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Tower Hamlets case highlights ‘obsolete and unfit’ election petition system

The Tower Hamlets mayoral election case highlights how the election petition system is “obsolete and unfit for purpose”, according to the judge who found Lutfur Rahman guilty of corrupt and illegal practices.

In his judgement, Judge Richard Mawrey QC said that the case made clear, more than any other he had tried, “the unsatisfactory nature of the election petition as a way of protecting democracy”.

“The petition system is obsolete and unfit for purpose,” he wrote. “It is wholly unreasonable to leave it to defeated candidates or concerned electors, like the present Petitioners, 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.

“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?”

Judge Mawrey welcomed the Law Commission investigation of electoral law that will look to address these issues.

“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.”

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.

The Electoral Commission agreed with the judge’s views. A spokeswoman told PSE: “Election petitions are a fundamental part of free and fair elections. They play an important role in ensuring the legitimacy of elections and securing public confidence in the electoral process.

“However, the UK’s current system for challenging elections is perhaps the most out of date part of electoral law and the area that requires the greatest amount of reform. We strongly support the Law Commissions’ review of this area, which we expect will produce a more modern and efficient system.”

Judge Mawrey also called for the scheme of corrupt and illegal practices to be reconsidered, saying there were arbitrary distinctions between the two. He wants to see “a rational table of electoral offences with their ingredients and their penalties clearly set out”.

The offences themselves could also use revisiting, the judge added. He pointed to undue spiritual influence, “which is always going to be controversial”, as needing reconsideration.

“It should be more clearly articulated and, if thought appropriate, re-stated for a 21st century environment,” he wrote.

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.”

He also addressed the intimidation charge in the case: “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.

“The [Law] Commission has already indicated that it intends to examine the whole question of intimidation and the court hopes that this judgment may assist.”

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