Khan, R (on the application of) v Election Commissioner for the Aston Ward (Birmingham City Council) [2009] EWHC 1757 (Admin)

[2009] EWHC 1757 (Admin)

Case No CO/6223/2008

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 24/07/2009

Before

THE RT. HON. LORD JUSTICE LEVESON

THE HON. MR JUSTICE WILKIE

Between

THE QUEENClaimant

on the Application of AYOUB KHANClaimant

THE ELECTION COMMISSIONER FOR THE ASTON WARD OF THE BIRMINGHAM CITY COUNCILiNTERESDefendant

MUHAMMED AFZAL (1)Interested Parties

BIRMINGHAM CITY COUNCIL (2)Interested Party

THE SECRETARY OF STATE FOR JUSTICE (3)Interested Party

Mr Ramby de Mello and Ms Gina Alwood (instructed by Ahmed, Solicitors, Birmingham) for Claimant, Mr Ayoub Khan

The Defendant, The Election Commissioner for Aston Ward of the Birmingham City Council, did not appear and was not represented.

Mr David Lock (instructed by Steel & Shamash, London) for First Named Interested Party, Mr Muhammed Afzal

Mr Javan Herberg (instructed by Treasury Solicitors, London) for Third Named Interested Party, the Secretary of State for Justice

Hearing Hearing date: 2 nd July 2009

Judgment

[1]On 3rd May 2007, an election was held for the purposes of electing a councillor for the Aston Ward of Birmingham City Council. Mr Saeed Aehmed contested the election for the Liberal Democrats; his election agent was the Claimant, Mr Ayoub Khan, a barrister and a member of the cabinet within the City Council. Following the victory of the Labour Party candidate, Mr Muhammed Afzal, Mr Aehmed challenged the result pursuant to the provisions of s. 106 of the Representation of the People Act 1983 (“the Act”) by issuing an election petition alleging that Mr Afzal personally and by his agents was guilty of illegal practices having pursued an illegitimate smear campaign against him such as might reasonably have been supposed to have affected the result.

[2]Mr Timothy Straker Q.C. was appointed as Commissioner to conduct the Election Court and, on 30th October 2007, a hearing commenced which was essentially inquisitorial in nature and at which the D.P.P. and both Mr Aehmed and Mr Afzal were represented. It lasted some 24 days during the course of which Mr Khan twice was called to give evidence. Having reserved his decision, on 2nd April 2008, the Commissioner completely rejected the complaint made against Mr Afzal and dismissed the petition. Using the authority of section 145(4) of the Act, he also made a special report to the High Court to the effect:

“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. ”

[3]In addition to the formal report, Mr Commissioner Straker Q.C. identified its basis during the course of his judgment. He spoke of Mr Aehmed and Mr Khan using “unrelated or peripheral events against [Mr Afzal]” which “included a scurrilous and unwarranted allegation that he was involved in witness intimidation”, that Mr Khan “clearly suggested … that Mr Afzal’s supporters had burnt out a Range Rover belonging to one of Mr Aehmed’s supporters” which was “clearly no more than an unpleasant, unsupported and unsubstantiated assertion directed against Mr Afzal”. In relation to other assertions in electoral literature of which Mr Afzal made complaint against Mr Aehmed and Mr Khan, he concluded that he was not sure of their falsity and so rejected his complaint of illegal practice but emphasised 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.”

[4]Following the publication of this report, on 29th April 2008, Mr Ayoub Khan was reported to the Bar Standards Board on the basis that his attempt to suggest that [Mr Khan] was seeking illegitimately to influence the pursuit of the case, as found by the Commissioner, amounted to professional misconduct contrary to paragraph 301 of the Barristers’ Code of Conduct.

[5]Mr Khan has sought to challenge the conclusions of the Commissioner insofar as they affect him and seeks an order that these conclusions are severed from the remainder of the report and set aside. He does so upon a number of grounds, in respect of two of which the single Judge gave leave. The first of these grounds was that the Commissioner ought to have given notice to Mr Khan that he intended to make a special report under section 145(4) of the Act identifying the basis of such intention and giving him the opportunity to make representations (the “fairness” argument). The second was that the findings of the Commissioner were perverse or unreasonable not being justified by the evidence (the “perverse or unreasonable” argument). Mr Ramby de Mello (who has appeared for Mr Khan in this court) has sought to add a further ground to the effect that, in any event, it was not open to the Commissioner to make any report under s. 145(4) of the Act (“ultra vires”). While these proceedings are pending, the disciplinary proceedings stand adjourned.

