Jersey Unreported Judgments

[2009]JRC106

ROYAL COURT

(Samedi Division)

20^th May 2009

Before     :

J. A. Clyde-Smith, Esq., Commissioner and Jurats Le Brocq and Clapham.

The Attorney General

-v-

Shona Pitman

Geoffrey Peter Southern

Reasons.

M. St. J. O'Connell, Esq., Crown Advocate.

Advocate C. J. Scholefield for the Defendants.

JUDGMENT

THE commissioner:

1.        On 20^th May, 2009, the Court imposed fines totalling £10,000 upon Deputy Southern and £2,000 on Deputy Pitman for offences committed by them under Article 39A of the Public Elections (Jersey) Law 2002 ("the 2002 Law") and to which they had pleaded guilty.  In passing sentence, the Court said it would give its reasons in a written judgment which we now do.

2.        Article 38 of the 2002 Law identifies the categories of persons who qualify as entitled to vote in a public election by means of a postal or pre-poll vote.  Article 39(4) permits the person who is so qualified to have his or her name included on the register of postal and pre-poll voters.  Article 39A was introduced into the 2002 Law by amendment in 2008 and creates an absolute prohibition on candidates, or representatives of candidates, completing or assisting in the completion of any form required to be completed for the purposes of an application under Article 39(4).  It also creates an absolute prohibition on a candidate, or a representative of a candidate, delivering or causing to be delivered to the Judicial Greffe any such forms or supporting documents.

3.        The rationale advanced by the Privileges and Procedures Committee for the proposed amendment was as follows:-

"This Article inserts a provision in the Law that PPC believes is extremely significant and important.  At present there is no restriction in the Law on candidates or their representatives assisting with the postal voting process.  Candidates can, for example, assist electors to complete forms for postal voting, can take these to the Judicial Greffe and offer other assistance to enable people to obtain a postal vote.  Although candidates may believe they are simply assisting electors in these circumstances, PPC is concerned that the current provision could be seen to interfere with the fairness of the election process.  Any elector who has received significant assistance from a candidate or his or her representative to obtain a postal vote may feel, in some way, pressurised to vote for that candidate when the ballot paper is received from the Judicial Greffier.

This new Article would make it illegal for a candidate to assist an elector in completing the application form for a postal or pre-poll vote.  In addition, it would make it legal (sic) for candidates to deliver or cause to be delivered the forms to the Judicial Greffier.  For the avoidance of doubt, paragraph (2) of the new Article makes it clear that a candidate or representative can still distribute blank forms to enable a person to apply for a postal or pre-poll vote but, with the new provisions, it would be illegal for the candidate to do anything further.  It would, nevertheless, still be possible for staff, for example, in an Old People's Home, to assist residents to complete the necessary paperwork but this would distance the process from the candidate or his or her representative."

4.        The amendment was the subject of a debate before the Assembly of the States of Jersey on 10^th June, 2008, when the Assembly voted in favour of adopting it into the 2002 Law by some 31 votes in favour and 8 votes against.  The amendment became effective on 31^st October, 2008.

5.        Deputies Southern and Pitman were elected members of the States Assembly at the time of the debate and they spoke and voted against the amendment.  The Hansard Report of that debate includes the following words spoken by Deputy Pitman:-

"... if this [the prohibition created by Article 39A] goes through as law I will ignore it and continue with collecting these postal votes."

And the following words spoken by Deputy Southern:-

"I too, like my colleague, intend to continue to assist people who ask me to help them fill in the form ... I am among those who may well be prosecuted under the bureaucratic nonsense of a piece of law."

In the debate, Deputy Pitman was reminded of the terms of the oath taken by members.  In that oath, each defendant swore to uphold and maintain the laws of the Island and to oppose those who may wish to infringe the same.

6.        Each of the Defendants stood as candidates in the election which occurred on 6^th November, 2008, the outcome of which, in so far as concerned them, was as follows:-

"Geoffrey Southern                   665 votes

Shona Pitman                          598 votes

Debbie de Sousa                     444 votes

Rod Bryans                              412 votes

Sue Stoker                              301 votes

Adrian Walsh                           228 votes

Gifford Aubin                           100 votes

Spoilt papers                            4"

7.        As they had publicly announced at the debate that they would, the defendants breached the prohibition in the run-up to these elections.  They admitted in police interview breaching the same extensively although charges have only been brought where there was corroborative evidence. Thus Deputy Southern was charged with and pleaded guilty to 20 counts and Deputy Pitman to 2 counts.

