Knight v Nicholls & Anor [2004] EWCA Civ 68

Case No A2/2004/0048[2004] EWCA Civ 68
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
(MR JUSTICE CRESSWELL)
Venue Royal Courts of JusticeDate Thursday, 29th January 2004
Strand
London, WC2
B E F O R E:
LORD JUSTICE TUCKEY
LORD JUSTICE SEDLEY
LORD JUSTICE WALL
Between
MARTIN CHRISTOPHER KNIGHTAppellant-v-
Between
JILL CHERYL NICHOLLSRespondentANDREW SPARKE (RETURNING OFFICER)Respondent
(Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MR J HOWELL QC (instructed by Steel & Shamash) appeared for AppellantMR R PRICE AND MR J FINDLEY (instructed by (1) Penningtons and (2) Sharpe Pritchard) appeared for Respondents
J U D G M E N T

LORD JUSTICE TUCKEY:

Rule

[1]19 of the Local Elections (Principal Area) Rules 1986 (LEPAR) says that:
"The returning officer shall, in accordance with regulations made under the Representation of the People Act 1983 issue to those entitled to vote by post a postal ballot paper and a declaration of identity . . . together with such envelopes for their return . . . as may be prescribed by such regulations."
What is the extent of the obligation to "issue" the ballot paper "to" the voter? Does it require delivery to him?[2]These questions arise on appeal from the Divisional Court (Cresswell and Fulford JJ) who dismissed an election petition by Martin Knight and declared that the first respondent, his main opponent in the election, had been validly elected as the local councillor for the Belle Vale and Hasbury ward of Dudley on 1st May 2003. The petitioner received 1,132 and the first respondent 1,172 votes. The returning officer is the second respondent to the petition.[3]The Divisional Court gave special leave to appeal its decision because of the importance of the point raised in the context of postal voting. The point is important because similar rules apply to parliamentary elections (Schedule 1 to the 1983 Act -- Rule 24 is the same as LEPAR rule 19) and the right to vote by post has been considerably extended by recent legislation (the right is now available on demand; previously it was only available for cause).[4]The Divisional Court dealt with the petition as a special case in accordance with section 146 of the 1983 Act. The case helpfully summarises the relevant statutory provisions, the facts and the issues.[5]I start with the statutory framework. Section 48(1) of the 1983 Act says:
"No election shall be declared invalid by reason of any act or omission of the returning officer or any other person in breach of his official duty in connection with the election or otherwise of rules under section 36 . . . above if it appears to the tribunal having cognisance of the question that -- (a) the election was conducted so as to be substantially in accordance with the law as to elections; and (b) the act or omission did not effect its result."
[6]LEPAR were made under section 36 of the 1983 Act. Rule 19 comes in the section headed "Action to be taken before poll". Rule 18 requires the returning officer to publish notice of the poll with details of the day and hours fixed for it and the situation of each polling station. The remainder of this section and the following section of the rules are concerned with the setting up and conduct of the poll at polling stations. I shall have to refer to these provisions later but, as rule 19 contemplates, the procedures for postal voting are contained in regulations. The relevant regulations which came into force in February 2001 (at the same time LEPAR rule 19 in its present form), are now in Part V of the Representation of the People (England and Wales) Regulations 2001 under the heading "Issue and Receipt of Ballot Papers".[7]Regulations 65 to 78 are headed "Issue of Postal Ballot Papers". Regulation 67 says that "no person may be present at the proceedings on the issue of postal ballot papers other than the returning officer and his clerks". Regulation 71 prescribes the time when postal ballot papers are to be issued: not until after 5 pm on the eleventh day before the date of the poll, for those entitled to vote by post for an indefinite or definite period; as soon as practicable, in cases where there has been an application to vote by post at a particular election.[8]Regulation 72 is headed "Procedure on Issue of Postal Ballot Paper". It requires the paper to be stamped, its counterfoil marked with the elector's number, and a mark to be made in the absent voters list "to denote that a ballot paper has been issued to the elector" (Subparagraphs (1) to (3)). Subparagraph (7) says: "The address to which the postal ballot paper, the declaration of identity and the envelopes . . . are to be sent is -- (a) in the case of an elector the address shown in the absent voters list.[9]Regulation 76 which is headed "Delivery of Postal Ballot Papers" says:
"(1) For the purpose of delivering postal ballot papers, the returning officer may use -- (a) a universal postal service provider; (b) a commercial delivery firm; or. (c) clerks appointed under . . . the election rules."
