“You don’t have the votes!” - Tanveer Qureshi and Katharine Elliot
“You don’t have the votes!”
Challenging political election results in England & Wales
1. Imagine. The UK May 2024 general election is finally drawing to a close. After months of campaigning, the votes are in and pundits are predicting a clear win for Party A. The leader of Party B is concerned the election was not fair and accusations of voter fraud and spoiled ballets begin to fly on social media and the national news. How will this be investigated? Will anyone be prosecuted? Could the election result really be overturned?
Challenging an election result
2. The only way to challenge an election result in England and Wales is via an election petition. The procedure and grounds for a petition are set out in Part 3 of the Representation of the People Act 1983 (the “RPA 1983”) and will depend on whether the election challenged is parliamentary or local.
Parliamentary election petition
3. A parliamentary election may be challenged via a petition on the basis of an undue election or undue return (s.120(1), RPA 1983). The petition may be made by anyone who voted in the election or had a right to vote, anyone claiming to have had a right to be elected or anyone alleging that they were a candidate (s.121(1), RPA 1983) and must be presented to the High Court (s.121(3)).
4. The general rule is that the petition must be issued within 21 days of the return being made (s.122, RPA 1983), although there are specific time provisions in relation to particular kinds of corrupt and illegal practices (for which see paragraph 9 below). The petition will be tried by a specially constituted election court with a two-judge panel and the same powers as the High Court (s.123, RPA 1983).
5. At the conclusion of the trial, the court shall determine whether the person was duly elected or whether the election was void (s.144(1), RPA 1983) and certify that decision to the Speaker of the House of Commons. If the judges differ in their views on that question, the person shall be deemed duly elected (s.144(3)(a)). Where charges of a corrupt or illegal practice have been made, the court will report on whether they have been proven to the Speaker of the House of Commons and also state whether there is reason to believe the practices were extensively prevalent at the election (s.144(4) and s.158, RPA 1983).
Local election petition
6. A local election may be challenged on the grounds that: (i) the person elected was disqualified at the time of the election; (ii) that person was not duly elected (e.g. once defective votes have been removed from the count, the person ceases to have the majority); or, (iii) the election was avoided by corrupt or illegal practices or on the grounds set out in s.164 (general corruption) or s.165 (hiring a corrupt agent) RPA 1983 (s.127, RPA 1983).
7. A petition may be presented by four or more voters (or those who had a right to vote) or by anyone alleging themselves to be a candidate at the election (s.128(1), RPA 1983) and must be presented to the High Court (s.128(3)(a), RPA 1983). The general rule is that the petition must be presented within 21 days after the day on which the election was held (s.129(1), RPA 1983). Again, there are specific provisions for particular types of corrupt and illegal practices. The petition will be heard by a specially appointed commissioner, who will have the same powers as if he were dealing with a parliamentary petition (s.130, RPA 1983).
8. At the conclusion of the trial, the court shall determine whether the person was duly elected or whether the election was void (s.145(1), RPA 1983) and certify that decision to High Court. If the election is declared void and no replacement has been elected, a new election will be held (s.135, RPA 1983). Where charges of corrupt or illegal practices have been made, the commissioners shall report to the High Court on whether those charges have been proven and on the extensive prevalence of any corrupt or illegal practice in the relevant election (s.145(3) and s.158, RPA 1983).
Corrupt and illegal practices
9. The offences which amount to corrupt and illegal practices are identified in the RPA 1983. Corrupt practices include the following conduct when it is carried out to influence voting:
a. Bribery (s.113(2));
b. Treating (essentially bribery via provision of food, drink or hospitality) (s.114(2));
c. Exercising undue influence (i.e. the use of threatened or actual violence, including threats of spiritual harm (R v Rhaman (Aklaur)  EWCA Crim 1237)) (s.115);
d. Personation (i.e. voting as someone other than yourself) (s.60); and,
e. Making a false application to vote by post or by proxy (s.62A).
10. Illegal practices under the RPA 1983 include:
a. Making false statements of fact in relation to a candidate’s personal character or conduct without reasonable belief in its truth (s.106); and,
b. Voting more than once in the same election (s.61).
11. On the much-vexed topic of voting fraud, it is an offence (as opposed to a corrupt or illegal practice) to provide false information for the purpose of elector registration or in connection with an application for a postal or proxy vote (s.13D, RPA 1983). Failure to include specific information in any item of campaign material, including the name of the person promoting the material, is also an offence (s.110, RPA 1983).
12. Whatever offence is relied upon in an election petition, it is essential that it is clearly pleaded with reference to the relevant statutory provision and that the petitioner(s) have the evidence to support their allegations. Many petitions fall by the wayside because they are simply not supported by adequate evidence. As Mr Justice Knowles said in Greene v Forbes  EWHC 676 QB (a case in which Mr Greene (a Brexit party parliamentary candidate) alleged that the team of the Labour candidate Lisa Forbes included an activist who had in the past had been convicted of vote rigging):
“ Allegations may only be made in an election petition where there is evidence to support them. This is not a question of degree of specificity or particularity…It is a question of the entitlement to make the allegation at all. This is all the more important where the allegations are of misconduct or impropriety…”.
