QUEEN'S BENCH DIVISION
ELECTION COURT
IN THE MATTER OF THE REPRESENTATION OF THE PEOPLE ACT 1983
B e f o r e :
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ROBERT ELWYN JAMES WATKINS |
Petitioner |
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- and - |
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PHILIP JAMES WOOLAS |
Respondent |
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Gavin Millar QC and Anthony Hudson (instructed by Steel & Shamash) for the Respondent
Hearing dates: 13-16 September 2010
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Crown Copyright ©
Teare and Griffith Williams JJ:
The constituency
The Petitioner
The Respondent
The Respondent's election agent
The election addresses
"Did you know?
Interesting facts about our Lib Dem candidate.
He's reneged on his promise to live in the constituency. He had said, "I've got my eye on Lees - you can still get tripe in the Co-Op". You can't of course but he does talk it."
"Voters of Oldham East and Saddleworth are asking the question, "why are the extremists urging a vote for Watkins?". In face of Woolas' tough stance and a Conservative candidate who is against their views, the extremists are backing the Liberal Democrat. In his attempts to woo the vote he has called for Israel to be isolated from arms sales - but not Palestine.
Woolas told a rally of moderate Muslims in Clarksfield "The Lib Dems are weak and blow with the wind. Don't let them pander to extremists." The rally gave him a standing ovation. !"
"The likely cost? A cool £200,000+ for printing and distribution.
Political rivals are accusing the Lib Dems of trying to buy the election but their candidate Elwyn Watkins is laughing all the way from the bank.
No-one knows where the money is coming from. Politicians are requird by law to register donations so the public can judge if the money is properly obtained. But Watkins hasn't declared anything like £200,000 in donations.
What is known is that Elwyn Watkins is the personal assistant to Saudi Arabian billionaire Sheikh Abdullah Ali Alhamrani.
Political donations from overseas are illegal. Eevn the Ashcroft money can't match a Sheikh."
"One of these groups has endorsed the Liberal Democrat candidate Elwyn Watkins. It is remarkable that neither he nor any other Liberal Democrat has rejected this endorsement or condemned the group's actions. Maybe it's because the liberal Democrats are giving amnesty to thousands of illegal immigrants...."
The Representation of the People Act 1983
"(1) A person who, or any director of any body or association corporate which -
(a) before or during an election,(b) for the purpose of affecting the return of a candidate at the election, makes or publishes any false statement of fact in relation to the candidate's personal character or conduct shall be guilty of an illegal practice, unless he can show that he had reasonable grounds for believing, and did believe, the statement to be true."
"159(1) If a candidate who has been elected is reported by an election court personally guilty or guilty by his agent of any corrupt or illegal practice his election shall be void....
160(4) Subject to the provisions of subsection (4A) and section 174 below, a candidate or other person reported by an election court personally guilty of a corrupt or illegal practice-
(a) shall during the relevant period specified in subsection (5) below be incapable of-(ii) being elected to the House of Commons, or(iii) holding any elective office; and(b) if already elected to a seat in the House of Commons, or holding any such office, shall vacate the seat or office as from the date of the report.
(5) For the purposes of subsection (4) above the relevant period is the period beginning with the date of the report and ending-(a) ....(b) in the case of a person reported personally guilty of an illegal practice, three years after that date.
"The Act of 1895 afforded a further protection to constituencies and to candidates. The mischief against which it was directed was an abuse of the right of free discussion by the dissemination among a constituency of false statements of fact, written or spoken, in relation to the personal character or conduct of a candidate....
Reading the section I find that the false statement must relate to personal character or conduct, "personal" as distinguished from "public", and it must be one of fact....
A public man in his candidature, as in Parliament, is liable to misrepresentations as to his public character or conduct, and it can be readily understood why the Legislature has not thought fit to protect either the constituency or the candidate against misrepresentations of this kind... It has drawn the line of defence at a false statement of fact in relation to personal character or conduct....
The primary protection of this statute was the protection of the constituency against acts which would be fatal to freedom of election. There would be no true freedom of election, no real expression of the opinion of the constituency, if votes were given in consequence of the dissemination of a false statement as to the personal character of conduct of a candidate...."
".. .to represent a candidate who comes forward as a member of a Parliamentary party, bound by pledge to seek no favours from any administration, as a place-hunter, obtaining from the Government of the day lucrative employments for himself and his family and friends, is to accuse him of political misconduct. Whether he has sought for and obtained such favours is a question of fact, and a question of fact relating to his personal conduct. A false statement of fact relating to his personal conduct may be used for the purpose of representing a candidate as guilty of either private immorality or public immorality, political or otherwise, and it is in either case equally within the statute."