The returning officer is required to obtain receipts for the numbers of envelopes delivered to any postal provider or delivery firm and postage is to be prepaid on such envelopes. Return postage is to be prepaid on the envelopes for returning the ballot papers.[10]Finally, Regulation 78 which is headed "Lost Postal Ballot Papers" says:
"(1) Where a postal voter has not received his postal ballot paper by the fourth day before the day of the poll, he may apply (whether or not in person) to the returning officer for a replacement ballot paper. (2) Such an application shall include evidence of the voter's identity. (3) Where the application is received by the returning officer before 5 pm on the day before the day of the poll and the returning officer -- (a) is satisfied as to the voter's identity; and (b) has no reason to doubt that the postal voter did not receive the original postal ballot. He shall issue another postal ballot paper. A replacement ballot paper is to be issued in the same way as the original but -- "(6) Where a postal ballot voter applies in person, the returning officer may hand a replacement ballot paper to him instead of delivering it in accordance with Regulation 76."
[11]A postal ballot voter cannot vote in person. He commits a criminal offence if he does so. The instruction he receives with his ballot paper is to return it to the returning officer in the envelope provided, together with the declaration of identity, without delay. LEPAR Rule 39 provides that a postal ballot paper shall not be taken to be duly returned unless it is returned to the returning officer by hand or by post, or to a polling station by hand and it "reaches the returning officer or polling station . . . before the close of the poll".[12]So I turn to the facts which I extract from the special case. For the present purposes they can be shortly stated.[13]The second respondent properly delegated his responsibility for the statutory postal voting procedure to Ms Cockell, Dudley's acting Electoral Services Officer.[14]597 electors were eligible to vote by post in the Belle Vale and Hasbury ward. Envelopes containing the postal ballot documents required by the regulations were issued for each such elector. On 23rd April 2003 the Royal Mail collected 535 envelopes for first class delivery to their addresses from Ms Cockell's office. The remaining 62 envelopes were collected by the Royal Mail two days later.[15]By Tuesday 29th April, Ms Cockell had been notified by 44 postal voters that they had not received a postal ballot paper. Under the Regulation 78 procedure replacement papers were prepared and collected by a Royal Mail manager that day. The manager was to deliver them personally to the addresses of the voters concerned. The following day (the day before the election) Ms Cockell was informed that a further 62 postal voters had not received ballot papers. Replacement papers were again prepared and delivered to the nearby Royal Mail offices by 3 pm that day. Two identified Royal Mail employees were to deliver these papers personally to the addresses concerned. Between 3 pm and the Regulation 78 deadline of 5 pm, a further 3 cases were notified. Replacement papers were delivered by Ms Cockell's staff to the addresses of two of these electors. The third elector's wife collected his replacement ballot paper.[16]Nevertheless, despite this effort, after extensive review of the postal voting in this election by the returning officer and the Prescribed Officer (the Senior Master of the Queen's Bench Division) and a questionnaire to the voters concerned, the special case says that:
"The parties accept that a number of postal ballot papers in excess of 52 were received on 1st May and a number of, or in excess of, 58 were received after 1st May."
