A High Court election petition did not result in the annulment of the election in question because, although the Respondent election winner was shown to have included a false statement in a leaflet about one of her opponents, the statement was held to pertain to the political conduct of the opponent, as opposed to his personal character or conduct.

Section 106 of the Representation of the People Act 1983 provides that a person ‘who before or during an election, for the purposes of affecting the return of any candidate at the election, makes or publishes any false statement of fact in relation to the candidate’s personal character or conduct shall be guilty of an illegal practice, unless he can show that he had reasonable grounds for believing and did believe it to be true’.

In Buchan v. Elliott, a local election candidate who had been unsuccessful by a very narrow margin in the 2021 local elections challenged the return of the victor on the grounds that she had distributed, days before the election, a leaflet that included a statement that he, the runner-up (along with a number of named others who were similarly incumbent councillors), had supported and voted in favour of controversial planning application. In reality, he had been ill on the day of the meeting but had sent a substitute in his place who voted for the application.

Respondent’s submissions

The Respondent, who had won the election by 619 votes to 609, argued that:

1. the statement was about the political conduct of the candidate, rather than his personal character or conduct, and was therefore out of scope of the prohibition in section 106;
2. that the statement had been substantially true because not only had the Petitioner chosen the substitute who voted to support the application, he had himself subsequently celebrated the award of planning permission in social media posts which were still visible at the time of the trial; and
3. that even if the statement was held to have been false, the Respondent had reasonably believed it to be true.

Substantively true?

His Honour Judge Kramer, sitting as a Commissioner of the Election Court, ruled that the statement had not been substantively true, on the basis that saying someone voted for a particular cause went above and beyond saying they merely supported it: ‘o say that Mr Buchan voted contemplates that he has done more than lend the development his support; he has done something to bring it about.  Had Ms Elliott limited her election flier to saying that Mr Buchan had supported the revised development, there was evidence that he had.’ The judge also noted that there was no evidence before the court that the candidate about whom the statement had been made had influenced the manner in which his substitute voted, even if he had chosen him.

Personal character or conduct?

However, the judge went on to uphold the election result on the basis that the statement pertained to the Petitioner’s political conduct, rather than his personal character or conduct. He referred to a case (Cockermouth, 1901) in which even a statement that a politician had voted not to support his country at war was held not to pertain to personal conduct, and distinguished the present case from the scenarios involving allegations of corruption considered in the leading case of Woolas (2010, in which this firm’s Gerald Shamash also acted) where the political element ‘could be interpreted as merely being the occasion upon which he acted’ and where the substance was in fact personal. He dismissed the argument by the Petitioner that the prohibition of party whipping in planning law meant voting on applications was personal rather than political, ruling that ‘the fact that your party does not or cannot dictate how you vote, and that the decision is personal, yours to take, does not make the way in which one manifests the decision, namely by voting, into a personal, as opposed to political conduct.  Politicians are entrusted to take these decisions on the public’s behalf and when they discharge that trust, they are undertaking a political act which is correctly characterised as political conduct.‘

Reasonable belief – a warning on the standard of care expected

The judge also sounded a cautionary note with regard to the standard of care expected of those composing statements about election candidates. The Respondent’s mistaken belief in the truth of the statement had arisen because she had not noticed the Petitioner’s absence from a video of the online meeting which was difficult to follow owing to technical issues. It had been compounded by sight of the social media posts by the Petitioner celebrating the outcome of the planning hearing, and finally by examining what the Respondent thought were minutes of the relevant meeting which appeared to show that there were no apologies. It turned out that the Respondent had mistaken an agenda for the minutes. The judge was satisfied that the Respondent’s belief in the truth of the statement had been genuine. But as to whether it was reasonable, he noted that ‘the only hard evidence would be if there was something on the face of the recording which showed that he was not there, for instance listening to it again to see if there were any apologies that had been offered, or to look at the minutes themselves…it does not look, on her evidence, as if she looked at either. As I said, and this is a trait of human nature, once you convince herself, and she had convinced herself that a certain state of affairs existed, her belief was easily confirmed by looking at the agenda for the 10 March, whereas had she taken care, she should have looked at the minutes themselves.  Accordingly, had she had to rely upon the defence of reasonable belief, whilst her belief was genuine, I would have concluded that it was not reasonable.’

The election result was UPHELD and the Respondent was awarded approximately £50,000 in legal costs to be paid by the Petitioner.

Gerald Shamash and Axel Landin, of Edwards Duthie Shamash’s Media and Election Law group in Waterloo, instructed Sarah Sackman, of Matrix Chambers, to represent the Respondent.