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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Buchan v Elliott [2022] EWHC 255 (QB) (28 January 2022) URL: https://www.bailii.org/ew/cases/EWHC/QB/2022/255.html Cite as: [2022] EWHC 255 (QB) |
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QUEEN'S BENCH DIVISION
ELECTION COURT
15 Victoria Rd, Hartlepool TS24 8AY |
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B e f o r e :
____________________
Robert Buchan |
Petitioner |
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- and - |
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Jennifer Elliott |
Respondent |
____________________
Hearing dates: 28th January 2022
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Crown Copyright ©
HHJ KRAMER:
The background facts.
"Residents have recognised that homes need to be built and people need to have places to live, but the houses need to be in the right places and the decisions about where to put them need to be well thought out."
"The housing at Hill View, for example. It is clear that we need social housing in the borough but why must they go on green spaces when we have empty housing in the centre of the town? A priority for a Labour council would be the renovation of existing housing rather than new builds in rural areas."
"Three of your local candidates voted to grant planning permission at Hill View: James Brewer, Bob Buchan and Jim Lindridge. All went against the wishes of local residents and against the rural plan. Your current Conservative councillors also voted to accept the plans. Labour were the only party to vote against the new development."
The leaflet ends:
"Please vote for an open, fair and transparent planning process. Vote for residents' voices to be heard. Vote Labour on 6 May."
Section 127 provides that:
"An election under the Local Government Act may be questioned on the ground that the person whose election is questioned (a) was at the time of the election disqualified or (b) was not duly elected or~..."
And this is the relevant bit:
"... on the ground that the election was avoided by corrupt or illegal practices~..."
I do not need to read on.
"If a candidate who had been elected is reported by an Election Court personally guilty of any illegal practice, his election shall be void."
Section 145(1) provides:
"It is the task of the election court to determine whether a person whose election is complained of was duly elected or whether the election was void and to certify its decision. The certificate is final as to the matters in issue in the petition."
Section 145(2) provides:
"The election court shall forthwith certify in writing the determination to the High Court."
"A person~..." and I am going to leave out parts to which I need not refer, "... who, before or during an election, for the purposes of affecting the return of any candidate at the election, makes or publishes any false statement of fact in relation to the candidate's personal character or conduct shall be guilty of an illegal practice, unless he can show that he had reasonable ground for believing and did believe that statement to be true."
(a) Ms Elliott made a statement which relates to a candidate.
(b) It must be a statement of fact.
(c) It must be made in relation to Mr Buchan's personal character or conduct.
(d) It must have been made for the purpose of affecting the election of Mr Buchan.
(e) It must be made before or during the election.
These are all matters for Mr Buchan to prove to the criminal standard, that is to satisfy me so that I am sure that each elements of the offence has been established and the authority for that is Regina v Rowe ex parte Mainwaring [1992] 1 Weekly Law Reports 1319, applied in Erlam v Rahman [2015] EWHC 1215 (QB), at paragraphs 47 to 48.
"The question is not solely one of looking at the words used. The question is how the words would be understood by a reasonable person in the factual context."
At paragraph 86 of the judgement
, Lord Justice Thomas, as he then was, said that:
"The statutory rules had come about against a background of the decided cases."
"The consolidations were not only in the light of the decisions in North Division of the County of Louth and Fairbairn v Scottish National Party but also in the light of ..." and he referred to a number of cases, one of which was Cockermouth Division of the County of Cumberland [1901] 5 O'M &H 155. He added: "It is well established that the presumption is that Parliament has adopted the meaning given by the courts." And to that end, he looked in the judgment at how the courts had approached the question of illegal conduct and personal conduct, as against political conduct.
