Ref:  CARF3507

Judgment: approved by the Court for handing down
(subject to editorial corrections)

Delivered:	19/10/2001

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

QUEEN’S BENCH DIVISION

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IN THE MATTER OF THE REPRESENTATION OF THE PEOPLE ACT 1983 

and

IN THE MATTER OF THE PARLIAMENTARY ELECTION FOR FERMANAGH AND SOUTH TYRONE HELD ON 7 JUNE 2001 

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CARSWELL LCJ

	This petition, presented by one of the defeated candidates in the parliamentary election held on 7 June 2001, was heard by us as an election court under the provisions of the Representation of the People Act 1983 (the 1983 Act).  The petition sought a determination that the respondent Michelle Gildernew was not duly elected and that the petitioner James Leslie Cooper was duly elected and ought to have been returned in her place, or alternatively that the election was void.  The ground on which the petition was based was the alleged commission of irregularities in the conduct of the poll in one of the polling stations in the constituency, situate at St Martin’s Primary School, Garrison, Co Fermanagh.
	A total of 51,974 votes was cast in the constituency, divided between the candidates as follows:
James Leslie Cooper              17,686
James Dixon			    6,843
Thomas Gallagher		    9,706
Michelle Gildernew		  17,739.

The petitioner stood as a candidate for the Ulster Unionist Party and Ms Gildernew on behalf of Sinn Fein.  Ms Gildernew, having a majority of 53 votes over the petitioner, was declared elected and returned as the member for the constituency.  Some 974 votes in all were cast in the polling station in question.  It was claimed in the petition that the presiding officer, under threats from supporters of Sinn Fein, issued ballot papers and permitted votes to be cast after 10 pm, the prescribed hour for the close of the poll.
	The conduct of parliamentary elections is governed, so far as is material to this petition, by the provisions of the 1983 Act and the parliamentary elections rules contained in Schedule 1 to the Act.  Provision for those rules is made by section 23 of the Act, which provides:
“23.-(1)	The proceedings at a parliamentary election shall be conducted in accordance with the parliamentary elections rules in Schedule 1 to this Act.

(2)	It is the returning officer’s general duty at a parliamentary election to do all such acts and things as may be necessary for effectually conducting the election in the manner provided by those parliamentary elections rules.

(3)	No parliamentary election shall be declared invalid by reason of any act or omission by the returning officer or any other person in breach of his official duty in connection with the election or otherwise of the parliamentary elections rules if it appears to the tribunal having cognisance of the question that –

(a)	the election was so conducted as to be substantially in accordance with the law as to elections; and

(b)	the act or omission did not affect its result.”

Rule 1 of the rules provides that polling shall be conducted, in the case of a general election, between the hours of 7 in the morning and 10 at night.  Voting procedure is prescribed by rule 37:
“37.-(1)	A ballot paper shall be delivered to a voter who applies for one, and immediately before delivery –

(a)	the ballot paper shall be stamped with the official mark;

(b)	the number, name and description of the elector as stated in the copy of the register of electors shall be called out;

(c)	the number of the elector shall be marked on the counterfoil;

(d)	a mark shall be placed in the register of electors against the number of the elector to denote that a ballot paper has been received but without showing the particular ballot paper which has been received; and

(e)	in the case of a person applying for a ballot paper as proxy a mark shall also be placed against his name in the list of proxies.

(2)	The voter, on receiving the ballot paper, shall forthwith proceed into one of the compartments in the polling station and there secretly mark his paper and fold it up so as to conceal his vote, and shall then show to the presiding officer the back of the paper, so as to disclose the official mark, and put the ballot paper so folded up into the ballot box in the presiding officer’s presence.

(3)	The voter shall vote without undue delay, and shall leave the polling station as soon as he has put his ballot paper into the ballot box.”

