BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
Jersey Unreported Judgments |
||
|
You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Representation of Darius Pearce [2011] JRC 180A (20 September 2011) URL: http://www.bailii.org/je/cases/UR/2011/2011_180A.html Cite as: [2011] JRC 180A |
||
[New search] [Help]
[2011]JRC180A
|
Before : |
W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Morgan and Kerley |
IN THE MATTER OF THE REPRESENTATION OF DARIUS JAMES PEARCE
Mr Pearce appeared as the Representor.
Mr Geoffrey Peter Southern appeared in person as the Respondent.
Advocate D. J. Hopwood on behalf of the Attorney General.
judgment
the deputy bailiff:
1. Public elections for membership of the States of Jersey are to be held on 19th October, 2011. These naturally include elections for the position of deputy in the Number 2 District of St Helier. On 7th September, 2011, a nomination meeting for this purpose was held in the assembly room at the Parish Hall of St Helier. Among other nominations, a nomination was made in respect of the candidacy of Geoffrey Peter Southern, the respondent. The Respondent was duly proposed and seconded. The nomination speech was made by Miss Joanne Thierry Machon. The evidence is conflicting as to whether the specific declaration was made as required by Article 9 of the States of Jersey Law 2005,("the States of Jersey Law") which the declaration being in this form:-
"I the undersigned G. P. Southern hereby declare that I have read and understood the provisions of Article 9 of the States of Jersey Law 2005 and that the convictions I must declare for the purposes of Article 9 (1)(b) and (c) are as follows:- infraction of Article 39(a) of Public Elections (Jersey) Law 2005."
This declaration was signed by the Respondent and dated 6th September, 2011.
2. The Representor, who is a rate payer in the Number 2 district of St Helier, claims that the declaration did not meet the requirements of Article 9(2) of the States of Jersey Law because it was a declaration that there was only one conviction to declare. One issue is whether this made the nomination invalid and the Representor claims relief that the Respondent be removed from the list of duly proposed candidates.
3. The representation was presented to the Royal Court on Friday 16th September. At that time the Court convened the respondent and the Attorney General to the representation and directed that it be heard at 9am today. In addition the Court directed that any pre-poll voting made until it resolved the representation be isolated. Because this application concerns an important public election which is to be held in October, the Court treats the application as a cause de brièvetè and therefore the procedural rules which normally would apply to civil proceedings, have been dispensed with. The Court also ordered that copies of media recordings made at the nomination meeting, if any, be made available to the Court for the hearing of this representation. We are grateful to the media for their assistance in this respect but the recordings were not made for the purpose of a hearing of this kind and were too incomplete and indistinct to be helpful.
4. The Court has received evidence from the Connétable of St Helier, the Human Resources director and the electoral officer for the parish, from Mr O'Toole and from Mr Southern, the Respondent himself, as to what was said in this connection at the nomination meeting. Some of the evidence suggests that Mr Southern's proposer concluded "He has declared a conviction under Article 39(A) for the purposes of Article 9(1)(b) and (c) of the Public Elections (Jersey) Law 2005". As indicated earlier the remaining evidence is that this was not said. For the purposes of this decision, we do not need to resolve this conflict but the existence of the conflict demonstrates why it is important that Article 9(2) of the States of Jersey Law is complied with. This requires that the declaration which is made by candidates under paragraph 1 should be read out to the nomination meeting by the presiding officer. We are told the practice across the parishes has been to permit the proposer to read the declaration. That is a practice which is not in accordance with the legislation and we make these comments in order that the Comité des Connétables and others are aware of the changes which need to be introduced at future nomination meetings.
5. It is a matter of public record that on 20th May, 2009, the Respondent was sentenced by the Inferior Number of the Royal Court following guilty pleas to an Indictment containing nineteen counts of interfering with applications for registration of postal and pre=poll voters contrary to Article 39A(1)(a) of the Public Elections (Jersey) Law 2002 ("the Public Elections Law") and one count of interfering with an application for registration of postal and pre-poll voters, contrary to Article 39A(1)(b) of the same legislation. The details of the offences were that between 31st October and 18th November, 2008, the Respondent attended the homes of at least twenty electors in the St Helier No 2 District and assisted them to complete and also submit application forms for the registration of postal and pre-poll voting, thereby breaching those paragraphs of Article 39A. He was fined £500 on each count, making a total of £10,000.
