HUMBLE PIE NOT ON THE MENU

Sometimes things just stick in your mind and won’t go away, they niggle to the point where you have to do something about them.

A good example of this relates to a comment attached to a post I wrote on 5th December 2007 (http://thenorthernherald.blogspot.com/2007/12/rotten-boroughs) by a “Neil Maxwell.” At the time I was highlighting the issue of the 18 missing ballot boxes and the appearance of the story in the Private Eye. Mr Maxwell replied as such:

“This is typical of you Peter. If it appears in print then it must be true.Just a few months ago on a different site you had a go at Cllr. Audrey Macmillan because Kahn mentioned her in his failed petition. Macmillan was absolutely in the clear yet because Kahn had named her in his petition you automatically thought the worst of her.I think if you were any sort of a decent bloke you at least eat humble pie and learn a valuable lesson. The lesson-don't always believe what you read in the papers!”

Naturally, I sought clarification. I checked my comments on other people’s sites from October onwards and found that I had made none that mentioned said Councillor by name. However, Mr Maxwell in turn provided me with a date from June 2006 (I withheld his comment till I had the time to confirm it), where, low and behold, I did post a comment on Curlys Corner Shop site relating to the initial publicity surrounding the petition submitted by Mr Kahn. My actual words were:

“Let me be the first to post on a subject that will probably draw 40+ responses (the last post on this issue peaked at 36. Well done Curly)
I have never met Robert Dix, Cllr. Iain Malcolm or Audrey MacMillan, the well-known members mentioned in your post. I have however, met Mr Khan and his cause seems just. Why make such allegations via a London High Court if you don’t have the proof? Whilst the cost may be within his wallet, the shame of being knocked back is not within his make up.
Regardless of the outcome of the High Court review, certain Councillors should be ashamed of themselves that they have been even mentioned in a petition; they should have been “squeaky” clean enough to avoid these problem areas. Clearly though, they have not.
If Ahmed’s claims are successful I will be saddened that this Borough will make national headlines, but deep down, not surprised. If he fails, my feeling is that he always thought he had a case, and that is good enough.
The postal vote affair is flawed. The items under review were not allowed to be scrutinised by those standing, yet they had been scanned by computer software, hardly a reliable electoral mechanism. Remember the NHS computer system and the doctor’s application procedure under Hewitt? Hardly proof that Labour have got things right.”

5th June 2007: http://curly15.wordpress.com/2007/06/05/election-petition/#comments

What a dilemma. Mr Maxwell, under the impression that the petition has been dismissed, demands I eat humble pie. Should I therefore take a slice or just get on with things and hope the issue never crops up again? I personally have no problem with humble pie, what ever the size of the portion. However, before I put finger to keyboard I decided to do a little bit or research and confirm the facts. Off I went to the Courts to view the documents lodged by the interested parties, and a complete review of press coverage and historical emails was instigated. I’m glad I did because I now have a very different perspective.

Mr Khan firstly went to court under the “Representation of the People Act 1993”, but due to technicalities, was forced to follow a different route by the “Representation of the Peoples Act 2006, No 3304” with specific reference to Section 53 which states:

Orders for production of documents
53.—(1) An order—
(a) for the inspection or production of any rejected ballot papers, including ballot papers
rejected in part, in the custody of the relevant registration officer; or
(b) for the opening of a sealed packet of the completed corresponding number lists or
certificates as to employment on duty on the day of the poll or for the inspection of any
counted ballot papers in his custody, may be made by a county court, if the court is satisfied by evidence on oath that the order is required for the purpose of instituting or maintaining a prosecution for an offence in relation to ballot papers, or for the purpose of an election petition.
(2) An order for the opening of a sealed packet of the completed corresponding number lists or of certificates as to employment on duty on the day of the poll or for the inspection of any counted ballot papers in the custody of the relevant registration officer may be made by an election court.
(3) An order under this rule may be made subject to such conditions as to—
(a) persons,
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(b) time,
(c) place and mode of inspection,
(d) production or opening, as the court making the order may think expedient; but in making and carrying into effect an order for the opening of a packet of the completed corresponding number lists or of certificates as to employment on duty on the day of the poll or for the inspection of counted ballot papers, care must be taken that the way in which the vote of any particular elector has been given shall not be disclosed until it has been proved—
(i) that his vote was given; and
(ii) that the vote has been declared by a competent court to be invalid.
(4) An appeal lies to the High Court from any order of a county court under this rule.
(5) Any power given under this rule to a county court may be exercised by any judge of the
court otherwise than in open court.
(6) Where an order is made for the production by the relevant registration officer of any
document in his possession relating to any specified election—
(a) the production by him or his agent of the document ordered in such manner as may be
directed by that order shall be conclusive evidence that the document relates to the
specified election; and
(b) any endorsement on any packet of ballot papers so produced shall be prima facie
evidence that the ballot papers are what they are stated to be by the endorsement.
(7) The production from proper custody of—
(a) a ballot paper purporting to have been used at any election, and
(b) a completed corresponding number list with a number marked in writing beside the
number of the ballot paper, shall be prima facie evidence that the elector whose vote was given by that ballot paper was the person whose entry in the register of electors or on a notice issued under section 13B(3B) or (3D) of the 1983 Act at the time of the election contained the same number as the number written as
mentioned in subparagraph (b) of this paragraph.
(8) Save as by this rule provided, no person shall be allowed to inspect any rejected or counted ballot papers in the possession of the relevant registration officer or open any sealed packets of the completed corresponding number lists or of certificates as to employment on duty on the day of the poll.