"A general recommending officers for promotion who had lent him money, a Minister who betrayed cabinet secrets to a foreign friend, would be guilty of official and political misconduct, which, as a matter of public concern, would merit comment; but such conduct would at the same time involve personal delinquency. If such person was candidate as at an election, and false charge of the above character was made, would it not be a false statement as to both personal character and conduct.?"
"that every false statement in relation to thee public character of a candidate may in one sense reflect upon the candidate's personal character, but before there can be an illegal practice in terms of the statute, the false statement of fact must be directly related to the personal character of conduct of the candidate."
"A politician for his public conduct may be criticised, held up to obloquy; for that the statute gives no redress; but when the man beneath the politician has his honour, veracity and purity assailed, he is entitled to demand that his constituents shall not be poisoned against him by false statements containing such unfounded imputations."
The European Convention on Human Rights
"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority....
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
"Everyone has the right to respect for his private and family life, his home and his correspondence."
"The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature."
"It is plain from the language of article 10(2), and the European Court has repeatedly held, that any national restriction on freedom of expression can be consistent with article 10(2) only if it is prescribed by law, is directed to one or more of the objective specified in the article and is shown by the state concerned to be necessary in a democratic society. "Necessary" has been strongly interpreted....One must consider whether the interference complained of corresponded to a pressing social need, whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authority to justify it are relevant and sufficient under article 10(2)...."
"...Free elections and freedom of expression, particularly freedom of political debate, together form the bedrock of any democratic system....The two rights are inter-related and operate to reinforce each other: for example, as the Court has observed in the past, freedom of expression is one of the "conditions" necessary to "ensure the free expression of the opinion of the people in the choice of the legislature .... For this reason, it is particularly important in the period preceding an election that opinions and information of all kinds are permitted to circulate freely..."
"The Act of 1895 afforded a further protection to constituencies and to candidates. The mischief against which it was directed was an abuse of the right of free discussion by the dissemination among a constituency of false statements of fact, written or spoken, in relation to the personal character or conduct of a candidate....
The primary protection of this statute was the protection of the constituency against acts which would be fatal to freedom of election. There would be no true freedom of election, no real expression of the opinion of the constituency, if votes were given in consequence of the dissemination of a false statement as to the personal character of conduct of a candidate...."
Burden and standard of proof
That must be so because sections 168 and 169 of the RPA 1983 make provision for prosecution on indictment of those allegedly guilty of corrupt practice and for the summary prosecution of those allegedly guilty of illegal practice, section 106(1) refers to a person being guilty of an illegal practice and section 160(4) of the RPA 1983 provides that those reported by an election court to be personally guilty of a corrupt or illegal practice are subject to the penal consequence of severe electoral disqualifications. In R -v- Rowe, ex parte Mainwaring and Others [1992] 1 WLR 1059 the Court of Appeal was satisfied that it would not be desirable to have a different standard of proof in different courts on the same issue.
"Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law"
"A sound starting point is to remember that if an accused is required to prove a fact on the balance of probability to avoid conviction, this permits a conviction in spite of the fact-finding tribunal having a reasonable doubt as to the guilt of the accused: see Dickson CJ in R -v- Whyte (1988) 51 DLR (4th) 481,493. This consequence of a reverse burden of proof should colour one's approach when evaluating the reasons why it is said that, in the absence of a persuasive burden on the accused, the public interest will be prejudiced to an extent which justifies placing a persuasive burden on the accused. The more serious the punishment which may flow from conviction, the more compelling must be the reasons. The extent and nature of the factual matters required to be proved by the accused, and their importance relative to the matters required to be proved by the prosecution, have to be taken into account. So also does the extent to which the burden on the accused relates to facts which, if they exist, are readily provable by him as matters within his own knowledge or to which he has ready access. In evaluating these factors the court's role is one of review".
"From this body of authority, certain principles may be derived. The overriding concern is that a trial should be fair, and the presumption of innocence is a fundamental right directed to that end. The Convention does not outlaw presumptions of fact or law but requires that these should be kept within reasonable limits and should not be arbitrary. It is open to states to define the constituent elements of a criminal offence, excluding the requirement of mens rea. But the substance and effect of any presumption adverse to a defendant must be examined, and must be reasonable. Relevant to any judgment on reasonableness or proportionality will be the opportunity given to the defendant to rebut the presumption, maintenance of the rights of the defence, flexibility in application of the presumption, retention by the court of a power to assess the evidence, the importance of what is at stake and the difficulty which a prosecutor may face in the absence of a presumption. Security concerns do not absolve member states from their duty to observe basic standards of fairness. The justifiability of any infringement of the presumption of innocence cannot be resolved by any rule of thumb, but on examination of all the facts and circumstances of the particular provision as applied in the particular .
