Hussein & Ors v Khan & Ors

On 17^th August 2005, the Petitioners lodged an Election Petition questioning the result of a by-election in the Aston Ward of Birmingham City Council held on 28th July 2005. The allegations are that the election was avoided by corrupt or illegal practices. By s164 Representation of the People Act 1983, an election can only be avoided on those grounds where the practices prevailed so extensively “that they may reasonably be supposed to have affected the result.” Three Liberal Democrat candidates were successful by margins of 185, 148 and 9 votes over the Labour Party candidate who came fourth, followed by two other Labour candidates. The three Liberal Democrat candidates, now Councillors, are Respondents to the Petition brought by five ward voters and Labour Party supporters. There is a fourth Respondent but the Petitioners do not pursue the Petition against him; the Returning Officer is not a Respondent and no allegations are made against him.

The by-election followed the decision of Mr Mawrey QC sitting as the Commissioner that the previous elections in this and one other ward should be declared void. That election had seen the defeat of at least one incumbent Liberal Democrat by the Labour Party, but it had been declared void on the Petition of Liberal Democrats because of large scale electoral malpractice by Labour supporters, revolving around postal voting.

It was suggested by the Respondents that the Petition now brought by Labour supporters against the successfully elected Liberal Democrats, including the previously defeated incumbent, was a form of reprisal. Whether that is so or not, the wording of their Petition was identical to the one served by the successful Liberal Democrats in 2004, save for one egregious and specific event which was not alleged against the Liberal Democrats.

The many, varied and overlapping allegations in the Petition were considered at a Directions hearing on 28^th October 2005 by Stanley Burnton and Jack JJ. The Petitioners had provided through Mr Berry, their counsel, a note which explained how some of the allegations would be supported, and provided particulars of some of the allegations made. They also made an application for disclosure by the Returning Officer of a very large number of documents, which appeared to range rather beyond the scope of such allegations as had been particularised in Counsel’s note. The Returning Officer had offered to provide inspection and copies of most of the material sought, in so far as he had it. He does not appear to have been requiring a Court order before the material was disclosed in connection with the Petition.

The Court ordered that the application for Directions be adjourned to a date to be fixed, on the undertaking of Counsel for the Petitioners to cause to be served and filed, within 21 days of the Order, a draft amended Petition setting out full particulars of the allegations made against the Respondents, discontinuing if appropriate the claim against the fourth Respondent, and joining the Returning Officer.

On 17^th November 2005, the Petitioners’ solicitors wrote to the Court seeking an extension of time for serving and filing their draft amended Petition. They said that the Petitioners were making an application for public funding and, for that reason, they should no longer be relying on informal donations. So they sought an extension of time until after the LSC’s decision on funding. They sent copies to the four Respondents seeking their consent, which they did not give.

The Court informed the Petitioners’ solicitors in a letter of 30^th November 2005 that Stanley Burnton J had decided that they should lodge an application for the extension of time. But they have made no application at any stage.

The adjourned Directions hearing was fixed for 27^th January 2006. On 11^th December 2005, Mr Khan acting in person and for the other Respondents lodged an application to strike out the Petition for non-compliance with the Order. On the day of the adjourned Directions hearing, an “Election Petition with Further and Better Particulars” was handed to the Court by Mr Berry, together with a statement from Mr Hussein, one of the Petitioners, seeking to explain the delay. The Petitioners agree that it is inappropriate to proceed against the Fourth Respondent and wrote to him saying so on 31^st October 2005, but adding that they were taking advice as to whether the leave of the Court was required. No further steps have been taken. The Returning Officer has not been joined although he is aware of today’s proceedings.

An extension of time for compliance with the Court’s Order is sought up to the date of the hearing, because, according to the statement of Mr Hussein, after the previous hearing they were advised by their solicitors that they would need funding, and that all the private funding had been utilised by the conclusion of the hearing on 28^th October 2005. They have applied for public funding and because of difficulties in completing the forms there has been further delay. Mr Berry said that the Court, when making its previous Directions, had not been told of the exhaustion of the private funds on 28^th October 2005, although the letter to the Court of 17^th November 2005 said that it had been intimated at Court, which could have meant that it had been communicated to the Respondents alone, that the Petitioners were making an application for public funding. Neither he nor his solicitor, appearing pro bono, were able to say and Mr Hussein’s statement was silent as to when the applications were actually sent to the LSC. There was no correspondence with the LSC which explained its concerns or attitude towards funding an election petition case or its timetable for decision. It would not be normal for it to fund such a case, but Mr Berry said that the Petitioners were trying to persuade the LSC that the postal voting issues created a wider public interest through the effect on this Ward by-election and on other elections generally.

