Category: Elections

The Electoral Commission, Regina (on The Application of) v City of Westminster Magistrates Court and Another: SC 29 Jul 2010

UKIP, a political party had accepted donations from an individual who had ceased to be a registered voter. An application had been made for forfeiture of the sums given. The court was now asked whether the Act created a presumption in favour of forfeiture, where it said that an order ‘may’ be made, and whether an order may be made for a lesser sum than that received.
Held: The appeal succeeded (Lords Rodger, Walker and Brown dissenting).
Lord Phillips said that the forfeiture of the entire sum donated was not universally necessary as a sanction: ‘Parliament plainly made the power to forfeit discretionary with the intention that the magistrates’ court should discriminate between cases where forfeiture was warranted and cases where it was not . . Parliament intended the court to consider whether forfeiture was a proportionate response to the facts of the particular case. This involves considering whether forfeiture is necessary to achieve either the primary or the secondary object of the Act. The most relevant consideration is whether forfeiture is necessary to prevent the retention of a foreign donation in the individual case. Proof of acceptance of a donation from an impermissible source should raise a presumption that the donation is foreign. If the party cannot rebut that presumption, forfeiture should follow. If the party succeeds in demonstrating that the donor was entitled to be placed on an electoral register, forfeiture should then depend on whether it is an appropriate sanction for such shortcomings as led to the acceptance of the donation. This will require consideration of culpability, the size of the donation and the effect that forfeiture will be likely to have on the political party. Partial forfeiture, if permitted (as to which see below), will enable the court to impose an appropriate sanction where total forfeiture would be disproportionate.’
The Court distinguished between donors who had not in fact registered and those who were not entitled to be registered to vote, and ‘If it is shown that the donor was in a position to qualify as a permissible donor by registering on an electoral register, the initial presumption in favour of forfeiture will have been rebutted.’ Nor was the power an all or nothing one: ‘the better interpretation is to treat the power to order forfeiture of an amount equal to the value of an impermissible donation as implicitly including the power to order forfeiture of a lesser sum. Such an interpretation is desirable to cope with the situation where the magistrates’ court is persuaded that the donor is not foreign. In those circumstances, total forfeiture of the donation may be disproportionate.’
Lord Rodger (dissenting) would dismiss the appeal saying: ‘Nothing could be clearer than the language used by Parliament and nothing could be clearer than the intention behind the language: political parties were not to accept donations from any individual who was not registered in an electoral register. In particular, parties were not to accept donations from individuals who were entitled to be registered, but who were not on the register. That situation would be adequately catered for by the simple expedient of the individual concerned getting himself registered: the party could then accept a donation from him.’ The use of the test of whether a donor was or was not registered simplified administration of the provisions greatly. There was only a narrow discretion not to award forfeiture and of the full sum.

Lord Phillips, President , Lord Rodger, Lord Walker, Lord Brown, Lord Mance, Lord Kerr, Lord Clarke
[2010] UKSC 40, [2010] 3 WLR 705, UKSC 2009/0205, [2011] 1 AC 496
Bailii, Bailii Summary, SC, SC Summary
Political Parties, Elections and Referendums Act 2000 58
England and Wales
Citing:
Cited – Padfield v Minister of Agriculture, Fisheries and Food HL 14-Feb-1968
Exercise of Ministerial Discretion
The Minister had power to direct an investigation in respect of any complaint as to the operation of any marketing scheme for agricultural produce. Milk producers complained about the price paid by the milk marketing board for their milk when . .
Cited – Regina v Tower Hamlets London Borough Council, ex parte Chetnik Developments Limited HL 1988
The House was asked whether a rating authority could refuse to repay rates which had been paid by mistake.
Held: ‘Parliament must have intended the rating authorities to act in the same high principled way expected by the court of its own . .
At First Instance – The Electoral Commission v City of Westminster Magistrates’ Court Admn 22-Jan-2009
The UKIP had accepted donations from a man whose name through inadvertence was not listed on the electoral register. The commission sought to impose a forfeit of an equal amount.
Held: Parliament had rejected the suggested test of entitlement . .
Appeal from – Electoral Commission, Regina (On the Application of) v City of Westminster Magistrates Court and Another CA 19-Oct-2009
The UKIP party had accepted substantial donations. The donor had, through, he said, inadvertent error, had failed to ensure that he appeared on the electoral roll. The party had not taken all reasonable steps to verify his registration as required. . .

Lists of cited by and citing cases may be incomplete.

Elections

Leading Case

Updated: 01 November 2021; Ref: scu.425184

Regina v British Broadcasting Corporation ex parte Pro-life Alliance: HL 15 May 2003

The Alliance was a political party seeking to air its party election broadcast. The appellant broadcasters declined to broadcast the film on the grounds that it was offensive, being a graphical discussion of the processes of abortion.
Held: Freedom of political speech is a freedom of the very highest importance. Article 10 requires that access to an important public medium of communication should not be refused on discriminatory, arbitrary or unreasonable grounds. Prior restraint is seriously inimical to freedom of political communication. The broadcasters were subject to rules requiring them equally to maintaining standards of decency. The two questions were: whether party broadcasts are restricted as to offensive material, and if so whether, the right standard had been applied. The Court of Appeal failed to distinguish the two questions. The court could not rewrite the standard of decency applied by the statute, and the appeal succeeded. (Lord Scott of Foscote dissenting) The rights of others’ within the meaning of Article 10(2) ‘need not be to limited to strictly legal rights the breach of which might sound in damages and is well capable of extending to a recognition of the sense of outrage that might be felt by ordinary members of the public who in the privacy of their homes had switched on the television set and been confronted by gratuitously offensive material.’
Lord Hoffmann said that the power of broadcasting justified restrictions for taste and decency. Article 10 was not engaged: ‘In the present case, that primary right [under Article 10] was not engaged. There was nothing that the Alliance was prevented from doing, It enjoyed the same free speech as every other citizen. By virtue of its entitlement to a [Party Election Broadcast] it had more access to the homes of its fellow citizens that other single-issue groups which could not afford to register as a political party and put up six deposits.
There is no human right to use a television channel . .’
However, Article 10 might be in play if access to broadcasts was unfairly denied: ‘The fact that no one has a right to broadcast on television does not mean that article 10 has no application to such broadcasts. But the nature of the right in each case is different. Instead of being a right not to be prevented from expressing one’s opinions, it becomes a right to fair consideration for being afforded the opportunity to do so; a right not to have one’s access to public media denied on discriminatory, arbitrary or unreasonable grounds.’

Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Millett, Lord Scott of Foscote, Lord Walker of Gestingthorpe
[2003] 2 WLR 1403, Times 16-May-2003, [2003] UKHL 23, Gazette 03-Jul-2003, [2004] 1 AC 185, [2003] UKHRR 758, [2003] HRLR 26, [2003] ACD 65, [2003] EMLR 23, [2003] 2 All ER 977, [2003] EMLR 23
House of Lords, Bailii
Broadcasting Act 1990 6(1)(a), European Convention on Human Rights 10(2)
England and Wales
Citing:
Appeal from – Regina (Quintavalle, Prolife Alliance) v British Broadcasting Corporation CA 14-Mar-2002
The applicant had stood for election, and since there were a sufficient number of candidates for the ProLife Alliance, they sought a party political broadcast. The material they produced was rejected by the respondent and others, as not complying . .
Cited – Benjamin, Vanderpool and Gumbs v The Minister of Information and Broadcasting and The Attorney General for Anguilla PC 14-Feb-2001
PC (Anguilla) A first non-religious radio station had been formed, but came to include much criticism of the government. One programme was suspended by the government. The programme makers complained that this . .
Cited – Vgt Verein Gegen Tierfabriken v Switzerland ECHR 28-Jun-2001
The applicant association dedicated itself to the protection of animals, from animal experiments and industrial animal production. In reaction to television commercials broadcast by the meat industry it prepared a TV advertisement contrasting the . .
Cited – Associated Provincial Picture Houses Ltd v Wednesbury Corporation CA 10-Nov-1947
Administrative Discretion to be Used Reasonably
The applicant challenged the manner of decision making as to the conditions which had been attached to its licence to open the cinema on Sundays. It had not been allowed to admit children under 15 years of age. The statute provided no appeal . .
Cited – Regina v Secretary of State for Defence Ex Parte Smith; Regina v Same Ex Parte Grady Etc CA 6-Nov-1995
A ban on homosexuals serving in the armed forces was not irrational, and the challenge to the ban failed. The greater the policy content of a decision, and the more remote the subject matter of a decision from ordinary judicial experience, the more . .
Cited – Smith and Grady v The United Kingdom ECHR 27-Sep-1999
The United Kingdom’s ban on homosexuals within the armed forces was a breach of the applicants’ right to respect for their private and family life. Applicants had also been denied an effective remedy under the Convention. The investigations into . .
Cited – De Freitas v The Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing and others PC 30-Jun-1998
(Antigua and Barbuda) The applicant was employed as a civil servant. He joined a demonstration alleging corruption in a minister. It was alleged he had infringed his duties as a civil servant, and he replied that the constitution allowed him to . .
Cited – Regina (Daly) v Secretary of State for the Home Department HL 23-May-2001
A prison policy requiring prisoners not to be present when their property was searched and their mail was examined was unlawful. The policy had been introduced after failures in search procedures where officers had been intimidated by the presence . .
Cited – Regina v Shayler HL 21-Mar-2002
The defendant had been a member of the security services. On becoming employed, and upon leaving, he had agreed to keep secret those matters disclosed to him. He had broken those agreements and was being prosecuted. He sought a decision that the . .
Cited – Secretary of State for the Home Department v International Transport Roth Gmbh and others CA 22-Feb-2002
The Appellant had introduced a system of fining lorry drivers returning to the UK with illegal immigrants hiding away in their trucks. The rules had been found to be in breach of European law and an interference with their human rights. The . .
Cited – Sporrong and Lonnroth v Sweden ECHR 23-Sep-1982
Balance of Interests in peaceful enjoyment claim
(Plenary Court) The claimants challenged orders expropriating their properties for redevelopment, and the banning of construction pending redevelopment. The orders remained in place for many years.
Held: Article 1 comprises three distinct . .

