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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Aehmed v Afzal & Anor [2008] EWHC B5 (QB) (02 April 2008) URL: https://www.bailii.org/ew/cases/EWHC/QB/2008/B5.html Cite as: [2008] EWHC B5 (QB) |
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QUEEN'S BENCH DIVISION (Election Hearing)
B e f o r e :
____________________
SAEED AEHMED | Petitioner | |
- and - | ||
MUHAMMAD AFZAL (1) | ||
STEPHEN HUGHES (2) | Respondents |
____________________
MR GAVIN MILLAR, QC (instructed by MR GERALD SHAMASH of Steel and Shamash, London)
appeared on behalf of the First Respondent.
MR PHILIP COPPEL, assisted by MS ESTELLE DEHON, (instructed by MR ROBERT CONNELLY on behalf of Mirza Ahmed, Chief Legal Officer, Birmingham
City Council)
appeared on behalf of the Second Respondent.
Mr GERALD BERMINGHAM appeared on behalf of the Director of Public Prosecutions
(instructed by the Director of Public Prosecutions, York)
____________________
Crown Copyright ©
Introductory paragraphs
Section 106 of the Representation of the People Act 1983
"The false statement of fact need not be defamatory at common law [but must be] calculated to influence the electors [... with it being] essential that it ... relate[s] to the personal character or conduct of the candidate."
Section 164 of the Representation of the People Act 1983
Section 145 of the Representation of the People Act 1983
The Petition
Two Election Leaflets
A summary of the position of the parties
My Consideration
General History
The Grant Applications
The selection and deselection of Mr Aehmed as Labour Party candidate in 2002.
The 2004 Election and Subsequent Election Petition
.
The day of the poll (Thursday)
The Liberal Democrat Leaflet
CONCLUSION
1. Mr Muhammed Afzal was duly elected.
2. The election of Mr Afzal was not void.
3. Illegal practices did not prevail whether extensively or at all.
4. No corrupt or illegal practice has been proved to have been committed by or with the knowledge and consent of any candidate at the election.
5. An unwarranted attempt was made by Mr Aehmed and Mr Ayoub Khan to suggest that Mr Afzal was seeking illegitimately to influence the pursuit of the case.
ts\election for Aston
ward of
birmingham
Note 1 The appointment is under Section 130(3). The election court (i.e. the Commissioner) has for the purposes of the trial the same powers and privileges as a judge on the trial of a parliamentary election petition: Section 130(5). [Back] Note 2 I also sat on 2 other days, including the day I gave my determination. [Back] Note 3 I reminded the parties of the maxim of the late Sir Frank Layfield QC that estimates of the length of a case should be added not averaged. [Back] Note 4 See sections 6 and 7 of the Local Government Act 1972 [Back] Note 5 Section 128(1) of the Representation of the People Act. [Back] Note 6 This petition has, accordingly, been heard in the Note 7 Brooke L.J. in 1997 following a petition which challenged the return to Parliament from Winchester gave a judgment to that effect. However, the diligence of the parties has not been able to identify a copy of it. [Back] Note 8 It is also consistent with other jurisdictions where reputational or quasi criminal matters are at issue: Bhandari v. Advocates Council [1956] 1 WLR 1442, PC. [Back] Note 9 The restraint shown in the media not detailing President Franklin D. Roosevelt’s crippling disability was canvassed in argument. [Back] Note 10 See, for instance, Holy Deadlock (1934) by A.P. Herbert who as independent M.P.for Oxford University introduced, in 1935, a Matrimonial Causes Bill, which was enacted in 1938. [Back] Note 11 I have in mind his (now) well known relationship with Miss Frances Stevenson whilst married to Margaret Lloyd George. (More succinctly, would the home life of a man who campaigned for homes fit for heroes become, thereby, a matter of politics?) [Back] Note 12 Edited by Mr Richard Price QC. [Back] Note 13 A decision of Collins J [2006] EWHC 2533 (Admin) in which he held that Mr Ken Livingstone had ceased to act in his official capacity, Mayor of London, after he left City Hall to go home after a reception. I have also noted that in R (Animal Defenders) v. Secretary of State [2008] UKHL 15 the House of Lords held that a ban on political advertising given by Sections 319 and 321 of the Communications Act 2003 was necessary in a democratic Society and so compatible with the European Convention on Human Rights. [Back] Note 14 This context would include more than