8.        Mr Scholefield, for the defendants, made a number of submissions in mitigation which we take in turn.

Quality of the debate

9.        Mr Scholefield submitted that the amendment was a child of a flawed debate.  Reference was made by the Deputy of St Mary, speaking for the adoption of the amendment, to the introduction of a voluntary code of conduct in the United Kingdom following the scandal of postal ballot frauds in the local elections of 2004 and which advised candidates against assisting voters to complete their postal ballot papers.  Mr Scholefield showed us the relevant code which did contain advice against assisting in the completion of ballot papers but which did not contain advice against candidates assisting in applications for postal voting - indeed, it would appear to encourage such assistance, acknowledging that candidates often develop their own application forms for that purpose.  There was thus in his view a blurring between assistance in applications for a postal vote and assistance in the actual casting of the vote. 

10.      In his view, this confusion pervaded the debate which he described as thereafter sailing through choppy waters without ever reaching a safe harbour.  There was reference to the need to be seen by people outside to be whiter than white, but what was not made clear, submitted Mr Scholefield, was that in fact this prohibition was unique to the Island, it having no equivalent in either the UK or any other Commonwealth jurisdiction.  Whilst we accept that this may be a unique provision for Jersey, it was our reading of the transcript that the concern of members was not with the Island's reputation abroad, but with the reputation of the elected members with the voting population of Jersey. 

Lack of assistance for voters

11.      Following the introduction of the prohibition, no provision was made to assist voters who had hitherto relied on the defendants and other candidates for assistance in applying for postal voting.  He showed us a copy of the formal notice inserted in the Gazette on 30^th September and 11^th November, 2008, which was only in English, informing people of their right to apply for postal voting which he said was hardly adequate.  We were shown a copy of a letter sent by the Constable of St Helier following the election, setting out steps that would be taken in future by the electoral officer, who with another temporary member of staff, would be able to visit all those requiring assistance in filling in an application form for a postal vote and delivering it.  However, those arrangements were not in place for the November 2008 election.

Human Rights

12.      Mr Scholefield drew to our attention Article 14 of the European Convention on Human Rights which is in the following terms:-

"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

The discrimination which he had in mind was the discrimination against persons with disabilities and the rights concerned were those set out in Article 3 of the First Protocol which is as follows:-

"Article 3

Right to free elections

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."

13.      Mr Scholefield argued that the right to free expression extended to everyone and if a person needed a postal vote and no arrangements were made for them to be assisted in applying for the same, then they would have no chance to freely express their choice.  Mr Scholefield accepted that, in bringing this amendment before the Assembly, there would have been a certificate of compatibility with the Convention.  He further acknowledged that there had been no declaration of incompatibility under Article 5 of the Human Rights (Jersey) Law 2000 and that even if there had, Article 5(4) of that law made it clear that any such declaration would not affect the validity, continuing operation or enforcement of the provision in respect of which it had been given. 

14.      He further drew to our attention the Convention on the rights of persons with disabilities, Article 29 of which obliged the states which are a party to it to guarantee to persons with disabilities political rights and the opportunity to enjoy them on an equal basis with others and to undertake to ensure that voting procedures facilities and materials were appropriate, accessible and easy to understand and use. 

No complaint from victims

15.      None of those persons who the defendants had assisted made any reference in their statements to their feeling pressurised into voting for either of the defendants. Some of them were happy that they had been given that assistance.  Mr Scholefield referred us in particular to a statement by Patrick Walsh (Count 1 of the indictment against Deputy Pitman) who had difficulty writing because of a trapped nerve in his hand and who expressed gratitude for the assistance that Deputy Pitman had given him.  It would not appear that any of the other voters in respect of these charges to whom the defendants gave assistance were disabled.

16.      In general terms, Mr Scholefield submitted that although this was a hard case, it was not serious in terms of the mischief.  There were many honourable examples of the law being broken because matters of principle were at stake and he gave as an example John Hampden, who in the 17th century made his great stand against tyranny, although he readily accepted that the actions of the States Assembly in passing this amendment could hardly be described as tyrannical.  This was a unique and bad piece of legislation that left voters whom the defendants and other candidates previously assisted without that assistance and ethically they felt that the greater good was served by their breaking the law as they had announced they would do.  They had been punished enough by the fact of the convictions which they now had and the stress of the prosecution.  In his view, that was sufficient and no fine should be imposed.