The Legal Framework

[6]Section 127 of the Act permits a local election to be questioned by way of petition on grounds which include “that the election was avoided by corrupt or illegal practices” with sections 128-132 prescribing the presentation of the petition, its timing, the appointment of a Commissioner, accommodation for the hearing of the petition and remuneration. Subsequent provisions provide for the trial of the petition in open court without a jury (section 139(1) of the Act), with witnesses summoned, compellable and sworn as in the High Court (section 140(1) and (2) of the Act), and the Commissioner having the power to examine any person so required to attend or who is in court even though not called by any party to the petition (section 140(3) of the Act). A witness has no privilege against self incrimination but the answers may not be used in any prosecution save for perjury: sections 141(1) and (2).

[7]The conclusion of the trial of a local election petition is described in s. 145 of the Act in these terms:

“(1) At the conclusion of the trial of a petition questioning an election under the local government Act, the election court shall determine whether the person whose election is complained of, or any and what other person, was duly elected, or whether the election was void, and the determination so certified shall be final to all intents as to the matters at issue on the petition. … (2) The election court shall forthwith certify in writing the determination to the High Court. (3) Where a charge is made in the petition of any corrupt or illegal practice having been committed at the election the court shall, in addition to giving a certificate, and at the same time, make a report in writing to the High Court as required by sections 158 and 160 below and also stating whether any corrupt practices have, or whether there is reason to believe that any corrupt practices have, extensively prevailed at the election in the area of the authority for which the election was held or in any electoral area of that authority’s area. (4) The election court may at the same time make a special report to the High Court as to matters arising in the course of the trial an account of which in the judgment of the court ought to be submitted to the High Court. (5) A copy of any certificate or report made to the High Court shall be sent by the High Court to the Secretary of State. (6) The High Court shall by the signatures of two or more of its judges certify a copy of the certificate mentioned in subsection (5) above to the proper officer of the authority for which the election was held.”

[8]It is important to emphasise the further consequences which flow from these provisions. In relation to a finding of corrupt or illegal practice, section 158 of the Act provides for the making of a report as to a candidate guilty of corrupt or illegal practice in these terms: “(1) The report of an election court under section 144 or section 145 above shall state whether any corrupt or illegal practice has or has not been proved to have been committed by or with the knowledge and consent of any candidate at the election, and the nature of the corrupt or illegal practice. (2) For the purposes of sections 159 and 160 below—(a) if it is reported that a corrupt practice other than treating or undue influence was committed with the knowledge and consent of a candidate, he shall be treated as having been reported personally guilty of that corrupt practice, and

(b) if it is reported that an illegal practice was committed with the knowledge and consent of a candidate at a parliamentary election, he shall be treated as having been reported personally guilty of that illegal practice. (3) The report shall also state whether any of the candidates has been guilty by his agents of any corrupt or illegal practice in reference to the election; but if a candidate is reported guilty by his agents of treating, undue influence or any illegal practice, and the court further reports that the candidate has proved to the court— (a) that no corrupt or illegal practice was committed at the election by the candidate or his election agent and the offences mentioned in the report were committed contrary to the orders and without the sanction or connivance of the candidate or his election agent, and (b) that the candidate and his election agent took all reasonable means for preventing the commission of corrupt and illegal practices at the election, and

(d) that in all other respects the election was free from any corrupt or illegal practice on the part of the candidate and of his agents, then the candidate shall not be treated for the purposes of section 159 as having been reported guilty by his agents of the offences mentioned in the report.” (a) if it is reported that a corrupt practice other than treating or undue influence was committed with the knowledge and consent of a candidate, he shall be treated as having been reported personally guilty of that corrupt practice, and (b) if it is reported that an illegal practice was committed with the knowledge and consent of a candidate at a parliamentary election, he shall be treated as having been reported personally guilty of that illegal practice. (a) that no corrupt or illegal practice was committed at the election by the candidate or his election agent and the offences mentioned in the report were committed contrary to the orders and without the sanction or connivance of the candidate or his election agent, and (b) that the candidate and his election agent took all reasonable means for preventing the commission of corrupt and illegal practices at the election, and (c) that the offences mentioned in the report were of a trivial, unimportant and limited character, and (d) that in all other respects the election was free from any corrupt or illegal practice on the part of the candidate and of his agents,

