Andrew Erlam and Others (Petitioners) v Mohammed Lutfur Rahman and Another

JurisdictionEngland & Wales
CourtQueen's Bench Division
JudgeCommissioner Richard Mawrey QC
Judgment Date23 Apr 2015
Neutral Citation[2015] EWHC 1215 (QB)
Docket NumberCase No: M/350/14

[2015] EWHC 1215 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ELECTION COURT

IN THE MATTER OF THE REPRESENTATION OF THE PEOPLE ACT 1983

AND IN THE MATTER OF A MAYORAL ELECTION FOR THE LONDON BOROUGH OF TOWER HAMLETS HELD ON 22 MAY 2014

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Commissioner Richard Mawrey QC

Case No: M/350/14

Between:
(1) Andrew Erlam
(2) Debbie Simone
(3) Azmal Hussein
(4) Angela Moffat
Petitioners
and
(1) Mohammed Lutfur Rahman
(2) John S Williams (Returning Officer)
Respondents

Francis Hoar & Katherine Halleck of counsel, for the Petitioners

Duncan Penny Q.C. & Michael Bailey of counsel, for the First Respondent

Duncan Penny Q.C. & Dilpreet Dhanoa of counsel, for the Second Respondent

Hearing dates: 2 February to 13 March 2015 and 24 March 2015

INTRODUCTION

1

22 May 2014 was Election Day throughout the United Kingdom. There was a nationwide election for members of the European Parliament. Many local authorities had council elections and a few local authorities had mayoral elections. The London Borough of Tower Hamlets had all three. While undoubtedly making practical sense to hold all the relevant elections on the same day, conducting three simultaneous polls necessarily presented considerable challenges for returning officers, both in ensuring that polling proceeded in an orderly and lawful manner and in arranging for three different sets of ballots to be correctly counted.

2

In Tower Hamlets there was a full council election with all 45 seats in 20 wards being contested. Between the 2014 election and its preceding election in 2010 there had been a wholescale re-drawing of the ward boundaries and the number of wards had been increased from 17 to 20. In most of the wards, there were candidates from six main parties, Conservative, Liberal Democrat, Labour, the Green Party, UKIP and a party local to the Borough known as Tower Hamlets First (THF).

3

In the election for Mayor, there were ten candidates, one from each of the six parties listed above, one from the Trade Union and Socialist Coalition and three Independent candidates.

4

The Mayoral election is conducted on the transferable vote system. Each elector has two votes and chooses his first and second preferences. The ballot paper, therefore, lists the candidates in alphabetical order with two columns of corresponding boxes for the voter to mark first and second preferences. When the votes come to be counted, the first step is to count the first preference votes for each candidate. If, at the conclusion of that process, a candidate has received more than half of the first preference votes cast, that candidate is elected. If no candidate has received more than half of the first preference votes, the second stage is, in essence, a run-off between the two candidates with the most first preference votes. The remaining candidates drop out of the race and the ballot papers showing their names as first preferences are re-examined to determine the second preferences shown on those ballot papers. Second preference votes for candidates other than the two front-runners are disregarded and the second preference votes for those two are counted and added to their first preference votes from the initial round. The first and second preference votes for the two front-runners are then totalled and the candidate with the higher total declared the winner.

5

The drawback of this system is that it is possible for candidate A to receive 49.9% of the first preference against his main rival B's 20% (or even 10%) but for B to receive all the second preference votes of the eliminated candidates and to be elected. In effect the election is won by the voters' second choice of candidate.

6

The Tower Hamlets Mayoral election of 2014 turned out to be a two-horse race, the principal contenders being Mr John Biggs, the Labour Party candidate, and the outgoing Mayor Mr Lutfur Rahman, the THF candidate.

7

At the count following the poll, the first preference votes for those two candidates were:

Mr Rahman: 36,539 (43.38%)

Mr Biggs: 27,643 (32.82%)

8

The candidate coming third, Mr Christopher Wilford (Conservative), totalled roughly 8.5% and no other candidate received more than 6%. The second preference votes shown on the ballot papers of the eight eliminated candidates (to the extent that they were for Mr Biggs or Mr Rahman) were then counted and added to the total. Though Mr Biggs received approximately eight times as many second preference votes than Mr Rahman it was not sufficient for him to make up the gap from the first round. The final result was

Mr Rahman: 36,539 (first) + 856 (second) totalling 37,395

Mr Biggs: 27,643 (first) + 6500 (second) totalling 34,143

Mr Rahman was thus re-elected Mayor of Tower Hamlets.