17.      Finally, Mr Scholefield pointed out that the Jurats of the Royal Court are elected by an Electoral College including States members which raised in his view the possibility of the Jurats using their position to signal to the States their disapproval of the amendment and the manner of its introduction and this by imposing a nominal penalty. 

18.      We had no reason to doubt the sincerity of the defendants' views in relation to the quality of the debate and the merits of the legislation, or indeed the sincerity of their desire to assist voters in expressing their wishes through a postal vote.  However, as a Court of law, we cannot, in deciding how and whether to punish offenders, go behind the legislation to examine the quality of the debate that led to it.  We would not necessarily agree with Mr Scholefield's criticism of this particular debate, and suspect that most parliamentary debates, as with debates generally, can be subjected to criticism of one sort or another.  Moreover we do not accept the implication that the members of the States Assembly did not understand what they were doing when they voted for the amendment. Neither can we allow our views of the merits of the legislation to influence us.  The fact of the matter is that it is for the States Assembly to deliberate upon and pass laws, and for the Courts to respect and apply them.  In essence, this part of the mitigation was an attempt to politicise the judicial process, and we rejected it.  In particular, we rejected any notion that the Jurats should involve themselves in the work of the States Assembly by use of the judicial sentencing process.

19.      This was not the occasion to determine the Human Rights issues raised by Mr Scholefield.  Mr O'Connell confirmed that the amendment would have been certified as Human Rights compliant when presented to the States Assembly and in the absence of a declaration of incompatibility there can be no doubt that it was valid and in force.  We were told that the defendants had sought legal advice on the Human Rights issues but had not yet received it. We doubt however whether breaches of the Convention are in play here.

20.      We note that some of the voters concerned welcomed the assistance that they were given, but none of them indicated (as was their entitlement) how they actually voted and therefore it is impossible to know whether that assistance influenced their decision, that being the mischief which the prohibition seeks to prevent.  We accepted that some voters may have been left without the assistance candidates had previously given them, although we noted that in most of the cases concerned with these counts the voters were perfectly able to complete and send in the forms themselves.

21.      As to the prohibition being unique to the Island, we do not regard that as a matter of any relevance.  Just because other jurisdictions have not sought to introduce such a prohibition does not mean that it is not an appropriate provision for this jurisdiction.  In any event, the States Assembly saw fit to introduce it and it is not our task to question it. 

22.      In our view the mitigation failed to address the fundamental issue which the case presented.  Everyone in the Island lives under the rule of law.  Our laws are made by the democratically elected members of our States Assembly.  The defendants were both members of that Assembly.  They spoke and voted against the introduction of the amendment.  Their arguments failed and the amendment was passed.  It is a fundamental of a democratic society that they are bound by that decision; indeed they are under a duty to uphold it.  However they announced publicly, and in defiance of the will of our democratically elected Assembly, that they would not abide by that decision.  They then went on as they had announced they would do to breach the law on numerous occasions.  They thus placed themselves above the law.  However strongly they felt, their remedy lay in seeking to rescind the legislation, rather than in deliberately flouting it. 

23.      We regarded the offences as very serious.  The defendants, by their conduct and in breach of their oath, directly and deliberately challenged the rule of law and cannot be surprised if this Court acts in robust defence of it.  Conduct by States members which undermines the rule of law will not be tolerated.

24.      We took into account the defendants' guilty pleas, their co-operation and good character.  In so far as stress was concerned, that is something which all defendants in criminal proceedings inevitably face.  In this case, however, the defendants set about a course of action which they at the outset acknowledged would lead to a prosecution and they can therefore hardly be seen to complain at the stress of the prosecution that their conduct has thus brought about.  No remorse was expressed.  As a result only of a question put by the Court, they volunteered that it was not their intention to break this law in the future. 

25.      The maximum fine determined by the States under Article 39(A) of the 2002 Law is £2,000.  Taking into account the mitigation, we determined that £1,000 for each offence was the appropriate tariff to be applied consecutively.  In doing so we did not take into account the Crown's assertion, not accepted by Deputy Southern, that some of the offences committed by him had been aggravated by his seeming indifference as to whether the voters concerned qualified for postal voting; an issue which might otherwise have led to a Newton hearing.  We agreed with the Crown that in the case of Deputy Southern, the totality principle ought to be applied, capping his fine at £10,000 which would equate to a fine of £500 for each offence.  Thus Deputy Southern was fined a total of £10,000 and Deputy Pitman a total of £2,000.

Authorities

Public Elections (Jersey) Law 2002.

European Human Rights Convention.

Human Rights (Jersey) Law 2000.