England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
MR JUSTICE COLLINS
MR COMMISSIONER MAWREY QC

		Royal Courts of Justice Strand, London, WC2A 2LL
		26 May 2005

Lord Phillips, MR:

This is the judgment of the Court.

Introduction

1. This appeal relates to a judgment of Mr Mawrey QC, sitting as a Commissioner in an Election Court to try two Petitions brought under section 127 of the Representation of the People Act 1983 ('the 1983 Act'). The first Petition related to the Bordesley Green Ward of the Birmingham City Council. The appeal relates to the second Petition ('the Petition'). By that Petition four electors in the Aston Ward of Birmingham City Council ('the Petitioners') sought to set aside the election, on 10 June 2004, of three Labour Party Councillors, Mr Mohammed Nazrul Islam, Mr Muhammad Afzal and Mr Mohammed Amin Kazi. One ground relied upon by the Petitioners for the relief sought was that Mr Afzal had been personally guilty of corrupt and illegal practices in relation to the election.
2. By his judgment of 4 April 2005 the Commissioner found and certified that Mr Afzal had been guilty of corrupt and illegal practices in relation to the election. For this and other reasons he declared the election avoided. Among the consequences that his finding carried for Mr Afzal was that he was precluded from voting in any parliamentary election.
3. Mr Afzal sought permission to seek judicial review of the Commissioner's decision. On 15 April 2005, after an oral hearing, Collins J refused to grant that permission. Mr Afzal sought permission to appeal to this court against that refusal. On 25 April 2005 Brooke LJ adjourned that application with directions that it should be heard on notice by a three judge court, with the substantive judicial review application to follow should permission be granted.
4. It was in these circumstances that the appeal came before us on 3 May. At the outset of the hearing we granted the permission sought and directed that the hearing should proceed before us as the judicial review application. At the end of the hearing we quashed that part of the Commissioner's decision that found Mr Afzal to have been guilty of corrupt and illegal practices and made an appropriate order, thereby enabling Mr Afzal to cast his vote, if so minded, in the pending parliamentary election. Although Mr Afzal's application for judicial review sought much wider relief than this, Mr De Mello who appeared for him did not seek to attack any more of the Commissioner's findings than those which related personally to Mr Afzal. We stated that we would give our reasons for our decision in due course. These are those reasons.

Background

5. Birmingham is the largest local authority in England. It has about 720,000 electors, 11 parliamentary constituencies and 40 local government wards (each comprising about 18,000 electors). Each ward elects three councillors, giving a combined total of 120, one third of which retire by rotation at each election, with the result that there is usually one seat available in each ward at each council election.
6. The 2004 local elections, however, took place following a periodic review of Birmingham's electoral structure which had increased the number of wards from 39 to 40 and made some consequential boundary changes. The result of these changes was that the Statutory Order (which has the effect of confirming the new boundaries) obliged the Council to conduct a "whole council" election – that is, one in which all three seats in each ward were open for election. This was the first time in nearly 20 years that Birmingham had undergone a "whole council" election. Each voter therefore had three votes to cast, one for each seat in the voter's particular ward. The election was scheduled for 10 June 2004. Three months before 10 June 2004, legislation provided that elections to the European Parliament were to take place on the same day.
7. An unrestricted option to vote by post rather than in person was introduced in 2001. In Birmingham, and particularly in the two wards to which the Petitions related, applications for postal votes far exceeded anything previously experienced. In the Bordesley Green Ward, Shah Jahan, Shafaq Ahmed and Ayaz Khan (all representing the Labour Party), and in the Aston Ward, Mohammed Nazrul Islam, the claimant Muhammad Afzal and Mohammed Kazi (again all representing the Labour Party) were elected to the three available seats in each respective ward. A comparison of the 2004 turnout with that of 2003 showed an increase of over 100% in the Bordesley Green Ward and 350% in the Aston Ward. In each ward, the number of postal votes cast greatly exceeded the number of votes actually cast at polling stations. Both wards showed a very large swing to the Labour Party.
8. Following the election, petitions against the results were brought in respect of the results in both these wards. We are not concerned in this appeal with the petition in relation to the Bordesley Green Ward or its outcome. Suffice it to say that in respect of the result at Bordesley Green the Commissioner considered 14 different types of fraud identified by the Petitioners, and considered that, beyond reasonable doubt, each of them had been committed by the Labour Party Respondents. Particularly egregious examples of the types of fraud committed included:

1. An elector who was in prison at the time of the election, neither asked for nor received a postal vote. Nevertheless his postal vote for the Labour Candidates was returned to the Election Office.

2. Two electors, a married couple, were persuaded to sign a form to register for postal votes. They did not receive the voting pack and were told that they could not vote when they turned up at the polling station on polling day. Their postal votes for Labour Party candidates were nevertheless submitted to the Election Office.

3. Evidence from a rival candidate in the election indicated that he saw one of those who were elected as councillors collect a black bag from a postman, which he assumed contained postal votes. In another incident, a postman was seen handing postal votes to the same elected councillor outside a house belonging to his brother.

9. The Commissioner found that there was considerable evidence of the Labour Party candidates' personal involvement in the fraud. A large number of the fraudulent declarations of identity were witnessed by close relatives of the candidates by blood or marriage. He found that:

1. The election in Bordesley Green had been avoided by reasons of corrupt and illegal practices committed by the Labour Party Candidates and their agents;

2. By reason of general corruption within the meaning of s164 of the 1983 Act for the purposes of promoting or procuring the election of the Labour Party Candidates, corrupt and illegal practices had so extensively prevailed that they may reasonably be supposed to have affected the result.

10. He therefore ordered that:

1. The election for the Bordesley Green Ward be declared void in respect of all three seats;

2. The three elected councillors were guilty of corrupt and illegal practices and would be declared incapable of being elected to fill the vacancy or any of the vacancies caused by the avoiding of the election; and

3. Each of the Labour Party Candidates would be named by him in his report to the High Court under ss145 and 158 of the 1983 Act as guilty of corrupt and illegal practices.