[9]The importance of such a finding in respect of an elected candidate or his agents is that the election “shall be void”: section 159(1). But it is not only the parties to the petition or the candidates for whom such a finding has consequences. In relation to persons who were not parties to the petition or candidates on whose behalf the seat was claimed by the petition (that is to say, persons who may not be expected to be already participating in the proceedings as a party), who have been proved at the trial to have been guilty of any corrupt or illegal practiceand who, as a consequence, have been identified in the proposed section 145 report, section 160(1) of the Act confers specific procedural protection. Before a report of corrupt or illegal practice is made, such persons must be given notice, and: “if he appears in pursuance of the notice shall [be given] an opportunity of being heard by himself and of calling evidence in his defence to show why he should not be reported”.

[10]The importance and significance of this provision becomes apparent when consideration is given to the consequences upon any person personally found guilty of “corrupt or illegal practice”. First, the report must be placed before the Director or Public Prosecutions: section 160(3) of the Act. Section 160(4) goes on to provide that such a person is subject to disqualifications for a period of years from voting or holding elective office. Further, following a finding of corrupt practice by a barrister, advocate, solicitor or any other regulated profession, section 162 of the Act requires the court to bring the matter before the relevant professional body “to take cognisance of any misconduct of the person in his profession” so that the relevant tribunal may “deal with him as if the corrupt practice were misconduct by him in his profession”.

[11]The Act does not provide for any consequence to follow in relation to report or criticism short of a finding or proposed finding of corrupt or illegal practice. Further and in particular, there is no provision that a person who may be affected by a special report which the Commissioner concludes should be made to the High Court under section 145(4) by reason of some matter which arose in the course of the trial of the petition should be provided with similar notice or opportunity to that identified in section 160(1) of the Act either to be heard or to call evidence to show why he should not be the subject of such a report.

Ultra Vires

[12]Logically prior to the grounds for which Mr Khan was given leave is the new issue now for the first time raised by Mr de Mello to the effect that although section 145(4) permits a report of matters arising in the course of a trial, the proper construction of that phrase is that it contemplates a report only in respect of matters concerning the election and not in relation to the way in which the trial was conducted. If it was otherwise, and the Election Court is empowered to make a report about the conduct of a witness in the course of the trial falling outside corrupt and illegal practice within section 145(3), this could have a chilling effect on witnesses who might be reluctant to give evidence.

[13]Mr David Lock (for Mr Afzal) and Mr Javan Herberg (who has attended, as a friend of the court, instructed by the Ministry of Justice at the request of Davis J to deal with the issues concerning the construction of the legislation) both submit that section 145(4) is drafted in wide terms with no restriction as to what can be “matters in the course of the trial”; the only limitation to the power is the Commissioner’s discretion. I agree and can find nothing in the legislation or any cited authority which purports to limit that discretion. For my part, I see no reason for reading into the section a provision that the report should only be about the election when the statute specifically permits it to be about any matter arising in the course of the trial which inevitably includes the way in which the trial was conducted by the parties as well as the substance of the issues.

[14]Neither do I consider that there is anything in the argument that such a report is likely to have a chilling effect on those required to give evidence. It is beyond argument that the Commissioner (as any judge) was entitled to reach conclusions as to the veracity, accuracy, reliability and motives of all those who gave evidence before him and to deal with that evidence in such terms as he believed right. If the Commissioner had decided not to issue a report under section 145(4) of the Act, he could still have described Mr Khan and his evidence in the way that he did and the effect on the public credibility of Mr Khan (and, likely as not, the report to the Bar Standards Board) would have been the same. Mr de Mello himself makes the point that the Commissioner could have reported his concerns to the Attorney General, the Director of Public Prosecutions (who was of course represented at the hearing) or the police: his decision to issue a report on Mr Khan’s conduct does no more than underline the gravity of the position as he saw it but in a manner short of referring the matter to a prosecuting authority (which, presumably, if thought about, would have been rather more chilling in effect than issuing a report which, by itself, carried no sanction or consequence). There is nothing in this proposed additional ground.