Mr Berry submitted that it would not yet be appropriate to strike out the Petition. The further timetable could be strictly controlled and in the meantime, notwithstanding what had been said, the Petitioners could continue to make progress using third party funding which would become available again, depending on the outcome of this hearing. There might be criticism of his new document but there was enough material there to mean that the Petition should continue. He was not seeking scrutiny as such in order to change the result of the election by substituting another candidate as the winner; the Petitioners wanted the result declared void. But a scrutiny was necessary in order to see how widespread were the malpractices which they could at least in part prove.

Mr Khan objected to the extension of time because it was essential in election cases to recognise the need for speed in determination. These were serious allegations, they had been hanging over the Respondents in their role as Councillors and in his case as a Bar student hoping to obtain pupillage. The Labour Party was trying to make political capital out of its allegations and would continue to do so into the May 2006 Council elections in which one of the Respondents would face election again. The Respondents themselves had no funding but were still expected to deal with the case. There was no wider public interest which could persuade the LSC to fund this Petition, since it had funded the previous election petition which had raised and dealt with all the issues of public concern over postal voting. LSC funding had been refused to others making similar allegations. The Petitioners had failed to show they had a case and that could be demonstrated from a “Marked Register Report” which he provided. The Petitioners had made no allegations of substance which could warrant the case continuing.

It is clear that the time limits for bringing election petitions are strict. S 129 of the 1983 Act prescribes 21 days from the date of the election being questioned, and that time cannot be extended. The Election Petition Rules 1960 SI No 543, as amended, provide in Rule 4(1) (d), that the petition must state the grounds on which relief is sought “setting out with sufficient particularity the facts relied on but not the evidence by which they are to be proved.” So that is a requirement to be met within 21 days, although Rule 2(4) introduces the provisions of the CPR to the disposal of petitions. Rule 19 (1) applies the provisions of Part 3.1(2) (a) CPR, extensions of time, to any period prescribed by the Rules.

Mr Berry referred to the provisions of Part 3.4(4) CPR and the associated commentary in resisting the application to strike out on the grounds of the breach of the Order.

I recognise that a refusal of Mr Berry’s application for an extension of time for lodging the new particulars would lead to the Petition being struck out because, in its original form, it is wholly inadequate and the Order that particulars be provided within a set time has not been complied with. The refusal of an extension of time would mean that the Petition’s manifest deficiencies could never be rectified. Its form would mean that it would be certain rather than simply likely to obstruct the just disposal of proceedings, in the terms of CPR Part 3.4 (2) (b).

Two public interests therefore could be in conflict. The first is the strong interest in ensuring the propriety and freedom from corruption of elections, and that those elected are duly elected. The second lies in ensuring that elections petitions are dealt with speedily, in the interests of the electors, the elected, and the functions which they perform. The extension of time cannot be determined solely therefore by the reasons for the delay, unpersuasive though they are by themselves. The strength and merit of the case which the Petition discloses needs to be brought into account, although at this stage and after the directions of this Court on 28^th October, the degree to which the allegations have been particularised is by now very relevant.

I therefore turn to consider the allegations in the revised draft Petition. The allegations start with some complaints which are particularised to some degree, and which reflect several of the matters which were referred to in Counsel’s Note for the last hearing. Thereafter, most of the original allegations are repeated, but without any further particularisation; a handful of them have been dropped but they may appear as evidence in support of the remaining allegations. There has been no attempt to relate those allegations which have been to some degree particularised to the general allegations with which the revised Petition ends and which were the whole substance of the original Petition. The new draft has eschewed the format of a series of general allegations each followed by particulars.