[17]No-one criticises the returning officer or his staff. The failure to deliver ballot papers in time resulted from some unidentified failure by the Royal Mail. Nevertheless, the question remains (as Cresswell J put it) whether "there was an omission on the part of the returning officer in that he failed to 'issue to' (LEPAR rule 19) in the sense of deliver to 58 (and a further 52) voters a postal ballot paper in time to enable them to cast their votes by post".[18]Of this, Cresswell J said:
"I do not accept the petitioner's submission that the effect of LEPAR rule 19, when read with Part V of the Regulations, is to impose on the returning officer strict liability if postal ballot papers are not delivered by the Royal Mail to voters in time to enable them to cast their vote by post. Regulation 76(2) sets out what a returning officer is required to do when he uses the Royal Mail for the purposes of delivering ballot papers. Regulation 78 provides protection to a postal voter who has not received his/her postal ballot paper by the fourth day before the day of the poll. Regulation 78 is a safety net to protect postal voters where a postal voter has not received his/her postal ballot paper by the fourth day before the day of the poll. The provision of this safety net is within the wide margin of appreciation afforded to Parliament in relation to Article 3 of the First Protocol. It is for Parliament to judge whether the safety net is wide enough."
[19]The questions posed for the Divisional Court by the special case were:
"(1) What is the content of the obligation upon the [returning officer] to 'issue [postal ballot papers] to' electors for the purpose of rule 19 LEPAR? In particular: (a) In circumstances in which the returning officer took all appropriate steps to prepare and send postal votes to electors up to and including ensuring that they were collected by the Royal Mail, but in which a number of postal ballot papers were not received by those entitled to vote by post until after the date of the election, so that it was too late for them to vote, has there been an omission by the returning officer to 'issue to' those persons a [postal ballot paper] as required by rule 19 LEPAR? (b) In circumstances in which the returning officer took all appropriate steps to prepare and send postal votes to electors up to and including ensuring that they were collected by the Royal Mail, but in which a number of postal ballot papers were only not received by those entitled to vote by post on the date of the election, so that it was too late for them to be returned by post, has there been an omission by the returning officer to 'issue to' those entitled to vote by post a postal ballot as required by rule 19 LEPAR? (2) In the light of the answer to question (1), and in all the circumstances of this case as they now appear to the court, is the election to be declared invalid pursuant to section 48 of the [1983 Act]?"
Cresswell J said that he would answer each question in the negative. He added:
"I emphasise that these answers apply in circumstances in which the returning officer took all appropriate steps to prepare and send postal ballot papers to electors up to and including ensuring that they were collected by the Royal Mail and complied with his duties as set out in regulation 78(3)."
[20]Fulford J agreed and added two observations of his own which are no longer relevant to the appeal.[21]Mr John Howell QC who now appears for the petitioner submits that the words "issue to" in rule 19, properly construed, mean that the returning officer's obligation is to deliver the ballot paper to the postal voter in the sense that it comes into his hand, under his control or into his legal possession. This, he submits, is the natural meaning of the words which require a passing from one to the other: in this case from the returning officer to the voter. Delivery to a carrier is not delivery to the voter. He supports this submission by reference to the Australian case of Kon Wing Lau v Caldwell [1949] 80 CLR 533. He relies on the fact that before the wording of rule 19 was changed, it only required the returning officer "to send" the ballot paper to the address shown in the absent voters list. His construction, he says, gives effect to the change in wording. It is consistent with the need to cater for the extended franchise to postal voters. It is also consistent with other provisions of LEPAR and the regulations. Finally, he submits that his construction is consistent with Article 3 of the First Protocol to the Convention by which the High Contracting Parties undertake to hold elections "which will ensure the free expression of the opinion of the people in the choice of the legislature". Local elections do not involve such a choice but, as the provisions for Parliamentary elections are the same, rule 19 should be construed in the same way. A provision which is construed so as not to require the delivery of ballot papers to voters does not ensure free expression of the opinion of the people.[22]Both respondents support the Divisional Court's decision, although before that court each had taken a more or less neutral stance.