Rehman v Khan

A corrupt election practice involving spiritual injury requires proof, to the criminal standard, that the respondent or an agent acting on the respondent’s behalf inflicted or threatened spiritual injury in order to induce or compel voting conduct. The statutory language must be construed strictly. The alleged communication must be assessed in its context, including its target audience and the nature of the injury said to be threatened. A statement that religious leaders have ordered followers to vote for a particular party does not, without identifying the threatened injury or its inflictor, necessarily amount to undue influence. The extensive-prevalence ground also requires proof of corrupt practices capable reasonably of affecting the result.

The petitioner challenged the election of the respondent as a Birmingham City Councillor for Washwood Heath at the election held on 7 May 2015. The petition was narrowed to an allegation that the respondent, personally or through agents, had committed the corrupt practice of undue influence by spiritual injury under Representation of the People Act 1983, section 115(2)(a).

The allegation principally concerned a Facebook post stating that religious leaders had ordered followers to vote Labour. The petitioner also relied on the extensive-prevalence ground. The central issues were whether the respondent or an agent had published or shared the post, whether its words amounted to a threat of spiritual injury intended to induce or compel voting, and whether corrupt practices had extensively prevailed.

1. The petition was dismissed. The court determined under section 145 of the Representation of the People Act 1983 that the respondent was duly elected for the Washwood Heath ward. The petitioner was ordered to pay the respondent’s costs, subject to detailed assessment, with £40,000 payable on account within 28 days.
2. Because a corrupt practice is a criminal offence, the petitioner had to prove the allegation to the criminal standard. The statutory words creating the offence also required strict construction. The approach adopted in Aehmed v Afzal [2008] EWHC B5 QB concerning narrow construction, the criminal character of the offence and the significance of speech was treated as applicable by analogy.
3. The relevant words had to be considered in context, including the target audience. The statutory ingredients required conduct by the respondent, directly or indirectly, or by another person on his behalf, involving the infliction or threat of spiritual injury intended to induce or compel a person to vote or refrain from voting.
4. The court could not be sure that the respondent had published or shared the Facebook post. The evidence showed that it was not published by the religious figures alleged, by the other identified individual, by the respondent, or by anyone acting on his behalf. The respondent’s separate publication of an innocuous photograph did not establish responsibility for the offending text.
5. The words themselves did not identify who would inflict spiritual injury or what that injury would be. In context, they did not convey a threat of spiritual injury or show an intention to induce or compel voting. The evidence also did not establish that electors understood the post as threatening spiritual consequences.
6. The allegation of extensive prevalence necessarily failed because the alleged corrupt practice had not been proved. There was no evidence of widespread distribution or effect capable reasonably of affecting the result. The canvassing evidence did not support a general instruction that voting Labour was a religious duty.

Not stated in the judgment.