Cited by:
Cited – Bloggs 61, Regina (on the Application of) v Secretary of State for the Home Department CA 18-Jun-2003
The applicant sought review of a decision to remove him from a witness protection scheme within the prison. He claimed that having been promised protection, he had a legitimate expectation of protection, having been told he would receive protection . .
Cited – Gillan and Another, Regina (on the Application of) v Commissioner of the Police for the Metropolis and Another Admn 31-Oct-2003
The applicants challenged by way of judicial review the way they had been stopped and searched under the Act. They attended a demonstration. The search revealed nothing suspicious. General authorisations for such searches had been issued under the . .
Cited – Nilsen, Regina (on the Application of) v Governor of HMP Full Sutton and Another Admn 19-Dec-2003
The prisoner complained that having written an autobiography, the manuscript materials had been withheld, and that this interfered with his rights of freedom of expression.
Held: Such an action by the prison authorities was not incompatible . .
Cited – A v Secretary of State for the Home Department, and X v Secretary of State for the Home Department HL 16-Dec-2004
The applicants had been imprisoned and held without trial, being suspected of international terrorism. No criminal charges were intended to be brought. They were foreigners and free to return home if they wished, but feared for their lives if they . .
Cited – Forbes v Secretary of State for the Home Department QBD 26-Jul-2005
The defendant argued that the 2003 Act was in breach of his article 8 rights. He had been registered as a sex offender, but the offence for which he had been convicted involved no proof of intention.
Held: The claimant having brought the . .
Cited – Langley and others v Liverpool City Council and others CA 11-Oct-2005
Families had challenged the removal of their children into the care of foster parents by the respondents. The family father, who was blind, had taken to driving. The respondents appealed findings that they had acted unlawfully and in breach of the . .
Cited – Secretary of State for Work and Pensions v M HL 8-Mar-2006
The respondent’s child lived with the estranged father for most of each week. She was obliged to contribute child support. She now lived with a woman, and complained that because her relationship was homosexual, she had been asked to pay more than . .
Cited – Forbes v Secretary of State for the Home Department CA 11-Jul-2006
The defendant had been placed on the sex offenders’ register on conviction for fraudulent evasion of prohibitions on importing goods, by importing indecent photographs of children. He had maintained that he had not known of the exact nature of the . .
Cited – Tweed v Parades Commission for Northern Ireland HL 13-Dec-2006
(Northern Ireland) The applicant sought judicial review of a decision not to disclose documents held by the respondent to him saying that the refusal was disproportionate and infringed his human rights. The respondents said that the documents were . .
Cited – Connolly v Director of Public Prosecutions Admn 15-Feb-2007
The defendant appealed against her conviction under the Act for having sent indecent or grossly offensive material through the post in the form of pictures of an aborted foetus sent to pharmacists. She denied that they were offensive, or that she . .
Cited – Somerville v Scottish Ministers HL 24-Oct-2007
The claimants complained of their segregation while in prison. Several preliminary questions were to be decided: whether damages might be payable for breach of a Convention Right; wheher the act of a prison governor was the act of the executive; . .
Cited – In re P and Others, (Adoption: Unmarried couple) (Northern Ireland); In re G HL 18-Jun-2008
The applicants complained that as an unmarried couple they had been excluded from consideration as adopters.
Held: Northern Ireland legislation had not moved in the same way as it had for other jurisdictions within the UK. The greater . .
Cited – Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 4) Admn 4-Feb-2009
In an earlier judgment, redactions had been made relating to reports by the US government of its treatment of the claimant when held by them at Guantanamo bay. The claimant said he had been tortured and sought the documents to support his defence of . .
Cited – British Broadcasting Corporation (BBC) and Another, Regina (on The Application of) v Ahmad Admn 11-Jan-2012
The BBC wished to interview the prisoner who had been detained pending extradition to the US since 2004, and now challenged decision to refuse the interview.
Held: The claim succeeded. The decision was quashed and must be retaken. If ever any . .
Cited – Core Issues Trust v Transport for London Admn 22-Mar-2013
The claimant sought judicial review of the decision made by TfL not to allow an advertisement on behalf of the Trust to appear on the outside of its buses. It was to read: ‘NOT GAY! EX-GAY, POST-GAY AND PROUD. GET OVER IT!’. The decision was said to . .

Lists of cited by and citing cases may be incomplete.

Media, Elections, Human Rights

Leading Case

Updated: 01 November 2021; Ref: scu.182053

Scargill v National Union of Mineworkers: EAT 27 Jan 2010

EAT CERTIFICATION OFFICER
Various issues arising out of disputed elections for positions within the National Union of Mineworkers.
Held:
(1) The Certification Officer had been entitled to find that the ‘Yorkshire Area Office Branch’ was not a branch of the Union constituted in accordance with its rules.
(2) The requirements of section 50 of the Trade Union and Labour Relations (Consolidation) Act 1992 that every member be accorded an equal entitlement to vote applies to elections for the positions specified in section 46 and not to any vote which may be involved in any prior process for nominating candidates for such positions.
Observations on the fact that the Union’s current arrangements do not secure that every member is a member of a properly constituted branch.

Underhill P J
[2010] UKEAT 0407 – 09 – 2701
Bailii
Trade Union and Labour Relations (Consolidation) Act 1992 50
England and Wales
Citing:
Cited – Paul v NALGO 1987
The Certification Officer considered a challenged Union election, and said: ‘I take ‘election’ in this context to mean a process involving choice by nomination and, where there is more than one nomination, by vote.’ . .

Lists of cited by and citing cases may be incomplete.

Employment, Elections

Updated: 01 November 2021; Ref: scu.408512

Shindler v The United Kingdom: ECHR 7 May 2013

Article 3 of Protocol No. 1
Vote
Restriction on voting rights of non-resident citizens: no violation
Facts – The applicant, a British national, left the United Kingdom in 1982 following his retirement and moved to Italy with his Italian wife. After fifteen years residence overseas he was no longer entitled to vote in parliamentary elections in the United Kingdom. In his application to the European Court he argued that the fifteen-year time-limit on non-resident voting rights was not proportionate and violated his right to vote under Article 3 of Protocol No. 1. In that connection, he noted that he had retained very strong ties with the United Kingdom and was affected by matters such as pensions, banking, financial regulations, taxation and health, which were all the subject of political decisions there.
Law – Article 3 of Protocol No. 1: The restriction on non-resident voting pursued the legitimate aim of confining the parliamentary franchise to those citizens with a close connection to the United Kingdom and who would therefore be most directly affected by its laws. The restriction did not impair the very essence of the right to vote as non-residents were permitted to vote in national elections for fifteen years following their emigration and the right was in any event restored if the person concerned returned to live in the United Kingdom.
Since the applicant had contended that any restriction on voting in national elections based on residence was of itself disproportionate, the Court had to examine, firstly, whether Article 3 of Protocol No. 1 required Contracting States to grant the right to vote to non-resident citizens without any restriction based on residence and, secondly, whether the legislation disenfranchising non-residents after fifteen years of non-residence was a proportionate limitation on the right to vote which struck a fair balance between the competing interests.
On the first of these issues, the Court reviewed the activities of various Council of Europe bodies and found that they had demonstrated a growing awareness at European level of the problems posed by migration in terms of political participation in countries of origin and residence. However, none of the material formed a basis for concluding that, as the law currently stood, States were under an obligation to grant non-residents unrestricted access to the franchise. Likewise, although there was a clear trend in the laws and practices of member States in this sphere in favour of allowing voting by non-residents, and a significant majority in favour of an unrestricted right, it could not be said that the stage had been reached where a common approach or consensus in favour of an unlimited right to vote for non-residents could be identified. Although the matter may need to be kept under review, the margin of appreciation enjoyed by the States in this area thus remained wide.
Turning to the second issue (proportionality) the fifteen-year period during which non-residents were allowed to vote after leaving the country was not unsubstantial. The fact that the applicant might personally have preserved a high level of contact with the United Kingdom, have detailed knowledge of its day-to-day problems and be affected by some of them did not render the imposition of the fifteen-year rule disproportionate as, while they require close scrutiny, general measures which do not allow for discretion in their application may nonetheless be compatible with the Convention. Having regard to the significant burden which would be imposed if the respondent State were required to ascertain in every application to vote by a non-resident whether the individual had a sufficiently close connection to the country, the Court was satisfied that the general measure in this case served to promote legal certainty and to avoid the problems of arbitrariness and inconsistency inherent in weighing interests on a case-by-case basis. It was also relevant that Parliament had sought to weigh the competing interests in the case on several occasions and had debated the question of non-residents’ voting rights in some detail. Indeed, the evolution of its views could be seen in amendments to the period of non-residence since the introduction of overseas voting in 1985.
In sum, regard being had to the margin of appreciation available to the domestic legislature, the restriction imposed by the respondent State on the applicant’s right to vote could be considered proportionate to the legitimate aim pursued. The legislation thus struck a fair balance between the applicant’s interest in participating in parliamentary elections in his country of origin and the chosen legislative policy of the respondent State to confine the parliamentary franchise to citizens with a close connection with the United Kingdom who would therefore be most directly affected by its laws.

