Rehman v Khan

THE COMMISSIONER: I have been appointed to try an election petition brought by Mr Shamsur Rehman against Mr Ansar Ali Khan. The petition arises out of the election on 7th May 2015 for the Birmingham City Council, more particularly for the election of a councillor for the Washwood Heath ward in the Hodge Hill constituency of Birmingham.

The respondent to the petition, Mr Khan, was the Labour Party candidate and he was, after a poll, declared elected. He received 9200 votes. Mr Rehman, who stood for the Liberal Democrats, received 1395 votes. The Conservative and Green candidates received respectively 615 and 525 votes. Accordingly Mr Khan, who was in fact the sitting member, had a considerable majority. He received considerably more votes than all the other candidates combined. I have not the precise figure for the total electorate but I can safely proceed on the footing that some 40% of the electorate did not vote.

Mr Rehman, as a candidate at the election, was entitled to bring a petition. In this country, unlike some common law jurisdictions, leave is not required to bring an election petition. The petition alleged, in summary form, corrupt or illegal practices, the making of false statements, general corruption, bribery and that Mr Khan was personally guilty and also guilty through his agents of corrupt and illegal practices.

The case has, as presented, been considerably narrowed. This is because, through (what is called) an amended election petition and answers to a request for information, Mr Rehman has pleaded a case based solely on the proposition that Mr Khan was guilty personally or through agents of the corrupt practice of undue influence, namely, in short, spiritual injury under section 115(2)(a) of the Representation of the People Act 1983.

Everything else was expressly withdrawn. Save in a particular circumstance petitions cannot be amended and save through a particular procedure, which has not been pursued, petitions cannot, by virtue of section 147 of the Representation of the People Act 1983, be withdrawn. However, petitions can be particularised. I have treated the pleadings, to which I have referred as representing the case to be met by Mr Khan. No other allegations in the petition have been supported by evidence. Accordingly, save to say that such allegations cannot be and are not sustained, I need say no more about them.

The election being questioned is one under the Local Government Act, and by section 127 of the Representation of the People Act 1993 such an election can be questioned on the ground that the person whose election is questioned was at the time of the election disqualified or was not duly elected or on the ground that the election was avoided by corrupt or illegal practices or on the grounds provided by section 164 or 165 of the 1983 Act.

Section 164 provides that:

Section 165 is concerned with the avoidance of an election for employing corrupt agents and I need say no more about it.

Consequently I am concerned which a case advanced under section 127 of the Representation of the People Act on (i) the ground that the election was avoided by a corrupt practice and (ii) the ground given by section 164 of the Act, namely extensive prevalence of corrupt practices.

At paragraph 32 of the opening note for the petitioner, which was prepared by counsel the following is said:

The corrupt practice relied upon is that set out, as I have stated, in section 115 of the Representation of the People Act. This corrupt practice, undue influence by spiritual injury, has recently been considered by Mr Commissioner Mawrey QC in the election petition relating to the Mayor of TowerHamlets. The reference is Erlam v Rahman [2015] EWHC 1215 QB. Prior to that consideration by Mr Mawrey, the provision in question or its predecessor provision had been considered in certain 19th century cases in Ireland.

I do not consider this case provides the circumstance to embark upon a dissertation about either Mr Mawrey's decision or the Victorian Irish cases. All cases of corrupt practice are necessarily different and depend upon their own facts. It appears to me that the surest guide I have is the words given by the legislation itself. Accordingly, I turn to those words because they will guide me in my consideration of the evidence I have heard over the past four days.

In order to get at the relevant words one has to understand one is dealing with a long sentence which contains a number of different and separate matters.

The relevant statutory words are, in the context of an allegation of spiritual injury before a poll these:

It must be remembered that the commission of a corrupt practice is a criminal offence. This, as it seems to me, has two consequences. First, in order to find Mr Khan or anyone else has committed a corrupt practice I should be satisfied so I am sure, that it is to say I should proceed upon the criminal standard of proof. Second, in construing the statutory words I should bear in mind that one interprets words creating a criminal offence strictly.

