DIRECTOR OF PUBLIC PROSECUTIONS (APPELLANT)
v.
LUFT AND ANOTHER (RESPONDENTS)
(on Appeal from a Divisional Court of the Queen’s Bench Division)
DIRECTOR OF PUBLIC PROSECUTIONS (APPELLANT)
v.
DUFFIELD (RESPONDENT)
(on Appeal from a Divisional Court of the Queen’s Bench Division)
[Consolidated Appeals]
Lord Diplock
MY LORDS,
At the Parliamentary General Election held in October 1974, candidates
representing a political party known as The National Front stood for election
in three Lancashire constituencies, Blackley, Bolton East, and Bolton West.
In all three constituencies candidates representing the Labour, Conservative
and Liberal Parties were also standing for election, and in the Bolton West
constituency there was a fifth canditdate who described himself as a ” More
Prosperous Britain ” candidate.
The respondents, Luft and Atkinson, were members of an association
calling itself ” The Greater Manchester Anti-Fascist Committee”. The
respondent, Duffield, was a member of the ” Bolton Anti-Fascist Commit-
tee “. All three respondents were strongly opposed to the policies advocated
by the National Front. In the course of the election campaign, Luft and
Atkinson distributed in the Blackley constituency and Duffield distributed
in the Bolton East and Bolton West constituencies pamphlets urging voters
” Don’t Vote National Front” and accusing members of that political party
of being liars and fascists.
Each of the respondents was charged with offences under section 63 of the
Representation of the People Act 1949 of incurring, without authorisation
in writing of an election agent, the expense of issuing publications with a
view to promoting or procuring the election of a candidate at the parlia-
mentary election in the constituency in which that respondent had distributed
pamphlets ; and also with offences under section 95 of that Act of causing
to be distributed for the like purpose a printed document which did not bear
upon its face the name and address of the printer and publisher.
The charges against Luft and Atkinson were heard in the Manchester City
Magistrates Court by the stipendary magistrate. He dismissed them on the
ground that to constitute an offence under either section, it was necessary to
prove an intention on the part of the accused to promote or procure the
election of one particular candidate only ; an intention to prevent the return
of one out of three or more candidates did not suffice.
The charges against Duffield were heard by the justices at the Bolton
Magistrates Court. They took a different view of the law from the stipendary
magistrate. The respondent. Duffield, was convicted and fined £10 for each
offence.
Appeals were brought by way of case stated against both decisions. They
were heard together by the Divisional Court. The appeal against the
acquittal of Luft and Atkinson was dismissed; that of Duffield against his
2
conviction was allowed. The Divisional Court certified that a point of
general public importance was involved in their decisions, namely: —
” Whether on a prosecution under section 63 of the Representation of
” the People Act 1949 it is necessary to prove that expense was in-
” curred with a view to promoting or procuring the election of a particu-
” lar candidate and insufficient to establish that the view or motive of
” the person incurring the expense was to prevent the election of a
” particular candidate.”
Leave to appeal, which had been refused by the Divisional Court, was
granted by their Lordships’ House in both cases and the appeals were heard
as consolidated appeals.
•
Section 63(1) of the Representation of the People Act 1949 is one of a
number of sections designed to limit the amount of money which a candi-
date and his supporters may spend on soliciting the votes of the electors in
the constituency in which he is standing for election. It reads as follows: —
(1) No expenses shall, with a view to promoting or procuring the
” election of a candidate at an election, be incurred by any person other
” than the candidate, his election agent and persons authorised in writing
” by the election agent on account—
” (a) of holding public meetings or organising any public display ;
or
” (b) of issuing advertisements, circulars or publications ; or
” (c) of otherwise presenting to the electors the candidate or his
” views or the extent or nature of his backing or disparaging
” another candidate:
” Provided that paragraph (c) of this subsection shall not—
” (i) restrict the publication of any matter relating to the election
” in a newspaper or other periodical; or
” (ii) . . ‘
Expenditure under this subsection which has been authorised by the
election agent of a candidate is treated as part of the election expenses of
the candidate and counts against the maximum amount which may be spent
on his behalf.
By subsection (5) a person who incurs any expenses in contravention of
this section is guilty of a corrupt practice.