Ineta Ziemele, P
19840/09 – Chamber Judgment, [2013] ECHR 423, 19840/09 – Legal Summary, [2013] ECHR 547
Bailii, Bailii
European Convention on Human Rights P1A3
Human Rights
Citing:
Statement of Facts – Shindler v The United Kingdom ECHR 20-Dec-2010
Statement of Facts . .

Cited by:
Cited – Moohan and Another v The Lord Advocate SC 17-Dec-2014
The petitioners, convicted serving prisoners, had sought judicial review of the refusal to allow them to vote in the Scottish Referendum on Independence. The request had been refused in the Outer and Inner Houses.
Held: (Kerr, Wilson JJSC . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Elections

Updated: 01 November 2021; Ref: scu.510995

Regina v Tronoh Mines Ltd: 1952

(Central Criminal Court) The defendant, while a general election was pending, published in a national newspaper an advertisement attacking the financial policy of the outgoing Labour government.
Held: The interpretion of laws restricting expenditure and ‘promoting the election of a candidate’ are inapplicable to advertising promoting or denigrating parties generally. 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.

McNair J
[1952] 1 All ER 697
Representation of the People Act 1949 63
England and Wales
Cited by:
Cited – Director of Public Prosecutions v Luft HL 26-May-1976
The defendants were campaigning against the National Front in an election. They were separately said to have distributed leaflets infringing the 1949 Act, in that the expenses were not authorised, and the leaflets did not have the name of the . .

Lists of cited by and citing cases may be incomplete.

Elections

Leading Case

Updated: 01 November 2021; Ref: scu.536062

Regina v Hailwood and Ackroyd Ltd: CCA 1928

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, Conservative, 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 procuring 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 suggestion is that the expression ‘any candidate’ in the section is not limited to one candidate only, since it is provided by the Interpretation Act. 1889 (52 and 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 candidates then there can be no question that he has committed an offence under the section.’
Avory J
[1928] 2 KB 277
England and Wales
Cited by:
Cited – Director of Public Prosecutions v Luft HL 26-May-1976
The defendants were campaigning against the National Front in an election. They were separately said to have distributed leaflets infringing the 1949 Act, in that the expenses were not authorised, and the leaflets did not have the name of the . .

Lists of cited by and citing cases may be incomplete.
Updated: 17 October 2021; Ref: scu.536061

