Local Government Election Court

June 23rd, 2017

In R (Rahman) v Local Government Election Court (2017) EWHC 1413 (Admin) a Divisional Court (Lloyd Jones LJ and Supperstone J) refused the Applicant’s application to amend the grounds of his application for judicial review of a decision of the Local Government Election Court which found the Applicant personally guilty and guilty by his agents of a number of electoral offences under the Representation of the People Act 1983 (“the 1983 Act”). The findings of the Election Court had the effect of automatically disqualifying the Applicant from holding elected office until 23 April 2020.

Four members of the public brought the election petition which led to the challenged decision of the Election Court (“the Petitioners”).

By the election petition, the Petitioners sought to have the election of the Applicant as Mayor of the London Borough of Tower Hamlets on 22 May 2014 set aside on the grounds that he and his agents were guilty of corrupt and illegal practices. The trial of the petition was held between 2 February and 13 March 2015 before the Election Commissioner, Mr Richard Mawrey QC, with final written and oral submissions made on 20 March 2015 and 24 March 2015 respectively.

The Election Court gave its ruling on 23 April 2015. The relevant findings for present purposes are that the Court found the Applicant personally guilty and guilty by his agents of offences under Section 106 of the 1983 Act (the illegal practice of making false statements as to candidates), Section 113 (the corrupt practice of bribery) and Section 115 (the corrupt practice of undue influence).

The Court also made further findings which are not (or are no longer) challenged, namely that Mr Rahman was guilty by his agents of various other corrupt and illegal practices, and that corrupt and illegal practices undertaken for the purpose of promoting or procuring the election of Mr Rahman so extensively prevailed that they might reasonably be supposed to have affected the result of the election.

These findings had the consequence of invalidating the election of the Applicant under Section 159(1) of the 1983 Act and disqualifying him under Section 164(1)(b) of the 1983 Act from standing as a candidate for the election for Mayor of London Borough of Tower Hamlets that became necessary as a result of the first election being declared void. The findings of personal guilt also had the consequence of disqualifying the Applicant from standing as an election candidate for five years in respect of the corrupt practices of bribery and undue influence and three years in respect of the illegal practice of making false statements as to candidates.

On 2 July 2015 the Applicant filed an application for judicial review challenging the decision of the Election Court. The judicial review was advanced on three grounds:

  1. The finding that the Applicant was guilty by his agents of the illegal practice of paying canvassers under section 111 of the 1983 Act was challenged on the ground that it was reached without any evidential basis.
  2. The finding that the Applicant was personally guilty and guilty by his agents of the corrupt practice of bribery under section 113 of the 1983 Act was challenged on the grounds that the court had erred in its construction of section 113 or alternatively that there was insufficient evidence for the conclusions that the judge drew.
  3. The finding that the Applicant was personally guilty and guilty by his agents of the corrupt practice of undue influence by way of spiritual injury was challenged on the basis that it was perverse, contrary to existing authorities and contrary to Article 9 ECHR.

The permission application was determined following an oral hearing. The Court accepted that the claim could be brought by way of judicial review. It refused permission on the first two grounds but granted permission on the third ground (undue influence). Success on this ground would not, by itself, lead to the Applicant’s disqualification being lifted.

Following the 2014 Mayoral election in Tower Hamlets, the Metropolitan Police Service (“the MPS”) received 164 allegations relating to electoral fraud and malpractice. No file was ever passed to the CPS, or by extension the DPP, for consideration of whether to bring a prosecution against the Applicant. On 16 March 2016 the MPS issued a press statement indicating that their assessment into allegations of electoral fraud in Tower Hamlets was complete. It was stated that:

“After full consultation with the Crown Prosecution Service a decision has been made that there is insufficient evidence that criminal offences had been committed.”

and

“The Election Petition Hearing was a civil process through the High Court. Within that hearing the rules regarding admissibility of evidence and liability were different to those applied for any criminal prosecution.”

As the Divisional Court observed, at paragraph 19 of their Judgment:-

“The 1983 Act establishes two concurrent but distinct jurisdictions for addressing electoral offences: a civil regime whereby allegations may be tried before an election court and a criminal regime whereby the same offences may be tried before the Magistrates’ Court or the Crown Court. Electoral offences are described as “corrupt practices” or “illegal practices”, with the former attracting more serious consequences. Where an election court finds that an election candidate is personally guilty of a corrupt practice this leads to that candidate being automatically disqualified from standing for election for five years, while a finding that a candidate is personally guilty of illegal practices leads to disqualification for a period of three years.”

