Scottish Court of Session Decisions

LORD MIGDALE .—The petitioner stood as Communist candidate at the general election in October 1964 for the constituency of Kinross and West Perthshire, for which constituency the respondent, the Rt. Hon. Sir Alexander Douglas-Home, was elected as member of Parliament. He was the leader of the Conservative and Unionist Party and Prime Minister. The petition is presented under sections 107 and 108 of the Representation of the People Act, 1949, and in it the petitioner avers that the British Broadcasting Corporation and the Independent Television Authority were both in breach of section 63 of the Act, in that they each incurred expenses on account of presenting the respondent and his views to the electors of Kinross and West Perthshire on television without having the written authority of the respondent's election agent and without making any return of the amount of these expenses as required by section 63 (2) of the Act.

The petitioner further avers that on 26th September and again on 13th October 1964 the respondent was presented on television. During these two presentations he also stated his political views. On three other occasions—30th September and 6th and 9th October 1964—television presentations were made on both the British Broadcasting Corporation and the Independent Television Authority networks by other members of the Conservative Party, in which the views of the respondent were put forth and in which it was stated that the respondent had the support of that party.

It is agreed by joint minute that in connection with the election campaign the British Broadcasting Corporation and the Independent Television Authority gave what has been described as "a series of political broadcasts" and that the presentation of these took place on television. These were given over the whole network of each authority and covered the whole of the United Kingdom, including the respondent's constituency.

In addition to the programmes given on behalf of the Conservative Party, other political presentations were made, on five occasions on behalf of the Labour Party and on three other occasions on behalf of the Liberal Party, and the leaders of these respective parties appeared on the screen. The Communist Party was not given any facilities to make a national broadcast. It is agreed that the expenses of the two authorities in presenting the broadcasts on behalf of the Conservative Party were about £4600. During these presentations the speakers pleaded in furtherance of their particular party and asked the electors to vote for candidates of that party.

The petitioner asks the court to determine that the respondent was not duly elected or returned and that the election was void. By section 124 (1) this court is required, at the conclusion of the trial, to determine whether the member whose election is complained of was duly returned or whether the election was void. This determination is to be certified to the Speaker of the House of Commons. If, as in this case, charges are made of corrupt or illegal practices having been made at the election, the court also makes a report in terms of section 138 stating whether any corrupt or illegal practice has or has not been proved to have been committed and whether, if the former, it has been proved to have been committed by or with the knowledge and consent of the candidate.

By section 139 (1) of the Act, if a candidate who has been elected is reported by the Election Court personally guilty or guilty by his agents of any corrupt or illegal practice, his election shall be void. By subsection (2) he is also incapacitated from being re-elected for that constituency for a period of some years.

Both the petitioner and another witness spoke to a strong sense of grievance that the three majority political parties had been afforded facilities for giving their views over the national television network, which their party could not do. They explained that this was the result of an agreement or arrangement made between those three parties and the British Broadcasting Corporation and the Independent Television Authority, and about this their party had not been consulted. This was not, therefore, impartial treatment. In my opinion this is not a matter which can be considered or dealt with by this court. It certainly cannot affect the issue in this petition, which must depend on whether, in our view, the respondent or the British Broadcasting Corporation or the Independent Television Authority has been in breach of the Act.

According to Sir Hugh Greene, the Director General of the British Broadcasting Corporation, this series of party political broadcasts was sent out in order to put information before the public, as it is required to do under its charter. The Corporation was itself impartial and time was allocated to each of the three major parties in accordance with its strength in the House of Commons at the dissolution. Any other party which put up a minimum of fifty candidates would have been given time. In cross-examination this witness stated that it was not the intention of the Corporation to promote the election of the respondent in the constituency of Kinross and West Perthshire, although I understood him to concur in the view that the respondent's appearance on the electors' screens might well have gained him some votes. The reason for giving these political broadcasts was neither to promote the election of any candidate or candidates nor to impair the prospects of other candidates: it was to afford speakers, including the leaders of each of those three parties, opportunity to present their views to the public, and it was with that in view that the Corporation incurred expense.

