DPP v Luft [1976] UKHL 4

House of Lords

Between

DPPAppellant

LuftRespondent

Before

Lord Diplock

Lord Salmon

Lord Edmund-Davies

Lord Fraser of Tullybelton

Lord Russell of Killowen

LORD DIPLOCK

My Lords,

At the Parliamentary General Election held in October 1974, candidates representing a political party known as The National Front stood for election in three Lancashire constituencies, Blackley, Bolton East, and Bolton West. In all three constituencies candidates representing the Labour, Conservative and Liberal Parties were also standing for election, and in the Bolton West constituency there was a fifth canditdate who described himself as a " More Prosperous Britain " candidate.

The respondents, Luft and Atkinson, were members of an association calling itself " The Greater Manchester Anti-Fascist Committee". The respondent, Duffield, was a member of the " Bolton Anti-Fascist Commit- tee ". All three respondents were strongly opposed to the policies advocated by the National Front. In the course of the election campaign, Luft and Atkinson distributed in the Blackley constituency and Duffield distributed in the Bolton East and Bolton West constituencies pamphlets urging voters " Don't Vote National Front" and accusing members of that political party of being liars and fascists.

Each of the respondents was charged with offences under section 63 of the Representation of the People Act 1949 of incurring, without authorisation in writing of an election agent, the expense of issuing publications with a view to promoting or procuring the election of a candidate at the parlia- mentary election in the constituency in which that respondent had distributed pamphlets ; and also with offences under section 95 of that Act of causing to be distributed for the like purpose a printed document which did not bear upon its face the name and address of the printer and publisher.

The charges against Luft and Atkinson were heard in the Manchester City Magistrates Court by the stipendary magistrate. He dismissed them on the ground that to constitute an offence under either section, it was necessary to prove an intention on the part of the accused to promote or procure the election of one particular candidate only ; an intention to prevent the return of one out of three or more candidates did not suffice.

The charges against Duffield were heard by the justices at the Bolton Magistrates Court. They took a different view of the law from the stipendary magistrate. The respondent. Duffield, was convicted and fined £10 for each offence.

Appeals were brought by way of case stated against both decisions. They were heard together by the Divisional Court. The appeal against the acquittal of Luft and Atkinson was dismissed; that of Duffield against his

conviction was allowed. The Divisional Court certified that a point of general public importance was involved in their decisions, namely: —

" Whether on a prosecution under section 63 of the Representation of " the People Act 1949 it is necessary to prove that expense was in- " curred with a view to promoting or procuring the election of a particu- " lar candidate and insufficient to establish that the view or motive of " the person incurring the expense was to prevent the election of a " particular candidate."

Leave to appeal, which had been refused by the Divisional Court, was granted by their Lordships' House in both cases and the appeals were heard

as consolidated appeals.

•

Section 63(1) of the Representation of the People Act 1949 is one of a number of sections designed to limit the amount of money which a candi- date and his supporters may spend on soliciting the votes of the electors in the constituency in which he is standing for election. It reads as follows: —

(1) No expenses shall, with a view to promoting or procuring the " election of a candidate at an election, be incurred by any person other " than the candidate, his election agent and persons authorised in writing " by the election agent on account—

"(a) of holding public meetings or organising any public display ; or "

(b) of issuing advertisements, circulars or publications ; or

" (c) of otherwise presenting to the electors the candidate or his " views or the extent or nature of his backing or disparaging " another candidate:

" Provided that paragraph (c) of this subsection shall not—

" (i) restrict the publication of any matter relating to the election " in a newspaper or other periodical; or

" (ii) . . '

Expenditure under this subsection which has been authorised by the election agent of a candidate is treated as part of the election expenses of the candidate and counts against the maximum amount which may be spent on his behalf.

By subsection (5) a person who incurs any expenses in contravention of this section is guilty of a corrupt practice.

Section 95(1) reads as follows: — " (1) A person shall not—

" (a) print or publish, or cause to be printed or published, any bill, " placard or poster having reference to an election or any printed " document distributed for the purpose of promoting or pro- " curing the election of a candidate, or

" (b) post or cause to be posted any such bill, placard or poster as " aforesaid, or

" (c) distribute or cause to be distributed any printed document " for the said purpose,

" unless the bill, placard, poster or document bears upon the face " thereof the name and address of the printer and publisher."

