M/325/07
Neutral Citation Number: [2008] EWHC B5 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (Election Hearing)
Date: 2 April 2008

In The Matter of an election for the Aston Ward of Birmingham City Council held on 3 May 2007

BEFORE 

MR COMMISSIONER STRAKER QC
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BETWEEN:

SAEED AEHMED
Petitioner
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MUHAMMAD AFZAL (1)
STEPHEN HUGHES (2)
Respondents
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MR GRAHAM BRODIE  (instructed by MS FATEMA PATWA of Patwa Solicitors)
appeared on behalf of the Petitioner.

MR GAVIN MILLAR, QC  (instructed by MR GERALD SHAMASH of Steel and Shamash, London)
appeared on behalf of the First Respondent.

MR PHILIP COPPEL, assisted by MS ESTELLE DEHON,  (instructed by MR ROBERT CONNELLY on behalf of Mirza Ahmed, Chief Legal Officer, Birmingham City Council)
appeared on behalf of the Second Respondent.

Mr GERALD BERMINGHAM appeared on behalf of the Director of Public Prosecutions
(instructed by the Director of Public Prosecutions, York)
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Judgment

Introductory paragraphs

1.	Between 31 October 2007 and 29 February 2008, I, as a commissioner appointed under the Representation of the People Act 1983, heard, over the course of 24 days, an election petition, which questioned the election in May 2007 of Mr Muhammed Afzal for the Aston Ward of Birmingham City Council.  It is unfortunate that the time estimate given by the parties proved to be wholly wrong.

2.	The election was required to be held in consequence of the Local Government Act 1972.  It had to be conducted in accordance with that Act and Part I of the Representation of the People Act 1983.  

3.	Such an election is capable of being challenged by, amongst others, a candidate at the election.  The Petitioner, Mr Saeed Aehmed was such a candidate.  He had stood as a Liberal Democrat.  Mr Muhammed Afzal, the First Respondent, was the successful candidate.  He stood as the Labour Party candidate.  He received 2684 votes.  Mr Abdul Aziz, the Respect party’s candidate received 2018 votes and came second.  The Petitioner received 2005 votes and was third out of six candidates.  

4.	The trial of an election petition has to be within the area of the authority to which the election was held and I am required to determine whether Mr Afzal was duly elected or whether the election was void.  For reasons I shall make plain, I determine that Mr Afzal was duly elected and that the election was not void.  I am able at the same time as making my determination to make a special report to the High Court as to matters arising in the course of the trial, which in my judgment ought to be submitted to the High Court.  This document records both my determination and that report.

5.	Election petitions provide the only basis for challenging an election and are provided for by the Representation of the People Act 1983.  The petition in this case claims avoidance of the election, first, under Sections 106 and 159 of the 1983 Act and, second, under Section 164 of the 1983 Act.

6.	The allegations in the petition were to the effect that Mr Afzal had pursued an illegitimate smear campaign against Mr Aehmed.  This campaign, it was said, was conducted by means of a document, distributed prior to the poll, and statements made on polling day itself.

7.	Mr Brodie for Mr Aehmed said I should consider the evidence in respect of the polling day statements first and then the evidence in respect of the document.  Mr Millar for Mr Afzal would have it the other way round.  I do not consider either, in those narrow terms, to be correct.  In consideration of any aspect of the petition I am informed by the evidence which I have received over many days; my assessment of the evidence relating to the document is undertaken in the context of all the evidence.  The same is true for the polling day statements.  Accordingly, my assessment of that evidence may be affected by relevant evidence about prior events.

8.	I should mention that it is not in dispute but that the role of an election court is, at least, in part inquisitorial.  It can be noted that all constables and bailiffs are required to give their assistance to the court in the execution of its duties:  Section 131(2).  It was necessary for me to draw attention to this provision in the course of this case.

Section 106 of the Representation of the People Act 1983
9.	Section 106 of the Representation of the People Act 1983 lies at the heart of the principal claim in the petition.  Subsection (1) provides that a person who before or during an election for the purpose of affecting the return of any candidate makes or publishes any false statement of fact in relation to the candidate’s personal character or conduct shall be guilty of an illegal practice, unless he can show he had reasonable grounds for believing, and did believe, the statement to be true.

10.		I received detailed submissions as to the proper approach to Section 106.  Given that I carried out my assessment of the evidence in the light of my approach to Section 106 it would be as well for me to record my views as to the construction of that section at this stage.
11.		Section 106, if breached constitutes an illegal practice, which can found an election petition.  It also constitutes a criminal offence. Accordingly, the burden of proving that which is required by Section 106 rests on the Petitioner and the standard of proof to which I have to be satisfied is beyond reasonable doubt.  The parties did not disagree with this approach.  Indeed it would have been difficult for them to have done so given the decision to that effect of the Court of Appeal in R v. Rowe, ex p. Mainwaring [1992] 1 WLR 1059.

12.		However, there was a dispute between the parties to this effect.  Mr Brodie submitted that a respondent to a petition had the burden of proving the truth of any statement of fact.  In other words the statutory language making or publishing “any false statement of fact” provided not that a petitioner has to prove the falsity of the statement of fact but rather merely that he had to prove the statement was made with the respondent having the burden of showing the truth of that statement.

13.		I consider Mr Brodie’s submission to be ill-founded. First, when one looks at section 106(1) as a whole it is soon appreciated that Parliament has provided for a circumstance where the burden of proof will fall on a respondent.  Thus, there is a proviso for a respondent to show that he had reasonable grounds for belief.  

14.		Second, the statutory language is perfectly clear.  It makes plain that the ingredients of the illegal practice, and, hence, the offence, are constituted by, at a particular time and for a purpose, making or publishing any false statement of fact in relation to a candidate’s personal character or conduct.  Subject to one exception at common law the invariable practice is that the ingredients of the offence have to be proved by the prosecutor.

15.		Third, I found unconvincing the proposition advanced by Mr Brodie based on criminal libel.  This is self evidently not a case of criminal libel and the particular requirements of that jurisprudence do not suggest a transfer to this area of the law.  On Mr Brodie’s approach there would be,what is called, a reverse burden of proof.  It is clear that such burdens require clear words; such words are not present.

16.		The preceding observations do not dispose of the debate over section 106.  There is a real question as to what is potentially embraced by the wording “false statement of fact in relation to the candidate’s personal character or conduct”.  The rival arguments are to this effect.  On the one hand, it is said, the wording is concerned with speech and freedom of speech is an important matter, expressly protected under article 10 of the Convention for Protection of Human Rights and Fundamental Freedoms, which is scheduled to the Human Rights Act 1998.  

17.		On the other hand, it is said the wording is unexceptional.  Free and fair elections are a necessary ingredient of a democratic state so that, in consequence, the wording should not be viewed restrictively.  Indeed the right to free elections, it is observed, is also scheduled to the Human Rights Act, being article 3 of the first protocol.

18.		I consider, absent any authority, the following is the proper approach to the construction of the words “false statement of fact in relation to the candidate’s personal character or conduct”.  First, they must be interpreted bearing in mind that they are used to create a criminal offence.  They, therefore, should be interpreted narrowly. Secondly, they have to be interpreted having regard to the fact that they are concerned with speech, which is subject to the European Convention on Human Rights. Third, it ought to be remembered that interpreting them broadly might be thought an inhibition on speech at elections.  Fourth, they, nonetheless, have to be given meaning as Parliament plainly considered some speech to fall within the limited inhibition of Section 106.  Moreover article 10(2) of the Convention expressly enables free speech to be subject to restrictions or penalties which are prescribed by law and necessary in a democratic society for the protection of reputations or rights of others.

19.		This approach leads to a focus on the fact that the section is concerned with speech relating to personal conduct or character.  What is personal conduct or character?  To what extent does conduct for one who submits himself to the scrutiny of the electorate become something other than personal when it would undoubtedly be personal for (say) a recluse?  Is what is personal affected by the nature of current political concerns?  All sorts of historical examples can be brought to mind, especially when one bears in mind that the press in former times was, so it appears, more restrained than it is today in detailing what some regard as personal matters.

20.		Although the expression should be construed narrowly rather than broadly, effect still has to be given to the words used.  Undoubtedly personal is used to qualify conduct and character and I do not consider it right that a political consequence necessarily disqualifies something from being personal. For instance, the exposure in a divorce suit, of the relationship between Charles Stewart Parnell M.P. and Kitty O’Shea (the wife of Captain O’Shea M.P.) had profound political consequences but it is difficult to describe the relationship as other than personal.  In other words, at an election one could without offending against Section 106 make a statement of fact in which one reasonably believed about Mr Parnell’s personal life and one could make a false statement of fact about his political character or conduct.  But his political character or conduct would not have embraced his personal life with Kitty O’Shea.

21.		In argument it was mooted that a statement that an anti abortion candidate has had or procured an abortion might be in the realms of politics whereas if abortion was not an issue a statement that a candidate, at some earlier date, had had or procured an abortion might be thought personal.  On that basis, what is personal is affected by, amongst other things, the character of public discourse.  

22.		However, I am not convinced that merely because a subject matter has entered the realms of public debate that something which is otherwise personal ceases to be personal.  For instance, the approach to divorce and matrimonial fidelity has been a matter of public debate but would this mean that a statement of fact about Mr Lloyd George’s character or conduct in his family life would cease to be personal?