Section 95(1) reads as follows: —
” (1) A person shall not—
” (a) print or publish, or cause to be printed or published, any bill,
” placard or poster having reference to an election or any printed
” document distributed for the purpose of promoting or pro-
” curing the election of a candidate, or
” (b) post or cause to be posted any such bill, placard or poster as
” aforesaid, or
” (c) distribute or cause to be distributed any printed document
” for the said purpose,
” unless the bill, placard, poster or document bears upon the face
” thereof the name and address of the printer and publisher.”
By subsection (3) a contravention of this section is made an illegal practice.
Before 1948 the predecessor of section 63(1) had been section 34(1) of the
Representation of the People Act 1918. This was in the following terms: —
” (1) A person other than the election agent of a candidate shall not
” incur any expenses on account of holding public meetings or issuing
” advertisements, circulars or publications for the purpose of promoting
” or procuring the election of any candidate at a parliamentary election,
” unless he is authorised in writing to do so by such election agent.”
D.P.P. v Luft
3
Its application to facts very similar to those in the instant appeals had been
considered by the Court of Criminal Appeal in R. v. Hailwood [1928] 2 K.B.
277. In that case, during a parliamentary by-election in which there were
three candidates, Conservative, Liberal and Labour, the accused had in-
curred expenses on account of issuing publications which were antagonistic
to the Conservative candidate and advised the constituents not to vote for
him, but did not in express terms advise them to vote for either of the other
candidates. It was held by the court that this constituted an offence under
section 34(1). In delivering the judgment of the court, Avory J. said: —
” It is now suggested that, in a case like the present, where there are
” three candidates representing three different political parties, Con-
” servative, Liberal and Labour, if a person who is not authorised by
” the election agent of a candidate incurs expenses of the kind in
” question he cannot be convicted under the section, which prohibits
” the incurring of the expenses for the purpose of promoting or pro-
” curing the election of ‘ any candidate ‘, unless it be shown definitely
” that he had the intention of promoting or procuring the election of
” one of these three candidates in particular. The answer to that sug-
” gestion is that the expression ‘ any candidate’ in the section is not
” limited to one candidate only, since it is provided by the Interpreta-
” tion Act. 1889 (52 & 53 Vict. c. 63), section 1 subsection (1)(b), that
” words in the singular shall include the plural. It is further said that the
” appellant is not liable, inasmuch as while he endeavoured to prevent
” the election of one of the candidates, he did not directly promote
” or procure the election of any of them. If, however, a person has done
” what is forbidden by the section for a purpose which must have the
” effect of promoting or procuring the election of a candidate or candi-
” dates then there can be no question that he has committed an offence
” under the section.”
In the view of the Divisional Court in the instant case, the difference in
language between section 34(1) of the 1918 Act and section 63(1) of the 1949
Act and, in particular, the substitution of the words ” with a view to promo-
” ting or procuring the election of a candidate ” for the corresponding words
” for the purpose of promoting or procuring, the election of any candidate”
gave to the new section a meaning which had the effect of overruling the
decision in R. v. Hailwood.
In their Lordships’ view, so far as the meaning of the subsection is con-
cerned no significance can be attached to these substitutions (which I have
italicised). The substantive alteration to section 34(1) of the 1918 Act which
was affected by section 63(1) of the 1949 Act was to add to the matters upon
which expenses could not be incurred without the written authority of an
election agent. In order to make this addition the draftsman found it
necessary to re-arrange the order of words which his predecessor had adopted
in section 34(1). In this re-arrangement the retention of the phrase ” for the
” purpose of ” would have been inelegant as a matter of draftsmanship as
compared with the use of the equivalent phrase ” with a view to ” to convey
the same meaning. Similarly the substitution of ” a ” for ” any ” was called
for as a matter of draftsmanship by the subsequent references to ” the can-
” didate ” and ” another candidate “. In my view these substitutions are
stylistic only. The substituted words mean the same as those which fell to
be construed in R. v. Hailwood.
The construction placed by the Court of Criminal Appeal on section 34(1)
of the Act of 1918 had stood unchallenged for twenty years by the time
what is now section 63(1) of the 1949 Act was first enacted by section 42(1)
of the Representation of the People Act 1948. Had Parliament intended to
overrule it, it would have done so explicitly and not inferentially by the sub-
stitution of one phrase for another which is apparently synonymous. R.
v. Hailwood remains strong persuasive authority ; but it is still for your
Lordships to decide for yourselves whether it is right and governs the instant
appeals.