I have reminded myself in this context of what I said when sitting as a Commissioner in Birmingham in the case of Aehmed v Afzal [2008] EWHC B5 QB. I said, absent any authority, that I consider the proper approach to the words "false statement of fact" in relation to a candidate's personal character to be as follows. First, that they had to be interpreted narrowly, bearing in mind they are used to create a criminal offence. Second, they had to be interpreted having regard to the fact they were concerned with speech, interpreting them broadly might be thought to be an inhibition on speech. Finally, they had to be given some meaning as Parliament plainly considered something to fall within the expression.

I appreciate that I am here dealing with a different section but it appears to me that the approach, making proper allowance for the differences between section 106 and section 115, is the same.

This case is concerned with the Facebook post in which the relevant words are those which I have already read, namely that all Pir and Darbars in Birmingham have ordered mureeds to vote Labour in elections. This appears above a photograph showing a number of people, including the respondent Mr Khan and Pir Siddiqui. He, plainly, is a religious leader of some distinction.

Accordingly, it is necessary in the context in which those words appear for those words to amount to someone threatening to inflict, by himself or another person, a spiritual injury upon someone in order to induce or compel him to vote or refrain from voting. I have, in reciting those statutory words, restricted myself to those that constitute the irreducible minimum for a consideration in this election petition. The someone who is here accused is the respondent, Mr Khan. It is suggested of course that the words convey the threat. Accordingly, I consider first the evidence as to whether he was the person who used those words.

There is a confusing series of events and evidence as to how, when and in what circumstances the words complained of came to be published. I do not consider I can, on the evidence before me, resolve that particular conundrum. However, the question I am asked to consider is whether I can be sure the respondent, Mr Khan, published them. This is a question I can on the evidence answer. The answer is "no". I cannot be sure. I put the matter in those terms because I should be satisfied if I am to uphold this petition on the criminal standard.

In fact I consider, on the evidence I have heard, that someone unconnected politically with Mr Khan, and certainly not at his request, posted the words complained of. It is unnecessary for me to go further, and I do not do so.

There is here a sequence of events to be noticed. First, on 13th April 2015 a meeting took place at the Victoria Road Centre, Birmingham, with Pir Siddiqui, for the purpose of discussing Milad conference arrangements. This was a function scheduled to take place on 19th April 2015. This has been described by a number of witnesses, including Councillor Ditta, who was there, a Conservative councillor from Worcester who in 2004 to 2005 had the privilege of being the Mayor of Worcester.

He describes, upon arrival, being greeted by members of other political parties, that is to say Labour and Liberal Democrats. The meeting of 13 February was attended by Mr Khan. He talks of it in his evidence at paragraph 8. Second, in this sequence of events, on 14th or 15th April, there was posted by Mr Khan a photograph of this event but without the comment that is complained about.

The particular post can be seen in my papers at page 355. It records, by way of a photograph showing the people in question together with words underneath "Had very positive discussion with Pir Siddiqui on various..."

Third, on 16th April Mr Rehman and other Liberal Democrats also attended a meeting were Pir Siddiqui. The photo record was by Mr Rehman and was posted by him. Fourth, on 19th April a meeting took place, to which I have already referred as being anticipated in the meeting of 13th. This meeting was a large meeting to commemorate the birthday of the Prophet Muhammad in Aston Park. A large number of persons attended, of which I have estimates ranging between 10,000 and 30,000. Various short speeches were made by a variety of politicians and other speeches were made by raises community leaders. One speech indeed was made by Mr Rehman, the petitioner.

It is perfectly clear that the character of that meeting of 19th April was, as has been described in evidence, an exercise in bringing communities together, to celebrate the birth of the prophet and to operate as a exercise in community adherence. It was no doubt of particular value to those adherents of the Prophet Muhammad.

In this regard I have had evidence from a number of persons including Mr Yousaf who gave evidence through a link. As I have indicated already, this evidence, because it came through a telephone link and was not capable of being sworn evidence before me, I am treating as supportive of other evidence rather than relying upon it outright for its own terms. Nonetheless, there is no reason for me, in any shape or form, to disbelieve what Mr Yousaf said.

