Aston and Bordesley Green Vote Fraud Trial

Thursday 3rd March 2005

1
1 Thursday, 3rd March 2005
2 (10.30 am)
3 THE COMMISSIONER: Yes, Mr Sukul, your next witness?
4 MR SUKUL: Sir, I wonder if I might mention to the court
5 before I call the next witness that there is amongst us
6 learned counsel who is appearing for the first time.
7 MR DE MELLO: I am sorry, I crept in. I appear together
8 with my learned friend on behalf of Mr Azfal.
9 THE COMMISSIONER: Welcome aboard.
10 Mr Sukul, what is the position? Do you have your
11 two remaining policemen?
12 MR SUKUL: Sir, yes.
13 THE COMMISSIONER: Do you propose to call them now or are
14 they not here?
15 MR SUKUL: They are indeed.
16 There has been a request by Mr Hemming because of
17 some professional duty he has to serve during the course
18 of the morning, and certainly during the course of
19 today, it is a request that he has made, but I am
20 mindful of the point you made yesterday about the
21 officers being required.
22 THE COMMISSIONER: Also of course as Mr Hayes was indicating
23 that he proposed to cross-examine Mr Hemming at some
24 length, I think were his words, it may not be doing
25 Mr Hemming necessarily a kindness to call him first if
2
1 he has an appointment this morning. Is that a fair
2 comment?
3 MR HAYES: I am in your hands.
4 THE COMMISSIONER: It is simply that if you are going to be
5 some time with Mr Hemming and he is in difficulties some
6 time this morning, then it may be better to start him.
7 MR SUKUL: The indication is that I can call two police
8 officers. My expectation is that not a great deal of
9 time will be spent with them.
10 THE COMMISSIONER: What is Mr Hemming's position? Is he in
11 difficulties this morning or today?
12 MR SUKUL: He is happy to leave by 12 today.
13 THE COMMISSIONER: Will he be able to leave at 12 if he
14 starts his evidence now?
15 MR HAYES: I really do not know, sir.
16 THE COMMISSIONER: Yes, and of course you really cannot
17 speak as to any cross-examination by other counsel.
18 MR SUKUL: Sir, I think it might be best if I were to call
19 the officers.
20 THE COMMISSIONER: Do you have any witness other than
21 Mr Hemming who can be put in after the officers?
22 MR SUKUL: Yes. Number 3 on the petitioners' witness list,
23 Mr Abdul Aziz, I understand is here.
24 Your learned clerk has indicated to me that funds
25 which should be applied to the officers who are not on
3
1 duty, those funds have to be sourced from the
2 petitioners themselves. I am thinking that in addition
3 to the point you made earlier on about the necessity for
4 them to be on the street rather than with us, it might
5 tilt the balance if we call them first. They are ready
6 and their statements are very short.
7 THE COMMISSIONER: If they are ready we will call them. If
8 you then wish to call Mr Hemming he must make other
9 arrangements for his meeting, or if you wish to call
10 other witnesses and put Mr Hemming back down the order
11 it is entirely a matter for you. I am easy either way.
12 MR HAYES: I have a little difficulty with Mr Aziz. I have
13 not been able to prepare myself with him as I have with
14 the others. I assumed that it was going to be the
15 officers and Mr Hemming today. I was not aware of any
16 commitments.
17 THE COMMISSIONER: You were not expecting to get beyond them
18 today?
19 MR HAYES: I was not expecting to get beyond Mr Hemming.
20 THE COMMISSIONER: Fine. Can I say this, Mr Hayes, I have
21 obviously no wish at all to inhibit the way in which
22 you present your case. But at a stage when you were not
23 in these proceedings they were in the hands of other
24 solicitors and counsel, solicitors and counsel who were
25 certainly, in the case of the solicitors, particularly
4
1 experienced in election law.
2 They took the policy decision that they would not
3 serve what is technically known as a recrimination, in
4 effect a counter charge, involving other candidates
5 in the election and other parties. That was a policy
6 decision they took. The trouble is, in the absence of
7 such a document which is far too late to be filed now
8 you are to some extent faced with that as a limitation
9 on your case.
10 May I also say this. I would not in any way wish to
11 inhibit you from raising, if you wished, the possibility
12 that electoral malpractices might have been committed by
13 others in the election than the respondents who appear
14 in the petition.
