England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

In the matter of the European Parliamentary Election for the West Midlands Region of the United Kingdom held on 22nd May 2014
And in the matter of an application for relief under regulation 108 of the European Parliamentary Elections Regulations 2004

		Royal Courts of Justice Strand, London, WC2A 2LL
		08/07/2014

Mr Justice Nicol:

1. This is an application by Alan William Mabbutt on his own behalf and on behalf of the Conservative Party for relief under Regulation 108 of the European Parliamentary Elections Regulations 2004 SI 2004 No. 293 ("the Regulations"). At the conclusion of the hearing we made an order granting Mr Mabbutt on his own behalf relief in the terms set out in the Appendix to this judgment. We said we would give our reasons at a later date. This is my explanation for agreeing to that order.
2. Mr Mabbutt is the Nominating officer for the Conservative Party and he was the party's national election agent at the European Parliamentary elections held in May 2014. England is divided into 9 regions for the purpose of these elections. This claim concerns what occurred in the West Midlands region. Mr Mabbutt was the Conservative Party's election agent in that region but also in the 8 other regions as well.
3. Part of Mr Mabbutt's role was to approve all candidates who stood under the Conservative Party's name in the European elections. He was also responsible for seeing that the Conservative Party's election material complied with the relevant laws and regulations. Regulation 74 of the Regulations provides that any material which is intended to promote or procure the election of a candidate must include "the relevant details" which include the name and address of the printer of the document and the name and address of the promoter of the material (i.e. the person who caused it to be published) – see regulation 74(3). If material is published without the relevant details then the printer, the promoter and any other person by whom the material is published commits a summary offence – see regulation 74(7). An exception is made for a candidate or his election agent. If they publish election material without the relevant details, it is not a criminal offence under regulation 74(7) but it is an illegal practice – see regulation 74(9). A person who is guilty of an illegal practice is liable to prosecution, and to a fine (regulation 110) and to other incapacities preventing him from standing for elective office (regulation 107). In the European elections, voters were invited to vote for a Party slate comprising persons included in the list of candidates of a registered party. Thus voters did not vote for individual candidates, but for a registered party. Mr Mabbutt, as the national agent, was to be treated as "the election agent of a candidate" – see regulation 33(9).
4. For the 2014 elections, Mr Mabbutt was assisted by Paul Sorkin, the Head of Print and Design at Conservative Campaign Headquarters. In his witness statement, Mr Sorkin explains that he negotiated on behalf of the Conservative Party a contract with a company called St Ives Management Services Ltd ("SIMS") for the provision of printing, producing and distributing marketing materials, including election materials. The contract was concluded on 8^th August 2012. It allowed SIMS to subcontract work to an agreed subcontractor which in this case was Real Digital International Ltd. Part of the agreement was that after the material had been printed, the printers would send it to Royal Mail who would post it to electors.
5. In January 2014, Mr Sorkin placed an order for election material for the European elections which were due to take place the following May. Artwork for an election leaflet was prepared and sent to the printers. It was designated "West Midlands EA2." It was, however, incomplete. It did not include the relevant details required by regulation 74(3). This was because it was not at that stage clear whether there would be a national or regional agent for the Conservative Party and so it was not then certain who should be identified as the "promoter" of the leaflet. In this form and without these details it was never intended that West Midlands EA2 should actually be printed or distributed.
6. By April 2014, it was established that Mr Mabbutt should be the national agent and so he should be named as the promoter of the leaflet. The appropriate details were added to West Midlands EA2 and a proof, with those details, was signed off for printing and distribution.
7. On 14^th May 2014, a member of the public in the West Midlands region drew to the attention of a colleague of Mr Sorkin that Conservative party leaflets were circulating without the relevant details. Mr Sorkin was puzzled as to how this could be. He contacted St Ives plc, the parent company of SIMS, who reported back that Real Digital had printed a quota of the leaflet in its correct form (i.e. including the relevant details). However, the number so printed were insufficient. A second batch was printed. This time Real Digital used the version of West Midlands EA2 without the relevant details. They did not tell SIMS or St Ives plc that they had used this version; nor did they tell the Conservative Party. Approximately 485,000 of this wrong version were distributed in the West Midlands. Much smaller numbers (between 151 and 2601) of the wrong version were also distributed in the other 8 English regions.
8. Regulation 108 of the Regulations provides as follows:

"(1) An application for relief under this regulation may be made to the High Court …..

(2) Where a person makes an application under this regulation he shall notify the Director of Public Prosecutions of the application and the Director or his assistant or representative may attend the hearing of the application and make representations at the hearing in respect of it.

(3) If it is shown to the court by such evidence as to the court seems sufficient –

(a) that any act or omission of any person would apart from this regulation by reason of being in contravention of these Regulations be an illegal practice, payment, employment or hiring,

(b) that the act or omission arose from inadvertence or from accidental miscalculation or from some other reasonable cause of a like nature and in any case did not arise from any want of good faith, and

(c) that such notice of the application has been given in the electoral region as to the court seems fit,

and under the circumstances it seems to the court to be just that either that or any other person should not be subject to any of the consequences under these Regulations of the act or omission, the court may make an order allowing the act or omission to be an exception from the provisions of these Regulations making it an illegal practice, payment, employment or hiring and upon the making of the order no person shall be subject to any of the consequences under these Regulations of that act or omission.

