IN THE MATTER OF THE REPRESENTATION OF THE PEOPLE ACT 1983

An election is not invalid merely because electoral rules have been breached. The court must assess whether the election, viewed as a whole, was conducted substantially in accordance with electoral law and whether any breach affected the result. Even where the result was unaffected, invalidity requires a departure sufficiently serious to make an ordinary reasonable person regard the election as a sham or travesty. Known breaches must be proved by evidence; an election court cannot invalidate an election on suspicion that further unknown errors may exist. The statutory saving provision applies to relevant breaches occurring after polling where they concern official duties or the election rules.

The petitioners challenged the Church Fenton parish council by-election held on 6 May 2021. They alleged that successful candidates were not duly elected because ineligible voters received parish-election ballot papers, the corresponding number list was temporarily unsealed, a ballot paper bearing identifying marks was counted, an elector received a duplicate ballot paper, and voters were wrongly told that they could vote for only two candidates.

A recount excluded approximately 20 ineligible votes but left the result unchanged. The court found four breaches, but rejected the allegation of voter misdirection. The central issue was whether the breaches, individually or cumulatively, meant that the election was not conducted substantially in accordance with electoral law under section 48 of the Representation of the People Act 1983.

1. Petition dismissed. The election was conducted substantially in accordance with electoral law. The fourth respondent was ordered to pay the petitioners’ costs, subject to detailed assessment if not agreed, and the petitioners’ security was to be repaid.
2. Under section 48 of the Representation of the People Act 1983, an election is saved where it was substantially conducted according to electoral law and the breach did not affect the result. The principles in Morgan v Simpson (1975) 1 QB 151 applied. Where substantial compliance exists, a breach affecting the result invalidates the election; where the result is unaffected, invalidity requires conduct so defective that the election was effectively a sham or travesty.
3. The assessment must consider electoral law as a whole, including the steps before polling, polling, the count and subsequent procedures. The breaches must be assessed individually and cumulatively. A presumption favours allowing the election result to stand, but a single sufficiently serious breach may still invalidate it.
4. The court rejected reliance on suspicion of further unknown errors. Edgell v Glover (2003) EWHC 2566 (QB) was confined to its materially different factual context, involving postal votes, an inspection which revealed defects and a one-vote margin. It did not authorise invalidating an election merely because additional errors might exist.
5. The wrongful enfranchisement of approximately 2% of voters differed from disenfranchisement because the affected votes could be identified, removed and shown not to have affected the result. The counted ballot paper bearing initials and a signature should have been rejected because the voter could be identified in the circumstances, but this error did not affect the result. The duplicate unmarked ballot paper was an insignificant administrative glitch. Temporarily unsealing the corresponding number list was regrettable and fell within section 48 even though it occurred after the election, but there was no evidence of tampering, disclosure of voting intentions or effect on the result.
6. There was no evidence that voters had been misdirected about the number of votes they could cast. Training deficiencies and a generally alleged laissez-faire approach mattered only if they resulted in substantial non-compliance, which they had not.

First-instance election petition. No earlier decision in the same proceedings was stated.