merely the political or public discourse. Some politicians cannot by their own conversations reverse what otherwise is personal. [Back] Note 15 This word is not to be treated as synonymous with a candidate’s election agent; nor is it to be treated as synonymous with agents as a matter of contract. [Back] Note 16 Page 303, file 2. [Back] Note 17 The words guilty and corruption were in capital letters. [Back] Note 18 The phrase lied like a trooper was in bold type. [Back] Note 19 The surname gained an “e” as the second letter; this promoted the Petitioner on the ballot paper ahead of Mr Afzal (whose “f” otherwise preceded the petitioner’s “h”). The change of name is recorded in a deed dated 26 February 2007; volume 1, page 66. There is also a letter received by Note 20 By application notice dated 11 October 2007, file 1 at page 33. [Back] Note 21 Order of 18 October 2007. [Back] Note 22 See Victorian Cities by Asa Briggs. Mr Coppel pointed out that Note 24 Page 75, day 12. [Back] Note 25 Page 72, day 12. [Back] Note 26 Page 73, day 12 such as house dust, dogs, cats, the outside, rain etc. [Back] Note 27 The first time this was conspicuous it appeared to be for the purpose of impression and not otherwise. [Back] Note 28 It can further be noted that in High Court proceedings in 1999 Mr Iftikhar said that he had known the Petitioner since he was 18 years old. He had campaigned, it was recorded in the statement of 28 August 1999, for the Labour Party at various elections: witness statement of 28 August 1999. In the same proceedings the Petitioner said he had joined the Labour Party in 1988 and had always been an active member. [Back] Note 29 Page 78, day 12. [Back] Note 30 Page 79, day 12. [Back] Note 32 Politicians tend to claim credit for what they have done. [Back] Note 33 10 October 2007. [Back] Note 36 File 1, page 76. [Back] Note 37 File B, p.195 et seq. [Back] Note 40 A Senior Labour party official. [Back] Note 41 Page 315, File 2. But there is an earlier stamp for receipt by Ladymoor Social Services on 21 January 1993. [Back] Note 42 Pages 131A to 131E. [Back] Note 43 This includes his witness statements. His first said (paragraph 8) that Mr Afzal “told everyone on the day before the election … and on the day … that I have been arrested for postal vote fraud”: 7 September 2007, page 68A. This very broad statement cannot be regarded as accurate. [Back] Note 44 Closing Submissions page 19. [Back] Note 46 Page 71, paragraph 13. [Back] Note 47 In a different department from the earlier form. [Back] Note 48 Page 71, paragraph 11. [Back] Note 49 Day 9, page 31. [Back] Note 50 Day 9, page 26. [Back] Note 51 He himself said in a High Court witness statement dated 28 August 1999 that he had always been an active member of the Labour Party. [Back] Note 52 It can be noted that some medical related documents had earlier been exhibited to a witness statement and that the Petitioner’s daughter produced un undated photograph of the Petitioner in a hospital bed. [Back] Note 53 I.e. that time when he was supposed to be completely helpless. [Back] Note 54 Day 16, page 27. [Back] Note 55 However, in his High Court witness statement of 1999 he gives his address as 91 Bevington Road. [Back] Note 56 Day 5, page 45. [Back] Note 57 Day 5, page 183. [Back] Note 58 Day 19, page 30. [Back] Note 59 It can be noted that concurrent with the claimed symptoms for Mrs Ahmed the Petitioner was able to be awarded a prize for his hard work and effort in electioneering in 1997: Witness Statement of August 1999. [Back] Note 60 File B, page 205. [Back] Note 61 2nd witness statement, paragraph 5. [Back] Note 62 Ibid, paragraph 3. [Back] Note 63 See witness statement of 19 September 2007 at paragraphs 1 and 2, page 291. [Back] Note 64 Mr Reilly’s witness statement at paragraph 17. [Back] Note 65 Paragraph 44 of Mr Afzal’s witness statement of 19 September 2007. [Back] Note 66 Paragraph 23 of Mr Reid’s witness statement. [Back] Note 67 Paragraph 22 of Mr Reid’s witness statement. [Back] Note 69 The proposition was founded on complaints by others, i.e. Raghib Ahsan (page 146, 11 October 2007) and Talib Hussain (page 194, 12 October 2007) about the Labour party but there was no clear connection with the events in this matter. [Back] Note 70 Day 2, page 97. [Back] Note 71 There is an executive summary at page 36 of the First Respondent’s Supplemental Bundle. [Back] Note 72 Simmons v Khan, 18 March 2008. [Back] Note 73 The Electoral Administration Act 2006. [Back] Note 74 A commissioner’s decision