15 But clearly, as I say, I do not wish to inhibit you
16 but clearly you will bear in mind that your principal
17 task is to defend against the allegations made against
18 your clients in the petition. If that were not to be
19 successful, if you went on to establish that there had
20 been malpractices and misfeasances on the part of other
21 candidates this would simply strengthen the argument
22 that there had been general corruption and the matter
23 should be set aside for general corruption.
24 So you may find yourself against your expectations
25 engaged in what a distinguished judge of my acquaintance
5
1 describes as kamikaze litigation.
2 You need not to respond to that, Mr Hayes, but if
3 you simply bear that in mind. I do not wish necessarily
4 to inhibit you but I would not wish to think that
5 you were plunging towards the deck of the aircraft
6 carrier in the belief that you were going to survive.
7 MR HAYES: My prime concern is to try and persuade the court
8 that my two clients are not involved in any form of
9 corruption.
10 THE COMMISSIONER: Indeed it is.
11 MR HAYES: If there has been malpractice from others then
12 it is my duty to bring it to the attention and to be of
13 assistance to the court.
14 THE COMMISSIONER: Yes, within defined limits that is
15 correct. I simply would point out that it would be
16 wise, as it were, not to take your eye off the main ball
17 even though you may be attempting to play another one.
18 MR HAYES: Can I nail my colours clearly to the mast so you
19 know where I am trying to go before hitting the deck,
20 that is to show, to give a flavour of what was going on
21 in the Aston ward in a fetid election air, and I have
22 a little experience in election. I was 14 years in the
23 House of Commons.
24 THE COMMISSIONER: I am sure that you were always elected by
25 the most rigorous and honest ...
6
1 MR HAYES: Do I have to answer that question?
2 THE COMMISSIONER: No, you may plead the 5th. But
3 I appreciate that you have been an elected
4 representative yourself, so at least you know your way
5 around it.
6 MR HAYES: Neither for Labour nor the Liberal Democrats so
7 I am not biased. But I will try and get to the point as
8 quickly as I possibly can. Mr Hemming is an experienced
9 politician. He knows what I am going to suggest to him
10 and I am sure he is prepared for it.
11 THE COMMISSIONER: There is clearly a limit to the amount
12 that I can properly pursue allegations of wrongdoing
13 against other participants in this election.
14 MR HAYES: I am not going put to Mr Hemming that he is
15 personally responsible for any criminal act.
16 THE COMMISSIONER: Well, that I think is very proper and
17 I shall say no more about that.
18 Mr Sukul, your first officer.
19 MR SUKUL: May I call Police Sergeant Rattenberry. He is at
20 page 625 of the witness bundle.
21 THE COMMISSIONER: 625 of which file?
22 MR SUKUL: Volume 2.
23 THE COMMISSIONER: As I understand it, there is a certain
24 overlap in the page numbering so that we will have a 625
25 in this file and another completely different 625 in
7
1 file 3.
2 MR SUKUL: Yes. There is an overlap. It is regrettable.
3 MR DE MELLO: May I interrupt my learned friend, I do not
4 have a copy of the statement which he is referring to.
5 THE COMMISSIONER: Because your learned junior seemed to
6 have them all last evening.
7 MR SUKUL: A copy was given to the lady who sits behind
8 counsel.
9 MR DE MELLO: Okay, thank you.
10 THE COMMISSIONER: Has anyone got a spare copy of Sergeant
11 Rattenberry? Yes.
12 MR SUKUL: Sir, there is no harm in calling the other police
13 officer, Sergeant Nevin, if we cannot locate Sergeant
14 Rattenberry.
15 THE COMMISSIONER: You may have the same problem.
16 MR SUKUL: He is just before Sergeant Rattenberry so he
17 would be at 616.
18 This is Sergeant Rattenberry.
19 SERGEANT RATTENBERRY (sworn)
20 Examination-in-chief by MR SUKUL
21 THE COMMISSIONER: Take a seat, please, and give your name,
22 rank and number.
23 A. I am Police Sergeant 6180 John Rattenberry of the
24 West Midlands Police, presently stationed at Erdington
25 police station.
8
1 MR SUKUL: Sergeant, would you have a look in that bundle
2 that is on the table and turn to page 625. It is down
3 at the back.
4 Can you now look at the following page, 626. You
5 see a signature written at the bottom of that?
6 A. Yes, that is my signature.
7 Q. Is that statement yours?
8 A. It is.
9 Q. I will just read that statement.
10 It says this:
11 "I am Police Sergeant 6180 John Rattenberry,
12 stationed at Erdington Police Station, and make this
13 statement and say as follows:
14 "This witness statement contains information which
15 is within my own knowledge, save where it is stated
16 otherwise, in which case it is true to the best of my
17 information and my belief.