The Applicant requested permission to amend his application for judicial review to include three new grounds for review. By his Ground 1 the Applicant submitted that the Election Commissioner’s findings that the Applicant was “personally guilty” of offences under Sections 106, 113 and 115 of the 1983 Act violate Article 6(2) ECHR because they are incompatible with the presumption of innocence. The Applicant submits that the findings of the Election Court were followed by a decision to discontinue criminal proceedings that had been initiated against the Applicant, on the basis that there was insufficient evidence to bring a prosecution. It is said that the findings of the Election Court should therefore be quashed.

The central issue was whether there were as the Applicant submitted parallel criminal proceedings, with the result that Article 6(2) was engaged during the proceedings before the Election Court. The Divisional Court firmly rejected this submission.  The Court said:-

“48.    … The fact that the DPP, in the exercise of her powers under s.181(2) and (3) attended the hearing before the Election Court through a representative, and then through a special prosecutor appointed by her considered daily transcripts and reports from the trial cannot, in our view, begin to form the basis of an argument that the Applicant had become a suspect. Plainly what the DPP was doing (and no more) was exercising her powers in the performance of her duty under s.181(1), having received information that an election offence had been committed, “to make such enquiries and instituted [sic] such prosecutions as the circumstances of the case appears to her to require”.

  1. There is no evidence that the Applicant had become a suspect by the time of the Election Court proceedings, and we consider there is no real prospect of the Applicant establishing that he became a suspect thereafter.
  2. The evidence of Commander Cundy of the MPS with responsibility for Specialist Crime Investigations is clear. … At paragraph 13 of his witness statement … Commander Cundy stated that the Applicant “was not a named suspect for any of the allegations investigated by the MPS”.
  3. … Much emphasis was placed on the language used in the Election Court proceedings such as that the Claimant was personally “guilty” of electoral fraud, amounting to corrupt and/or illegal practices referred to in the judgment of the Election Court as “charges”, and that the findings were made to the criminal standard and in respect of matters that were also offences under the criminal law. However the Election Court was required by the Act to pronounce upon the Applicant’s personal guilt, and required to apply the criminal standard of proof; and the Election Court made clear (in its judgment at [32]) that it was not determining criminal liability and that its decisions were “entirely separate from any criminal sanctions that might be imposed if the candidate concerned is prosecuted to conviction for an electoral offence”. …”

“54.    …  in summary, the test for determining whether a person is charged for the purposes of article 6.1 is as follows:

(1)    A person is subject to a charge within the meaning of article 6.1 when he is “substantially affected” by the proceedings taken against him.

(2)    His position will have been substantially affected as soon as the suspicion against him is being seriously investigated and the prosecution case compiled.

(3)    In general “charge” for the purposes of Article 6.1 is defined as the official notification given to the individual by the competent authority of an allegation that he has committed a criminal offence.

(4)    However it may in some instances take the form of other measures which carry the implication of such an allegation.

(5)    The test will have been satisfied when the individual has been detained and taken into custody.

(6)    It must also be taken to have been satisfied where he is subjected to the initial stages of police interrogation.

(7)    The mere fact that the individual has been cautioned will not carry the necessary implication.

(8)    But, when the surrounding circumstances or the actions that follow immediately afterwards are taken into account, it may well do so.

(9)    The moment at which the individual is no longer a potential witness but has become a suspect provides as good a guide as any as to when he should be taken to have been charged for the purposes of Article 6.1.

  1. In the present case there is no evidence that the situation of the Applicant was substantially affected. There is no evidence that any suspicion against him was being seriously investigated … and that a prosecution case against him was compiled. He was not officially notified of an allegation that he had committed a criminal offence; nor were any measures taken which carry the implication of such an allegation. He was not detained or taken into custody; nor was he subjected to the initial stages of police interrogation. He was not questioned by the police and he was not cautioned. There are in this case no surrounding circumstances or any actions that were taken from which it could be implied that an allegation had been made that he had committed a criminal offence. Having regard to all the circumstances we do not consider that at any time he had become a suspect
  2. It follows that in our judgment the Applicant was never charged with a criminal offence. Accordingly there were no parallel criminal proceedings. This is fatal to the Applicant’s case on Ground 1.”