23.	There is no reported case in respect of a statement made at a time when the Human Rights Act 2000 is in force.  Halsbury’s Laws of England 4th edition 2007 reissue gathers a number of the cases arising under Section 106 or its predecessors at paragraph 683.  The following is stated:
	“The false statement of fact need not be defamatory at common law [but must be] calculated to influence the electors [... with it being] essential that it ... relate[s] to the personal character or conduct of the candidate.”

24.	In the Sunderland Borough Case (1896) 5 O’M&H 53 (cited in Halsbury’s Laws at footnote 9) it was said that a mere argumentative statement as to the conduct of a public man, even though in respect of his private life, is not always, and in many cases certainly not, within Section 106.

25.		In the Cockermouth Division of the County of Cumberland (1901) 5 O’M&H Darling J said that there was a great distinction between false statements of fact, affecting personal character or conduct, and false statements of fact, dealing with the political position, reputation or action of the candidate. This case seems to distinguish between, on the one hand, the personal and, on the other hand, the political.

26.		In DPP v. Edwards [2002] EWHC Wright J, with whom Lord Woolf of Barnes C.J. agreed, said that nothing in the judgment in Edwards’s case was intended to derogate from that principle, i.e. the distinction between the personal and the political. 

27.		However, in the Edwards case a statement about a chairman of the Housing Committee of a Council to the effect that he had handed his son-in-law’s company a building contract was held to be a false statement of fact relating to personal character or conduct.  This was on the basis of a distinction between an act of a Council through its committee and personal involvement as chairman of the committee.

28.		In Edwards’s case the Court referred to Derbyshire v. Times Newspaper Ltd [1993] AC 534 in which the House of Lords emphasised the high public importance of elected bodies being open to uninhibited public criticism.  Further, Lord Woolf emphasised that the defence of reasonable grounds for belief had not been pursued owing to the erroneous belief that another defence was available.  These cases along with Livingstone v. Standards Board (2006) appear to support a distinction between what is personal and what is political.  However, they do not detract from the proposition that Section 106 is to be interpreted narrowly.

29.		Mr Millar emphasised that although an inhibition on free speech could be warranted under the term of Article 10 of the Convention, it was nonetheless necessary, in any individual case, to be able to gauge that such an inhibition was proportionate.  This proposition as put by Mr Millar appears to be correct.  

30.	I consider that if the approach to Section 106 is as I have stated, then the proportionate outcome should invariably or, at least, almost always follow.  The words spoken will have to be considered contextually to see if they are truly personal and, if they are, the Convention allows for reputational protection.  Such does not constitute an undue inhibition or free speech especially bearing in mind that one can make statements about a rival candidate’s personal conduct or character provided one reasonably believes in that one says.

31.		Accordingly, I can now draw together the threads in respect of Section 106.  First, a narrow rather than broad construction is preferable. Second, there is a distinction between the political and the personal, but it may be possible, depending on the circumstances, for something otherwise personal to be categorised as relating to political character or conduct. However, politicians alone cannot dictate what is or is not personal. Third, Parliament has, nonetheless, sought to provide a reputational protection at elections in respect of personal character or conduct with a proviso for reasonable grounds of belief. This reputational protection can be supported under article 10.2 of the Convention because something can properly be regarded as personal whether or not it arises in the context of an election and reputation can be protected under law without impeding either the principle of free speech or the free and fair conduct of an election.

32.		I should mention in this discussion of Section 106 that in consequence of Section 159 the election of a candidate who is reported personally guilty or guilty by his agents of any illegal practice under Section 106 is void.

Section 164 of the Representation of the People Act 1983
33.		The second way in which the petition claims avoidance of the election is under Section 164.  That section, for present purposes, provides that if it is shown that illegal practices for the purpose of promoting the election of any person have so extensively prevailed that they may reasonably be supposed to have affected the result then that person’s election, if it occurred, shall be void.

34.		There is no authority as to the meaning of extensively prevailed.  I take the view that these words signify that the practices at issue must have been prevalent and that such prevalence must have been extensive, which might be on a temporal or geographic basis or both.

Section 145 of the Representation of the People Act 1983
35.		My report under Section 145 of the Act has to 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.  It should be noted that this requirement, which is imposed by Section 158(1), is not limited to the candidate whose election is questioned.  I drew attention to this provision in the course of the hearing.  However, there is no suggestion or evidence before me that any candidate other than the Petitioner and the First Respondent committed any corrupt or illegal practice.

36.		Under Section 159(1) if the elected candidate is reported personally guilty or guilty by his agents of any corrupt or illegal practice his election shall be void.

The Petition
37.		In the petition it is alleged that the First Respondent was personally and by his agents guilty of illegal practices by making and publishing, before and during the election, false statements of fact in relation to the personal character and conduct of the Petitioner for the purpose of affecting the return of the Petitioner at the election. That, it is said, is contrary to section 106(1) of the Representation of the People Act 1983. In the vernacular it is said that the First Respondent conducted an illegitimate smear campaign.

38.	Further, it is stated (at paragraph 7 of the petition) that the practices were committed for the purpose of promoting the election of the First Respondent and so extensively prevailed that they may be reasonable.   The smear campaign can be divided, as it was in the petition, into that which was said, generally, at or in the vicinity of polling stations on the day of the poll and that which was written and distributed in Aston.

39.	As is no doubt often the case the circumstances affecting the election of 2007, which have found expression in this case, constituted the running together of a number of threads. In order to understand those threads and the smear campaign on which the petition is founded it is necessary to state something of the history of both the Petitioner and the First Respondent

Two Election Leaflets
40.	However, before embarking on that history it is desirable to describe two crucial documents that came to be distributed in the course of the election of 2007. I find that the first in time of these leaflets is that produced on behalf of the Petitioner. This leaflet had on one half of a page a photograph of Mr Aehmed with certain details about him beneath the photograph. On the other half of the page there was a column designed to reveal a contrast between Mr Aehmed and Mr Afzal. 

41.	This column was headed by the words “what you need to know about your Labour candidate before you vote.” It continued, alongside a representation of a judge in a full bottomed wig pointing a finger, by stating “ the High Court Judge Richard Mawrey QC found the Labour Candidate Muhammed Afzal along with his two other colleagues …guilty of general corruption in the 2004 election fraud case…[Mr] Mawrey QC…stated that Muhammed Afzal lied like a trooper… .” The document also drew attention to a claim, so it was said, that Mr Afzal lived locally. It was said he did not. 

42.	Both columns had running underneath them the question encompassed by the words “who would you sooner have as your councillor?”.

43.	The Liberal Democrat leaflet to which I have just referred prompted Mr Afzal to produce a leaflet which, amongst other things, asserted that in 2002 the present Liberal Democrat candidate (i.e. the Petitioner) was dumped by Labour when he failed to provide satisfactory answers to allegations about receiving thousands of pounds in disability grants.  The words thousand of pounds in disability grants appear to have been printed in bold type.  The evidence is that this leaflet was distributed by being placed through letter boxes on the Wednesday which immediately preceded polling day.

44.	After another sentence, in which it was recorded that at the 2002 election Mr Aemed was rejected by the voters who elected the official Labour candidate, the question was asked who can trust Saeed Aehmed. Dumped by Labour, it was then said in bold type, but welcomed by the Lib Dems. 

45.	The text to which I have referred is headed by the words “Disability Grant”. Those words are in turn headed by the following sentence. “If the Lib Dems claim to be tough on crime; maybe they should start at home first.” There is then an arrow which points to text which says that credit card fraudsters go to jail. Reference is made to the processing of stolen credit card transactions. There is then a reference to certain men being jailed. Only one name, however, is given namely, in bold, Shahadat Ahmed, 25 of Aston.

46.	A part of the page is given over to the fact that Mr Aehmed had changed his name and above the reference to credit card fraudsters it is stated, lest it may be supposed anyone failed to make the connection between Shahadat Ahmed and the Petitioner that the Lib Dem candidate’s son [had been] convicted for credit card fraud. 

A summary of the position of the parties
47.	The petition alleges illegal practices.  Six particulars are given in the petition.  The sixth particular relies on the statement, to which I have just referred. The five other particulars contend that at particular places on polling day the First Respondent or others orally made false statements within Section 106. Mr Brodie did, at an early stage, seek leave to amend the petition. This request was declined as, generally, petitions cannot be amended. (However, given that petitions have to be brought rapidly further particulars of a pleaded allegation can be given. Whilst that did not occur in this case the parties were able to adduce relevant evidence in respect of all matters arising).  

48.	In summary, therefore, the statements of which the Petitioner complains are as follows.  First, he complains of a statement that he had been guilty of serious misconduct in relation to his receipt of thousands of pounds by way of disability grants.  Second, he complains it was stated that he had been involved in fraud concerning disability grants. These two complaints are derived from the document I have described. Third, he complains it was stated that he had been arrested or done for fraud.  Fourth, he complains it was stated that he had been arrested for postal vote fraud. These two are derived from the oral statements made on polling day.

49.	Mr Afzal contends that the statements he made in the distributed document were true and that, in any event, he had reasonable grounds for believing them to be true. He maintains that he did not make the oral statements complained of. 

