Rahman, R (On the Application Of) v The Local Government Election Court

Article 6(2) is not engaged merely because civil election proceedings use language associated with criminal liability or apply the criminal standard of proof. The presumption of innocence requires parallel criminal proceedings before its protection against premature findings of criminal guilt can arise. A person is charged for Convention purposes when the proceedings substantially affect his position, including where suspicion is seriously investigated and a prosecution case is compiled, or where official measures carry the implication of a criminal allegation. A decision not to refer papers for prosecution is not an acquittal. In an application to amend judicial review grounds out of time, relevant considerations include delay, proximity to the hearing, changes to the factual context, public importance and prejudice.

The Applicant challenged findings of the Local Government Election Court arising from an election petition concerning the 2014 Tower Hamlets mayoral election. The Election Court found him personally guilty, and guilty by his agents, of electoral offences under the Representation of the People Act 1983, resulting in disqualification from elected office.

Permission had previously been refused on two proposed grounds and granted on an undue-influence ground. The Applicant sought permission to amend the judicial review claim to add three further grounds. He argued that subsequent police decisions not to prosecute were equivalent to an acquittal, that the Election Court’s findings violated Article 6(2), and that section 174(1) of the 1983 Act extended to discontinuance of a criminal investigation.

1. Application refused. The court refused permission to amend the judicial review grounds. Grounds 1 and 2 had no reasonable prospect of success. Ground 3 also had no reasonable prospect of success, and the court declined to determine the separate question of which court section 174(1) identified as “the court”.
2. Article 6(2) was not engaged. The Applicant had never been charged with a criminal offence and there were no parallel criminal proceedings. The attendance of a representative of the Director of Public Prosecutions at the election petition hearing, and the receipt of transcripts and reports, did not make the Applicant a suspect or amount to a criminal investigation against him. There was no evidence that he was a named suspect, was detained, questioned, cautioned or officially notified of a criminal allegation.
3. The civil and criminal jurisdictions under the Representation of the People Act 1983 were concurrent but distinct. The Election Court was required to use statutory language referring to personal guilt and electoral offences, and to apply the criminal standard of proof to personal guilt, but it was not determining criminal liability. Its judgment expressly explained the distinction between election proceedings and criminal sanctions. The language therefore did not amount to an unqualified pronouncement of criminal guilt contrary to Article 6(2).
4. The decision of the Metropolitan Police not to refer papers to the Crown Prosecution Service was neither a prosecution nor an acquittal. The words “on a prosecution acquitted” in section 174(1) did not extend, on ordinary principles of construction or by reference to Article 6, to a decision not to prosecute because of insufficient evidence.
5. Where an original judicial review claim is in time but an amendment is sought outside the ordinary time limit, relevant considerations include the brevity of the time limit, the period of delay, proximity to the substantive hearing, any change in the factual context, the importance of determining issues of public interest, and prejudice to other parties. Grounds 1 and 3 were not refused for delay, but Ground 2 was also substantially out of time and could have been raised before the Election Court or promptly by judicial review.

First-instance judicial review proceedings. The judgment records earlier permission decisions by the same court and procedural orders by Ouseley J, but no appeal from another judgment.