“(a) MALADMINISTRATION AT BEDFORD BOROUGH COUNCIL (b) On the insistence of Bedford Liberal Democratic Party, Bedford Borough Council applied to the County Court seeking an order that would allow them to conduct a recount of all the votes cast in the Election of the Councillor in the Brickhill Ward. … (h) By the Council taking the route of ignoring the advice of Stewart Lister the Council have now run up large legal bills. If they continue to ignore Stewart Lister and do not apply for relief for their error the Council and not any political party will be liable for all incurred costs. If an election petition is launched the taxpayers of Bedford will have to pay a minimum of£500,000 . … (t) The Judge advised that candidates should lodge an election petition and submit evidence at a later date. Mrs Green reminded the Judge that once an election petition has been lodged it cannot be stopped and it would cost both her and the Council hundreds of thousands of pounds. (u) Stewart Lister said after the hearing, “I am appalled that Sean Field has used council tax money to take a case to the court on behalf of a political party. I am horrified that thousands of pounds of taxpayer’s money is being spent employing solicitors and barristers who are incompetent. I will be contacting the District Auditor to report these events as the Council has wasted money going to court using the wrong jurisdiction and failing to follow the correct legal procedures. Why do the people of this borough employ these people who have demonstrated gross maladministration.” (ii) The newspaper article of28 May 2000 Letters of protest about the terms of the press release were sent on behalf of Mr Field and by Mr Gough to Mr Lister and to Mr Lowe, the editor of BoS. Nevertheless three days later, on28 May 2000 , the article complained of was published in the newspaper. It was headed “Judge passes on recount decision”
“Mr Lister said later: “I am appalled that council tax money has been used to take a case to Court.” “I am horrified that thousands of pounds of Council tax payers’ money is being spent employing solicitors and barristers.”
“We are very disappointed.” “We needed to use the recount as evidence for an election petition but have now missed Friday’s deadline.” “The Council is clearly very weak on election law and I want to know what training staff have actually had. The Council made a catalogue of mistakes and has a duty to put them right.”
“A local government election, unless questioned by an election petition within the period fixed by law for those proceedings, shall be deemed to have been to all intents a good and valid election.”
“The returning officer shall not count the votes given on any ballot papers until - (a) in the case of postal ballot papers, they have been mixed with the ballot papers from at least one ballot box and, (b) in the case of ballot papers from a ballot box, they have been mixed with the ballot papers from at least one other ballot box.”
“If, after the declaration of the result of an election, ballot papers are found which have not been counted, it is submitted that the returning officer should give notice to the agents of the candidates of his intention to count them and then to (sic) count those ballot papers and dispose of them in the manner in which ballot papers at the election in question would be disposed of …. He should inform the candidates or their agents of the fact that the ballot papers have been found and of the total number of votes given for each candidate so as to enable an election petition to be brought if any of those candidates so wishes.”
“A member of the Communist party who lives within the polling district … had verbally promised his vote for the Labour party candidate and if the votes were counted and it was seen that there were no votes cast for the Communist party candidate, then the voting intentions of the said constituent would become apparent and the said voter thereby severely embarrassed.”
“On the basis of the very little legal authority available and also as a matter of common sense, I believed that the ballot box should have been opened and its contents verified and counted. If the result of the Election had not been affected by reason of the additional votes then in my view Mr Westley could properly have been treated as having been validly elected. If the extra votes cast in favour of Mr Macmanomy would have been sufficient to create an overall majority of votes in his favour then he would have been in a position to have made an election petition against which in my opinion there could have been no defence. I sincerely hope, in the interests of economy and speed, that a procedure involving the taking of steps such as these will be ordered by this Honourable Court.”
“In the present case there can be no doubt that, following the declaration of the result, there were serious breaches of rules 45 and 46, … in particular the failure to seal and keep sealed and separately packaged the ballot papers and rejected papers and then the carrying out of the unofficial re-count. However, … we reach the conclusion that the chance of the secrecy of the ballot having been invaded or of the ballot papers having been tampered with are so small as to be minimal. We considered it virtually inconceivable that while those ballot papers were in the custody of [the deputy returning officer] and of the local authority employees anybody could have read and recorded the numbers marked on the papers or could have altered or added to the voting marks made by the voters. That being our conclusion on the facts, the submission that these breaches of the Rules resulted in the election not being so conducted as to be substantially in accordance with the law as to elections must be rejected.”