	The polling station was staffed by the presiding officer, Mr John McGovern, and two polling clerks, Mr Andrew Hallewell and Miss Frances Flanagan.  Miss Flanagan deposed, and we accept, that it opened punctually at 7 am.  All three remained on duty throughout the day, with no breaks except to go to the toilet.  They were seated at a table facing the door and at the other end of the classroom in which voting took place, with the ballot boxes immediately in front of them.  The parties’ polling agents were situated at the end of the room beside the door and the polling booths were in the middle of the room.  A police officer was stationed by the door to the room.
	Both the parliamentary election and local council elections were held on the same day on this occasion.  The procedure required the elector to produce one of the prescribed documents of identification, which was examined by the presiding officer.  One of the polling clerks took the elector’s polling card to check off his name in the electoral register (most electors brought their polling cards with them, to facilitate the process, but it was possible for the staff to check an elector’s name on the register without the card).  The clerk ruled a line through his name in the register and one of the clerks called out his name and number for the polling agents to hear, so that they could keep a tally.  The presiding officer stamped with the official mark a ballot paper for each election and issued it to the elector.   Mr Hallewell’s evidence was that this process took about one minute on average, though he accepted that it might be a bit faster.  We consider, for reasons to which we shall return, that it may have been possible to process voters somewhat more quickly than one per minute.  The elector then took the ballot papers to a voting booth and completed them, returned to the ballot boxes and after showing the official stamp to the presiding officer deposited them in the respective boxes for the elections.
	The flow of voting was fairly steady during the day, with a slacker period in the middle.  From about 7 pm it built up and a queue of people formed, which stretched out along the corridor leading to the polling room and out into the school playground.  As the closing hour of 10 pm approached it consisted of some 40 or 50 people.  It was the duty of the presiding officer to close the poll at 10 pm by ceasing to issue any more voting papers.  So long as the voting papers were issued by 10 pm, however, if electors marked them and deposited them in the boxes without delay the votes were valid: see Islington (1901) 5 O’M & H 120 at 129, per Kennedy J.     
	As 10 pm approached, Sergeant Nixon, who was in charge of the police detachment on duty at the polling station, became concerned, since it was apparent that a number of people waiting to vote would be unable to do so before the poll closed.  A little before 10 pm he telephoned Enniskillen police station to inform his superiors of the situation.  
At some stage the presiding officer left his seat and announced in the corridor that no ballot papers would be issued after 10 pm.  Mr Hallewell deposed that this took place about or just after 9.55 pm, that the presiding officer returned to his seat before 10 pm and that he stopped issuing ballot papers when the clock on the wall showed that hour.  Miss Flanagan stated in her evidence that he returned to his seat at 10 pm (again she judged the time by the clock on the wall) and said that it was the end of voting.  
Sergeant Nixon deposed, however, that the issue of voting papers continued after 10 pm until approximately 10.05 pm by his watch.  The presiding officer then announced that the poll was closed and instructed the police to close the door.  Sergeant Nixon attempted to close the sliding door of the room, but it was blocked by some person and a surge of people pushed their way through into the polling room.  He stated that he saw two people in particular orchestrating this surge into the room, Martin McGovern, a Sinn Fein polling agent, and Stephen Huggett, a Sinn Fein candidate in the local election.  He heard McGovern shouting that everyone must get in and exercise their right to vote.  There was significant tension in the room as it became crowded with people, with a certain degree of hostility in the atmosphere.  Those who had not voted were annoyed and frustrated and some intemperate remarks were shouted.  Miss Flanagan said at this time to Mr Hallewell that there was going to be trouble.  Sergeant Nixon stated in his evidence that he had questions in his mind about the safety of the ballot boxes and about public order, and was concerned because he and his colleagues could not have controlled the crowd and would have been overrun in a confrontation.  He decided accordingly not to attempt to remove the crowd but to let them calm down.
	Both polling clerks deposed in evidence that the poll closed promptly at 10 pm by the clock on the wall.  Sergeant Nixon adhered to his timing of 10.05 by his watch.  In this he was supported by Constable Hutchinson, who was sitting at the door of the polling room, and by Constable Bell, who was in the corridor and stated that he checked his watch.  Mr McGovern the presiding officer was not called to give evidence, due to illness.  We did not have any evidence of the accuracy of the clock on the wall.  For reasons which will appear, we do not think that the difference in timing is critical in determining the case, but we are inclined to accept the police evidence about the true time of closing of the poll as correct.  
After a short time, by Sergeant Nixon’s estimate, between 10.08 and 10.10, the presiding officer Mr McGovern left the polling room and went into the staff room to make a telephone call.  Sergeant Nixon said that he appeared to be petrified and his hand was trembling so much that he could not dial the number and asked the sergeant to do it for him.  He telephoned the area electoral office and told the returning officer that the crowds were out of control, but he was told firmly that the poll had to be closed.    
	The presiding officer made to return to the polling room.  In the corridor he was confronted by Martin McGovern, Stephen Huggett and Grainne Timoney, a Sinn Fein agent, who addressed him in what appears to have been a hectoring fashion about people exercising their right to vote.  One person averred, incorrectly, that the polling station had opened ten minutes late and that electors should get that time made up.  The presiding officer went back into the polling room and said that he would give them the extra ten minutes, which was greeted with applause and jubilation on the part of the crowd in the room.  The time was by then approximately 10.12 to 10.15.  He commenced once again to issue voting papers and people marked them and deposited them in the ballot boxes.  
	While this was taking place Sergeant Nixon went to the staff room and made a further telephone call to Ms Breen in the area electoral office in Omagh.  Ms Breen demanded to speak to the presiding officer, and Sergeant Nixon returned to the polling room and told Mr McGovern that he was wanted on the telephone.  This took place, according to the sergeant’s reckoning, about 10.23 pm.  No more voting papers were issued after that time.  The telephone conversation between Ms Breen and Mr McGovern appears to have been more than a little stormy.  As far as Sergeant Nixon could ascertain from what he heard, Ms Breen was very irate and instructed the presiding officer peremptorily to close the poll at once.  Mr McGovern returned to the polling room, still apparently very shaken, and announced that he had to close the poll as to continue would be breaking the law.  No further voting papers were issued and the boxes were sealed a few minutes later.  While Mr McGovern was away at the telephone Miss Flanagan left the room to go home, suffering, as she deposed in evidence, from exhaustion and tension.
	The estimates of the time for which the poll was open after 10 pm varied between the witnesses, as did the number of voting papers issued.  We have already referred to the issue whether the presiding officer declared that the poll was closing at 10 pm or 10.05 pm.  We are unable to resolve this with any finality.  All witnesses accepted that the time during which voting papers were issued after the presiding officer announced that he would allow extra time was in the region of ten minutes, and this appears to us to be the most reliable estimate.  
	There was much less unanimity about the number of voting papers issued during that period of ten minutes.  The police witnesses were not in a position to make any estimate.  Mr Hallewell reckoned that not more than 15 or 20 were issued, and thought that this was probably a high estimate.  Miss Flanagan gave a figure of 15 or 16, but professed to be altogether uncertain about it.  Mr Hallewell expressed the view that the rate of issue of voting papers was only about one per minute, but we are satisfied that this is an under-estimate.  A total of 974 votes were cast in the polling day of 15 hours or 900 minutes, so, allowing for slack periods, the rate at busy times must have been materially faster than one per minute.  On the other hand, the process involved a number of steps, which were bound to take up quite a little time, and we think it unlikely that it was possible to issue more than about two voting papers per minute, even under pressure to go as quickly as possible.
	This finding enables us to reach a conclusion on the issue posed by the terms of section 23(3)(b) of the 1983 Act, whether the presiding officer’s breach of the regulations in keeping the poll open after 10 pm affected the result of the election.  If we assume in favour of the petitioner that the poll was open in the first instance until 10.05 pm, then was re-opened for a further period of ten minutes, that makes a maximum of fifteen minutes.  We do not consider that the number of voting papers issued in that time could be materially more than thirty, and that number falls well short of the successful candidate’s majority of 53 votes.  Although Kennedy J in Islington (1901) 5 O’M & H 120 at 130 said that the burden is on the successful candidate to show that the result was not affected, this is doubted in Parker’s Law and Conduct of Elections, para19.92.  We do not need to determine the matter by resort to the burden of proof, for we are affirmatively satisfied on the balance of probabilities that materially fewer than 53 voting papers were issued after 10 pm on polling day.  We therefore hold that the breaches of the regulations did not affect the result of the election.  
The final issue is that contained in section 23(3)(a) of the 1983 Act, whether the election was so conducted as to be substantially in accordance with the law as to elections.  In our view this phrase refers to the election as a whole, not to the proceedings at the particular polling station.  Statements of the law suggest that for the breach of election law to be regarded as substantial there has to be something which would make one have serious doubt whether the election was a proper manifestation of the wishes of the electorate in choosing their member.  So in Morgan v Simpson [1975] QB 151 at 168 Stephenson LJ said:
“For an election to be conducted substantially in accordance with that law there must be a real election by ballot and no such substantial departure from the procedure laid down by Parliament as to make the ordinary man condemn the election as a sham or a travesty of an election by ballot.”