11. The Petition in respect of the result in the Aston Ward alleged that:

"1. There had been massive electoral fraud by the Labour Party representatives throughout Birmingham, but particularly in Aston where the candidates and their supporters had unlawfully obtained a large number of blank ballot papers and had used them to personate the true voters and cast their votes;

2. The Labour Party representatives had obtained and altered completed ballot papers and the Returning Officer had wrongly accepted the altered ballot papers into the count;

3. The Labour Party representatives had been caught with others vote-rigging in a warehouse in an industrial estate on the night of 8/9 June 2004;

4. There had been instances of bribery and undue influence by the candidates and their supporters; and

5. The Returning Officer had failed to conduct the election properly in a variety of ways, but primarily by accepting into the count postal votes which had been found at the count in a plastic shopping bag."

12. Most election petitions undergo a "Scrutiny" prior to the substantive petition being heard. An officer of the court (usually the Senior Master) examines the original election documents with a view to finding the factual framework surrounding the petition. The parties to the petition and their lawyers are entitled to attend the Scrutiny and to make representations. The Scrutiny rarely lasts for more than a few hours.
13. In the present case, Mr Justice Burnton (an Election Rota Judge) decided that the Scrutiny of postal votes in both petitions ought to be conducted by the Commissioner himself. In the event, each Scrutiny lasted several days. The main findings in relation to the Aston Ward were that a large number of the completed declarations of identity which accompanied the completed ballot papers appeared to have been completed by a small number of people. Identical handwriting appeared for the witnesses' names and addresses on many declarations of identities, even though the witnesses' addresses were not the same. The vast majority of ballot papers to which these declarations of identity belonged were completed in favour of the Labour Party.

The 1983 Act

14. The relevant parts of the 1983 Act provide as follows:

145 Conclusion of trial of local election petition

(1) At the conclusion of the trial of a petition questioning an election under the local government Act, the election court shall determine whether the person whose election is complained of, or any and what other person, was duly elected, or whether the election was void, and the determination so certified shall be final to all intents as to the matters at issue on the petition.

(2) The election court shall forthwith certify in writing the determination to the High Court.

(3) Where a charge is made in the petition of any corrupt or illegal practice having been committed at the election the court shall, in addition to giving a certificate, and at the same time, make a report in writing to the High Court as required by sections 158 and 160 below and also stating whether any corrupt practices have, or whether there is reason to believe that any corrupt practices have, extensively prevailed at the election in the area of the authority for which the election was held or in any electoral area of that authority's area.

158 Report as to candidate guilty of a corrupt or illegal practice

(1) The report of an election court under section 144 or section 145 above shall state whether any corrupt or illegal practice has or has not been proved to have been committed by or with the knowledge and consent of any candidate at the election, and the nature of the corrupt or illegal practice.

(2) For the purposes of sections 159 and 160 below-

(a) if it is reported that a corrupt practice other than treating or undue influence was committed with the knowledge and consent of a candidate, he shall be treated as having been reported personally guilty of that corrupt practice, …

(3) The report shall also state whether any of the candidates has been guilty by his agents of any corrupt or illegal practice in reference to the election; but if a candidate is reported guilty by his agents of treating, undue influence or any illegal practice, and the court further reports that the candidate has proved to the court-

(a) that no corrupt or illegal practice was committed at the election by the candidate or his election agent and the offences mentioned in the report were committed contrary to the orders and without the sanction or connivance of the candidate or his election agent, and

(b) that the candidate and his election agent took all reasonable means for preventing the commission of corrupt and illegal practices at the election, and

(c) that the offences mentioned in the report were of a trivial, unimportant and limited character, and

(d) that in all other respects the election was free from any corrupt or illegal practice on the part of the candidate of his agents,

then the candidate shall not be treated for the purposes of section 159 as having been reported guilty by his agents of the offences mentioned in the report.

159 Candidate reported guilty of corrupt or illegal practice

(1) If a candidate who has been elected is reported by an election court personally guilty or guilty by his agents of any corrupt or illegal practice his election shall be void.

160 Persons reported personally guilty of corrupt or illegal practices

(1) The report of the election court under section 144 or section 145 above shall state the names of all persons (if any) who have been proved at the trial to have been guilty of any corrupt or illegal practice …

(4) Subject to the provisions of subsection (4A) and section 174 below, a candidate or other person reported by an election court personally guilty of a corrupt or illegal practice-

(a) shall during the relevant period specified in subsection (5) below be incapable of-

(i) being registered as an elector or voting at any parliamentary election in the United Kingdom or at any local government election in Great Britain,

(ii) being elected to the House of Commons, or

(iii) holding any elective office; …

164 Avoidance of election for general corruption etc

(1) Where on an election petition it is shown that corrupt or illegal practices or illegal payments, employments or hirings committed in reference to the election for the purpose of promoting or procuring the election of any person at that election have so extensively prevailed that they may be reasonably supposed to have affected the result-

(a) his election, if he has been elected, shall be void, and

(b) he shall be incapable of being elected to fill the vacancy or any of the vacancies for which the election was held."