Tahirov v Azerbaijan: ECHR 11 Jun 2015

ECHR Article 3 of Protocol No. 1
Stand for election
Arbitrary refusal to register independent candidate in parliamentary elections: violation
Facts – The applicant wished to stand as an independent candidate in the parliamentary elections of November 2010. As required by the Electoral Code, he collected more than 450 voter signatures in support of his candidacy and submitted them to the Constituency Electoral Commission (‘the ConEC’). In October 2010 his candidacy was refused by the ConEC since, according to an expert working group established by the commission, a number of signatures were invalid, either because they had been executed by the same person or because information relating to the voter’s address was incomplete.
The applicant lodged a complaint with the Central Electoral Commission (‘the CEC’) arguing that in accordance with the Electoral Code he should have been invited to participate in the process of examining the signatures. He further alleged that the finding that 172 signatures had been ‘executed by the same person’ had been based on expert evidence as to probability without any further factual verification and that he should have been given the opportunity to rectify any incomplete addresses. In support of his complaint, he submitted written statements by 91 voters whose signatures had been declared invalid affirming the authenticity of their signatures.
The CEC dismissed the applicant’s complaint after its own working group found that 178 out of the 600 signatures he had submitted were invalid. The applicant was not invited to participate in that process either. The domestic courts dismissed the applicant’s appeal as unsubstantiated, without examining his arguments in detail.
Law – Article 37 – 1: Various types of alleged violations of the rights protected under Article 3 of Protocol No. 1 to the Convention had been the subject of recurrent and relatively numerous complaints to the Court in cases against Azerbaijan after each parliamentary election. This appeared to disclose the existence of systemic or structural issues which called for adequate general measures by the authorities. No such measures were mentioned in the unilateral declaration that had been submitted by the respondent Government in the instant case. The declaration thus did not provide a sufficient basis for concluding that respect for human rights as defined in the Convention and its Protocols did not require the Court to continue its examination of the case.
Conclusion: Government’s request to strike the application out of the list dismissed (unanimously).
Article 3 of Protocol No. 1: The requirement of collecting 450 supporting signatures for nomination as a candidate had pursued the legitimate aim of reducing the number of fringe candidates.
The Court went on to examine whether the procedure laid down by the Azerbaijani Electoral Code for verifying compliance with that eligibility condition had been conducted in a manner which provided sufficient safeguards against arbitrariness. In that connection, it noted that an OSCE report concerning the Parliamentary Elections of 7 November 2010 in Azerbaijan had expressed concerns about the impartiality of ConEC, the transparency of the registration process and the refusals of registration based on minor technical mistakes. According to the report, most of the complaints received by the CEC challenging refusals had been dismissed without proper examination. Indeed, after the 2010 elections, the European Court itself had received around 30 applications, including the applicant’s, by candidates who had been refused registration owing to the invalidation of supporting signatures. While the refusal to register the applicant’s candidacy – as well as that of many other candidates – had resulted from the alleged inauthenticity of supporting signatures, the Government had not provided specific information about the qualifications and credentials of the working-group experts who had examined the applicant’s signature sheets. In the Court’s view, the lack of clear and sufficient information about the professional qualifications and the criteria for the selection and appointment of working-group experts charged with the task of examining signature sheets was a factor that could seriously undermine overall confidence in the fairness of the procedure of candidate registration and of the elections in general. In any event, the experts had found that there was only a probability that a number of signatures were not authentic, without even specifying how high that probability was. They had not requested any further investigation, although the CEC regulations on electoral commissions’ working groups had provided for possible additional steps in order to clarify the situation.
The applicant’s right to stand for election should not hinge on probabilities and vague opinions, but should be defined by clearly established criteria for compliance with the eligibility conditions. The electoral commissions’ conclusions had therefore been arbitrary. Moreover, none of the procedural guarantees against arbitrariness provided for by the Electoral Code – such as the candidate’s right to be present during the examination of signature sheets or to receive the examination report 24 hours before the relevant electoral commission’s meeting – had been respected. The applicant had therefore been deprived of the opportunity to provide relevant explanations, correct any shortcomings in the signature sheets and to challenge the findings of the working groups throughout the process, a situation which, according to the OSCE report, seemed to be of a systemic nature.
Furthermore, neither the CEC nor the domestic courts had addressed any of the well-founded arguments put forward by the applicant or provided proper reasoning in their judgments. Moreover, contrary to the requirements of the electoral law, the CEC had failed to ensure the applicant’s presence at its meeting. The conduct of the electoral commissions and courts had revealed an apparent lack of genuine concern for upholding the rule of law and protecting the integrity of the election. The applicant had thus not been provided with sufficient safeguards to prevent an arbitrary decision refusing his registration as a candidate.
Conclusion: violation (unanimously).
Article 41: EUR 7,500 in respect of non-pecuniary damage.
31953/11 – Legal Summary, [2015] ECHR 648
Bailii
European Convention on Human Rights
Human Rights

Updated: 12 October 2021; Ref: scu.549953

Bradley v Baylis: CA 1881

The tenant of two rooms, which he took unfurnished at a weekly rent, had the exclusive use of such rooms and a key of the outer door of the house. His landlord had also a key of the outer door, and resided in all the rest of the house, but supplied no attendance or service to the tenant.
Held: Such a tenant occupied the rooms as a lodger. Although, by the 1878 Act, the term ‘dwelling-house’ in the Act of 1867 is provided to mean part of a house separately occupied, yet, in order to be entitled to the borough franchise as the occupier of a dwelling-house, the person must have an occupation in respect of which he can be rated to the relief of the poor and, therefore, he is not entitled to such a dwelling-house franchise by reason of the occupation of part of a house if he occupies such part as a lodger.
Sir George Jessel MR said: ‘. . it remains to consider when a man who occupies a rateable tenement is an occupying tenant, and when he occupies or uses it as a lodger only.
There is, probably, no question on which there has been a greater variety of judicial opinion than this . . . I think it wiser and safer to say that the question whether a man is a lodger, or whether he is an occupying tenant, must depend on the circumstances of each case.
‘First of all, take the case of a lodger. It seems to me, as to unfurnished lodgings where the owner of the house does not let the whole of it, but retains a part for his own residence, and resides there, and where he does not let out the passages, staircase and outer door, but gives to the ‘inmates’ . . . merely a right of ingress and egress, and retains to himself the general control, with the right of interfering – I do not mean an actual interference, but a right to interfere, a right to turn out trespassers, and so on; there I consider that such owner is the occupying tenant of the house, and the inmate, whether he has or has not the exclusive use of the room, is a lodger. That is one extreme case.
There will be an immense number of intermediate cases. Does it make any difference that the inmates have latch-keys to the outer door and also keys to the inner door? I think not. I think they are still lodgers notwithstanding. Does it make any difference that the landlord does not reside there personally, but has resident servants, who occupy, on his behalf, part of the house? I think not. I think that the inmates are still lodgers. Does it make any difference that the landlord does or does not repair? I think not; they are still lodgers.’
Sir George Jessel MR and Baggallay, Brett, Cotton and Lindley LJJ
(1881) 8 QBD 195
Parliamentary and Municipal Registration Act 1878, Representation of the People Act 1867
England and Wales
Cited by:
Cited – Crancour Ltd v Da Silvaesa and Another CA 26-Feb-1986
The plaintiff sought possession of two rooms in a house occupied by the defendants separately. The agreements stated that they were licences. The agreements excluded the occupiers between 10:30am and noon on each day. The occupiers claimed to be . .

Lists of cited by and citing cases may be incomplete.
Updated: 21 September 2021; Ref: scu.259698