The most common allegation is that voters’ names were placed on the postal or, in statutory language, absent voters list when they had not applied to be on it. Sometimes, consequences are alleged to flow – not that the ballot papers were not received or that they were intercepted or altered, nor that someone voted in person in their stead, but that some voters who tried to vote in person were unable to do so.

It may be helpful at this point to describe the legislation governing registration on the absent voters list and absent voting – the Representation of the People Act 2000 s12 and Sch 4, and the Representation of the People (England and Wales) Regulations 2001 SI 341. By Sch 4 para 8 of the 2000 Act, a person, who in any declaration or form used for any of the purposes of the Schedule makes a statement he knows to be false, commits an offence. The Schedule provides, by para 8, for applications to vote by post. Reg 51(2) of the 2001 Regulations requires that an applicant shall make certain statements, and, by reg 51 (3) that the application shall be made in writing and signed and dated by the applicant. Sch 4 para of the 2000 Act requires the registration officer to keep an absent voters list. This is a list of those whose applications to vote by post have been granted. It must include the addresses provided by them in their applications and the addresses to which their ballot papers are to be sent. By reg 61 of the 2001 Regulations, those lists must be provided free of charge on request to each candidate or his election agent. Reg 62 requires that any part of copy of the electoral register at a polling station must be marked to indicate that an elector is entitled to vote by post, and so not entitled to vote in person, whether or not he has returned the postal ballot uncompleted. A letter A is to be placed against his name for that purpose and the register is known as the marked register.

An allegation that a voter is on the absent voters list when he has not himself applied to be on it is in effect an allegation that someone has made an application in his name, and that the accompanying statements were false. That is an offence.

It was not suggested by Mr Berry, rightly, that irregularities in the absent voters list, albeit amounting to offences, fell without more within s164. Those offences might be the precursor to theft of ballot papers, or impersonation by post but they were not within that section.

That is because s164 is concerned with the election campaign and the conduct of voting in the election itself. It is not concerned either with irregularities in voter registration, for which the 1983 Act, as amended by the 2000 Act, provides a correction mechanism, or with irregularities or offences in the absent voters list, which is made available to the candidate or his agent.

This is supported by the language of the 1983 Act. Some acts are stated to be “corrupt practices”, and certain offences, but not all are defined as “illegal practices”. By s60, personation is a corrupt practice; by s61(7) certain voting offences eg voting when not entitled to vote, are declared to be illegal practices. Curiously, tampering with ballot papers is an offence but not a declared illegal practice (s65), though false statements in nomination ‘papers’ are such a practice (s65A). This distinction between offences which are and are not corrupt or illegal practices is apparent in a number of sections. S84 declares certain offences to be illegal practices, but s97 can be contrasted with ss99 and 100. SS106-115 deal with other corrupt and illegal practices, including “undue influence” which is given a particularly broad meaning: “any fraudulent device or contrivance [which] impedes or prevents the free exercise of the franchise of an elector.”

I would accept that the concept of “undue influence” may be broad enough to cover the situation where a voter, who has been put on the absent voter list as a result of a false statement, has not voted by post, whether or not he has received a postal ballot paper, and subsequently tries to vote in person but is necessarily refused a vote in person under the statutory provisions because he is on the absent voters list.

Paragraph 7 of the revised draft Petition contains allegations relating to fourteen voters in five households at five addresses. All allege that they were on the postal voters list or, in statutory language, the absent voters list, when they had made no applications to be on it. They appear to be the voters of whom the Labour Party has knowledge because they are its supporters.

The particulars of 236 Albert Road are silent as to whether the voters tried to vote or whether any vote was cast purportedly in their name. The Petitioners’ sole complaint is that they were on the postal voters’ list. At 4 Bevington Road postal votes had been applied for without the residents’ knowledge, which they had returned stating their intention to vote in person. The particulars allege that they were unable to vote in person; the evidence submitted by Sir Albert Bore, the leader of the Labour Party on Birmingham City Council, relied on by Counsel for the Petitioners at the last hearing was that only one from this address had tried to vote in person. The law prohibits someone on the absent voters list voting in person. So it was right, even though they had sent back their postal ballots unfilled in (I assume though the particulars do not actually say so), that they were unable to vote in person. It is not alleged that anyone voted in their stead. This may allege undue influence in respect of up to three voters, which does fall within s164. There is no allegation that they complained at the polling station but that would have been important in enabling the allegation to be proved or dealt with by Respondents.

