The Tower Hamlets mayoral election case highlights the unsatisfactory nature of the election petition as a way of protecting democracy, the judge who found Lutfur Rahman guilty of corrupt and illegal practices has said.
In his judgment, which was issued today (23 April), Judge Richard Mawrey QC welcomed the Law Commission investigation of electoral law.
He said: “This Petition has thrown up a number of issues which, while already on the Commission’s agenda, can only benefit from examination of how those issues arise in a real-life situation such as the present.
“First and foremost, this case highlights to an even greater extent than previous election cases I have tried, the unsatisfactory nature of the election petition as a way of protecting democracy. Police forces can and do act when evidence is presented to them of electoral wrongdoing but they do not have the resources to be pro-active and they remain heavily dependent on information supplied by the political rivals of the alleged wrongdoers.”
Describing the petition system as “obsolete and unfit for purpose”, Judge Mawrey said it was wholly unreasonable to leave it to defeated candidates or concerned electors, like the petitioners in the Tower Hamlets case, “to undertake the arduous and extremely expensive task of bringing proceedings and pursuing them to a conclusion entirely at their own expense and with the risk of bankruptcy if they fail to surmount the Grand National sized fences placed in the path of Petitioners”.
The judge added: “We do not leave it to the victim of burglary or fraud (a fortiori the victim of rape) to bring civil proceedings against the perpetrator as the only way of achieving justice. Why do we leave it to the victims of electoral fraud to go it alone?”
He pointed out that if the petitioners did win and were awarded their costs against the respondent, the latter, who was turned out of office and frequently then prosecuted to conviction, was unlikely to be able to pay those costs. “A petitioner’s victory is often Pyrrhic.”
Judge Mawrey called for the whole scheme of corrupt and illegal practices and the “arbitrary” distinctions between the two to be reconsidered, and a rational table of electoral offences with their ingredients and their penalties clearly set out.
He said the offences themselves needed urgent re-visiting. “It may be that the court has taken an over-strict view of the requirements to be proved to establish an offence under s 115 of the 1983 Act in the case of intimidation and the court was extremely reluctant to reach the conclusion that the unacceptable behaviour of THF [Tower Hamlets First] supporters at polling stations fell just below the threshold.”
Undue spiritual influence – which was always going to be controversial – also needed reconsideration, Judge Mawrey QC. “If it is to be retained (and the court is neutral on that topic), it should be more clearly articulated and, if thought appropriate, re-stated for a 21st century environment.”
The judge said the formulation of bribery was not without difficulty, as his judgment in the Tower Hamlets case showed, and would benefit from greater clarity. “Serious consideration should also be given to amalgamating treating – surely an obsolescent if not obsolete concept in the modern world – with the overall offence of bribery.”
Finally, the judge, said: “although it has been proved against Mr Rahman in this case, this court respectfully wonders whether, in the light of the elaborate and expensive apparatus of the modern political party, it is still necessary to make payment of canvassers a criminal and electoral offence.”
A copy of Judge Mawrey's ruling can be viewed on the BBC website here.