He makes it plain that the purpose of the meeting was not one which embraced the endorsement by Pir Siddiqui or any other religious leader of any candidate of any particular party. Indeed, that is a conclusion I would have drawn in any event because Councillor Ditta, although he did not attend that particular Milad meeting, had attended the previous five and had never come across Pir Siddiqui supporting any political party or individual. Indeed, the whole character of the exercise is one which suggests that one would not enter into that kind of exercise.

Furthermore, Mr Choudhary, who also gave his evidence by video link and which I treat in the same way, records the meeting of 19th April as being a very successful event, with over 30,000 people together with party politicians and leaders from different faiths present. He goes on to say it was a great example of community cohesion and solidarity to show the true picture of diversity in our country. I have no reason whatsoever to disbelieve that proposition.

The sequence, I have just described, began with a meeting of 13th April 2015, which had been arranged to discuss the Milad conference I take that as being the position from the evidence of Councillor Ditta. He makes plain what happened, makes plain he was greeted by members of other political parties and makes plain that the meeting was a non political one.

He records he was briefed by Sajid Yousaf in the presence of Pir Siddiqui, that it was non political and no one should make any political points. As I have said, on 16th April there was a meeting in which Mr Rehman and other Liberal Democrats also met, seemingly prompted by the fact that there had been that prior meeting and that they wished to have the same opportunity as had existed on 13th April.

I turn from that sequence to the question: who was it who posted the offending Facebook page? By "the offending Facebook page" I mean that which is shown at page 261 of the bundle. I have already referred to a confusing state of affairs in connection with this matter.

In pleadings on behalf of the Petitioner it was said (page 61 of the bundle) that the Petitioner's primary case was that the Facebook post was published by Sheik Sultan Faizul Hassan Khadri and/or other person acting under his instructions within the Ghulum Bahu Trust which operates under his direction.

I find as a fact this was not so. The position is one whereby no person connected with Sheik Khadri or with that Ghulum Bahu Trust actually posted the offending post.

I have heard from Dr Ahmed, and I have no reason to disbelieve this gentleman at all. He records that he was entirely unaware of any instructions or suggestion, made by anyone connected with the Gulham Bahu Trust to vote for any specific political party. He goes on to say that the Trust is apolitical and has no party political affiliation. Mr Rehman has pointed out to me that nonetheless there may have been or was a connection with a political party in Pakistan. The answer is, as it seems to me, that I am concerned with the United Kingdom, more particularly I am concerned with this Washwood Heath ward and there is nothing to suggest the evidence which I have recorded is in any way inaccurate.

I should also record that I heard evidence from Mr Khadri yesterday afternoon, who gave evidence which struck me as entirely accurate and honest, that the position was one whereby a Pir would not order followers to support a particular party or candidate, that there was no single political party in this country which represents Muslims and that the United Kingdom was a multi cultural country where all communities live together regardless of their colour, creed or religion. He went on to add that if, which he did not accept as a hypothesis which would occur, Pirs actually did order mureeds, their followers, to vote for the Labour party the followers would not think that by not voting Labour there would be negative spiritual or religious consequences.

Mr Rehman, in his evidence, agreed that he had no evidential support for the propositions, to which I have referred, that were made as part of his primary case. The alternative proposition that he put forward was that a gentleman called Abdul Qudeous Zafar had published the post. But I heard from that gentleman, and I consider that he was an honest witness. He has a personal Facebook page; he has had it for almost 10 years. It is to do with, at least in part, an organisation with which he works, namely a Muslim organisation called MEND. He is experienced and active on Facebook. He had been shown a copy of the relevant page, which is page 261, with his name at the heading saying he was tagged in a photograph. He was not involved he told me, and I believe him, in any way with a plan for an order to be given and posted on line. He records that he neither posted this particular post nor did he share it in any way. He was simply tagged into the post.

