B e f o r e :
COMMISSIONER RICHARD MAWREY QC
|| MOHAMMAD ALI
||- and -
James Potts of counsel, for the Petitioner
Alex Stein of counsel, for the First Respondent
Timothy Straker QC of counsel, for the Second Respondent
Hearing dates: 8,9,10,11,12, 17 & 18 July 2013
HTML VERSION OF JUDGMENT
Crown Copyright ©
Commissioner Richard Mawrey QC :
- This election court was convened to try an election Petition brought under s.127 of the Representation of the People Act 1983 ('the 1983 Act') for the Maybury and Sheerwater Ward of Woking Borough Council ('the Ward'). In this Petition, the Petitioner, Mr Mohammad Ali ('Mr Ali') challenges the election of the First Respondent, Mohammed Bashir ('Mr Bashir') to Woking Borough Council ('the Council') at the election held on 3rd May 2012. At that election Mr Ali was the candidate of the Labour Party and Mr Bashir that of the Liberal Democrat Party.
- The Second Respondent, Mr Ray Morgan is the Returning Officer for the Borough ('the RO'). He is also the Electoral Registration officer ('the ERO').
- In the Petition Mr Ali says that Mr Bashir's election should be set aside and a new election held on the grounds that
i) his election was procured by corrupt and/or illegal practices on the part of Mr Bashir and/or his agents; and/or
ii) there was 'general corruption' in the Ward designed to secure his election
- Mr Bashir denies these allegations.
- Pursuant to the order of Mrs Justice Slade and Mr Justice Nicol dated 27 July 2012, I was appointed as Commissioner for the trial of the Petition under s.130 of the 1983 Act.
- On 22 November and 19 December 2012 I conducted the Scrutiny whereby the original electoral documents were examined. Mr Ali's solicitors having furnished a schedule of 257 people on the electoral register who might have voted at the election, the ballots relating to those people, if and when found, were separated and the ballots cast for Mr Bashir identified. This exercise produced 22 personal ballots and 64 postal ballots in favour of Mr Bashir. In respect of each of these ballot papers (to the extent that they could be located) there were also separated out
i) the relevant application for a postal vote ('ATV');
ii) the relevant postal voting statement ('PVS');
iii) (where the elector had been entered on the register as a result of a single application) the relevant application for inclusion on the register ('AFR').
- These documents were made available for inspection by the parties, by the Surrey Constabulary ('the Police') and by such handwriting experts as they chose to instruct.
- The trial of the Petition was heard on 8, 9, 10, 11, 12, 17 and 18 July 2013 at Woking Civil Offices.
- In summary, Mr Ali alleges that Mr Bashir and his electoral 'team' caused false names to be entered on the electoral register for the Ward. The names entered were those of either people who did not reside at the address stated or, in some cases, people who may not have existed at all. The term I employed for such voters when giving judgment in the Slough Election Case was 'ghost voters'. As the term has been used in the present case, I shall retain it. In addition it is said that the postal votes of persons genuine resident in the Ward and entitled to be registered to vote were 'harvested', that is to say, applications for postal votes were made in the names of these persons and their votes intercepted and used for Mr Bashir.
- It is therefore alleged that false personal and postal votes were made using those false or 'borrowed' names, as a result of which Mr Bashir was elected as councillor by a majority of only 16 votes.
- Sadly, therefore, this is yet another case where the United Kingdom's shambolic electoral system has led to an election being challenged on the ground of widespread fraud.
- The system of electoral registration has always been very insecure and remains so. The problems this caused were, in the past, largely mitigated by the fact that 'absent' voting (voting by post or by proxy) was very limited in scope and hedged about with procedural difficulties. The introduction of postal voting on demand in 2001, however, laid the electoral system wide open to massive and well-organised fraud. Warnings that this might be the case were blithely ignored by Parliament and, to some extent, by the Electoral Commission.
- The first case on the problems caused by the introduction of postal voting on demand concerned the petitions relating to elections held for the Wards of Aston and Bordesley Green of Birmingham City Council on 10th June 2004. I was the Election Commissioner appointed to try those petitions and delivered my judgment on 4 April 2005. This judgment will be referred to as the Birmingham Judgment.
- In that judgment I set out in detail the opportunities for fraud that had arisen from the introduction of postal voting on demand. I identified some fourteen different ways in which the system could be successfully defrauded: indeed, to illustrate the point, I set out in 'Janet-and-John' terms exactly how one could go about using false postal votes to secure election to a local authority (or to Parliament).
- In that judgment I held that in the two wards concerned (and in all probability in a number of other Birmingham wards) the Labour party candidates and their associates had falsified literally thousands of votes to secure election to the City Council. In the two wards challenged it seemed likely that as many as half the votes cast for the winning candidates had been the product of fraud.
- In the judgment (as Election Commissioners are required to do by the 1983 Act) I expressed the view that this was a disquieting state of affairs, by no means confined to Birmingham or confined to members of the particular ethnic minority involved (Muslim Asians). The problem was universal and had the potential to undermine the democratic process. The judgment was couched in fairly forthright terms with adverse comparisons made with electoral processes in more exotic climes.
- One of the hopes expressed by the judgment was that, once the problem had been recognised, action might be taken. These hopes proved illusory, even naïve.
- Despite the mild furore created by the Birmingham Judgment, there seemed to be no appetite for tackling the problem. Parliament passed the Electoral Administration Act 2006 ('the 2006 Act') but only two of its sections attempted to address electoral fraud. Section 15 created a number of additional criminal offences and section 14 changed the procedure for applying for a postal vote by the addition of two personal identifiers, the signature and date of birth of the elector.
- The judgment in the Slough Election Case discusses the latter change in considerable detail and it need not be considered afresh here. Suffice it to say that, as pointed out in the Slough judgment, it closed off one of the fourteen types of fraud identified in Birmingham while creating a whole set of further problems of its own. In computing terms, it was a 'fix-fail' – it fixed one bug at the cost of introducing several others. Indeed its ill effect was to disenfranchise many (possibly many thousands) of quite genuine voters because verification of the postal ballot depended on a comparison of the signature on the ATV and that on the PVS, a process which took no account of natural variations in a person's signature.
- Furthermore, the introduction of electronic gadgetry to compare signatures on the ATV and on the PVS compounded the problem. The machine is capable of being calibrated or 'set' to a percentage of sensitivity. Set the machine to 100% sensitivity and nothing short of an identical signature in the two documents will pass muster. As all human signatures differ slightly each time they are made, such a result would reject large numbers of entirely valid PVS documents and require them to be personally examined by the Returning Officer's staff who are both over-stretched and completely lacking in any signature identification skills. Set the sensitivity too low and the opposite problem arises, considerable numbers of bogus or forged documents pass the test. As will be seen in the current case, a setting at 85% allowed a patently forged signature to pass.
- The handwriting experts in this case (as in Birmingham and in Slough) confirmed the obvious fact that, even to a qualified and experienced handwriting expert, comparing one questioned signature with only one known genuine signature and without any supporting materials is a very difficult task indeed. That the electoral system now requires this task to be carried out by untrained Town Hall staff is the height of folly.
- Apart from that piece of (wholly inadequate) sticking-plaster, nothing was done to address the major problems that the Birmingham case had thrown up.
- In 2008 I heard the Slough Election Case. Again it is unnecessary to go into detail. Although many of the surviving thirteen types of fraud were around, the main fraud was a fifteenth, the use of false names on the electoral register for which I borrowed the Australian term 'roll-stuffing' (the 'roll' being, of course, the electoral register). In short, the successful candidate and his team had registered several hundred voters in the Central Ward who did not reside at the addresses stated and who, in many cases, were the figments of the candidate's imagination.
- As a result, the judgment found the candidate and his associates guilty of corrupt and illegal practices and ordered a new election to be held. The candidate and some of his associates were subsequently the subject of criminal prosecutions and received substantial prison sentences at Reading Crown Court.
- Inevitably, the Slough judgment drew attention to the chaotic system of voter registration, a system carefully constructed so as to ensure that no checks are ever made as to the veracity or the existence of the person applying to be placed on the register. Many electoral areas simply send out an annual form with the entries from the last register already entered, inviting confirmation (often online). I hasten to add that this practice is not followed in Woking where blank forms are sent out. The only matters with which the Electoral Registration officer ('the ERO') is required to be concerned are whether the address at which the applicant seeks to register himself exists within the relevant electoral area and whether the person seeking to be registered is eligible for registration by status. In Slough a score of bogus voters were registered for four empty and derelict properties but, as the addresses undoubtedly existed and were within the Ward, the 'ghosts' were duly registered to vote (and duly voted for the Conservative candidate).
- Furthermore, the fact that the system permits names to be added to the register until a very late date before the election (eleven days before the poll) with a similar deadline for applying for a postal vote, gave the fraudsters the opportunity to flood the register with false names in the confident expectation that nobody would have time to do anything about it before the election took place.
- As with the Birmingham judgment, the revelation in the Slough judgment of the wholesale use of ghost voters caused considerable public concern. Stern leaders were penned in The Times newspaper (which, to its credit, has been inveighing against electoral fraud for at least a decade) and the politicians reluctantly agreed that 'something must be done'.
- Well, the years have rolled by. It is now 2013 – over five years from the Slough judgment and over eight from the Birmingham judgment. The fine words have not translated into legislation. Reform of electoral registration has been promised for some time but, strangely enough, always mañana. The whole question of election law has been passed to the Law Commission for a thorough overhaul and consolidation. It is no criticism of the Law Commission to say that, with the best will in the world, its labours will not – indeed cannot – bear fruit until (if we are lucky) just before the 2020 General Election.
- So the condition of the electoral system which led to the Birmingham scandal and the Slough debacle remains unaltered.
- And once again, I have been given the Commission to try allegations involving false registration of voters and widespread misuse of the postal system. In the light of the melancholy history set out above, I shall spare the readers of this judgment any further Jeremiads on the woeful condition of the electoral system. Mine not to reason why.
- I shall now deal with the relevant law. Those who have read the Slough and Birmingham judgments may recognize passages from those judgments which are repeated here. No apology is tendered. In all election cases, it is the duty of the Commissioner to draw attention to the applicable provisions of electoral law and, where necessary, interpret them in the context of the facts of the instant petition. Though it necessarily adds to the length of the judgment, it is unavoidable. Further, as the matters complained of in this petition would amount to serious criminal offences, if proved, it is right that the law should be set out before it is applied to the facts found by the court.
The relevant law
Who is entitled to vote?
- Section 2 of the 1983 Act provides:
"(1) A person is entitled to vote as an elector at a local government election in any electoral area if on the date of the poll he —
(a) is registered in the register of local government electors for that area;
(b) is not subject to any legal incapacity to vote (age apart);
(c) is a Commonwealth citizen, a citizen of the Republic of Ireland or a relevant citizen of the Union; and
(d) is of voting age (that is, 18 years or over)."
- Section 4 provides:
"... (3) A person is entitled to be registered in the register of local government electors for any electoral area if on the relevant date he—
(a) is resident in that area;
(b) is not subject to any legal incapacity to vote (age apart);
(c) is a qualifying Commonwealth citizen, a citizen of the Republic of Ireland or a relevant citizen of the Union; and
(d) is of voting age.
…(6) In this section—
… 'qualifying Commonwealth citizen' means a Commonwealth citizen who either—
(a) is not a person who requires leave under the Immigration Act 1971 to enter or remain in the United Kingdom, or
(b) is such a person but for the time being has (or is, by virtue of any enactment, to be treated as having) any description of such leave;
… 'the relevant date', in relation to a person, means—
(a) the date on which an application for registration is made... by him..."