Fairness

[15]Mr de Mello argues that if the Commissioner was entitled to report under section 145(4) of the Act, he should have given Mr Khan (who was not a party to the petition) clear and unequivocal notice of his provisional intention to take that step and thereafter to permit him to call evidence or make submissions in an attempt to dissuade him from so doing. He relies on the provisions of section 160(1) of the Act which makes exactly that provision in the case of a conclusion of corrupt or illegal practice and argues that the same level of fairness and common justice which applies to the making of a report under section 145(3) must “cross-over” into the making of a report under section 145(4) because each report will have a serious consequence for the individual generally and, specifically, for Mr Khan, who is a barrister, a councillor and member of the cabinet of Birmingham City Council whose reputation along with his professional and vocational career will be affected.

[16]Mr de Mello responds to the argument, that Parliament specifically legislated for notice to be given if an allegation of corrupt or illegal practice was to be made against a non-party to the suit, and thus did not intend such protection to extend beyond those circumstances, by reference to the well known dictum of Lord Reid in Wiseman v. Borneman

[1971] AC 297

at 308 in these terms:

“Natural justice requires that the procedure before any tribunal which is acting judicially shall be fair in all the circumstances, and I would be sorry to see this fundamental general principle degenerate into a series of hard-and-fast-rules. For a long time the courts have, without objection from Parliament, supplemented procedure laid down in legislation where they have found that to be necessary for this purpose. But before this unusual kind of power is exercised it must be clear that the statutory procedure is insufficient to achieve justice and that to require additional steps would not frustrate the apparent purpose of the legislation.”

[17]In that regard, he points to Regina (Khan and others) v. The Election Commissioner

[2005] EWHC 2365 (Admin)

in which Scott Baker LJ identified the procedural protection provided by section 160(1) in relation to corrupt and illegal practices observing (at paragraph 7) that it was a provision of fundamental fairness “that someone should not have what is tantamount to a criminal finding made against him without first having an opportunity to respond”. He also submits (although unnecessary for the argument) that the ECHR has concluded that damage to reputation can engage procedural protection under Article 6 (referring to Helmers v. Sweden 29th October 1991, series A no 212-A and Fayed v. UK

(1994) 18 EHRR 393

but see now White v. Sweden

(2008) EHRR 3

) and also under Article 8 because aspersion of character can constitute an interference with the right to private life (citing Wright v. Secretary of State for Health

[2009] UKHL 3

at para 32, 36 per Baroness Hale of Richmond).

[18]Mr Lock and Mr Herberg both point to the fundamental difference between a report of corrupt or illegal practice against any named individual and a report in the circumstances of this case. A report of personal involvement in corrupt or illegal practice in relation to a person who was not a party to the petition (and thus is not personally affected by the election) has automatic consequences in relation to the ability to vote, be elected or hold elective office for five years in the case of a finding of corrupt practice and three years in the case of illegal practice. Further, in relation to a barrister subject to a report under section 145(3), section 162 requires the High Court to refer the matter to his Inn of Court. A report under section 145(4) of the Act, on the other hand, has no such consequences either identified in the legislation or otherwise. The only possible action would be that the Election Judges to whom the report is issued may then exercise a discretion to refer to the authorities (whether the D.P.P. or a professional body) but that discretion could equally have been exercised by the Commissioner himself or, indeed, by the Judges following their perusal of the terms of the Commissioner’s judgment.

[19]In order to test Mr de Mello’s proposition it is appropriate to examine an analogy away from this jurisdiction. During the course of a civil action, one side calls an expert witness whom the judge wholly disbelieves and whom he concludes has attempted to deceive him. During the course of argument he will doubtless receive submissions from the parties as to the reliability of the evidence. The judge is then in a position to reach such conclusions as to his evidence as he thinks fit. A judgment in condemnatory terms would undeniably affect the standing and reputation of the expert and a stigma may thereafter attach to him such that his livelihood as an expert is undermined; it may lead to disciplinary proceedings. There would, however, have been no obligation on the judge to warn the expert of his intentions or to hear submissions from him, let alone (as Mr de Mello contends should have been possible here) for witnesses to be recalled so that he, the expert, whether by himself or counsel, could cross examine them.

[20]What is the difference between that situation and this? Mr de Mello argues that the formal report under section 145(4) is so akin to the formal report under section 145 (3) (which, in the case of a non-party, requires notice to be given under section 160(1) of the Act) that, by implication, fairness requires similar treatment. I reject the submission. First, the two situations are entirely different. As I have demonstrated, a report under section 145(3) is (subject to challenge) determinative of legal rights (in relation to voting, holding elective office etc). A report under section 145(5) is determinative of nothing. Thus, there is no need to imply parity of approach into the statute.