At 4 Jardine Road, two of the three voters actually voted; the particulars do not say whether that was in person or not. One did not vote but the particulars are silent as to whether she tried to vote or whether anyone voted in her name. At 8 Jardine Road, the particulars do not say whether anyone tried to vote and was unsuccessful or whether anyone voted in their names, although it is alleged that a Liberal Democrat worker asked one of them to sign a postal vote application form, who refused to do so. At 16 Dovehouse Pool Road, there are four people registered to vote, according to the evidence from Sir Albert Bore but the allegation that they did not apply to be on the absent voters list are made only in respect of three. The fourth he says did not vote. The postal votes of two were disregarded because of invalid declarations of identity. The particulars are unclear as to whether that is because someone else is said to have filled them in. He also says that the third one voted although the particulars are silent about that.

After each reference to what happened in each of those households, such as it is, the particulars add, in very much the same form for each household that “the questions of who filled in postal vote forms on their behalf, whether the postal votes were cast, and whether the handwriting on the forms can be found on other postal voting forms and attributed to a particular individual require consideration.” This is intended to support the argument that the particularised allegations are but the tip of what might be revealed by a scrutiny of the applications and actual votes.

Save for 4 Bevington Road, these are inadequate particulars. The allegations that voters were on the postal list when they had not applied to be on it, do not by themselves constitute allegations of corrupt or illegal practices. They are no more than stepping stones on the way to such an allegation. They do not refer to any candidate, agent or individual who engaged in putting people on the list when they did not want to be on it, so there are no particulars of anyone who could be the subject matter of a report by the Commissioner under ss158 to 160 of the 1983 Act. The allegations do not particularise any responses to the letters sent by Mr Hughes, the Chief Executive of Birmingham City Council, to those registered on the list after Commissioner Mawrey QC’s decision, to see if they wanted to come off it or to stay on it; see the Statement of Mr Hughes dated 20^th September 2005. The allegations about what Liberal Democrat workers and candidates did, do not assert any illegal practice, treating or undue influence, whatever view may be taken about the desirability of such behaviour.

There are therefore no more than three voters in respect of whom paragraph 7 makes adequately particularised allegations of activities which may fall within s164. They are the three who were unable to vote in person because they were on the absent voters list. The other particulars do not identify any actions which fall within s164.

Mr Berry put great faith in the request for a scrutiny which would reveal what he had not been able to particularise. However, the particulars are generally silent about whether or not ballot papers were received or sent back, filled in or not. There is no particularisation under paragraph 7, except for the allegation at 4 Bevington Road, of individuals who were unable to vote whether because of votes falsely cast by others by post or in person or because they were seeking to vote in person while on the absent voters list. The Petitioners ought to have been able to ascertain all this from the voters, without a scrutiny. There has also been no attempt between the two hearings, so far as we have been told, to contact the Returning Officer to see whether the documents which he was willing to make available could aid greater particularisation.

I might have had greater sympathy with Mr Berry’s contention if he had demonstrated that the absence of a scrutiny had prevented his ascertaining the position as to votes cast in respect of the households relied on under paragraph 7 so that it could be particularised. I would be very surprised if voters could not check whether votes were cast in their name. They could at least all say whether or not they had tried to vote.

Mr Khan, by contrast, produced the “Marked Register Report” dated 4^th August 2005 to assist on this point. Mr Berry said it could not be determined which election it related to but that struck me more as a defensive sally than a sound point; e.g. the Report shows the named votes cast from 4 Jardine Road to be exactly as the particulars allege, and the rejection of the two Declarations of identity at 16 Dovehouse Pool Road are in the same names as alleged in the particulars, either of which would be quite a strong coincidence, and together are more probative, especially when taken along with what is shown in relation to an allegation particularised under paragraph 8. This report does not support any implication in the particulars under paragraph 7 that votes were cast which should not have been cast.