The decided cases show that a fairly considerable departure from proper procedure has been required before the court will set aside an election on this ground: see Parker’s Law and Conduct of Elections, paras 19.89 to 19.91.  In particular, irregularities in respect of opening hours at a single polling station have not been regarded as sufficient to avoid the election: see Drogheda 2 O’M & H 201; Islington, 5 O’M & H 201; East Clare 4 O’M & H 162.  We take into account also the remark of Willes J retailed by Martin B in Warrington 1 O’M & H 42 at 44, that a judge to upset an election ought to be satisfied beyond all doubt that the election was void, and that the return of a member is a serious matter and not lightly to be set aside.
	The incidents which took place at this polling station at the time when the poll should have closed were extremely reprehensible.  It is understandable that electors who had waited for some time to cast their votes should feel angry at finding themselves deprived of the opportunity through no fault of their own.  It may be that the holding of both elections on the same day threw a strain on the process which the resources of the polling staff could not bear, and we express the hope that the insufficiency will be addressed.  No doubt there was a strong feeling of frustration among those who found themselves unable to vote.  But nothing can excuse the scenes of threatening intimidation which took place, brought into being by supporters of the candidate who was eventually successful.  Such behaviour is the negation of a parliamentary democracy.
	That said, the issue which we as an election court have to decide is whether the election in the constituency of Fermanagh and South Tyrone was so conducted as to be substantially in accordance with the law as to elections.  The disturbance at St Martin’s School, Garrison was serious and intolerable, but it was an isolated incident and fortunately had a small effect on the voting both in that polling station and in the constituency as a whole.  We must conclude that the condition laid down in section 23(3)(a) of the 1983 Act is satisfied and that we should not declare the election for this constituency invalid.
	We therefore determine that Michelle Gildernew was duly elected as Member of Parliament for the constituency of Fermanagh and South Tyrone.  We shall certify our determination to the Speaker of the House of Commons accordingly.

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

QUEEN’S BENCH DIVISION

_____ 

IN THE MATTER OF THE REPRESENTATION OF THE PEOPLE ACT 1983 

and

IN THE MATTER OF THE PARLIAMENTARY ELECTION FOR FERMANAGH AND SOUTH TYRONE HELD ON 7 JUNE 2001 

_____ 

J U D G M E N T
O F
CARSWELL LCJ

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