18 "I attended a warehouse known at NT situated on the
19 Wrylie Industrial Estate at Birch Road East at
20 approximately 1 o'clock in the morning on the
21 9th June 2004 following a request by some officers.
22 Upon arrival, I entered the first floor of the warehouse
23 and went into a room where I saw approximately five
24 Asian males along with four police officers. I could
25 see a large table on which there were a lot of
9
1 miscellaneous papers and A5 unsealed envelopes. I could
2 see that the envelopes contained several pieces of paper
3 including marked ballot papers.
4 "I was informed by a Mr Zulfikar Khan, who
5 identified himself as a Labour councillor, that the
6 numbers on these documents were being matched up and
7 that there was nothing wrong with what they were doing.
8 "I requested a dip sample vote to be taken from the
9 table and that would be verified by the voter. This was
10 done by PC Parsons and PC Harrison who confirmed that
11 all was in order. We then left the scene.
12 "At some point later, following discussions with our
13 inspector, we were advised that due to the votes being
14 opened we return to the warehouse and seize these votes.
15 This was done but by this time all the envelopes had
16 been sealed.
17 "I have been shown a leaflet that contains pictures
18 of individuals, exhibit JR1."
19 If you would have a look at it, it is page 628.
20 Do you see that photograph there?
21 A. Yes, I can.
22 Q. "I have identified the person named as Nazrul Islam on
23 the leaflet. I can further state that I did not provide
24 any civilian a lift to any location following this
25 incident. On the following day I was informed by PS
10
1 Nevin that he had spoken to the Economic Crime Unit and
2 a presiding officer at the election office in relation
3 to this incident at the warehouse. I was told by Police
4 Sergeant Nevin that the presiding officer at the
5 elections office advised that no election offences had
6 been committed. On 17th June 2004, I wrote a memorandum
7 to Chief Superintendent Duffy in relation to this
8 incident."
9 That memorandum, Sergeant, is at exhibit JR2 and
10 that exhibit is at pages 630 to 631. If you would just
11 confirm that that is the memorandum to which you refer
12 in your statement?
13 A. It is, yes.
14 Q. Thank you very much. If you might remain there for me,
15 please.
16 THE COMMISSIONER: I wonder if I might ask this, you must
17 take it to be someone who is imperfectly familiar with
18 the geography of Birmingham. A quick look at the map
19 would indicate to me that Erdington Police Station is
20 probably not the nearest to the NT warehouse, is that
21 right?
22 A. That is correct.
23 THE COMMISSIONER: Why were you and the other officers sent
24 over from Erdington?
25 A. That would be a decision that would have been made by
11
1 the control room at Aston. It may be because there were
2 not enough resources available from that area to cover.
3 THE COMMISSIONER: I see. So there is no particular reason
4 why the Erdington force goes over to deal with something
5 some distance away.
6 A. It is quite a regular occurrence.
7 THE COMMISSIONER: I see.
8 MR SUKUL: Sir, for the sake of completeness and for the
9 sake of the record I should really read that memorandum
10 to the court.
11 THE COMMISSIONER: No, I am satisfied that it is on the
12 record. We do not read every word of exhibits.
13 MR SUKUL: So be it, sir.
14 Cross-examination by MR HAYES
15 MR HAYES: Sergeant, I only have a few questions for you.
16 You were called to the warehouse because there was
17 an allegation by someone, do we know who the someone is?
18 A. I went there because my officers asked me to go.
19 Q. You do not know who made the complaint?
20 A. I do not, no.
21 Q. But there was an allegation of vote rigging going on at
22 this factory, was there not?
23 A. Yes.
24 Q. You are in the middle of an election so you have to act?
25 A. Yes.
12
1 Q. You expect, you do not know what to expect, but there
2 could be criminal activity going on there?
3 A. Quite possibly.
4 Q. Did you take any notes when you were there?
5 A. No.
6 Q. I have spoken to all the other officers and the only
7 record that appears, apart from the white report that
8 you made to Superintendent Duffy which we have in the
9 exhibit, is the actual log, is it not?
10 A. That is how I believe it is, yes.
11 Q. You see, we heard from police officers yesterday who
12 were interviewed, quite properly, by the petitioners'
13 legal team the day before and they have come up with
14 statements, and of course it is the first time we have
15 seen these statements. We know what the allegations
16 have been by the police, but the fact of the matter
17 is: you say on the white report, it is the last
18 paragraph, although I notice here it says "postal ballet
19 seizure":
20 "I believed that the integrity of the vote was in
21 order and I left the scene."