But the real problem for Mr Berry is that there was no evidence from him that better particulars could not have been provided without the scrutiny, and there is evidence from Mr Khan’s endeavours that at some stage there was rather more information about the voting at this election than his pleas contemplated. Rule 48 of Schedule 2 to the Local Elections (Principal Areas) Rules 1986 SI 2214 is particularly pertinent. It provides for public inspection, without the need for a Court Order of the less individually sensitive records which the returning officer must keep: notably votes lists and the marked register.

I turn now to the particulars in paragraph 8 of the revised draft Petition which cross refer to the statement of Sir Albert Bore. This is said “to give instances of irregular electoral activity”. There are 18 instances or properties involving a total of 53 voters, some of whom appear to be Liberal Democrat supporters and so information for the Petitioners about them may be harder to come by. As with the particulars in paragraph 7, there are a number of allegations of offences under paragraph 8 of Schedule 4 to the 2000 Act, which, taken by themselves, fall outside s164.

The first alleges that the Liberal Democrat candidate and Third Respondent entered a house where five voters were registered. The particulars continue: “It is suggested that he was helping candidates to complete postal ballot papers.” The fourth and eighth allegations are in a similar vein. Mr Berry did not suggest that that was necessarily wrong in itself, but it was alleged that the handwriting on those papers would be a useful comparator for papers related to other addresses which are at issue. There is no allegation of illegal electoral activity. It is not alleged that ballot papers went astray.

The second alleges that there was a listed postal voter at a particular address, but the particulars are silent as to whether he voted or not or tried to, although the probable implication is that he did not. The particulars do not say whether or not anyone voted in his stead, or whether ballot papers arrived or were completed and returned. Again it is the handwriting on the application form for a postal vote which is said to be relevant as a comparison, even though the particulars do not allege that the occupant did not apply to be listed as a postal voter. It is difficult to see what allegation of wrongdoing is being made here. No proper or adequate particulars are given any way. Allegation twelve is similar.

Allegations eleven and thirteen are again similar, save that it is said that the voters did not apply for a postal vote and in the latter there is also a specific allegation that the signature on the postal vote application was not that of one of the voters. But there is no allegation that anyone voted on the postal ballot papers, or was unable to vote because their name was on the postal list. No allegation is made that ballot papers were not received when they should have been or that they were returned completed but did not arrive or were discounted. This does not take matters beyond an allegation of an offence under paragraph 8 of Schedule 4 to the 2000 Act.

At 38 Aldersea Drive, the third instance, three voters on the postal voter list voted. One, a Liberal Democrat registered polling agent, is alleged to have voted by post from another address as well, an address at which it is said that two others were listed for a postal vote, and voted by post, without being resident there. The alleged double voting agent is Ahmad Ali of 3 Coombe Road; he is the Fourth Respondent, against whom proceedings are to be discontinued as he was not elected. That is a clear allegation of an election offence, and an illegal practice; s6 (2)(a)(i) and s61(7). Voting where registered, even if not resident, is not an offence. (For what it is worth, and Mr Berry would say that it was very little, according to the “Marked Register Report” which Mr Khan produced, the names alleged to be registered at 3 Coombe Road were registered there and did vote, including someone of the same name, Ahmad Ali, as one who voted from 38 Aldersea Drive.)

The fifth allegation is that at another address, four voters were on the postal list without their knowledge. This allegation is similar to the allegation in respect of 4 Bevington Road under paragraph 7: someone who tried to vote in person was unable to do so; and he was not entitled to do so. That may be an allegation within s164. There is no allegation that any complaint was made at the polling station about this inability to vote because he was on the postal voters’ list. Yet that would be important in enabling others to respond to the allegation. There is no allegation so far as the other three registered to vote are concerned beyond the fact of their names appearing unasked on the absent voters list. There is no allegation about whether ballot papers were or were not received or whether votes were cast in any of the four names on the register.

The sixth allegation by contrast says that four voters at 70 Selston Road had no knowledge of applying for postal voting forms but nonetheless all voted. It is not alleged that they voted in person, which would have been an offence and an illegal practice. I read it as the voters taking advantage of what arrived in the post. There is no allegation that someone else voted for them, but the handwriting on the application forms is said to have potential as a useful comparator. There is no allegation of electoral malpractice within s164 here.