9

As will be seen, both Mr Rahman's campaign and his election had proved very controversial within the Borough and on 10 June 2014, the four Petitioners presented a Petition to have the election set aside on several grounds, principally the alleged commission by the First Respondent (Mr Rahman) or his agents of corrupt and illegal practices contrary to the Representation of the People Act 1983 ('the 1983 Act'). The Petitioners also alleged that the Second Respondent, the Returning Officer Mr John Williams, had failed to conduct the election in accordance with electoral law and that the election should be set aside on that ground independently of their case against Mr Rahman.

10

On 15 July 2014 the First Respondent applied to dismiss the petition under Rule 13 of the Election Petition Rules 1960 and/or the inherent jurisdiction of the court for want of particularity and abuse of process. That application was heard by the Divisional Court 1 on 28 and 29 July 2014. The Court rejected the application to strike out the Petition and directed that the Petition should be heard by an Election Commissioner appointed under the 1983 Act.

11

On 29 July 2014 I accepted the appointment as Election Commissioner to try this Petition.

12

Between 3 and 6 November 2014 I conducted the Scrutiny to examine the original ballot papers and to extract certain ballot papers and other documents in relation to allegedly false or illegal votes. I thereafter issued my formal report on its findings.

13

The hearing of the Petition commenced on 2 February 2015. On the first day of the hearing, counsel for the Petitioners and for the Returning Officer announced that their respective clients had reached an agreement whereby the Petitioners would no longer pursue their allegations against the Returning Officer and the Returning Officer undertook that, in the event that the Petitioners were successful against Mr Rahman, he would not seek an order for his own costs against them.

14

Consequently, the case against the Returning Officer, which mainly turned on his conduct of the count, was not proceeded with and a great deal of evidence dealing with the events at the count did not need to be adduced or challenged. This judgment, therefore, will not need to explore the Returning Officer's conduct or do more than contain a cursory account of the events following the close of poll at 10.00 pm on 22 May 2014.

15

The trial occupied the court from 2 February to 13 March 2015. Written final submissions were served on 20 March 2015 and final oral submissions were heard on 24 March 2015.

16

The principal counsel for the parties were:

The Petitioners: Mr Francis Hoar

The First Respondent: Mr Duncan Penny QC

The Second Respondent: Mr Timothy Straker QC

I trust both leading counsel will forgive me if I do not repeat 'QC' on each occasion I mention them in the remainder of this judgment.

THE LAW

The law: election courts and their procedures

Election petitions

17

Before dealing with the law relating to election petitions, it is necessary briefly to rebut the criticism made in certain quarters after the high profile case of Watkins v Woolas2 (referred to hereafter as ' Woolas') in which the election of Mr Philip Woolas as Member of Parliament for Oldham East and Saddleworth in 2010 was set aside by an election court on the ground that Mr Woolas had committed an illegal practice contrary to s 106 of the 1983 Act (which will be discussed in detail later in this judgment).

18

The criticism is usually voiced in terms of 'unelected judges unseating democratically elected politicians', the obvious implication being that this process is itself undemocratic.

19

There are two answers to this criticism. First the resolution of disputed elections by the courts is not a power the judges have arrogated to themselves. It is a task laid upon them by Parliament, a task, what is more, that the judiciary originally resisted tooth and nail. As the history of election courts set out in Woolas in the Divisional Court shows 3, when, in 1868, it was proposed that election disputes should be referred to the courts, the then Lord Chief Justice, Sir Alexander Cockburn Bt (ironically the country's leading expert in electoral law), wrote a stern letter of protest to the Lord Chancellor and earned himself an unflattering cartoon in Punch for his pains 4. All to no avail. The reason is obvious: if, as Parliament believed, and has continued to believe, politicians cannot be trusted to resolve election disputes fairly, then who is left but the judiciary? Election courts have thus lasted from 1868 to the present.

20

The second reason is that the criticism itself begs the question. If a candidate is elected in breach of the rules for elections laid down in the legislation, then he cannot be said to have been 'democratically elected'. In elections, as in sport, those who win by cheating have not properly won and are disqualified. Nor is it of any avail for the candidate to say 'I would have won anyway' because cheating leads to disqualification whether it was necessary for the victory or not. In recent...

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    ...apply by analogy the principles from election law as to the candidate's liability for the actions of his/her agent: Erlam v Rahman [2015] EWHC 1215 (QB) [51] to [58]; and Ali v Bashir [2013] EWHC 2572 (QB) [71] to [76]. Based on these authorities, he contends that, Mr Wood was liable for ......
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