[23]Mr Price QC for the first respondent gave an account of the history of this legislation. Postal ballots were first allowed in 1918. The legislative provisions relating to such ballots, both for Parliamentary and local elections, remained broadly the same until 2001. I have already referred to the requirement of the earlier version of LEPAR rule 19. 1986 Regulations which went with it required the postal ballot papers to be delivered by the returning officer to the nearest head Post Office and that the Post Master should immediately forward the envelopes for delivery to the addressees. There was no equivalent of Regulation 78. It is accepted that under the old regime the returning officer's obligation was confined to sending the ballot papers for delivery to the Post Master. Mr Price submits that there is no indication that the legislature intended to alter this well-established position by the amendment to LEPAR rule 19 (and its corresponding provision for Parliamentary elections) and the 2001 Regulations (which apply to both Parliamentary and local elections). He submits that the change to the wording of the Rules was thought appropriate to reflect the fact that delivery can now be made in alternative ways which might not collectively be described by the verb "send".[24]As all parties accept, the point raised by this appeal is ultimately a short point of construction. If one looks at the regulations to see what is involved in the issue of a postal ballot paper, one can see that it is a carefully regulated secret process involving formalities (stamping, marking the counterfoil etc.) which have to be performed at specified times. I was briefly led astray by the words in Regulation 72(3) which suggest that the process of "issuing to" was complete when the mark was placed in the absent voters list, but was quickly made to see the error of my ways. I accept that the words "issue to" contain some content requiring a sending and/or delivery and that the regulations make this clear. Thus, as part of the Regulation 72 procedures, ballot papers "are to be sent" to the address shown in the absent voters list and Regulation 76 requires the returning officer to do certain things "for the purposes of delivering" the ballot papers.[25]But do the words mean that the returning officer is responsible for delivering the ballot paper to the voter in the way Mr Howell contends? The Australian case he relied on concerned a deeming provision in a statute which validated the act of someone who had purported to issue "a certificate to a person named in the certificate". A number of certificates had been prepared but not delivered to the persons concerned. Latham CJ in his judgment at page 465 said:
"The word 'issue' involves the idea of something passing from one person to another, sending forth, delivering. A document which is at all times retained by a person in his own safe control cannot be said to have been issued by him. He might execute or create the document and then decide not to give it to anybody. In such a case he would not have issued the document or even have purported to issue it. 'Purporting to issue to a person named' involves some attempt to give the certificate to that person. Bringing the certificate into existence does not in itself amount to purporting to issue it."
This case had nothing to do with the law of elections. The legislation in question permitted aliens who had entered Australia during the Second World War to be deported on the certificate of a Minister. To the extent that the case confirms my view that the words "issue to" contain some content of "sending forth or delivery", as Latham CJ put it, I accept it but I do not think it carries Mr Howell's argument further than this.[26]The legislature could have chosen a procedure which required the returning officer to deliver postal ballot papers to each voter entitled to a postal vote, but I do not think it has done so. If it had intended to do so, it would and could have said so. It has not. The returning officer's obligation is correctly to address the ballot paper to the voter and send it to him by delivering it to his chosen carrier. The carrier, of course, is not some entirely passive third party. He has been chosen and paid by the returning officer to deliver the ballot papers to the voters to whom they are addressed. But the returning officer does not take the risk that the carrier will fail to deliver. Although the regulations do not say so, it was rightly accepted that they implicitly require delivery to the carrier in time to enable delivery to be made to the voter so that he can return his vote to the returning officer in time.[27]So it follows that I do not think that Parliament intended to alter the position when it changed the rules and regulations in 2001. I accept Mr Price's submissions about this. No doubt the returning officer was given a choice of carrier in the new regime because the reality is that the Royal Mail is not as reliable as it used to be. The Regulation 78 safety net was introduced for the same reason. This, in itself, suggests that it is the voter who is intended to take the risk of non-delivery to him but the consequence of this is ameliorated by Regulation 78. Mr Howell says this is not much of a safety net: the voter may not know he has a right to obtain a replacement ballot paper and it has to be exercised in a tight time-frame. But the voter will know that he has not received a ballot paper when he should have done so and that he wants to vote. Any form of voting requires some form of action on the part of the voter.