50.	Mr Aehmed maintains that the statement he made about Mr Afzal was true or that he had reasonable grounds for believing it to be true. 

51.		Mr Coppel and Miss Dehon for the Returning Officer maintain that the election was conducted in accordance with the relevant rules and that the Returning Officer’s staff ran the polling stations as efficiently as possible. 

My Consideration
52.	It is therefore apparent that my consideration of the history has to embrace at the least the question of the grants sought by Mr Aehmed in respect of his house, his deselection as a Labour party candidate, and the effect of the election petition in 2005. I also have to consider what took place on polling day itself. 

General History 
53.	The Petitioner was born in Kashmir, Pakistan in 1955.  He came to live in the United Kingdom in 1971.  He settled in Birmingham in 1971 and moved to 91 Bevington Road in 1978.  This is a property in Aston which he had purchased with his brother-in-law, Matloob Hussain.  Mr Hussain is the Petitioner’s cousin as well as being his brother-in-law.  The Petitioner moved into 91 Bevington Road with his wife, whom he had married in 1977, and Mr and Mrs Hussain and their children.  The purchase money was, as it seems, in part borrowed from relatives and, in part, given by the Petitioner’s father-in-law.

54.	The Petitioner lived at 91 Bevington Road until 1996 when he says, in circumstances I shall describe, he moved into 99 Bevington Road.

55.	The Petitioner has four children of whom the eldest is Zobariya Ahmed. She gave evidence before me, as did the elder son Shahadat.  The Petitioner’s wife did not give evidence.  According to the Petitioner, she first came to this country aged about 4 and returned to Pakistan aged 7.  She had, according to Mr Aehmed, no education in this country; she may have had some education in Pakistan with Urdu being the language of instruction.  She does not, according to the Petitioner, at least not well, speak or write English.

56.	The Petitioner is in receipt of incapacity benefit and first received such benefit in 1982.  He has received it continuously ever since.  
57.	The Petitioner was until July 2003 an active member of the Labour Party.  He was selected in 2002 by the local Labour ward party to stand for the local government elections in the Aston ward as the Labour Party candidate.  However, he asserts that the regional office of the Labour Party was not happy with his selection and that matters were so manipulated that he was not able to stand as the official Labour Party candidate.  That role was given to another, namely, Mr Anthony Kennedy.  The Petitioner nonetheless stood as Labour Party Candidate but without the appellation official.

58.	The Petitioner resigned from the Labour Party in July 2003 because of the Iraq war.  At some point thereafter he joined the Liberal Democrats and was selected as their candidate for the Aston ward in 2007.  He maintains that by that time there was a background of enmity towards him within the Labour Party.  He maintains that the Labour Party had used spurious allegations to cause him and others to lose nominations.  This is quite apart from any enmity associated with his choosing to become a Liberal Democrat.

59.	The Petitioner says his relationship with the First Respondent goes back many years.

60.	The First Respondent who is by training an accountant was in 2004 re-elected to the City Council.  He had previously been a councillor for a number of years.  In fact his service has been so lengthy that under the custom and practice of Birmingham City Council he is entitled to be put forward for election as an honorary alderman.  Given Birmingham’s municipal history that would be a considerable honour.  However, his election in 2004 and that of two other Labour candidates was challenged on the basis, putting the matter broadly, of postal vote fraud.  It is clear that the Petitioner and others considered that Mr Afzal did not receive in those proceedings, which did not inhibit his involvement in public life, what they regarded as his just deserts. 

The Grant Applications
61.	Copies of a number of application forms to the City Council of Birmingham for grants have been put in evidence.  The first records an application as being made in February 1986.  The property identified is 91 Bevington Road, Aston whose owner is recorded as Mr N. Ahmed.  It will be remembered that Mr N. Ahmed had changed his name to Mr Saeed Aehmed.  In other words, Mr N. Ahmed is the Petitioner.

62.	Accordingly, the sequence starts in 1986.  Mr Aehmed’s evidence in chief was that he first received incapacity benefit in 1982 and that he remains currently unfit for work.  He said that asthma and back pain prevented him from working together with depression and nervousness.  He said he was allergic to a lot of things and had a bit of blood pressure.  Plainly, I as commissioner presiding over a court cannot purport to diagnose anyone’s medical condition.  However, I should record that Mr Aehmed was a regular attender, hardly used his inhaler and gave no visible appearance of discomfort or distress.

63.	The form was stamped as received on the 10 February 1986.  The heading was “Urban Renewal ... Disabled Person Grant Aided Adaptations”.  Mr Aehmed said he was very ill at the time having asthma and being in depression.  The adaptation sought was for bathroom and toilet facilities to be brought downstairs.  (This would have enabled the bathroom upstairs to become a bedroom)  It was said on the form that due to asthma Mr Aehmed found it difficult to climb stairs.  The referrer was recorded as being self and friend.  Mr Aehmed said the friend was Mr Afzal, being the one friend he had.  

64.	Mr Afzal denied that such was the case.  I believe him and disbelieve Mr Aehmed.  If, whether as friend or councillor, the First Respondent was playing a part, there was no reason to withhold his name.  There is no record of his name on any Council document and the Petitioner did not state such as being the case in his (longer) witness statement.

65.	It appears that by March 1987 certain works had been approved for 91 Bevington Road.  The total cost of the works was over £10,000.  A grant of 90% (or just over £9,000) was available through the House Improvement Service with the cost of adaptation for disabled person being identified as £2035, there being an improvement grant contribution of £1831.50 seemingly in respect of that, an applicant’s contribution of £935 with a contribution from social services of £203.50.  Substantial works were plainly envisaged being listed by G. Haywood, Area Team on 4 February 1987.

66.	There is a document dated 10 March 1986 which comes from Dr Qureshi supporting the proposition that works should be done to 91 Bevington Road and stating that Mr Aehmed suffered from severe asthma, arthritis and depression and had been off work “for the last so many years”.  I should also note that certain documents were made available by the Birmingham City Council.  These contain some useful chronological notes compiled by officers of the Council who visited 91 Bevington Road or who had contact with Mr Aehmed.

67.	The works in 1987 appear to have embraced a toilet being inserted on the ground floor but seemingly neither a bathroom nor a shower.  According to the chronological notes the works were completed in February 1988.  It should be observed that one of the City Council’s notes records satisfactory completion of a bathroom in 1988.

68.	I leave the form of 1986 and go next to the 1993 forms, which caused considerable controversy in the course of the hearing.  These were the forms principally relied upon by Mr Reilly in arriving at his view that Mr Aehmed failed satisfactorily to answer questions about disability grants which he, Mr Aehmed, had sought.

69.	A form is recorded as received in the Birmingham City Council Social Services Department on the 21 February 1993.  This form is, it appears, known as a Cr.2 (PH).  It records itself as being a request for property adaptation and equipment for disabled people.  The person to whom the form refers is conspicuously Mr Aehmed.  However, the form is said to have been completed by Mrs Saraya Ahmed.

70.	This application (along with that made in 1986 and 1998) is referred to in an audit carried out by Birmingham City Council in 2002, which was hampered through a lack of information.  The conclusion was that because of a lack of information on the file the authors could not verify the validity of the decisions to award the grants; neither could it be concluded that anything fraudulent had occurred.  This audit cannot be relied upon positively by either the Petitioner or the First Respondent.

71.	I should say that I formed a very poor impression of the Petitioner as a witness.  In my judgment, having seen him in the witness box and observed him throughout the trial, I do not consider that I should believe any of his evidence unless it is either wholly uncontroversial or corroborated by an independent witness.  My reasons for approaching the Petitioner’s evidence in this way will be apparent from the exposition relating to the Petitioner’s disabilities and the various grant applications.  At this stage, it can be noted that no medical evidence supports the claimed level of disabilities for either 1986 or 1993.  I consider Mr Millar is right when he submits that the 1986 application was a dishonest application in which the Petitioner exaggerated his disabilities.  The same is true of the 1993 applications.

72.	The February 1993 form had a series of boxes for responses reflecting questions to which the answers could be no problem, difficult or impossible.  The matters to which the ticks related ranged from going outside to the shops or friends, moving about inside, taking a bath, going up and down stairs, sitting down and getting up, using the toilet, getting in and out of bed and picking up things up from the floor.  In respect of each item the ticked box recorded the activity as impossible.  In other words, it was then being recorded that the Petitioner was, effectively helpless.  This, I consider, was never the position.  

73.	In his statement of 11 October 2007, Mr Aehmed said that when he was (in 2002) questioned about the grant applications, he was not asked about this form.  He said he was suspicious of its authenticity.  I do not consider it a tenable proposition that Mr Aehmed was not at the very least connected with the application.  I consider he was the moving spirit behind it.  

74.	On 20 August 1993 another form, like the January form headed request for property adaptation and equipment for disabled people, was received by Birmingham City Council.  This form again stated that it had been completed by the Petitioner’s wife.  On this form all activities for the Petitioner were stated to be impossible bar sitting down and getting up from a chair, using the toilet and getting in and out of bed.  These were now recorded as difficult rather than impossible.  The question was asked on the form as to the best week days to visit. The answer was that a letter should be written before coming.

