Erlam & Ors v Rahman & Anor

On 28 July 2014, following the hearing by the Divisional Court (Supperstone and Spencer JJ) of the strike out application and the application to adjourn the application for a protective costs order (see Case No: M/350/14) I heard the Petitioners’ application dated 9 July 2014 for the trial of the petition to take place outside the London Borough of Tower Hamlets (“the Borough”).

On 29 July 2014 I announced my decision, dismissing that application. I now give my reasons for the decision.

Parliament has specified that the place for trial is the constituency in the case of a parliamentary election or the local government area for a local government election: sections 123 and 130 of the Representation of the People Act 1983 (“the 1983 Act”). Allowance has been made for the possibility of the High Court ordering a trial to be elsewhere. Section 130(6) provides as follows:

“The place of trial shall be within the area of the authority for which the election was held, except that the High Court may, on being satisfied that special circumstances exist rendering it desirable that the petition should be tried elsewhere, appoint some other convenient place for the trial.”

The grounds of application are stated to be three-fold:

In support of his submission that “special circumstances” exist rendering it desirable that the petition should be tried elsewhere than in the Borough, Mr Francis Hoar, for the Petitioners, relies, in particular, on two witness statements made by Councillor Peter Golds, the leader of the Conservative Party Group on the Council.

Mr James Laddie QC, for the First Respondent, submits that in order to succeed in this application the Petitioners would have to satisfy each of the following steps: (1) demonstrate that there is a real risk of disorder or intimidation of witnesses if the trial was to take place in the Borough; (2) demonstrate that there was some reason not to trust the police and courts to safeguard the participants in such a trial; and (3) demonstrate that the participants would be safeguarded from intimidation via the expedient of moving the election court a couple of miles down the road to the Royal Courts of Justice, which is where the Petitioners contend it should be held.

Mr Hoar relies on passages in Mr Golds’ witness statements in support of his submission that the first two of Mr Laddie’s three pre-conditions are satisfied. In his first witness statement dated 15 July 2014 at paragraph 5 Mr Golds states:

“I have over the past decade sent numerous letters to the police and the electoral authorities, many of which have been ignored or simply brushed aside. I have watched and indeed assisted journalists who have investigated blatant electoral malpractice, to no avail. …” (see also paras 6-7 and in exhibit PG1, the letter from Councillor Golds to Mr Tom Hawthorne, Head of Electoral Policy at the Electoral Commission dated 5 June 2014, in particular, in relation to the use of the Troxy for counting purposes and events at Mile End Leisure Centre on 25-26 May 2014).

In his second witness statement (unsigned, but approved on 25 July 2014) Mr Golds states:

“5.

Since becoming a Tower Hamlets Councillor in 2006 I have seen a steady deterioration in behaviour at meetings of the Council, emanating from… specific groups who congregate in the public section of the council chamber.

…

7.

From the very first meeting of the council, following the election of the mayor in October 2010, the situation became increasingly threatening and intimidating. Tower Hamlets First supporters attend in large numbers and regularly abuse opposition councillors, often this is in Bengali, but frequently in English.”

At paragraphs 8-13 of his second witness statement Mr Golds refers to racist and homophobic abuse that he has been subjected to. His statement continues:

“14.

The scenes at both the recent counts and indeed at polling stations show how unpleasant politics can be in this borough.

15.

I therefore strongly oppose holding any hearing at the Town Hall, as I believe that the atmosphere and actions will not be conducive to the discharge of the law.”

In addition Mr Hoar relies upon exhibits to Mr Erlam’s witness statement dated 24 July 2014 which refer to the scenes at the election count which required “a heavy police presence … as a huge crowd of [the First Respondent’s] supporters gathered outside the venue, where results were not announced until late into the night”. The “atmosphere was crackling with energy… as the enormous turnout of the Bangladeshi community that were present broke into celebrations in the street”. At one point there was “quite a ruckus outside as many of those who had gathered to show their support for the First Respondent, now wanted to be inside the building to show just how supportive they were”. That was said to be “an idea that the police weren’t particularly happy about. “The ensuing drama meant that at one point, nobody was allowed in or out of the building by police”. Mr Hoar also referred to a blog by Mr Kazim Zaidi, who had been an adviser to the First Respondent, who wrote:

“The last six years in Tower Hamlets have been nothing more than a civil war that got out of hand; it spilled out of the Labour Group room and into the Council chamber. If those who still seem unable to accept the result continue as they are, it will spill out onto the streets where even the cleverest machine politicians will not be able to manage it.”