In Ground 2, the Applicant submitted that the Election Commissioner’s findings of personal guilt violate Article 6(2) and must therefore be quashed because they amount to an imputation of criminal liability by a public authority while criminal proceedings were pending and had not yet established the Applicant’s criminal liability. The Applicant submits that the presumption of innocence applies even if the Court decides against the Applicant on Ground 1. Moreover, it is submitted that in this aspect of the presumption the outcome of any subsequent criminal proceedings is irrelevant. Accordingly, it is said that there may be a breach of Article 6(2) even if the MPS or CPS reverse the previous decision not to prosecute.

The Applicant’s case on Ground 2 depended on his demonstrating that, at the time of the decision of Commissioner Mawrey QC in the Election Court, there were criminal proceedings pending against him such that Article 6(2) was engaged and the presumption of innocence applied. For the reasons set out above, the Court did not consider that that proposition is arguable. Accordingly, for this reason alone, Ground 2 could not succeed.

In support of the submission that the submission that the statements and conclusions of Commissioner Mawrey QC in his Judgment in the Election Court amounted to an imputation of criminal liability, the Applicant was able to point to the fact that the civil scheme relating to election petitions under the 1983 Act employs the language of criminal liability. Thus, for example, it speaks of persons being convicted of and being guilty of illegal and corrupt practices. The election offences and criminal offences are expressed in the same terms and have the same ingredients. Moreover, allegations of personal guilt or guilt by one’s agents must be proved in proceedings on an election petition to the criminal standard, whereas the impact of such conduct on the outcome of the election is determined on the civil standard of proof. Nevertheless, the scheme of the 1983 Act establishes two concurrent but distinct jurisdictions and distinguishes clearly between civil proceedings on an election petition and criminal proceedings. Furthermore, while the disqualificatory consequences of an election offence are the same as those of the corresponding criminal offence, a criminal offence under the 1983 Act may be punished in addition by a fine or a term of imprisonment.

The Divisional Court agreed with the Applicant that the statutory language used in the 1983 Act, which refers to “personal guilt”, “conviction” and “offence” does carry with it connotations of criminal guilt, and we note that such terminology may be infelicitous when applied to election proceedings which are clearly civil in nature. The Law Commission is currently conducting a review into electoral law in the United Kingdom, which extends to electoral offences and the election petition process. The interaction between the civil and criminal dimensions of election oversight may be appropriate for consideration by the Law Commission.

Commissioner Mawrey QC, in his Judgment in the civil election proceedings, necessarily employed the language of the statute as he was required to do. He did, however, go to some lengths to explain the differences between the two jurisdictions and the nature of the proceedings before him. Commissioner Mawrey QC explained in his Judgment the civil scheme in relation to election petitions and courts, the differences between an election court, a civil court and a criminal court, and the differences and similarities in burden and standard of proof. In particular he stated with regard to the periods of disqualification:

“These penalties are entirely separate from any criminal sanctions that might be imposed if the candidate concerned is prosecuted to conviction for an electoral offence.”

The Divisional Court therefore concluded that this was not a case where the Judge in civil or disciplinary proceedings has unequivocally pronounced the Applicant guilty without any reservation or qualification that could lead the reader to conclude that the pronouncement of the Applicant’s guilt was confined strictly to the civil or disciplinary sphere.  For these reasons the Divisional Court did not consider it arguable that the statements or conclusions of Commissioner Mawrey QC in his Judgment in the Election Court amounted to an imputation of criminal liability.

The Divisional Court added, at paragraph 76, that if the case advanced by the Applicant on Ground 2 were correct, the implications for electoral law would be profound. Where an election is challenged, for example on the ground that it was avoided by corrupt or illegal practices, the protection of democracy and the democratic process requires that the issue should be resolved and the Commissioner should be able to report as a matter of urgency.  As a result, strict and brief time limits apply under the 1983 Act to the bringing of an election petition. If it were the case that a Commissioner hearing an election petition is prevented from expressing in civil election proceedings conclusions as to the personal guilt of a candidate, such as those of Commissioner Mawrey QC in this case, on the ground that to do so would violate the candidate’s right to the protection of the presumption of innocence under Article 6(2), until such time as his guilt or innocence on corresponding criminal charges were finally determined by a court of criminal jurisdiction, a vital legislative purpose would be frustrated. Moreover, the Strasbourg jurisprudence expressly acknowledges that Article 6(2) does not require a stay of disciplinary or civil proceedings even where criminal proceedings are pending. What is required is that the outcome and true nature of the civil proceedings should be appropriately expressed.

 

Comments are closed.