- Residence is covered by section 5:
"(1) This section applies where the question whether a person is resident at a particular address on the relevant date for the purposes of section 4 above falls to be determined for the purposes of that section.
(2) Regard shall be had, in particular, to the purpose and other circumstances, as well as to the fact, of his presence at, or absence from, the address on that date.
For example, where at a particular time a person is staying at any place otherwise than on a permanent basis, he may in all the circumstances be taken to be at that time—
(a) resident there if he has no home elsewhere, or
(b) not resident there if he does have a home elsewhere"
- The Representation of the People (England and Wales) Regs 2001 SI 2001/341, as amended ('the 2001 Regs'), Reg. 26, requires a person applying for registration as an elector to state in his application (inter alia) the address in respect of which he applies to be registered and 'at which he is resident on the date of the application' and to sign a declaration that the particulars are true.
- Thus in order for an elector lawfully to vote at a local election for a particular local authority ward, he must meet the eligibility criteria and have a 'residence' within the boundaries of the Ward. A temporary visitor cannot lawfully register and vote. Similarly someone who, in the words of s.5 has 'a home elsewhere' cannot put himself on the register of a ward for the purposes of an election without residing in that ward. Relatives from abroad who are over in England for a short holiday cannot lawfully register and vote.
- Consequently, the device of moving individuals (even if otherwise eligible to vote) into a property shortly before an election, registering them to vote and moving them out immediately after the election constitutes a clear breach of the residence qualification. Those people are not 'resident' in any sense of the word and, in the vast majority of cases, will be found to have had a 'home elsewhere'. It goes without saying that, if such persons only pretend to move in for the purpose of being registered and voting, and do not set foot in the premises, their registration is undeniably fraudulent.
- In view of its relevance to the present case, a Commonwealth citizen who is not lawfully in the United Kingdom – an illegal immigrant – cannot vote if he does not meet the qualification test laid down by s.4(6) of the 1983 Act.
Corrupt and illegal practices
- Challenges to elections based on the use of false votes and similar malpractices are normally couched in terms of corrupt or illegal practices committed by the successful candidate or his agent. The distinction between corrupt practices and illegal practices is arbitrary and one series of actions may well encompass both. In practice, the principal difference between the two is that a person found guilty by an election court of corrupt practices is subject to a longer period of disqualification and disenfranchisement (five years) than one only guilty of illegal practices (three years).
- The provisions relating to corrupt practices are scattered throughout the 1983 Act with no attempt to present them as a coherent body of rules. Given that they are all made relatively serious criminal offences, carrying in many cases sentences of imprisonment, this is unfortunate. By way of illustration, personation is covered by s.60, whereas bribery, 'treating' and 'undue influence' are not dealt with until ss 113, 114 and 115.
- The term 'corrupt practices' itself is not defined in the 1983 Act. Instead a number of individual electoral misdeeds are declared to be 'corrupt practices' in the sections of the Act concerned. Thus, instead of there being a list of corrupt practices, one has to look at a number of disparate sections to see whether the conduct prohibited by the section is, or is not, declared to be a corrupt practice.
- Although the provisions relating to illegal practices may call for a different treatment, it seems inescapable that corrupt practices under the 1983 Act must be construed as being confined to those practices which are expressly declared to be corrupt practices by the Act. Corrupt practices are the most serious electoral offences and the electoral consequences for a candidate or for others of being found guilty of corrupt practices are more significant than those relating to illegal practices.
- The two forms of corrupt practice with which the court is concerned here both relate to personation.
- Personation has always been criminal. Section 60 of the 1983 Act provides:
"(1) A person shall be guilty of a corrupt practice if he commits, or aids, abets, counsels or procures the commission of, the offence of personation.
(2) A person shall be deemed to be guilty of personation at a parliamentary or local government election if he –
(a) votes in person or by post as some other person, whether as an elector or as proxy, and whether that other person is living or dead or is a fictitious person; or
(b) votes in person or by post as proxy –
(i) for a person whom he knows or has reasonable grounds for supposing to be dead or to be a fictitious person; or
(ii) when he knows or has reasonable grounds for supposing that his appointment as proxy is no longer in force.
(3) For the purposes of this section, a person who has applied for a ballot paper for the purpose of voting in person or who has marked, whether validly or not, and returned a ballot paper issued for the purpose of voting by post, shall be deemed to have voted."
- A conviction for personation after trial on indictment carries a maximum sentence of two years imprisonment.
- The significance of s.60(3) is that the offence of personation in the case of postal votes requires the personator to return the ballot paper. Merely applying for and receiving a postal vote in a false name does not constitute personation under s.60(3): the ballot paper must actually be returned. The problem of applying for false votes is addressed by the next section to be considered.
- Section 60 is bolstered, in relation to postal and proxy votes, by s.62A, inserted by the 2006 Act. The relevant parts of s.62A read:
"(1) A person commits an offence if he –
(a) engages in an act specified in subsection (2) at a parliamentary or local government election, and
(b) intends, by doing so, to deprive another of an opportunity to vote or to make for himself or another a gain of a vote to which he or the other is not otherwise entitled or a gain of money or property.
(2) These are the acts –
(a) applying for a postal or proxy vote as some other person (whether that other person is living or dead or is a fictitious person);
(b) otherwise making a false statement in, or in connection with, an application for a postal or proxy vote;
(c) inducing the registration officer or returning officer to send a postal ballot paper or any communication relating to a postal or proxy vote to an address which has not been agreed to by the person entitled to the vote;
d) causing a communication relating to a postal or proxy vote or containing a postal ballot paper not to be delivered to the intended recipient
(5) A person who commits an offence under subsection (1) or who aids, abets, counsels or procures the commission of such an offence is guilty of a corrupt practice."
- This offence carries the same penalty as that created by s.60.
- The ambit of s.62A is deliberately wide. It encompasses false registrations because the person who uses the name of a falsely registered voter to apply for a postal or proxy vote will either be using the name of 'some other person' under s.62A(2)(a) or (if the person applying does so in his own name but knowing that he is falsely registered) be 'making a false statement' under s.62A(2)(b).
- The provisions relating to illegal practices not declared by the Act to be corrupt practices are, if anything, worse drafted than those relating to corrupt practices. The 1983 Act makes many kinds of electoral malpractice into criminal offences. Although the Act is a consolidating Act there is no consistency in the treatment of those offences. Some of them are expressly stated to be 'illegal practices' in the sections making them into offences. Some are not.
- At Slough I heard detailed argument from two of the country's leading experts in electoral law as to how widely I should construe the concept of illegal practices. In the end I held that
"where the 1983 Act or any related electoral statute makes conduct in relation to an election into a criminal offence, that conduct does amount to an illegal practice for the purposes of avoiding an election whether or not this is expressly spelled out in the section concerned."
- I am not aware that my ruling on this point has been considered by an appellate tribunal and I shall therefore proceed on the basis that it is correct.
- The principal electoral offences relevant to the present Petition are:
i) under s.13D(1) of the 1983 Act, providing to a registration officer any false information for any purpose connected with the registration of electors;
ii) under s.61(1)(a) voting at an election knowing that one is subject to a legal incapacity to vote at that election;
iii) under s.65(1), various forms of misconduct concerned with tampering with ballot papers;
iv) under the Representation of the People Act 2000 ('the 2000 Act') Sch 4 para 8, knowingly making a false statement in an application or form used for the purpose of postal voting.
- Section 164 of the 1983 Act states:
"(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.
(2) An election shall not be liable to be avoided otherwise than under this section by reason of general corruption, bribery, treating or intimidation.
(3) An election under the local government Act may be questioned on the ground that it is avoided under this section."
- This section replaces what was once the common law rule relating to general corruption. In the past, particularly in the nineteenth century, it would happen that an election had been tainted with corruption or other illegal conduct but those seeking to set it aside could not prove any actual involvement in the wrongdoing by the candidate or his agents. Thus a body of law evolved to the effect that an election could be avoided on this ground but only if it could be shown that it was likely to have affected the result of the election.
- Consequently, the ingredients of s.164 which have to be proved by a petitioner seeking to avoid an election under that section are that:
i) corrupt or illegal practices or illegal payments, employments or hirings were committed by someone;
ii) they were committed at an election for the purpose of promoting or procuring the election of a candidate at that election; and
iii) they prevailed so extensively that they may be reasonably supposed to have affected the result of the election.
- At Slough, I commented that the requirement that it must be proved that the practices can be supposed to have affected the result is long obsolete and that the electors had the right to expect that any election tainted by 'general corruption' would be set aside. As this comment fell on deaf ears, I shall do no more than remark that in an election such as that in the Ward with which I am concerned, where the winner won by only 16 votes, the question of whether 'general corruption', once proved, may have affected the result is likely to be academic.
Challenging an election
- A parliamentary election may be questioned by a Petition under s.120 of the 1983 Act and a local election by a Petition under s.127. Section 127 provides:
"An election under the local government Act may be questioned on the ground that the person whose election is questioned –
(a) was at the time of the election disqualified, or
(b) was not duly elected,
or on the ground that the election was avoided by corrupt or illegal practices or on the grounds provided by section 164 or section 165 below, and shall not be questioned on any of those grounds except by an election Petition."
- For these purposes, the court is not concerned with the first two grounds set out in s.127 for setting aside an election, namely the fact that the candidate was disqualified or the fact that he was not 'duly elected'. Although it could rightly be said that any candidate whose election can be set aside for any reason connected with the election was 'not duly elected', in practice this provision is largely confined to cases where, on re-examining the votes and removing on the ground of formal defects any votes previously admitted, the candidate ceases to have a preponderance of the votes. Neither of these grounds was raised in the current Petition and the court need not deal further with them.
- The ground that 'the election was avoided by corrupt or illegal practices' which is relied on here, brings into play further sections of the 1983 Act. Section 159(1) provides:
"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."
- The reference to reporting relates back to s.145 and 158. Section 145(1) states:
"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."
- Thus the first duty of the election court trying a petition seeking the setting aside of an election on the ground of corrupt or illegal practices is to determine whether they occurred. It then has a duty to report contained in s.158(1):
"The report of an election court under ... 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."
- Section 158(2) provides that where a corrupt or illegal practice other than treating or undue influence is proved to have been committed with the knowledge and consent of the candidate, he is to be treated as personally guilty of that corrupt or illegal practice. Section 158(3) obliges the court to state in its report whether any of the candidates has been guilty by his agents of any corrupt or illegal practice. There is a defence provided by this subsection for the candidate to prove that the corrupt or illegal practice was committed against his orders and without his connivance, that he took all reasonable steps to prevent it, that it was trivial and that his election was otherwise clean, but this defence, while being available to a charge of illegal practices, is not available when the charges are of the corrupt practices of personation under s.60 or of postal vote fraud under s.62A.
- Thus the process is:
i) the court determines that the candidate has, by himself or his agents, been guilty of corrupt or illegal practices - s.145;
ii) the court reports that finding - s.158;
iii) that finding renders the election void - s.159.
- The consequences for a candidate of being found guilty by himself or his agents of corrupt or illegal practices are serious. In addition to having the election declared void, under s.160, that person is incapable of
i) being registered as an elector for any national or local election;
ii) being elected to the House of Commons;
iii) holding any elective office (including being a councillor).
