Illegal Election Practice

December 18th, 2018

In the Matter of the Representation of the People Act 1983 (“the RPA”) and in the Matter of a Local Government Election in the Boulton Ward of the City of Derby, Banwait v Bettany (2018) EWHC 3263 (QB) was an Election Petition brought by Mr Banwait.

He was the unsuccessful Labour candidate in the local Election. Mr Banwait polled 1,128 votes in the Election, some 474 votes fewer than the successful candidate representing UKIP, Mr Bettany. He was the respondent to the Petition. By his Petition Mr Banwait challenged the Election and sought an order that Mr Bettany was not duly elected and that the Election was void, and would have to be re-run.The challenge was based, firstly, on the assertion that, contrary to Section 106 of the RPA, Mr Bettany, or at least those for whom he was responsible were guilty of an “illegal practice”, in that, before the Election and for the purpose of affecting the return of Mr Banwait at the Election, he or they published false statements of fact in relation to Mr Banwait’s personal character or conduct. The false statement of fact about which Mr Banwait complained was the assertion, made in various pieces of election material generated and calculated by or on behalf of Mr Bettany prior to the Election that, in describing himself as a resident of that area of Derby called Alvaston Mr Banwait was a liar because, in fact, he was not a resident of Alvaston but rather a resident of the neighbouring district of Wilmorton which, it was asserted by Mr Bettany, is a separate and distinct area of Derby, that is: separate and distinct from Alvaston.

Mr Banwait asserted that he does indeed live in Alvaston. He did not dispute that he resides in Wilmorton, but he asserted that Wilmorton is simply a part of Alvaston. In any event, his address falls within the Alvaston Ward and so, on that basis alone, he argued that he is perfectly entitled to describe himself as a resident of Alvaston. He argued that the contention by Mr Bettany to the effect that he, that is Mr Banwait, lied about his address was an attack on his personal character, because it was an attack on his personal honesty and trustworthiness.

Section 106 of the 1983 Act provides a defence to one accused of breach of it. Even if a person makes or publishes a false statement, he is not in breach of Section 106, and, therefore, has not committed an illegal practice, if he can show that he had reasonable grounds for believing, and did believe, that the statement was true. Mr Banwait argued that Mr Bettany had failed to show that he believed that Mr Banwait was lying when he asserted that he was a resident of Alvaston and that, even if Mr Bettany did believe that, he had failed to show that he had reasonable grounds for so believing.

As for Mr Bettany, he accepted that he had accused Mr Banwait of lying and that, thus, he had asserted that Mr Banwait is a liar. In his evidence Mr Bettany was adamant that, in sayng that he lived in Alvaston, Mr Banwait was indeed lying, because Wilmorton is not Alvaston. In fact, in the course of final submissions Mr Bettany’s Counsel conceded that in reality Mr Banwait was not lying when he said that he lived in Alvaston. That was essentially a concession that the accusation made by Mr Bettany to the effect that Mr Banwait was a liar was a false accusation.

Mr Bettany’s position was that the allegation that Mr Banwait was a liar was an attack on Mr Bettany’s political character or conduct and not his personal character. He asserted that on the basis that there is some electoral advantage in Mr Banwait asserting that he is a resident of Alvaston rather than Wilmorton because Alvaston, as a geographical location, is closer to the Boulton Ward than Wilmorton and it is likely to play much better with the Boulton Ward electorate if they think that the candidate’s residence is as proximate as possible to their Ward. In other words, suggesting that he lives in Alvaston makes Mr Banwait less remote from the Boulton Ward electorate than they would know him to be if they knew that he actually lived in Wilmorton. The contention being that the more physically remote a politician is from his electorate the less attractive he is likely to be to that electorate.

In relation to the law on Section 106 of the RPA, His Honour Judge Andrew Saffman, sitting as a Judge of the High Court, said:-

“37.  The elements of the offence which have to be established beyond reasonable doubt by the petitioner are that (a) the statements of fact complained of were indeed false, (b) that where the allegation is that the false statements were made or published by a candidate or by somebody for whom the candidate was responsible, which of course is the allegation here, the petitioner must establish that the candidate or his election agent authorised the making or publishing of the false statement or at least gave consent to the person who made the false statement to disseminate that false information or alternatively that the candidate or his election agent paid for the circulation of the false statement, and (c) the petitioner must establish that the false statements relate to the candidate’s personal character or conduct rather than merely a false statement of fact which deals, as Mr Justice Darling put it, in the Cumberland Cockermouth Division case, [2001] 5 OM, H, 155, “… with the political position, reputation or action of the candidate“.

