Erlam & Anor v Rahman & Anor

Factual and Procedural Background

On 22 May 2014, a triple election was held in the London Borough of Tower Hamlets, including the European Parliament, full council, and Mayoral elections. The Mayoral election used a transferable vote system with ten candidates, principally between the Appellant and the First Respondent, the incumbent Mayor. The First Respondent was declared re-elected despite a lower first preference vote than the Appellant due to second preference votes.

Following the election, four Petitioners challenged the Mayoral election result on grounds of corrupt and illegal practices by the First Respondent and his agents, and also alleged misconduct by the Returning Officer. The case against the Returning Officer was withdrawn after an agreement. The Petition was tried by an Election Commissioner between February and March 2015, including a scrutiny of ballot papers in November 2014.

The Petitioners were members of the public who brought the case without solicitor assistance, relying on counsel under a direct access scheme. The First Respondent was supported by his election agent, the Second Respondent was the Returning Officer, and the case involved extensive evidence including expert reports and witness testimonies.

Legal Issues Presented

1. Whether the First Respondent or his agents committed corrupt and illegal practices under the Representation of the People Act 1983, including personation, false registration, false statements, payment of canvassers, bribery, treating, and undue influence.
2. Whether the election should be set aside due to these corrupt or illegal practices.
3. The legal effect and application of agency principles in election law to the actions of the First Respondent's campaign and party.
4. The interpretation and application of section 106 regarding false statements about a candidate's personal character or conduct.
5. The scope and application of undue spiritual influence under section 115 in the context of religious endorsements during election campaigns.
6. The extent of the Returning Officer's responsibility and conduct in managing the election and count.

Arguments of the Parties

Petitioners' Arguments

• The First Respondent and his agents engaged in widespread corrupt and illegal practices including false registrations, personation, illegal postal voting practices, payment of canvassers, bribery through misallocation of public grants, making false statements about the Appellant, and undue spiritual influence.
• The election was conducted in a manner that extensively prevailed with corruption and illegal practices which affected the result.
• The Returning Officer failed in his statutory duties, though the Petitioners later withdrew allegations against him.
• The First Respondent's party, Company A, was effectively a one-man band controlled by the First Respondent, with candidates selected personally by him and campaigning primarily for his re-election.

First Respondent's Arguments

• The First Respondent denied personal involvement in corrupt or illegal practices, contending that some acts were without his knowledge or consent.
• He argued that some allegations were minor or de minimis and did not affect the election result.
• Regarding false statements under section 106, the First Respondent contended that statements about the Appellant were either true or made with reasonable belief in their truth, and that certain statements fell outside the statutory period or scope.
• Mr Penny QC submitted that the allocation of grants was legitimate local government activity and amounted to 'pork-barrel politics' rather than bribery under the 1983 Act.
• The First Respondent disputed that undue spiritual influence occurred or that he was personally responsible for any such influence.
• He maintained that the conduct at polling stations did not reach the threshold of intimidation under section 115.

Second Respondent's Arguments

• The Returning Officer denied wrongdoing and was largely exonerated following the withdrawal of allegations by the Petitioners.
• He emphasized the complexity of managing three simultaneous elections and the challenges faced during the count.

Table of Precedents Cited

Court's Reasoning and Analysis

The court undertook a detailed examination of the election, focusing on allegations of corrupt and illegal practices under the Representation of the People Act 1983. It applied the criminal standard of proof to the charges of corrupt and illegal practices and the civil standard to the issue of whether general corruption affected the result.

The court analysed the nature of agency in election law, holding that the First Respondent was liable for the acts of a wide range of agents, including candidates personally selected by him, campaign staff, and community supporters acting on his behalf.

False registrations and personation were established through witness testimony and expert evidence, including the identification of false addresses used by candidates and voters. The court found that these practices were organised and committed by agents of the First Respondent, rendering him personally guilty.

The court found that false statements about the Appellant were made by the First Respondent and his election agent, including press releases falsely branding the Appellant a racist. These statements were knowingly false and made without reasonable belief in their truth, breaching section 106.

Evidence of payment of canvassers was accepted on the balance of probabilities, despite limited direct proof, supported by multiple independent witness accounts.

The court examined extensive evidence of bribery through the misallocation of public grants. It accepted the findings of an independent investigation showing that the First Respondent personally controlled grant allocations, disregarded officer recommendations, and targeted funds to organisations serving the Bangladeshi community to induce votes. The court held this conduct amounted to bribery under section 113.

Payments to Bengali media and a political publicist were also found to be corrupt practices amounting to bribery, as public money was used to promote the First Respondent's campaign unlawfully.

The court considered treating but found the evidence insufficient to meet the criminal standard for this offence.

Regarding undue spiritual influence, the court found that the First Respondent enlisted the support of Muslim clerics who publicly urged the community to vote for him, including a letter signed by 101 imams. Applying longstanding precedent, the court held that this constituted undue spiritual influence and that the First Respondent was personally guilty or guilty by his agents.

On the issue of intimidation at polling stations, the court heard conflicting evidence. While acknowledging unacceptable behaviour by the First Respondent's supporters, the court concluded that the conduct did not reach the high threshold of force or duress required to constitute undue influence under section 115.

Finally, the court found that corrupt and illegal practices extensively prevailed in the election and were reasonably supposed to have affected the result, justifying avoidance of the election.

Holding and Implications

The court declared the election of the First Respondent as Mayor of the London Borough of Tower Hamlets held on 22 May 2014 to be void due to corrupt and illegal practices contrary to the Representation of the People Act 1983.

The First Respondent was found personally guilty and guilty by his agents of multiple corrupt and illegal practices, including personation, false registration, making false statements, payment of canvassers, bribery, and undue spiritual influence. The First Respondent is disqualified from standing for election as Mayor under sections 159 and 164 of the 1983 Act.

The court also named the election agent, Mr Alibor Choudhury, as personally guilty of corrupt and illegal practices, requiring him to vacate his office as Councillor and imposing statutory disqualification.

The Returning Officer was exonerated following withdrawal of allegations.

The findings of widespread corrupt practices extend to the election of councillors from the First Respondent's party, though their elections cannot now be challenged due to time limits.

The court emphasized the serious consequences for democratic governance in the Borough, noting the alienation and manipulation of the Bangladeshi community and the divisive political environment.

The judgment calls attention to the need for reform of electoral law and procedure, highlighting inadequacies in the election petition system and the definitions and enforcement of electoral offences.

Copies of the judgment were ordered to be sent to the Solicitors' Regulation Authority due to the First Respondent's status as a solicitor.