Electoral fraud decision

With the General Election only a matter of days away it has been reported in the press that there has been a fourfold increase in applications to vote by post. The system appears to be increasingly popular at a time when its abuse is a matter of much public interest and press speculation.

Discussions have been fuelled by the decision of Mr Richard Mawrey QC who recently sat as Commissioner in Birmingham hearing the two high profile Election Petitions relating to wards in the City. Having heard evidence for a number of weeks relating to the local elections in Aston and Bordesley Green, the Commissioner decided that the elections of 10 June 2004 should be re-run on the grounds of the corrupt and illegal practices of the three successful Labour Party Candidates in each ward.

In his judgment of 4 April 2005 the Commissioner referred to "…the weakness of the current law relating to postal votes." In the course of preparing his judgment, his attention was drawn to what he was told was an official Government statement about postal voting which he quoted as follows:

"There are no proposals to change the rules governing election procedures for the next election, including those for postal voting. The system is already in place to deal with the allegations of electoral fraud are clearly working".

He thought that anyone who had sat through the case he had just tried and listened to evidence of electoral fraud that would "…disgrace a banana republic…" would find the statement surprising. The Government statement indicated a state "not simply of complacency but of denial". There were no systems in place to deal realistically with fraud and he concluded "until there are, fraud will continue unabated."

The Commissioner's concluding remarks remain a damning indictment on the postal voting system, on the first occasion for 30 years that election petitions involving fraud have been tried. The success of the Petitioners in each case may prompt other unsuccessful candidates to seek a remedy through the courts if they are disgruntled about the result in their constituency at the General Election. This is perhaps particularly likely in marginal constituencies where the result is close and local tensions run high. The backdrop to the discontent of the unsuccessful candidates is, of course, the increase in applications to vote by post and the potential for the system to be abused.

Difficulties may arise before the postal ballot packs are actually received by the voter. It has been reported that Wyre Borough Council in Lancashire has apologised for sending out 80 incorrect postal voting packs where the numbers on the declaration of identity did not match the number on the ballot paper. In order to rectify the problems caused by "human error" the deputy returning officer has decided to reissue all 16,000 postal voting packs for the county council elections. The ballot papers contained in the earlier voting packs, even if duly completed and returned, are now null and void. It is not difficult to see that the electorate may be somewhat confused by these developments and that they may be seized upon by unsuccessful candidates wishing to challenge the result.

These issues should be borne in mind by the Insurers of local authorities where cover for a returning officer is likely to be provided by way of endorsement or extension. Returning officers are automatically named on election petitions and they may, in addition, find themselves the subject of specific allegations if it is perceived that their conduct or performance in organising the election fell short of the standard required by the legislation. If the elections need to be rerun, it may be Insurers who foot the bill.

Please click here to view the Commissioner's judgment in the Aston and Bordesley Green Election Petitions. This will open a PDF in a new window.

For further information please contact Joanne Marshall at [email protected] or on +44 (0)20 7367 3183.

This article was first published in the Financial Times on 28.04.2005.