Erlam v Rahman
Erlam and others v Rahman and another [2015] EWHC 1215 is an English election court case challenging the 2014 election of Lutfur Rahman as the Mayor of the London Borough of Tower Hamlets. On 23 April 2015, Election Commissioner Richard Mawrey voided Rahman's election under the Representation of the People Act 1983 on the grounds of corrupt and illegal practices by him and his agents, and general corruption so extensively prevailing so to reasonably supposed to have affected the election. Rahman's official election agent Alibor Choudhury was ordered to vacate his own office of councillor in the ward of Stepney Green for being guilty of corrupt and illegal practices.
Lutfur Rahman was first elected to the position of mayor in 2010, standing as an independent after controversy surrounded his placement on the Labour Party candidate shortlist and the eventual selection and almost immediate deselection as the party's official candidate. For the 2014 election, Rahman represented Tower Hamlets First, which was formed the year before with Rahman its leader and Choudhury its treasurer. Out of 84,234 accepted votes, Rahman received 36,539 first preference votes with John Biggs second with 27,643. Following a transfer of 856 second preference votes to Rahman and 6,500 to Biggs, Rahman was re-elected as mayor with a winning margin of 3,252 votes.
On 10 June 2014, Andy Erlam, Debbie Simone, Azmal Hussein, and Angela Moffat in their position as electors at the election presented a petition to the High Court questioning Lutfur Rahman's election as mayor on the grounds that among other things Rahman or his agents, or both, committed corrupt and illegal practices contrary to the 1983 Act. Independently of the allegation against Rahman, the petition also requested the election to be set aside on the ground that the returning officer John Williams or his officials, or both, failed to conduct the election correctly under election law.
Background
Facts
The 2014 Tower Hamlets mayoral election took place on 22 May 2014, concurrently with elections to all 45 seats on the Tower Hamlets London Borough Council, and the 2014 European Parliament election. Ten candidates stood for mayor, with incumbent Lutfur Rahman representing Tower Hamlets First and challengers representing the Conservative Party, Green Party, Labour Party, Liberal Democrats, UKIP, and TUSC along with 3 independents. Voting in the mayoral election was conducted using the supplementary vote system whereby the voter has the option to express a second preference choice, which would be counted in the event no candidate receives more than half the first preference votes and the second preference vote is for one of the two candidates with the most votes in the first round.Lutfur Rahman was declared winner of the election some time before 2 am on 24 May 2014 with a total of 37,395 first and second preference votes over John Biggs's 34,143 votes.
Legal context
The result of a local election may only be overturned as a result of findings following an election petition presented by one of the candidates or at least four eligible voters. The time limit for presenting a petition is generally 21 days after the election. Alternatively, anyone convicted in a criminal court of a corrupt or illegal electoral practice is required to vacate their elected office. A successful challenge through an election petition voids the election itself, such that the otherwise successful candidate is not considered ever lawfully elected. In contrast, a criminal conviction causes a vacancy to arise, but the original election is considered valid. In either case, a person convicted or reported by an election court personally guilty of corrupt practices is additionally barred from holding any elective office or being registered as a voter for a period of five years. For illegal practices, the period of disqualification is three years.While an election petition is pursued similarly to normal civil claims, a judge sitting in an election court holds more of an inquisitorial role. This inquisitorial power requires the judge to examine and investigate possible electoral malpractice in the electoral area as a whole as opposed to being limited to determining the questions posed by the petition. To aid its decision, the court has the power to require the attendance of any person as a witness, and to examine such a witness even if they are not called by either of the opposing parties. Witnesses are required to answer all questions posed to them, but none of their answers may be admitted as evidence against them in future court proceedings except in cases of perjury proceeding against the witness in respect of the evidence given.
Though it is a civil court, the general standard of proof used by an election court for allegations of corrupt or illegal practices is that of a criminal one, namely that of beyond reasonable doubt. The same criminal standard of proof was used by Richard Mawrey on determining whether there was general corruption designed to secure Lutfur Rahman's election, but the lower civil standard on whether such corruption affected the result.
