Richards v Devenish & Anor

An election is not invalid merely because an irregularity or administrative error is alleged. The petitioner must establish, on the civil standard of proof, an error or breach of duty and show that the election was not conducted substantially in accordance with the law or that the act or omission affected the result. Courts should not speculate about how electors might have voted. Variations in turnout, postal-vote participation or demographic patterns do not themselves establish electoral maladministration. A scrutiny will not be ordered where the allegations are weak and the evidence provides no proper basis for believing that the result was affected.

The petitioner, a Labour candidate, challenged the result of the West Central London Assembly election held on 5 May 2016, which was won by Tony Devenish. She alleged errors in adjudication, unusually low turnout, postal-voting anomalies, irregular handling of ballot boxes and improper electronic counting. She also sought a full scrutiny of electoral documents and advanced wider allegations of conspiracy and political interference. The Election Court considered whether the alleged matters established that the successful candidate was not duly elected or that the election was avoided under the Representation of the People Act 1983.

1. Statutory test. The petition was brought on the ground that the successful candidate was not duly elected. Under section 48 of the Representation of the People Act 1983, an election is not invalid if it was conducted substantially in accordance with the law and the act or omission did not affect the result. That provision was interpreted in Morgan v Simpson [1975] 1 QB 151.
2. Proof and speculation. The petitioner had to prove the case on the civil standard; suspicion was insufficient. Following Baxter v Fear [2015] EWHC 3136, the court should not hypothesise about how people might have voted. A clear undercount could theoretically support an inference that the successful candidate was not duly elected, but only if it was sufficient to overcome the majority.
3. Allegations. Differences in turnout between constituencies and elections, low postal-vote participation and apparent discrepancies between postal-vote figures had ordinary explanations and did not establish an error or breach of duty. The evidence showed that election officials were experienced, that the counting and postal-vote processes had been subject to scrutiny, and that no material irregularity had been identified. The allegations concerning ballot boxes, electronic counting and conspiracy were unsupported.
4. Scrutiny and result. There was no proper basis for ordering a full scrutiny. All allegations in the petition were dismissed. The election had been conducted substantially in accordance with the law, and no act or omission had affected the result.
5. Recommendation. Although retaining a clearer tally of ballot boxes was not a statutory requirement and did not invalidate the election, the court recommended that such a tally be retained as good practice.