"A distinction must be drawn between a false statement of fact which relates to the personal character or conduct of the candidate and a false statement which relates to the political or public position, character or conduct of the candidate. In giving judgment in the Cockermouth case, Mr Justice Darling said at pages 159 to 160,
'I think the Act says that there is a great distinction to be drawn between a false statement of fact which affects the personal character or conduct of the candidate and a false statement of fact which deals with the political position or reputation or action of the candidate. If that were not kept in mind this statute would simply have prohibited at election times all sorts of criticism which was not strictly true, relating to the political behaviour and opinions of the candidate. That is why it carefully provides that the false statement, in order to be an illegal practice, must relate to the personal character and personal conduct. One can easily imagine this kind of thing: to say of a person that he was a fraudulent bankrupt it would be necessary probably to give examples but that sort of thing would undoubtedly be within the statute'."
Then at (iii), Lord Justice Thomas referred to the facts of Cockermouth, which I will just refer to, because they have, in a sense, a parallel which I am going to come back to, he said:
"The facts of the Cockermouth case illustrate what can clearly be viewed as statements in relation to political conduct. During the election campaign in 1900, in the middle of the Second Boer War, statements were made about a sitting MP who was a candidate for re-election, that he did nothing other than taking the part of the Boers and he had voted against sending money and supplies for the Boer War when the enemy was besieging British towns and wrecking British homes."
Lord Justice Thomas went on at (vi):
"It is clear from the Cockermouth case that one cannot simply imply from a statement attacking the political position of the candidate that the statement also reflects on his personal character, i.e. he was supporting the Queen's enemies."
"In our view, the starting point for the construction of section 106 must be the distinction which it is plain from the statutory language that Parliament intended to draw between statements as to the political conduct or character or position of a candidate and statements as to his personal character or conduct. It was as self-evident in 1895 [which is where we find the statutory predecessor of this section] as it is today, given the practical experience of politics in democracy that unfounded allegations will be made about the political position of candidates in an election. The statutory language makes it clear that Parliament plainly did not intend the 1895 Act to apply to such statements. It trusted the good sense of the electorate to discount them. However, statements as to the personal character of a candidate were seen to be quite different. The good sense of the electorate would be unable to discern whether such statements, which might be highly damaging, were untrue. A remedy under the ordinary law in the middle of an election would be difficult to obtain. Thus the distinction was drawn in the 1895 Act, which is re-enacted in section 106 of the 1983 Act and which is reflected in the decisions to which we have referred above.
111. In our judgment Parliament clearly intended that such a distinction be made. A court has to make that distinction and decide whether the statement is (1) as to the personal character or conduct or a statement as to the political position or character of the candidate. It cannot be both."
"Statements about a candidate which relate, for example, to his family, religion, sexual conduct, business or finances are generally likely to relate to the personal character of a candidate. In our view it is of central importance to have regard to the difference between statements of that kind and statements about a candidate which relate to his political position, but which may carry an implication which, if not made in the context of a statement as to a political position, impugn the personal character of the candidate.
113. For example, a statement made simply about a candidate's conduct as a businessman might imply he is a hypocrite, (as in Bayley v Edmonds11 TLR 537 or Borough of Sunderland; Storey v Doxford 5 O'M &H 53). As his conduct as a businessman relates to personal conduct, such a statement is within section 106. However, a statement about a candidate's political position may well imply that he is a hypocrite or untrustworthy because of the political position he is taking. That is not a statement in relation to his personal character or conduct, it is a statement about his political position, though it might cast an imputation on his personal character. We do not consider that Parliament intended that such statements fall within section 106, particularly bearing in mind the fact that criminal liability attaches to statements made negligently. It would be difficult to see how the ordinary cut and thrust of political debate could properly be carried on if such were the width of the prohibition.
114. However, a statement about a candidate's political position can go beyond being a statement about his political position and become a statement that is a statement about personal character or conduct of the candidate."
"114….A clear illustration is to accuse a candidate of corruption, even if the corruption involves the conduct of a public or political office. What is said about the candidate is not a statement in respect of the conduct of the political office, but a statement that he is personally dishonest and committing a crime."
The parties' contentions.
Discussions and conclusion