Nick Robinson on the BBC at the Rochester by-election count on 20th November 2014 refers to “… people sneaking a look at postal votes…”. It is now clear that this is another reference to postal voting agents taking tallies of postal votes at postal vote opening sessions in the days before the count. More worryingly, I now know from FoI requests that no allegation was made to the police, despite the Acting Returning Officer being aware, the Electoral Commission being aware and both Medway Council’s legal team and the Electoral Commission informing the Acting Returning Officer’s staff that the practice was a breach of S66 of the Representation of the People Act 1983.
On November 18th 2014 a member of the Acting Returning Officer’s staff at the Rochester & Strood Byelection submitted an electoral guidance query to the the Electoral Commission which was logged.
“[Redacted] at Medway was concerned that agents at postal vote opening sessions were making a tally of votes polled and that this was in breach of S66 as confirmed by Medway’s legal team. Agents for UKIP and Labour said they were advised that this wasn’t in breach particularly as they were not communicating this information. [redacted] wanted confirmation.”
The Commission reply was logged as:
“Clarified and confirmed with [redacted] not acceptable to tally at PV opening and covered in guidance, also cases of CPS issuing warnings about this behaviour.”
The standard Memorandum of Understanding: Agreement on joint planning for elections and reporting and investigating electoral malpractice between police forces and Acting Returning Officers includes at section 5.1:
5.1 Electoral registration officers/(acting) returning officers take allegations of electoral malpractice seriously. Where suspicions are aroused and, after checking information held by the local authority, deemed worthy of referral to the police for investigation, the electoral registration officer/(acting) returning officer should report the matter to the police officer acting as the single point of contact (SPOC) in order to assist where possible. The (acting) returning officer, or their appointed representative, will advise the police on procedures that should be undertaken to obtain witness evidence from local authority appointed staff and/or other necessary evidence.
If being told by their own legal team and by the Electoral Commission that the practice they have observed is illegal does not make it “worthy of referral” it is hard to imagine what would. The suspicion is that it was not referred by the Acting Returning Officer to the police to avoid negative publicity.