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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> The Attorney General v Jones [1999] EWHC 837 (Admin) (30 April 1999) URL: http://www.bailii.org/ew/cases/EWHC/Admin/1999/837.html Cite as: [1999] EWHC 837 (Admin), [2000] QB 66, [1999] 3 All ER 436, [1999] 3 WLR 444, (1999) 11 Admin LR 557

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
DIVISIONAL COURT

		Royal Courts of Justice The Strand London
		30 April 1999

Friday 30 April 1999

LORD JUSTICE KENNEDY: This matter comes before us by way of an originating summons issued on the application of the Attorney General representing the Speaker and authorities of the House of Commons. The Attorney General seeks the determination by the court of this question:

"In the following circumstances:

1. The Defendant was elected Member of Parliament for Newark on 1 May 1997;

2. The Defendant was convicted at first instance on 19 March 1999 of the offence of knowingly making a false declaration as to election expenses (Section 82(6) of the Representation of the People Act 1983) in the course of her election campaign;

3. On 15 April 1999 the Defendant's conviction was quashed by the Court of Appeal, Criminal Division;

4. No writ has been moved for a by-election for Newark, and the parliamentary seat for that constituency remained unfilled by any other person as at the date when the Defendant's conviction was quashed;

is the Defendant now entitled, according to the proper construction of the Representation of the People Act 1983, to resume her seat in Parliament as Member of Parliament for Newark?"

As we indicated yesterday, we answer that question in the affirmative. The Attorney General also seeks a declaration to that effect and again, as we indicated yesterday, we grant that declaration. As we promised yesterday, we now give our reasons for our decision.

The Facts

The material facts for present purposes are sufficiently set out in the question posed for our consideration, which we have already recited, with this addition: that the Speaker of the House having been notified of the conviction, she on 22 March 1999 informed the House that the seat for Newark was vacated.

Malpractice

Originally allegations of malpractice such as the offence now set out in section 82(6) of the 1983 Act were matters for the House of Commons, not for the courts, but over the last century Parliament has given the criminal courts jurisdiction in relation to allegations of corruption. The result is that today, if an allegation of corruption is made, the matter can be considered in one or three ways:

(1) by an election court established under the 1983 Act to which a Parliamentary election petition is referred by the High Court;

(2) by the High Court itself if the case raised by the petition can conveniently be stated as a special case (see section 146); or

(3) by a criminal court, as happened in this case.

Election Court Procedure

Because of the structure of the Act, although the election court procedure was not invoked in this case, it is necessary to look at that procedure in order to understand the nature of the procedure which was invoked.

An election court has the authority of the High Court and is a court of record (see section 123(2)). The proceedings before it constitute the trial of a Parliamentary election petition, and section 144(1) of the Act provides:

"At the conclusion of the trial of a parliamentary election petition, the election court shall determine whether the member whose election or return is complained of, or any and what other person, was duly returned or elected or whether the election was void, and the determination so certified shall be final to all intents as to the matters at issue on the petition."

There is therefore no appeal from a decision of an election court. There may be a possibility of judicial review (see R v Cripps, ex parte Muldoon [1983] 2 All ER 72, 83f-j), but for present purposes that is not a matter with which we need be concerned. By contrast there is a right to appeal against a conviction before a criminal court.

An election court has to certify its determination in writing to the Speaker (see section 144(2)) and the report of the election court must state "whether any corrupt or illegal practice has or has not been proved to have been committed by or with the knowledge and consent of any candidate at the election, and the nature of the corrupt or illegal practice (see section 158(1)).

Section 159(1) provides:

"If a candidate who has been elected is reported by an election court personally guilty or guilty by his agents of any corrupt or illegal practice his election shall be void."

Section 159(2) provides amongst other things that a candidate reported personally guilty of a corrupt practice cannot for ten years be elected to the House of Commons or sit as a Member of Parliament for the constituency in question.

Finally, so far as the election court procedure is concerned, section 160(4) provides that:

".... a candidate or other person reported by an election court personally guilty of a corrupt practice shall for five years from the date of the report be incapable --

(a) of being registered as an elector or voting at any parliamentary election in the United Kingdom or at any election in Great Britain to any public office, and

(b) of being elected to and sitting in the House of Commons, and

(c) of holding any public or judicial office,

and, if already elected to the House of Commons or holding such office, shall from that date vacate the seat or office."

The difference between section 159(2) and section 160(4)(b) is that a lesser period of incapacity applies if the candidate seeks election to a different seat.

Criminal Court Procedure

We turn now to what happens upon conviction before a criminal court. The power to fine or imprison is set out in section 168(1), and section 173(a) provides that in addition

"a person convicted of a corrupt practice .... shall be subject to the incapacities imposed by section 160(4) above as if at the date of the conviction he had been reported personally guilty of that corrupt practice...."