Sir Robert Fraser, the Director General of the Independent Television Authority, said it now operated under the Television Act, 1964(which came into force on 31st July 1964), by which the Authority was required by section 1 (4) (a) to provide television broadcasting services as a public service for disseminating information. By section 3 (1) (e) it is the duty of the Authority to see that due impartiality is preserved on the part of persons providing the programmes as respects matters of political or industrial controversy or relating to current public policy. The section goes on:—

"In applying paragraph (e) of the subsection, a series of programmes may be considered as a whole."

This series of party political programmes was arranged by the British Broadcasting Corporation, and the Independent Television Authority took them from the British Broadcasting Corporation and sent them over its own network of stations.

Mr Mackenzie Stuart, for the petitioner, contended that both the British Broadcasting Corporation and the Independent Television Authority had incurred expense in presenting these political broadcasts with a view to promoting the election of the respondent in the constituency of Kinross and West Perthshire, and, as neither body had obtained written authority from the election agent nor made any return of these expenses, they were in breach of that section. The respondent aided and abetted these authorities in incurring the expenses and he was also guilty of having made a false declaration of his election expenses, because he did not include the expenses incurred by the Corportion and the Authority. So by section 63 (5) of the 1949 Act he was guilty of a corrupt practice and each of the bodies was guilty of an illegal practice.

In my opinion the real issue in this problem turns on the meaning of section 63 (1) of the Act of 1949. That section provides:

"(1) No expenses shall, with a view to promoting or procuring the election of a candidate at an election, be incurred by any person other than the candidate, his election agent and persons authorised in writing by the election agent on account … (c) of otherwise presenting to the electors the candidate or his views … Provided that paragraph (c) of this section shall not—(i) restrict the publication of any matter relating to the election in a newspaper or other periodical…"

Mr Mackenzie Stuart contended that it was clear that both the British Broadcasting Corporation and the Independent Television Authority had incurred expense over these broadcast presentations. Neither of them had written authority from the election agent nor had they made any return in respect of those expenses. These expenses were incurred in presenting the respondent and his views to the electors of Kinross and West Perthshire. Witnesses for the respondent denied that these expenses were incurred with a view to promoting the election of the respondent. This was not to be accepted as an answer. In fact these presentations did favour the respondent. By appearing on the screen and also by what he said on the radio he was promoting his own election and thereby gained an advantage over the petitioner. The test of what was meant by the words "with a view to" was objective, not subjective. It did not matter what motive was in the minds of Sir Hugh Greene or Sir Robert Fraser in arranging these presentations. No doubt both wanted to put out programmes which interested the public, but if in fact the result was to further the respondent's candidature, then the expense was incurred "with a view to promoting the election" of the respondent. They knew or ought to have known that it would do that. Those responsible must be taken to have intended these consequences of the presentation to the public of these programmes. It was no answer to say that each major party had a similar opportunity. The petitioner did not have one. Counsel said he did not shrink from contending that all political broadcasts during a general election were struck at by the section but it was enough for him to establish that these expenses did result in promoting the election of the respondent.

He referred us to the case of Rex. v. Hailwood . That was an appeal against a conviction for a breach of section 34 (1) of the Representation of the People Act, 1918. That Act has since been repealed. At a by-election in 1927 there were three candidates, Conservative, Liberal and Labour. A man of Conservative sympathies disapproved of his party's policy at that time and he incurred expenses in printing and distributing circulars and posters advising the constitients not to vote for the Conservative candidate. He did not in express terms invite them to vote for any other candidate or candidates. He was convicted and his appeal was dismissed.

Section 34 (1) of the Act of 1918 provided:

"A person other than the election agent of a candidate shall not incur any expense on account of … issuing advertisements, circulars or publications for the purpose of promoting or procuring the election of any candidate at a parliamentary election, unless he is authorised in writing to do so by such election agent."

He had no such authority. On appeal he contended that his conviction was wrong because he was not advocating the election of any candidate but only advising the electors not to vote for the Conservative candidate. The court rejected this view.

Avory J., giving the judgment of the court, said (at p. 282):

"If, however, a person has done what is forbidden by the section for a purpose which must have the effect of promoting or procuring the election of a candidate or candidates then there can be no question that he has committed an offence under the section … what was done by the appellant … must have had the effect of promoting the election of the candidates or one of them other than the Conservative candidate."

Mr Mackenzie Stuart said this passage showed that the purpose for which the expense was incurred was to be gathered from what in fact happened or would clearly result from the expenditure. In the present case the presentation of the respondent on television would obviously result in gaining him votes and this was prohibited unless his agent had given written authority or the expense was entered in the account of expenses.

