Banwait v Bettany (rev 1)

For the purposes of Representation of the People Act 1983, an allegation that a candidate is lying about his address is ordinarily a statement about his political position, rather than his personal character or conduct, where it is directed at the electoral advantage of appearing local. An imputation of dishonesty does not, by itself, make the attack personal. The statutory defence requires proof both of genuine belief and of objectively reasonable grounds for believing the statement true. A fraudulent device under section 115 must have been disseminated, or at least an attempt made to disseminate it, to the relevant electorate. An election petition based on either practice fails if the necessary elements are not proved to the required standard.

The petitioner, an unsuccessful candidate in the Boulton ward local election, challenged the respondent’s election. He alleged that campaign material falsely portrayed him as a liar because he described himself as living in Alvaston while residing in Wilmorton, contrary to section 106 of the Representation of the People Act 1983.

He also alleged that a leaflet entitled “Labour News” was a fraudulent device intended to impede the free exercise of the franchise, contrary to section 115. The respondent disputed responsibility for, and dissemination of, the leaflet. The central issues were whether the address allegation concerned personal character or political position, whether the statutory defence was established, and whether the leaflet had been disseminated.

1. Section 106 address allegation. The petitioner established that the accusation that he was a liar was false and that the respondent or his election agent had issued the relevant material. However, the allegation was a political attack. It was intended to deprive the petitioner of the electoral advantage of appearing local to the ward. Following the reasoning in R on the application of Woolas v Parliamentary Court [2011] 2 WLR 1362, an allegation may cast doubt on a candidate’s honesty without becoming an allegation concerning personal character or conduct.
2. The court treated the guidance that a candidate’s residence is a matter relating to political position as decisive. The section 106 allegation therefore failed without the need to determine the statutory defence.
3. Alternative section 106 conclusion. If the allegation had been personal, the respondent proved that he genuinely believed the petitioner was lying. He did not prove objectively reasonable grounds for that belief. It was reasonable to believe that the petitioner lived in Wilmorton, but not reasonable to conclude that he was lying merely because he adopted a different, legitimate view that Wilmorton was within Alvaston.
4. Section 115 leaflet allegation. The petitioner failed to prove beyond reasonable doubt that the “Labour News” leaflet had been disseminated by the respondent or someone for whom he was legally responsible. The evidence was hearsay, unsupported by the petitioner’s election agent, and contradicted by the respondent and his agent. The allegation therefore failed.
5. Had dissemination been proved, the court would have found the leaflet to be a fraudulent device. Its heading, colours and use of the Labour Party rose gave it the appearance of Labour material, despite a small reference to UKIP. Applying R v Rowe ex parte Mainwaring [1992] 1 WLR 1059, the leaflet’s overall appearance mattered. This was an obiter conclusion.
6. The petition was dismissed. The court did not need to make an order avoiding the election.

First instance. No prior appellate decision is stated in the judgment.