Baxter v Fear & Ors

Under section 48 of the Representation of the People Act 1983, an election must be declared invalid where the court is satisfied that an official act or omission affected the result. The court must not speculate about how disenfranchised electors would have voted. Such an inquiry would undermine ballot secrecy, constitutional principle and legal certainty. Simple arithmetic may establish that an error could not have affected a candidate’s position, but inferential or psephological analysis of the distribution of hypothetical votes is impermissible. Election rules also provide no general self-help power enabling a returning officer to issue replacement ballot papers after a ballot has been cast. Errors must be dealt with through the prescribed scrutiny and judicial process.

A local government election for the Kinson South ward was affected by the accidental interchange of ballot papers for Kinson North and Kinson South. Some electors received invalid papers, while others were temporarily unable to vote. A subsequent door-knocking exercise invited 56 electors to return and cast further ballots.

The petitioner challenged the election under section 146 of the Representation of the People Act 1983. The parties agreed a special case. The court considered whether it could infer how disenfranchised electors would have voted when applying section 48, and whether the returning officer could issue second ballot papers to electors who had received invalid papers.

1. Disposition. The petition succeeded in relation to the elections of Roger Marley and Norman Decent. The court held that the returning officer’s acts and omissions had affected the result. The election of Laurence Fear could not be invalidated because the numerical gap between his votes and the petitioner’s exceeded the number of affected electors.
2. Section 48. Section 48 requires both substantial compliance with electoral law and satisfaction that the relevant act or omission did not affect the result. The court adopted the general approach in Morgan v Simpson [1975] 1 QB 151, as synthesised in Edgell v Glover [2003] EWHC 2566 (QB) and Considine v Didrichsen [2004] EWHC 2711 (QB).
3. The court may use simple subtraction and straightforward deductive reasoning to show that an error could not have affected the result. It may not undertake a statistical, behavioural or psephological inquiry into how excluded voters would or might have distributed their votes. The 115 effectively disenfranchised electors therefore meant that the result had been affected, without any hypothetical reconstruction of the poll.
4. Ballot papers. The Local Elections (Principal Areas) (England and Wales) Rules 2006 formed a comprehensive code. A ballot placed in the box on an invalid paper remained legally effective unless and until its validity was adjudicated. The returning officer had no power to correct the error by issuing a second ballot paper. The statutory scheme postponed scrutiny of irregularities until after the poll and left no room for discretionary self-help remedies.
5. The court considered the approach in Re The Parliamentary Election for Fermanagh and South Tyrone and distinguished it as involving only a straightforward head count. The petition was upheld on both issues.