4
In the argument before this House, counsel for the respondents did not
seek to rely upon any difference in meaning between ” with a view to ” and
“for the purpose of”. Both phrases, he said, referred to the dominant
intention of the accused in doing the act complained of. The expression
dominant intention is borrowed from cases which turned on the meaning of
the words ” with a view of giving such creditor a preference over the other
“creditors” in section 48(1) of the Bankruptcy Act 1883. The law as to
fraudulent preference in bankruptcy had been the subject of judicial con-
sideration long before the passing of the Bankruptcy Act 1883 and, as
appears from the speeches in Sharp v. Jackson [1889] A.C. 419, the courts,
including this House, were much influenced by the previous law as to
fraudulent preference in the construction they gave to the section. For that
reason I do not regard these cases as a reliable guide to the construction of
section 63(1) of the Representation of the People Act 1949. To speak of a
dominant intention suggests that a desire to achieve one particular purpose
can alone be causative of human actions; whereas so many human actions
are prompted by a desire to kill two birds with one stone. For my part I
prefer to omit the adjective ” dominant”. In my view the offence under
section 63(1) to (5) is committed by the accused if his desire to promote or
procure the election of a candidate was one of the reasons which played a
part in inducing him to incur the expense.
It was next argued for the respondents that the rule of construction in
section 2(1)(b) of the Interpretation Act 1889, that ” words in the singular
” shall include the plural ” has no application to the words ” a candidate ”
in the context of promoting or procuring his election since a contrary
intention does appear from that context. When the Act was passed and at
all times thereafter all parliamentary constituencies have been single-member
constituencies, though at the passing of the Act this was not the case with
all local government elections, to which section 63 also applies. So the
context required the plural in the case of local government elections. As
respects parliamentary elections, while it is true to say that it is not possible
to ” procure the election ” in any constituency of ” candidates ” in the plural,
the subsection deals with promoting the election of a candidate as well as
procuring his election, and it does so disjunctively. In my view promoting
as distinct from procuring the election of a candidate means improving his
chances of being elected ; and in a parliamentary constituency for which there
are more than two candidates this can be accomplished for ” candidates ”
(in the plural) by persuading electors in the constituency not to vote for one
of their rivals.
My Lords, where there are more than two candidates for a constituency, to
persuade electors not to vole for one of those candidates in order to prevent
his being elected must have the effect of improving the collective prospect
of success of the other candidates though it may be uncertain which one of
them will benefit most. So in anyone sophisticated enough politically to
want to intermeddle in a parliamentary election at all, an intention to prevent
the election of one candidate will involve also an intention to improve the
chances of success of the remaining candidate if there is only one, or of one
or other of the remaining candidates if there are more than one, although
the person so intending may be indifferent as to which of them will be
successful.
So I would answer the certified question: —
” On a prosecution under section 63 of the Representation of the
” People Act 1949 it is not necessary to prove that the expense was
” incurred with the intention of promoting or procuring the election of
” one particular candidate but it is sufficient to establish an intention
” on the part of the person incurring the expense to prevent the election
” of a particular candidate or particular candidates.”
In the instant case it was found as a fact by the Bolton justices that the
pamphlets were distributed by the respondent Duffield for the purpose of
5
procuring or promoting the election of a candidate other than the National
Front candidate even though those documents did not support a particular
candidate. The respondents Luft and Atkinson did not go into the witness
box to give direct evidence of their intentions but left these to be inferred
from the prosecution’s evidence as to what they had done. Although the
stipendary magistrate has not been so explicit as the justices, a similar
finding of fact as to the intentions of Luft and Atkinson is in my view
implicit in the way in which the case has been stated by him; and counsel
for the respondents has not sought to distinguish their cases from that of
Duffield.
For the reasons I have given these findings as to the intentions of the
respondents are sufficient in my opinion to support their convictions for
offences under section 63 and section 95 of the Act. For the sake of
completeness, however, it is necessary to deal briefly with an alternative
contention for the respondents under section 63 that was raised for the first
time in your Lordships’ House and does not figure in the judgment of the
Divisional Court.
This contention is that since the pamphlets do not positively recommend
support for any of the candidates representing political parties other than
the National Front, the only way in which they can be brought within the
ambit of section 63 is as publications ” disparaging another candidate”.