The Commissioner's decision

15. So far as the Aston Ward is concerned, the evidence relied upon by the Petitioners fell into two broad categories: (i) evidence of ballot rigging taking place at a warehouse on the Wryley Trading Estate on the night of 8/9 June; (ii) handwriting evidence showing that ballots had been rigged. So far as the first category is concerned, it was not disputed that Mr Islam and Mr Kazi were present in the warehouse, albeit that there was an issue as to what they were doing there. The Petitioners' case that Mr Afzal was party to corrupt and unlawful practices was founded fairly and squarely on the averment that he also was present in the warehouse. This Mr Afzal denied.
16. The Commissioner held that those in the warehouse had been caught red-handed in the process of ballot rigging. He held that Mr Afzal was one of them and that he was "running the show". He further held, on the basis of the handwriting evidence, that Mr Islam, or someone using his name, had witnessed a large number of documents, using no fewer than five forms of signature and two separate addresses. The same handwriting had been responsible for the signatures purporting to be of six other witnesses to ballot papers.
17. The Commissioner found that the only explanation for the scale of the fraud was that it was "the result of a campaign of vote rigging deliberately embarked upon by the Ward Labour Party with the full knowledge and cooperation of the candidates". He was satisfied beyond reasonable doubt that:

1. There were corrupt and illegal practices committed by the Labour Party candidates and their agents;

2. By reason of general corruption within the meaning of s164 of the 1983 Act for the purpose of promoting or procuring the election of the Labour Party Candidates, corrupt and illegal practices had so extensively prevailed that they may reasonably be supposed to have affected the result.

He therefore ordered that:

1. The election for the Aston Ward be declared void in respect of all three seats;

2. Mohammed Nazrul Islam, Muhammad Afzal and Mohammed Amin Kazi were guilty of corrupt and illegal practices and that, pursuant to ss159 and 160 of the 1983 Act, they would be declared incapable of being elected to fill the vacancy or any of the vacancies caused by the avoiding of the election; and

3. Each of the Labour Party Candidates and Mr Zulfiqar Khan (the Ward organiser) would be named by the Commissioner in his report to the High Court under ss145 and 158 of the 1983 Act as guilty of corrupt and illegal practices.

He so certified at the end of his judgment and reported accordingly to the High Court.

The warehouse incident

18. The Commissioner found that those in the warehouse were either filling out blank ballot papers or altering or destroying completed ballot papers which did not vote for the Labour candidates or both. These findings were not challenged before us. The challenge made by Mr De Mello was to the fairness of the procedure under which the evidence was given which led the judge to conclude that Mr Afzal was one of those at the warehouse. We propose first to set out the Commissioner's findings in relation to Mr Afzal's involvement, then the evidence upon which those findings were based and the manner in which it was obtained. We shall then consider the criticisms made of the procedure adopted by the Commissioner.

The Commissioner's findings

19. In setting out the material part of the judgment we shall excise those passages dealing with the activities taking place in the warehouse in order to concentrate on the question of who was there:

"The Warehouse Incident

440. At about 1.30 in the early hours of the morning of 9th June 2004, four police officers of the West Midlands force attended the "NT" warehouse on the Wryley Trading Estate off Birch Road East. On this, otherwise deserted, estate, there were several cars outside that particular warehouse. The officers saw two men about to get into one of the cars and spoke to them. The officers were then taken to a first floor office in the warehouse.

441. In the office were several men sitting at a table. They had documents on the table in front of them which the police recognized to be election documents.

442. How had this arisen? Who were the men? What were they up to?

The story as told by the Petitioners' witnesses

443. Evidence was given by two of [the Liberal Democrat candidates] Mr Ayoub Khan's brothers, Mr Asif Iqbal and Mr Naser Iqbal. …

444. In summary, what the Iqbal brothers said was as follows. Believing that the Labour Party candidates were up to mischief, on the evening of 8th June 2004 they decided to watch the Ward Labour Party campaign office, a lock-up shop in Witton Road. I have seen photographs of this shop. It is secured by an iron shutter which covers the entire front of the shop. It stands in a well lit main road near a bus-stop.

445. As they arrived in Witton Road, the Iqbal brothers saw the Ward organiser Mr Zulfiqar (sometimes spelled "Zulfigar") Khan and the Respondent Mr Mohammad Afzal sitting in Mr Afzal's Primera car outside the campaign office. They described Mr Zulfiqar Khan as looking "anxious and uneasy". The Iqbal brothers parked further up the road and kept watch.

446. A Volvo then arrived, owned and driven by the Respondent Mr Nazrul Islam, with a passenger. Mr Nazrul Islam and his passenger got out of the car and one of them retrieved a carrier bag, placed it under his clothing and walked into the campaign office.

447. Some time later, several men came out of the campaign office. Mr Afzal placed a carrier bag in the boot of his Primera and he, Mr Zulfiqar Khan, and Mr Nazrul Islam (with one other) got into the Primera. One of the other cars was a Carina owned and driven by the Respondent Mr Kazi. The cars drove off and the Iqbal brothers decided to follow the Primera.

448. They followed the Primera to the trading estate and saw it drive in. Shortly thereafter, the Iqbal brothers drove into the trading estate to look for the Primera. They found it with Mr Afzal in the driving seat. The Iqbal brothers parked on a road outside the estate and saw a BMW car arrive and a Mercedes car with a number plate "NAJ 1B" (clearly, "Najib"). They saw a Lexus arrive at the estate and then Mr Kazi's Carina. At this point the police arrived.

The story as told by the police officers

449. The police were summoned by telephone calls which alerted them to the Primera, BMW and Lexus cars and said that Labour councillors were "rigging blank ballot papers" at the NT warehouse.

450. In summary, five officers in total attended the warehouse: PS Rattenberry, PC Parsons, PC Harrison, WPC Bradley and WPC Grundy. They initially attended at about 12.30 am on 9^th June. They discovered a number of Asian men in an office on the first floor of the warehouse. In their statements and in court they were able to identify Mr Nazrul Islam, Mr Kazi and Mr Zulfiqar Khan.

451. WPC Grundy identified:

...one person in specific who was sitting on a sofa. I remember this man as being chubby, bald and wearing glasses. He was being very obstructive and he was speaking in a different language.

452. I asked WPC Grundy in the witness box whether she could recognise this person again. She immediately identified Mr Afzal and said that she had recognised him when she had arrived at court that day."

...