75.	Plainly, the forms suggested a very high level of disability.  Indeed when the Petitioner gave evidence he stated that for months he was drifting in and out of consciousness.  He maintained that the second form in 1993 was completed not by his wife, who, according to him, can hardly read or write English but by his teenaged daughter.  She was assisted in the sense of being told what to say by the First Respondent, Mr Afzal, and another City Councillor, who has since died, namely, Mr Bert Carless.  However, the Petitioner did not mention this fact in his second statement.

76.	The First Respondent says he had nothing to do with the 1993 forms and he most certainly did not play a role in completing a form in the name of Mrs Ahmed but written by her daughter.  The Petitioner’s daughter gave evidence before me. The Petitioner was plainly reluctant that she should do so stating that it was perfectly acceptable for his teenage daughter to complete a form in her mother’s name seeking public funds but culturally unacceptable for his (now) adult daughter to give evidence before a public Court.

77.	I find it very difficult to rely on the evidence given me in respect of the form by Miss Ahmed, the Petitioner’s daughter.  I say that for the following reasons.

78.	First, the manner in which Miss Ahmed gave evidence did not inspire confidence.  She appeared deliberately obtuse or on occasion as if she were playing at being an innocent abroad.  Second, the story is inherently improbable with no satisfactory explanations being given for a number of incidents.

79.	Miss Ahmed told me that her mother played no part at all in filling it up.  It will be remembered that her mother’s name was on the form and a letter was requested before any visit.  Her father, she also said, played no part at all in filling it up.  The only adults who played a part were Councillor Carless and Mr Afzal.  She told Mr Millar, who appeared for Mr Afzal, that Mr Afzal had said she was not to tell anyone including her father who, in any event, was according to Miss Ahmed drifting in and out of consciousness.

80.	Third, in any event, Miss Ahmed was very young being then a school girl aged 14 or 15.  However, she maintains she said nothing of these matters to her father until 2002 when he was asked about it by a Labour Party official.

81.	Fourth, if the Petitioner really was slipping in and out of consciousness and suffering from the recorded disabilities, why did neither his loving daughter nor his close friend ever say that life might be improved in consequence of the hoped for grant?  Why did neither, in such circumstances, do no more than fill up a form which was then not pursued?  Why would Councillor Carless lend himself to a form not filled in by the person who claimed to fill it up? Why, if matters, were so bad, was no further action taken in respect of the Petitioner’s crippling condition?  If matters were so bad why do the medical records not record such as the position?  How is it that the Petitioner now appears healthy with there being credible evidence that at all material times he was an active man anxious to play a role in community affairs?

82.	Additionally, it can be observed that Miss Ahmed’s evidence was served after the case had started, but before the medical evidence with which it sits unhappily.

83.	Accordingly, I cannot rely on Miss Ahmed’s evidence to support the proposition that Mr Afzal provided the form or that it was completed solely by reference to Messrs Carless and Afzal.  I regard her evidence as untruthful.  The fact that such is the case supports the proposition that not merely was her father attempting through the forms, to mislead the City Council, but that she and her father were attempting to mislead this Court.

84.	In the course of the trial Mr Aehmed’s medical reports were produced.  In fact I do not believe that the reports which have been disclosed constitute all the medical reports.  Such reports as were disclosed arose consequent upon questions in cross-examination.  The medical records before me do not support the claimed level of disability.  I give as an example a discharge letter of 25 May 1993 to his general practitioner which states “past medical history.  Apart from asthma, which he has had since 1976 nil else.”

85.	In August 1993 the Petitioner was seen by a consultant physician.  He, Mr Aehmed, told Mr Millar that he had informed the consultant physician, Dr Young, that he had been unable to get out of bed during May, June and July.  However, Dr Young records the Petitioner’s chest as “not too bad” and says nothing about any period, let alone a three month period immediately prior to August, when his patient had been unable to get out of bed.

86.	I simply do not accept the evidence from the Petitioner that continuous taking of steroids reflects the claimed level of disability.  First, I do not believe that steroids have been taken for the time claimed.  Second, and in any event, the claimed taking of steroids does not undermine that which is apparent namely an attempt to mislead.

87.	The 1986 and 1993 applications do not exhaust the applications made in respect of 91 Bevington Road.  An application was made in 1997.  The disabilities canvassed in this application are those of Mrs Ahmed, the Petitioner’s wife.  It should be noted that Mr Aehmed gave evidence that he moved to 99 Bevington Road in 1996.  This was, so it was said, because there had been a rape in the locality in 1994 and Mr Aehmed had offered support to the victim.  This generated harassment from the perpetrator or his associates leading to Mr Aehmed securing an injunction against those harassing him.  Nonetheless, so Mr Aehmed said, he moved four doors down Bevington Road to live in a room in Mr Qas Matloob’s house.

88.	Mr Matloob gave evidence.  He said he has not heard of Mr Aehmed living anywhere other than at No.91.  Mr Zakir Hanif (one of the Petitioner’s nephews) did not suggest that Mr Aehmed had lived anywhere other than at 91.  Although the 1997 form records Mr Aehmed as having an interest in No.91, it does not record any income as attributable to him.  The only document noted as recording No.99 as the address is the incapacity benefit book which was produced to Birmingham City Council in connection with the 1997 application.

89.	Mr Aehmed certified as a requirement for grant aid that his wife would live at the property (No.91) for five years from the completion date of the grant aided works.  This was in December 2001.  On 18 December 2006, 76 College Road, Sutton Coldfield was purchased in the name of Mrs Ahmed.  Mr Aehmed transferred 91 Bevington Road into the name of his son Quadeer in 2006, but Mr Aehmed says he does not live in the Sutton Coldfield property. That is a five bedroomed property occupied by his wife and a daughter.
90.	Mrs Ahmed, it is accepted, has some mental health problems.  However, Mr Afzal gave evidence to the effect that whenever he visited her she neither appeared to have nor did she mention any physical disability.  Mrs Ahmed is claimed in the form to suffer or have suffered from (amongst other things) double incontinence yet the general practitioner appears to have been unaware of this and she received no treatment for it.  The disability was not mentioned by the consultant psychiatrist.

91.	Miss Zobaraya Ahmed appears to have resisted the idea that social services should visit her mother and later said that if visited only a non Asian should visit.  This, Mr Millar suggests, would avoid the danger of any conversation between her mother and the social services officer.

92.	In the course of receiving a substantial amount of evidence, I have received evidence in writing and orally both in English and through an interpreter.  Miss Ahmed gave evidence from behind a screen.  Every facility has been made available for evidence freely to be given.  However, Mrs Ahmed has not been called or even asked to submit a statement.

93.	The evidence before me leads inevitably to the conclusion that the various applications were founded on grossly exaggerated symptoms in circumstances when both the Petitioner and his daughter Miss Ahmed must have known such to be the case.  

The selection and deselection of Mr Aehmed as Labour Party candidate in 2002.
94.	An election to the Birmingham City Council for the Aston Ward was due to occur in May 2002.  According to the Petitioner by 25 March 2002 the only ward in Birmingham without a selected candidate was Aston.  He gave evidence that he came to be selected but that Mr Tony Kennedy was the person the West Midlands Regional Office of the Labour Party wished to see as candidate.

95.	He, the Petitioner maintains that he saw a Mr Ian Reilly, an official with the Labour Party, who asked him about grant application forms but was not interested in explanations only in securing the withdrawal of the Petitioner’s nomination in respect of the Aston Ward election.  However, Mr Aehmed refused to withdraw and remained a candidate at the election.

96.	Mr Reilly is a longstanding and senior employee of the Labour Party.  He is the Labour Party Regional Director for the West Midlands.  He gave his evidence clearly and, I consider, honestly.  I find that his first anxiety in 2002 was not who the particular candidate was, but that there should have been a candidate.  Once a candidate had been selected he was concerned to see that nothing occurred to embarrass the Labour Party.

97.	I find the position to be as follows.  Following his selection as Labour candidate for Aston in 2002 allegations came to the attention of Mr Reilly that Mr Aehmed had fraudulently claimed disability grants. As an obvious step Mr Reilly, as a concerned senior official, sought to establish what the position was.  This was nothing to do with any desire to impose a candidate, still less was it anything to do with institutional corruption of the Labour party.  It was an obvious concern by a political party that questions which might embarrass the party should not be capable of being asked.

98.	Mr Aehmed did not provide full co-operation and did not provide satisfactory answers in respect of the forms.  Thus, as Mr Reid made plain he had known Mr Aehmed for some years and throughout the time he campaigned for the Labour party he was extremely active with seemingly no issue as to movement or inability to climb stairs.  Two additional observations can be made at this stage.  First, a DVD was produced which showed an active Mr Aehmed performing a role as part of a Labour party campaign team in 2002.  Second, Mr Aehmed was stated to be the Labour party supporter most readily able to climb lamp posts in order to secure Labour party posters and the like.

99.	I find that it was entirely reasonable and appropriate for Mr Reid to believe as he told me that Mr Aehmed “could not demonstrate … he was an appropriate person to stand as a Labour party candidate”.  I consider it was also reasonable and appropriate for him to be “appalled that it appeared that [Mr Aehmed] had lied (by pretending to be severely disabled) in order to obtain money, to improve his home, from the Council he now wished to be elected to.”