[21]Secondly, although I recognise that a report carries a greater denunciation than an articulation of the same conclusion in the judgment, in reality, that is a distinction without a difference. The Commissioner could have used even stronger language in his judgment, expressed the view that the Director of Public Prosecutions should review the papers for consideration of prosecution or himself referred the matter to the Bar Standards Board: none of these steps would be any different to what might happen to any witness in civil proceedings. He did none of them. For the law to require advance notice simply because the Commissioner chose to deal with the points he wished to make by placing them into a report to the Election Judges rather than simply by expressing them in the narrative of his judgment is not, in my view, tenable.

[22]Thirdly, it has been open to Mr Khan to challenge the conclusion of which he complains in at least one way not available to the witness in the analogy discussed above. Thus, as evidenced by the second limb of this application, in these proceedings, it has been open to him, as an aggrieved witness, to challenge the adverse finding by way of judicial review on the grounds that it is perverse; in the ordinary course of events, witnesses cannot.

[23]Finally, in the circumstances of this case, it is not at all clear what Mr Khan could have done had he been given notice. Mr Khan did in fact give evidence a second time. Mr de Mello suggests that he would have exercised his right not to answer questions; the exercise of a right against self incrimination is hardly likely to have rendered his evidence more credible. Additionally, it is said that he would have wished to be legally represented, to have cross examined Mr Arif and Mr Banares and Mr Afzal himself. Such a right goes far beyond the rights given to those accused of corrupt or illegal activity and far beyond the protection available to others given notice of potential criticism in other inquisitorial proceedings (see, by way of example, re Pergamon Press Ltd

[1971] Ch 388

). Such a suggestion is, again, untenable.

Perverse or Unreasonable

[24]I turn to the final ground upon which this application is pursued which is the second on which permission was granted, namely, “whether in the light of the evidence of the claimant given at the hearing, the Commissioner was perverse in concluding that he should make such a report naming the claimant”. This requires an analysis of the Commissioner’s conclusions and the evidence upon which he based them.

[25]I have recited the conclusion (in the form of a report) which Mr de Mello seeks to strike down above but, for the sake of completeness in relation to this aspect of the challenge, it is at paragraph 198.5 of the decision in these terms: “An unwarranted attempt was made by [the claimant] to suggest that Mr Afzal was seeking illegitimately to influence the pursuit of the case”.

[26]It appears that the basis for this part of the report is to be found in passages in the decision starting at para 117. Insofar as it is relevant, those passages in the decision are as follows:

“117….at the end of his examination in chief [Mr Ayoub Khan] 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… ”

The Commissioner then said:

“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… 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…it was made plain both through their evidence and the evidence of Mr Afzal, which I accept, that he had visited their scrap yard 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 Ayoub 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…. 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 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 Ahmed’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…”

[27]Paragraph 23 of Mr Khan’s grounds asserted that, in deciding to make a report, the Commissioner, amongst other things was perverse, in particular it is claimed that:

“d. The reporting of the claimant to the High Court is unsubstantiated or unsupported by evidence and it is a perverse decision. e. It is the claimant’s case that the learned Commissioner’s finding is unreasonable given the claimant’s evidence during trial…(Reference is then made to paragraph 126 of the decision)…It is contended that the inference drawn by the learned Commissioner in that the claimant “clearly suggested” that “Mr Afzal’s supporters had burnt out a Range Rover” is unreasonable. The claimant in his evidence stated that he did not know who was responsible for the burning of the Range Rover vehicle…. g. The learned Commissioner’s approach to the claimant’s evidence was clearly tainted following the inference drawn in relation to the burning out of the vehicle. h. The Commissioner attached considerable weight to this finding which then infected the rest of his decision. See paragraphs 198.5… k. As a result of the perverse or unreasonable findings set out above the whole decision and reasons given for reporting the claimants to the Court is unsafe and should be set aside.”

[28]In my judgment the claimant is entitled to say that, having regard to the terms of the Commissioner’s reasons, his decision to report Mr Ayoub Khan in the terms of paragraph 198.5 was informed by each of the allegations made by him and the Commissioner’s view of the veracity of each, that is to say, both in relation to the burning of the black Range Rover and the alleged attempt at the behest of Mr Afzal to persuade the claimant not to give evidence in support of the petition.