That begs the question which is at the heart of these proceedings, namely, what are the incapacities set out in section 160(4) which are invoked by section 173(a)? Clearly they are those identified as (a), (b) and (c) in sections 160(4), but does section 173(a) also invoke the final part of section 160(4), and, if so, what is the result where, after conviction, there is a successful appeal? Does the seat remain vacated or does the decision of the appellate court result in the seat, if still vacant, being automatically refilled?

Section 174 provides for what may happen if there are proceedings both in an election court and in a criminal court. Any incapacity resulting from a report of an election court can be removed if there is an acquittal in a criminal court (see section 174(1)). If a person is subject to incapacity by virtue of a conviction or as a result of a report of an election court obtained by means of the evidence of someone subsequently convicted of perjury in respect of that evidence, then the person incapacitated can seek relief from the incapacity in the High Court (see section 174(5)).

Preferred Solution

The approach to the statute which Mr Sales for the applicant invites us to adopt is that when there is a conviction so that section 173(a) operates to make the candidate subject to the incapacities imposed by section 160(4), those words trigger the whole of section 160(4) so that for the time specified the candidate is incapable of being elected to and sitting in the House of Commons and, if already elected, the candidate shall (from the date of conviction) vacate the seat. But the vacation of the seat is, Mr Sales submits, merely machinery, a consequence of the incapacity to sit, which is itself a consequence of the conviction. If the conviction is overturned capacity to sit is restored and the seat, if not already filled, ceases to be vacant.

It is noteworthy that whereas the adverse report of an election court will, in many if not in all cases, render an election void (see section 159(1)), a conviction does not have that effect. That is probably because section 120(1) of the 1983 Act makes is clear that "no Parliamentary election and no return to Parliament shall be questioned except by a petition...." But in any event the result is that, even after the defendant in these proceedings was convicted on 19 March 1999, her election on 1 May 1997 remained a valid election. If the defendant had been the subject of a report from an election court, not only would the election have been rendered void, but it would also have been incumbent upon the House of Commons to issue a writ for a new election (see section 144(7)). That obligation does not arise where there is a conviction but, as Mr Amlot QC for the defendant pointed out, the House of Commons can, whenever a vacancy occurs from any legal cause, order the issue of a writ for a new election (see Erskine May, 22nd edition 1997 at page 31). So, on any view, in the interval between the conviction and the hearing of the appeal that decision could have been taken.

Possible Alternatives

(A) Never any vacancy?

It is possible to contend that where section 173(a) refers to the incapacities imposed by section 160(4), it refers only to the incapacities listed at (a), (b) and (c), and to assert that the words "and if already elected to the House of Commons or holding such office shall from that date vacate the seat or office" are not invoked. Initially it was our understanding that Mr Amlot was inviting us to adopt that approach, but in the end his position seemed to be very similar to, if not identical with, the position adopted by Mr Sales. In any event there are, as Mr Sales has pointed out, at least three good reasons for not adopting the approach to which we have just referred. In the first place the words in section 160(4), which this approach would omit, begin with the word "and", suggesting that what follows is part and parcel of the incapacities which have been identified. Secondly, if this approach be right, a convicted candidate could, subject to any decision of the House of Commons, simply refrain from sitting in the House of Commons for the rest of a Parliament, thereby disenfranchising his or her electors. Thirdly, this approach would in effect leave it to Parliament to decide what to do next. It is true that the passage in Erskine May to which we have already referred does suggest that the establishment of any legal disqualification for sitting does create a vacancy but, as Mr Sales points out, as long ago as 1883 Parliament made it clear in section 6(4) of the Corrupt and Illegal Practices Prevention Act that:

"Any person so convicted of a corrupt practice in reference to an election shall also be incapable of being elected to and of sitting in the House of Commons during the seven years next after the date of his conviction, and if at that date he has been elected to the House of Commons his election shall be vacated from the time of such conviction."

The 1883 Act was consolidated in the Representation of the People Act 1949, which contained in sections 140 and 151 the words now to be found in sections 160 and 173 of the 1983 Act, but there is no indication in either of the two later statutes of any intention to change the approach adopted in 1883.

(B) Any Vacancy is Permanent

The other possible approach to the wording of section 160(4) is that once a seat is vacated it requires an election to fill it. There are other sections in the 1983 Act where the words used are similar, but the context is such as to suggest that the vacation of the seat will persist (see section 139(3), section 153(1)(b), and perhaps also section 159(3)). However, in our judgment the context is critical and we derive no real assistance as to the true meaning of section 160(4) from the use of similar words in those other sections to which we have just referred.