The same reasoning, said Mr Mackenzie Stuart, had been followed in the Kingston-upon-Hull case.

Mr Mackenzie Stuart also referred to R. v. Tronoh Mines Ltd., a case heard in the Central Criminal Court before M'Nair J. after the general election of October 1951. The defendant and its secretary inserted an advertisement in a newspaper criticising the Labour party's policy to control dividends of companies and inviting electors to vote for Mr Churchill and his government. The charge was breach of section 63 (1) of the 1949 Act. M'Nair J. found the defendants not guilty. He stated (at p. 700) that this section and others dealt with election expenses; "election expenses" meant expenses incurred in a parliamentary election and by section 17 (1) of the Interpretation Act, 1889, that meant an election for a particular constituency and not a panoply of elections commonly known as a "general election." The real purpose of the expense had been for general political propaganda and not to promote the election of a particular candidate. His Lordship said:

"I, therefore, accept the submission … that section 63 (1) does not prohibit expenditure, the real purpose or effect of which is general political propaganda, even although that general political propaganda does incidentally assist a particular candidate among others."

Counsel for the petitioner submitted that the Act of 1949 took no cognisance of what is generally called a "general election." That was only a time when a number of elections to Parliament took place. If expenditure resulted from promoting or procuring the election of one candidate, it made no difference that it also promoted or procured the election of other candidates of the same or different parties. He submitted that the decision in Tronoh Mines was wrong and should not be followed, because it was in conflict with what was decided in Rex v. Hailwood and was contrary to the proper reading of section 63 (1).

He also pointed out that articles relating to the election published in a newspaper or other periodical were specifically excepted by the proviso to section 63 (1) (c). No mention was made of broadcasts. The inference was that Parliament did not intend to exempt this form of publication, although it was used for political purposes in 1949.

Mr Keith, for the respondent, submitted that, as this was a quasi-criminal proceeding, not only was the onus on the petitioner but his contentions must be established beyond reasonable doubt. The petition proceeded on the statement that these expenses by the British Broadcasting Corporation and the Independent Television Authority were incurred with a view to promoting or procuring the election of the respondent for the constituency of Kinross and West Perthshire. That was not correct.

The real issue in the case was whether the British Broadcasting Corporation and the Independent Television Authority incurred these expenses with a view to promoting the election of the respondent for his constituency. This was a question of fact, to be ascertained from the evidence and admissions in the case. One must find out what was in the minds of those responsible for sending out the programmes which gave rise to the expenses. Did they have the intention, purpose, object or aim of promoting the candidature of the respondent? Sir Hugh Greene said that was not what he had in view. His object was to afford an opportunity to each of the main political parties to put their views before the public. By its charter the British Broadcasting Corporation was required to provide information to the public. It was with that in view that this series of programmes was put out. Sir Robert Fraser said the same thing with regard to the Independent Television Authority.

The programmes themselves were consistent with this view. There was no reason why the evidence of these two witnesses should not be accepted. It was clearly established in evidence that this was what they had in view.

The section struck at expense incurred with a view to promoting or procuring the election of a particular candidate. In the present case that meant expense incurred with a view to promoting the election of the respondent as a member of Parliament. It did not matter that that expenditure might have had this result. The question was what was the dominant motive in the minds of the promoters. To that the answer must be "to give the public information."

On the effect of the words "with a view to" counsel referred to New, Prance & Garrard's Trustee v. Hunting, later reported and approved as Sharp v. Jackson . Their Lordships both in the Court of Appeal and in the House of Lords referred to the state of mind of the person concerned. The case of Hailwood was distinguishable and did not justify the meaning taken from it by Mr Mackenzie Stuart. In any event, it was not shown that the respondent's appearances gained him any votes. Votes attracted to him by his own or his party's programmes might well be outweighed by the votes attracted away by the programmes of the Labour Party and the Liberal Party. The case of Tronoh Mines was correctly decided. Section 63 did not strike at expenditure incurred for general political purposes.

Section 80 (1) of the Act, which dealt with broadcasts from foreign stations, showed that Parliament had wireless transmissions in mind. The fact that under section 80 (1) wireless transmitting stations outside the United Kingdom could transmit matter having reference to the election in pursuance of arrangements made with the British Broadcasting Corporation showed that political broadcasts per se were not struck at.