- This disqualification lasts, in the case of corrupt practices, for five years and, in the case of illegal practices, for three years.
- These penalties, it need hardly be said, are entirely separate from any criminal sanctions that might be imposed if the candidate concerned is prosecuted to conviction for an electoral offence. If, by any chance, the conviction precedes the election court, the candidate is obliged to vacate his office under s.173 of the 1983 Act.
- An important feature of this ground for avoiding an election is that the petitioner does not have to prove that the corrupt or illegal practices were likely to have affected the result of the election. Mere proof of the practices by the candidate or his agents is sufficient to avoid the election.
- The final grounds for avoiding an election are the grounds provided by ss 164 and 165. Section 165 is irrelevant here. Section 164 has been discussed above.
- The key points to note about s.164 are:
i) the petitioner does not have to prove that the corrupt or illegal practices were committed by the candidate or his agents - only that they were directed to securing his election; but
ii) the petitioner does have to prove that the corrupt or illegal practices are likely to have affected the result; and
iii) avoidance of the election under s.164 is not attended by the same dire consequences for the candidate of being reported as follow from his being found guilty of corrupt or illegal practices, personally or by his agents.
Who is an agent ?
- As has been seen, a candidate in an election is, in many situations, liable for the acts of his agents. The concept of agency is much wider in election law than in other areas of the law such as contract.
- This wider concept of agency is well summarised in the Wakefield Case XVII:
"By election law the doctrine of agency is carried further than in other cases. By the ordinary law of agency a person is not responsible for the acts of those whom he has not authorised, or even for acts done beyond the scope of the agent's authority ... but he is not responsible for the acts which his alleged agents choose to do on their own behalf. But if that construction of agency were put upon acts done at an election, it would be almost impossible to prevent corruption. Accordingly, a wider scope has been given to the term 'agency' in election matters, and a candidate is responsible generally, you may say, for the deeds of those who to his knowledge for the purpose of promoting his election canvass and do such other acts as may tend to promote his election, provided the candidate or his authorised agents have reasonable knowledge that those persons are so acting with that object."
- 'Agent' is thus not by any means restricted to the candidate's official 'party agent' but covers a wide range of canvassers, committees and supporters. The candidate is taken to be responsible for their actions even though he may not have appointed them as agents. Knowledge of what they are doing does not need to be proved against a candidate for him to be fixed with their actions.
- In the current case both evidence and argument were directed to the question of whether certain named individuals (some of whom gave evidence) were 'agents' for Mr Bashir in the sense of taking an active part in his campaign. Unsurprisingly, Mr Bashir attempted to restrict the category of his agents to a small number of people whom he had to accept were part of his official campaign – signatories of his nomination form, canvassers and so forth. Equally unsurprisingly, Mr Ali sought to draw the net as widely as possible.
- Clearly agency connotes some connection between the agent and the candidate. If, unknown to the candidate and without his consent, supporters of his candidature (or his party) engage in fraudulent practices to ensure his election, those supporters may well not, in law, be deemed to be his agents, although, as Mr Stein, counsel for Mr Bashir, conceded, this might well set up a situation of general corruption under s.164.
- For the purposes of corrupt and illegal practices, however, agency is not confined to those who are legitimately participating in the candidate's campaign. If the candidate were to assemble a team of fraudsters who took no overt part in the campaign but whose task was to procure the false registration of voters and misuse their postal votes, that team would undoubtedly be regarded as his agents and he would be responsible for their actions, even if he did not know of the details of them.
Burden and standard of proof
- An election court is a civil court not a criminal court. Many of the matters it has to consider, however, involve conduct which amounts to the commission of criminal offences under the 1983 Act or other electoral legislation.
- The burden of proof both in respect of the charges of corrupt or illegal practices and in respect of the allegation of general corruption must necessarily rest on the Petitioner. This was not controversial at the trial.
- Similarly there was no controversy about the standard of proof the court must apply to the charges of corrupt and illegal practices. It is settled law that the court must apply the criminal standard of proof, namely proof beyond reasonable doubt. This was definitively decided by the Court of Appeal in R v Rowe, ex parte Mainwaring, a decision binding on this court.
- What, however, of the charge of general corruption under s.164? There are two aspects to the case under s.164:
i) proving that there has been general corruption designed to secure the election of the candidate;
ii) showing that this may reasonably be supposed to have affected the result.
- My rulings in this regard having been unchallenged to date, I shall apply the criminal standard of proof to the issue of whether there has been general corruption and the civil standard of proof to the issue of whether it may reasonably be supposed to have affected the result.
- Thus the court will apply
i) the criminal standard of proof to the charges that Mr Bashir and/or his agents have been guilty of corrupt or illegal practices;
ii) the criminal standard of proof to the question of whether there has been general corruption; but
iii) the civil standard of proof to the question of whether the general corruption may reasonably be supposed to have affected the result of the election.
Why roll-stuffing is easy and how to spot it
- In the Slough judgment I set out in detail the system of voter registration and I do not think it necessary to repeat what I said there in this judgment. Whereas in other elections it may well be common for votes to be cast in the names of voters who were once validly on the register but whose names have not been removed when they ceased to be eligible, with one possible exception this petition does not concern them. This petition is concerned with the deliberate entry in the register of ineligible persons for the purpose of using their votes fraudulently.
- The process of fraud is greatly assisted by the following factors
i) the very late deadline for registration both of voters and of applicants for postal votes;
ii) the absence of any workable mechanism for challenging registration in sufficient time prior to an election;
iii) the fact that the ERO has neither the duty nor the resources to check that the person sought to be registered exists and resides at the address given;
iv) the current absence of any requirement for the applicant for registration to produce any evidence of his existence, his identity or his residence to the ERO;
v) the fact that there are virtually no safeguards against a person who has arranged for false registrations using those registrations to obtain and cast postal ballots – the checks (even those introduced by the 2006 Act) being useless to detect this form of fraud.
- There are several indicators that widespread postal vote fraud is about to happen or has actually happened;
i) an unusually high number of people registering to vote in the last weeks before the poll: this becomes more suspicious if the number increases dramatically just before the deadline for registration and even more so if the majority of the applicants for registration also apply for postal votes;
ii) the applications for registration show apparently large numbers of people residing in the same property, particularly if the property concerned is itself small;
iii) the poll produces an unusually high proportion of postal voters to personal voters;
iv) the poll produces a result markedly out of kilter with what could reasonably be expected, either because of the local or national voting trends or because of the history of the constituency or ward in question
- Now it must be said that none of these indicators is determinative or definitive. They can all be present and the election itself as clean as a whistle. Where they are present, however, then the other candidates and even the Police may well consider that further investigation of the poll is justified.
The Woking Election – basic facts
- The election for the elections to the Borough Council was held, together with that of all other local authority elections scheduled for 2012, on 3 May 2012. The Ward is a three-member ward but only one seat was vacant for election. There were four candidates whose names and votes will be set out below.
- Mr Ali was the Labour Party candidate. Although the Ward had returned a Labour member in the past, the outgoing councillor was a Liberal Democrat and, immediately prior to the 2012 election the Labour Party was completely unrepresented on the Council. Jumping forward in time, I understand that the Ward represented Labours' best chance of a seat and Mr Ali's defeat in the circumstances that gave rise to this Petition meant that Woking remained without a Labour councillor for the year 2012/3.
- Thus, in marked contrast to Slough, where Mr Eshaq Khan's victory in Central Ward gave the Conservative Party control of the Council by one member and his disqualification could (and in the event, did) lead to a change of control, Mr Ali's victory would have had no effect on the overall control of the Council.
- Mr Ali, therefore, may be said to be fighting this petition on a question of principle and not because the result of the petition may effect who runs Woking.
- The deadline for applications to be included on the register of electors for the election was 18 April 2012. Requests for new postal votes had to be received by 5pm on the same date.
- The final revised register, including the final additions up to the 18 April 2012 deadline, was published by the RO on 26 April 2012. The 26 April 2012 register showed an electorate of 7,346, compared with an electorate of 7,136 in 2011.
- The poll was held on 3 May 2012. The result was very close. It is said that there were two re-counts before the result was declared.
- The declared result at the election was:
||The Labour Party Candidate
||The Conservative Party Candidate
|David Simon Roe
||UK Independence Party (UKIP)
- For the 2012 Election, the Ward had an electorate of 7,346. 3,227 ballot papers were issued and, as shown, 3,190 votes counted. Turnout was 43.93%: the highest turnout in any ward where there was a contested election on 3 May 2012 (compared with the average turnout, across the contested wards, of 35.81%).
- Believing the result to have been obtained by fraud on the part of Mr Bashir and his team, on 24 May 2012, Mr Ali issued proceedings in the High Court to challenge it. Procedurally, the proceedings were inappropriate and accordingly an attempt was made to strike them out. The Court, however, decided that they should stand as an election Petition on the part of Mr Ali and, in the order of 27 July 2012, gave the directions which put the proceedings back on track as a Petition.
- The unfortunate form that the original proceedings had taken placed certain constraints on Mr Ali in advancing his case of electoral fraud. His advisers had identified some 257 voters on the register who might be considered suspect and the Scrutiny was conducted on the basis of that list. As related above, the winnowing process of the Scrutiny produced a list of 22 suspect personal votes for Mr Bashir and 64 suspect postal votes.
- On 20 December 2012 I ordered (inter alia):
"At the trial the Petitioner shall be entitled to proceed with a case that the election under challenge in this action shall be avoided by reason of corrupt or illegal practices by the First Respondent by reason of the votes under question as set out in the Petitioner's Schedule, a copy of which is attached to this order. However, in advancing this case, in as much as the allegation advanced by the Petitioner is dependent in demonstrating whether an individual voted for the First Respondent or not, the Petitioner's case shall be limited to the Bashir Personal Votes and the Bashir Postal Votes as identified at the Scrutiny."
- Thus, while the form of the Petition in both the Birmingham and Slough election cases had permitted the Petitioner to conduct a wide-ranging enquiry into postal vote fraud in the wards in question, the limited nature of the case advanced by Mr Ali necessitated its being confined to a schedule of suspect votes, beyond which Mr Ali could not go.
- That said, the duties of an election commissioner are such that he is required to have some regard to the wider picture. Thus, as counsel for the parties conceded in argument, if it were proved that Mr Bashir's 'team' had procured the registration of, say, six false names at an address and the Scrutiny had located the documents for only five of them but those were all votes for Mr Bashir, it would be legitimate for the court to take into account all six false registrations as constituting corrupt practices whether under s.60 or s.62A.
- The December order also required the parties to list the matter for further directions on a date to be fixed not less than 21 days from 20 December 2012. They did not. Indeed, apart from requesting amendments to the original order concerning the access of the parties and the Police to the original documents, nothing was done about directions for six months. Gentle prodding from me produced no results. As neither protagonist had access to litigation insurance or funds from his respective party, the Petition, as so often, was being conducted on a shoestring, thus emphasising once again, as in Birmingham and Slough, the utter unsuitability of the election Petition as a means of unmasking fraud and ensuring clean elections.
- Mr Ali's team had hoped to avoid the expense of instructing a handwriting expert by relying on the ongoing Police investigations to have the documents expertly examined. While not entirely unreasonable, the fact was that the Police was not a party to the Petition and certainly could not be compelled to work to the court's timetable.
