Sinnott v Martin

• Jurisdiction: Ireland
• Court: High Court
• Judge: Justice Kelly
• Judgment Date: 31 March 2004
• Neutral Citation: [2004] IEHC 3
• Date: 31 March 2004
• Docket Number: [2003 No. 43 M.C.A.]

[2004] IEHC 3

THE HIGH COURT

[No. 43 M.C.A./2003]

SINNOTT & MENIHANE v. MARTIN

IN THE MATTER OF THE GENERAL ELECTION FOR THE 29 th DÁIL IN THE MATTER OF THE ELECTION FOR THE CONSTITUENCY OF CORK SOUTH CENTRAL HELD ON THE 17 th MAY, 2002 AND IN THE MATTER OF THE ELECTION PETITION OF

KATHRYN SINNOTT and MARK MENIHANE

Applicants

and

MICHEÁL MARTIN

Notice Party

Citations:

ELECTORAL ACT 1997 S4

ELECTORAL ACT 1992

ELECTORAL (AMDT) (NO 2) ACT 2002 PART IV

ELECTORAL (AMDT) (NO 2) ACT 2002 PART V

ELECTORAL (AMDT) (NO 2) ACT 2002 S32

ELECTORAL (AMDT) (NO 2) ACT 2002 S28(2)

ELECTORAL (AMDT) (NO 2) ACT 2002 S28(1)

ELECTORAL (AMDT) (NO 2) ACT 2002 S31(4)

ELECTORAL (AMDT) (NO 2) ACT 2002 S36

ELECTORAL (AMDT) (NO 2) ACT 2002 S31(1)(A)

ELECTORAL (AMDT) (NO 2) ACT 2002 S31(1)(B)

ELECTORAL (AMDT) (NO 2) ACT 2002 S31(3)

ELECTORAL (AMDT) (NO 2) ACT 2002 S31(4)

ELECTORAL (AMDT) (NO 2) ACT 2002 SCH S1

ELECTORAL (AMDT) (NO 2) ACT 2002 SCH S2

KELLY V MIN ENVIRONMENT 2002 4 IR 191 2002/14/3422

KELLY V MIN ENVIRONMENT 2002 4 IR 222 2003 2 ILRM 81 2002/14/3464

ELECTORAL (AMDT) (NO 2) ACT 2002 S31

ELECTORAL ACT 1997 SCH S2(A)

ELECTORAL ACT 1997 SCH S2(C)

FREEDOM OF INFORMATION ACT 1997 S2

ELECTORAL (AMDT) (NO 2) ACT 2002 S31(3)(B)

ELECTORAL (AMDT) (NO 2) ACT 2002 S31(1)(A)(I)

ELECTORAL (AMDT) (NO 2) ACT 2002 S31(1)(A)(II)

ELECTORAL (AMDT) (NO 2) ACT 2002 S31(1)(A)(III)

ELECTORAL (AMDT) (NO 2) ACT 2002 S43

MCCRORY V HENDRON 1993 NI 177

CONSTITUTION ART 28.11.2

ELECTORAL (AMDT) ACT 2001

Synopsis:

ELECTIONS AND REFERENDA

Expenses

Statutory spending limits imposed on candidates during election campaign - Whether salary of public servant reckonable as election expense if that person volunteers their services to candidate in election campaign whilst on anneal leave - Whether costs of duties carried out in notice party's constituency unit in Dublin during election campaign fall to be treated as election expenses - Whether petitioners have to demonstrate that notice party exceeded that portion of election expenses which remained after his 50% assignment in favour of party at national level regardless of amount spent by party at national level - Whether notice party exceeded statutory spending limits in conduct of election campaign - Electoral Act 1997, sections 31 and 32 - Electoral (Amendment) (No. 2) Act, 2002 (2003/43MCA - Kelly J - 30/1/2004)

In re Sinnott, Martin (notice party) - [2004] 1 IR 121

Facts: The first petitioner stood for election in the same constituency as the notice party at the 2002 general election and failed to be elected by a very narrow margin. The petitioners alleged that the notice party exceeded the expenditure limits on election campaigns prescribed for candidates by the Electoral Act 1997, as amended, in the conduct of his campaign for election as a member of the Dáil. The petitioners accepted that under the relevant legislation they had to, in order to be successful on the petition, prove not merely the overspending alleged but also that such wrongdoing was likely to have affected the result of the election. Their principal complaint was that the notice party failed to include in his return or to take account of election expenses which were met out of public funds arising from work carried out by his constituency office in Dublin which they said, had a positive impact on his election campaign. In a previous decision of the Supreme Court, paragraphs (2)(a) and (c) of the schedule to the Act of 1997 were declared to be unconstitutional. As a result, the Standards in Public Office Commission exercised its entitlements under section 4 of the Act to issue guidelines in respect thereof to election agents. The notice party's election agent took into account those guidelines in making his return. The petitioners also contended that the salary of a civil servant, who worked for the notice party's election campaign whilst on her annual leave, was reckonable as an election expense. It was also alleged that the full amount of the notice party's spending limit which he had assigned to his national party to be spent by it at national level should have been included when calculating the total amount spent by the notice party on his campaign at constituency level. In reply, the notice party stated that only a portion of the amount of his spending quota which he had assigned to his party at national level had been re-assigned to his constituency campaign by it.