[29]How and to what extent the two findings inter-relate could be argued but, for the purposes of this judgment, I am prepared to accept that these two matters were so inextricably linked in the reasoning of the Commissioner that if, in respect of either of them, his adverse conclusion in respect of the truthfulness of the claimant’s assertions could properly be described as unsupported by the evidence or perverse, then that finding in itself would fatally infect his decision to make the report.

[30]In relation to the allegation that Mr Afzal had used Mr Arif and Mr Benaris as a conduit to seek to persuade the claimant not to give evidence, any argument that the Commissioner was perverse in concluding that the claimant’s allegation in that regard was untrue must be considered against the material that he had to consider. Thus, the Commissioner heard evidence from all four persons who were present at the relevant meeting. These were Mr Ayoub Khan, Mr Saeed Aehmed, Mr Arif and Mr Banaris. He also heard evidence from Mr Afzal. The evidence of Mr Afzal, Mr Arif and Mr Banaris was all to the effect that Mr Afzal had not asked Mr Arif or Mr Banaris to speak to either the claimant or the petitioner about the imminent trial or to try to persuade Mr Ayoub Khan not to give evidence at that trial. Although Mr Khan’s evidence was that he had been informed by Mr Arif that Mr Afzal had made such a request, the Commissioner was entitled, having heard the evidence and seen the witnesses, to accept the evidence of Mr Arif, Mr Banaris and Mr Afzal on that issue and to reject the evidence of the claimant. Accordingly, there is no sensible basis upon which that conclusion could be said to have been either perverse or unsupported by evidence; indeed, the contrary is barely even arguable.

[31]The allegation about the burning out of the black Range Rover, however, requires examination in somewhat greater detail. The only person to give evidence about this was Mr Ayoub Khan. The question, therefore, was whether, in his evidence, Mr Khan, either expressly or by implication, was making an accusation that Mr Afzal was behind the burning out of the black Range Rover a few weeks before the trial of the petition.

[32]Mr Khan’s evidence as a witness on this subject starts on Day 3 internal page 21 (page 112). He gave evidence that the regional organiser of the Labour Party had complained by e-mail on the date of the election about the Liberal Democrats having a black Range Rover in Aston with a PA system. He said that this complaint was untrue. Though a Liberal Democrat activist did have a black Range Rover and he was the person who was on the loud speaker, he had been using a red Toyota Avensis for that purpose on the day of the election. Mr Ayoub Khan then went on to say:

“I know that Zulfiqar Khan and Amjad Hussain, who are Labour Party activists, had been very closely affiliated to Atkhar Ahmed who was the chap who was on the PA system in my red Avensis, and they had known that he was an owner of a black Range Rover vehicle which is worth about £50,000. It subsequently burnt about 4 weeks ago, but that’s another matter.”

[33]He added that it had been the subject of an arson attack outside Mr Ahmed’s house, going on:

“…it is worth adding at this point, prior to the election, throughout, we had numerous encounters with Labour Party activists in particular Amjad Hussein and Zulfiqar Khan…Atkhar Ahmed being a former friend of theirs and now obviously a Lib Dem activist was saying that he would have his black Range Rover kitted out with Lib Dem posters and he would be using a mic. So the only assertion which could have driven to that would have been that comment. So clearly they pre-empted it.”

[34]It was at this point that counsel for the respondent to the petition, Mr Afzal, indicated that he was not sure if it was being suggested that there was a connection between those named individuals and the burning out of the car and asked that the witness have whatever was alleged put squarely to him. The questioning then went on in the following terms. “Q. Do you know who burned out the black car? A. No. Q. Do you know of anybody other than supporters of the Labour Party who might harbour a grievance about the owner? A. Absolutely not….he has had no grievances at all his vehicle was set alight three weeks ago…” Counsel for the petitioner then went on:

“Q. Are you aware of the reaction or to what extent are you aware of any reaction by Labour Party supporters to these proceedings and to people giving evidence in them?”

A. .… I can tell you, witnesses do not come forward for these sort of matters. It’s a simple fact of reality in Wards like Aston. They are intimidating people, I talk from personal experience.” He then went on to give his evidence about the Arif and Banaris approach.

[35]On 22nd January 2008, Mr Khan was recalled to give further evidence (internal page 110, page 953 of the bundle). He was asked to confirm that he had not expected to give any evidence about the Arif/Banaris meeting, but he had just given evidence about the black Range Rover being burnt out (having been reminded of his evidence in that respect); counsel for Mr Saeed Aehmed then went on to ask him:

“Q. So what you are saying there is that a complaint about a black Range Rover on election day, making announcements through a PA, was simply a fabrication, and it was an inference that they had drawn from him saying that that was what he was going to do? A. Yes.”