Of somewhat greater significance in our judgment is the wording of the 1883 Act which provides that "his election shall be vacated". Mr Sales in his guise as amicus curiae points out that if the effect of a conviction under the 1883 statute was to render the election null and void, and if all that happened thereafter was consolidation, then it would seem to follow that the effect is the same under the present legislation. On the other hand, as he points out, when the 1883 Act was passed there was no court of criminal appeal. An attempt could be made to set aside a criminal conviction by a writ of error or a case might be stated for the opinion of the Court of Crown Cases Reserved, but the chances of a decision being reversed on appeal were slender, so the statutory wording had little reason to take account of that possibility. Furthermore, the wording of the 1883 Act is not the same as, for example, section 159(1) of the 1983 Act, and the difference may be significant. In others words, it seems to us that in reality section 6(4) of the 1883 Act simply anticipates section 160(4) of the 1983 Act and does not necessarily render an election irrevocably void. It simply vacates the election of the candidate, something which may or may not be affected by later events.

Mr Sales also drew our attention to other statutes dealing with disqualification. For example, the House of Commons Disqualification Act 1975 disqualifies certain office holders from being members of the House of Commons, and section 6(1) provides that:

"(a) if any person disqualified .... is elected .... his election shall be void, and

(b) if any person being a member of that House becomes disqualified .... his seat shall be vacated."

That does not seem to us to advance the argument very much, which may be the reason why Mr Sales did not dwell on the 1975 Act when he was making his oral submissions. In reality it simply reproduces the problem we have to face.

The Representation of the People Act 1981 prevents those serving substantial sentences of imprisonment from being elected or continuing to serve as members of the House of Commons. Section 2 is in the same form as section 6(1) of the 1975 Act. It adds nothing to the argument. There was, it seems, some rather inconclusive debate in Parliament as to what would happen under the 1981 Act in the event of a successful appeal, but the exchanges are of no assistance to us. The next statute which we were invited to consider was the Bankruptcy Act 1883. The material sections in that statute so far as relevant read as follows:

"32. (1) Where a debtor is adjudged bankrupt he shall .... be disqualified for --

(b) Being elected to, or sitting or voting in, the House of Commons ....

....

33. (1) If a member of the House of Commons is adjudged bankrupt, and the disqualifications arising therefrom under this Act are not removed within six months .... the court shall .... certify the same to the Speaker .... and thereupon the seat of the member shall be vacant."

Mr Sales submits that section 33 creates an irreversible vacancy. In our judgment that is not necessarily the case. The wording of the statute simply replicates the issue we have to decide.

Finally we were asked to consider section 141 of the Mental Health Act 1983, which deals with the situation that arises when a Member of Parliament suffers from mental illness. Certain reports have to be obtained over a prescribed period. The Speaker then lays the reports before the House "and thereupon the seat of the member shall become vacant" (see section 141(6)). Here again Mr Sales submits that it is contemplated that such vacation is once and for all. No doubt that will be so in most cases, but what happens if the member suddenly recovers before a writ is issued? Maybe the vacancy continues because, unlike the situation which arises when there has been a successful appeal, those factors which caused the vacancy (ie the pre-existing illness and the steps taken to verify it) remain, but in any event we cannot regard the provisions of section 141 as being of any real value to us in this case.

Conclusion

In our judgment there are a number of powerful reasons for preferring what Mr Sales describes as his preferred solution. The first reason is that justice requires that when a conviction is set aside on appeal, all penalties imposed at the time of conviction should also, so far as possible, be set aside. It would require very clear statutory language to suggest otherwise and that is not to be found in section 160(4) or elsewhere in the 1983 Act. Where there is a conviction of the type with which we are concerned in this case, there is not only a need to do justice to the individual, but also to the electors she represents, and a need if possible to avoid the trauma and expense of a fresh election if there is no justification for that course.

Secondly, the wording of section 160(4) lends itself to the solution Mr Sales prefers. The use of the word "and" helps to demonstrate that the final part of the subsection simply sets out a consequence of the incapacity to sit which falls with the incapacity if it is set aside.

Thirdly, the existence of section 159(1), which renders the candidate's election void and triggers section 144(7), is significant because it applies only when there is a decision of an election court. Fourthly, the preferred solution gives rise to no difficulty, even if a writ is issued before an appeal is heard. If there has been no return to the election writ, the successful appellant can simply resume his or her seat and a warrant of supersedeas can be issued to withdraw the writ. If there has been a return to the writ, then when the appeal succeeds there will be no vacant seat for the appellant to occupy, the appellant's former seat having been properly filled by someone else. In the course of his helpful submissions Mr Sales took us through the situation which might arise if a member were convicted of corruption in relation to a seat other than his own. That exercise did not in our judgment cast any doubt upon the approach which we consider to be the correct one.

Accordingly we answered the question posed in the way indicated at the start of this judgment and we made the declaration sought. We were advised that no issue arises in relation to costs as they will be borne by the House.