100.	Accordingly, when one looks at the document contended by Mr Aehmed to be a breach of section 106, the answer is clear, namely, that the document was true in all material respects.  It follows that Mr Afzal did not distribute a false statement of fact relating to the character or conduct of Mr Aehmed.  It also follows that he, Mr Afzal, had reasonable grounds for belief in the matters stated.  These grounds include, but are not exhausted by, the following.  Mr Afzal’s personal knowledge of the lack of disability, Mr Afzal’s personal knowledge of the concern over the application and Mr Afzal’s reasonable belief in what he was told by the Labour Party officials.  

101.	It was said that there was general corruption in the Labour Party so that no-one, especially a Labour politician, could derive a reasonable belief from what Labour Party officials said.  The evidence called in support of this proposition fails conspicuously to support it. It was hardly mentioned in Mr Brodie’s final submissions. I do not consider any purpose is served by a recital of it.  The short point is that individual cases do not create without more either a general conspiracy or corruption.

102.	It follows that I do not need to determine whether or not the statements related to Mr Aehmed’s personal conduct or character.  If it were necessary for me to determine that matter my view would be that the statements did relate to his personal conduct or character.  I say this because although there was evidence of political involvement in assisting constituents to secure grants nonetheless the statements bore on the Petitioner’s personal character or conduct rather than political life.  That is so even giving the former a narrow meaning and the latter a broad meaning.

103.	In this regard, I should notice an argument put forward by Mr Millar to the effect that by 2007 the questioning in respect of the grant applications had received such publicity as thereby to render the matter part of ‘the political baggage’ of the Petitioner.  The difficulty with this argument is not so much that it is self serving but rather that it enables something, as a matter of language, ordinarily categorised in a particular way to be categorised differently simply because it has been referred to on a number of occasions before.  

104.	Mr Jeffers may well be right in his evidence to say that it was legitimate to tell electors about a failure properly to answer questions about disability grant applications.  However, that does not render it political rather than personal.  After all electors may be interested in the personal as well as the political.  Nonetheless Mr Afzal was able legitimately to state that there had been a failure to provide a satisfactory answer to questions about the grant applications because there had been such a failure and, moreover, he reasonably believed there to have been such a failure.

105.	Accordingly, I summarise at this stage to this effect.  I am satisfied beyond reasonable doubt that Mr Afzal had reasonable grounds for believing and did believe the statements complained of in the written document to be true.  I am also satisfied beyond reasonable doubt that the statements complained of were not (using the statutory language) false.

106.	I should mention that I am entirely conscious that it was for the Petitioner to prove his case beyond reasonable doubt and not, as in fact has happened, for matters adverse to him to have been proved beyond reasonable doubt.

The 2004 Election and Subsequent Election Petition 
107.	As Mr Coppel, who appeared with Miss Estelle Dehon, for the Returning Officer, pointed out there have been petitions in respect of elections from the Aston Ward of Birmingham on a number of recent occasions.  One such petition culminated in a determination by Mr Commissioner Mawrey QC.  On the first day of the hearing I ruled that the Petitioner could not in these proceedings re-litigate the matters then at issue. 
.
108.	However, the existence of such petitions demonstrates that feelings run high in Aston or at least they do amongst those who involve themselves in politics. The election to Birmingham City Council for the Aston and other wards in 2004 led to a number of petitions, which were heard in 2005. The ultimate source of these petitions was a change in the law enabling postal votes to be available on demand. As Mr Commissioner Mawrey QC has pointed out the change made has opened the door wide open to electoral fraud. (Unfortunately, as his recent decision in Slough confirms, the door (despite some legislative tinkering) remains open. The facility for fraud was taken advantage of in 2004.  The abuse of the postal voting system can generate strong passions.  

109.	In the 2004 election in Birmingham there was a warehouse where votes, effectively, were being farmed. This warehouse played a central role in the case in front of Mr Commissioner Mawrey QC. However, by section 145(1) of the Representation of the People Act 1983 it is provided that the certified determination at the conclusion of an election petition is to be final to all intents as to the matters at issue on the petition.

110.	The determination by Mr Commissioner Mawrey QC was, following its adjustment by the Court of Appeal by way of judicial review, to the following effect, namely, the election of Messrs Islam and Kazi for the Aston Ward on 10 June 2004 was avoided by corrupt and illegal practices on their part; the election was also avoided in that corrupt and illegal practices for the purpose of promoting the 3 Labour Party candidates had so extensively prevailed that they may reasonably be supposed to have affected the result and that the election of Messrs Islam, Kazi and Afzal be void under Section 164(1)(a) of the 1983 Act.

111.	Evidence was given to the effect that at least some Liberal Democrats regarded Mr Afzal as having got off on a technicality in respect of the 2004 election.  This is because the election court initially determined that Mr Afzal (a successful Labour candidate in that election) was personally guilty and should be reported.  I say initially determined because the Court of Appeal by way of judicial review altered the determination.

112.	Thus, the determination of the election court, as so altered and set out above, was that the two other Labour candidates were personally guilty but no such finding was made against Mr Afzal.  This means, given it was clearly a matter at issue on the 2004 petition whether Mr Afzal was personally guilty, that it is conclusively the case that personal guilt was not established.  This is why I refused leave to Mr Brodie for the Petitioner to adduce evidence that the First Respondent, Mr Afzal was personally guilty in 2004.

113.	However, the conclusive determination given by the certificate of the election court, as it came to be adjusted by the Court of Appeal, did not prevent some thinking that Mr Afzal had escaped a just retribution.  

114.	Mr Ayoub Khan was Mr Aehmed’s agent for the 2007 election.  He was one of the defeated candidates in the Aston Ward in 2004 and helped in the pursuit of the petition, which resulted in Mr Commissioner Mawrey’s determination.  He said Mr Afzal ought not to have got away with it.  The Petitioner also thought that Mr Afzal had been in the warehouse and had got away with it.

115.	There was a definite attempt to use this case as an attempt to relitigate the events in the Aston Ward in 2004 which had been subject to the petition heard and determined in 2005.  I ruled in consequence of Section 145(1) of the 1983 Act, that such was impermissible.

116.	Despite my ruling and notwithstanding the conclusiveness of the determination the matter coloured the approach of the Petitioner and Mr Ayoub Khan.  I am satisfied that so keen were they to right what they perceived to be a wrong that not merely would they not credit Mr Afzal with any propriety of conduct, but that they would use unrelated or peripheral events against the First Respondent.  This included a scurrilous and unwarranted allegation that he was involved in witness intimidation.

117.	Mr Ayoub Khan, who is a member of the Bar, gave evidence which related to two polling stations, namely, William Cowper School and St. George’s School.  A curiosity about his evidence is that he said rather more than appears to have been expected.  Thus, at the end of his examination in chief, he stated in the context of a complaint made about derogatory statements on polling day emanating from a Black Range Rover that he had a Toyota, which was the only Liberal Democrat car equipped with loud speakers at the 2007 election.  Mr Khan went on to say that a Liberal Democrat supporter had such a car but that it had been set alight a few weeks ago.  He also stated that Mr Afzal had approached relatives of his with a view to dissuading him, Mr Khan, from giving evidence.

118.	Plainly, such evidence if believed could have a profound effect on the view taken of Mr Afzal or, if disbelieved, on the evidence of Mr Khan.  On the face of it, it is surprising that such allegations emerged in the way that they did.  Absent an explanation one would have supposed that such serious matters which include an attempt to pervert the course of justice would be drawn to the attention of the Court at the earliest possible stage and reported to the police by a member of the Bar, however junior.

119.	The gist of Mr Khan’s evidence was that Mr Arif and Mr Banaris had communicated with Mr Afzal and then sought to persuade Mr Khan not to give evidence.  I had to require Mr Khan to identify Mr Arif and Mr Banaris.

120.	Prior to Mr Arif and Mr Banaris giving evidence (as they did at my instigation and insistence), the Petitioner gave his account of the meeting between him, Mr Khan and Mr Arif and Mr Banaris.  Mr Aehmed claimed, in a manner which was completely unheralded, that Mr Afzal, so the Petitioner had been informed by Mr Arif, had visited the scrapyard (where he worked with Mr Banaris) and given four ‘options’ to be communicated to the Petitioner.  The first was that Mr Afzal would bribe Mr Aehmed to drop the case.  The second was that Mr Ayoub Khan and his brothers should not give evidence.  The third was that the brothers just mentioned should not go to court.  The fourth was that if Mr Khan and his brothers gave evidence he, Mr Afzal, would ‘do’ Mr Khan.

121.	By any account this would have been a remarkable conversation, which, according to the Petitioner, occurred before this case had got underway.  However, as stated, it was never reported to the police and did not find expression in the case until the thirteenth day.

122.	Mr Arif and Mr Banaris gave clear, honest and straightforward evidence.  They denied that they were being used by Mr Afzal as a conduit to pass on so called options.  They denied that such options had been mentioned.  It was made plain both through their evidence and the evidence of Mr Afzal, which I accept, that he had visited their scrapyard in October 2007 in order to buy some (cheap) parts for his son’s car.