Counsel for the petitioner then reminded him of the exchange which then followed, to which I have just referred. He was asked to confirm that this was his evidence about notable reactions on the part of the Labour Party to these proceedings which he confirmed.

[36]On the basis of that evidence the Commissioner concluded, at paragraph 126 of his decision, that the claimant had clearly suggested that Mr Afzal’s supporters had burnt out a Range Rover belonging to one of Mr Saeed Aehmed’s supporters and that this suggestion was no more than an unpleasant, unsupported and unsubstantiated assertion directed against Mr Afzal.

[37]In my judgment the Commissioner was entitled to conclude that Mr Khan was making such an allegation, albeit by inference. He had clearly indicated that the named Labour Party supporters had a basis for believing that the black Range Rover, which belonged to a Liberal Democrat activist, had been involved on election day in touring Aston, making PA announcements and that immediately afterwards he said that it had now been burnt out. It is true to say that, when he was asked point blank if he knew who had burnt out the black car, he said “No”. However, counsel for Mr Aehmed went further. He asked, in terms, whether the claimant knew of anybody other than supporters of the Labour Party who might harbour a grievance about the owner. His answer to that was unequivocal: “absolutely not…he has had no grievances at all. His vehicle was set alight three weeks ago”.

[38]This was his opportunity for Mr Khan to say, if he so wished, that he was not inviting the Commissioner to draw any inference from his evidence that the burning of the black Range Rover was in any way connected with its alleged use in the election campaign or the complaint made by Labour Party supporters about that use. Rather his answer was very clearly to indicate that there was no one other than the supporters of Mr Afzal who could have had any reason to set light to the vehicle. Furthermore, he was recalled so as to have an opportunity to clarify matters and he failed to do so.

[39]Furthermore, in my judgment it was equally open to the Commissioner, who had heard all the evidence and seen all the witnesses, to draw the conclusion that the claimant was, by inference, suggesting that the burning out of the black Range Rover was with the support of, or at the instigation of, Mr Afzal and that he was doing so for the purpose of influencing the Commissioner. Indeed it is clear from the cross-examination of Mr Khan (pages 127 to 128) that Mr Khan accepted that by giving evidence, in that instance about the alleged meeting with Arif and Banaris, he wanted to take the opportunity to attack and disadvantage Mr Afzal and his credibility, that it was his choice to do so, and that he would accept whatever “repercussions” it might have for him.

[40]Whilst, therefore, it is correct to say that the evidence does not support the contention that he was explicitly asserting that Mr Afzal was behind the burning out of the black Range Rover, there was evidence on the basis of which the Commissioner could conclude that he was alleging, by inference, though without any evidence to support it, that Mr Afzal was behind that arson attack. In my judgment, therefore, the Commissioner was entitled to have regard to that matter in forming his judgment first as to the credibility of Mr Khan, which he dealt with in the body of the decision and, secondly, that he should make the report to the High Court set out at paragraph 198.5 of his decision. I would therefore dismiss the challenge on the grounds of perversity.

Conclusion

[41]In my judgment, Mr de Mello fails in his challenges to the power of the Commissioner both to report Mr Ayoub Khan to the Election Judges and to adopt the procedure which he did before so doing and, additionally, in his challenge to the basis of his findings. In those circumstances, I would dismiss this application for judicial review.

[42]I add only this. Mr Ayoub Khan feels that his evidence has been unfairly treated and his reputation undermined without his having had the opportunity personally to make submissions in an effort to seek to persuade the fact finder not to conclude as he has. To that extent, he is in exactly the same position as any witness (and, in particular, any expert witness whose credibility is critical to his value as an expert). He is not, however, deprived of all opportunity to put his case. If (as to the propriety of which I express absolutely no opinion) a disciplinary case is pursued against him by the Bar Standards Board, the tribunal which determines whether he is in breach of the Barristers’ Code of Conduct will look afresh at the facts. Mr Khan will be able to call whatever evidence or deploy whatever arguments based on the transcript or otherwise that he wishes. The case being put before the Commissioner was Mr Saeed Aehmed’s challenge to the election of Mr Muhammed Afzal; any case in which Mr Ayoub Khan is the defendant will be his opportunity to deal with the Commissioner’s conclusions.

Mr. Justice Wilkie :

[43]I agree.