Election rules – Freedom of expression – Proportionality

Robert Elwyn James Watkins v Philip James Woolas EWHC 2702 (QB) DC (Mr Justice Teare, Mr Justice Griffith Williams): 5 November 2010

The petitioner Liberal Democrat MP (X) contested the election of the respondent Labour MP (W) under section 120 of the Representation of the People Act 1983.

Three election addresses were sent to voters shortly before the general election in 2010. The addresses were drafted by members of W’s election team, and W made suggestions as to what should and should not be included, and approved them in final form. The subject matter of the election addresses involved where X lived, his attitude to Muslim extremists and his election expenses. W accepted responsibility for the election addresses.

W contended that he was aware of a prohibition against making false statements in relation to a candidate’s personal character or conduct but he denied that the election addresses evidenced any illegal practice contrary to section 106.

Held: (1) Section 106, when read with sections 159 and 160, not only empowered the court to declare W’s election void but also prevented him standing for election for three years. Accordingly, article 10 of the European Convention on Human Rights was engaged. The restrictions and penalties contained in the act were prescribed by law and directed to the objective of protecting the reputation and rights of others, R v Shayler (David Michael) [2002] UKHL 11, (2003) 1 AC 247 applied and Bowman v United Kingdom (24839/94) [1998] 26 EHRR 1 ECHR considered. Section 106 was directed at protecting the right of the electorate to express its choice on the basis of facts, not false assertions as to the personal character or conduct of the candidates. The interference with the freedom of expression and penalties imposed for breach of section 106 was proportionate to the legitimate aim of the section. Section 106 did not interfere with statements, whether true or not, relating to the political character of a candidate only untrue statements, where there was no reasonable belief of the truth, relating to a candidate’s personal character or conduct. The court should only find an illegal practice contrary to section 106 in the clearest of cases (see paras 41-47).

(2) X had the burden of proving W was guilty of the alleged illegal practice and, while the proceedings were civil, the standard of proof was the criminal law standard. That was so because sections 168 and 169 provided for prosecution on indictment of those guilty of corrupt practice. In the absence of public policy grounds, there had to be compelling reasons for any reversal of the burden of proof, R v Johnstone (Robert Alexander) [2003] UKHL 28, [2003] 1 WLR 1736 considered. The fact that the matters to which the burden of proof related were matters within the personal knowledge of W was not of itself a sufficient reason. Allegations of illegal practice in elections were very serious and, in the present case, the reputation of a long-standing MP and former minister of state was in issue. There were no factors justifying a reversal of the burden of proof and section 106 had to be read down so that there was no more than an evidential burden on W (see paras 48-49 and 57-58).

(3) Reviewing the addresses and considering what the words would mean to the ordinary and reasonable reader, W had made statements of fact in relation to the personal character or conduct of X which he had no reasonable grounds for believing were true. Those statements were: (a) X had attempted to seek the electoral support of Muslims who advocated violence; (b) X had failed to condemn extremists who advocated violence against W; (c) X had reneged on his promise to live in the constituency. Accordingly, W was guilty of an illegal practice which would be reported to the Speaker as required under sections 144 and 158. W’s election was void pursuant to section 159 because he was guilty of an illegal practice. Had the only breach of section 106 been the statement that X had reneged on his promise to live in the constituency, it might have been questionable whether it was necessary and proportionate to penalise such speech by declaring the election void and disqualifying W from standing for election for three years. However, given the other breaches were of such seriousness such concerns did not arise. Accordingly, the statutory penalties for the illegal practices committed by W were both necessary and proportionate (see paras 61 and 207-209).

Petition granted.

Helen Mountfield QC, James Laddie (instructed by K&L Gates) for the petitioner; Gavin Millar QC, Anthony Hudson (instructed by Steel & Shamash) for the respondent.