Richard Mawrey QC, the Commissioner of the forthcoming Tower Hamlets election court hearing, yesterday overturned a decision to hold the trial at the Town Hall and ruled it must be heard instead at the Royal Courts of Justice in the Strand.
He ruled it will start at 10am on February 2 in Court 38.
It is an early victory for the four petitioners, who are led by Andy Erlam and represented by barrister Francis Hoar.
Another judge at a preliminary hearing had previously rejected their request for it to be heard outside Tower Hamlets and had recommended the town hall.
However, in a written ruling yesterday, Mr Mawrey said the town hall could not be considered a “neutral venue”.
He said there was now “considerable hostility” in the borough to the arrival of Eric Pickles’s commissioners.
And he noted that George Galloway and Ken Livingstone had made “very public calls for campaigns of harassment to be directed against what they describe as interference with the democratic process”.
At a rally last month, Livingstone called for Lutfur’s supporters to protest outside the homes of the commissioners.
All this has been clearly observed by Mr Mawrey.
He said a “considerable” volume of evidence/allegations against Mayor Lutfur Rahman and Returning Officer John Williams had now been placed before him.
He stressed he had made no judgment whatsoever on the veracity of the allegations.
However, he said the allegations included suggestions there was a significant body of support for the mayor in the town hall–where an election petition would normally be heard.
He wrote: “The witness statements include a body of evidence to the effect that the Town Hall staff contains a significant body of political supporters of Mr Rahman whose conduct in the past is said to have gone well beyond what is permissible in the case of local civil servants. There are also allegations (which may or may not be well founded) of Town Hall staff having been involved in (or at least complicit in) active electoral fraud.”
He also revealed in his written ruling that the Metropolitan Police had been present at the recent confidential scrutiny of the Mayor’s vote at the Royal Courts of Justice. He said the police were conducting their own investigations into electoral fraud.
This time, it seems it’s all being taken much more seriously.
Here is Mr Mawrey’s explanation in full. Paragraphs 7-12 are particularly interesting.
NOTE: In the interests of conversational debate, I am going to allow comments on this post BUT please do not ascribe any guilt to any individual. Keep the discussion around the general issues of the election petition and the venue. I stress that allegations have been made, all of which are denied and are yet to be tried. Comments will be moderated.
IN THE HIGH COURT OF JUSTICE M/350/14
QUEEN’S BENCH DIVISION
IN THE MATTER OF THE REPRESENTATION OF THE PEOPLE ACT 1983
AND IN THE MATTER OF A MAYORAL ELECTION FOR THE LONDON BOROUGH OF TOWER HAMLETS HELD ON 22 MAY 2014
BETWEEN:
(1) ANDREW ERLAM
(2) DEBBIE SIMONE
(3) AZMAL HUSSEIN
(4) ANGELA MOFFAT
Petitioners
-and-
(1) MOHAMMED LUTFUR RAHMAN
(2) JOHN S WILLIAMS (RETURNING OFFICER)
Respondents
DIRECTIONS ORDER No 7: 19 DECEMBER 2014
REASONS (not part of the order)
1 I have confirmed with the Rota Judges that the powers conferred on an Election Commissioner under the Representation of the People Act 1983 (‘the 1983 Act’) s130(5) entitle a Commissioner to order that the trial should take place outside the electoral area under s 130(6). Such an order may be made if the court is ‘satisfied that special circumstances exist rendering it desirable that the petition should be tried elsewhere’.
2 I appreciate that an application was made to Mr Justice Supperstone for an order under s 130(6) and that on 31 July 2014, he dismissed that application. I have read his judgment on that occasion which sets out the grounds on which the Petitioners were then contending that the trial should take place outside the Borough and the reasons why the Judge rejected those grounds and refused the order. Having considered that judgment I would say, respectfully, that I entirely agree with it and that it was the correct decision to be made on the limited grounds and the equally limited evidential material before the court on that occasion.
3 The position today is entirely different from that which was before Supperstone J in July. The parties’ cases have been fully pleaded and a very considerable volume of evidence has been served.
4 May I emphasize at this point that I have, as yet, seen and heard none of the witnesses and I have formed no conclusions on the evidence whatsoever. At this stage of the proceedings the allegations made by all parties in their witness statements remain allegations, to be proved or disproved at trial. Insofar as I have taken those witness statements into account when making this decision, I have in no way prejudged their reliability or veracity. My approach is to treat the allegations on the basis that they might be true or they might not.
5 In general the most likely venue for the trial of a petition challenging a local authority election is the authority’s Town Hall. It is not the inevitable venue and I have tried other petitions (notably Birmingham) in some other building within the electoral area. In this petition, however, the Town Hall was put forward as the most suitable venue and I shall approach the question by considering that venue first.
6 As the parties are aware, I have been uneasy about the Town Hall as a venue from an early stage. This case differs from the norm of local authority petitions. Historically, local election petitions have concerned events in a single ward (occasionally two wards as in Birmingham in 2005). In those circumstances, the Town Hall of the Borough represents both a convenient and a relatively neutral venue. Here the challenge is to the election of an executive mayor whose headquarters is inevitably the Town Hall itself. Even were feelings not running as high as they are here, there must be grave doubts as to propriety of a petition to unseat an executive mayor being tried in his own Town Hall.