Reference to the Television Act, 1954, section 3 (1) (f) and (g) and to the present Television Act, 1964, sections 2 (5) (a) and 3 (1) (e)showed that Parliament recognised that the British Broadcasting Corporation gave a series of party political broadcasts.

To succeed the petitioner must show not only that expense was incurred by the British Broadcasting Corporation and the Independent Television Authority on account of presenting the respondent or his views to the electors of Kinross and West Perthshire but also that the responsible officials of those bodies incurred those expenses with a view to promoting or procuring his election. It is clear that such expenses were incurred and that the respondent was presented personally and by speeches to such of the electors of that constituency as watched television on the occasions of the broadcasts in question.

The real question is whether it has been shown that those expenses were incurred with a view to that end. Sir Hugh Greene and Sir Robert Fraser both say that what they had in mind in arranging and later when sending out the programmes in which party representatives appeared and spoke was to give information to the public. I see no reason why we should not accept that evidence of intention or motive. It is reinforced by what took place and is in accordance with the requirements of their constitutions. As similar facilities were given to each of the three major parties, neither authority can be accused of being partial.

Mr Mackenzie Stuart's main point was that it did not matter what intention may have been in the minds of those who sent out the programmes; the question was whether this expenditure either did in fact promote the respondent's candidature or would tend to do so. It was a fair assumption that the petitioner's appearances on the screen would help to promote his election.

I do not think that the maxim that a man must be taken to have intended the consequences of his acts has application in construing the words "with a view to." What has to be considered is the intention or motive in the mind of the person who arranged the programmes and so occasioned the expense. If there was more than one motive, then it is the dominant one that has to be looked at. The court must be satisfied that his intention was what he says it was and should check his statement of intent against other facts and circumstances. Once the intent is established, it is irrelevant that putting that intention into operation has also the effect of promoting the election of a candidate. In this case I agree with Mr Keith that the dominant motive in the minds of the producers has been shown to be an intention to give the public information on political matters. I do not find it possible to say whether in fact the respondent gained more votes in his constituency than he would have got if he had not appeared on television. No doubt he hoped he would, but I am not concerned with what went on in his mind but what went on in the minds of Sir Hugh Greene and Sir Robert Fraser.

There is ample authority for the proposition that what has to be looked for is the dominant motive which moved the actor. This is to be found in cases on the Bankruptcy Act, 1883, section 48, which used the words "with a view of giving a preference." In Ex parte Taylor Lord Esher M.R. said (at p. 299) the section dealt with payments made "with a view of giving such creditor a preference over the other creditors." He went on to ask:

"What is meant by ‘with a view’? It is the same thing as with an ‘intent.’ The moment you come to this, you have to perform the metaphysical operation of finding out what a man's interest was."

Lindley L.J. said (at p. 301):

"But the question is, not only whether the payment was made in favour of the creditor, but whether it was made ‘with a view’ to prefer him. Regard must be had to the ‘view’ with which the payment was made. It was argued that it is sufficient if the creditor was actually preferred. That would be to strike out from section 48 the words, ‘with a view of giving such creditor a preference over the other creditors.’ It is impossible to infer the debtor's view from the mere fact that the creditor was preferred."

Lopes L.J. (at p. 302) said that the substantial motive of the debtor must be looked at.

The same line of reasoning was followed in the case of New, Prance & Garrard's Trustee v. Hunting, to which I have already referred. In that case counsel contended that the granter of a deed must be taken to have intended the necessary consequence of his own act. The necessary consequence was to give a preference to certain creditors. The Court of Appeal did not accept that view. Lord Esher M.R. said (at p. 27):

"The question whether there has been a fraudulent preference depends, not upon the mere fact that there has been a preference, but also on the state of mind of the person who made it … Whether it is called ‘intention,’ or ‘view,’ or ‘object’ does not appear to me to matter much. The question is whether in fact he had the intention to prefer certain creditors. It has been argued that the debtor must be taken to have intended the natural consequences of his act. I do not think that is true for this purpose. I think one must find out what he really did intend."

A. L. Smith L.J. said (at p. 29):

"I have always understood that, to ascertain whether there has been a fraudulent preference, it is necessary to consider what the dominant or real motive of the person making the preference was."