There is a specific allegation that at 28 Victoria Road, three of those registered to vote do not live there, and that it was the fourth person who completed their application forms and ballot. A false statement on the former is an offence under Schedule 4 para 8 to the 2000 Act, but falls outside s164. The handwriting was said to be potentially useful. Completion of the ballot could constitute an allegation of malpractice within s164 if the signatures were not those of the voters, or the contribution of the fourth person went beyond advice on completion into undue influence, or taking the ballot papers. However it is not adequately particularised.

13 Dolman Road illustrates the unsatisfactory nature of the allegations. Two persons received their postal ballots in the usual way but claim that they “went missing” before completion. There is no allegation that the matter was reported or that anyone has voted in their stead. 39 Beacon Hill is no better. It is alleged that “It appears” that two postal applications were made for the occupier. There is no reference to what happened to any ballot papers or votes. Neither are allegations of corrupt or illegal practices within s164.

At 14 Jardine Road, the registered voters are said to have no knowledge of applying for postal votes and one was “disappointed to be deprived of a vote at the polling station.” I do not think that it is unduly pernickety to point out that there is no allegation that he tried to vote, although that is said in relation to a few others. This is not merely technical because if he had tried to vote in person and had been refused because he was a postal voter, he should have complained at the polling station and there should have been a record kept of his complaint. This is no allegation of acts falling within s164, malpractice and certainly not one which has been particularised adequately.

The allegation at 31 Jardine Road is wholly unclear. It appears to be alleged that the three voters voted, but it may be intended to say that others voted from that address and that the three registered there only voted by virtue of their registration at a new address to which they had moved. The same plea is repeated that the handwriting of Liberal Democrats at whose “behest”, whatever that may mean in this context, the application for postal votes was made, may be of assistance as a comparator. I do not see this as an allegation of electoral malpractice, within s164.

Allegation 16 is that the occupier of another address did not complete a postal vote. The implication may be that someone else did but it is strange that that is not said. At 5 Shirebrook Close the three voters are all said to have voted but to have no knowledge of requesting postal votes. No allegation is made that votes were cast in person or by post other than by those three. Finally, all that is said in the eighteenth allegation is that Abdul Farooq “is not known to be resident” at 74 Kenilworth Road. The implication may be that he is on the register of voters there, and that he should not be, but nothing is said about whether he voted. These do not constitute allegations of malpractice, particularised or otherwise, within s164.

Although there follows what is claimed to be a summary of the above allegations, it rather overstates the allegations actually made, most of which are to the effect that people were listed for postal votes when they had not applied to be so listed. The allegations do not in general go on to make any specific allegation that someone voted who should not have done, or that someone was unable to vote because the postal ballot went astray, or because he did not know that he was on the postal vote list and was unable to vote when he attended in person. Still less are there allegations that the person attending found that someone else had already voted. There are not in general allegations that ballot papers were not received or were sent off and not counted.

So, there is one clear allegation of illegal voting by one person, which affects one vote. It would also be an offence. There is nothing to suggest that it has been reported to the police. There is an allegation in respect of another voter who was unable to vote in person when he tried, which may allege undue influence within s164. The other allegations cannot found a Petition and if they were intended to allege electoral malpractice, are wholly inadequately particularised. The points which I have made about a scrutiny and what might have been discovered by the Petitioners through other means is relevant here too, although there may be more Liberal Democrat supporters among the voters considered under paragraph 8. The total of particularised allegations within s164 under paragraphs 7 and 8 affects at best five voters, and six votes if both of those allegedly cast by the agent were to be discounted.

The new draft Petition then makes general allegations that the election was void by corrupt or illegal practices, and by general corruption and because of the employment of a corrupt agent. That presumably relates to the third allegation in paragraph 8 for it is not otherwise particularised. Nonetheless, the Petition continues that the Election Court should make a report as to candidates and agents (unspecified) found guilty of corrupt or illegal practices, and identify those practices which have “extensively prevailed at the election.”