The story as told by Mr Islam, Mr Kazi and their witnesses

464. Evidence was given by Mr Nazrul Islam, Mr Kazi, Mr Mohammed Najib, his son Wahid Najib and his brother Tariq Hussain.

465. Their evidence may fairly be summarised as follows. Labour canvassers had collected a large number of completed postal packages from voters. The reason why they had collected them was twofold. By the evening of 8th June it was by no means certain that the vagaries of the British postal service would ensure delivery of the packages by close of poll on 10th June and also there were serious worries about the safety of the post, given that a pillar box had been set alight in the neighbouring Ward of Washwood Heath, apparently in order to destroy postal votes.

466. These votes had been taken to the campaign office but Mr Kazi, Mr Nazrul Islam and Mr Zulfiqar Khan did not believe it to be secure. They had seen the Iqbal brothers skulking around Witton Road and they knew that the lock on the metal shutter was unreliable. They feared that, were they to put the votes in the campaign office, Mr Ayoub Khan's (admittedly large) band of brothers would burgle the shop and remove them.

467. So the decision was taken to enlist Mr Mohammed Najib, who owned this secure warehouse and he was duly contacted. For reasons that were not entirely clear, Mr Mohammed Najib required his son Wahib and his brother Tariq Hussain to come to the warehouse. There was much confused evidence about keys which never really got sorted out.

468. The votes were taken to the warehouse. Eventually all six men were in the upstairs room. Although the intention had been to put the documents in the safe, it was thought wise to count them first so the men sat down at a table and asked young Wahib to get them cold drinks. They were still counting them when the police arrived.

469. The five witnesses confirmed that the police had been given the explanation that the documents were merely being checked and also the incident of the "dip sample". They denied, however, that there were any ballot papers on the table although they admitted that some of the envelopes were open.

470. Mr Nazrul Islam said that he left at the end of the first incident and one of the police officers gave him a lift home. The police officers did not recall this but nothing turns on it.

471. Mr Mohammed Najib remembered the police returning but disputed that it was as late at 3.55 am. He recalled it as being only about 20 or 30 minutes after they had first left.

472. None of the witnesses however could account for what had been happening between 1.30 am and 3.50 am if the police log had stated the times correctly. Similarly none of the witnesses could explain why the documents never got into the safe.

The story as told by Mr Afzal

473. Were this a criminal trial, Mr Afzal could be said to have set up a plea of alibi. His witness statement, signed 14th February 2005 said:

On Tuesday 8th June 2004, two days before the Election, I was campaigning as normal. At about 8 to 8.30 pm, I went to an informal meeting of Indian Muslims at the request of Cllr Kazi to discuss the Labour Government's actions affecting Muslims both at home and abroad. I believe I left the meeting between about 10 and 10.30. Cllr Kazi was still there when I left. I was not feeling well that day so I drove straight home and went to bed after taking a hot drink and some medication.

At about 9 o'clock in the next morning, I was telephoned by Amjad Hussain, the Labour Party candidates' election agent. He began describing an incident involving the police at a warehouse which I had already known to be owned by a Mr Najib. I asked Mr Hussain to come to my house and explain in detail what had happened. I had not been involved in the decision to take postal ballot envelopes to the warehouse on the night before nor had I been aware of the storage of postal ballot envelopes anywhere outside the campaign office.

474. In short, Mr Afzal was not in Witton Road, he did not drive his Toyota Carina [sic] car to the warehouse and he was not in the warehouse. He was peacefully asleep at home. The first he knew of the Warehouse Incident was at 9.00 am the following morning.

Where does the truth lie?

475. I shall start with Mr Afzal and consider whether he was telling me the truth.

476. If his statement were true, it would successfully distance Mr Afzal from any possible wrongdoing with the votes in the warehouse. The identification by WPC Grundy could be put down to mistake and the absence of Mr Afzal's name from the list of names and addresses taken by the officers would corroborate his story.

477. Given a fair wind and, more to the point, given the burden and standard of proof required to incriminate him, this story might well have worked.

478. The Petitioners' lawyers, however, had a brainwave. They knew that, as a councillor, Mr Afzal had a mobile telephone provided by the Council. They applied for, and I granted, an order for the Council to disclose the records for Mr Afzal's mobile telephone for the night of 8th/9th June 2005. When this arrived, it blew Mr Afzal's carefully crafted alibi out of the water, because, far from showing Mr Afzal asleep in bed at home, the records showed him as being very active between the hours of 10.00 pm on 8th June and 5.00 am on 9th June. It appeared to show him telephoning home at a time when he claimed he was already at home. It showed him telephoning Mr Mohammed Najib at about 11.00 pm.

479. When Mr Afzal went into the witness box, he knew what was coming: Mr Sukul had opened his case by referring to the mobile telephone records and had cross examined Mr Najib on the topic. Mr Afzal took a bold course. He disavowed his witness statement. It had, he said, been put together by Messrs Steel & Shamash just before they took themselves off the record: these solicitors were, he claimed, more interested in protecting the position of the Labour Party than the position of their supposed clients (including himself). The true story, he said, was quite different.

480. It would perhaps be kinder to draw a veil over Mr Afzal's attempts to explain his activities over the period between 10.00 pm on 8th June and 5.00 am on 9th June. When questioned by Mr Sukul with some interventions from myself, Mr Afzal's evidence became wilder and wilder and less and less credible. Obvious lie followed obvious lie until even Mr Afzal realised that he was doing himself no favours.

481. The brutal fact is that he could not account satisfactorily for his movements on the night nor could he account for the telephone calls that had been disclosed by the records.

…

489. I return to the question of whether Mr Afzal was at the warehouse. It will be recalled that WPC Grundy had given a description of a man "chubby, bald and wearing glasses". In the course of cross examination of the police officers, the suggestion had been floated that perhaps she might have been identifying Mr Tariq Hussain, who was a balding, middle-aged Asian gentleman. This suggestion might well have succeeded in planting a doubt in my mind, had not Mr Hayes, for reasons of his own case, decided actually to call Mr Tariq Hussain.