Chitty L.J. said (at p. 31):

"I ask myself what was really the view which Prance had in making this conveyance."

This decision was approved in the House of Lords sub nom.Sharp v. Jackson . The Earl of Halsbury L.C. said (at p. 421) that he entirely and absolutely agreed with the view as to the question of fact on which the case was decided by the Court of Appeal. He then quoted and adopted what had been said by the Master of the Rolls and the other judges. Lord Shand said (at p. 427):

"It seems to me that by a stream of authority it has now been settled … that it is necessary to consider, as A. L. Smith L.J. said, what was the dominant or real motive of the person making the preference."

At both hearings counsel advanced the proposition that a man must be presumed to have intended the consequences of his act. This proposition was not accepted.

In my view these cases show that it is the motive in the mind of the actor which must be considered.

The case of Rex v. Hailwood in the Court of Criminal Appeal is not really in point. It was under the Representation of the People Act, 1918, section 34 (1). The Act of 1918 provided that a person other than the candidate or his agent should not incur expenses on account of issuing circulars for the purpose of promoting or procuring the election of any candidate. Hailwood had incurred expenses in issuing circulars asking electors not to vote for the Conservative candidate. He contended that he had been wrongly convicted because he had not issued the circulars for the purpose of promoting the election of any candidate. The court refused the appeal. Avory J. said (at p. 282):

"If … a person has done what is forbidden by the section for a purpose which must have the effect of promoting or procuring the election of a candidate or candidates then there can be no question that he has committed an offence under the section."

There was no question in that case that Hailwood had issued circulars and incurred expenses without authority. There was no question that in these circulars he had invited electors not to vote for the Conservative candidate. The words used by Avory J. had reference to the words "for the purpose of promoting or procuring the election of a candidate" and he pointed out (giving the judgment of the court) that it was plain that if the electors refrained from voting for the Conservative candidate, the inevitable result must be to promote the election of one or other of the other candidates. I do not think this case is authority for the proposition that in construing the words "with a view to" one must disregard the motive in the man's mind and look to the consequences of his action. Rex v. Hailwood is a case in which the court refused to accept the defendant's own statement as to what he said was the purpose which induced him to act as he did. As I have already said, I consider that the court must satisfy itself what motive was in the man's mind and is not bound to accept his own statement. I do not think that the Kingston-upon-Hull case is in point. The member had been associated in the distribution of free coal and sweets at the time of the election and the petition was brought on the allegation of corrupt practices. For the defence it was contended that moral corruption must be proved as the governing motive. Sir Henry Seymour King—the member—had represented the Central Division of Hull for twenty-five years and said that the distributions were made to celebrate that fact. Ridley J. said (at p. 384):

"You cannot do a thing because of an anniversary, at the time of an election, because you have an anniversary which you wish to celebrate when nobody else could do it without an anniversary."

That appears to be the basis of the decision and does not assist in the present petition.

I have come to the conclusion that section 63 (1) requires that we must ascertain from the evidence what was the motive and, if there was more than one, which was the dominant motive in the minds of the executives of the British Broadcasting Corporation and the Independent Television Authority. In this case I am satisfied it was to give information to the public and not to promote the election of the respondent and that neither he nor those responsible for the British Broadcasting Corporation and the Independent Television Authority have been in breach of that section.

On this view I do not find it necessary to consider the proposition based on the decision in R. v. Tronoh Mines Ltd. I will content myself with saying that I see nothing wrong in that decision.

Again, taking the view that I do, I do not require to consider at length the argument based on the proviso in section 63 (1) (e) dealing with publication of any matter relating to the election in a newspaper or other periodical. Mr Mackenzie Stuart said that if Parliament had intended to allow the British Broadcasting Corporation to take part in politics, it would have included that in the proviso. I am not prepared to accept that argument. Parliament may well have taken the view that it was not required. Some newspapers and periodicals take sides in political matters, but the British Broadcasting Corporation is required by its charter to be impartial.

On the whole matter I would accordingly refuse the petition.

LORD KILBRANDON .—I agree with your Lordship in all respects, and so I need not take up a lot of time. But I look at the matter briefly from two points of view. The first one concerns the interpretation of section 63 and the second one is the question: In the light of that interpretation do the facts justify a declaration that the respondent is guilty of corrupt practices? Since, if the respondent be guilty of corrupt practices, it will be because he aided the B.B.C. and the I.T.A. in committing corrupt practices, the real question is as to the guilt or otherwise of those corporations.