7 This case is unusual in that there are persistent and highly publicised allegations that witnesses, in particular witnesses for the Petitioners, have been subject to intimidation of themselves or their families both within the Borough and, indeed, in Bangladesh. Certain of the witness statements have been served with the names and addresses of the witness redacted and there is a possibility that I shall be asked to make witness anonymity orders. As said above, I cannot and do not at this stage decide whether these allegations are well-founded but it would be irresponsible to discount them and to decide the venue in a vacuum.
8 I have also to look at the question of intimidation in the context of the allegations, supported by witness statements, of widespread voter intimidation at the polls. These allegations also cannot be ignored. I fully appreciate that the first Respondent denies the allegations of intimidation and denies that, if it did occur, it can be laid at his door. None the less the evidence submitted does raise at least a triable issue as to intimidation.
9 Furthermore the Town Hall cannot realistically be regarded as a neutral venue. The witness statements include a body of evidence to the effect that the Town Hall staff contains a significant body of political supporters of Mr Rahman whose conduct in the past is said to have gone well beyond what is permissible in the case of local civil servants. There are also allegations (which may or may not be well founded) of Town Hall staff having been involved in (or at least complicit in) active electoral fraud.
10 In this context, though I accept that it is not yet evidence in the case and may never become so, these allegations find considerable support in the PwC report commissioned by the Secretary of State for Communities and Local Government. It would do little to enhance the view of the court as a neutral and impartial venue if it were held in a venue which is perceived (rightly or wrongly) to be staffed by people who are, to put it neutrally, partisan. There would be legitimate fears that the staff might obstruct or identify vulnerable witnesses and, whatever precautions are taken, the security of documents would always have a question mark over it (however unjustified that might turn out to be).
11 When the matter was before Supperstone J the concern raised was of disorder at the trial and the Judge pointed, quite rightly, to the powers of a Commissioner to enlist the assistance of the Police. Events have, as said above, moved on somewhat. It is no longer primarily a question of maintaining an orderly trial. If that were the only concern, I would not be revisiting the earlier decision. The fact is that the position of the Metropolitan Police has become more complex, as it is no secret that the Met is conducting its own enquiries as to potential criminal offences committed in the course of the May election (hence the involvement of officers at the Scrutiny) and has been further dragged into this case by the allegations made on both sides of witness intimidation. Nor can I overlook that the case itself does involve criticism (which, as I say, may be entirely unfounded) of the involvement of the Met in policing the election itself. Thus the issues raised before Supperstone J have been overtaken by the subsequent history of this petition.
12 An additional change of circumstances arises from the Secretary of State’s publication of the PwC report and his appointment of commissioners to take over certain of the functions of the Council. Those commissioners have already started work at the Town Hall. The appointment of the commissioners has been met with considerable hostility in certain areas and I cannot overlook the fact that, at a rally attended by the first Respondent, certain of his high-profile political supporters such as Mr Ken Livingstone and Mr George Galloway MP made very public (and much broadcast) calls for campaigns of harassment to be directed against what they describe as interference with the democratic process.
13 This might be mitigated if the Town Hall were otherwise a suitable venue for a trial but it is not. I carried out an inspection last week and the facilities are simply not appropriate for a lengthy trial. The only available courtroom is the Council Chamber. This cannot really be converted into an acceptable courtroom. It has fixed desks which are not convenient for a three-party case, especially one with copious documents. There is no real space for a ‘witness box’. Everything would have to be cleared out for Council meetings. There are no practicable rooms for the judge’s retiring or for the parties’ legal teams. More to the point, the Council Chamber is in the heart of the office area with the staff problems already referred to.
14 For all these reasons I have ruled out the Town Hall as a venue.
15 I indicated at an early stage, when the Petitioners raised their objections, that the parties should attempt to find possible alternative venues within the Borough. The Returning Officer and his solicitors have made considerable efforts to find an alternative venue and I made a tour of the four venues they had located. None of them was remotely suitable and some of the problems involved in the Town Hall as a venue would have applied to those venues even if they had been suitable.
16 I have thus, with great reluctance, come to the conclusion that there are here the kind of special circumstances envisaged by the 1983 Act and that the proper course is to order the trial to be held in the Royal Courts of Justice.
17 Supperstone J remarked, quite correctly if I may say so, one of the reasons for holding election courts in the electoral area concerned is to allow local public access to the court. This is fair as far as it goes but it must be seen in context. When the rule developed in the nineteenth century public transport was much less available and much less affordable than today. In any event, the rule itself does carry its own limitations. In my experience, petitions challenging the election in a ward of the council are heard centrally (often in the Town Hall) which in a large electoral area (Birmingham is a good example) may be several miles away from the ward concerned.
18 The RCJ are, of course, situated in the City of London which is the borough immediately adjacent to Tower Hamlets. If the contested election had been in, say, Merton or Enfield, then the difficulty of the citizens of the borough attending court would be a significant factor. The RCJ may be considered one of the easiest places to get to by public transport in central London and I cannot see any appreciable hardship involved in the citizens of Tower Hamlets attending a trial there.
19 I have therefore liaised with Mr Evans of the Elections Office and he has secured the use of Court 38. It is a large court and its position in the West Green Building will obviate many of the problems attendant on use of a court in the main building.
20 I realise that this may cause some inconvenience to the Respondents but I am satisfied that the interests of a fair and publically transparent trial require the move to be made.
_
21 Finally I should wish to record in these reasons my thanks to Mr Emyr Thomas of the second Respondent’s solicitors for his part in locating and inspecting the alternative venues.
Richard B Mawrey QC
Commissioner
Trial by Jeory 