Further evidence as to there being a real risk of disorder or intimidation of witnesses if the trial were to take place in the Borough, Mr Hoar contended was to be found in the witness statement of Ms Gloria Thienel, an elector. In her view there was an inadequacy of police at the polling station she had attended (see paras 3 and 4), and the Troxy was a totally inappropriate venue to cope with the number of people that were allowed in, many of whom should not have been there (see paras 11-13).

Finally Mr Hoar referred to the witness statement of Mr Randal Smith, another elector, who states at paragraph 3 that he

“witnessed a case of misrepresentation … no later than 10 May 2014 by a man called Mufti Miah who was a candidate for Lufthur Rahman’s Tower Hamlets First Party in Bromley North ward. Miah told me directly, ‘John Biggs is not Labour. He left the Labour Party 25 years ago. I am Labour’. … Mufti Miah has never been a member of the Labour Party. Furthermore, he alleged that Zenith Rahman and Khales Ahmed – the local Labour candidates – cannot speak English which is also untrue.”

Mr Smith states he reported this to the police, but his impression was they did not take the matter seriously at the time (para 4).

Commenting on the evidence Mr Laddie makes the following points: (1) there are competing accounts of what did occur during the election and the count. The First Respondent in his witness statement dated 22 July 2014 refers to “a strong police presence on polling day on 22 May 2014 with an officer posted to each polling station in the Borough” (para 8). Further the First Respondent states that although he does not have first-hand knowledge, since he was involved in the count inside, he does not accept the crowds outside the count were intimidating; independent reports suggest otherwise (para 30). (2) There is no witness statement from Mr Hussein concerning the allegation that Mr Hussein was subject to intimidation and harassment at his shop, despite the fact that he is one of the petitioners. The First Respondent says “I do not know who it is said has been intimidating and harassing Mr Hussein but it is certainly not done by me or with my authority or by anyone within my control. It is conduct which, if true, I deplore” (para 27). (3) Ms Thienel was an unsuccessful candidate in the local government election although she does not refer to that fact in her witness statement. (4) The statement of Mr Smith was only served on 24 July 2014, there being no explanation as to why it could not have been served at the time the application was made.

Mr Hoar submitted that the evidence before the court established that the Town Hall was a wholly unsuitable venue for the hearing, that witnesses who will be giving evidence against the First Respondent were likely to be intimidated by supporters in the way that voters were intimidated at the election, and that there was a suspicion that the local police force was totally inadequate for the purposes of exercising control and ensuring an orderly trial, and indeed they displayed a lack of interest in so doing. Mr Hoar submitted that it was necessary for the hearing to take place at the Royal Courts of Justice in order that witnesses would be safeguarded from intimidation.

I reject this submission. The evidence, in my view, falls far short of establishing the special circumstances that would warrant moving the trial from the Borough. In reaching this conclusion, I agree with the observation made by Mr Timothy Straker QC, for the Second Respondent, that the long-standing provision in primary legislation requiring local trials indicates that the concept of special circumstances is unlikely to embrace a concern about the number of attendees or the passion excited by political circumstances which creates potential for public rowdiness. Section 131(2) of the 1983 Act gives the Commissioner who hears the petition power to require “all constables and bailiffs [to] give their assistance to the court in the execution of its duties”. The Commissioner can discuss issues of security and policing with the Commission of Police of the Metropolis so as to best ensure that witnesses who give evidence are not intimidated. Further, as Mr Straker points out, the Commissioner hearing the trial may request the Director of Public Prosecutions “by himself or by his assistant or by his representative”, who may include a barrister or solicitor nominated by him, attend the trial if there are concerns, for example, about witness intimidation. (S.181(2))

Mr Straker took issue with the suggestion that the Town Hall is not an appropriate venue. If the Commissioner considers it to be inappropriate at any time he “may in [his] discretion adjourn the trial from one place to another within the local government area or place where it is held” (s.130(7)).

Both Mr Laddie and Mr Straker emphasised the importance which Parliament has placed on the local electorate seeing that justice is being done and being able to participate in the process. To many ordinary electors in Tower Hamlets the Royal Courts of Justice in the Strand will appear, as Mr Straker observes, “a world away”.

In my judgment, for the reasons I have given, no special circumstances exist to justify fixing the place of trial outside the Borough. Accordingly this application is dismissed.

When giving my decision on 29 July 2014 I also referred to the Petitioners’ application to fix the date of the trial and stated that I do not consider that it is appropriate to fix the date before the further particulars that the Court ordered should be given have been provided. I stated that in any event a Commissioner will now be appointed to hear this petition and it will be for the Commissioner to fix the date of the hearing. Indeed Mr Richard Mawrey QC has now been appointed as Commissioner to hear the election petition.

Finally, on 29 July 2014, having heard submissions from counsel, I gave directions with regard to witness statements and production of documents (see paras 7-12 of the Order of 29 July 2014).