By subsection (3) a contravention of this section is made an illegal practice.

Before 1948 the predecessor of section 63(1) had been section 34(1) of the Representation of the People Act 1918. This was in the following terms: —

" (1) A person other than the election agent of a candidate shall not " incur any expenses on account of holding public meetings or issuing " advertisements, circulars or publications for the purpose of promoting " or procuring the election of any candidate at a parliamentary election, " unless he is authorised in writing to do so by such election agent."

D.P.P. v Luft

Its application to facts very similar to those in the instant appeals had been considered by the Court of Criminal Appeal in R. v. Hailwood [1928] 2 K.B. 277. In that case, during a parliamentary by-election in which there were three candidates, Conservative, Liberal and Labour, the accused had in- curred expenses on account of issuing publications which were antagonistic to the Conservative candidate and advised the constituents not to vote for him, but did not in express terms advise them to vote for either of the other candidates. It was held by the court that this constituted an offence under section 34(1). In delivering the judgment of the court, Avory J. said: —

" It is now suggested that, in a case like the present, where there are " three candidates representing three different political parties, Con- " servative, Liberal and Labour, if a person who is not authorised by " the election agent of a candidate incurs expenses of the kind in " question he cannot be convicted under the section, which prohibits " the incurring of the expenses for the purpose of promoting or pro- " curing the election of ' any candidate ', unless it be shown definitely " that he had the intention of promoting or procuring the election of " one of these three candidates in particular. The answer to that sug- " gestion is that the expression ' any candidate' in the section is not " limited to one candidate only, since it is provided by the Interpreta- " tion Act. 1889 (52 & 53 Vict. c. 63), section 1 subsection (1) (b), that " words in the singular shall include the plural. It is further said that the " appellant is not liable, inasmuch as while he endeavoured to prevent " the election of one of the candidates, he did not directly promote " or procure the election of any of them. If, however, a person has done " what is forbidden by the section for a purpose which must have the " effect of promoting or procuring the election of a candidate or candi- " dates then there can be no question that he has committed an offence " under the section."

In the view of the Divisional Court in the instant case, the difference in language between section 34(1) of the 1918 Act and section 63(1) of the 1949 Act and, in particular, the substitution of the words " with a view to promo- " ting or procuring the election of a candidate " for the corresponding words " for the purpose of promoting or procuring, the election of any candidate" gave to the new section a meaning which had the effect of overruling the decision in R. v. Hailwood.

In their Lordships' view, so far as the meaning of the subsection is con- cerned no significance can be attached to these substitutions (which I have italicised). The substantive alteration to section 34(1) of the 1918 Act which was affected by section 63(1) of the 1949 Act was to add to the matters upon which expenses could not be incurred without the written authority of an election agent. In order to make this addition the draftsman found it necessary to re-arrange the order of words which his predecessor had adopted in section 34(1). In this re-arrangement the retention of the phrase " for the " purpose of " would have been inelegant as a matter of draftsmanship as compared with the use of the equivalent phrase " with a view to " to convey the same meaning. Similarly the substitution of " a " for " any " was called for as a matter of draftsmanship by the subsequent references to " the can- " didate " and " another candidate ". In my view these substitutions are stylistic only. The substituted words mean the same as those which fell to be construed in R. v. Hailwood.

The construction placed by the Court of Criminal Appeal on section 34(1) of the Act of 1918 had stood unchallenged for twenty years by the time what is now section 63(1) of the 1949 Act was first enacted by section 42(1) of the Representation of the People Act 1948. Had Parliament intended to overrule it, it would have done so explicitly and not inferentially by the sub- stitution of one phrase for another which is apparently synonymous. R. v. Hailwood remains strong persuasive authority ; but it is still for your Lordships to decide for yourselves whether it is right and governs the instant appeals.