Regina v His Honour Judge Sir Donald Hurst, ex parte Smith: QBD 1960

The County Court Judge had directed the removal from the electoral register the names of a number of persons who were not party to the proceedings before him. Motions were brought in the Divisional Court for an order of certiorari to quash his directions. The issue arose as to whether there was jurisdiction to do so, having regard to s.107 of the County Courts Act 1959 which provided: ‘Subject to the provisions of any other Act relating to county courts, no judgment or order of any judge of county courts, nor any appeal proceedings brought before him or pending in his court, shall be removed by appeal, motion, certiorari or otherwise into any other court whatever, except in the manner and according to the provisions of this Act mentioned.’
Held: Lord Parker CJ said: ‘The leading case on the matter is Ex p. Bradlaugh (1878), 3 Q.B.D. 509, where Mellor, J., put the principle in these words . . ‘It is well established that the provision taking away the certiorari does not apply where there was an absence of jurisdiction. The consequence of holding otherwise would be that a metropolitan magistrate could make any order he pleased without question.’
To the same effect is a number of cases including, coming to quite recent times, R. v. Worthington-Evans, Ex p. Madan [1959] 2 Q.B. at p.152 and Re Gilmore’s Application [1957] 1 Q.B. at p.588. I am quite satisfied that certiorari will lie against a county court judge if he has acted without jurisdiction, notwithstanding the sections of the County Courts Act, 1959, to which I have referred.’
Lord Parker CJ
[1960] 2 All ER 385
County Courts Act 1959 107
England and Wales
Cited by:
Cited – Cart and Others, Regina (on The Application of) v The Upper Tribunal and Others Admn 1-Dec-2009
The court was asked whether the supervisory jurisdiction of the High Court, exercisable by way of judicial review, extends to such decisions of the Special Immigration Appeals Commission (SIAC) and the Upper Tribunal (UT) as are not amenable to any . .
Cited – Anisminic Ltd v Foreign Compensation Commission HL 17-Dec-1968
All Public Law Challenges are For a Nullity
The plaintiffs had owned mining property in Egypt. Their interests were damaged and or sequestrated and they sought compensation from the Respondent Commission. The plaintiffs brought an action for the declaration rejecting their claims was a . .

Lists of cited by and citing cases may be incomplete.
Updated: 17 September 2021; Ref: scu.442689

Bowman v The United Kingdom: ECHR 19 Feb 1998

UK Electoral law went too far to restrict freedom of speech when limiting the amounts spent by third parties discussing candidates. The legislative provision in question was held to operate, for all practical purposes, as a total barrier to Mrs Bowman’s communication of her views.
The Court emphasised the special importance of article 10 rights in elections: ‘Free elections and freedom of expression, particularly freedom of political debate, together form the bedrock of any democratic system . . The two rights are inter-related and operate to reinforce each other: for example, as the Court has observed in the past, freedom of expression is one of the ‘conditions’ necessary to ‘ensure the free expression of the opinion of the people in the choice of the legislature . . For this reason, it is particularly important in the period preceding an election that opinions and information of all kinds are permitted to circulate freely.’
Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (victim); Violation of Art. 10; Non-pecuniary damage – finding of violation sufficient; Costs and expenses partial award – Convention proceedings
Times 23-Feb-1998, 24839/94, (1998) 26 EHRR 1, [1998] ECHR 4
Worldlii, Bailii
European Convention on Human Rights 10, Representation of the People Act 1953
Human Rights
Cited by:
Cited – Regina (Amicus etc) v Secretary of State for Trade and Industry Admn 26-Apr-2004
The claimants sought a declaration that part of the Regulations were invalid, and an infringement of their human rights. The Regulations sought to exempt church schools from an obligation not to discriminate against homosexual teachers.
Held: . .
Cited – Animal Defenders International, Regina (on the Application of) v Secretary of State for Culture, Media and Sport HL 12-Mar-2008
The applicant, a non-profit company who campaigned against animal cruelty, sought a declaration of incompatibility for section 321(2) of the 2003 Act, which prevented adverts with political purposes, as an unjustified restraint on the right of . .
Cited – Watkins v Woolas QBD 5-Nov-2010
The petitioner said that in the course of the election campaign, the respondent Labour candidate had used illegal practices in the form of deliberately misleading and racially inflammatory material.
Held: The claim succeeded, and the election . .

Lists of cited by and citing cases may be incomplete.
Updated: 06 September 2021; Ref: scu.165585

George Heriot, Et Alii, Styling Themselves Magistrates and Members of The Town Council of Haddington v William Ray, Et Alii, Likewise Styling Themselves Magistrates and Members of The Town Council of Haddington: HL 30 Apr 1735

Burgh royal – Prescription – Act 7. Geo. II. c. 16. An action being brought for setting aside the election of Magistrates on the ground of irregularities in the previous election of deacons of trades,it was found that the limitation of eight weeks imposed by the statute, was to be reckoned from the date of the election of Magistrates, and not from that of the deacons.
It was found that, in the event of an equality at the election of a deacon of the trade, the old deacon had a casting vote.
It being argued that a person was disqualified for voting at the election of a deacon, because he was bellman of the borough – the objection was repelled.
[1735] UKHL 1 – Paton – 171, (1735) 1 Paton 171
Bailii
Scotland

Updated: 01 September 2021; Ref: scu.554578

McWhirter v Platten: QBD 1970

An order was made for the inspection of uncounted ballot papers before the institution of a prosecution under the Act, on the ground that the offenders, and the nature of offences could not be ascertained until the ballot papers had been inspected.
[1970] 1 QB 508
Representation of the People Act 1983
England and Wales
Cited by:
Cited – Gough v Local Sunday Newspapers (North) Ltd and Another CA 12-Mar-2003
The appellant claimed he had been libelled, when he was called incompetent by the respondent in the way he dealt with finding an uncounted bundle of votes after an election. He appealed a finding of justification. The finding was based upon an . .

Lists of cited by and citing cases may be incomplete.
Updated: 01 September 2021; Ref: scu.179771