Party political broadcasts fall into two classes. The first is called the annual series; these go on all the year round and we are not directly concerned with these. Then there is the series with which we are directly concerned, the series which precedes a general election. I need not rehearse the method of the allocation of time between the parties in relation to this series, because your Lordship has already referred to that. It is this allocation of time, involving the disqualification of candidates not belonging to particular political parties, which is challenged as in the circumstances giving rise to corrupt practices. The history of this matter is, I think, not without significance. The practice began in 1945 and that practice included the method of allocation of time which is now complained of. This was under the 1918 Act, and I do not understand it to have been suggested that the wording of section 34 of that Act could be held to have prohibited the practice; but the petitioner says the practice has been illegitimate since the Act of 1949 was passed. If he is right, accordingly, what happened in 1949 was that Parliament, in the knowledge of the practice both as to annual and election series and the method of allocation of periods adjusted between the B.B.C. and the principal parties, when the law as to corrupt practices was being codified, altered, and perhaps extended, decided to prohibit the practice, and for the purpose of, inter alia, doing so used the words of section 63.

The further history of the matter proceeds as follows. At the general elections of 1950, 1951, 1955, 1959 and 1964 the same policy as to political broadcasts was pursued and, on one view of Mr Mackenzie Stuart's argument, every election forming part of a general election since 1950 has been vitiated by corrupt practices. The matter goes a little further than that. We are being asked to construe the intention of Parliament from the terms of section 63, the words of that section not expressly prohibiting the practice complained of but, as it has been submitted, prohibiting it by necessary implication. In these circumstances it seems to me to be a sensible canon of construction that, if a practice is known to Parliament when Parliament is legislating on a question which involves a consideration of the legality of the practice, then, unless the resultant statute uses words clearly prohibiting the practice, it ought to be presumed that Parliament does not intend the prohibition of the practice. This is a rule of common sense rather than of substantive law. It is clear that section 63 does not expressly prohibit the practice, as it easily could have; and that is perhaps all the more remarkable in view of the provisions of section 80, whereby the broadcasting of political propaganda from foreign stations, otherwise than in pursuance of arrangements made with the B.B.C., is expressly made an illegal practice.

But the matter seems to me to be beyond doubt when you look at the Television Act, 1964, section 3 (1) (e). It is impossible to say, in my view, that that deals only with the annual series of party political broadcasts; if it does not only deal with the annual series, then in 1964 Parliament was referring to, as having been accepted, the arrangements made first in 1945 and repeated at every general election since that date. This is inconsistent in my view with an intention by Parliament to declare the practices illegal in 1949. The same argument applies to the reference to the B.B.C. political broadcasts in the Television Act, 1954. When Parliament is talking about political broadcasts or a series of political broadcasts, Parliament is talking about broadcasts arranged on an allocation of times agreed between the main political parties and the B.B.C., excluding all independent candidates and candidates belonging to parties having less than a certain number of candidates in the field. No series of party political broadcasts with any other characteristics has ever been known in Britain at the time of a general election.

It is accordingly against this background that one has to examine the facts. Mr Mackenzie Stuart, in what perhaps he would permit me to describe as an address of exceptional lucidity, made it quite clear that the question is, it being conceded for this purpose that the B.B.C. and I.T.A. incurred expense and that the broadcasts upon which they spent the money had the effect of promoting or procuring the election of the respondent, then were their expenses incurred with a view to promoting or procuring the election of the respondent? I have no doubt that the answer should be in the negative. Sir Hugh Carleton Greene specifically denied it. Mr Mackenzie Stuart says it does not matter what Sir Hugh said; he said Sir Hugh must be deemed to have intended the normal consequences of his acts and the consequences of his acts are all you look to. This seems to me to be contrary to the rules for the interpretation of the expression "with a view to" approved by the House of Lords in Sharp v. Jackson, to which your Lordship has already referred. I think we must look at the whole evidence in order to see what was the real aim of the B.B.C. in arranging the broadcasts.

