Election petition – Beacon and Bents Ward 2007
There has been a lot of things said in the press, on a number of websites and in printed leaflets about the legal challenge to the election in the Beacon and Bents Ward last year.
As Returning Officer, I am responsible in law for the conduct of elections. The buck stops with me. Although I am appointed and employed by South Tyneside Council, in my role of Returning Officer, I act independently from the Council in relation to the conduct of the election. In that role, I am classed as an “Independent Officer of the Crown”. My duty is to run the election in accordance with the Election Rules made by Parliament and I am personally answerable to the courts.
I have been careful in the comments that I have made publicly about the election petition because it is very important to me that I do stay completely independent.
As far as the court proceedings are concerned, my duty to the court was clear. I made sure that the court was told everything concerning missing rejected postal ballot packs, even though not everything that happened affected the things that the court had been asked to look at in the election petition.
The County Court’s Decision
His Honour Judge Walton in the South Shields County Court (sitting in Newcastle) dismissed the applications that were made to him on 12th November 2007. He also ordered the applicant to pay costs. When dealing with the order for costs, the Judge said: - (Transcript, page 19, folio G)
"Well, on the principle of the costs, it would be difficult for me to do otherwise and say that the applicant should pay the respondent’s costs, bearing in mind that, essentially, I have found and it has been conceded that the application is misconceived."
The applicant has indicated that the separate election petition in the High Court is to be withdrawn although that has not yet formally been done.
A lot has been said about the proceedings in the County Court. So that there can be no doubt, I have asked for a copy of the approved judgment of the court and a copy of the certified transcript of the proceedings before the court. I have placed these on the Internet and they can be accessed at www.southtyneside.info. In this way, the public can see for themselves what was said before the judge and read his judgement.
Security
I take security very seriously when running an election. I have to comply with the rules made by Parliament.
Parliament introduced new security measures over the postal votes for the 2007 elections.
- Anyone who wanted a postal vote had to give me their signature and date of birth when they applied to vote by post.
- When they returned their postal vote, they had to fill in a security statement and include their signature and date of birth.
- They returned that security statement with their ballot paper, which was sealed in a separate envelope.
- When I receive the documents, we do not open the sealed ballot paper envelope unless the security statement is returned and properly completed and unless the signature and date of birth match the details given when the elector applied for the postal vote. This is to prevent fraud and also to ensure that your vote remains secret.
This process does mean that a small percentage of postal ballot packs are rejected because the security statement was either not sent in, or had not been completed properly or the signature and date of birth did not match. It meant that those ballot papers could not be counted and in fact the ballot paper envelope was not opened, so no one knows which candidate the elector had voted for.
Candidates and their appointed agents are able to watch the process of checking postal vote security statements at the postal vote opening sessions and can object if they disagree about a decision to reject an envelope.
The process is partly electronic but the final decision to reject is made either by me or by one of my deputies.
Would the missing envelopes have made a difference to the result?
No, every ballot paper that ought to have been counted was counted in 2007.
After an election has taken place and the result has been announced, I am required to keep certain documents for a year. Some of those documents are open to public inspection, some documents are open to inspection on application and some documents are only open to inspection with the permission of a court. The last category includes ballot papers, and is there to make sure that your vote stays secret. Even I am not allowed to look at them after they have been sealed up.
The rejected postal ballot packs are put into a box used for temporary storage. We used spare ballot boxes. In the days after the election, we spend a lot of time tidying up and we seal up the documents that we have to keep and destroy the others. Last year, during the tidying up, we mislaid the rejected postal ballot packs.
That should not have happened. It is my responsibility and I accept that. I am sorry that it occurred. It means that the rejected ballot papers cannot now be looked at if a court decided that they should be.
I have investigated what happened and I have no reason to believe that it was anything other than an unfortunate mistake. I have seen no evidence to suggest that anything untoward or fraudulent took place.
It is still a serious mistake. But it did not affect the election result, because those postal ballot packs were properly rejected. It was always still possible to check whether the postal ballot packs had been properly rejected because there were and still are scanned electronic copies of the rejected security statements. So if a court had thought it important to check whether the rejection was correct, it was and still is possible to do that.
The Court Case
It is complicated because there are two separate legal proceedings. One set in the High Court and one set in the local County Court.
If you want to challenge an election, you need to file in court a document. This is called an election petition and it goes to the High Court. In that petition you need to set out your reasons for questioning the election and what you want the court to do. If the matter goes to trial, a special election court will look into grounds for complaint, decide whether they are proved and, if proved, decide what should be done (such as holding a new election).
There is a separate process that allows somebody to apply to the County Court for an order to inspect the ballot papers. The court must be satisfied on oath that the inspection “is required for the purpose of instituting or maintaining a prosecution for an offence in relation to ballot papers, or for the purpose of an election petition”. This is because of the importance attached to keeping your vote secret. If somebody wants to inspect the ballot papers they have to justify to a court why they need to inspect them. You cannot do it just because of curiosity or because you want to look to see if there were any problems in the election. You must show that you need to inspect the votes because they will show something that will support the reasons you have given in your election petition for challenging the election.