- Six months to the day from the December order my patience cracked and I made a series of peremptory orders for the exchange of documents and all the other necessary preparations for trial. I refused to adjourn the hearing which was already, at 14 months from the questioned election, pushing the limits of an acceptable timetable but did permit the parties to obtain and serve handwriting reports at a very late stage. Thus spurred, both parties obtained handwriting reports: though necessarily constrained by the very rushed conditions under which they were prepared, those reports, and the oral evidence of Ms Tennant and Dr Davies in support of them, were crucial to the unravelling of this case. This would be an appropriate moment in the judgment for the court to express its appreciation – indeed admiration – at the speed and thoroughness with which both experts carried out their task.
- The quiet Surrey town of Woking has had a surprisingly long connection with Islam. It is the site of the first mosque to be built in the United Kingdom, the Shah Jahan Mosque, a charming small building in the Mughal style, a mini-Taj Mahal plonked down in the Surrey woodlands. Woking's current Muslim Asian population, however, is largely of a much more recent date.
- In recent years, the Ward has held a substantial community of Muslim Asians, some of whom are British citizens and some citizens of one or other of the Commonwealth countries of the Sub-continent. The majority of the latter category, if resident in the Borough, will be entitled to vote in both Parliamentary and local elections as 'qualified Commonwealth citizens'. It is noticeable that, in the present case, all the candidates of the major political parties were Muslim Asians (unsurprisingly, the UKIP candidate was not). Many of the Asian families in the Ward originate in Kashmir, a region with an unhappy history whose conflicts occasionally spill over into the Kashmiri community in the UK.
- Now, while I have been adamant in all my previous judgments that electoral fraud is not confined to the Muslim Asian community (a list of those convicted of fraud in the criminal courts will amply bear that out), it is generally accepted that the structures of that community do on occasion make it easier for those setting out on a course of fraud to rig elections and, to some extent, to cover their tracks.
- In this (as in some other communities), family ties are very strong. At the same time the community may well be divided into factions which do not reflect social or political conditions in England but do reflect disputes and loyalties in the country of origin. Thus, while, politically, the politicians divide into the national political parties, their allegiances may have little to do with the ideas and policies of the national parties but are merely externalisations of intra-community divisions for which the labels 'Conservative', 'Labour' and 'Liberal Democrat' will serve as well as any other.
- The protagonists in the present case made no bones about this. Mr Stein cross-examined more than one witness along the lines that political allegiances shifted in accordance with family or factional ties. Thus we find that in, say, 2004, Mr A canvassed for Mr B in the Conservative interest only to find that in, say 2007, Mr A himself is standing for election as a Labour candidate and in, say, 2011, Mr B is now canvassing for Mr C the Liberal Democrat candidate.
- Consequently, when enquiring into whether given people are or are not 'agents' of a candidate for the purposes of electoral law, it is unrealistic to confine oneself to enquiring who actively assisted in the overt activities of the campaign. Instead it is necessary to investigate an entire web of inter-connecting family, business and factional relationships because it is those which will show who formed the reality of the candidate's election 'team'. Noticeably in this case, Mr Ali and his supporters were able to shed a great deal of light on Mr Bashir's network of associates and produced a Dramatis Personae which attempted to chart the relationships, family and otherwise, both between the members of the 'team' inter se and between those individuals and the properties where it was said false registration or vote harvesting had taken place. Thus the fact that Mr X did not, so to speak, 'work the door knocker' on Mr Bashir's behalf is irrelevant, if it turns out that Mr X owns a couple of properties into which a dozen or so false voters have been registered and whose bogus votes were all cast for Mr Bashir. Though Mr Stein argued forcefully that it would be unfair to infer a connection between Mr X and Mr Bashir from such circumstances, reality and common sense would indicate the contrary.
- Mr Sabir Hussain, a very senior member of the local Labour Party, a former candidate in both Parliamentary and local elections and a former Secretary of the Mosque, was explicit on the question of loyalties:
"I am widely known in the Asian community and well informed on what is happening.
By way of explanation, the Asian community in Woking comes mainly from the Mirpur District of Kashmir and the Gujarkhan and Jehlum District of Pakistan although moe recently the community has become more diverse. The community is close-knit and is based upon extended family relationships which refer back to the villages of origin in Pakistan. There are social and cultural aspects of the Asian community which I will draw out in this statement.
… Status within the community is very important and since at lease the 2000s the political party affiliation of candidates has generally been secondary to their prospect of winning election (sic). To may people, seeking electoral success has become important in its own right and commonplace electoral practices prevalent in Pakistan have been imported by some people into Woking. These practices are often corrupt."
- Mr Morgan himself recognised the inherent problems of a ward such as Maybury and Sheerwater. In answer to a question from Mr Potts (counsel for Mr Ali) as to whether he had concerns about the Ward, he said:
"Maybury and Sheerwater, because of cultural issues in that community, without adopting a full Western approach to democracy and still operating behaviours common to village mentality in rural Pakistan, still cause me great concern. And I would require the right to remove the right to postal votes from that area but I am told I do not have the power to do so, and I don't."
- There is no doubt that the Labour Party had been concerned about electoral fraud in the Ward for several years prior to 2012. Whereas I had no remit to investigate fraud in previous elections and certainly no evidence on which it would be proper to make findings, it would be unrealistic to ignore the fact that Labour had been complaining of fraud for a long time. I heard this from three senior members of the local Labour party, Mr John Pitt, Mr Sabir Hussain and Ms Elizabeth Evans. The matter had been raised with the Crown Prosecution Service as long ago as 2005 and the documents contained a detailed letter from the CPS dated 20 June 2005 [II.12] which indicated that, while there were considerable suspicions of electoral fraud in the Ward, the CPS did not feel it had enough hard evidence to prosecute. The letter pointed out, reasonably enough, that an aggrieved party always had his remedy by way of election petition. There was also a long letter of complaint by the Labour Party to Mr Morgan in May 2006 [II.29].
- The relevance of this is that, by the time 2012 arrived, the Labour Party was alert to the possibility of electoral fraud in the Ward and monitored the situation closely.
- Finally in this section it should be noted that the Ward also contained a significant population of people from the Eastern European and Baltic states of the European Union (thus eligible to vote in local elections). As in Slough, the allegations of fraud included the registration of Asian voters in properties occupied by Eastern Europeans and vice versa. While Mr Stein attempted valiantly to persuade me that people of Eastern European origin and people of Asian origin frequently share properties, the tenor of the evidence, as least so far as the Ward is concerned, is to the contrary. Although, therefore, multicultural diversity is always to be encouraged, sadly it all too seldom works out like that on the ground. Thus when several voters from one of those two communities were found to have been registered in properties already occupied by members of the other community, further investigation seemed to be called for.
- Earlier in this judgment I drew attention to some of the tell-tale signs that there might be fraud at an election. Returning to those in the context of the Ward, we find several, if not all, of them present. Fortunately, the meticulous record-keeping of the RO enables the necessary statistics to be obtained and analysed.
- Abnormally high number of late registrations. The last date for registration was 18 April 2012 and the register was published on 26 April. As Mr Potts pointed out in his opening submissions (and his figures were not subsequently challenged):
"The 26 April 2012 register showed a high number of late registrations, with 36 applications for registration in January 2013, 35 in February, 101 in March and 331 in April: a total of 503. In all, this was an increase of 7.3% in the total electorate of the Ward within the space of five months. Of the total electorate recorded in the 26 April 2012 register, the late additions represented 6.8%, compared with an average increase in other wards of 1.4% since the last register was compiled in 2011 ... There was a correspondingly higher number of late applications for postal votes. There was also a high number of applications for proxy votes. "
- Multiple registrations in the same property. This, too was well illustrated in a table contained in the opening submissions.
||Number of Bedrooms
||Number of Voters
|40 Beaufort Road
|89 Courtenay Road
||2 or 3
|93A Courtenay Road
||1 or 2
|11 Kerry Terrace
|154 Walton Road
|4 Orchard Close
|129B Devonshire Avenue
|219 Boundary Road
|15 Eve Road
|66 Walton Court
|90 Walton Court
|19 Basset Road
|3 Princess Gardens
|133A Princess Road
|135A Princess Road
|137A Princess Road
- Although some of those figures were revised slightly in the course of evidence, they held roughly true. 133A and 135A Princess Road provided very good instances, being in each case small flats above a retail store on the ground floor.
- I was told by witnesses for Mr Bashir that these numbers are not significant because, in the Asian community, over-crowding in tiny accommodation is commonplace. While taking that into account, I was not over-impressed by the suggestion (to which I was no stranger from previous petitions) that cultural differences might account for what might otherwise seem unusual living patterns. I was also told that what might be called cultural over-crowding was (coincidentally) rife in the Eastern European community. Given that there was no more plausible explanation of the enormous numbers registered in some of these minute properties, I considered this to be a brave try but ultimate unconvincing.
- Even when there was evidence of actual over-crowding, it tended to be accompanied by evidence that the occupants (insofar as they were in residence at all) had been moved in just before the election and moved out just after it. As explained above, this would negative any genuine claim to residential eligibility.
- At this point it is sensible to recall that there is a mechanism for challenging voters entered on the register. If a challenge is mounted, the ERO enquires into the matter and, if appropriate, conducts a hearing. If the ERO is satisfied that the registered voter is not (or no longer) in residence, his or her name is removed from the register.
- Now it is important to recognise that this decision by the ERO operates at the date it is made. The ERO does not – indeed cannot – decide whether the challenged voter was properly on the register at the date of the most recent election. All he decides is that, at the point of decision, that person is no longer resident or eligible.
- When considering removals from the register subsequent to the 2012 election, therefore, this factor must be borne in mind. That said, a high number of removals from the register is clearly consistent (if no more) with the persons removed having never been in residence at the address concerned or having been there for far too short a time to constitute bona fide residence.
- In the Ward there was indeed a surprisingly high number of removals. Having heard Mr Morgan in the witness-box, I have no doubt that the process was (as with the rest of his functions) carried out to the highest standard. His policy (indeed national policy) was and is to err, if at all, on the side of inclusion of votes and voters and not exclusion. Thus one may be confident that, if Mr Morgan removed someone from the register, that person would have been correctly removed.
- In October 2012, Mr Ali objected to 161 names and Mr Morgan adjudicated on the objections in April 2013. Of the 161 objections: 81 were deleted without a hearing, 54 were deleted after a hearing, 8 objections were withdrawn; and17 names were retained on the register after a hearing. Thus 135 were removed (86%).
- High proportion of postal votes to personal votes. The relevant figures are: 3227 voting papers issued of which 1020 were postal votes (31.6%). This, in itself was not significantly high. According to the Electoral Commission's report, the national average for postal votes was higher at 34.6%. Whether it was high in the context of Woking is another matter. Mr Morgan's figures show 6,690 postal votes for the entire Borough in 2012. Thus the Ward (one of 17 in the Borough although not all may have had an election in 2012) accounted for 15.25% of all the postal votes cast in the Borough.
- Perhaps the best that can be said of the postal voting figures in themselves is that they are ambiguous.
- On the other hand, it is clear that the percentage of rejected postal votes in the Ward (14.2%) is nearly three times that of the Woking average for 2012 (5.2%). That figure is much more consistent with voting irregularities.
- Abnormally high turnout figures. As has already been pointed out the turnout figures for the Ward were hugely above those of the rest of the Borough: 43.93% in the Ward as against 35.81% for the Borough. I have already commented that the Borough average is itself likely to have been inflated by the high turnout in the Ward and that the average for the Borough without the Ward's figures would be much lower. If one takes the national average for the 2012 local elections, this was 31.1%. Consequently, the turnout in the Ward was a massive 41.25% above the national average.