The general objects of the B.B.C. can be gathered from their Royal Charter. It proceeds upon a preamble describing the services as "such services as means of disseminating information, education and entertainment," and the first of the objects of the Corporation stated in paragraph 3 is "to provide, as public services, broadcasting services of wireless telegraphy;" of course, television is added in a subsequent passage. This certainly does not include the promotion of political candidates. There is no ground to suggest that in arranging these broadcasts the B.B.C. acted outside the powers conferred on them. On the other hand, it is quite clear to me that the views of political leaders and the proposals of the great political parties at times of a general election are matters of important public interest upon which the public are entitled to the best information possible. This they get through the party political broadcasts, and I have no hesitation in saying that on the evidence it is the public service of providing this information which is the dominant, the real, or even the only, view with which the B.B.C. arrange political broadcasts and with which the I.T.A. relay them. For my part, I am not able to distinguish, looking at it from the aspect of the aims of the B.B.C., between the provision by the B.B.C. of news consisting of the current political controversies as disclosed by what party leaders say in public and information as disclosed by what they say in the studio. In both cases what is said tends to promote, or is intended to promote, the candidature of the speaker and his friends. But, if the reporting of such matters is for that reason struck at by section 63, then the inevitable consequence is that for some weeks before a general election the principal source of domestic information and instruction must remain silent on a question which is urgently calling for the attention of every home in the country, namely, the political future of the nation.

As regards the authorities, we were pressed with the case of Rex v. Hailwood, and especially the passage at p. 282, at which Avory J. said, "It is further said that the appellant is not liable, inasmuch as while he endeavoured to prevent the election of one of the candidates, he did not directly promote or procure the election of any of them. If, however, a person has done what is forbidden by the section for a purpose which must have the effect of promoting or procuring the election of a candidate or candidates then there can be no question that he has committed an offence under the section." But as soon as it is appreciated that the accused admitted having disparaged one candidate and was claiming that he had not intended thereby to promote the election of the other two, it will be seen that the learned judge was right in saying that the jury must ignore the dominant intention in the mind of the accused when he committed the unlawful act. Here the act complained of, before it can become unlawful, must contain the element of view, motive or object, so that that element becomes indeed the main object of the inquiry.

We were also referred to the case of R. v. Tronoh Mines Ltd. This case proceeds upon the assumption that there had been an expenditure by someone other than the candidate or his agent with a view to promoting the election of a candidate (which by the Interpretation Act of 1889 is equivalent to "candidates"), but M'Nair J. held that section 63 did not apply unless the expenditure was on behalf of a particular candidate and did not therefore strike at propaganda on a national basis. I see no ground to criticise the reasoning of the learned judge; but, since I find that the basic assumption in that case is contrary to the facts in the present case, that case has no application here.

There is one last matter to which I ought to refer. A good deal was made of alleged hardship and unfairness suffered by the petitioner and others in consequence of the arrangements which have been criticised. It is not just easy to be certain what is the Communist Party's line on this matter. At first, as one can see from their manifesto, which was produced, their complaint was that they were not being permitted to take part in what they now stigmatise as corrupt practices. In the witness-box, however, Mr Gollan to some extent retreated from that position. In the correspondence the present practice is described as "undemocratic." I do not know—neither is it necessary to inquire—what the word "democratic" means in this vocabulary; but in fact the present arrangements are unanimously approved of by the representatives of an overwhelming majority of the electors in Great Britain. I mention that for this reason: it is no part of our duty in this Court to make pronouncements on the irrelevant question of unfairness, but the consultation which takes place between the B.B.C. and the Members of Parliament is, to my mind, indicative of the objective which the B.B.C. has in view and is negative of the only corrupt practice which is charged against them here, that is to say, the promotion of the election of the leader of one of the political parties. The dissemination of the information and instruction to which I have referred is a duty committed to the B.B.C. They must carry it out as in their discretion, exercised in good faith, they think right. The machinery of consultation and of apportionment of time seems to me to be conclusive of good faith. For the rest, their discretion must, I think, on the evidence inevitably involve the exclusion from the air of some of the participants in a general election and may involve the exclusion of minor parties. The decision must, as matters stand, lie, under such consultations as seem good, with the B.B.C. There is no evidence that in arriving at that decision the Corporation have involved themselves in a breach of section 63.

In my opinion, we ought to certify that the Rt. Hon. Sir Alexander Frederick Douglas-Home was duly elected and that no person has been guilty of a corrupt or illegal practice.