123.	All that happened in relation to the election was a question by Mr Arif and Mr Banaris of Mr Ayout Khan and the Petitioner as to whether they could resolve the matter without a court hearing.  This, I find, was unprompted by and nothing to do with Mr Afzal.  It was simply an expression of friendly curiosity. 

124.	After Mr Arif and Mr Banaris gave evidence a suggestion was made that their credit as witnesses in this case might be undermined by their antecedent history.  This was obtained for me through the Director of Public Prosecutions.  It is not worth speaking of and does not undermine their credit in these proceedings.

125.	Plainly, the sordid story I have just recited is one of the reasons I have for refusing to accept any of the Petitioner’s evidence unless it is either entirely uncontroversial or independently corroborated.
126.	A further incident should be noted to the discredit, I am afraid, of Mr Ayoub Khan.  When he gave his evidence he clearly suggested as I have recorded above that Mr Afzal’s supporters had burnt out a Range Rover belonging to one of Mr Afzal’s supporters.  In the light of how the case proceeded, this suggestion was clearly no more than an unpleasant, unsupported and unsubstantiated assertion directed against Mr Afzal (who, as previously, stated was regarded by both Mr Aehmed and Mr Khan as having escaped justice in 2005). 

127.	I do not accept Mr Brodie’s submission that there was credible evidence that witnesses the Petitioner proposed to call were the subject of intimidation. I do not accept his further submission that the position is unsatisfactory but may have been clearer if further investigation had been conducted.

128.	This part of my judgment has proceeded under the heading the 2004 election and subsequent election petition.  The determination of the petition was that two Labour candidates had been guilty of personal corruption.  Mr Afzal had been connected with this; his election in 2004 was avoided because of the general corruption, which related to postal votes.  The system of postal voting, so clearly, accurately and powerfully condemned by Mr Commissioner Mawrey had been introduced after 2000.

129.	Accordingly, I am sure that every political instinct in Mr Afzal and his Labour supporters, including the senior officials was that the less said about postal voting and, in particular, the 2004 election the better.  Mr Afzal, whilst no doubt comforted by the decision of the Court of Appeal would not know the reaction of the electors to a reminder of it.  Plainly, the publicity in 2005 would have been bad for Mr Afzal.  He can have had no wish to see that repeated.

130.	I am therefore confident that Mr Afzal would have been happy to enter into an informal or gentleman’s agreement made before the 2007 election to the effect that the campaign should not be personal but should focus on the issues.  Mr Afzal had political reasons for not wishing the events of 2004 to be rehearsed in front of the electorate.  I hold that there was such an agreement.  Mr Amjad Hussain, the Chairman of the Aston Labour Party gave evidence of a conversation held a few weeks before the May 2007 election with the Petitioner.  It was agreed that there should be no personal attacks.  I accept this evidence although I note that Mr Aehmed denied that there was such an agreement.

131.	There is clear evidence, which I accept, that those campaigning for the Labour party were requested or instructed to avoid the personal and concentrate on the issues.  Given what had happened in 2004 this is not a matter for surprise.

The day of the poll (Thursday)
132.	On the Tuesday before the Thursday the Liberal Democrat candidate in Bordesley Green was arrested as part of an investigation into postal vote fraud.  His name was Mohammed Saeed and publicity was given to his arrest; his photograph appeared in Wednesday’s Birmingham Post.

133.	The character of the statements suggested to have been made on behalf of Mr Afzal on polling day are to the effect that it was variously said that Mr Aehmed had been arrested for postal vote fraud, that he had been arrested for fraud or that he had been involved in fraud concerning disability grants.  A considerable number of witnesses gave evidence as to events on polling day. It is neither necessary nor sensible to recite the evidence of all.  I have noted the various relationships between the witnesses although it is unnecessary for me to recite them.

134.	There are, however, at least two interesting features about the polling day evidence.  First, I find that the Birmingham City Council officials working for the Returning Officer all acted conscientiously and honestly seeking individually and collectively to ensure that the election ran within the rules and as smoothly as possible.  However, there is no substantive record of any complaint of the matters which are now said by the Petitioner to have occurred on polling day.  

135.	Second, no one records seeing the Petitioner on election day.  One might have thought that polling day in a small area such as Aston was the day on which a candidate wished to be visible.  Indeed Mr Aehmed told me that in the morning he went to every single polling station bar two. In the evening he went to the two that he had missed. He said there were hundreds of people who were telling him that they had heard he had been arrested. He was, however, unable to identify any complaint to the police or to the polling staff. He said there were hundreds of people but they would not come out and give evidence. I asked him on the sixteenth day of the case, which has been reported more or less every day, what difficulties existed if people wished to come forward to give evidence. The only point tendered was that “people don’t want to make an enemy”. 

136.	I do not accept his evidence that hundreds of people were saying that they had heard he had been arrested or something similar. Nor do I accept the evidence that a hundred people or hundreds don’t want to make an enemy by giving evidence. It was the want of credible evidence which inhibited people coming forward. The absence of complaint and the failure of anyone, particularly his supporters, to record the Petitioner’s presence are extraordinary.

137.	Mr Brodie for the Petitioner stated that certain of the witnesses could be taken as pilots to the truth.  These witnesses are said to guide me to a conclusion which supports the Petitioner.

138.	The first of these witnesses was Mr Kenneth Jeffers.  He certainly appeared to be an honest witness.  The difficulty for the Petitioner is that his evidence related substantially not to polling day but to events after the election.  Thus, he was asked whether “after the election” anybody mentioned the Petitioner to him.  The people who did so were four or five in number and of African descent.  He indicated that they asked him whether or not it was true the Petitioner had been arrested.

139.	I do not consider this evidence gets the Petitioner to any particular destination in this case.  The people who asked the question are unidentified.  They are seeking the information after the election following the publicity of the election which included publicity about an arrested candidate; I cannot rely on this evidence as beginning to satisfy me that on the day with a view to affecting the result, statements were made by Mr Afzal or his agents.

140.	Mr Brodie’s next pilot to the truth is Mr Abdul Kalam Azad.  Mr Brodie describes him as an utterly reliable witness.  I am afraid to say, having seen Mr Azad in the witness box, that I would use neither the adverb nor the adjective.  Mr Azad was an initially reluctant witness whose evidence was characterised by garrulousness, anger and confusion.  I do not regard him as a reliable witness.  I shall return to his evidence when considering what is alleged to have been broadcast from Mr Afzal’s motor car.

141.	The third pilot to the truth as contended for by Mr Brodie is Miss Tracey Jones.  She was a polling station control officer with responsibility for monitoring polling stations in those wards allocated to her.  The particular polling station in this context to which her evidence is referable is that of the William Cowper School.  The allegation as stated in the Petition was to the effect on the afternoon of 3 May 2007 the Respondent with or by his agent or agents, including his son, falsely stated to persons attending the polling station for the purpose of casting their votes that the Petitioner had been arrested for fraud.

142.	I should mention that the First Respondent does not dispute that those who attended polling stations on polling day on his behalf were to be regarded as for the purposes of election law his agents.

143.	The Petitioner’s evidence in respect of the William Cowper School depended on the evidence of Mr Qas Matloob, Mr Mukhtar Ahmed and Mr Ayoub Khan.  

144.	Mr Matloob is a hairdresser or supplier of wigs who, having finished with a customer’s hair, went to the school in the middle of the afternoon.  He said he saw several people standing outside including Mr Afzal and his son Mr Nabeel Afzal.  He was told, he says that Mr Aehmed, his uncle, had been arrested for postal vote fraud.  He maintains that he went into the polling station to complain about Labour supporters telling voters Saeed Ahemed had been arrested.  This was not fair, he said, and she, the polling clerk should put a stop to it.  According to him the polling clerk said she could not help him.

145.	The polling clerks were Lorna Hussey and Gillian McPherson.  The polling clerks both gave evidence to me.  They described their long day at the polling station.  They were both conspicuously honest and conscientious.  Miss McPherson made a telling and accurate remark.  She said that Lorna Hussey was quite talkative; having seen Lorna Hussey in the witness box I am confident that she is personable, friendly and talkative.  She, Miss McPherson, made it plain that Miss Hussey never told her of any such complaint being made.  Miss Hussey also gave clear evidence that no such complaint was made.  It can be noted that it was only for short periods of time (typically a comfort break) that Miss McPherson and Miss Hussey would be apart.

146.	Miss Hussey made it plain that had such a complaint been made she would have reported it and would also have informed Tracey Jones, whose job involved visiting a number of polling stations in at least two wards.  Mr Brodie relies on evidence from Tracey Jones to the effect that she had been told by Lorna Hussey that someone, who had complained in the past about her, had again complained on 3 May 2007.  However, Tracey Jones said she did not specify the complaint.  It transpired that Mr Matloob had in 2005 accused Lorna Hussey of cheating.

147.	Mr Brodie contends that Miss Hussey did not give reliable evidence and that the evidence of Tracey Jones serves to confirm or corroborate that of Mr Matloob.  I consider it far more likely than not that Miss Hussey was giving reliable evidence and that Miss Jones, who it will be remembered had to visit a number of polling stations, made a mistake.