490. The moment Mr Tariq Hussain went into the witness box, any suggestion of mistaken identification disappeared. He is some ten years younger than Mr Afzal and looks more. Far from being "chubby", he is of slim build and appears quite fit. True his hair is getting a bit thin and he does wear glasses. But the killer point was that Mr Tariq Hussain sports a well-cut black beard, whereas Mr Afzal is clean-shaven. I was moved to comment, perhaps facetiously, that Mr Tariq Hussain would be ill advised to enter a "Councillor Afzal look-alike competition". The suggestion that WPC Grundy had mistaken him for Mr Afzal was ludicrous.

491. Once that had been established, it was clear that none of the six men who claimed to be at the warehouse could possibly fit WPC Grundy's description. Mr Afzal, though, did.

What really happened

492. I have no doubt whatsoever that the three Labour Party Respondents and their witnesses have told me a pack of lies. Having seen them in the witness box and having heard their attempts to answer questions about the obvious holes in their evidence, I cannot accept their evidence as truthful.

493. I do believe the witnesses called by the Petitioners, even accepting that the Iqbal brothers, as supporters of the Liberal Democrats and brothers of Mr Ayoub Khan, have an obvious axe to grind. I accept their account of what happened in Witton Road as essentially correct.

494. Similarly, I accept the evidence of the police officers of what happened at the warehouse.

495. Thus I find as facts:

(a) Mr Afzal and his Primera car were in Witton Road at about 11.00 pm on 8th June 2004;

(b) Mr Afzal, Mr Kazi, Mr Islam and Mr Zulfiqar Khan drove in more than one car to the warehouse with a quantity of votes in at least one package in the boot of a car (probably Mr Afzal's Primera but which car is irrelevant);

(c) Mr Afzal was at the warehouse and was correctly identified by WPC Grundy; … .

496. Although I am, as I have said, satisfied that Mr Afzal was at the warehouse, how is it possible to account for the fact that his name did not appear on the police list? There are several potential explanations and it is not necessary to make a definitive finding. By far the most probable explanation arises from WPC Grundy's recollection that the "chubby" man was speaking a language other than English and was being "obstructive". Mr Afzal, realising that the police officers had not recognized him, told the others to give a false name, preferably that of someone like Mr Najib's brother who could be relied on to back up the story if necessary. The police were given Mr Tariq Hussain's name and particulars (which would, of course, be known to his brother). Those present almost certainly believed that, as turned out to be the case, if they put a bold face on things, the police would lose interest and go away."

The evidence

WPC Grundy's Evidence

20. A witness statement signed by WPC Grundy on 2 March 2005, the day before she gave evidence, was put in evidence. The material parts read as follows:

"2. I was on duty with my colleague WPC Bradley on 9 June 2004 and at approximately 00:34 hours we attended a warehouse known as "NT" situated on the Wryley Industrial estate off Birch Road East, following a call in connection to allegations of Postal voting irregularities.

3. Upon arrival we had just parked up outside the NT warehouse. I saw 3 or 4 vehicles outside the warehouse and read the details of the vehicles to the controller. I then saw one Asian Male who appeared to be leaving the Warehouse.

4. We asked if we could go into the Warehouse and he said yes. Both myself and WPC Grundy went into the building and went up a flight of stairs to the first floor and into a large room. When we entered the room I saw approximately 6 to 7 Asian males.

5. On a large oval shaped table in the room I could see a lot of different coloured including white and yellow paperwork scattered about in piles. I saw plenty of ballot papers, some with crosses on them and I saw unsealed envelopes that were of A5 size. The other papers were approximately A4 sized.

6. I remember one person in specific who was sitting on a sofa. I remember this man as being chubby, bald and wearing glasses. He was being very obstructive and he was speaking in a different language. We did not want them to speak in any other language and I told them to speak in English but he refused and continued speaking in a different language. All of these men I would say were over the age of 40 years.

7. I was not sure of whether any criminal offences had been committed and so my colleague requested supervision of a senior officer.

8 A short while later PC Harrison 7615 and PC Parsons 9628 arrived and then PS Rattenberry 6180. Both myself and WPC Bradley left the scene at approximately 01:30 hours and had no further dealings with this matter.

9. Both myself and WPC Bradley made notes of the individuals present. However, these were not made in our personal note books. I can further state that I conducted no search of the premises.

10. I have been shown a Labour Party Candidate leaflet (Exhibit C1) which contains pictures of individuals. I can identify 1 of the individuals who were present on the night in question. The name of these individuals from the leaflet is Nazrul Islam."

The puzzling reference to 'myself and WPC Grundy' in paragraph 4 is probably explained by the fact that the first four paragraphs of WPC Bradley's witness statement were in almost identical form and may well have been used as a model for the formal parts of WPC Grundy's statement.

21. At the end of her examination-in-chief the Commissioner intervened as follows:

"The Commissioner: The gentleman you describe in paragraph 6 as chubby, bald and wearing glasses, is that gentleman by any chance in court?

A. He is, yes.

The Commissioner: Could you say where he is sitting?

A. The gentleman in the blue shirt and the stripey tie.

The Commissioner: Thank you."

