Burnley Local Government Election, Re

In deciding whether a ballot paper is void for uncertainty, the court must give effect to a clearly apparent voting intention. The provisions preserving votes marked outside the proper place, other than by a cross, or with more than one mark are not additional cumulative validity tests. They qualify the general rule that a ballot paper void for uncertainty must not be counted.

The statutory scheme is purposive. Guidance on how to mark a ballot paper is not itself a rule making every departure invalid. The paper must be considered on its own merits and in the context of the whole electorate. A mark in the box beside a candidate’s name may clearly show an intention to vote for that candidate despite departing from the guidance.

A local government election was held for the Rosegrove with Lowerhouse Ward in Burnley. Paul Reynolds and Peter Rowe each received 489 votes, and the Returning Officer declared Reynolds elected after drawing lots. The petitioners challenged the counting of ballot paper MAP2, which bore an oblique line in the box beside Reynolds’s name and had been marked as rejected for uncertainty.

Following a scrutiny and recount, the issue was stated as a special case under the Representation of the People Act 1983. The central question was whether MAP2 was void for uncertainty under rule 47 of the 2006 Rules because the mark was outside the proper place and was not a cross.

1. Disposition. The court answered the special-case question in the negative. MAP2 was not void for uncertainty. Reynolds was duly elected.

2. Construction of rule 47. Rule 47(3) was to be read purposively. The word “or” in rule 47(3)(a) and (b) did not impose a cumulative “two strikes and you are out” rule. The legislative purpose was to give effect to a vote where the voter’s intention clearly appeared. The safeguards in rule 47(3) were not additional tests of validity.

3. Assessment of the ballot paper. The 2006 Rules provided guidance, rather than mandatory marking rules. The controlling question under rule 47(1) was whether the paper was void for uncertainty. Each paper had to be considered on its own merits and as a matter of first impression. The court was required to recognise the whole electorate, including voters affected by language, eyesight, dexterity, disability, age or illness.

4. The voter had attended the polling station, received a ballot paper and placed a mark opposite Reynolds’s name. The intention to vote for Reynolds clearly appeared from MAP2, notwithstanding the form of the mark.

5. Costs. The challenge was a legitimate and serious public-interest challenge to a ballot decisive of the election. Costs had to remain proportionate and should not unduly deter access to the court. Costs were summarily assessed at £20,000 for the Returning Officer and £10,000 for Reynolds.

First-instance determination by the Divisional Court of the High Court on a special case stated under the Representation of the People Act 1983.