Representation
At the election court trial, the petitioners were represented by Francis Hoar, Lutfur Rahman was represented by Duncan Penny QC, instructed by K&L Gates; and the returning officer was represented by Timothy Straker QC, instructed by Sharpe Pritchard.Pre-trial hearings
Protective costs order
In light of the possible financial cost that may be awarded against them if their petition proved to be unsuccessful, the petitioners applied for a limited protective costs order on 9 July 2014 to cap any potential cost recovery by the respondents to no more than £25,000 plus VAT, and their own cost to £50,000 plus VAT. Subsequently, the petitioners attempted to adjourn the application, which along with the application itself was denied after a hearing by High Court judges Michael Supperstone and Robin Spencer sitting as a divisional court on the grounds that the petitioners had deliberately failed to disclose their financial means when making the initial application.Application to dismiss petition
At the same hearing, the divisional court heard an application by Lutfur Rahman to dismiss the petition under Rule 4 of the Election Petition Rules 1960 or the inherent jurisdiction of the court, or both. Counsel for Rahman argued for the dismissal on the grounds that the petition's many allegations of electoral offences were stated without sufficient detail as to the basis of the allegations. In rejecting the application for dismissal, the court referenced among other things Saghir & Others v Najib & Others and Hussein & Others v Khan & Others in support of the petitioners' position that election courts have at least since the mid-nineteenth century allowed further details to be provided on request, instead of dismissing an election petition outright, an action the divisional court then undertook by ordering for more details to be provided by the petitioners in response to a request previously made by both respondents individually.Venue
Following the divisional court hearing into Rahman's application to dismiss and the petitioners' application for an adjournment of their application for a protective costs order, Supperstone J sitting on his own heard an application by the petitioners to move the trial outside of Tower Hamlets for fear of intimidation by supporters of Rahman. This request was rejected by the court, which held the prospect of large number of attendees and the associated potential for public rowdiness was not enough to justify ignoring the long-standing provision within primary legislation requiring trials to be held in the local government area for which the election was held, in this case the London Borough of Tower Hamlets.During its argument, counsel for John Williams drew the court's attention to section 130 of the 1983 Act of the power of the election court to adjourn the trial to another place at the Commissioner's discretion, a discretion Richard Mawrey subsequently exercised when he moved the trial to the Royal Courts of Justice from Tower Hamlets Town Hall after regarding the town hall as not a neutral venue.
Election court hearing
Following agreement between the petitioners and John Williams, allegations against the returning officer and his staff were withdrawn on the first day of the hearing.Overall, Richard Mawrey found Lutfur Rahman's testimony unreliable and evasive, in most instances preferring other witnesses' evidence where they conflicted with Rahman's. Mawrey also expressed dissatisfaction over "one or two witnesses use of interpreter when they clearly demonstrated a good understanding of the English language, such as answering questions before the interpreter spoke, or when the witness was the editor of an English language newspaper.
Throughout the case, it was the petitioners submission that Tower Hamlets First was in reality a "one-man band" for the sole purpose of the continuation of Lutfur Rahman as mayor, rather than a genuine political party. This position was given further support by Rahman's own evidence and that of his witnesses, with the admission that candidates for Tower Hamlets First required Rahman's personal approval. Given Rahman's control over candidate selection, the candidates were taken to be within the category of Rahman's agents under electoral law.
False registration
Provision of false information to a registration officer is an offence under section 13D of the 1983 Act. While no specific allegation of false registration was particularised on the election petition, evidence was heard by the court as part of the case on personation and other voting offences. A schedule containing multiple false registrations was submitted to and accepted by the court where all entries were shown to have voted for Rahman.Particular examples of false registration highlighted in the judgment include that of former councillor Kabir Ahmed, councillor Shahed Ali, Moniruzzaman Syed, and Aktaruz Zaman, all of whom were candidates representing Tower Hamlets First at the 2014 Tower Hamlets council election in the wards of Weavers, Whitechapel, Bromley North, and both St Peter's and Blackwall & Cubitt Town respectively.