McLean and Cole v The United Kingdom: ECHR 11 Jun 2013

The applicants complained that, as convicted prisoners, they had been subject to a blanket ban on voting in elections and had been, or would be, prevented from voting in one or more of the following: elections to the European Parliament on 4 June 2009; the parliamentary election on 6 May 2010; elections to the Scottish Parliament on 5 May 2011; a nationwide referendum on the alternative vote on 5 May 2011; local government elections on various dates; and future elections.
Held: A local government body was not. local authorities in the United Kingdom were not part of the legislature in A3P1 and that complaint (v) was inadmissible. In relation to complaint (iv) the court reiterated (in para 32) that A3P1 was limited to elections concerning the choice of the legislature and did not apply to referendums. It continued: ‘There is nothing in the nature of the referendum at issue in the present case which would lead the court to reach a different conclusion here. It follows that complaint concerning the alternative vote referendum is incompatible ratione materiae with the provisions of the Convention and its Protocols . . and must be rejected pursuant to article 35(4).’
Ineta Ziemele, P
2522/12, [2013] ECHR 1368, (2013) 57 EHRR SE8, 12626/13
Bailii
European Convention on Human Rights A3P1, Representation of the People Act 1983
Human Rights
Cited by:
Cited – Chester, Regina (on The Application of) v Secretary of State for Justice SC 16-Oct-2013
The two applicants were serving life sentences for murder. Each sought damages for the unlawful withdrawal of their rights to vote in elections, and the failure of the British parliament to take steps to comply with the judgment.
Held: The . .
Cited – Chester, Regina (on The Application of) v Secretary of State for Justice SC 16-Oct-2013
The two applicants were serving life sentences for murder. Each sought damages for the unlawful withdrawal of their rights to vote in elections, and the failure of the British parliament to take steps to comply with the judgment.
Held: The . .
Cited – Moohan and Another v The Lord Advocate SC 17-Dec-2014
The petitioners, convicted serving prisoners, had sought judicial review of the refusal to allow them to vote in the Scottish Referendum on Independence. The request had been refused in the Outer and Inner Houses.
Held: (Kerr, Wilson JJSC . .

Lists of cited by and citing cases may be incomplete.
Updated: 30 August 2021; Ref: scu.539933

Fairbairn v Scottish National Party: 1979

Lord Ross held that a statement made during the course of an election campaign, which suggested that the pursuer (a member of parliament) did not collect his constituency mail from the House of Commons Post office was an attack on his character as a political representative but did not amount to an attack on his honour, veracity or purity. He rejected a claim of electoral malpractice, and said: ‘that every false statement in relation to thee public character of a candidate may in one sense reflect upon the candidate’s personal character, but before there can be an illegal practice in terms of the statute, the false statement of fact must be directly related to the personal character of conduct of the candidate.’
Lord Ross
(1979) SC 393
England and Wales
Citing:
Cited – The North Division of the County of Louth 1911
Madden J explained the Act: ‘The Act of 1895 afforded a further protection to constituencies and to candidates. The mischief against which it was directed was an abuse of the right of free discussion by the dissemination among a constituency of . .

Cited by:
Cited – Watkins v Woolas QBD 5-Nov-2010
The petitioner said that in the course of the election campaign, the respondent Labour candidate had used illegal practices in the form of deliberately misleading and racially inflammatory material.
Held: The claim succeeded, and the election . .

Lists of cited by and citing cases may be incomplete.
Updated: 09 August 2021; Ref: scu.425815

Mackinlay and Others, Regina v: SC 25 Jul 2018

A trial had not yet been begun, but the court was now asked a point of pure statutory construction relating to the manner in which election expenses are required to be calculated and declared. The defendants face charges of knowingly making false declarations in relation to election expenses, or aiding and abetting or encouraging or assisting such offences. The parties asked the judge to determine the point on a preparatory hearing and the CACD certified the question: ‘Do property, goods, services or facilities transferred to or provided for the use or benefit of a candidate free of charge or at a discount (as identified in section 90C(1)(a) of the Representation of the People Act 1983 (as amended)) only fall to be declared as election expenses if they have been authorised by the candidate, his election agent or someone authorised by either or both of them?’
Held: No. The appeal was allowed.
The test for the operation of section 90C is the threefold one: ‘ Section 90C asks, by subsections (1)(a) and (b), three questions about the expenditure it is considering. If those questions are answered ‘yes’, then by subsection (2) it stipulates that the expenditure shall be ‘treated . . as incurred by the candidate’ for the purposes of the Act. That is a deeming provision. If the conditions are satisfied, the notional expenditure becomes by statute the same as if it had been actually incurred by the candidate, even though it has not actually been incurred by him. The three questions can be simplified for present purposes by expressing them in terms of services, but of course the same applies to goods, property or facilities. The questions posed by subsections (1)(a) and (b) are:
1. Were the services provided for the use or benefit of the candidate either free of charge or at a discount of more than 10% of commercial value? (subsection (1)(a))
2. Were they made use of by or on behalf of the candidate? (subsection (1)(b)) and
3. If the services had actually been paid for (expenses actually incurred) by or on behalf of the candidate, would those expenses be election expenses incurred by or on his behalf (and thus subject to the various controls imposed by the Act)? (also subsection (1)(b)).’
Lady Hale, President, Lord Mance, Lord Hughes, Lord Hodge, Lord Lloyd-Jones
[2018] UKSC 42, UKSC 2018/0091
Bailii, Bailii Summary, SC, SC Summary, SC Summary Video, SC 2018 May 28 am Video, SC 2018 May 28 pm Video
Representation of the People Act 1983, Political Parties, Elections and Referendums Act 2000
England and Wales
Citing:
At CACD – Mackinlay and Others, Regina v CACD 1-Apr-2018
. .

Lists of cited by and citing cases may be incomplete.
Updated: 09 August 2021; Ref: scu.620136

Mackinlay and Others, Regina v: CACD 1 Apr 2018

[2018] EWCA Crim 724
Representation of the People Act 1983, Political Parties, Elections and Referendums Act 2000
England and Wales
Cited by:
At CACD – Mackinlay and Others, Regina v SC 25-Jul-2018
A trial had not yet been begun, but the court was now asked a point of pure statutory construction relating to the manner in which election expenses are required to be calculated and declared. The defendants face charges of knowingly making false . .