I have considered the proposition that the respondent or his niece, one or other of them, posted the offending page. However, it is plain the Respondent did post a photograph following what can be described using the language of politics, as a photo opportunity. That was a perfectly lawful step for him to do. It was done in a perfect innocuous way; indeed he used perfectly innocuous words. Furthermore, it can be noted that no adverse reaction, as might have been expected had he posted or had his niece posted the complained of words, occurred. It can be noted, also, that both the denied having done so. Having seen both in court and heard their evidence in connection with this matter I believe them.

Accordingly, there is no evidence it was done by the Respondent and no evidence it was done on his behalf and in particular no evidence that either Pir Khadri or Pir Siddiqui would have contemplated let alone embarked upon this posting. As I have already mentioned I have heard evidence to the effect that those Pirs and the Pirs in general act in an apolitical way. Indeed it is obvious, if one is looking for a cynical reason why that should be so, for in our democracy, the West Midlands is not dominated by one party to the exclusion of others and so those who operate whether in a religious or charitable or any other sphere have to contempt the possibility of dealing with administrations of one political hue or another.

Accordingly I answer my question as to who was it who posted the offending Facebook page by saying that it was not a religious leader as alleged, not Mr Zafar as alleged, not the respondent and not someone on behalf of the Respondent.

Mr Rehman, the Petitioner, himself posted the page as a screen shot on 6th May, before, let it be noted, the election. The reaction recorded on the Facebook entries does not suggest it had reared its head before. Nothing in the responses suggested that Mr Khan or anyone on his behalf had posted it or that it had been the subject of any dissemination before. The page upon which it appears (page 261) is curious in the sense that the photograph which is reproduced sits as if it had been put onto a page rather than being part of a page emerging from whatever machine produced it. As I have said, I cannot reach any definite conclusion as to who posted this but I do reach the definite conclusion that it was nothing to do with the Respondent.

I next consider the words themselves, threatening to inflict by himself on another person a spiritual injury. This requires a consideration of those words in context, including of course what might be described as "the target audience". In considering that context it seems to me appropriate that I should take account of the evidence before me which I have already referred, derived from Mr Khadri, to the effect that, as he says at page 363 "such an order would not occur and the community would not take the order as something which could properly produce any spiritual consequence".

The meaning the words are said to have was put as follows:

However, I find it impossible to spell out, in the context, that these words, carry that particular meaning or, in particular, constitute a threat for the infliction by the person using the words, whoever that was, on someone else of something. To say X has ordered Y to vote a particular way, whether in a religious or clerical context or otherwise, is not to say the maker of the statement is threatening to inflict by himself or another a spiritual injury. Who was the person going to inflict the spiritual injury? No one is identified. Contrast the classic example of spiritual injury, namely a threat that, if something happens the maker of the statement or a parish priest would ensure that so and so never received communion, was unable to receive the Eucharist or became excommunicated from the church.

What was the spiritual injury? None is identified in the words. It is suggested that mureeds would suppose that if they did not vote labour they would suffer eternal damnation in such after life as might or might not exist. However hard I try I cannot squeeze those words out of the offending text. Still less can I squeeze it out contextually when I appreciate the evidence before me that the people would be so credulous as to suppose that voting for a party other than Labour would produce that result.

I do not accept the petitioner's evidence that all the electors were of one kind and all, or a large part of them would have supposed damnation or at least a spell in hell fire would follow on one's death if one voted other than for the Labour party.

I have not overlooked the point that the terms of the sections strongly suggest that spiritual injury must be something that occurs in the land of the living rather than among the shades, wherever they might be, of the dead. However as is apparent I do not need to decide that particular matter. I can note however that it appears to have been the case or in the end of the 19th century that spiritual injury was thought to mean the threat of excommunication by an ecclesiastic or the denial of the rights of the religion.

Next, I consider whether the offending Facebook article was one to induce or compel someone to refrain from voting. I do not see the offending text in that light. It is apparent that the electors in the ward, if they saw it as suggested, did not view it in that light. How otherwise are we to explain not merely those who voted other than Labour but those thousands who did not vote at all?