Paragraph 11 repeats, with very little alteration, 11 out of 15 allegations in the original Petition of which particulars had been ordered. There is no attempt to relate those allegations to the allegations “particularised” in paragraphs 7 and 8 of the new version. Paragraph 12 likewise asserts baldly that some votes were cast under “undue influence”, and others were taken without the voter’s knowledge. A scrutiny hearing is sought, not as the remedy whereby votes may be added to or subtracted from those cast so as to yield a different winner, but as a means of garnering evidence, to be considered by handwriting experts, about the scale of these generally alleged malpractices.

I now turn to consider whether extensions of time should be granted for the various particulars described above. I start with paragraphs 11 or 12 which are the most straightforward as they simply repeat, without any particulars, most of those allegations which the Petitioners were ordered to particularise. The Petitioners have had ample opportunity to put their case into order in the new draft and in respect of those allegations, it is no further forward. I would not grant an extension of time for the service of particulars which merely repeated those allegations in the form now shown in the new draft. I see no reason for yet another extension of time for further particulars of those allegations to be drafted. Such a further extension would inevitably have to be ordered if those allegations were to remain. The delays thus far, and the uncertainties over funding, would add to my concerns about the effective length of such an extension. These allegations are mere copies of what was alleged in the earlier Petition by the Liberal Democrats. The continuation of those allegations, wholly unparticularised despite the Order, in the further draft Petition, in my view, constitutes an abuse of the process of the Court, and would make it very likely that any other surviving parts of the Petition could not be disposed of justly. The Respondents would have to consider all the time what else might emerge from those allegations for them to deal with as a result of any scrutiny process. So whatever extension might be contemplated in respect of paragraphs 7 or 8, I would exclude those other two paragraphs from the Petition.

Putting to one side for the moment the three particularised allegations of electoral malpractice within s164, I can see no sufficient basis for extending time for the service of the other particulars in paragraphs 7 or 8 of the draft petition, although their late provision is not so nonchalantly defiant of the Court’s Order as is the repetition of the allegations in paragraphs 11 and 12. If other allegations of electoral malpractice within s164 are intended, they do not appear from the particulars provided. The Petition, with those three exceptions, would still not meet the requirements which are supposed to be met within 21 days of the election. So any extension of time for the service of these particulars would have to be followed immediately by a further Order to do what was ordered in October, and a further extension of time in which to comply. If that were not done, the Petition almost in its entirety would fall to be dismissed as showing no reasonable case, or as one which was very likely to obstruct the just disposal of the case.

Again I am very doubtful as well that any useful improvements would be forthcoming, let alone within any reasonable timeframe: the Petitioners have already taken far longer than they were permitted to take by the Court to produce what little they have done; there is no basis for supposing that they could do any better in the absence of legal funding; and there is no timeframe for the decision-making by the LSC. I note the very inadequate material submitted in support of this extension on that aspect. It verges on deliberate silence about the speed at which the Petitioners have moved and the length of time which the funding process could take. I am very uncertain that the LSC, considering this as a matter of the wider public interest, would regard this as a case for funding. I am very sceptical about the renewal, alternatively, of third party funding in the light of what Mr Hussein’s statement says was the position after the last hearing. Their whole stance, as demonstrated by the terms of the draft petition, is that a scrutiny of the votes is necessary in order for them to have a better particularised case. That suggests very strongly that, even with legal funding, no further particulars would be forthcoming.

Mr Berry’s first answer to these points is that the time has not yet come for what would in effect be a strike out. The Petitioners should be given a little more time, on strict terms. I do not agree. I am not persuaded that they should be given more time in view of the amount of time which they have already had since August 2005, and the almost complete inadequacy of what has been produced. In the context of the speed required for an election petition, this is a significant delay. The fact that there is a Ward election in May 2006 adds something to the case for speed.

I regard their failure to comply with either the Court Order as to time or its requirement that they make an application for an extension as not insignificant in the assessment of what they would do and of what they ought to be allowed to do. They seek the relief of the Court in relation to one Order, without complying with the modest procedural requirement it imposed for the seeking of that relief.

