Hussein & Ors v Khan & Ors

An election petition must disclose, within the applicable time, sufficient particulars of corrupt or illegal practices capable of satisfying the statutory test for avoiding an election. Irregularities in registration on the absent voters list, or offences under electoral legislation, do not by themselves establish practices within section 164 of the Representation of the People Act 1983.

Scrutiny is procedural assistance, not a fishing exercise. It may be ordered only where the petition already presents a properly particularised and objectively supported case which scrutiny could materially advance. The public interest in electoral integrity must be balanced against the need for prompt resolution and fairness to elected representatives.

The petitioners, voters and Labour Party supporters, challenged the result of a Birmingham City Council by-election. They alleged corrupt and illegal practices involving postal voting and sought to have the election declared void.

Following an earlier directions order, the petitioners were required to serve a properly particularised amended petition. They failed to comply within time and sought an extension at the adjourned directions hearing. The central issues were whether time should be extended, whether the revised allegations disclosed a sufficient case under section 164 of the Representation of the People Act 1983, and whether scrutiny should be permitted to discover further evidence.

1. The Court refused the extension of time and struck out the original petition. The petition did not disclose a case capable of showing that corrupt or illegal practices had prevailed so extensively that they might reasonably be supposed to have affected the election result.
2. The statutory time limit for presenting an election petition under section 129 of the Representation of the People Act 1983 could not be extended. Although the procedural rules permitted extensions for periods prescribed by the rules, that power did not cure the failure to provide the required particulars within the statutory period.
3. An allegation that a person was placed on the absent voters list without applying might disclose an offence under Schedule 4 to the Representation of the People Act 2000, but it did not, without more, constitute a corrupt or illegal practice within section 164 of the 1983 Act. It could become relevant to undue influence where a voter, having been placed on the list without consent, tried to vote in person and was refused a vote because of that registration.
4. The revised petition contained only a small number of allegations which could potentially fall within section 164. Most allegations did not state that ballot papers had been intercepted, votes had been cast by others, voters had been prevented from voting, or that any candidate, agent or individual had committed an act within the statutory provisions.
5. In deciding whether to extend time, the Court balanced the public interest in protecting electoral integrity against the need for election petitions to be determined speedily and the prejudice caused to elected representatives. The petitioners’ delay, failure to apply formally for an extension, inadequate particulars and uncertain funding prospects weighed heavily against relief.
6. Scrutiny could not be used as a means of discovering whether a proper case existed. It had to support an already arguable, sufficiently particularised case and required material showing that it could advance the petition. The petitioners could investigate many matters through voters and publicly available election records, including the marked register and votes lists.
7. Even on the petitioners’ best case, the alleged affected votes could not have altered the result. Alleged double voting could be investigated or prosecuted as a criminal matter, but it could not justify scrutiny or avoidance of the election on the material before the Court.

Mr Justice Tugendhat agreed with the judgment of Mr Justice Ouseley.