In the argument before this House, counsel for the respondents did not seek to rely upon any difference in meaning between " with a view to " and "for the purpose of". Both phrases, he said, referred to the dominant intention of the accused in doing the act complained of. The expression dominant intention is borrowed from cases which turned on the meaning of the words " with a view of giving such creditor a preference over the other "creditors" in section 48(1) of the Bankruptcy Act 1883. The law as to fraudulent preference in bankruptcy had been the subject of judicial con- sideration long before the passing of the Bankruptcy Act 1883 and, as appears from the speeches in Sharp v. Jackson [1889] A.C. 419, the courts, including this House, were much influenced by the previous law as to fraudulent preference in the construction they gave to the section. For that reason I do not regard these cases as a reliable guide to the construction of section 63(1) of the Representation of the People Act 1949. To speak of a dominant intention suggests that a desire to achieve one particular purpose can alone be causative of human actions; whereas so many human actions are prompted by a desire to kill two birds with one stone. For my part I prefer to omit the adjective " dominant". In my view the offence under section 63(1) to (5) is committed by the accused if his desire to promote or procure the election of a candidate was one of the reasons which played a part in inducing him to incur the expense.

It was next argued for the respondents that the rule of construction in section 2 (1) (b) of the Interpretation Act 1889, that " words in the singular " shall include the plural " has no application to the words " a candidate " in the context of promoting or procuring his election since a contrary intention does appear from that context. When the Act was passed and at all times thereafter all parliamentary constituencies have been single-member constituencies, though at the passing of the Act this was not the case with all local government elections, to which section 63 also applies. So the context required the plural in the case of local government elections. As respects parliamentary elections, while it is true to say that it is not possible to " procure the election " in any constituency of " candidates " in the plural, the subsection deals with promoting the election of a candidate as well as procuring his election, and it does so disjunctively. In my view promoting as distinct from procuring the election of a candidate means improving his chances of being elected ; and in a parliamentary constituency for which there are more than two candidates this can be accomplished for " candidates " (in the plural) by persuading electors in the constituency not to vote for one of their rivals.

My Lords,

where there are more than two candidates for a constituency, to persuade electors not to vole for one of those candidates in order to prevent his being elected must have the effect of improving the collective prospect of success of the other candidates though it may be uncertain which one of them will benefit most. So in anyone sophisticated enough politically to want to intermeddle in a parliamentary election at all, an intention to prevent the election of one candidate will involve also an intention to improve the chances of success of the remaining candidate if there is only one, or of one or other of the remaining candidates if there are more than one, although the person so intending may be indifferent as to which of them will be successful.

So I would answer the certified question: —

" On a prosecution under section 63 of the Representation of the " People Act 1949 it is not necessary to prove that the expense was " incurred with the intention of promoting or procuring the election of " one particular candidate but it is sufficient to establish an intention " on the part of the person incurring the expense to prevent the election " of a particular candidate or particular candidates."

In the instant case it was found as a fact by the Bolton justices that the pamphlets were distributed by the respondent Duffield for the purpose of

procuring or promoting the election of a candidate other than the National Front candidate even though those documents did not support a particular candidate. The respondents Luft and Atkinson did not go into the witness box to give direct evidence of their intentions but left these to be inferred from the prosecution's evidence as to what they had done. Although the stipendary magistrate has not been so explicit as the justices, a similar finding of fact as to the intentions of Luft and Atkinson is in my view implicit in the way in which the case has been stated by him; and counsel for the respondents has not sought to distinguish their cases from that of Duffield.

For the reasons I have given these findings as to the intentions of the respondents are sufficient in my opinion to support their convictions for offences under section 63 and section 95 of the Act. For the sake of completeness, however, it is necessary to deal briefly with an alternative contention for the respondents under section 63 that was raised for the first time in your Lordships' House and does not figure in the judgment of the Divisional Court.

This contention is that since the pamphlets do not positively recommend support for any of the candidates representing political parties other than the National Front, the only way in which they can be brought within the ambit of section 63 is as publications " disparaging another candidate". The argument proceeds that in the immediately preceding phrase, " present- " ing to the electors the candidate or his views or the extent or nature of his " backing " a distinction is drawn between the candidate on the one hand and his views or backing on the other ; that a similar distinction was intended to be drawn when the word " candidate " alone was used in reference to disparagement; and that criticism of the personal character or conduct of the candidate divorced from any criticism of the political views that he held was all that was covered by the paragraph. " Disparaging" is not the antonym of " presenting ". In my view it is to be understood in its ordinary and natural meaning. A person may be disparaged by attacks upon the political views he holds as well as by attacks upon his personal conduct. The pamphlets in the instant case are obvious specimens of disparagement.