[28]There is support for the construction which I prefer, both in LEPAR and the Regulations, and little, if any, for Mr Howell's construction. For those voting in person, LEPAR requires the ballot paper "to be delivered to the voter" and the register to be marked "that a ballot paper has been received" (Rule 31). This contrasts with the language used in rule 19 and the regulations dealing with postal papers. I have already referred to rule 39 and its reference to the returned postal ballot paper reaching the returning officer. So where LEPAR imposes an obligation to get a ballot paper into the hands of someone else, it says so clearly. The Regulations also talk about receipt (78(1)) and the returning officer handing a replacement ballot paper to the voter (78(6) and 77(7)). When referring to the procedure for the issue of original ballot papers to voters, the obligations set out in the Regulations come to an end with the taking of a receipt from the carrier (76(2)). There would be no point in this if the returning officer's obligation was to deliver the ballot paper to the voter. If that was the case, one would expect the regulations to require the voter's receipt. Furthermore, if delivery to the voter was required, the regulations might be expected to spell out what constituted delivery and they do not. Before the Divisional Court the petitioner contended that delivery into the hands of the voter was required. Mr Howell, again with the aid of his muse, the Australian case, formulated the requirement in the more elaborate way to which I have referred. But this formulation is not straightforward.[29]I do not think that the Convention adds anything to Mr Howell's argument. States have a wide margin as to how they fulfil the obligation under Article 3 of the First Protocol (see Mathieu-Mohn v Belgium 10 EHRR 1 at paragraph 54). I cannot see how the construction which I prefer could possibly be said to sanction conditions which do not ensure the free expression of the opinion of the people.[30]Each side pointed to the dire consequences of the other side's construction of the rule. Such arguments must always be treated with caution.[31]But Mr Howell asked what would happen if immediately after the returning officer had delivered the postal ballot papers to the Royal Mail there was a strike, with the result that no postal ballots were received by the voters entitled to them. He says that on the Divisional Court's construction, a large number of voters would be disenfranchised and yet the returning officer would have done all that was required of him, so the result of the election could not be challenged. I think there may be several answers to this. The respondents accept that it is implicit in the regulations that in making his choice of carrier the returning officer must act reasonably. If he know that a postal strike is imminent he may be in breach of his obligations if he delivers to the Royal Mail. If, however, there is an unforeseen strike, various solutions are offered. Regulation 78 might cope with the situation. In this case over a hundred voters availed themselves of its provisions. The returning officer might be advised to deem that all postal ballot papers had been lost and that the voters had applied for replacement papers. This seems to me to be a sensible solution. Failing this, it is possible that the result of the election could be challenged on the ground that it was not really an election at all (see Morgan v Simpson [1975] QB 151 at pages 164 and 168 and The Hackney Case 20 O'M and H 77).[32]Mr Howell also asked what the consequences of the Divisional Court's decision would be on an all-postal vote election. Such elections have been piloted and more are proposed. But special regulations have to be made to hold these elections and I do not think it would be right to say anything about them in this judgment. The need to ensure that voters in such elections receive ballot papers is self-evident. Whether the arrangements for conventional elections are adequate for this purpose is obviously something which those who frame the regulations will have to consider.[33]On the other side, the respondents point to the undesirability of allowing elections to be challenged on the basis that postal voters have not received ballot papers. I think there is substance in this point. The difficulties of establishing what has happened and how it might have affected the result should not be underrated. Fortunately, in this case the facts were agreed but not for some time and not until much effort, and no doubt money, had been expended. If the facts had not been agreed then there would have been a trial.[34]For the reasons I have given, I think the Divisional Court answered the questions posed by the special case correctly and so I would dismiss this appeal.