Lists of cited by and citing cases may be incomplete.
Updated: 09 August 2021; Ref: scu.666496

Edgell v Glover, Garnett (Returning Officer): QBD 4 Nov 2003

The constituency had adopted an all postal ballot, resulting in a counted majority of one. One ballot paper’s confirmation of identity had not been signed.
Held: The function of the court, exercising its jurisdiction under section 48(1), is not assisted by consideration of a standard of proof. That said, having regard to the consequences of declaring an election void, for the court to conclude the result is affected there will need to be a preponderance of evidence supporting that conclusion. The first respondent had not been duly elected. Given that errors were likely in any such process it was wrong to act on the basis that other errors did not exist. ‘I regard the use of a cross as presenting some difficulty for the requirement of authentication because it conveys no personal attribute or connection with the name of the voter. A signature has the attribute of purporting to be the signature of the name it represents. A cross can be placed by anyone and does not purport to be connected with any named person. ‘ The election was declared invalid.
The Honourable Mr Justice Newman The Honourable Mr Justice David Clarke
[2003] EWHC 2566 (QB)
Bailii
Representation of the People Act 1982 146
England and Wales
Citing:
Cited – Re Kensington North Parliamentary Election 1960
‘The question of the burden of proof does not, on the strict wording of section 16, really arise . . I think that with the change of wording under section 16(3) of the Act of 1949 it is for the court to make up its mind on the evidence as a whole . .
Cited – Levers v Morris QBD 1972
The court drew a lot to decide the outcome of a drawn election. . .
Cited – Morgan v Simpson CA 1974
Voting papers that were invalid as a result of minor administrative errors by officials (and not the voters). Counting the invalid votes would have affected the election outcome.
Held: The election was declared void. Section 37(1) was not . .
Cited – Nadeem Akhtar Saifi v Governor of Brixton Prison and Union of India Admn 21-Dec-2000
The applicant for habeas corpus resisted extradition to India on the ground, among others, that the prosecution relied on a statement obtained by torture and since retracted.
Held: the court accepted the magistrate’s judgment that fairness did . .
Cited – Selby v Selby 1817
Signing: ‘That is signing is, putting his name to [the document] or [doing] some other act intended by him to be equivalent to the actual signature of the name – such as a person unable to write making his mark’. . .
Cited – Regina v Moore 1884
(Australia) ‘Where a statute merely requires that a document shall be signed, the statute is satisfied by proof of the making of a mark upon the document by or by the authority of that signatory’. . .
Cited – Goodman v Eban (J) Ltd CA 1954
The Court considered whether a rubber stamp facsimile of a solicitor’s firm on a bill of costs met the requirement for the bill to be ‘signed’.
Held: In connection with authentication: ‘It follows, I think, that the essential requirement of . .

Lists of cited by and citing cases may be incomplete.
Updated: 28 July 2021; Ref: scu.187466

Regina v Henry Moore Griffiths; 11 Jun 1857

References: [1857] EngR 661, (1857) 7 El & Bl 952, (1857) 119 ER 1501
Links: Commonlii
The high sheriff of a county, in August 1854, appointed G. election auditor for the county, under The Corrupt Practices Prevention Act, 1854 (17 & 18 Vict. c. 102, S. 15), to act at any elections for and during the year then next ensuing, and until another appointment should be made. No fresh appointment was made in 1855. In March 1856 the then high sheriff appointed W. election auditor for the current year. – On a rule for a quo warranto against G. :-Held, that it was not necessary that the appointment for 1855-1856 should be made during the month of August: that W. was well appointed ; and that, on his appointment, Q. ceased to be election auditor : and the rule was made absolute.
Statutes: Corrupt Practices Prevention Act, 1854

Regina v Secretary of State ex parte Toner and Walsh; NIQB 1997

References: [1997] NIQB 18
The claimants sought damages saying that the respondent had infringed their human rights in removing their right to vote in an election whilst serving prison sentences.
This case is cited by:

  • Cited – Tovey and Others -v- Ministry of Justice QBD (Bailii, [2011] EWHC 271 (QB))
    The claimants, serving prisoners, sought damages saying that the refusal to allow them to vote was in infringement of their human rights. The large numbers of claims had been consolidated in London. The claimant sought to withdraw his claim.

Sauve v Canada (Chief Electoral Officer); 31 Oct 2002

References: 218 DLR (4th) 577, 168 CCC (3d) 449, 5 CR (6th) 203, 294 NR 1, JE 2002-1974, [2002] SCJ No 66 (QL), 117 ACWS (3d) 553, [2002] ACS no 66, 55 WCB (2d) 21, 98 CRR (2d) 1, [2002] 3 SCR 519, 2002 SCC 68 (CanLII)
Links: Canlii
Coram: McLachlin CJ and L’Heureux-Dube, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.
Canlii Supreme Court of Canada – Constitutional law – Charter of Rights – Right to vote – Prisoners – Canada Elections Act provision disqualifying persons imprisoned in correctional institution serving sentences of two years or more from voting in federal elections – Crown conceding that provision infringes right to vote – Whether infringement justified – Canadian Charter of Rights and Freedoms, ss. 1, 3 – Canada Elections Act, R.S.C. 1985, c. E-2, s. 51(e).
Constitutional law – Charter of Rights – Equality rights – Prisoners – Canada Elections Act provision disqualifying persons imprisoned in correctional institution serving sentences of two years or more from voting in federal elections – Whether provision infringes equality rights – Canadian Charter of Rights and Freedoms, s. 15(1) – Canada Elections Act, R.S.C. 1985, c. E-2, s. 51(e).
Elections – Disqualifications of electors – Prisoners – Canada Elections Act provision disqualifying persons imprisoned in correctional institution serving sentences of two years or more from voting in federal elections – Whether provision constitutional – Canadian Charter of Rights and Freedoms, ss. 1, 3, 15(1) – Canada Elections Act, R.S.C. 1985, c. E-2, s. 51(e).
This case is cited by:

  • Cited – Chester, Regina (on The Application of) -v- Secretary of State for Justice SC (Bailii, [2013] UKSC 63, [2014] 1 AC 271, [2014] HRLR 3, [2013] 3 WLR 1076, [2014] 1 All ER 683, [2013] WLR(D) 392, [2014] 1 CMLR 45, 2014 SC (UKSC) 25, 2014 SLT 143, 2013 GWD 34-676, WLRD, Bailii Summary, UKSC 2012/0151, SC Summary, SC)
    The two applicants were serving life sentences for murder. Each sought damages for the unlawful withdrawal of their rights to vote in elections, and the failure of the British parliament to take steps to comply with the judgment.
    Held: The . .