22. WPC Grundy was cross-examined about the circumstances in which she made her statement. She said that the Petitioners' legal team guided her through and asked her questions which triggered her memory. She said that while she had not recognised Mr Afzal from his photograph on an election leaflet portraying the three Labour Party candidates she did recognise him in the court and clearly remembered him on the night because he would not speak English in front of her. She also said that she and WPC Bradley had taken the name, address and date of birth of the man in question, and of the others who were present. She could not remember these, but they had been recorded on a police computer.
23. Unknown to Mr Afzal and his legal representatives, those acting for the Petitioners had been supplied with a copy of the computer record in question. We shall call it 'the memorandum'. It recorded:

"Officers attended HT Warehouse, Birch Road East, Witton to report of local councillors doctoring the postal votes. Six persons present with a table full of election forms. Explanation given was that they visited residents and collected as they would not get there in time if they posted them. None of the envelopes were sealed. A random check was completed by officers on one of the addresses to verify explanation and it appeared genuine. The agent present was Zulfigar Khan (26/08/71) of 141 Fentham Road, Aston Tel 240 1236. Others present Mohammed Kazi (21/07/52) 15 Hampton Road Aston Tel 240 1398. Mohammed Islam (01/10/41) 16 Little Oaks Road, Aston Tel 322 2499. Tariq Hussain (14/08/56) 113 Cherry Orchard Road, Handsworth Tel 523 5782. Wahid Najib (23/01/80) 13 Church Road, Edgbaston Tel 0797 3559191. Mohammed Najib (31/12/53) 13 Church` Road, Edgbaston tel 454 5473."

It appears that because of a reference to the Official Secrets Act on their copy of the memorandum, the Petitioners' legal advisers did not feel that it was open to them to disclose it, or even that they had it, when WPC Grundy was giving her evidence.

Mr Najib's evidence

24. Shortly before the hearing began the Petitioners obtained from the Birmingham Council a record of the telephone calls that Mr Afzal had made on the night of the 8/9 June on the mobile telephone which had been provided to him by the Council. These included the following:

i) At 2145 a call to Mr Najib's mobile lasting 52 seconds;

ii) At 2259 a call to Mr Afzal's home lasting 7 minutes and 4 seconds;

iii) At 2317 a call to an 'Orange' mobile lasting 25 seconds;

iv) At 2318 a call to the same mobile lasting 46 seconds;

v) At 2339 a call to Mr Najib lasting 31 seconds;

vi) At 2344 a call to Mr Najib lasting 13 seconds;

vii) At 0443 a call to Mr Zulfigar Khan lasting 2 minutes and 14 seconds.

This record was put in evidence.

25. When Mr Najib gave evidence he was asked about the phone calls that had been made to his mobile. He said that he received the call at 2145. Mr Afzal asked him why he was not at a meeting of the local Muslim community that was taking place on Bragg Road. Mr Najib replied that he could not talk as he was driving but that he would call at Mr Afzal's home to explain. He said that he did call at Mr Afzal's house at about 2215, but he was not there. He did not receive the calls at 2339 or at 2344 because by then he was at the Labour Campaign Office and had switched off his phone. Mr Najib said that he had not seen Mr Afzal on the evening of the 8^th. Mr Afzal had not gone to the warehouse. Those who had gone to the warehouse were those who were recorded on the police computer as having given their names, addresses and dates of birth.

Mr Afzal's evidence

26. Mr Afzal was strenuously examined as to why his witness statement stated that he left the meeting of Indian Muslims between 10 and 1030 and drove straight home and went to bed, whereas his mobile record showed that he was making telephone calls up to nearly midnight, including a seven minute call to his home at 2259. The explanation that he gave was that his statement was correct in as much as he went directly from the meeting to his home. He had not, however, gone home immediately. After the meeting he had been delayed as he made his way to his car by someone who had been at the meeting and who engaged him until about 1115 in a lengthy argument. He then made the two calls to the 'Orange' mobile. These were to a gentleman who lived nearby. The first time he got the man's answering machine, so he tried again, but he was not in. The 2259 call was to his wife to apologise for being late and she was very angry. When he got home his wife told him that Mr Najib had called. He tried to phone him at 2339 and left a message on his answerphone. He tried again at 2344 but got no answer.
27. Early the next morning Mr Zulfiqar Khan phoned him. He returned the call at 0443. Mr Khan wanted to come to Mr Afzal's house to tell him all the details of what had happened in the warehouse, but Mr Afzal told him to come to his home in the morning. In the event it was Mr Amjad Hussain, his election agent, who came to his home in the morning to give him the details of what had occurred.
28. When asked why none of this featured in his witness statement Mr Afzal said that he did not have the details of the phone calls when he made his statement. He said more than once that his solicitors, Steel & Shamash, had taken his statement shortly before they came off the record, implying that they had done so under pressure.
29. The Commissioner played a full part in the questioning of Mr Afzal, often in terms which displayed a degree of scepticism. Unfortunately the Commissioner put to Mr Afzal that his evidence was in conflict with that which had been given by Mr Najib, when this was not the case. Thus the Commissioner stated that Mr Najib had testified that he visited Mr Afzal's home before the 2145 phone call and that he had not visited his home between 2145 and 2345. The Commissioner ended this passage of questioning with the comment:

"The slight problem of course is that Mr Najib says he did not get the quarter to ten phone call because his phone was turned off. It is certainly a problem, but there we are".

In fact the evidence given by Mr Najib in relation to his movements and to the use of his mobile phone was consistent with the evidence given by Mr Afzal.

The challenge to the procedure adopted by the Commissioner

30. Mr De Mello submitted before Collins J that the proceedings violated Articles 6, 8, 11, 14 and Article 3 of the First Protocol of the European Convention on Human Rights. Collins J concluded that it was unarguable that any challenge to the Commissioner's decision could be founded on that Convention. We did not find it necessary to invite Mr De Mello to develop this part of his case.
31. Mr De Mello further contended that the proceedings in the Election Court were criminal proceedings and that Mr Afzal was, accordingly, entitled to those procedural protections that are afforded to a defendant facing a criminal charge. The Commissioner held that the proceedings were civil, not criminal, and Collins J agreed with him. While we are of the view that the Commissioner and Collins J were plainly correct on this point, we discouraged Mr De Mello from developing his argument to the contrary. This was because we did not consider that the question was material to the outcome of his appeal. The Commissioner ruled that, because of the seriousness of the charges levelled against Mr Afzal and of their consequences, it was appropriate to apply the criminal standard of proof. We agree.
32. Mr De Mello submitted that the course followed by the Commissioner in relation to WPC Grundy's evidence was in conflict with natural justice and the requirements of fairness. We can summarise his submissions as follows:

i) The Commissioner should not have invited WPC Grundy to make a 'dock identification' of Mr Afzal as the man who had been sitting on the sofa in the warehouse.