- Mr Morgan, doing his best to be even-handed, suggested that a factor in these turnout figures may have been the keen contest in the Ward, not necessarily mirrored across the Borough. While deferring, of course, to Mr Morgan's encyclopaedic local knowledge, I felt he was possibly being overly generous. The discrepancy between the Ward's turnout figures on the one hand and those of the Borough and national averages on the other went well beyond the natural expectations of a keenly contested election. In any event, on a party political basis, the contest in the Ward was hardly crucial. The Ward was essentially a two-horse race between Liberal Democrat and Labour. Victory for either would make no difference to the control of the Council.
- Indeed any keenness in the contest derived much less from ideological differences between the two parties and much more from the internal politics of the Muslim Asian community in the Ward. The supporters on both sides were hot for victory but, one suspects, would have been hard pressed to draw up a list of five policy differences between the Liberal Democrats and the Labour Party on either a national or a local level.
- Conclusion on the analysis of the figures. With one exception (and that merely ambiguous) all the classic indicators of electoral fraud were present in the Ward. Again, however, it must be stressed that these indicators are not conclusive. It is possible for a clean election to show some (at a stretch, all) of the indicators but when they are there in such stark form, explaining them away on the ground of mistake or coincidence becomes a great deal harder. This does not, of course, in any way alter the burden of proof which remains on the Petitioner throughout but when explanations are called for and are either not forthcoming or are tendered in a form which is inherently incredible, the Petitioner is well on the way to discharging that burden.
The handwriting evidence
- As indicated, I was very impressed with the speed and efficiency of the handwriting experts who had been asked to produce reports on minimal notice (particularly true of Dr Davies). I was pleased, though not surprised, when it turned out that there was no significant difference between their conclusions bar the fact that Dr Davies was somewhat more cautious and operated on lower levels of certainty than Ms Tennant. Both gave evidence: neither was seriously challenged in cross-examination.
- It is therefore justifiable to treat this as a case where the handwriting experts largely agree and the court may have confidence in their findings.
- Mr Bashir is one of a large family with an even larger extended family. In addition, he has a circle of associates in the Ward arising from business and community relationships. A surprisingly large number of these people turn out to be connected with properties at which false registrations are alleged to have taken place. As the evidence progressed, it became clear that Mr Bashir's case that he ran what was virtually a one-man campaign was entirely fanciful. It may well be the case that Mr Bashir himself did not personally soil his hands with the dirty business of registering false voters, forging their votes and harvesting the votes of other registered electors without their knowledge or consent. His posture of complete ignorance of the activities of his extended family and his associates became more and more strained as the evidence proceeded.
- The web of Mr Bashir's family and associates was considerable. One of the features of investigating fraud in a community such as this is that, while the networks of family and associates available to the fraudster are close knit, if his opponent is a member of the same community, then he will know the fraudster and his network and will be able to identify who is participating in the fraud. In a less enclosed community both the initial fraud and its detection would be more difficult.
- In discussing the network below I will note the properties with which members of the network are connected to the extent that those are properties relevant to the allegations of fraud.
- Some (and I stress 'some') of the Bashir network included the following:
• Mr Bashir's brothers: Mohammed Yaqoob, Jimshed Akhtar (tenant of 17 Lockwood Path), Mohammed Tanveer, Muhammed Moazzam and Javed Akhtar and his brother-in law Shaukat Ali;
• Mr Bashir's cousins: Shaheer Nawaz (owner of 8 Kilrush Terrace), Nazia Altaf and her husband Safdar Azam (owners of 126 Albert Drive), Nazia Azim and her husband Azim Altaf (owners of 59 Courtenay Road), Kamran Muhmmed (occupier of 58 Devonshire Avenue) and Mohammed Shabir Aslam (whose family is said to own 19 Kent Road)
• Mr Bashir's aunt Riaz Begum and her husband Mohammad Lal (whose family owns 165 Boundary Road and 165 Devonshire Avenue)
• The Khan Brothers of Khan General Stores, where Mr Bashir had his election office: Mohammed Karim Khan (owner of 89 Countenay Road), Mohammed Shabir Khan (owner of 93A Courtenay Road), Mohammed Halim Khan (owner of 15 Eve Road) and Mohammed Bashir Khan;
• Mohammed Amin, who was a Liberal Democrat County Councillor until May 2013 and signed Bashir's nomination form (owner of 4 Orchard Close)
• Mohammed S Rehman – Bashir's business partner in his taxi business (owner of 185 Boundary Road)
• Javid Akhtar (owner of 9 Kilrush Terrace)
- In addition there was a man called Riasat Khan. It was disputed whether he was a member of Mr Bashir's team and it was said that he was a man of shifting alliances. On balance, however, in 2012 he seems to have been firmly in the Bashir camp and it is noticeable that his relatives include:
• Ahmed Shabir (cousin and owner of 129B Devonshire Avenue);
• Mohammed Rafiq (cousin and owner of 19 Bassett Road)
- Finally on this score there was a mysterious couple of individuals both called Dileep Kumar, both of whom gave evidence and who were said to be cousins. They flitted between addresses in a manner suited to spectral voters and possessed remarkably similar handwriting, though remarkably dissimilar signatures.
- Before dealing with the properties it should be recalled that, in order to establish corrupt or illegal practices against Mr Bashir, Mr Ali has only to prove, so to speak, one bogus vote cast as a result of those practices. General corruption would require more and there is also, with general corruption, the requirement of the likelihood of affecting the result. The principal 'charge' against Mr Bashir will thus be made out if Mr Ali can bring it home with only one vote.
- I shall not discuss all the properties in the schedule provided by Mr Ali's lawyers. Shortly before the evidence concluded, Mr Potts served (at the Court's request) a list of the properties and votes indicating the case that would be advanced in closing. In that list Mr Potts accepted that there were properties where he could not prove to the requisite standard that the votes were fraudulent. With some other properties he indicated that, while some votes may have been genuine (or at least could not be proved to the contrary), other fraudulent votes had been proved).
- I shall not, therefore, concern myself with:
• 267 Walton Road
• 21 Balmoral Drive
• 3 Princess Gardens
• 129A Princess Road
• 137A Princess Road (though the best that could be said about these apparent Eastern European votes would be the Scots 'not proven' – the probabilities against their voting were quite high)
• 187 Boundary Road
• 17 and 19 Eve Road
• 66, 90 and 100 Walton Court
4 Orchard Close
- I heard a great deal of evidence about this property and it provides a very good jumping-off point for ascertaining whether this election involved fraud. It seems to have been a small three-bedroomed housed in which eight persons were registered to vote: Margaret J Hawkins, Fahab Aftab, Aneela Anwar, Muhammed T Anwar, Imran Majeed, Nadeem Hussain, Khalid Maqsood and Attiq-Ur Rehman.
- This property was owned for about 40 years by a lady called Margaret Jane Hawkins. In 2012, Mrs Hawkins was aged 76 and had, I gather, been widowed for some years. In February 2012 she sold the house to Mr Mohammed Amin who, as explained above was a serving Liberal Democrat County Councillor and one of Mr Bashir's nominators: Mr Amin was registered as proprietor on 20 February 2012 [II.385]. Mrs Hawkins is said to have moved elsewhere in the Borough.
- One bizarre and completely unexplained event in this case is Mrs Hawkins's vote. At some stage in the past, Mrs Hawkins had applied for a postal vote. When she moved, she did not immediately inform the ERO and she remained registered at 4 Orchard Close – one would certainly not take an elderly widow to task for that omission. Consequently, some seven or eight weeks after she moved out, the RO duly sent her a postal voting package to that address. When the voting documents were examined, it appeared that Mrs Hawkins that completed them and voted for Mr Bashir. I was given no explanation of how her voting documents had been completed when she was resident elsewhere in the Borough. Mr Potts understandably said that her vote was not challenged but I never discovered how it came to be cast (and cast for Mr Bashir).
- Having acquired the property, Mr Amin immediately started to move people in. That, in itself, is not, of course, suspicious. This was clearly an investment property as Mr Amin lives elsewhere and did not intend to live in the property.
- The version of events I was given by Mr Amin and by several occupants of the property was this. After acquiring the property, Mr Amin let it to Mohammed Taqir Anwar who invited his sister Aneela Anwar and her husband Fahad Aftab to move in. He also sub-let the property to several other people. They all registered to vote, obtained postal votes and voted for Mr Bashir. Very neat and very plausible.
- Perhaps some slight problem might be caused by the fact that the tenancy arrangement was not mentioned in the witnesses' original statements and emerged only at a latish stage of Mr Anwar's cross-examination. Additionally, it appeared to be wholly undocumented.
- That people did move into Orchard Close is indisputable. Mr and Mrs Armstrong, who lived next door at number 6 spoke of vans arriving and unloading up to 7-8 mattresses. They said:
"A number of people began to move in on a regular basis. There has been a substantial turnover."
- They also said (and this was not challenged):
"The next major event in about September there was a visit from the UK Border Agency and police. The Border Agency have tabs on their shoulders and the police were in their cars. We saw two men being removed by the police from 4 Orchards Close and put in police van. The event was repeated again in October when I [Mr Armstrong] say 2 more men being removed…"
- A further and more serious problem was the handwriting evidence. Having examined the AFR, ATV and PVS , Ms Tennant reached conclusion in respect of the documents examined in the following categories:
i) Category 1: where there was strong evidence that none of the signatures on the three signatures were consistently signed in the same hand named on the form;
ii) Category 2, where there was strong evidence that the signatures on the PVS were not in the same hand as those on the AFR and/or the ATV;
iii) Category 3, where there was strong evidence that the signature on the PVS was in a different hand from that on the ATV;
iv) Categories 4, 5, 6 and 7, where there was strong evidence to show that documents from different voters or addresses had been completed by the same hand.
- Of the Orchard Close voters, Ms Tennant concluded that:
i) The documents in the name of Attiq-ur-Rehman were in Category 1;
ii) The signature in the name of Aneela Anwar was in Category 2;
iii) The AFR and the ATV in the names of Muhammad Anwar, Imran Majeed and Khalid Maqsood were all in the same hand and equally in the same hand as the similar documents in the names of Sandra Vitola (115 Maybury Road), Abrar Hussain (89 Courtenay Road) and Khadjia Bibi and Abid Hussain (both of 11 Kerry Terrace).
- To substantiate the position at Orchard Close, Mr Bashir called Aneela Anwar. Both the 'previous address' box on the AFR and the address on her witness statement of 19 June 2013 gave her address as 78 Fortis Green, London N2. Ms Anwar told me that she was studying for a doctorate, having been an 'assistant professor' in Pakistan. 78 Fortis Green (Bernard Johnson House) is student accommodation provided by UCL who have awarded Ms Anwar an overseas scholarship.
- According to Ms Anwar, just before the election, she decided to move herself, her husband and her two small children from Fortis Green to Orchard Close Woking so that they could live with her brother and he could help look after the children. Shortly after the election, they decided that it was too difficult for her to commute from Woking to Fortis Green and they moved back to Bernard Johnson House.
- Ms Anwar also faced the slight difficulty that the signature on what purported to be her PVS was quite obviously wholly different from that on the other election documents. At this point I should point out that, when this signature which was patently a forgery even to the untrained eye, was submitted to the signature recognition computer operated by the RO, it passed triumphantly. No blame can attach to Mr Morgan's staff who, having been urged by the Electoral Commission to use this gadget, cannot be expected to second-guess it. At the risk of labouring the obvious, it simply shows that introducing a signature as an identifier was little short of moronic.