6. The law governing the election of deputies to the States of Jersey is to be found in the States of Jersey Law and in the Public Elections Law. Article 7 and 8 of the States of Jersey Law set out the qualification and disqualification provisions for standing for office. There is nothing in these two Articles which concerns the accuracy or inaccuracy of any declaration which has been made by a candidate pursuant to Article 9 to which we now turn. Article 9(1) provides in so far as is material for these purposes:-
And there is set out a category of offending, none of which applies in this case.
7. The declaration which the Respondent made generally followed the form which is prescribed in Schedule 4 of the Standing Orders of the States of Jersey. The issue for the Court is whether the disclosure which was made which seems to refer to one infraction of Article 39A of the Public Elections Law is adequate compliance with Article 9 of the States of Jersey Law, given that the Respondent was convicted on an indictment containing 20 counts. For the Attorney General, Crown Advocate Hopwood points out that the form of declaration will usually be drafted by laymen and not a lawyer; on balance he submitted that Mr Southern had done enough. In order to resolve this issue it appears to us that there are in fact two questions to be asked; the first of them is what does Article 9 of the States of Jersey Law require and the second is, if the declaration which is made is not in accordance with what is required under Article 9, is the nomination valid?
8. So dealing first with what is required.
9. Schedule 4 of Standing Orders of States of Jersey prescribes a form which requires a candidate to state that he or she is not disqualified for election and that he or she has no relevant convictions for the purposes of Article 9 of the States of Jersey Law. The form contains an alternative namely that the candidate declares convictions which he must declare. It is noteworthy that the word "convictions" appears in the plural. It seems to us that it is quite clear that what is required is that the candidate must either declare that he has no relevant convictions or he must declare the relevant convictions which he does have and set them out with sufficient particularity. The purpose of the declaration is to ensure that the electorate know the character of the candidate; there is clearly a difference between having one conviction and having ten convictions. In this case the Respondent was convicted on a single Indictment which nonetheless contained twenty counts. The offences were charged separately to reflect separate offending and indeed the Court imposed a fine on each count separately. Each count amounted to a single conviction but it is true that all twenty were put in one Indictment at the same time.
10. In our judgment there is no doubt the Respondent was obliged to declare that he had convictions for breach of Article 39A of the Public Elections Law and that notwithstanding the submissions of Crown Advocate Hopwood, the declaration which he did make did not adequately meet the obligations imposed on him by Article 9 of the States of Jersey Law simply because it was in the singular rather than in the plural.
11. For the avoidance of doubt we have not had regard to what the Respondent intended in relation to the declaration which he made. Article 9(3) of the States of Jersey Law provides a criminal offence for a person who knowingly makes a false declaration. We have not sought any evidence as to the state of mind of the Respondent when he made the declaration he did and for the purposes of the present argument, we have assumed without deciding it, that he made a genuine mistake, and I emphasise that there is absolutely nothing before us to suggest that Mr Southern did not act in good faith.
12. I turn next to the question if the declaration is not in accordance with what is required, is the form valid or is the nomination not made sufficiently?
13. Part 10 of the Public Elections Law makes provision for the disputing a public election. It appears to be based upon the underlying assumption that any disputed election will take place after the election has been conducted. It is to be noted from Article 61(2) that the Court is to declare a casual vacancy in a constituency if the candidate who has obtained the majority of votes in that constituency has inter alia committed an offence under Article 62 or 64 at the election or is declared ineligible. Article 62 deals with inducements and threats; Article 64 deals with interference with the poll. The offence which gave rise to the convictions of the Respondent was conduct and breach of Article 39A made a criminal offence by Article 62A. Accordingly it is clear that this conduct does not involve any possibility of the Court declaring a casual vacancy if a person who has been elected as a deputy has committed an offence of this kind. We note that in passing, because although the election has not taken place yet, it would be strange if a person who had been elected having committed breaches of Article 39A during that very election, was not disqualified but would be prevented from standing for failing to disclose convictions under the same Article in relation to a previous election.
14. The procedure for nominations is set out in part 5 of a Public Elections Law. Article 20 sets out that the nomination of a candidate for a public election is to be made by production to a nomination meeting of a document in the prescribed form which has been subscribed by a proposer and nine seconders, all of whom must be entitled to vote for that candidate in any poll held for the election. It seems to us that because the legislature has prescribed that process for the nomination of candidates for public elections, it is possible to challenge a nomination upon the basis that the form which has been used was either not the prescribed form or could not be treated as being a genuine form, having regard to whatever facts might be asserted to support that conclusion. Indeed this is what happened in 2007 in the Representation of the Attorney General where the present Representor was the respondent and wished to stand for election to the office of Connétable. For reasons which it is unnecessary to review, the Court was satisfied on that occasion that the nomination form did not accurately contain the prescribed information in the sense that some of those who has signed the form, did not intend to second the nomination of the Representor. As the Court then concluded that the Representor had not been duly proposed and seconded, it struck down his nomination notwithstanding that the elections had not taken place and the Court declared he was not a candidate in the election. That conclusion followed from the requirements of the Public Elections Law that there had to be a valid nomination form and the conclusion of the Court on the facts that there was not, in that instance, a valid nomination form.
15. By contrast here, no-one is asserting that the nomination form is invalid. No-one is asserting that Mr Southern is not qualified to be elected for the purposes of Article 7 nor is it being asserted that he is disqualified from being elected by virtue of Article 8. The assertion is that his nomination is to be set aside for a wrongful failure to make a declaration under Article 9 which is consistent with his obligations.
16. We start with the proposition that whether the declaration which is made is accurate or false the provisions of Articles 7 and 8 stand. Article 9 does not say that the reason for being qualified or disqualified lies in the candidate's declaration under Article 9 being correct or incorrect. In order to resolve the question of disqualification it seems to us that evidence as to what the candidate declared for the purposes of Article 9 is irrelevant. If the candidate declares that he is not a member of the States of Jersey Police, whereas in fact he is, then Article 8 disqualifies him from election. The disqualification arises because of that Article and not because of the declaration. Lest it be thought that there is no purpose in having requirements for a declaration to be made, we add this. The legislature clearly intended that the candidate should make such a declaration because that is the provision in Article 9. The candidate ought to know whether he or she is qualified or disqualified from standing for election and it is administratively convenient therefore that the candidate should focus on those issues before putting his or her name forward.
17. In relation to the question of convictions, it appears to us that we can take judicial notice of the fact that the Island does not operate on a party political system. Although there are undoubtedly common allegiances within the States of Jersey, the overwhelming majority of members in the past years have not in fact been affiliated to any particular party. It follows that there has been no mechanism for selecting candidates for office for the most part in the past. The candidate standing as an independent, effectively selects himself or herself subject to finding a proposer and the requisite number of seconders. So the provisions requiring declaration of convictions are in effect a mechanism for ensuring the public is made aware of matters which a party would undoubtedly wish to take into account when selecting candidates and the public is then in a position to indicate its approval or disapproval of such candidate when it come to voting in the elections themselves. Clearly a provision of this kind, if it is to be effective, must be capable of being supported by a sanction. The States have so far resolved that the sanction lies in paragraph 3 of Article 9 which creates the criminal offence. We have noted that provision for the purposes of this case but we feel obliged to say that in our judgment it is inadequate. The States have resolved that the public ought to know of a candidate's previous convictions. Assuming that is right, the important sanction if a person fails to make that disclosure, ought to rest in that person being disqualified whether before or after the election. In our view Article 61 of the Public Elections Law and indeed the States of Jersey Law should make it plain that the court should declare a casual vacancy if a candidate has committed an offence under Article 62, 64 or 62A of that Law, and we trust that the Privileges and Procedures Committee will at least give consideration to bringing forward such a legislative amendment in the new assembly.
18. For all these reasons we consider the Court does not have the power to remove the name of the Respondent from the list of duly proposed candidates. However, we wish to add this; if we had resolved the law to be other than it is, such that we had a discretion to remove his name from the list, we would have exercised that discretion in his favour and against doing so. The reason for this is that despite the fact that we consider the declaration which he made without making any findings as to his intentions was not adequate, the fact of the present proceedings would ensure as indeed it has in this case, that the electorate were properly informed of the convictions in accordance with what is intended by the legislation and its entirely a matter for the electorate to determine what significance, if any, that has.
19. For these reasons the Representation is refused and no further order other than lifting the interim order in respect of the pre-postal voting is to be made.