is not capable of being appealed. It is, however, subject to the supervisory jurisdiction of the High Court. This means that the decision although affected by the supervisory role played by the court remains that of the commissioner. [Back] Note 75 Supplemental Bundle of First Respondent, flag 4 being the order of the Court of Appeal dated 3 May 2005. [Back] Note 76 This included Mr Afzal. [Back] Note 77 The terms of the ruling are at pages 79-83 of the transcript for day 1. [Back] Note 78 Before the petition (24 May 2007) was issued a request was made for Mr Afzal’s telephone records for the time of the warehouse incident: Note 79 Day 1, page 79. [Back] Note 80 Mr Khan said he was aggrieved by the decision of the Court of Appeal in its judicial review of Mr Commissioner Mawrey’s decision. He said the Court of Appeal had been misled. He was seething and scathing about the advocates concerned. [Back] Note 81 I have inserted this word into his submission. [Back] Note 82 Thus, an email of 28 April 2007 for the Regional Organiser, Mr Keith Hanson, records (page 361) that “we [i.e. the Labour Party] are carrying a lot of baggage on the PV issue ...]. [Back] Note 83 Statement dated 13 September 2007, pages 390-391. [Back] Note 84 This is consistent with the (bland) card distributed by Labour on poling day: page 262. [Back] Note 85 Day 16, page 91 [Back] Note 87 Cf. The Silver Blaze by Sir Arthur Conan Doyle. [Back] Note 88 Witness statement dated 7 September 2007. [Back] Note 89 In his statement there is reference to a lady asking him on election day whether Mr Aehmed had been involved in fraud in relation to disability grants. The character of the fraud mentioned in statements the Petitioner says were made is different. The recorded observation tends to suggest concern about the distributed document not about what is said to have been said on the day. [Back] Note 90 Moreover one whose name was Mr Saeed. [Back] Note 91 I made an order for him to give evidence: day 9, p.52 et seq. [Back] Note 92 It is unnecessary for me to seek to resolve the difficulties in respect of financial support that he has sought for his community projects. [Back] Note 93 He made wild allegations about having been harassed in many ways: day 9, page 66. [Back] Note 94 Paragraph 5(iii). [Back] Note 95 It did, however, make a passing reference to Tories and LibDems. [Back] Note 96 Witness statement of 7 September 2007, page 132 [Back] Note 97 Paragraph 5(iv). [Back] Note 98 His witness statement was dated 7 September 2007; his oral evidence sought to be more detailed. [Back] Note 99 In his statement he said he went as an observer for his father, see paragraph 1. [Back] Note 102 This reflects the allegation in the petition, 5(v). [Back] Note 103 Witness statement page 213, 7 September 2007. [Back] Note 104 It was not in her written statement. [Back] Note 105 Day 19, pages 32 and 33. [Back] Note 106 Witness statement dated 7 September 2007, p.203. [Back] Note 107 See his statement at paragraph 33, p.226. [Back] Note 108 He had had the earlier meeting and suggested and agreed to a clean campaign. [Back] Note 109 Witness statement 12 September 2007, paragraph 11. His evidence is also interesting in its record of complaints that were made. It is plainly not the position that complaints are not made and recorded in an election campaign. [Back] Note 110 Day 9, page 168 [Back] Note 111 Pages 168 to 169. [Back] Note 112 As suggested by Mr Brodie in his final submissions at paragraph 26. [Back] Note 113 Day 11, page 59. [Back] Note 114 Day 11, page 90. [Back] Note 115 Day 11, page 89. [Back] Note 117 Including his previous conviction. [Back] Note 118 Cf Petitioner’s final submissions at paragraph 88. [Back] Note 119 Seat in the case of a parliamentary election, office in the case of a council election. The Local Government Election 1972 describes the position of a councillor as that of somebody holding an office. [Back] Note 120 Following the review by the Court of Appeal. [Back] Note 121 And of two others. [Back] Note 122 Mr Brodie disclaimed reliance on Mr Millar’s submissions to aid this part of his case. [Back]Birmingham
Civil Court Centre. [Back]
Birmingham
City Council on 22 March 2007. “I was not happy with my name so I changed it”: page 65. [Back]
Birmingham
City Council is the largest local authority in England. [Back]
Birmingham City Council letter of 16 May 2007. The opening of the Petitioner as originally drafted sought to rely on assertions about Mr Afzal in the 2004 election. [Back]