148.	The following can be noted, which supports the preceding analysis.  Mr Matloob had, several days before the election, a conversation about the election in his hairdressing shop with an unidentified lady, who does not apparently know that Mr Aehmed is Mr Matloob’s uncle. On the day of the election this lady returned to the shop in order to tell Mr Matloob that she had been handed the disability grant leaflet and told that Mr Aehmed had been arrested for fraud.  This conversation was around midday.  

149.	At about 3.30 Mr Matloob went to the polling station in order to make sure his uncle had not been arrested.  This story lacks credibility.  Who is the unidentified lady?  Why did not Mr Matloob take the simple expedient of telephoning his uncle or somebody at noon when he learnt of the supposed arrest?  Further, why is it that nothing came to be recorded at the polling station?  Why was nothing mentioned by the “quite talkative” Lorna Hussey?  In that regard it can be noted that she was exonerated in relation to the complaint which was made in 2005 to the effect that she had filled in ballot papers for electors.

150.	Furthermore, it is to be noticed that the evidence, which I accept, is that Mr Afzal told his supporters on the day of the election to do no more than explain that he, Mr Afzal, was numbered 2 on the ballot paper.  The document for distribution on polling day could not have been simpler.  It made it plain where the X should be placed but said nothing of any other candidates.  It will be remembered that discussion of postal vote fraud would not have suited Mr Afzal or the Labour Party.

151.	I do not forget that Mr Ayoub Khan gave evidence that at William Cowper School he saw a young Asian hand out literature and state that “Saeed had been arrested for election fraud.”  Further, that Mr Mukhtar Ahmed said that he was told by a lad not to vote for Mr Aehmed because he had been arrested for fraud.  He, Mr Mukhtar Ahmed, stayed for a couple of hours during which time he says more Labour supporters came and said the same things.  He rang Shahadat, the Petitioner’s son but the Labour supporters did not like him doing so.  They looked as though he wanted a fight so he left and went home.

152.	Mr Ayoub Khan was the Petitioner’s (formal) election agent.  He is a member of the English Bar.  I have already referred to his powerful conviction that Mr Afzal got off in 2005 following the postal vote scandal of 2004.  I find it remarkably strange that not a single recorded contemporaneous complaint was made by Mr Ayoub Khan.  

153.	Mr Mukhtar Ahmed was, he says, at the school gates for something in the order of two hours.  It was being said, he asserted, that the Petitioner had been arrested.  However, he does not telephone the Petitioner because he did not want to disturb him and although he says he telephoned the Petitioner’s son, Shahadat, no mention of that was made by Shahadat Ahmed.

154.	I remind myself that if the ground alleged in the petition is to succeed, I have to be satisfied beyond reasonable doubt.  On the evidence in respect of the William Cowper School I cannot be so satisfied; in fact I have grave doubts as to the veracity of the evidence given in support of the petition.  

155.	I find it more probable than not that, as the Returning Officer invites me to find, the polling station staff fulfilled their duty to keep good order at the William Cowper School, that Lorna Hussey’s written and oral account is truthful, that the allegations made by Mr Qas Matloob against Lorna Hussey are unfounded and that the polling station staff did not omit to do anything they could or should have done to ensure that the electors had free access to the polling station. 

156.	Mr Brodie’s pilots to truth not merely are used to seek to support the particular matters with which they were concerned but also other matters. For the reasons given I cannot use them in that way.  

157.	Paragraphs 5(i) and (ii) of the Petition contend that at St George’s School the First Respondent’s nephew in the presence of the First Respondent falsely stated to electors that the Petitioner had been arrested for postal vote fraud, that he had been arrested for fraud and that he had been involved in fraud concerning disability grants.  It is also contended that Zulfigar Khan also stated that the Petitioner had been arrested for postal vote fraud.

158.	I approach this matter first by reference to the evidence from the Returning Officer.  Tracey Jones visited the polling station at about midday.  When she arrived two Liberal Democrat supporters were present along with a Labour supporter.  Mr Ayoub Khan was delivering refreshment for the Liberal Democrat supporters; he arrived and complained to her about the Labour supporter.  She spoke to all the supporters to get them including Mr Khan out of the precincts of the school.  She said to Mr Khan that if he wished to take the matter further, he should contact the elections officer.  A Labour official shortly before 2.00pm sent an email saying tension was building in the vicinity of the polling station and asking that someone visit.  Mr Langford spoke to the party supporters and got them to move back outside the school premises.  He, Mr Langford, asked police officers to monitor the situation.
159.	I find that the evidence does not support, certainly not on a basis such that I could be sure, any criticism of the Returning Officer’s staff or that statements of the kind described in the Petition were actually stated.  I do not overlook either the evidence of Mr Ayoub Khan, Mr Zakir Hanif or Mr Qadeer Ahmed.  It may be that there were fractious occasions but I do not accept the evidence of Mr Ahmed that Mr Waqar Shafqat shouted out that the Petitioner had been arrested for fraud.  Mr Ahmed said he complained about such statements; but, there is no record.  Mr Aziz, a Respect Party supporter, said Qadeer Ahmed was behaving aggressively and Messrs Shafqat, Khan and Afzal all deny the conduct alleged against them.  Further, it was inconsistent with their approach.

160.	In respect of the Lozell’s Junior and Infant School (also called Holt School) the Petition alleges the agents of Mr Afzal stated that the Petitioner had been done for fraud or uttered words to like effect.  Mr Jabbal, the presiding officer, gave evidence which I believe that no complaints were made about those party activists who attended on 3 May 2007 the Holt School.

161.	The principal evidence for the Petitioner for this incident was given by Mr Shahadat Ahmed who is the Petitioner’s son.  It was drawn to my attention that he has a conviction for fraud and received a custodial sentence.  However, quite apart from that conviction there are difficulties in connection with his evidence.

162.	Mr Shahadat Ahmed told the court that he had been phoned by his friends.  A friend, Mr Krum Chohan apparently told him that people were saying that the Petitioner had been arrested.  However, Mr Chohan was not called.  In oral evidence he mentioned a silver car but that was not mentioned in the written statement which simply mentioned two cars in Witton Road. Once again, I cannot be sure on the basis of Mr Shahadat Ahmed’s evidence viewed by itself or with the other evidence, that the claimed statements were made.  It appears more likely than not that no such statements were made.

163.	Some other polling stations were mentioned in evidence.  Asmat Ara Mir said that unidentified Bangladeshi men at the Broadway Aston Campus polling station had been telling people that “Mr Saeed had been arrested for postal vote fraud”, that Mr Afzal was present and that cars with Labour posters drove past making announcements that the Petitioner had been arrested and suspended from the Liberal Democrats.  She said, when she came to give oral evidence that she complained to officers in the polling station.  There is no documentary record of this although the Returning Officer’s response was hampered by the lateness of that observation.  One of the polling station’s staff did go out and tell all party activists, including Mrs Mir, to move away.

164.	Asmat Ara Mir had once been a Labour supporter but Mr Afzal said that she took against him when her daughter failed to get a council house. She also spoke to heated discussion involving amongst others Ayoub Khan. However, this was not mentioned by him. 

165.	I cannot rely on her evidence to support the proposition, especially so that I am sure, that been arrested for fraud or postal vote fraud or similar were said. There may at some stage have been abusive or indelicate language but that does not support the case for the Petitioner. 

166.	Mr N. Kamal was called to support the proposition that some Labour supporters including Mr Afzal made statements to the effect that the Petitioner was a postal vote fraudster and had been arrested.  This was said to have occurred at Canterbury School, a polling station.  I am afraid I found his evidence wholly unconvincing.  He stated that with the aim of helping the Liberal Democrat candidate he had gone to Aston on the day of the poll.  He went in his car.  He, personally, was adorned with a rosette or badge on his lapel and his car carried a poster on either side.  So equipped but lacking any loudspeaker or similar facility his aim, he said, was simply to drive round Aston.  He had not been asked by anyone to do this and the value of this activity can hardly be described as sophisticated electioneering.  

167.	Mr Kamal did not report the incident and made no mention of it when he attended, on the very evening of the poll, a meeting at the ward headquarters of the losing Liberal Democrat candidate.

168.	I can place no reliance on this evidence as supporting the individual incident or a general campaign of misinformation.  I find it incredible to suppose that someone experiencing an election as a participant for the first time should come across an incident such as the one he says occurs yet say, at the material time (i.e. the day of the poll or shortly thereafter), nothing about it.  This is all the more extraordinary given that on Mr Kamal’s evidence, he stopped precisely because he wanted to see what was happening.  Thus, the remarkable event of the day as far as he was concerned went unremarked. 

169.	Mr Azad also referred to Canterbury Road and the Church of God Polling Station. He went to the former to vote and the latter with his wife when she wanted to vote. He said that Labour supporters were making similar claims about the Petitioner at both. I have already referred to his evidence. I cannot rely upon it. I accept the evidence of Mr Afzal. As he pointed out the Church of God Polling Station was in the vicinity of Mr Aehmed’s home. I rephrase his rhetorical question so that it becomes: how could it be said of the Petitioner when on his account he is knocking on lots of doors in the vicinity that he has been arrested?

170.	The fifth particular in the petition is that in Witton Road agents of the First Respondent used a speaker mounted to a moving motor car to state falsely that “Saeed … has been arrested for fraud” or that words were uttered to like effect.