22 A. That is correct, yes.
23 Q. In other words you are of the view, seeing what you saw,
24 that there was no vote rigging going on as far as you
25 could see?
13
1 A. That is correct and that is one of the reasons why there
2 were no pocket book entries made.
3 Q. A little further up in the report, do you have the
4 report in front of you?
5 A. I have it here, yes.
6 Q. You say, and this is the second to last paragraph, seven
7 lines from the bottom:
8 "My only concern was that false crosses had been
9 placed on the ballot papers so I carried out a dip
10 sample from the pile."
11 A. Mm-hm.
12 Q. "I selected an envelope and this envelope related to
13 a voter who resided at an address, and PC Parsons and PC
14 Harrison went to the address and they checked with the
15 occupier who corroborated that the vote in question was
16 his and the signature on the form and the countersigning
17 person."
18 On the last page, the last line, you say:
19 "I passed all the information to PS 1464 Nevin, who
20 carried out the checks as requested. PS Nevin has since
21 told me that after speaking to the Economic Crime Unit
22 and presiding officer that this practice of not sealing
23 votes is not unlawful."
24 That is right, is it not?
25 A. Yes.
14
1 Q. So that was the view of the police: you go to this
2 factory, you see what you see. There is some dispute
3 and I will put it to you for clarity. We say that you
4 and your officers were mistaken when you saw that the
5 ballot papers were strewn about. Are you sure about
6 that?
7 A. There were unsealed envelopes lined up on the desk and
8 there were some other papers around but I cannot say
9 they were ballot papers.
10 Q. That is rather important.
11 A. I saw a line of unsealed envelopes.
12 Q. Sergeant, that is very, very fair because this has been
13 a minor point of contention. But after all that you had
14 seen and all that you had done, you were satisfied that
15 no crime had been committed. You relayed this to your
16 superior officers, they were satisfied that no crime had
17 been committed and this was relayed to Mr Owen of the
18 Local Authority, and he was satisfied that no electoral
19 offences had been committed. That is right, is it not?
20 A. The only point I would differ on there is the fact that
21 obviously the circumstances are as you say, but on
22 speaking to my inspector, Inspector Upul(?), I do not
23 think he was as 100 per cent convinced as I was, and
24 therefore asked me to seize the ballot papers.
25 Q. You did perfectly the proper thing. At the end of the
15
1 day, nothing happened because everyone in the chain was
2 satisfied: the police officers, the senior police
3 officers, and the Local Authority. The chain was happy,
4 was it not?
5 A. I was happy. I am not convinced and perhaps I cannot
6 anticipate for my inspector. I am not convinced that my
7 inspector was 100 per cent happy.
8 Q. He was not 100 per cent happy, that is why he did the
9 sensible thing of asking you to go back and take all
10 these envelopes?
11 A. And once that had been done, we were happy.
12 Q. That was the end of the matter as far as you were
13 concerned. And none of these people in the warehouse
14 were taken down to the police station for questioning?
15 A. No, they were not.
16 Q. There was talk with them where no note was taken -- not
17 a criticism -- in the factory, yes?
18 A. Yes, there was.
19 Q. No-one was charged?
20 A. No.
21 Q. No-one was arrested?
22 A. No.
23 Q. A minor matter but I must put it to you. Paragraph 8 of
24 your statement, you did not provide a civilian with
25 a lift, are you sure about that?
16
1 A. I cannot remember giving a civilian a lift.
2 Q. You cannot remember but one way or the other, you are
3 a courteous man, you could have done?
4 A. As I recall the event now, I cannot remember taking
5 a civilian home.
6 Q. That is about as far as it goes really?
7 A. Yes.
8 Q. That is very fair. Another point, I must put to you,
9 you talked about Mr Saulkikhar Khan(?) who identified
10 himself as a Labour councillor. Are you sure that is
11 right, because he was not one?
12 A. I remember him saying he was to do with the Labour
13 Party.
14 MR HAYES: That makes sense. Officer, thank you very much
15 indeed.
16 THE COMMISSIONER: Mr De Mello, do you have any questions?
17 Cross-examination by MR DE MELLO
18 MR DE MELLO: Yes, I have a few questions to ask you.
19 Firstly, if you turn to page 631, that is the second
20 page of your memorandum, there is a reference to a copy
21 of the log for the day attached, numbered 32. Do you
22 know what has happened to that log?