The issues
a. What is the meaning of the election address of which complaint is made?
b. Do the election addresses amount to a statement of fact?
c. Are any such statements of fact in relation to the Petitioner' personal character or conduct?
d. Are such statements false?
e. Did the Respondent believe them to be true and have reasonable grounds for believing them to be true?
"It may be said that the agreed pair of questions which the judge was asked to consider ...was based on a premise, inherent in our libel law, that a comment is as capable as an assertion of fact of being defamatory, and that what differ are the available defences; so that the first question has to be whether the words are defamatory even if they amount to no more than comment.. This case suggests that this may not always be the best approach, because the answer to the first question may stifle the answer to the second."
The Examiner: "Wooing the extremist vote"
"....In his attempts to woo the vote he has called for Israel to be isolated from arms sales - but not Palestine."
a. Immediately above the article is a photograph of demonstrators advocating violence, indeed death, to those who insult Islam. That photograph is part of an article which refers to "militant Muslims".
b. The legend below that photograph, and so immediately above the article, refers to "militant extremists".
c. In addition, the editorial below and to the left of the article, refers to death threats made to the Respondent in "extremist Muslim election leaflets".
d. The juxtaposition of the article with regard to the adjacent article, photograph and editorial therefore identifies the "extremist vote" as the vote of extremist militant Muslims who advocate violence, in particular to Mr. Woolas.
The Examiner: Loads-a-Money
"Political donations from overseas are illegal... Even the Ashcroft money can't match a Sheikh."
"That a libel couched in an interrogative form, or worded as rumour - "It is rumoured that"- should not be deemed capable of being a statement of fact is manifestly not law."
The Labour Rose: "Lib Dem Pact with the devil"
"You would think that any serious politician should condemn such actions.
But you'd be wrong.
Lib Dem Pact with the devil [highlighted in red]
One of these groups has endorsed the Liberal Democrat candidate Elwyn Watkins.
It is remarkable that neither he nor any other Liberal Democrat has rejected this endorsement or condemned the group's actions. Maybe it's because the Liberal Democrats are giving amnesty to thousands of illegal immigrants."
The Labour Rose: "The most expensive Oldham election ever?"
The Election Communication: Reneging on his promise
Events concerning the Petitioner's intention to live in the constituency
Policy statements concerning arms to Israel
"Elwyn Watkins had called for a ban on arms sales to Israel in the wake of the bombardment of Gaza in the Winter of 2008- 2009.
One year later, Mr. Woolas has written to Nick Clegg to ask if this is official Liberal Democrat policy.
Commenting, Elwyn Watkins said, "There are many countries that we should not be selling arms to in the Middle East and elsewhere, because of the way that we suspect they will be used, including Israel. We should not be selling arms to either side in this conflict."
"[My comments are] supported by quite a few million people. It's not an anti-Israel thing. I would not sell rockets to Hama either. I was following the party line. I would equally condemn Hamas. Hizbollah or whoever targets civilians."
The Petitioner's election expenses
The election campaign
"Labour owes you an apology. Over the last few days, they have descended down into the gutter in their attempt to hold onto this seat....Labour have now resorted to lies, smears and totally false allegations about the Liberal Democrats and me personally...."
Falsity
Wooing the extremist vote and refusing to condemn their actions
Election expenses
Living in the constituency
Belief
Wooing the extremist vote
Refusal to condemn actions of extremists
Election expenses
Living in the constituency
Conclusion
(i) The statement in the Examiner that the Respondent had attempted to woo the vote, that is, that he had attempted to seek the electoral support, of Muslims who advocated violence, in particular to the Respondent.
(ii) The statement in the Labour Rose that the Petitioner had refused to condemn extremists who advocated violence against the Respondent.
(iii) The statement in the election address that the Petitioner had reneged on his promise to live in the constituency.
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Case No.
IN THE MATTER OF THE REPRESENTATION OF THE PEOPLE ACT 1983
AND IN THE MATTER OF A PARLIAMENTARY ELECTION FOR THE CONSTITUENCY OF OLDHAM EAST AND SADDLEWORTH HELD ON THE 6th DAY OF MAY 2010
Annexe 1
IN THE HIGH COURT OF JUSTICE
Case No.
QUEEN'S BENCH DIVISION
IN THE MATTER OF THE REPRESENT ATION OF THE PEOPLE ACT 1983
AND IN THE MATTER OF A PARLIAMENTARY ELECTION FOR THE CONSTITUENCY OF OLDHAM EAST AND SADDLEWORTH HELD ON THE 6 th DAY OF MAY 2010
Annexe 2
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Case No.
IN THE MATTER OF THE REPRESENTATION OF THE PEOPLE ACT 1983
AND IN THE MATTER OF A PARLIAMENTARY ELECTION FOR THE CONSTITUENCY OF OLDHAM EAST AND SADDLEWORTH HELD ON THE 6 DAY OF MAY 2010
Annexe 3