In the Beacon and Bents case, the applicant put a number of grounds of complaint in the election petition. In the end, the applicant accepted and the court held it was not necessary to inspect the ballot papers to take forward the petition. The application was “misconceived”.
Some corrections and clarifications to information that has been published
| Allegation | The facts |
|---|---|
| The Returning Officer denied a recount for the Beacon and Bents ward. | There was a recount. The result was the same. |
| A request to see the rejected postal votes was refused. | Correct – there is no right to see the rejected postal votes. They remain in their sealed envelopes. The decision to reject or accept a postal vote is made on the basis of the contents of the security statement without anyone knowing whom the vote was for. |
| A request to see whether the votes were rejected for valid reasons was denied. | The opening of the postal votes had taken place over a number of days before the count. Candidates and agents can be present and watch the process. They can object to rejection at that stage. |
| The High Court proceedings sought to examine the rejected postal votes to determine whether they had been rejected for legitimate reasons. | The election petition did not make any allegations about the validity of the rejection of the postal votes, did not ask for a recount or inspection, and as the County Court subsequently found there was no connection between a need to inspect the votes and reasons for challenging the election given in the petition. |
| The Council and/or members of the Council were responsible for the conduct of the legal case. | The Council was not a party to the court case. I, as the Returning Officer was personally a defendant to the case and personally responsible for the conduct of the case. The successful candidate was the other defendant. |
| It took six months to supply evidence to the court. | The case was originally listed in the County Court for hearing on 30th August. At the beginning of August, the applicant sought to have the proceedings transferred from South Shields to London. By the time the local judge decided not to agree to the transfer, the August date was no longer suitable and the hearing had to be relisted. A new date was fixed for 12th November. The applicant was not available sooner. |
| The Council insisted on secrecy. | The election rules clearly state that applications such as this should be dealt with “otherwise than in open court”, which means in a private hearing. |
| 18 ballot boxes went missing. |
|
| The County Court dismissed the application because the rejected postal votes were not available. The case was dismissed because the Council “lost” the evidence. | See the Judgment: -
"The short way through this application is to record that essentially it is conceded on behalf of the applicant that there is no causal nexus between the complaints made in paragraph three of the election petition and the inspection sought. In arguments that were deployed on paper in preparation for the hearing that point was made on behalf of the returning officer, and it has essentially been conceded today. In other words, the complaints that are raised by Mr Khan in relation to the election can be maintained and can be investigated without it being necessary to inspect the ballot papers which the election generated." (Judgment, paragraph 4). Put simply, the judge said that it was not necessary to look at any ballot papers to decide the issues that had been raised in the election petition. There was no link between the two sets of proceedings. |
| The judge said at the hearing that the Council’s explanation was “at best opaque”. |
The judge did not say that. See the Transcript for the exact words and the context in which they were used: -
"Well, it may be that we can at least use today to find out a little more along those lines, insofar as what has been said is opaque. No doubt it can be made clear. However, I would have thought a classic definition of fishing is an application for material which cannot be causally linked with the issues in the case." (Transcript page 8, folio F) |
| The Council are pursing the applicant for their costs. |
The Returning Officer is seeking the costs not the Council.
The County Court listened to arguments about the costs. (See the transcript pages18 to 20). The judge said: - "Well, on the principle of the costs, it would be difficult for me to do otherwise and say that the applicant should pay the respondent’s costs, bearing in mind that, essentially, I have found and it has been conceded that the application is misconceived." (Transcript, page 19, folio G) The court rules also state that an applicant must pay the other side’s costs if he/she withdraws an election petition. It was pointed out to the applicant on a number of occasions that the application was bound to fail. If it had been withdrawn before the court hearing, the costs would have been substantially less. |
| The Returning Officer is insured and so should not seek the costs from the applicant. | It is no different from your own car insurance. If someone sues you and loses and is ordered to pay your costs, your insurance company would expect you to claim the costs. |
| The case was lost on a technicality. | The case was lost because the applicant had no legal grounds to justify his application. As the judge put it, it was “misconceived”. |
2008 Elections
My staff have been working for many months preparing for the 2008 Elections.
Security precautions are a top priority both in the planning, during and after the election.
The formal election period starts on Thursday 27th March 2008 when the notice of election will be published and nominations open leading to Polling Day on Thursday 1st May 2008.
We are all committed to running an election which:
- Shows no favour to any individual candidate or party and in accordance with the election rules
- Maintains the integrity of the election process
- Addresses the needs of all the electors of South Tyneside
We ask for the support of candidates, agents and political parties to assist us to do that.
Brian T Scott
Returning Officer
Head of Corporate Governance
South Tyneside Council
20th March 2008