The argument proceeds that in the immediately preceding phrase, ” present-
” ing to the electors the candidate or his views or the extent or nature of his
” backing ” a distinction is drawn between the candidate on the one hand
and his views or backing on the other ; that a similar distinction was intended
to be drawn when the word ” candidate ” alone was used in reference to
disparagement; and that criticism of the personal character or conduct of
the candidate divorced from any criticism of the political views that he held
was all that was covered by the paragraph. ” Disparaging” is not the
antonym of ” presenting “. In my view it is to be understood in its ordinary
and natural meaning. A person may be disparaged by attacks upon the
political views he holds as well as by attacks upon his personal conduct. The
pamphlets in the instant case are obvious specimens of disparagement.
Before leaving the matter it is desirable to refer to two cases relied upon
by the Court of Appeal in support of their view that in section 63 the words
” a candidate ” in the context of promoting or procuring his election meant
only one particular candidate and that consequently the certified question
ought to be answered ” Yes “. These were R. v. Tronoh Mines Ltd. [1952] 1
AU E.R. 697 and Grieve v. Douglas-Home 1965 SLT 186. In the former case
the defendant, while a general election was pending, published in a national
newspaper an advertisement attacking the financial policy of the outgoing
Labour government. McNair J. held that section 63 was not intended to
prohibit expenditure incurred on advertisements designed to support the
interest of a particular party generally in all constituencies, at any rate at the
time of a general election and not supporting a particular candidate in a
particular constituency. He founded his judgment exclusively on the word-
ing of paragraphs (a), (b) and (c) of section 63(1). R. v. Hailwood was not
referred to in the judgment or the argument and the Court of Appeal in the
instant case are mistaken in supposing that McNair J. made any reference to
the change from ” any candidate ” in the 1918 Act to ” a candidate ” in the
1949 Act. He did however accept as a reasonable and possible construction
of section 63 that candidate was intended to mean one candidate only. In
this, for the reasons that I have given, I think that he was wrong, although
I cast no doubt upon the correctness of the actual decision in the case.
Grieve v. Douglas-Home was a case in which the complaint against the
defendant was of a wholly different character and is not, in my view, of any
assistance. It was relied upon by the Court of Appeal for the statement by
Lord Migdale that the test of intention is subjective and that what has to be
6
considered is the intention or motive in the mind of the person ” who in-
curred the expense “. But this has never been disputed by the Crown in the
instant case.
I would therefore allow both of the appeals from the orders of the Divisional Court so far as those orders dealt with charges under section 63 or section
95(l)(c).
The order made in the appeal by the respondent Duffield included also the
quashing of his conviction upon a charge under section 95(1)(b) causing to be
posted a poster having reference to the election, not bearing on its face the
name and address of the printer. No argument had been addressed to the
Divisional Court directed to this charge, the legal characteristics of which
are different from those of the other charges. There is no reference to it in
their reasons for judgment. In these circumstances counsel for the appellant
is content not to invite this House to restore the conviction on this charge,
but without conceding that it could not have been sustained if argument had
been heard on it.
Lord Salmon
MY LORDS,
I have had the advantage of reading in draft the speech prepared by my
noble and learned friend, Lord Diplock. and for the reasons given by him
I would allow these appeals.
Lord Edmund-Davies
MY LORDS,
I am in respectful and unqualified agreement with the reasons developed
in the speech of my noble and learned friend Lord Diplock for holding that
these consolidated appeals should be allowed.
Lord Fraser of Tullybelton
MY LORDS,
I have had the advantage of reading in print the speech of my noble and
learned friend, Lord Diplock, and I agree with it.
I should add that I do not exclude the possibility that there may be
circumstances in which an intention to prevent the election of a particular
candidate might form but an insignificant part of a person’s motives in
persuading electors not to vote for that candidate. If a person believes that,
even in the absence of any persuasion of electors by him, the number of
votes cast in the election for that candidate would be so small as to give
him no chance at all of being elected, the attempt to persuade electors not
to vote for that candidate may be undertaken for some other purpose such as
personal dislike or a desire to demonstrate a paucity of popular support for
the policies of the candidate but without any intention to promote the election
of the other candidates or any of them. The possibility than anyone would
incur expense for so limited a purpose is probably remote, but in a case
where the court was left with a reasonable doubt whether that was the
accused’s purpose, it would in my opinion be bound to find him not guilty
of an offence under section 63(1) or section 95(1) of the Act.
I would allow both the appeals so far as they relate to charges under section
63 and section 95(l)(c).
7
Lord Russell of Killowen
MY LORDS,
I too have had the advantage of reading in draft the speech to be delivered
by my noble and learned friend, Lord Diplock. I agree with it, and I would
therefore allow these appeals.
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