Khan, R (on the application of) v Election Commissioner for the Aston Ward (Birmingham City Council)

A special report under section 145(4) of the Representation of the People Act 1983 may address any matter arising during an election-petition trial, including the conduct of the parties and witnesses. The provision does not carry the same procedural protections as a report of corrupt or illegal practice under section 145(3), because a section 145(4) report is not itself determinative of legal rights and carries no automatic statutory sanction. Fairness does not generally require advance notice or an opportunity to make representations before such a report is made. A commissioner’s assessment of witness credibility and inferences from evidence will not be disturbed as perverse where the conclusion is reasonably open on the evidence.

An election petition challenged the election of Muhammed Afzal as councillor for Aston Ward. The Election Commissioner dismissed the petition but made a special report under section 145(4) of the Representation of the People Act 1983, criticising Ayoub Khan’s conduct and stating that he had made an unwarranted attempt to suggest that Mr Afzal was improperly influencing the proceedings.

Mr Khan sought judicial review of the adverse conclusions. Permission was granted on grounds that the Commissioner lacked power to make the report, had acted unfairly by giving no prior notice, and had reached a perverse or unreasonable conclusion. The central issues were the scope of section 145(4), the procedural fairness owed before a special report, and whether the findings were supported by the evidence.

1. Power to report. Section 145(4) of the Representation of the People Act 1983 is expressed in wide terms. It permits a special report concerning any matter arising in the course of the trial, including the way in which the trial was conducted and not merely matters concerning the election. No statutory or authoritative restriction confined the power to electoral matters.
2. Fairness. A report under section 145(3), read with section 160(1), may result in automatic disqualifications, referral for prosecution and professional disciplinary consequences. A section 145(4) report determines nothing and carries no automatic statutory consequence. The court therefore declined to imply a requirement for advance notice, an opportunity to make submissions or the calling of further evidence. The ordinary power of a judge to assess the credibility and reliability of witnesses was not displaced merely because the criticism was recorded in a formal report.
3. The distinction was consistent with Wiseman v Borneman [1971] AC 297: procedural supplementation may be required where necessary to achieve justice, but no supplementation was necessary here. The protections sought would also have exceeded those ordinarily available to a criticised witness in civil or inquisitorial proceedings, including the example discussed in re Pergamon Press Ltd [1971] Ch 388.
4. Perversity. The Commissioner was entitled to accept the evidence of Mr Arif, Mr Banaris and Mr Afzal and reject Mr Khan’s allegation that they had acted as Mr Afzal’s conduit. He was also entitled to infer from Mr Khan’s evidence about the burnt-out Range Rover that Mr Afzal’s supporters were being implicated, despite Mr Khan’s denial of express knowledge of who caused the arson. The findings were supported by evidence and were not perverse or unreasonable.
5. The application for judicial review was dismissed.