England and Wales High Court (Administrative Court) Decisions

1. MR JUSTICE LATHAM: This applicant was the candidate in the bye-election for the Aberaman South Ward, County Borough of Rhondda, held on 23rd November 1995. He challenges the decision of Mr Commissioner Brunner QC of the 7th June 1996 that he had been personally guilty of an illegal practice, namely taking part in a broadcast or broadcasts contrary to section 93(1)(b) of the Representation of the People Act 1983, and accordingly that the applicant had not been duly elected and the election was void. The applicant had received 687 votes and the other candidate, Mr Davies, had received 686 votes.

2. The problem arose because on 17th November 1995, that is some six days before the election, the applicant had voluntarily taken part in a single recorded interview on camera with a BBC reporter on the subject of a waste tip which was within the relevant electoral area. On 29th November, the day before the election, different extracts were used in a television broadcast and a radio broadcast. It would appear that the reporter who had taken the interview was unaware of the election. The interview and broadcasts took place within the period which brings into effect the provisions of the Representation of the People Act 1983.

3. To understand the Commissioner's decision it is necessary to read section 93 of that Act. Section 93(1) reads as follows:

4. There is only one relevant authority, and that in fact relates to the issue which arises under paragraph (a) of subsection (1), and the case is Marshall v The British Broadcasting Corporation [1979] 3 All ER page 80. There a parliamentary candidate who had told the BBC that he did not wish to take part in an election programme they were making for television about his constituency during an election campaign, discovered that the BBC were continuing to film him while campaigning and proposed to include the film in a news broadcast. He sought an injunction against the BBC to restrain them from broadcasting without his consent any programme which contained both himself and a particular opposition candidate. He relied on the predecessor statutory provision to section 93(1)(a). The judge at first instance granted him an injunction, but the Court of Appeal held:

5. Lord Denning MR in giving his judgment made it clear that as far as the mischief was concerned, it was designed, he said, to protect a person who actively participates in a programme and in that situation it is, he said, for the purposes of the period leading up to an election only right that he should be protected; but he went on to make it clear that where a programme was made in such circumstances the candidate was to be given a positive opportunity, if it can be put that way, either to consent or refuse his consent to the broadcasting of the programme itself.

6. The argument put forward by Mr Bean in the present case is that there was in the circumstances no positive grant of consent to the broadcasting of this particular interview by Mr Loveridge which caused it to fall within the mischief of the relevant statutory provision and that therefore the Commissioner was not entitled as a matter of law to come to the conclusion that this particular interview had been broadcast with his consent.

7. The Commissioner dealt with the matter in his reasons in the following terms at page 14 of the transcript:

8. It is said that in so directing himself and coming to the conclusion that I have related, the Commissioner was wrong, or at least arguably wrong, in law. In my judgment that submission is ill-founded. It seems to me that the Commissioner correctly directed himself to the question of whether or not the broadcast was one which was, to use the phrase in the statute statute "made without his consent".

9. The finding by the Commissioner, as to which Mr Loveridge understandably takes objection, that the interview was one which was for the purpose of promoting or procuring the applicant's (that is Mr Loveridge's) election was bound to colour his approach to the issue of consent. It seems to me that, given the finding that the interview was one which he took part in for the purposes of promoting or procuring his election, then his willingness to participate in that way without imposing any constraint on the broadcasting of the item was in fact material which the Commissioner could not only properly take into account in determining whether or not the broadcasts were without Mr Loveridge's consent, but really pointed inescapably to the conclusion that the Commissioner reached. The Commissioner was entitled on the evidence to conclude that Mr Loveridge's purpose was to promote or procure his election. In those circumstances it seems to me that this is a case which really raises no arguable point on the construction of the section, albeit I accept that there is no authority on the point.

10. It follows that in my judgment the Commissioner came to a permissible conclusion of fact having directed himself properly as to the law and therefore there is no basis upon which I can grant leave to move for judicial review. Leave is refused.

11. MR BEAN: My Lord, it may be that I shall be instructed to seek to renew the matter in the Court of Appeal. In order not to pre-empt that, would your Lordship make an order in the same form that the Commissioner made, that the report of the Election Court to the High Court should lie in the election petitions of this court, in this case a further seven days, and if within that time the application is renewed in the Court of Appeal -- and my understanding is they deal with such things pretty quickly -- the report should be remain in the office pending determination of the matter by the Court of Appeal?

12. MR JUSTICE LATHAM: Yes, I do, Mr Bean. If you could give the appropriate formulation of that to the associate we would both be very grateful. Thank you very much.