23 A. This looks like a photocopy of the report, so whether
24 that log is attached to the original on file at police
25 station.
17
1 THE COMMISSIONER: Mr Sukul, is that the log we saw
2 yesterday?
3 MR SUKUL: I was just enquiring as to whether or not it was.
4 THE COMMISSIONER: We had the log produced by witnesses
5 yesterday, your learned junior may be able to assist you
6 on that. I assume it is the same document. We have
7 a printout of the log.
8 MR DE MELLO: Will you excuse me a moment?
9 THE COMMISSIONER: While Mr De Mello is looking at that,
10 would I be right in assuming that your training as
11 a police officer does not include training in electoral
12 law?
13 A. That is correct, it does not.
14 THE COMMISSIONER: So you really have to rely on other
15 people to be told whether something you have discovered
16 is or is not lawful?
17 A. Correct.
18 MR DE MELLO: Did you at any stage from the time you got
19 there to the time that you left, carry out any PNC
20 checks on the cars that might have been parked in front
21 of the warehouse?
22 A. I did not.
23 Q. Secondly, did you at any time take a list of names and
24 addresses of the persons present at the warehouse?
25 A. Just the one person.
18
1 Q. Just the one person?
2 A. Yes.
3 THE COMMISSIONER: That is Mr Zulfikar Khan?
4 A. Yes.
5 MR DE MELLO: Thank you very much.
6 MR BROOK: No questions.
7 Cross-examination by MR COPPEL
8 MR COPPEL: Just one question, you never speak as part of
9 this investigation with the elections officer; that was
10 left to someone else, is that correct?
11 A. That is correct.
12 MR COPPEL: Thank you.
13 THE COMMISSIONER: Any re-examination, Mr Sukul?
14 Re-examination by MR SUKUL
15 MR SUKUL: Just the one question.
16 Sergeant, you had mentioned in your statement that
17 you had identified a Mr Nazrul Islam from a photograph
18 that was shown to you.
19 A. Yes.
20 Q. Did you give a lift to Mr Nazrul Islam, the man that you
21 identified as being present at the warehouse, did you
22 give that man a lift to his house that night?
23 A. As I recall that information now, no.
24 MR SUKUL: Thank you.
25 THE COMMISSIONER: Thank you very much, sergeant, you are
19
1 released to get back to more agreeable duties, I hope.
2 Sergeant Nevin, is he here?
3 MR SUKUL: I call Police Sergeant Ernest Nevin, sir, 616
4 in the bundle.
5 MR DE MELLO: I am told I do not have a copy of this
6 statement. We stopped, I think, at page 615. Is there
7 any chance you can give me a spare copy?
8 MR SUKUL: There is every chance. I will ask this man as
9 soon as he returns.
10 MR HAYES: I will not be asking this witness any questions.
11 POLICE SERGEANT NEVIN (sworn)
12 Examination-in-chief by MR SUKUL
13 THE COMMISSIONER: Please sit down and give your name, rank
14 and number.
15 A. Ernest Nevin, Police Sergeant 1464, West Midlands
16 Police, stationed at Erdington Police Station.
17 MR SUKUL: Sergeant, just turn to page 616 of that bundle
18 for me, please. This is the statement of PS Ernest
19 Nevin.
20 A. That is correct.
21 Q. If you look at the following page, 617, do you confirm
22 that signature there is yours?
23 A. That is my signature, yes.
24 Q. And do you confirm this statement is your statement?
25 A. It is, yes.
20
1 Q. I will just read it:
2 "I am Police Sergeant 1464 Ernest Nevin stationed at
3 Queen's Road Police Station at the relevant time and
4 make this statement and say as follows:
5 "This witness statement contains information which
6 is within my own knowledge, save where it is stated
7 otherwise, in which case it is true to the best of my
8 information and my belief.
9 "I commenced duty at 7 am on 9th June 2004. I was
10 informed by Police Sergeant 6180 Rattenberry that an
11 incident had taken place at a warehouse located on the
12 Wrylie Industrial Estate on Birch Road East earlier that
13 morning. I was told that postal ballots were seized
14 from the warehouse earlier that night. Along with
15 Inspector Iliffe, a duty Inspector, and after consulting
16 with Chief Superintendent Duffin, we counted 273
17 purple-coloured sealed envelopes with enclosures. The
18 envelopes were A5 sized approximately. I took
19 instructions from Chief Superintendent Duffin, he had
20 spoken to the elections office at Great Charles Street.