Before leaving the matter it is desirable to refer to two cases relied upon by the Court of Appeal in support of their view that in section 63 the words " a candidate " in the context of promoting or procuring his election meant only one particular candidate and that consequently the certified question ought to be answered " Yes ". These were R. v. Tronoh Mines Ltd. [1952] 1 AU E.R. 697 and Grieve v. Douglas-Home 1965 SLT 186 . In the former case the defendant, while a general election was pending, published in a national newspaper an advertisement attacking the financial policy of the outgoing Labour government. McNair J. held that section 63 was not intended to prohibit expenditure incurred on advertisements designed to support the interest of a particular party generally in all constituencies, at any rate at the time of a general election and not supporting a particular candidate in a particular constituency. He founded his judgment exclusively on the word- ing of paragraphs (a), (b) and (c) of section 63(1). R. v. Hailwood was not referred to in the judgment or the argument and the Court of Appeal in the instant case are mistaken in supposing that McNair J. made any reference to the change from " any candidate " in the 1918 Act to " a candidate " in the 1949 Act. He did however accept as a reasonable and possible construction of section 63 that candidate was intended to mean one candidate only. In this, for the reasons that I have given, I think that he was wrong, although I cast no doubt upon the correctness of the actual decision in the case.

Grieve v. Douglas-Home was a case in which the complaint against the defendant was of a wholly different character and is not, in my view, of any assistance. It was relied upon by the Court of Appeal for the statement by Lord Migdale that the test of intention is subjective and that what has to be

considered is the intention or motive in the mind of the person " who in- curred the expense ". But this has never been disputed by the Crown in the instant case.

I would therefore allow both of the appeals from the orders of the Divisional Court so far as those orders dealt with charges under section 63 or section 95(l)(c).

The order made in the appeal by the respondent Duffield included also the quashing of his conviction upon a charge under section 95(1) (b) causing to be posted a poster having reference to the election, not bearing on its face the name and address of the printer. No argument had been addressed to the Divisional Court directed to this charge, the legal characteristics of which are different from those of the other charges. There is no reference to it in their reasons for judgment. In these circumstances counsel for the appellant is content not to invite this House to restore the conviction on this charge, but without conceding that it could not have been sustained if argument had been heard on it.

Lord Salmon

My Lords,

I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Diplock. and for the reasons given by him I would allow these appeals.

Lord Edmund-Davies

My Lords,

I am in respectful and unqualified agreement with the reasons developed in the speech of my noble and learned friend Lord Diplock for holding that these consolidated appeals should be allowed.

Lord Fraser of Tullybelton

My Lords,

I have had the advantage of reading in print the speech of my noble and learned friend, Lord Diplock, and I agree with it.

I should add that I do not exclude the possibility that there may be circumstances in which an intention to prevent the election of a particular candidate might form but an insignificant part of a person's motives in persuading electors not to vote for that candidate. If a person believes that, even in the absence of any persuasion of electors by him, the number of votes cast in the election for that candidate would be so small as to give him no chance at all of being elected, the attempt to persuade electors not to vote for that candidate may be undertaken for some other purpose such as personal dislike or a desire to demonstrate a paucity of popular support for the policies of the candidate but without any intention to promote the election of the other candidates or any of them. The possibility than anyone would incur expense for so limited a purpose is probably remote, but in a case where the court was left with a reasonable doubt whether that was the accused's purpose, it would in my opinion be bound to find him not guilty of an offence under section 63(1) or section 95(1) of the Act.

I would allow both the appeals so far as they relate to charges under section 63 and section 95(l) (c).

Lord Russell of Killowen

My Lords,

I too have had the advantage of reading in draft the speech to be delivered by my noble and learned friend, Lord Diplock. I agree with it, and I would therefore allow these appeals.

300292 DJ 896296 100 h/76 SiS