- When asked to comment on the signature on the PVS, Ms Anwar (who was obviously aware of the handwriting experts' views) disavowed it. She said that she must have been in the flat when it was signed and she must have asked her brother or her husband to sign on her behalf.
- Ms Anwar painted a picture of herself as a dutiful, not to say obsequious, Muslim lady who would naturally defer to her menfolk on these matters. Moving forward, this charming image was somewhat dented by the fact that, when she had completed her evidence, despite the rule I had imposed at the express request of the parties that witnesses were not to communicate while giving evidence, she was observed outside court by both the Petitioner's team and myself giving her husband and brother a full briefing as to her evidence and insisting that they toe the party line. Not only that episode but the demeanour and behaviour of the husband and the brother in the witness box left me in no doubt as to who was the dominant force in that ménage.
- Ms Anwar's husband, Fahad Aftab, confirmed the story of the double move.
- Mohammed Taqir Anwar also gave evidence. What his relationship to Ms Anwar was never clearly explained. Both he and Ms Anwar gave their dates of birth (indeed they were on the ATV and PVS) from which it was clear that the dates were only three months apart. They clearly cannot, therefore, have been born of the same mother. My suggestion to Mr Anwar that he might be a half-brother was rejected. He embarked on a rambling account about how difficult it was to be certain of dates of birth. Given that these were people who claimed, at least, to be members of the professional classes (Ms Anwar a professor, Mr Aftab a teacher), this story of rustic backwardness was not wholly believable.
- Mr Anwar's problems went deeper than that, however, because it was quite clear that at all relevant times he had resided with his wife and family at St Michael's Close and he, like his 'sister' was obliged to resort to an account of having moved out of that address shortly before the election and having moved back shortly after the election, in this case because of marital differences.
- Returning to Ms Anwar. She was a fluent and charming witness whose evidence was full of that corroborative detail, which Pooh-Bah assures us, is 'intended to give artistic verisimilitude to an otherwise bald and unconvincing narrative.' And I did not believe a word of it.
- It completely beggared belief that, in the middle of the academic year, a student in secure university accommodation would displace herself and her family bag and baggage to an unfurnished house in Woking and, just as abruptly decide to decamp back again a few weeks later, only to find that her original accommodation had – miraculously – been kept open for her.
- Her husband I regarded as a mere cipher in this farrago of nonsense and Mr Anwar her 'brother' was equally unconvincing with his account of brief marital spats leading to a double upheaval. His evidence about taking a tenancy from Mr Amin and sub-letting to the remaining 'tenants' was equally moonshine.
- I also heard evidence from Attiq-ur Rehman. He admitted having filled in a number of forms but was less easy with the fact that the handwriting expert had had severe doubts about his own 'signature' on the PVS.
- Nobody disputed that four of the occupants had been removed by the UKBA and deported.
- In short, I had been fed a poorly-prepared pack of lies.
- I have no doubt whatsoever that none of the eight names registered at 4 Orchard Close was a genuine voter entitled to be registered under the 1983 Act and to cast his or her vote at the election (whether by post or otherwise). In my judgment, Mr Amin, having acquired the property from Ms Hawkins (no doubt for entirely legitimate purposes), simply arranged for the address to be used by willing stooges such as the Anwar/Aftab families and by temporary (and illegal) residents. Given Mr Amin's close (and admitted) connection with Mr Bashir and his campaign, it would be perverse not to regard him as having acted as Mr Bashir's 'agent' for electoral purposes in setting up these frauds.
- Corrupt and illegal practices were proved to the hilt at 4 Orchard Close and are the responsibility of Mr Bashir or his agents.
8 Kilrush Terrace
- Five voters were registered at this address: Abid Hussain, Shaukat Ali, Parveen Akhtar, Sobia Ali-Akhtar and Ali Shamraiz. Postal votes for Mr Bashir were found at the Scrutiny in the names of the first four but not for the fifth.
- This property is owned by Shaheer Nawaz (Mr Bashir's cousin). Parveen Aktar is Mr Bashir's sister and her husband Shaukat Ali, his brother-in-law. Mr Michael Normington, who lives at 208 Woodham Lane, New Haw, Addlestone (Runnymede electoral district), testified that all these people have lived next door to him at number 206 (which is indisputably owned by Mr Shaukhat Ali [II.379]) for a considerable time and were living there at the time of the 2012 election. A gallant but desperate attempt was made in cross-examination to suggest that Mr Ali and his family might have moved out while renovation work was being carried out but Mr Normington would have none of it.
- The fact that none of these close relatives of Mr Bashir was called to give evidence to assert that they had been living at 8 Kilrush Terrace in 2012, coupled with the fact that Mr Shaukat Ali's purported signatures were Category 1 and Sobia Ali Aktar's a Category 2, left me in no doubt that the registration of these five voters was fraudulent and had been arranged by Mr Bashir and/or close members of his family on his behalf and as his agents.
- Thus corrupt and illegal practices at 8 Kilrush Terrace were fully established.
9 Kilrush Terrace
- It seems convenient at this point to dispose of 9 Kilrush Terrace which had two relevant registered voters, Mohammad Mojumder and Vemireddy Kirankumar R, the former having voted by post for Mr Bashir. This property is owned by Javed Akhtar.
- Mr Ali's evidence was that this property may have been empty and in course of being renovated at the relevant time. Subsequent investigations by Ms Evans discovered a Polish family living there who denied that any Asian people were living in the house.
- Ms Tennant placed his voting documents in Category 2 – signature on the PVS not matching that on the ATV.
- During the subsequent objection process, Mr Morgan removed his name from the register at that address, being satisfied that, whether or not he had ever lived there, Mr Mojumber no longer did so at the date Mr Morgan heard the objections.
- Mr Mojumber himself gave evidence. In this context it is worth noting that, once again, in flat defiance of my ruling about witnesses communicating before they gave evidence, Mr Bashir was constrained to admit that he had been talking to Mr Mojumber at the Mosque on the second day of the trial.
- Mr Mojumber did not fare well in cross-examination. He appeared very confused about the previous address stated on his AFR whether it was Walton Road in Woking or Gordon Road in north London. He had to admit that, for some unexplained reason, he was still using Gordon Road for correspondence while (allegedly) living in 9 Kilrush Terrace.
- The weight of the evidence was decidedly against Mr Mojumber. I did not believe that he had been resident at 9 Kilrush Terrace at the relevant time. I consider that the reality is that he permitted his name and personal details to be used (almost certainly by Mr Akhtar whose premises they were and who had access to mail delivered there) in support of Mr Bashir.
- As this person's vote was not found, I need not enquire too straitly into Vemireddy Kirankumar R. Suffice it to say that, like Betsy Prig and 'Mrs Harris', I am inclined to think that there is 'no such person'.
154 Walton Road
- This was another property which generated a great deal of evidence. Several voters were registered with Eastern European names. Three votes were found for Mr Bashir: Georgi Georgiev, Malina V Nikolova and Dimitar Dimitrov.
- Ms Karina Jurga, a Polish lady who undoubtedly lived in the property with her boyfriend cast doubt on the existence of Mr Georgiev and of others on the electoral register whose votes were not subsequently discovered.
- Mr Bashir called Ms Nikolova and Mr Dimitrov. They are Bulgarian and produced statements in English, apparently taken without an interpreter. These statements, if genuine, would appear to confirm that they lived in the property and voted for Mr Bashir. When both of them entered the witness box, it became immediately obvious that, to all intents and purposes, they spoke no English. How their statements were taken (not by a solicitor, I should add) was never explained. Although Mr Potts is prepared to concede Ms Nikolova may have been genuinely resident, I was left in a state of considerable uncertainty as to whether she had actually voted. Mr Dimitrov (so far as any sense could be got from him without an interpreter) seemed not to understand the concept of voting at all.
- Ms Tennant did not express any views on the electoral documentation of Ms Nikolova but the documentation in the names of Georgiev and Dimitrov were Category 1 – inconsistent signatures.
- I accepted Ms Jurga's evidence to the effect that some of the names registered against the property were not those of people living there at the time of the 2012 election. I conclude that the Georgiev documents were false and I have grave doubts about Mr Dimitrov. I reach no conclusion about Ms Nikolova. Some at least of the other names are also certain to have been false.
133A and 135A Princess Road
- These two properties are council flats above shop premises. Everyone accepts that they have been illegally sub-let to multiple occupants of whom the local authority has no knowledge.
- At 133A were registered, Mohammed A Ghani, Mary K Gali, Sundra R Mallavarapu, Nadeem Tariq Butt, Lucky Akhter and Hassan Ahamadul. The first voted by post for Mr Bashir but no votes were found for the remaining four. Mr Butt is said to have been an illegal immigrant. At 135A were registered, Asif Ali Dileep Kumar, Muhesh Kumar, Taimoor B Mehmood and Riaz Faisal. The first four voted for Mr Bashir and the vote of the fifth could not be found.
- Mr Rooh Ullah has lived in 133A since 2009 and trades in the shop beneath. He said that he knew everyone who lived in these two flats. With the exception (possibly) of Dileep Kumar, of whom more later, no witness was proffered for Mr Bashir who purported to live at either of these properties. Mr Ullah's evidence was quite clear. He said that
i) Nadeem Tariq Butt had never lived there but squatted in an old car on land near the shops (he is said to have been an illegal immigrant);
ii) As to Akhter Lucky he was '100 per cent' sure he did not live there
iii) Gani Mohammed only possibly he lived there and, if so, only before 2009: he was not resident at the relevant time;
iv) Hassan Ahamadul Mr Ullah had never seen
v) Hassan Shepra had not been living there since November 2009;
vi) Mallavarapu Sundra migh have been living there pre-November 2009 but not later;
vii) Muhesh (or Mahesh) Kumar was not living there nor was
viii) Riaz Faisal.
- Leaving aside Dileep Kumar, therefore, who merits his own paragraph, none of the voters registered and none who voted for Mr Bashir were, according to Mr Ullah, resident and entitled to be registered.
- Ms Tennant put Taimoor B Mehmood into Category 1 (inconsistent signatures) and Mahesh Kumar and Asif Ali into Category 2 (signature on PVS does not match).
- I have no doubt that widespread false registrations were carried out at both addresses and that the purpose of those registrations, albeit not fully realised, was to cast those votes for Mr Bashir.
11 Kerry Terrace
- Two voters are concerned here. Mohammed Noor, whose postal vote was cast for Mr Bashir, had returned to Pakistan, where he later died. I have no doubt that this vote was a forgery.
- Mr Abid Hussain, whose documents were Category 2 in Ms Tennant's report, was a hopeless witness. He admitted that he had not filled out his VRF and APV himself but claimed not to remember who had done so, whether it was someone he knew or not, whether it was a person already in the house or who came to the house, whether that person filled out his form only or other people's forms or whether the same person or a different person filled out his VRF as his APV. I could not accept his evidence. It is doubtful in the extreme whether he cast the vote standing in his name or even whether he was resident at the address.
51 Balmoral Drive
- There were five voters registered: Mihaylo Vorobets, Alejunas Linas, Pablak Ireha, Rapacz Czeslaw and Zalys Audrius. The first of these, a Russian-speaking Lithuanian gave evidence which clearly showed that the occupants of this property had the necessary forms filled in for them by a 'Pakistani' visitor who then collected the voting papers from them. These votes were therefore illegally 'harvested' and, while none of the votes has been traced as a vote for Mr Bashir, in the absence of any other evidence of Asians indulging in voting fraud in the Ward, the inferences do not seem too difficult to draw.
