The Hackney election petition

An Election Court last month dismissed a challenge to the validity of an election for a ward in the London Borough of Hackney. Sappho Dias sets out why.

As the Parliamentary elections loom in May this year, many authorities are turning to the organisational aspects of running the elections.

In any electoral process, the most important role is occupied by the Returning Officer.R.2(1) and Schedule 1D of the Local Authorities (Functions and Responsibilities) (England) Regulations 2000, SI No. 2853 provides that the functions relating to elections are not the responsibility of the local authority’s executive; they are the responsibility of the Returning Officer.

The only way of challenging the validity of either a parliamentary or local government election is through an election petition before an election court[1]. The Returning Officer is usually a Respondent if an election petition is filed, even where no specific complaint is levelled against the conduct of the Returning Officer[2].

The duties imposed on a Returning Officer are onerous and, in defending any election petition, it is important to illustrate the integrity of the challenged election by demonstrating with good evidence that all requisite and necessary steps were taken.

In the recent case of Williams v Patrick and Others[3], a challenge to an election outcome was brought by a losing candidate in the King’s Park Ward of the London Borough of Hackney. Briefly, the factual background to this case was that the Petitioner, who was an independent candidate, had lost the election to Labour Party candidates and named them as the First Respondents, whilst naming the Returning Officer as the Second Respondent[4].

The petition alleged six matters against the Returning Officers as breaches of election law (and that these breaches affected the result). The six allegations were:

1. not starting the count within 4 hours of the close of the poll;
2. storing the ballot boxes which was alleged not to be secure;
3. failing to provide the petitioner with an up-to-date and complete absent voters list;
4. failing to provide the petitioner with maps of the recent boundary changes in the ward;
5. giving instructions to absent voters which favoured the Labour Party; and
6. giving voters at some polling stations pencils to mark the ballot paper.

In the judgment which was handed down on 15 December 2014 at the RCJ, the Election Commissioner Richard Price OBE QC held that the Petition should be dismissed and in the course of his judgment stated “I reject all the allegations contained in the petition. I have found that the Returning Officer was not guilty of any act, omission or breach of duty in relation to the election. I am completely satisfied that the election was so conducted as to be substantially in accordance with the law as to elections”.  

So sonorous an exoneration of a Returning Officer requires a lesson to be drawn from the case. It is therefore instructive to scrutinise the facts of this case to see precisely what it was that the Returning Officer did which led the Election Court to conclude that nothing that he had done could be subjected to criticism.

The first thing of note is that the evidence which was filed by the Returning Officer and those supporting his case was fulsome and detailed. It was possible to do this as the team at Hackney had kept and preserved a scrupulous record of all the planning and action which had been taken. The first (and most valuable) lesson to be drawn therefore is that of preserving an audit trail which should contain sufficient information should any complaint be made.

As to the specific complaints, the first matter of complaint was that the count should have started with four hours of the poll closing. This was an argument of law made by the Petitioner (and supported by the First Respondents) based on the supposition the Parliamentary Election Rules[5] applied to these elections, even though the election concerned was a local election (as the 2006 Principal Areas Rules which applies to local elections was silent about this issue).

Having reviewed the relevant rules, the Commissioner stated: “In my judgment, the Returning Officer is correct that the argument of the petitioner and the first respondents that rule 45(3A) [of the Parliamentary Election Rules] applies to local government election counts is simply wrong”.  

The remainder of the allegations against the Returning Officer were dealt with by the detailed evidence filed by him and on his behalf. The evidence was that in anticipation of the election which was to take place in May 2014, the Returning Officer established a Project Team in September 2013. At the same time, the personnel involved were enhanced with the addition of six Deputy Returning Officers. The second lesson to be drawn is the obvious one that the team need the correct number of personnel who are experienced in what they do.

The Project Team produced a project plan and a risk register. The local authority also engaged with the Electoral Commission which was actively involved in reviewing alongside the Project Team, both the project plan and the risk register. Minutes were kept of all reviews and these minutes were exhibited to statements which constituted the evidence in the case. Thus, the third lesson is of planning, proper management and engaging with the Electoral Commission from the outset.

As regards the petitioner’s second allegation that the ballot boxes were not secure, because of the meticulous planning and record which Hackney had kept, it was possible for that authority to file evidence of the close of polling, the sealing of the ballot boxes, the transportation of the sealed boxes to the count centre, the security around the count centre and the breaking of the seals the next morning. Commissioner Price found: “However, even if there were a rebuttable presumption of a breach of security, the evidence here clearly shows that there was no such breach”.

Similarly with the Petitioner’s third, fourth and fifth allegations that he had not been given a complete absent voters list, that he had not been provided with recent boundary changes and that instructions had been to absent voters with favoured Labour Party candidates, the Commissioner made findings of fact that there was no evidential basis for these allegations. As regards the final complaint that pencils had been provided in some polling stations, Commissioner Price observed: “This is an absurd allegation”.    

The final lesson to be drawn from the Hackney case that in cases like this where the Petitioner fails to file evidence and fails to act on directions given by the court, it may be possible to demonstrate that the Petitioner has either been vexatious and frivolous and to obtain an order for costs which cover not just the normal costs of litigation but the set up costs of the electoral court itself.

Sappho Dias is a barrister at 4-5 Gray’s Inn Square.