ii) The Commissioner should not have accepted WPC Grundy's evidence of identification of Mr Afzal without recalling her for examination as to why the names and addresses that she had noted of those who were in the warehouse, as recorded in the memorandum, did not include his.

iii) The Commissioner should not have made a finding that Mr Afzal had probably passed himself off as Mr Tariq Hussain without informing Mr Afzal and those acting for him that he had this in mind, so that they could have a chance to deal with the suggestion.

iv) These shortcomings were the more marked in that the Petitioners had not set out to prove that Mr Afzal was in the warehouse on the basis of WPC Grundy's identification, nor had it been part of their case that Mr Afzal had passed himself off as Mr Tariq Hussain.

v) The Commissioner's acceptance of the identification evidence of WPC Grundy was, or may well have been, the critical factor leading to all the other findings adverse to Mr Afzal made by the Commissioner.

The 'dock identification'

33. The risk of erroneous visual identification is one that has long been recognised by our criminal jurisprudence and rules of procedure. Archbold 2005 devotes chapter 14 to the precautions that must be taken in relation to this, which include the procedure laid down in Code D under the Police and Criminal Evidence Act 1984. Archbold paragraph 14-42 contains the comment that the practice of inviting a witness to identify a defendant for the first time when the defendant is in the dock has long been regarded as undesirable and that it is now difficult to conceive of circumstances in which a trial judge would permit a dock identification. The reason for this is obvious. The witness may be influenced by the knowledge that the man in the dock is suspected of being the person whom he or she is being asked to identify. Since the hearing, the Judicial Committee of the Privy Council has published its opinions in the case of Holland v Her Majesty's Advocate (Devolution) [2005] UKPC D1, but there is nothing in those opinions which cause us to alter what we have said above in relation to the circumstances surrounding the dock identification in the present case.
34. The Petitioners had not sought to rely on identification by WPC Grundy to prove that Mr Afzal had been present in the warehouse. When opening their case Mr Sukul had stated that he intended to prove this by presenting Mr Afzal's mobile telephone records coupled with 'associated technical data'. In these circumstances we think that the Commissioner should have been cautious about himself initiating an identification in the circumstances in which he did this.
35. WPC Grundy's identification was not strictly a dock identification. When WPC Grundy identified Mr Afzal he was, it seems, sitting with a group of other men of Asian origin in the body of the court. He had, however, been giving his lawyers verbal instructions during the course of the day, and WPC Grundy was herself present in court until the police evidence commenced and would have been able to watch this going on.
36. There were good reasons for treating WPC Grundy's identification evidence with reservation. Her description of the man on the sofa in her witness statement may well have resulted from responses to leading questions from the Petitioners' team and there is at least a possibility that they may have asked her whether she recognised Mr Afzal at the court. A total of five police officers attended at the warehouse. None of them had been able to recognise Mr Afzal on the day before the hearing, although each was shown a photograph of him on the election leaflet, or in a magazine, or both. While they were able to identify some of the other people present in the warehouse, WPC Grundy was the only police officer who eventually identified Mr Afzal as having been present. Furthermore, WPC Grundy stated that all the men in the warehouse were about 40 when, on the evidence, they included Mr Najib's 24 year old son.

The memorandum

37. If the circumstances in which WPC Grundy identified Mr Afzal on 3 March were unsatisfactory, that identification was put further in question when, on 11 March, those acting for Mr Afzal obtained a copy of the memorandum from the police and placed this before the Commissioner. There was at this point discussion between the Commissioner and counsel as to the implications of this evidence. This included the following passage:

"The Commissioner: … Obviously Mr Sukul will have to give thought as to whether and to what extent it is still the case that Councillor Afzal was at the warehouse.

Mr Hayes: Absolutely. My concern obviously is whether we should recall WPC Grundy so that I can cross-examine her as to her allegation that none of the envelopes were sealed. If you do not think it is truthful, sir, I will not waste the court's time.

Mr de Mello: Before my learned friend sits down, something turns up from his point. If my learned friend Mr Sukul were to, after some considered thought, take the view that he is not going to press the case that Councillor Afzal went to the warehouse and was there --

The Commissioner: He was there when the police came.

Mr de Mello: Yes. Then I would not need to recall WPC Grundy merely to cross-examine her that she was mistaken about that identification.

You may take a view that it is open to you not to attach much weight to her identification in the way that it has arisen.

The Commissioner: We have apparent conflict between that and the list of names that was taken here.

Mr de Mello: Yes.

The Commissioner: It may be something that I have to resolve but I think you have that evidence. I will reserve my position, I think, as to whether WPC Grundy should be recalled until a later stage but I will leave that, as it were, an open question for the moment.

Mr Hayes: After listening to my learned friend I have slightly hardened my position because if she was totally wrong about Mr Afzal, she was certain that none of the envelopes were sealed. That undermines her credibility.

The Commissioner: The problem with that is if this is a correct record of who was there and relied on as such, then it may be considered – I have no doubt it will be argued – that it is correct record with regard to what they found.

So it is a two-edged weapon. On one view of it, as it were, it establishes Mr de Mello's alibi for him, but on the other it does not necessarily help those who were at the warehouse as to what was found.

So I am inviting that to be reconsidered later I will leave it to a later stage when you have all had a chance to think further about it."