19 Bassett Road
- This property is owned by Mr Bashir's cousin, Mohammed Rafiq. Three questioned electors were registered at the address, Mohammed Rafiq, Palayoor Varghese and Thaikattil Daly, though, in the event, the voting documents were found only for Mr Rafiq.
- Ms Farazia Sharif told me that her landlord, Mr Rafiq did not live on the premises and that Thaikattil Daly and another registered voter, Sharjit, had left the property by April 2012. She volunteered that she had been asked to hand over voting documents to Mr Rafiq when he came to the premises. She was clearly a truthful and reliable witness.
- Mr Mohammed Rafiq, who gave also evidence, equally clearly was not. It emerged in the course of his evidence that he was also registered at another property he owned, 32 Kent Road, and that both votes had been cast (for Mr Bashir, naturally). Faced with this incontrovertible evidence (substantiated from Mr Morgan's records) of double voting, Mr Rafiq continued to deny that he voted twice and to assert that he had really been resident at Bassett Road.
- I was left in no doubt that Mr Rafiq, a close relative of Mr Bashir, is properly to be regarded as his agent in this matter and that he had engaged in fraudulent – and thus corrupt and illegal – practices in respect of 19 Bassett Road.
40 Beaufort Road
- This was a property where the number of registered electors suddenly mushroomed just before the election from 2 to 11. The property was certainly occupied by one Mohammed Raja and his family. Mr Raja voted for Mr Ali. There was some second-hand evidence that Mr Bashir's nephew, who lived next door, came round to collect voting papers from number 20.
- The challenged votes are those of Sheeraz Ahmed Muhammad Kashif and Hussain Shehzad, each of which was cast personally (so there are no AFR or PVS).
- Ms Tennant considered that all three AFR for these electors had been completed by the same hand. There is no real evidence to show that these people either lived at 40 Beaufort Road or even existed (though someone cast a personal vote for each of them). It would seem a reasonable inference from the sudden and unexplained influx of people into the address and their subsequent removal from the register by Mr Morgan that this property was being used for ghost voters.
7 Kent Road
- This property was occupied by Asian families, one of whom may have worked for Riasat Khan. The challenged voters are all, apparently, Eastern Europeans - Mihai Aluculesei, Elina Cerniauskaite and Tadas Kaneizcius – but no votes cast in their name were found. I do not think I can or need to make any findings about these electors.
19 Kent Road
- This property is owned by one of Mr Bashir's nominators, his cousin Mohammed Shabir Aslam. There was undoubtedly a genuine resident voter, Mr Zameer Hussain: this was confirmed by Mr Sabir Hussain (witness for Mr Ali) and by Mr Bashir himself.
- The evidence of Mr Sabir Hussain, who knew the property, and of Mr Zameer Hussain himself was to the effect that the two other electors registered at this property, Mir M Naveed and Ikram Zahid did not reside there. The former voted by post for Mr Bashir: the latter's documents were not located.
- Mr Naveed's documents were classified by Ms Tennant as Category 1 – inconsistent signatures.
- I am satisfied that Mr Naveed was a ghost voter and the only possible inference to be drawn is that his vote was arranged by Mr Aslam as part of Mr Bashir's team, thus constituting corrupt and illegal practices.
126 Albert Drive
- Three voters are challenged here: Zafar I Choudhry, Jafar Iqbal and Yasir Iqbal. This property is owned by Mr Bashir's cousin, Nazia Altaf, and her husband, Safdar Azam.
- Mr Sabir Hussain was sure that Mr Choudhry did not live there despite having signed as a witness a tenancy agreement in Mr Choudhry's name dated 7 November 2011, albeit without either of the signatures of landlord and tenant (both of which were 'witnessed by' Mr Hussain) having signed the document at the time. Mr Hussain said he did this as a favour to Mr Azam but says that, in fact, Mr Choudhry never moved in.
- Mr Choudhry did not give oral evidence but a document from HMRC concerning child benefit addressed to him at that address dated 29 December 2011 was produced.
- Mr Jafar (or Zafar) Iqbal did give oral evidence. He said that the forms had been filled in by his sister and he had signed them. A letter from a claims management company was produced addressed to him at Albert Drive and dated 21 September 2011.
- Ms Tennant, on the other hand, firmly put all three of these votes in Category 2, where the signature on the PVS did not match that on the AFR and ATV.
- I consider that it is (just) more likely than not that these men did reside at some time at Albert Drive. I have very grave doubts indeed whether any of them really did vote for Mr Bashir (or at all). The evidence does not justify me finding as a fact proved beyond reasonable doubt that any of these votes involved corrupt or illegal practices but the circumstances remain highly suspicious.
129B Devonshire Avenue
- This property is apparently owned by Ahmed Shabir, a cousin of Riasat Khan.
- Multiple names are challenged here: Meteusz Sitro, Shabir Ahmed, Syed Raza Ali, Viktor Hev'yak, Shahnaz Bi, Grazyna Kostrzewa and Faheem Zafer. Again, this is one of those properties in which it is said that occupants came from both the Asian and the Eastern European community. Unusual but by no means impossible.
- The first four voted by post for Mr Bashir. The last name, Faheem Zafer, was found to have voted in person but his voting paper was not located. He was shown to have been in Pakistan at the time so whoever voted in his name was clearly guilty of personation.
- Shabir Ahmed gave evidence to establish that he had been resident and had voted by post for Mr Bashir. When cross-examined, however, he appeared to have no idea what a ballot paper was. He also said that Shahnaz Bi was his wife but had not moved into the property until August 2012 when his girlfriend moved out. Shahnaz Bi had apparently voted by post but her vote had been rejected. If, indeed, she was not resident in Devonshire Avenue at the time, then her abortive vote was obviously fraudulent
- Shabir Ahmed's vote was classed by Ms Tennant as Category 1 (inconsistent signatures).
- As was the vote of Syed Raza Ali. He gave evidence. He attempted to explain the inconsistent signatures by saying that the forms had been filled in for him by Syed Hussain but he had signed them. He was not convincing.
- The voting documents of Meteusz Sitro and Viktor Hev'yak were classed by Ms Tennant in Category 2 (signature on PVS does not match that on ATV). I have no doubt that these were bogus votes and that the registration of Grazyna Kostrzewa was equally false.
- I must conclude that corrupt and illegal practices occurred at this address.
165 Devonshire Avenue
- Only one vote is concerned here – Wahab Sahi. Mr Bashir said he was out of the country and could not give a statement. There was some controversy about whether Mr Bashir's aunt lived in the premises but, as she was not on the list of challenged registrations, this did not seem to take the matter further.
- The evidence on Mr Sahi is inconclusive.
17 Lockwood Path
- The challenged vote was a proxy vote cast for Mr Mohammed Yaqoob. Mr Yaqoob gave evidence and it is probable that his account of signing the proxy documents just before departing for Pakistan was substantially true. I did not find fraud in this instance.
48 Arnold Drive
- I need not spend much time on this property. There was clear evidence that the occupant of the property Zafar Faheem or Faheem Zafa was away at the time and was personated at the polling station by someone else. His ballot paper was not located and there is no indication for whom he voted.
165 & 185 Boundary Road
- 165 Boundary Road was said to contain a registered elector who was a serving prisoner. Fortunately his vote (genuine or not) was not located so no point is served in attempting to ascertain whether his name was falsely used to vote for Mr Bashir or whether it was actually used by the prisoner (which might bring down the wrath of the European Court of Human Rights down upon me).
- 185 Boundary Road, is, however, a different story. This property is owned by Mohammad S Rehman, Mr Bashir's partner in his taxi business.
- Six registered voters are challenged at this address: Faraz A Rehman, Talib Hussain, Ahmed J Rehman, Irfani Ahmed, Rehman Dalil-Ul and Shafique Rehman Zainab. The first three voted by post for Mr Bashir but no votes were found for the last three. Mr Mohammad S Rehman voted in person from this address and his vote is not challenged.
- Neel Thakerar, a clerk employed by the Petitioner's solicitors, called at this property and spoke to someone he believed to be Faraz Rehman who said that Talib Hussain had not lived at the property for many years.
- Faraz Rehman on the other hand said that he lived at the premises with his father and mother. He denies having spoken to Mr Thakerar and asserts that Talib Hussain (his uncle) was resident at the property in 2012. He was less than certain on this latter point because he said that Talib Hussain was often in Pakistan (indeed was so at the time of the hearing) but stayed at the premises from time to time. This man seems also to have had an address at Mr Bashir's home. Faraz named several members of his family as living at the premises. He said that Rehman Dalil-Ul was another uncle but seemed vague as to how much time he spent at the premises. He was also less than definite about Shafique Rehman Zainab whom he described as his 'father's wife' (though not Faraz's mother).
- Mr Ahmed Rehman gave evidence to the effect that he had genuinely voted by post for Mr Bashir. In his case, whether or not he was telling the truth, his vote should never have been admitted. The signature on the PVS did not purport to be that on the ATV. The signature on the ATV was an ordinary cursive signature. The signature on the PVS was his name printed in block capitals. Given that the whole point of the identifiers is to enable the RO's staff to reject PVS where the signature does not match the ATV, this shows, once again, how dangerous and inadequate the system has become. No blame attaches to Mr Morgan – mistakes will occur even in the best regulated organisations (in which category I unhesitatingly place Mr Morgans' organisation).
- Thus Mr Rehman may have been telling the truth – I am certainly prepared to give him the benefit of the doubt. By a slip in the system, however, a non-compliant vote was improperly admitted.
- Ms Tennant's evidence was that the voting documents of Faraz Rehman, Talib Hussain and (of course) Ahmed Rehman all came into Category 2 where the signature on the PVS did not match that on the other two documents.
- I have grave doubts whether this property was quite as full of Mr Mohammad Rehman's family as is now claimed. Whether Faraz's vote is genuine, I simply cannot tell but I am satisfied that the vote cast in the name of Talib Hussain was not a valid vote and known to be so by whoever cast it.
219 Boundary Road
- This property is also owned by Mr Mohammad S Rehman, Mr Bashir's business partner.
- The one vote challenged here – Nazim Hussain – was cast in person. It is extremely unlikely that he lived at this address: on balance his real residence was 45 Albert Road. It is common ground, however, that he was an illegal immigrant and was subsequently deported. He cannot therefore have been eligible to be registered at this address or to vote.
59 Courtenay Road
- This property is owned by Mr Bashir's cousin, Nazia Altaf and her husband Azim Altaf. Three Bashir votes are challenged: Nazia Azim, Yasin Altaf and Azim Altaf. A fourth registered elector, Abrar Khan is also contested.
- Mr Ali visited the property and was told by a man called Sanjeen Ahuja that Yasin Altaf and Azim Altaf did not live there. Ms Evans also spoke to Mr Ahuja more than once and was told that none of the four was resident. Ms Evans also spoke to the next-door neighbour Mr Christopher Bolton who confirmed that Yasin Altaf did not live at number 59.
- Mr Bashir himself said that his cousin and her family did not actually live at Courtenay Road but merely registered there for electoral purposes. This was somewhat mysterious as he described them as actually living at 215 and 219 Albert Drive which is also in the Ward.