Election law sanctions and route of appeal
13. If a candidate who has been elected is reported by an election court to be guilty (either personally or under the agency principle) of any corrupt or illegal practice his election shall be void (s.159(1), RPA 1983). Any person so adjudged shall also be prohibited from voting in any election or holding any elective office (s.160(4), RPA 1983) for a period of five years in relation to a corrupt practice and three years in relation to an illegal practice (s.160(5), RPA 1983). Reports as to corrupt or illegal practices will be sent to the DPP so that criminal investigation of the matter can be considered (s.160(3), RPA 1983).
14. The decision of any election court can only be appealed on a question of law with special leave of the High Court and, if leave is granted, the decision of the Court of Appeal shall be final (s.157(1), RPA 1983).
14. Even if an election court concludes within the hearing of a petition that election offences have been committed it does not necessarily follow that a person will be criminally prosecuted for those offences, even where the election court is required to find the offences proved to the criminal standard (i.e. beyond reasonable doubt).
14. This difference was illustrated in the famous case of Erlam and Others v Rahman and Others  EWHC 1215, in which a group of petitioners sought to have the election of Mr Lutfur Rahman as the mayor of the London Borough of Tower Hamlets set aside on the ground that he and his agents had been guilty of corrupt and illegal practices under the RPA 1983. The election commissioner, Mr Richard Mawrey QC, found Mr Rahman personally guilty and guilty under the agency principle of various offences under the RPA 1983, including making false statements as to candidates (s.106), bribery (s.113), postal vote fraud (s.62A), personation (s.60), the exercise of undue influence (s.115) – specifically that Mr Rahman had procured 101 imams to prevail upon members of the Muslim community to vote for him by saying that it was their religious duty to do so - and various other election offences. The election was duly declared void on the basis of corrupt or illegal practices under s.159 or, alternatively, general corruption under s.164.
14. Subsequently, the Metropolitan Police Service, which had been investigating complaints of election offences, found that there was insufficient evidence that a crime had been committed and as a result no criminal charges were brought against Mr Rahman.
14. As a result of this decision, Mr Rahman sought to challenge the Election Court’s decision by way of judicial review. He submitted the finding that he was personally guilty and guilty via the agency principle of the corrupt practice of undue influence by way of spiritual injury was perverse and violated his rights under article 6(2) of the ECHR. He argued that the finding was incompatible with the presumption of innocence in circumstances where parallel criminal proceedings had been initiated against him. The court dismissed the application and emphasised the role and purpose of election courts, as opposed to the criminal justice system, stating that:
“Much emphasis was placed on the language used in the Election Court proceedings such as that the Claimant was personally “guilty” of electoral fraud, amounting to corrupt and/or illegal practices referred to in the judgment of the Election Court as “charges”, and that the findings were made to the criminal standard and in respect of matters that were also offences under the criminal law. However the Election Court was required by the [RPA 1983] to pronounce upon the Applicant's personal guilt, and required to apply the criminal standard of proof; and the Election Court made clear…that it was not determining criminal liability and that its decisions were “entirely separate from any criminal sanctions that might be imposed if the candidate concerned is prosecuted to conviction for an electoral offence”.
14. This decision is clear authority for the proposition that the discontinuance of criminal proceedings cannot be relied upon to challenge the findings of an election court.
20. In the event of a criminal prosecution proceeding, corrupt practice offences are indictable offences, meaning they can only be dealt with by the Crown Court, while illegal practices are summary offences, meaning that they can only be dealt with by the magistrates’ court. The criminal sanctions for individual election offences are not onerous.
20. Prosecutions for offences under the RPA 1983 are subject to a limitation period and must be brought within 12 months of the offence being committed. If there are exceptional circumstances, and there has been no undue delay in the investigation, the time limit may be extended to not more than 24 months after the offence was committed (s.176). The impact of this time limit – designed no doubt to ensure that criminal cases which could affect elections are progressed swiftly – is that charges are often brought under non-election specific legislation (for example, the Bribery Act 2010 and the Fraud Act 2006), which also afford greater penalties in the event of conviction.
Election offences in the UK & proposals for reform
20. In 2019, more than half of allegations of electoral fraud concerned the way in which election campaigns were conducted – such as making false statements about candidates or failing to provide the required information in campaign material (as in the case of Shaun Bailey, the current Conservative candidate for the London Mayoral elections, who was reported to the CPS by the Labour Party in relation to campaign material earlier this year) - rather the actual voting process. Thankfully, there is no evidence of large-scale electoral fraud in the UK and we have never experienced the same widespread accusations of voter fraud and challenges to election results as those recently endured by the American electorate.
23. However, concerns about voter fraud have been raised both in the election courts – for example, Richard Mawrey QC’s criticism of the postal voting system as “wide open to fraud…any would-be political fraudster knows that” in 2005 when he quashed the results of two local council elections in Birmingham after deciding there had been systematic large-scale vote rigging – and in political circles. In his review into electoral fraud published in August 2016, Sir Eric Pickles recommended that voters should be required to show ID at polling stations, a proposal endorsed by the Electoral Commission. But, while pilot ID schemes were run at selected polling stations, including in Tower Hamlets, during local elections in May 2018, it is not clear what plans the Government has to roll the requirement out more widely, nor whether it intends to respond to increasing calls for the entire election petition process to be reviewed and updated in line with modern as opposed to Victorian election realities.
24. In the meantime, it seems as if politicians and their supporters should focus their efforts (to misquote George Washington in the excellent musical Hamilton) on the “need to convince more folks” as opposed to relying on the election petition mechanism to challenge an election result after the fact.
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