38. It was after the memorandum had been put in evidence that Mr Tariq Hussain was called to give evidence. He stated that he had driven to the warehouse in his BMW on the evening of 8 June, having been requested by his brother, Mr Mohammed Najib, to take the keys there. He said that he was present in the warehouse when the police arrived and that Mr Afzal was not there. He said that he had been sitting on the sofa. He confirmed that he had then been wearing a beard. In cross-examining him, Mr Sukul did not initially challenge his evidence that he had been at the warehouse. He suggested that Mr Afzal was also present but was hiding from the police.
39. The Commissioner intervened to ask "is your best point possibly this, Mr Sukul: that this witness would be very unwise to enter a Councillor Afzal look-alike contest?" Mr Sukul continued to cross-examine Mr Hussain on the basis that he had been at the warehouse. At one point he put to him that one of the policemen said "no Urdu, only English, you remember that?" When Mr Sukul reached the end of his cross-examination the Commissioner asked whether Mr Sukul wished to explore two matters – the fact that Mr Hussain's name was recorded on the police memorandum and the fact that WPC Grundy had identified Mr Afzal as having been present. After some inconsequential further cross-examination the transcript records the following passage:

"Mr Sukul: Either way, your evidence is that Mr Afzal was not present.

A. I said I did not see Mr Afzal at all. So how can you say that at that time.

Q. Were you there yourself?

A. Yes, I am there, and I open the warehouse with the key, and I left when the second time the police arrived. Then we locked the doors then went home.

Q. You did not make an arrangement for someone to give your name and address to the police, did you?

A. The police officers have to prove you that. My BMW was there and the police always check and they took my details fully with my date of birth, so what else …

Mr Sukul: Thank you.

Mr de Mello: May I just mention one thing as a result of your very careful way of putting it Mr Sukul. These proceedings are partly inquisitorial. I was careful with the former witness to follow questions following your questions.

The Commissioner: If anything I have asked puts you at a disadvantage you may certainly pick it up in cross-examination.

Mr de Mello: What I would like is this: some sort of indication that if you were to draw any inference, and I will be careful not to say too much in case Mr Sukul bounces up.

The Commissioner: I simply wish to give Mr Sukul the opportunity to raise a matter with the witness in case it needed to be raised later. I myself have no views at all at this stage, but one of the things that clearly crossed my mind as a possibility, which had I been in Mr Sukul's position I would have considered, it therefore seemed to be to be a fair wind to ensure, particularly in view of unhappy events with Mr Mirza Ahmed, to make sure that absolutely everything was on the table, unlike the ballots, face up."

40. It seems to us that the possibility that Mr Afzal had passed himself off as Mr Hussain had occurred to the Commissioner and that this was not a suggestion that Mr Sukul was anxious to adopt.

Conclusions

41. In the event the question of recalling WPC Grundy does not appear to have been considered again, although in his final written submissions Mr De Mello cited the passage in the transcript where the Commissioner reserved his position on this. We think that if the Commissioner was minded to prefer the evidence of WPC Grundy that she had seen Mr Afzal at the warehouse to the evidence of those who said that he was not there, supported as this was by the police memorandum, he should have made this plain and given Mr De Mello the chance to ask for WPC Grundy to be recalled. Equally, if he was minded to conclude that the most probable explanation of the conflict of evidence was that Mr Afzal had sought to pass himself off as Mr Hussain, he should have made this plain so that counsel could have had the chance to make submissions about this. Had he done so, the cogent point might have been made that the police had recorded the presence of Mr Hussain's BMW, though not Mr Afzal's Primera, outside the warehouse.
42. In summary, the Commissioner failed to ensure that Mr Afzal had a fair opportunity to deal with the case that the Commissioner concluded had been made out against him. This was a fundamental requirement of a fair trial (see, for instance, Mahon v Air New Zealand Ltd [1984] AC 808, 821A-B). It is the principal reason why we decided that the Commissioner's findings against Mr Afzal could not stand.
43. Two other matters have caused us concern. The Commissioner's judgment stated that Mr Afzal disavowed his own witness statement, and suggested that the solicitors who prepared it were more interested in protecting the Labour party than Mr Afzal, saying that the true story was quite different. This did not fairly represent Mr Afzal's evidence. This was to the effect that his statement was correct in its essential details, though incomplete, and that his solicitors had been taking his statement under pressure and without knowledge of the record of his telephone calls. It is right, however, to say that his counsel, in his submission, suggested that the primary concern of his solicitors was the protection of the Labour Party.
44. The other matter that causes us concern is the passage in Mr Afzal's questioning by the Commissioner where the Commissioner erroneously put to him that his evidence was inconsistent with that which had been given by Mr Najib. We cannot but wonder to what extent this misunderstanding may have been responsible for the Commissioner's conclusion that "Mr Afzal's evidence became wilder and wilder and less and less credible. Obvious lie followed obvious lie…"
45. The allegation that Mr Afzal was present at the warehouse while the vote-rigging exercise was in progress was at the heart of the case alleged against him by the Petitioners. The finding that he was present was also at the heart of the Commissioner's finding that he was guilty of corrupt and illegal practices. A case might have been advanced that Mr Afzal was party to what was taking place at the warehouse, even if not present in person. Equally a case might have been advanced that Mr Afzal was liable for the corrupt and illegal practices of his agents. Neither case was advanced. The case against Mr Afzal stood or fell on the allegation that he was personally participating in the vote- rigging at the warehouse. The order that we made at the end of the hearing, quashing the findings against Mr Afzal, reflected this.
46. The Commissioner was faced with a large volume of complex evidence. He was under time constraints having regard to the need to resolve an election Petition promptly and the fact that there is a one year time limit for most electoral offences. His judgment, extending to 185 pages, is a model of clarity. His findings of general corruption and of personal corruption on the part of the three Bordesley Green Labour Party respondents and the other two Aston Labour Party respondents have not been challenged. The procedural shortcomings that we have identified in relation to the manner in which he dealt with the case made against Mr Azfal should not be permitted to distort the overall picture painted by the Commissioner's otherwise admirable judgment.