171.	I use this allegation to consider the evidence in respect of announcements alleged to have been made from Labour party cars and generally in Aston.

172.	Mr Afzal gave evidence that on election day his team had three cars fitted with loudspeakers.  Two of these three were principally used for the regular making of loudspeaker announcements.  One such car was driven by Abdul Rashid and Firuj  Khan; the other by Zulfigar Khan and Amjad Hussain.  All these had attended, along with Mr Afzal, a meeting on the Tuesday before the Thursday in which instructions were given about the conduct of the campaign. The essential instruction was to take care.  I accept this evidence.

173.	The third car was used by Mr Afzal but driven by Mr Rehman.  This was the silver coloured Mercedes which came to be mentioned in the evidence of several witnesses despite not being mentioned in their earlier witness statements.  Mr Afzal said he made the announcements in a mixture of Urdu and English. He stated that he reminded people it was election day, emphasised his name and his place on the ballot paper and urged people to vote and to vote Labour.  No comment was made, he says, about other candidates whether by name or implication.

174.	I accept Mr Afzal’s evidence.  He struck me as truthful in all material respects.  He heard loudspeaker comments from the Liberal Democrats suggesting that he, Mr Afzal, had been guilty of postal vote fraud.  I hold that such comments were made.  This was territory on which the Petitioner wished to fight.  It should be noted that Mr Keith Hanson, a regional organiser for the Labour party gave evidence which I accept that a Mail on Sunday reporter had been told by Mr Aehmed that Councillor Afzal had behaved improperly in respect of postal votes.  The story was not pursued by the report as the complaint was not further supported.

175.	However, this was not territory on which the Labour party wanted to fight.  I am confident that Mr Afzal and his colleagues adhered to a programme which vigorously promoted Mr Afzal but which, through the street loudspeaker announcements, did not advance their case to any particular degree beyond reminding people of the election and asking that they vote for Mr Afzal. 

176.	I cannot draw from Mr Azad’s evidence the conclusions sought by Mr Brodie namely that Mr Afzal was broadcasting the arrest of Mr Aehmed for postal vote fraud. Mr Millar was correct in recording that his oral evidence did not coincide with his written evidence. I have stated earlier that I do not need to resolve the history of the Committee of the Bangladeshi Community Trust but it appears more likely than not that Mr Azad has a grudge against Mr Afzal even if he also dislikes Mr Aehmed.

177.	I should next mention the evidence of Mr Iqbal Khan. He gave written evidence via a statement dated 7th September 2007. This was to the effect that on the Wednesday before the election he had gone to his mosque to pray. However, those present were talking about the Petitioner and saying he had been suspended as a candidate. He had been arrested. In the same statement he said that on polling day, when he sought to vote at Birchfield Road School, he heard Mr Afzal telling electors that the Petitioner had been arrested for fraud. 

178.	Mr Khan attended on a witness summons but gave evidence that the only thing in his witness statement that was true was that he is a supporter of the Liberal Democrats. He told me that he was given the statement in the dark in a car by the Petitioner and was unable to read it. He merely put his signature to it. He said that much later when he read it his conscience pinched him that he should not depose wrongly.  The Petitioner made an attempt to salvage the position through the evidence of Mr Fiedha Hussain  but I found his evidence in all the circumstances unreliable. I consider it more likely than not that Mr Iqbal Khan in his oral evidence was telling the truth. I do not consider that the proposition that his oral evidence can fall under the heading witness intimidation to be supportable.   Accordingly, no case in respect of Birchfield Community School is made out.

179.	It follows from everything I have said that the ground in the petition based on Section 164 of the 1983 Act cannot succeed.  In the light of my findings on the evidence, it is clear that, although this was an acrimonious election, illegal practices for the purpose of promoting the election of any person have not been shown, to use the statutory language, so extensively to have prevailed that they may reasonable be supposed to have affected the result.

The Liberal Democrat Leaflet
180.	By Section 160(1) of the Representation of the People Act 1983, I have to state in my report the names of all persons who have been proved to have been guilty of any illegal practice.

181.	I have made it plain throughout the hearing of this case that such an obligation meant I was concerned with more than merely the case of Mr Afzal.  In particular, it was apparent that I would have to consider Mr Aehmed’s position.

182.	Section 160 continues by providing that in the case of someone (a) who is not a party to the petition, or who is not a candidate on behalf of whom the seat or office is claimed by the petition the election court shall first cause notice to be given to him.

183.	Notwithstanding what had been apparent at the outset, Mr Brodie submitted at the conclusion of his final submissions that the obligation to give notice was applicable in respect of Mr Aehmed despite the fact that he was a party to the petition being the Petitioner. This is because he was not claiming the office of councillor.

184.	Mr Brodie maintains that the obligation to give notice in respect of someone not a party to the petition or not a candidate on behalf of whom the office is claimed means that notice has to be given to the Petitioner given that the relief claimed in the petition is that it may be determined the election is void and that the Petitioner may have such further or other relief as may be just.  In other words, the petition does not expressly claim the office of councillor.  I do not think despite the apparent width of the words, further or other relief, which were never amplified, can be said to claim the office of councillor.

185.	I do not agree with Mr Brodie’s submission.  He would have it that so long as a Petitioner does not claim the office, he has first to be given notice under Section 160 and then if he appears be given an opportunity of being heard and calling evidence.

186.	The section on its natural meaning is providing an ability to state the names of those who have been guilty of any corrupt or illegal practice subject only to an inhibition by way of notice to those who were not parties to the petition or for whom the office was not claimed.  The fact that you might be a party who does not claim the office does not preclude you from falling within the first category to whom notice does not have to be given.

187.	Accordingly, I reject the argument that I have to give notice to the Petitioner.  The fact I would (on Mr Brodie’s approach) be giving notice to the Petitioner to attend his own case in which he has had every opportunity to give evidence serves to reinforce the view I take about the proper construction of Section 160.

188.	The Petitioner undoubtedly broadcast through the ward the propositions that Mr Afzal was guilty of general corruption and that the Commissioner had said he lied like a trooper.  I have already drawn attention to the election petition which was heard in 2005.  The determination of the election court was most certainly not that Mr Afzal had lied like a trooper and there was no finding of personal corruption.

189.	However, in his original determination the Commissioner had said Mr Afzal had lied like a trooper. Further, the election of Mr Afzal was avoided for general corruption in that corrupt and illegal practices for the purpose of promoting or procuring his election had so extensively prevailed that they may reasonably be supposed to have affected the result of such election.

190.	The statements made by Mr Aehmed were undoubtedly done before or during the election for the purpose of affecting the return of Mr Afzal at that election.  I consider, notwithstanding Mr Millar’s observations about the narrowness of personal character or conduct, that such statements were in relation to personal character or conduct.

191.	However, whilst the statements are, given what happened in the Court of Appeal, if I may use the expression, remarkably close to the wind, I do not think I can be satisfied so that I am sure that I should classify them as false.  Mr Mawrey undoubtedly did say that Mr Afzal lied like a trooper even though if one is to have an ounce of fairness, one has to remember and state immediately that such a finding was overturned.  Further, his election was undoubtedly avoided for general corruption.

192.	Accordingly, it is strictly unnecessary for me to determine whether Mr Aehmed has shown that he had reasonable grounds for believing and did believe the statement to be true.  Mr Brodie points out that his client is not an educated man and that he relied on his agent, Mr Ayoub Khan who is a barrister.  

193.	I am not persuaded that the want of education can make otherwise unreasonable grounds reasonable.  However, plainly it can be said to be reasonable to rely on a barrister for a view as to the law.  In this instance, the legal position requires, as has been seen, some explanation.  Thus, I would have held, had it been necessary to do so, that Mr Aehmed had shown on a balance of probability that he had in the light of Mr Khan’s involvement reasonable grounds for his belief.

194.	I have considered whether or not I should give notice to Mr Ayoub Khan.  However, in the light of my finding as to whether or not I was sure of the falsity of that which was stated I have decided not to do so.

195.	I should emphasise that the preceding findings are not to be taken as a finding that either Mr Aehmed or Mr Ayoub Khan behaved, in this regard, either creditably or honourably.  

196.	I should also add that I have not overlooked in this consideration the statements which were made other than through the Liberal Democrat leaflet.  For instance a recording was played in Court of a Liberal Democrat support saying (through a loudspeaker attached to a car):  “let’s kick out corruption, kick out Afzal, kick out Labour.  Labour means corruption, the party of [the unbelievers].  Afzal, Islam, Kazi and Mr Khan guilty”.

197.	I cannot be satisfied in the circumstances that these words constitute a false statement as to personal character or conduct within Section 106.

CONCLUSION
198.	Accordingly, I report and determine and follows:

1.	Mr Muhammed Afzal was duly elected.
2.	The election of Mr Afzal was not void.
3.	Illegal practices did not prevail whether extensively or at all.
4.	No corrupt or illegal practice has been proved to have been committed by or with the knowledge and consent of any candidate at the election.
5.	An unwarranted attempt was made by Mr Aehmed and Mr Ayoub Khan to suggest that Mr Afzal was seeking illegitimately to influence the pursuit of the case.

ts\election for Aston ward of birmingham