Fitch v Stephenson & Ors

Under Representation of the People Act 1983, an election is not invalid merely because serious counting errors or procedural breaches occurred. The court must consider the election as a whole. Invalidity requires either substantial non-compliance with election law or a breach which affected the result.

Where all valid votes can be securely accounted for and the winning candidates would remain unchanged, the omission to count votes does not itself invalidate the election. The availability of scrutiny and recount supports preservation of the election and correction of the declared result where necessary. Section 46 of the Electoral Administration Act 2006 does not alter that statutory test.

John Fitch, a defeated candidate, presented an election petition under section 127 of the Representation of the People Act 1983 concerning the Leicester City Council election held on 3 May 2007. The Returning Officer failed to count 4,169 of 9,099 votes cast in Abbey Ward. An informal count showed that the result would have been unchanged.

The petition alleged that the election was not conducted substantially in accordance with election law. The respondents also challenged the petition for failing to state the result of the election and for defective service. The central issues were whether the counting error invalidated the election and whether the procedural defects required the petition to be struck out.

1. Substantive issue. The petition was rejected. The failure to count 4,169 votes was a serious breach, but the election remained substantially in accordance with election law and the result was unaffected.
2. Section 48 required consideration of the election as a whole. The court followed the three-part analysis summarised in Morgan v Simpson [1975] 1 QB 151: substantial non-compliance invalidates an election regardless of its result; a substantially compliant election is preserved where a breach did not affect the result; and a breach affecting the result invalidates the election.
3. The court applied Marshall v Gibson and Harris v Gilmour. Courts should strive to uphold elections where the true result can be ascertained and the integrity and secrecy of the ballot have been preserved. The omission to count valid votes is inherently incapable of affecting which candidates were elected where the votes can be securely accounted for.
4. The court distinguished Gough v Local Sunday Newspapers (North) Ltd [2003] 1 WLR 1836. That case concerned the construction of Rule 47 and an application for inspection and counting before a decision whether to present an election petition. The observation that informal counts should not take place was obiter and did not address the present circumstances.
5. Section 46 of the Electoral Administration Act 2006 permits correction of procedural errors but prohibits a returning officer from recounting votes after declaration. It does not change the section 48 test or make every informal count fatal to an election.
6. Procedural issue. Rules 4 and 6 of the Election Petition Rules 1960 were mandatory. The petition failed to state the result in its body, and service on the Returning Officer at the Town Hall was invalid because he was an individual who should have been served at his usual or last known residence. There was no power to amend or extend time. The court nevertheless made no further order because the petition had already failed on its merits.