There is a balance also to be struck which takes account of the public interest in fair elections as well as the position of the Respondents. The public interest is well not served by petitions which do not begin to show a particularised case after nearly five months. I do not see in any material before the Court a basis for supposing, beyond the three particularised allegations, that there is a proper case potentially to be made, which is being thwarted by procedural requirements and a lack of funding, which the Court should be very hesitant to foreclose. There is no evidence of an abnormal turnout (25.9%) and only 6 complaints, according to Mr Hughes’ statement, from electors unable to vote in both ward by-elections held on that day as a result of what Commissioner Mawrey’s decision. There is only anecdotal evidence that the level of complaint was materially lower than on the previous election, but there was a system in operation at polling stations this time enabling those refused a vote in person because they were on the absent voters list unasked, to complain.

The Petitioners appear to have done nothing to investigate with the Returning Officer what more might have been ascertained from the public documents which he has. The points made by Mr Khan on behalf of the Respondents, as to the impact on their function as Councillors and on him personally, are well made. This is not a case in which the position of the Respondents can be protected by an award of costs. This extension of time would be a mere indulgence of the Petitioners who do not deserve it and have no case which the public interest requires to be treated more sympathetically.

I turn finally to the three particularised allegations of electoral malpractice within s164: the alleged double voting agent and the perhaps four voters who tried but were unable to vote in person. The remedy sought is that the election be declared void. That would require particularised allegations of electoral malpractice so prevalent that they might reasonably be supposed to have affected the outcome. But even if two votes were discarded and another four added to the total of the fourth candidate, the outcome could not be affected. The case could not succeed. That is not to say that if the agent has voted twice there is no sanction in the absence of an election petition. It is a matter for the police because voting twice is a criminal offence.

So Mr Berry would seek a scrutiny on the basis that if the agent did vote twice and there are up to four who were unable to vote in person, who knows what other malpractices the agent or other Liberal Democrats might be shown to have committed and how many were in reality prevented from voting in person when they tried; and in a close election the Petitioners would not need to show that many votes were affected for the election to be declared void.

That is not good enough. There has to be sufficient particularity for it to be arguable that the test in s164 of the Act will be met. Scrutiny, if available at all as procedural assistance rather than as the final remedy, must be deployed in support of a proper case and not used as a fishing net. I do not lay down any requirement as to the form of particulars sufficient for that. But there is not sufficient in particulars of those who did not apply to be on the register of postal voters which is the dominant theme in this draft Petition, or in the other fragmentary particulars. At present, Mr Berry has only three allegations which do or could fall within s164. The rest are hopelessly unparticularised if they are intended to make such allegations.

There is also no sound objective evidence of widespread postal voting problems, rather what there is from the Returning Officer suggests that the problems were very limited. If the want of a scrutiny would enable an election to stand, when it may reasonably arguably have been avoided by practices falling within s164, even if not fully identified at the stage of the particularised Petition, that could be a ground for ordering a scrutiny but this is not such a case. Evidence is relevant if the claim seeks a scrutiny as a means of advancing a Petition as opposed to its being an end in itself; there must be material which justifies its grant.

Mr Berry is seeking scrutiny also, in large part, not to invalidate votes cast or to validate votes discounted, but to try to identify handwriting on applications to go on the absent voters list. If the culprit(s) if any, were identified, they might be punished. That is also a matter which the police are able to investigate. But the election would not be avoided, however many he discovered and whoever had been responsible. Scrutiny does not assist him in that respect.

I emphasis that the Petitioners were in a position to investigate voters who tried to vote in person but were refused such a vote because they were on the absent voters list without having applied. That could have been asked of all those who were particularised. It could have been investigated through complaints made at the polling stations. Scrutiny would not help identify those anyway. I repeat that the Petitioners do not appear to have taken any steps to advance their case by reference to the material available through the Returning Officer. Scrutiny is not the first point of remedy but the last.

Accordingly, I would refuse the extension of time sought for the lodging of any of the new particulars. I would in consequence strike out the original Petition as showing no cause of action and because no just disposal of the Petition by a hearing would be possible.

I add, as a footnote, that although Mr Khan and Mr Berry provided what assistance they could, the case would have been assisted by representation on behalf of the Returning Officer and I express the hope that they would generally be represented on Petitions unless the Court has positively indicated otherwise. This could be invaluable if there is to be no public funding of Petitioners or Respondents.

I agree.