- Mr Ahuja himself gave evidence and claimed that, while Azim Altaf and Nazia Azim did not now live there, they had lived there in 2012. Similarly Abrar Khan was there and he was still living at this address.
- Mr Morgan removed each of Nazia Azim, Yasin Altaf and Azim Altaf from the register for this property.
- Ms Tennant placed Yasin Altaf and Azim Altaf in Category 2 – PVS signatures not congruent with ATV signatures. The documents for Abrar Khan were in the same handwriting as the documents of six other voters.
- I am satisfied that the three contested votes were cast by or in the names of people who were not genuinely resident at 59 Courtenay Road and were thus fraudulent.
89 Courtenay Road
- This property is owned by Mohammed Karim Khan, one of the Khan brothers of Khan General Stores. No fewer than eight new 'residents' were registered shortly before the deadline.
- The challenged electors are: Abrar Hussain, Sindu Kunjappen, Ahmad Habib, Bashir Ahsan, Faried Naiyar, Kiani Mohammed M and Mawyil Kesavan Banesh of whom the first two were found to have voted for Mr Bashir. The real occupant seems to have been Mohammed K Khan who genuinely did vote for Mr Bashir and his vote is not challenged. He told Ms Evans that he and his family were the only people living there. Mohammed Bashir Khan said he acted as caretaker of several properties for the brothers and even asserted that one of the Dileep Kumars lived there.
- The realistic conclusion is that numerous false voters were registered at these premises from whom two postal votes were cast for Mr Bashir. The involvement of the Khan brothers would seem to make a connection with Mr Bashir inescapable.
93A Courtenay Road
- This flat is owned by Mohammed Bashir Khan, of Khan General Stores – it is the flat above the Store.
- This flat had five registrations at the last minute, mainly Eastern European names. Once again, one of the Dileep Kumars was registered – they may be taken to be fairly ubiquitous in the Ward.
- This flat was, so to speak, blown apart by Ms Rosamma Varkey. She lived in the flat in 2012 with her husband and children. She was validly registered to vote and did so. She said in terms both that neither of the Dileep Kumars was living there and no Eastern Europeans whatsoever.
- One of the Dileep Kumars gave evidence and claimed to live there (and possibly also at 135A Princess Road). He was unable to explain the oddities found in the electoral documentation. At this point I have to say that, having seen both Dileep Kumars, I came to the conclusion that they were a pair of rogues, who flitted from property to property, voting at will: indeed a wag might have called them true floating voters. I did not believe their evidence.
- I am quite satisfied that neither of the Dileep Kumars resided in this flat and that the vote cast in that name was fraudulent. The registrations of the Eastern Europeans were equally bogus, though no successful attempt seems to have been made to use those votes.
- Given that this was occurring in a property above Mr Bashir's campaign headquarters and owned by the Khan brothers, Mr Bashir's protestations of innocence do seem somewhat optimistic.
15 Eve Road
- This is a property owned by Mohammed Halim Khan, of Khan General Stores. There were several last minute registrations, making nine voters in a two-bedroom flat. Four Bashir votes are challenged: Rameez A Butt, Zubair A Awan, Naveed Ahmed and Hafiz Q Khan.
- Ms Tennant placed the Zubair A Awan documents in Category 1 and the Hafiz Q Khan documents in Category 2. This meant that the signatures on the PVS were suspect.
- Hafiz Qaiser Khan and Naveed Ahmed both gave evidence. The former said that the signature on the PVS was his but admitted to having lived in a multiplicity of addresses at dates of which he was not quite sure. He was an unconvincing witness. Naveed Ahmed was a bit confused but I felt should be given the benefit of the doubt.
- I am satisfied that there were bogus registrations at this property. It is virtually certain that the votes of Rameez A Butt and Zubair A Awan were false and I have considerable doubts about that of Hafiz Qaiser Khan.
- The other five registrations: Asif A Khan, Asad Ullah, Jan Farhat-Ullah, Jan Jahangir Khan and Zakaullah Zakaullah were in my judgment fictitious.
89 Walton Court
- This property was owned by owned by Karim Khan of Khan General Stores. Three registrations were challenged: Kauser S Zar-khan, Mohammed Zar-Khan and Mohammed S Zar-Khan. Only the first of these voted (for Mr Bashir and in person).
- Ms Kauser S Zar-khan gave evidence. I was quite satisfied that she did indeed vote but the burden of the evidence was clear that she and the other two members of her family were in fact resident at 21 Tressillian Way, in another ward, and should not have been registered at Walton Court. I suspect that she did not realise that what she was doing was illegal but those who put her up to it undoubtedly would have done.
96 Walton Court
- The evidence here is unclear and I make no findings.
115 Maybury Road
- The only challenged vote here is that of Sandra Vitola. The evidence concerning this voter is ambiguous and I am not satisfied that there was fraud in this instance.
Conclusions as to the Properties
- Viewing the properties as a whole, I was left in no doubt that false registration and false votes (both personal and postal) had been widespread in the Ward.
- The evidence was overwhelming that these frauds had been perpetrated by Mr Bashir's team of close relatives and associates – indisputably his agents for electoral purposes.
- Whereas with several properties Mr Ali was unable to establish fraud and had to remove his challenge and with others the evidence was sufficiently ambiguous for me not to be able to make findings on the basis of the criminal standard of proof. More than sufficient properties remained, however, to prove electoral fraud to the hilt.
Conclusions as to general corruption
- From what I have said above it naturally follows that the corrupt practices that occurred in the Ward were sufficiently widespread as to justify a finding of general corruption. Indeed Mr Stein virtually conceded that such a finding was almost inevitable.
- The next question is therefore whether, on this occasion applying the civil standard of proof, I am satisfied that it may 'be reasonably supposed to have affected the result'. Given that the number of fraudulent votes conclusively proved to have been cast for Mr Bashir exceeded the margin by which he won the election, this question answers itself.
Conduct of the Election
- The fact that there was widespread and successful fraud in the Ward is no criticism of the conduct of the election by the Returning Officer. Mr Morgan gave evidence before me. He was an impressive witness and I was left in no doubt that the electoral affairs of Woking are run as well as one could possibly expect. Mr Morgan was clearly irritated and frustrated that there had long been persistent allegations of fraud in the Ward but those making the allegations had always in the past been unable to substantiate them. There was clearly enough evidence of fraud to alert the Police and the CPS to the need to investigate but each time there was never quite sufficient evidence to make a prosecution viable. Both Mr Morgan and the prosecuting authorities pointed out, reasonably enough, that the correct way to challenge elections allegedly procured by fraud was by launching an election petition, although both recognised that this was an expensive and anachronistic method of trying to keep elections honest.
- Mr Morgan, as the citation from his evidence above demonstrates, is also somewhat frustrated that the powers of an ERO or an RO are too limited to allow him to take effective steps to nip electoral fraud in the bud.
- Mr Morgan and his legal team have been of enormous assistance to the court. By instructing Mr Timothy Straker QC to represent him at the hearing, Mr Morgan ensured that the court had the assistance of one of the country's leading experts in electoral law and the circumstances of the case, where no criticism was being made of the conduct of the election, meant that Mr Straker could maintain an entirely neutral stance and act as an official amicus curiae. His assistance was, as always, invaluable both to the court and to the parties' legal teams. I was also greatly helped by a schedule of the evidence relating to each of the properties compiled by Ms Dias of counsel who acted as an unofficial junior to Mr Straker.
- Mr Morgan's system of computerised records ensured that information from any part of the Borough could be and was called up at a moment's notice to assist the court.
- In short, Mr Morgan runs a tight ship. It is not his fault that he is an honest man called on to operate a dishonest system.
Mr Alex Stein
- It is no implied criticism of Mr Potts, whose conduct of the Petitioner's case was exemplary, to single out Mr Stein. He appears to have accepted instructions on the Friday immediately before the commencement of the hearing on Monday 8 July 2013. Though one would not have guessed it from his demeanour, his instructions were clearly exiguous and he was bombarded with statements produced by his client during the trial (few of which had been seen by – let alone taken by – his solicitors). He was completely unfazed by some of the more unfortunate answers given by his witnesses. His arguments were skilful and carefully avoided appearing to endorse the obvious mendacity of his client's witnesses. Producing a masterly performance in a case taken up at the last minute is what the Bar should be about and Mr Stein fully lived up to that ideal.
- Applying, therefore, as I must, the criminal standard of proof, I am satisfied and certify that in the election for the Maybury and Sheerwater Ward of Woking Borough Council on 3rd May 2012:
i) the First Respondent Mr Bashir both by himself and by his agents was guilty of the corrupt practice of personation contrary to s.60 of the 1983 Act;
ii) the First Respondent Mr Bashir both by himself and by his agents was guilty of corrupt practices contrary to
of the 1983 Act;
iii) the First Respondent Mr Bashir both by himself and by his agents was guilty of illegal practices contrary to
a) s.13D(1) of the 1983 Act
b) s.61(1)(a) of the 1983 Act
c) s.65(1) of the 1983 Act
d) Sch 4 para 8 of the 2000 Act.
- I am also satisfied to the relevant standard of proof and certify that in the election for the Maybury and Sheerwater Ward of Woking held on 3rd May 2012:
i) there were corrupt and illegal practices for the purpose of promoting or procuring the election of the Respondent Mr Bashir at that election and
ii) those corrupt or illegal practices so extensively prevailed that they may reasonably be supposed to have affected the result of such election.
- Consequently I declare the election of Mr Bashir as councillor for the Maybury and Sheerwater Ward of Woking to have been avoided by such corrupt or illegal practices pursuant to s.159(1) of the 1983 Act and also to have been avoided on the ground of general corruption pursuant to s.164(1)(a) of the 1983 Act.
- It is declared that Mr Bashir shall be incapable of being elected to fill the vacancy for the Maybury and Sheerwater Ward of Woking under s.164(1)(b) of the said Act.
- As I am required to consider the matter under s.145(3) of the 1983 Act, I find that there is no reason to believe that corrupt practices have extensively prevailed at the election of 3rd May 2012 in any other part of the area of Woking Borough Council.
- My conclusions will be embodied in the certificate of the court and will be the subject of my report to the High Court under sections 145, 158 and 160 of the 1983 Act.
- The Birmingham judgment was the first arising from mass electoral fraud resulting directly from the introduction of postal voting on demand. I had hoped that, by drawing attention to the flawed basis of the scheme and the opportunities it had created for vote-rigging on an industrial scale, public and Parliament would be alerted to the problem and that something might be done about it.
- I was wrong.
- In Slough, where the problem of roll-stuffing came to the fore and where the combined effect of a wholly insecure registration system and postal voting on demand had allowed the creation of phantom armies of 'ghost voters', once again I hoped that some action might be taken.
- I was wrong again.
- Nine years have passed since the fraudulent Birmingham election and five since the Slough judgment. The media and the public are fully alive to the threat that electoral fraud poses to our democracy. The politicians are in denial and, it must be said, the approach of the Electoral Commission would appear optimistic even to Dr Pangloss.
- I concluded the Birmingham Judgment with the words:
"The systems to deal with fraud are not working well. They are not working badly. The fact is that there are no systems to deal realistically with fraud and there never have been. Until there are, fraud will continue unabated."
- And the Slough Judgment with:
"It would have been pleasant to conclude this judgment by saying that this had now all changed. But I cannot. Despite the 2006 Act, the opportunities for easy and effective electoral fraud remain substantially as they were on 4th April 2005."
- And here we are again.