Robert Buchan v Jennifer Elliott

Section 106 of the Representation of the People Act 1983 applies to false statements of fact about a candidate’s personal character or conduct, but not to statements concerning the candidate’s political position, character or conduct. The distinction is exclusive: a statement cannot be both.

The court must construe the statement in its factual context, as it would be understood by a reasonable, properly informed voter. An inaccurate statement that a councillor voted for a planning application concerns the discharge of a public political function. It does not become a statement about personal conduct merely because the vote was an individual decision or because it may damage the candidate’s reputation. The statutory offence is therefore not established, irrespective of whether the statement affected the election result.

The petitioner, Robert Buchan, challenged Jennifer Elliott’s election as councillor for the Fens & Greatham ward in the 6 May 2021 local government election. He alleged that an election leaflet falsely stated that he had voted to grant planning permission for a housing development, contrary to Representation of the People Act 1983, section 106.

Mr Buchan had been absent from the relevant planning committee meeting, although a substitute councillor voted in favour. The statement was therefore factually incorrect. The central issues were whether it related to Mr Buchan’s personal character or conduct, rather than his political conduct, and whether Ms Elliott had a genuine and reasonable belief in its truth.

1. The petition was dismissed in substance. The court determined and certified that Ms Elliott was duly elected for the Fens & Greatham ward and would report to the High Court accordingly.
2. Section 106 required proof, to the criminal standard, that the respondent made or published, before or during the election and for the purpose of affecting a candidate’s return, a false statement of fact relating to that candidate’s personal character or conduct, subject to the statutory defence of genuine belief and reasonable grounds.
3. The meaning of the leaflet was a question of construction. The relevant question was how its words would be understood by a reasonable person in the factual context, including the surrounding content and local circumstances. The statement conveyed that Mr Buchan had voted for the grant of the Hill View planning application, not merely that he supported it.
4. Although the statement was false, voting in a planning committee was a political act. The councillor acted as an elected representative exercising a public political function. The absence of party whipping or the fact that the decision was personally made did not convert the act into personal conduct. The statement therefore fell outside section 106.
5. For completeness, the court found that Ms Elliott genuinely believed that Mr Buchan had attended and voted at the meeting, but that belief would not have been reasonable because direct evidence, including the meeting recording or minutes, was available. That issue was unnecessary to the outcome.