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12 December 2018

New twist in Derby TUSC election agent case

Clive Heemskerk, TUSC national agent

A recent ruling by the Electoral Commission has cast new light on the case of Chris Fernandez, the local election agent for eight Trade Unionist and Socialist Coalition (TUSC) candidates at the 2016 council elections in Derby, who earlier this year was jailed for alleged 'electoral fraud'.

Twenty years after the introduction of the Registration of Political Parties Act 1998, the Electoral Commission has announced that, from now on, descriptions used by party candidates on ballot papers must clearly identify the party they are standing for. That this has not been a legal requirement before significantly undermines the case made against Chris at his trial and shows what an injustice was perpetrated against him.

A full account of what was a politically motivated prosecution is available on the TUSC website but, in essence, Chris was judged guilty of misleading members of the public on the electoral register into signing nomination papers in the 2016 local elections. The Crown Prosecution Service (CPS) argued and won on 12 out of 14 counts that people did not know they were signing local election nomination forms for TUSC candidates.

At the trial the CPS barrister, Gareth Roberts, made great play of asking every witness whether they knew of "the TUSC political party" (the exact name of which he often got wrong himself). His argument was that people who signed a nomination paper "must understand that they are signing to nominate a candidate from a political party which they have heard of and which they support". Their hazy recollections of doorstep discussions from twenty months ago were held up as 'proof' that they must have been misled.

New ruling

Chris was adamant that he did not set out to mislead anyone and that he had explained he was from TUSC. But now the Electoral Commission's ruling has confirmed that identifying the candidate's party was not actually a requirement of electoral law anyway.

The nomination paper itself does not refer to the candidate's political party. There is no box headed 'party'. Instead there is a box headed 'description', which can be the party's name but can also be what is known as a 'registered description'. Each political party on the Electoral Commission's official list of parties (there are over 300 of them) is allowed to register up to 12 descriptions. Until the new ruling from the Commission, many of the permitted descriptions that were registered to appear on nomination forms had no reference to the party in them.

The Liberal Democrats' registered descriptions are an example. Thousands of Liberal Democrat local council candidates have used the description 'Focus Team' on their ballot paper. In these cases the words 'Liberal Democrat' would not have appeared anywhere on the candidate's nomination paper. Someone filling in such a form may not have known they were "signing to nominate a candidate from a political party which they support" - to use the phrase of the CPS barrister, Gareth Roberts. Would he argue that these candidates too must have been fraudulently nominated? Probably not - Roberts was a Liberal Democrat parliamentary candidate in the 2005 general election (although this was not revealed at Chris's trial).

It was bad enough that neither the CPS, the judge nor, unfortunately, Chris's defence barrister, explained to the court that electors would not necessarily need to be familiar with TUSC, or remember its name, to have validly signed a nomination paper.

Democratic rights

But the Electoral Commission too, which had an observer present at the trial, made no effort to correct the misrepresentation of electoral law. Then again the Commission, an unelected government quango, is not a neutral defender of democratic rights.

The move to reinterpret a law that has been in place for 20 years is not because of a surge in 'sham nominations' in elections. Out of over 2,000 cases of alleged electoral fraud recorded since 2008, only two - a Ukip candidate in Essex and Chris Fernandez in Derby, both formally charged by the CPS in March 2017 - have involved the offence of 'tricking voters into signing nomination forms'. Instead it is part of the Tory government's attempt - alongside new voter ID restrictions, limiting student voter registrations and so on - to make it as difficult as possible for the electoral process to be an outlet for the growing mass anger at the age of austerity, particularly for protest candidates and others outside the establishment circles.

This latest development highlights the injustice meted out to Chris. Not only was he jailed but, after having served four months in prison, he was hit with a bill for 8,847 for exercising his right to contest the case and protest his innocence. Chris had applied for legal aid but, because he lost the case, has to pay a contribution to the costs.