful candidate, Mr Amin, but that in a telephone conversation a court official told him that he should include the Returning Officer as second Respondent, and he revised his Petition accordingly.
THE FORM OF THE PETITION
Rule 4 of the 1960 rules provides (as now amended):
“4 (1) A petition shall be in the form set out in the Schedule to these Rules or a form to the like effect with such variations as the circumstances may require, and shall state—
(a) in which of the capacities mentioned in section 121(1) or section 128(1) of the Act the petitioner or each of the petitioners presents the petition;
(b) the date and result of the election to which the petition relates, showing in the case of a parliamentary election the date on which the return was made to the Clerk of he Crown of the member declared to have been elected;
(c) in the case of a petition mentioned in subsection ( 2) or (3) of section 122 or subsection (2), ( 3) or (4) of section 129 of the Act, the date from which the time for the presentation of the petition is to be calculated; and
(d) the grounds on which relief is sought, setting out with sufficient particularity the facts relied on but not the evidence by which they are to be proved;
and shall conclude with a prayer setting out particulars of the relief claimed.
(2) The petition shall be presented by filing it and at the same time leaving three copies at the election petitions office.”
Mr Straker submits that the Petition is defective because rule 4(1)(b) of the 1960 Rules requires that a petition include an identification of the successful candidate together with votes given for each candidate. In this case the Petition merely says that the Petitioner was a candidate and that Mr Amin was declared elected. Accordingly, he submits, it fails to state the result of the election...
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