“In a local government election mistakes in the counting of votes in two wards were admitted by the returning officer. These mistakes could have affected the results of the election and the balance of power in the council. In these circumstances an election petition might well have been brought. Permission to inspect the ballot papers in order to recount the votes was granted by the county court (Hackney, The Times,18 May 1968 ).”
“Strong grounds for making an order must be shown, and the court must be satisfied that the application for it is made in good faith, and will rarely, if ever, grant it unless a petition or prosecution has been instituted or is about to be instituted and it is shown to be really required.”
“In [Darwen] the court refused to allow an inspection of the ballot papers in the absence of a petition, and doubted whether it had jurisdiction to make such an order unless on a petition; but cf McWhirter -v- Platten … where an order was made before the institution of a prosecution on the ground that the offenders and the nature of offences could not be ascertained until the ballot papers had been inspected.”
“[I]t would be the exercise of a great power in the Court, without any petition being presented, to make an order that the counterfoils or ballot papers should be opened and inspected. Circumstances might be imagined in which it might be reasonable for the Court to make such an order. But the application in this case was clearly premature … It was in the nature of a ‘fishing application’. The Legislature, though determined that there should be the fullest opportunity, within certain limits, of questioning elections, had thought it right that they should not be questioned without some guarantee of the bona fides of the applicant as regarded a real belief that there was a ground for upsetting the election and the mode in which the Legislature had provided the safeguard was by requiring that a certain deposit should be made to cover the expenses necessarily incurred by anyone called upon to defend his seat.”
“The enactment applied where the inspection was ‘for the purpose of a petition’ - that is, where a petition was presented or contemplated where it was for the purpose of such a petition.”
“… entertained very grave doubt whether the Court had any jurisdiction in the matter at present. He was inclined to think that they had no power to allow inspection of the ballot papers except in cases where they were exercising jurisdiction in the matter of an election petition - complaining of an undue election and return. Field J at that point added that “he had great doubt whether the Court had jurisdiction in the absence of a petition. But it is not necessary to decide that point now.”
“119. In my judgment rule 47(1)(b), properly construed, does require the existence of a petition before an application under the rule can be made. The doubts expressed in the Darwen case as to the jurisdiction to make an order in the absence of a petition were in my opinion well-founded. The distinction drawn by the draftsman between a prosecution and a petition must have been deliberate. The distinction makes sense because as a matter of policy fishing applications by disappointed candidates are to be discouraged, whereas it is desirable for the police to have the power to obtain evidence of electoral crime.”
“If an election petition is launched the taxpayers of Bedford will have to pay a minimum of£500,000 .”
“The purpose of rule 47 is to obtain the authority of the court to inspect ballot papers which would otherwise be kept in conditions of security and secrecy. The jurisdiction may … be invoked by either a police officer or a petitioner (or, if my construction is wrong a prospective petitioner). A returning officer cannot by virtue of his office make an application for the purpose of either a prosecution or a petition. He (or the proper officer of the council) should invariably be joined as the respondent to an application under rule 47; he cannot be the applicant.”
“I have to decide whether, in the circumstances of cases such as the present one, the candidates (or the other candidates, if the election petitioner is a candidate) should be joined as respondents to the application or whether mere notification of the application is enough. There is no regulation which says that this is necessary. I do not think it is possible to lay down any hard and fast rule. I can well imagine that in many cases there will be candidates who do not, for one reason or another, need to be joined or served or even, perhaps, notified. It appears to me that as a matter of principle any candidate whose position is likely to be affected by the application ought to be made a respondent and served with notice of the application. The circumstances of the particular case will dictate which candidates come into this category.”
“Nothing could be more obvious than that a party whose very status as a democratic representative is sought to be impugned by litigation before the court should have the right to be heard. … We do not understand how it can be suggested that there is no affront to justice in the fact … that as things stand at present the successful candidates have no right to be heard on this petition. … [I]n principle we regard it as wholly elementary that successful candidates whose election is impugned by a petition such as this should be made respondents.”
“I think that [the defendants’ counsel] is right when he says that the real basis of my decision on the plea of justification, what (to use his words) drove that decision, were my conclusions of fact on the manner in which the relevant claimants set about handling the application. Those are findings with which I would anticipate it would be unlikely that the Court of Appeal would think it right to interfere.”