Held by Kelly J in dismissing the petition, 1, that a person who spent their holidays from their position as an unestablished public servant campaigning for an election candidate should not have their public service salary accounted for as an election expense as volunteer workers played a useful role in a healthy democracy and it would require very clear legislative language to have their salaries reckoned as election expenses which was not obvious from the language of the Electoral Act 1997.

2. That, on the facts, the personnel working in the notice party's constituency unit were permanent established civil servants who were not involved in any activity pertaining to the election campaign during the relevant period. Having regard to those facts, it would strain common sense to suggest that the costs of the unit during that time amounted to election expenses incurred in the provision of property, goods or services for use at the election. However, such expenses incurred in the constituency unit in Dublin could fall within the definition of election expenses on different facts.

Obiter: it would be prudent for election agents to ensure that any reassignments of election spending limits made by a party in favour of a candidate who had already made an assignment in favour of the party under section 32 of the Act of 1997 should be well documented.

Reporter: P. C.

1 Justice Kelly delivered on the 30th day of January, 2004.

Introduction

2 The general election of 2002 was the first to be conducted in accordance with the fiscal constraints imposed by the provisions of the Electoral Act, 1997, as amended. That legislation brought about major changes in the ability of candidates to spend money on their election campaign and required them to make returns which would be overseen by a statutory body now known as the Standards in Public Office Commission.

3 The petitioners allege that the notice party exceeded the expenditure limits prescribed by law in the conduct of his campaign for election as a member of the Dáil for the constituency of Cork South Central.

4 The petitioners accept that under the relevant legislation they must, in order to be successful on this petition, prove not merely the overspending alleged but also that such wrongdoing was likely to have affected the result of the election. As the notice party denied any such overspending it was agreed that the court should decide that issue first. If proved, then the court would proceed to hear expert evidence as to whether the overspend was likely to have affected the result of the election.

5 Over a period of eight days commencing on Tuesday the 18 ^thNovember, 2003, and concluding on Friday the 28 ^th November, 2003, I heard both evidence and submissions concerning the alleged overspend.

6 On Monday 1 ^st December, 2003, I announced my conclusion on that topic. I held that the petitioners had not demonstrated that the notice party exceeded the expenditure limits prescribed by law. It was therefore not necessary to proceed to hear evidence from experts as envisaged. On that occasion I indicated that I would state my reasons in writing for so concluding and this I now do.

The Constituency

7 The constituency of Cork South Central returns five members to serve in the Dáil. In the general election of 1997 it returned three Fianna Fáil and two Fine Gael members.

8 In the 2002 general election it returned three Fianna Fáil, one Fine Gael and one Green Party members.

9 The notice party headed the poll in each of these elections.

The Petitioners

10 The first petitioner (Mrs Sinnott) stood for election in the constituency at the 2002 general election. The second petitioner was eligible to vote in the constituency and did so.

The Notice Party

11 Micheál Martin was elected to serve as a member for the constituency on the first count having exceeded the quota by a margin of approximately 5,500 votes. He is now the Minister for Health and Children.

The Election Result

12 The notice party having been elected on the first count his surplus of approximately 5,500 votes was distributed. On this distribution approximately 1,770 votes went to Mr Batt O'Keeffe of Fianna Fáil and 1,725 were distributed to Mr John Dennehy of the same party. 409 votes were distributed to Mrs Sinnott.

13 A subsequent count gave rise to the election of Mr Simon Coveney of Fine Gael. On the eighth count Mr Dan Boyle of the Green Party and Mr Batt O'Keefe of Fianna Fáil were deemed elected. On the ninth count Mr O'Keeffe's surplus was distributed with 81 votes going to Mr John Dennehy and 43 to Mrs Sinnott. There then took place the distribution of Mr Dan Boyle's vote between the two remaining candidates; Mr Dennehy and Mrs Sinnott.

14 On the eleventh count Mrs Sinnott was elected with a surplus of 3 votes over Mr Dennehy. A recount was requested by Mr Dennehy following which he was deemed to be elected by a margin of two votes. Mrs Sinnott then requested a further recount which did not affect the outcome and Mr Dennehy was ultimately deemed elected by a margin of six votes.

15 Accordingly, the following were returned to serve as members for the constituency -

Micheal Martin	-	Fianna Fáil
Simon Coveney	-	Fine Gael
Batt O'Keeffe	-	Fianna Fáil

Dan Boyle	-	Green Party
John Dennehy	-	Fianna Fáil

16 It is clear from the above that Mrs Sinnott failed to be elected...