LORD JUSTICE SEDLEY: The provisions with which this appeal is concerned relate to voters who have chosen to cast their votes by post rather than in person. For such voters it is intelligible that the rule-maker should have provided, first, that their ballot papers be passed to a carrier for transmission to them, and secondly, that, if four days before polling day they have not received their ballot papers, they may reapply for them.

[36]There is, nevertheless, some force in Mr Howell's submission, adopting as it did the cogent reasoning of the High Court of Australia in Kon Wing Lau v Caldwell (1949) 80 CLR 533, that to hold that a document has been "issued to" a person when he has not received it, may be to defeat the legislative purpose. Similar reasoning is found in the decision of the House of Lords in the recent case of Anufrijeva v Secretary of State [2003] UKHL 36. But the analogy with the present case is imperfect because rule 78, contrary to Mr Howell's submission, is not peripheral but is central to the scheme. It is designed precisely to ensure that an elector who wants to vote postally is not defeated by the non-delivery of his or her ballot paper.[37]How this scheme might read across to an all-postal ballot must be a matter of concern to those responsible for framing the necessary regulations, not least in the light of Article 3 of the First Protocol to the European Convention on Human Rights, if one or more of the permitted modes of delivery is known to be prone to large scale failure. It is not a material factor in the interpretation of the present provisions, relating as they do to electors who have chosen to vote by post.[38]I would, however, wish to reserve my position in relation to Cresswell J's remarks, quoted by my Lord, Lord Justice Tuckey, about the margin of appreciation available to a domestic legislature in giving effect to Article 3. I would be inclined to think that while it is for the state, through its legislature or its executive, to decide how to give effect to the material Convention right, it is for the Strasbourg court if necessary to say whether the provision and the safety net together meet the requirements of Article 3. Any decision of the Strasbourg court that a potential breach falls within the member states' margin of appreciation belongs to its jurisprudence, not to ours.[39]To say this is not to cast any doubt upon what my Lord, Lord Justice Tuckey, has said about the latitude which member states necessarily enjoy in giving effect to a right which this country has recognised in relation to a steadily increasing franchise since the Reform Acts of the 19th century.[40]Mr Price QC has wisely not tried to suggest that the present scheme is foolproof. He has to accept that a postal strike, for example, could in practice rob many people of the right they have chose into exercise. No doubt if Mr Howell QC could show that his reading of the regulations did produce a foolproof system, it might displace the Divisional Court's judgment. But Mr Howell is driven by his own construction to advance a scheme in which any election can be upset retrospectively by evidence that a sufficient number of electors had not received the postal ballot papers for which they had applied, even though they had failed to obtain substitute forms in the final four days before polling day as was their right.[41]For the rest, the court is not concerned to decide which scheme is preferable. It is sufficient, for reasons fully spelt out by my Lord, that the meaning of "issue" in its context in regulation 19 is "deliver to an authorised carrier"; that the consequences of non-delivery by the carrier are met in large part by regulation 78; and that treating "issue" as meaning "deliver to the voter", is fraught with at least as many problems as the reading which has commended itself to the Divisional Court. I, too, would uphold their decision and dismiss the appeal.

LORD JUSTICE WALL: I agree with both judgments and have nothing to add.

[43]MR PRICE: I would therefore ask that the appeal be dismissed and as far as the respondent is concerned, the petitioner should pay the first respondent's costs.[44]MR FINDLEY: My Lords, I would ask the petitioner pay the second respondent's costs[45]MR HOWELL: My Lords, I do not think I can resist that.

LORD JUSTICE TUCKEY: Yes. The appeal will be dismissed and the petitioner to pay the first and second respondent's costs. Thank you very much indeed for the interesting arguments and an introduction to an area of the law I had never previously entered.

Cited in 2 later judgments