In those circumstances I return to page 169 of the bundle and the opening note on behalf of the Petitioner where it is recorded that the court will have to find as a matter of fact whether the Respondent did in fact share the above comment. That is a reference not to posting it in the first instance but sharing it in the sense of passing it on. I expressly find that he did not do that on the evidence before me. If he did, the note continues, he would have published the statement himself and be responsible for its contents and dissipation. In considering that matter I have noticed how the question of sharing emerged into this exercise somewhat late in the day. The note also asks me to consider whether the post was published by an agent of the respondent. I have so considered and determined that it was not.

It follows from all that I have said that I do not consider the respondent to have been guilty of a corrupt practice. In fact to put the matter in the negative I consider he did not commit the corrupt practice alleged. I should add a few words about another source of evidence relied upon, namely an incident that occurred during canvassing and shortly before polling day. In this connection I heard from four witnesses. The first being Ms Aktar, who gave evidence on behalf of the Petitioner. The purpose of her evidence, as I understood it, before it was called was to support the proposition that there had been some general instruction or theme amongst the Labour supporters and canvassers to say to electors it was a religious duty to vote Labour and that said course to be followed. This of course would tie with and be supportive of, it may be supposed, the proposition that the post had been made by the Respondent. I have now found that it was not.

Matters emerged, in fact, somewhat differently but Ms Aktar gave evidence that something to that effect was said, namely that it was suggested that it was a religious and political duty to vote for the Respondent when she was canvassed at her house in Chetwynd Road in Birmingham.

I heard from the three canvassers and they included, as it appeared to me, three ladies of impeccable character who gave evidence about the matter and who had gone off in that afternoon as a trio and to canvass some roads in Birmingham. As such one went up one particular path while the other two went up another particular path either side of each other and so that they could canvass houses together, in close proximity one with the other but not waste time by three going to one property.

As it happened a Ms Khan, who happens to be the niece of the Respondent, Sofia Alif Noor Aktar and Rafaat Mugul were the three in question. Each of those expressly made plain that the words complained of, or words suggested that one or other of them had said that it was a religious duty were not said. I prefer their evidence to the evidence of Ms Aktar. It appears to me that there was no mention of religious duty. The extent of the conversation and any acrimony in the conversation is entirely unnecessary for me to consider. However, this particular incident most certainly does not support the proposition of the corrupt practice alleged in this petition.

I should now mention the general corruption charge. The corrupt practice relied upon is the one I have discussed. Given that I have found it did not occur it follows the general corruption did not occur still less can I suppose it reasonably affected the result. It may be that people can get unduly interested in Facebook posts and suppose they are all important. However, there is here no evidence of any widespread distribution or effect of the offending post and the assertions of Mr Rehman as to its distribution were just that, that is to say just assertions. I do not consider, they can be sustained.

It follows that this petition is and must be dismissed. I accordingly determine, in accordance with section 145 of the Representation of the People Act, that Mr Ansar Ali Khan was duly elected for the Washwood Heath ward of the Birmingham City Council on 7th May 2015. I report that there is no reason to believe that any corrupt practices have extensively prevailed within the election in Washwood Heath or in any other electoral area of the Birmingham City Council in May 2015. I do not consider that I need make a special report under section 145(4) of the Representation of the People Act 1983.

I shall, when I return to London, meet my obligation forthwith to pass on my determination under section 45. That will be in short form to the effect that Mr Ansar Ali Khan was duly elected. The judgment when transcribed and approved by me will constitute my report.

MR MILLAR: Sir, the general provision on costs of a petition as you will know is section 154(1). That provides the costs shall be defrayed by the parties to the petition in such manner and in such proportions as the election court may determine. If an order is made obviously it can be made subject to detail assessment. We ask for an order in our favour for our costs of defending the petition subject to detailed assessment.