38. Even if the petitioner establishes those elements, then nonetheless there is no breach of section 106 if a respondent establishes, on the balance of probabilities, that he had reasonable grounds for believing and did believe that the false statements were in fact true.”

“40. … The real issue here relates to the nature of the attack: was it personal or political? It seems to me that most of the jurisprudence in relation to section 106 has revolved around just this issue, namely whether the false statement is in relation to a candidate’s personal character or conduct or his political position or reputation.”

“42. Perhaps the most recent authoritative case in which this issue has been discussed is R on the application of Woolas v Parliamentary Court [2011] 2 WLR, 1362. …”

“44. … a statement of fact does not become a personal statement of fact simply because its effect is to suggest that the candidate is untrustworthy.”

“50. Finally, on the question of belief and the reasonableness of that belief, I remind myself that the burden is on the defendant to establish, first, that he had that belief and, secondly, that separately he had reasonable grounds for believing it. It is acknowledged by both parties that the defendant discharges the burden on him if he establishes those on the balance of probabilities. I do not have to be sure that he had that belief nor do I have to be sure that belief was reasonably held, I simply have to conclude that on balance I am satisfied that he held that belief and on balance that there were reasonable grounds for him holding that belief.

51. … I do not accept that there is any subjective element to this. I see no basis for departing from the general proposition that when legislation refers to reasonableness it is generally reasonableness in the objective sense. In this case it is what the man or woman on the Boulton Ward omnibus would consider to be reasonable.”

Applying the law, the Judge said:-

62. “ So what are my conclusions? … It is important, I think, to say loud and clear that I am wholly satisfied that, in saying that he resided in Alvaston, Mr Banwait was not lying. Since it is readily conceded by Mr Bettany that the message that the electorate were intended to take from the leaflets was that Mr Banwait was a liar, it is inevitable therefore that that was a false statement of fact. …

63. Secondly, … Mr Bettany would be unable to claim the protection of section 106(2).

64. The more substantive issue, it seems to me, is whether this false statement was a personal attack or a political attack or, to use the phraseology of the Act, whether it was a false statement of fact in relation to the candidate’s personal character or conduct.

65. … I am satisfied that this was a political attack and not a personal attack. Indeed in so far as it is necessary I am satisfied about that beyond reasonable doubt.

66. I am assisted in that conclusion by the fact that one can well see an electoral advantage in a candidate being able to assert that he is local to the area that he seeks to represent. In my views that proposition need only be articulated for it to be clear that it is an obvious one. Inevitably the electorate may well think that a councillor who lives locally is more likely to act in their interests than one whose residence is distant if only on the basis that he or she is more likely in those circumstances to be adversely affected by policies which adversely affect the ward. In addition, of course it stands to reason that a local candidate may be more accessible and therefore more attractive than one who resides further away.

67. An attack along the lines that the candidate is lying about his address and that he actually lives further away from the ward than he would have his electorate believe is clearly a line of attack designed to frustrate that political advantage. In the circumstances it is almost inevitably, in my view a political attack.

68. I am fortified in my view by an analysis of Woolas. …

69. … paragraph 117 … is critical. What is said by Thomas LJ in that paragraph is really unequivocal and I quote:

Whether a candidate lives or does not live in the constituency is a matter relating not to his personal character or conduct but to his political position”. …”

“70. I fully understand her arguments that Woolas related to a question about whether reneging on a promise was a personal or political attack and that an accusation of lying is a more serious allegation. One is an unprincipled change of position, the other is a downright lie, but I do not think that the distinction is sufficient for me to ignore the guidance clearly given by Woolas. The fact is that both allegations cast doubt on the trustworthiness and indeed ethics of the person about whom the allegations are made.

71. I do not overlook paragraph 121 of Woolas. I accept that the line on which a political attack becomes a personal one may not be well defined but I am satisfied, taking into account the observations in Woolas and the evidence in this case, that wherever that line is, this allegation falls on the political rather than the personal side of it.”

“73. This finding inevitably means that the section 106 … allegation is not made out …”

“94. … this petition falls to be dismissed.”

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