(4) …"

9. Regulation 108(3)(a) is satisfied in the case of Mr Mabbutt since his omission to ensure that the relevant details were on the West Midlands EA2 leaflet that was distributed to voters would (if relief was not given) be an illegal practice on his part. The Court questioned with Mr Price QC, on behalf of the Claimant, whether the Conservative Party (on whose behalf Mr Mabbutt also brought the claim) would also be guilty of an "illegal practice" if relief was not granted. On reflection, Mr Price decided that relief should be sought only by Mr Mabbutt on his own behalf and we proceeded on that basis.
10. I was satisfied on the basis of the witness statements of Mr Mabbutt and Mr Sorkin that the omission to include the relevant details in the West Midlands EA2 leaflet was due to "inadvertence …or from some other reasonable cause of a like nature" and not to any want of good faith on their behalf. It seems to me that the focus of the Court's inquiry in connection with regulation 108(3)(b) is the act or omission and the good faith (or otherwise) of the applicant for relief. Correspondingly, if the application is successful it is the applicant who is relieved from any liability or consequences in respect of the errors which prompted the application. It may be said that the closing words of regulation 108 appear at first sight to have a wider impact, but I agree with Mr Price that they should be interpreted as meaning, "and upon the making of the order no such person shall be subject to any of the consequences under these Regulations of that act or omission." Were it otherwise, a person who should be entitled to relief would be denied it because of the nature of someone else's act or because of their bad faith. That would not seem to me to be consistent with the intention of the regulation which is to provide a mechanism for relief for an applicant who has made an innocent error.
11. Because of the view which I took as to the meaning of regulation 108, the absence of any first hand evidence from the printers seems immaterial. The order we made will not affect them. In theory they remain liable to prosecution for the offence under regulation 74(7), though it would be for the prosecution authorities to decide whether the prospects of success and the public interest justified proceedings. Nothing in this judgment is intended to encourage them to be brought.
12. We were told that this was the first application which had been made under regulation 108. It is in identical terms to the Representation of the People Act 1983 s.167, but the different character of the European Parliamentary elections meant that the Master had to give thought as to whom the Claimant should be obliged to give notice of the application. The prospective Claim was considered by Master Leslie as the Acting Senior Master. He directed that notice of the proceedings should be given to the Director of Public Prosecutions (as regulation 108(2) mandates). In addition, notice was to be given to the Regional Returning Officer for the West Midlands electoral region and the national election agents or nominating officers for each of the parties who fielded candidates in the West Midlands region. That direction, if I may say so with respect, seems perfectly sensible. It would have been disproportionate, in addition, to require notice to be given to every individual on each of the party slates as well.
13. The witness statement of Mr Spenser Underhill, the Claimant's solicitor, confirmed that notices had been given as the Master directed. Accordingly regulation 108(3)(c) was satisfied. Although some of the recipients had written back to Mr Spenser Underhill, none had indicated an intention to oppose the application and none appeared at the hearing before us.
14. If paragraphs (a), (b) and (c) are fulfilled the Court has a discretion to make the Order. In this case the Claimant acted reasonably promptly. Mr Sorkin was told of the problem on 14^th May and Mr Mabbutt on the following day. I accept their evidence that it was not practicable to make an application to the Court before the election took place on 22^nd May. The witness statements of Mr Sorkin and Mr Mabbutt are dated 5^th June and I assume they were put before the Master shortly afterwards. His order is dated 9^th June 2014 and the proceedings were issued the same day and notices were given on 10^th June. The number of leaflets which were printed without the relevant details was large. That said, it must be remembered that West Midlands region has a very substantial electorate. According to the Electoral Commission, it is about 4.1 million voters. That means that approximately 11% of the voters would or might have been sent a leaflet without the proper details. The Conservative Party (and indeed the others) will need to tighten their procedures to see that similar errors do not occur in the future, but in all the circumstances I considered that it was right to make the order which was sought in the form that was amended in the course of the hearing.

Mr Justice Popplewell

15. I agree.
Appendix

Upon hearing leading counsel for the Claimant,

And Upon the documents filed with the Court having been read

It is ordered that:

(1) The Claimant on his own behalf is hereby granted an order under Regulation 108(3) of the European Elections Regulations 2004 ("the Regulations"), whereby:

(a) he is allowed an authorised excuse for the printing errors which led to the printing and publication of an election leaflet designated "West Midlands EA2" and promoted by the Claimant on behalf of the Conservative Party at the Parliamentary Election for the West Midlands Region of the United Kingdom held on 22^nd May 2014, which did not contain the details required by Regulation 74 of the Regulations, on the grounds that such errors occurred by reason of inadvertence, or a reasonable cause of like nature, and in any event did not result from a want of good faith; and

(b) he is thereby relieved from any liability or consequences in respect of such errors under the Regulations in respect of the matters excused by this Order.

(2) There be no order as to costs.