THE COMMISSIONER: Mr Rehman you have heard that. I daresay it has been explained to you that the position is one, as Mr Millar has just indicated, that the position is that costs are defrayed in the manner which he has described, that is to say as the election court shall determine. In considering that question I follow the practice which is the practice of the High Court and other courts, namely that ordinarily the position is one whereby the party who brings the proceedings puts himself at risk of the costs of these proceedings and absent some special circumstance has to bear the costs. Obviously this is a matter in my discretion and obviously this is a matter upon which I will hear you.

THE PETITIONER: Your Lordship the matter of costs is in your discretion and as I am accepting and concur with Mr Millar, the amount of the costs will be subject to detailed assessment and in relation to bringing the petition, the petition has been dismissed and therefore costs will have to be awarded in the petition. So those are my submissions.

THE COMMISSIONER: Thank you very much. In that case I will order that the costs of the respondent be met by the Petitioner to be assessed, if not agreed.

MR MILLAR: You will also be aware CPR 44.2(viii) is one of those rules that applies in this jurisdiction to fill-in the gaps in the election petition rules. That provides that where the court makes an order subject to detailed assessment it will order payment of a reasonable sum on account of costs unless there is a good reason not to do so. The schedule of costs I have just handed up totals £98,157.78 pence and we would ask for 50% of that by way of an interim order for costs.

THE COMMISSIONER: You are asking for effectively £45,000?

MR MILLAR: Yes.

THE COMMISSIONER: I know that is not exactly half but something of that order.

MR MILLAR: Yes.

THE COMMISSIONER: Mr Rehman, what Mr Millar has just done is to hand me a schedule of costs. It is labelled as "For summary assessment". In actual fact I am not summarily assessing the costs of the case in that sum but it gives me an idea as to what the total liability is likely to be in the order of, once the detail assessment has been done. Mr Millar says to me, referring to the relevant civil procedural rule, that in the circumstances that have arisen, I should order that there should be an interim payment and what that has the effect is, that you have to pay something, and I will say within so many days, in order to satisfy in part what will be your total liability once assessment has been undertaken. He has put forward this figure of representing a total figure of £98,000 as being the likely figure that might come to pass on assessment. I make no comment about that because on assessment you can go forward and say: I think this fee is too much or too many hours have been used here or something like that and the Costs Master will have to say what the Costs Master says: no, it is right, no, it is wrong, it is the same amount as charged or some other figure. But ultimately there is bound to be a figure you are going to have to pay and Mr Millar is asking me to make an interim payment on account -- or asking you to make an interim payment and for me to order it.

THE PETITIONER: Your Lordship, as I said earlier on I am content for this matter to go to detailed assessment. Obviously that will happen in due course. In relation to the payment on account, I can only offer 10% at this stage. In view of the fact that I've already outlaid quite a substantial sum to my barrister, who subsequently could not, was not available. Therefore that is the amount that I can offer at this stage.

THE COMMISSIONER: I understand that. The fact of the matter is that you took these proceedings on, you took the risk of these proceedings on, that that the Respondent, in all fairness, has had to incur costs which he has had to bear and it is unfair for him to be kept out of pocket for longer than is necessary. In those circumstances, what I propose to do is to make an interim order that you will pay on account of these the sum of £40,000 on account within 28 days.

MR MILLAR: I am grateful, sir.

THE COMMISSIONER: Does any other matter arise? As a matter of process therefore, as you will know, the obligation under the Act is for me to make my determination forthwith to those who appointed me to determine this matter and, as I said in my judgment, I will do that in short form when I get back to London. The judgment will have to be transcribed, approved by me and when it is approved by me that will obviously be forwarded. That will constitute my report. As I said before I do not see any need here to make a special report. So unless there is anything else which arises, it only remains for me to thank you both very much.

MR MILLAR: Shall I draw up an order simply for the dismissal of the Petitioner on costs?

THE COMMISSIONER: I think that is probably sensible Mr Millar, yes. Then I can sign that off tomorrow and that will be back in London rather than here.

MR MILLAR: Very well.

THE COMMISSIONER: All right I shall leave these papers here. I have a duplicate set in chambers.