21 Chief Superintendent Duffin had told me to take the
22 envelopes to a Mr John Owen at the elections office
23 located in Great Charles Street.
24 "The envelopes were in a sealed West Midlands Police
25 property bag. I delivered the bag to Mr John Owen and
21
1 took a receipt from him. That receipt is exhibited at
2 EN1."
3 THE COMMISSIONER: Page 619 if you have a look at it.
4 MR SUKUL: Is that the receipt to which you refer in your
5 statement?
6 A. That is my signature.
7 Q. "Police Sergeant Rattenberry had informed me that the
8 envelopes were unsealed when the police officers first
9 saw them at the warehouse from where they were seized.
10 I have seen the memorandum from Police Sergeant
11 Rattenberry, EN2."
12 Could you just have a look at that to confirm, at
13 page 621. Is that the memorandum you are referring to?
14 A. That is correct, yes.
15 Q. I will read that again:
16 "I have seen the memorandum written by
17 PS Rattenberry, exhibit EN2, and I have seen a copy of
18 the e-mail sent to me by Mr Godfrey."
19 That is at EN3 at 624?
20 A. Yes.
21 Q. That is the e-mail you are referring to?
22 A. That is correct, yes.
23 Q. "I recollect speaking to the Economic Crime Unit and
24 John Owen, who I came to know was an election officer,
25 about the envelopes and whether any offence had been
22
1 committed. I cannot recall the details of the
2 conversation I had with John Owen. I know that I asked
3 him if any electoral offences had been committed and he
4 replied no. When I was first told that the envelopes
5 were unsealed, I took the view that I will be surprised
6 if an offence had not been committed. However, as a
7 result of what Mr John Owen had told me, I handed over
8 the bag of envelopes to him. I was not aware of what
9 the relevant legislation was at that time.
10 "I believe that the facts stated in this witness
11 statement are true."
12 Please wait there, sergeant.
13 THE COMMISSIONER: Mr Hayes?
14 Cross-examination by MR HAYES
15 MR HAYES: One question. Something arose from what you
16 said, sir. Do you have access at election time to
17 anyone who can advise you on the law and what procedures
18 you should follow?
19 A. I believe at this time there was the Economic Crime Unit
20 who were collating information.
21 Q. That is Mr Churchill, is it not?
22 A. It could well have been. I cannot remember.
23 Q. In other words, you have to make decisions -- you make
24 decisions every day -- whether there is an offence and
25 what you should do about it. You were able to do that
23
1 in this case, were you not?
2 A. I made contact with the economic crime unit.
3 Q. And you got advice on the law?
4 A. Yes.
5 MR DE MELLO: No questions.
6 THE COMMISSIONER: Mr Coppel?
7 Cross-examination by MR COPPEL
8 MR COPPEL: Just a few.
9 Sergeant, you have prepared this witness statement
10 and presumably when doing so you appreciated that it was
11 an important document for the purposes of these
12 proceedings. That is correct, is it not?
13 A. That is correct, yes.
14 Q. And you were careful not to include anything of course
15 that did not take place. Correct?
16 A. That is correct.
17 Q. And you were careful not to omit anything material that
18 did take place, that is correct?
19 A. Certainly, yes.
20 Q. Like all of us, presumably the passage of eight months
21 has dimmed the memory a little bit, is that correct?
22 A. It has a little bit, yes.
23 Q. To put it in broad terms, you put down everything you
24 could remember about these events?
25 A. Everything that I can remember to the best of my
24
1 ability, yes.
2 Q. In paragraph 3 of your witness statement you say that
3 you seized 273 sealed envelopes; you counted 273?
4 A. I counted 273. These had already been seized through
5 the night by the night duty, Sergeant Rattenberry and
6 his team.
7 Q. You described them as purple-coloured sealed envelopes.
8 I wonder if I could show you a specimen. Do you need to
9 see more closely?
10 A. No, that is about --
11 THE COMMISSIONER: It is a white envelope with purple
12 corners.
13 A. Yes, something like that.
14 MR COPPEL: So what in these proceedings we have called, and
15 you will be excused for not knowing it, envelope B.
16 A. Right.
17 Q. And they were sealed, were they not?
18 A. I cannot remember what condition they were in at that
19 particular time when I took possession of them. They
20 were sealed in a West Midlands Police property bag.
21 Q. Look at your statement. You have said that you had
22 counted 273 purple sealed envelopes with enclosures.
23 THE COMMISSIONER: So it looks as though by that stage they
24 were already sealed.
25 A. