Rahman, R (on the application of) v Erlam & Ors

An election court’s decision is amenable to judicial review for error of law, including a factual finding unsupported by evidence or not reasonably open on the evidence. For bribery under section 113 of the Representation of the People Act 1983, a payment may be a gift even where conditions attach to its use. Payment to one person may induce voters through that person or otherwise. The statutory purpose need not be the sole or dominant purpose. A person who controls public funds and corruptly uses them to induce votes may have made the payment on his own behalf. Judicial review permission may proceed despite the alternative procedure for stating a case where the issue is important and cannot sensibly be separated from the facts. Permission was granted on the spiritual-injury ground because the outcome could be substantially different and the issue raised matters of general public interest.

The claimant, formerly Mayor of Tower Hamlets, challenged findings by the Local Government Election Court that he and his agents had committed illegal and corrupt electoral practices under the Representation of the People Act 1983. The challenge concerned paid canvassers, grants and media payments alleged to constitute bribery, and alleged undue influence through spiritual injury.

The claimant had subsequently been made bankrupt. The court therefore considered whether the judicial review claim vested in a trustee, whether the election court’s decision was reviewable for error of law, and whether permission should be refused under section 31 of the Senior Courts Act 1981. The central issues were the construction of section 113, the reviewability of election-court decisions, and the arguability and practical significance of the spiritual-injury ground.

1. Bankruptcy. The judicial review claim was personal to the claimant because it concerned findings affecting his character and reputation. It therefore did not vest in the trustee in bankruptcy. Any challenge to the election court’s costs order was different: the claimant had no locus to pursue it, and that issue could be brought only by the trustee. Permission was accordingly conditional on the claimant undertaking not to challenge the costs order.
2. Reviewability and evidence. Despite sections 144(1) and 145(1) of the Representation of the People Act 1983, an election-court decision was amenable to judicial review for error of law. That included a finding of fact for which there was no evidential basis, or a conclusion not reasonably open on the evidence. The paid-canvasser ground disclosed no arguable error.
3. Bribery. Section 113(2) was a penal provision but did not require the narrow construction advanced by the claimant. Grants to voluntary organisations could constitute giving money, even if subject to conditions. Section 113(2)(a) could be satisfied where payment to one person induced a voter, without requiring the recipient to hold the money for the voter or to perform the inducing act. The statutory purpose need not be the sole or dominant purpose. A person who controlled a fund and corruptly used it to induce votes could make the payment on his own behalf. The grants and media payments therefore disclosed no arguable ground for review.
4. Spiritual injury and permission. The spiritual-injury issue was difficult, controversial and of general interest. Permission was granted on that ground. Applying section 31(3)(c)–(e) of the Senior Courts Act 1981, the court considered that the claimant’s outcome could have been substantially different because the impugned finding was a separate conviction for a serious corrupt practice. Exceptional public interest would also have justified allowing the issue to proceed. Section 146(4) of the 1983 Act did not prevent judicial review because the issue could not sensibly be considered independently of the facts.
5. The other convictions remained undisturbed. The claimant’s disqualification would in any event remain five years. The proceedings, if continued, would benefit from an amicus curiae.