Khan, R (on the application of) v The Election Commissioner for the Aston Ward

Representation of the People Act 1983, section 160(1), requires an election court to give a non-party or non-candidate specific notice before reporting that person guilty of a corrupt or illegal practice. The notice must identify the substance of the proposed finding and allow the person to call evidence and make representations, including why they should not be named. General awareness of the allegations is insufficient.

On judicial review, relief remains discretionary. In election cases, promptness is important, but serious consequences and breach of a fundamental fairness requirement may justify relief despite delay. An election commissioner’s decision to refuse an adjournment will be disturbed only if plainly wrong, having regard to fairness, the need for expedition and the electoral timetable.

The Administrative Court heard four related judicial review proceedings arising from election petitions concerning the 2004 Birmingham City Council elections. One claimant, Zulfiqar Khan, had been named by the election commissioner as guilty of corrupt and illegal practices, although he was neither a party to the petition nor a candidate.

Three other claimants challenged the refusal of adjournments and the fairness of proceedings in which they chose not to participate. Two further claimants argued that the successful judicial review brought by another councillor in related proceedings undermined the findings against them. The court considered the statutory notice requirement, procedural fairness, delay, adjournment discretion and the effect of the separate Court of Appeal decision.

1. Zulfiqar Khan’s application allowed. Section 160(1) of the Representation of the People Act 1983 is a fundamental fairness provision. Where a person is neither a party to the petition nor a candidate, the election court must give notice before reporting that person guilty of a corrupt or illegal practice.
2. The notice must do more than provide an opportunity to give evidence in the general proceedings. It must make clear that the commissioner is minded to report the person, identify the nature of the alleged corrupt or illegal practice, and allow representations both on the merits and on why the person should not be named. Familiarity with the allegations or the evidence does not satisfy the statutory requirement. Section 184(1)(b) gives the court a wide discretion as to the form of service, and an oral notice may suffice, although written notice is generally preferable.
3. The failure to give the required notice made the naming unlawful. Although judicial review relief is discretionary and election challenges should be brought promptly, the court could not speculate about how the claimant would have responded. The serious consequences of the report, including the statutory disabilities under section 160(4), and the breach of a fundamental fairness requirement justified setting aside the naming.
4. The applications by Jahan, Ahmed and Khan were refused. The commissioner’s refusal to adjourn involved the exercise of a broad discretion. Judicial review would intervene only if the decision were plainly wrong. Relevant considerations included the claimants’ opportunity to prepare, the need to determine election petitions swiftly, the imminent General Election, and the practical consequences of delay. The claimants had legal representation before the trial, understood the allegations, and chose to withdraw rather than participate. The commissioner had not denied them a fair hearing.
5. The applications by Islam and Kazi were also refused. The successful related challenge by Afzal concerned a distinct factual case and did not undermine the separate findings against them. Delay and lack of merit independently defeated their claims. Costs orders were made or refused as stated in the court’s concluding directions.

The judgment records that a related application by Mohammed Afzal succeeded in the Court of Appeal on 3 May 2005, setting aside the finding against him. The present court held that the decision did not determine the distinct cases of Islam and Kazi.