In plain English, two scenarios can emerge. The petitioner goes to a Judge with a request to inspect a series of ballot papers. The relevant local authority agrees to this request, and the Judge authorises the procedure. Adversely, the local authority does not agree, so the Judge looks at the evidence and makes a decision. In this case South Tyneside objected to the ballot papers in question being re-examined, so a Judge and court appearance had to be secured. As we now know, this came to court in November 2007, and due to the fact that the Council had lost the disputed ballot papers, the Judge dismissed the case under a Section 53 request i.e. there was nothing to examine.

What he did not do however, was dismiss the original Election Petition lodged in the Supreme Court of England and Wales, Senior Masters Department, Parliamentary and Municipal Election Petitions (24th May 2007). Within that petition the following relevant grievances were aired:

(d) That on 3 May 2007, supporters of Audrey McMillan, stood outside the polling station and were, on occasions, restricting access to the building by physically positioning themselves in a manner which would have required prospective voters to have moved out of their way.
(e) That the Ocean road Community Centre was an inappropriate choice of polling station given the fact that Audrey McMillan is the chair of that Centres management Committee. No consultation was held with the electorate regarding an appropriate choice of polling station.

Audrey McMillan’s name was also mentioned at the start of the petition as she was the Councillor declared elected.

What court documents do record is the following:

“Mr Justice Fields ordered that the trial of the petition should not be fixed until the application for an inspection of votes cast in the Election had been dealt with and, if successful, an inspection of the votes carried out.”

Mr Justice Fields clearly wanted an inspection of the votes carried out before he would address the Petition.

This Queens Bench Division of the High Court Order (the 22nd June 2007 order) was passed to South Shields County Court (the Inspection Order) on 28th June 2007. It was however, opposed by the defendants (South Tyneside Council) and a date for the hearing was finally listed to take place on 12th November 2007. The rest as we say, is history.

However, this petition still stands and has not been addressed. The only matter placed before the Court was the Section 53 request. So when Mr Maxwell mentions the “failed petition” he is incorrect, and should not always believe what he reads in the papers or is told at the Saturday Club. The petition has not in fact failed; it legally cannot be addressed because of the Council’s incompetence, a body which I believe Mr Maxwell wishes to be part of after the next bout of regional elections.

Never mind Mr Maxwell, I hope you have a good time in Harton at the next local election.

But remember, keep an eye on those ballot boxes, you never know when you might have to make a Section 53 request!

FOOTNOTE

Controversy still surrounds the Councils decision not to inform Mr Khan for 5 ½ months that the ballot boxes in question had been lost. I have managed to establish a “time line” of events leading up to the November court case. Frankly, it makes pretty embarrassing reading for the Council.

3rd May 2007 – Local Elections. Ballot boxes removed from Wards to be stored at Town Hall for “safe keeping!”

8th May 2007 – Election officials at Council discover boxes containing specific rejected postal votes are missing.

14th May 2007 – Mr Ahmed khan emails Mr Brian T Scott, Returning Officer/Head of Corporate Governance, specifically to asking him to retain all ballot papers as his is legally required to do. Mr Scott replies that he is well aware of responsibilities. NO MENTION IS MADE AT THIS TIME THAT BALLOT BOXES HAVE GONE MISSING.

23RD May 2007 – 15 days after ballot papers have been reported missing, an inspection takes place to find them

24th May 2007 – Mr Khan formally lodges his election Petition under the auspices of the “Representation of The Peoples Act 1983”. The Council are aware of this due to local press coverage. NO MENTION IS MADE AT THIS TIME THAT BALLOT BOXES HAVE GONE MISSING.

22nd June 2007 – Judge orders an Inspection Application. Council are aware of this. NO MENTION IS MADE AT THIS TIME THAT BALLOT BOXES HAVE GONE MISSING.

28th June 2007 – South Shields County Court considers the application. Council objects and the matter is referred to the Crown Court. NO MENTION IS MADE AT THIS TIME THAT BALLOT BOXES HAVE GONE MISSING.

September/October 2007 – Despite reminders to Brian T Scott’s solicitors, evidence opposing the Inspection Application was not received until 22nd October 2007, when the information revealing the missing ballot boxes was revealed (3 requests were made).

Therefore on at least 6 occasions, South Tyneside Council could have acknowledged that the ballot boxes were missing. However, they did not. They are now seeking a percentage of their costs from Mr Khan. If they had been honest from the 9th May onwards, there would have been no costs re the Section 53 Application.

Ask yourself two questions.

1. In all honesty, is this British justice at its best or its worst?
2. If your were aware of this scenario, would you challenge an election result if you thought that foul play was suspected?

The answers don’t make very good reading, and you know what, South Tyneside Council are responsible!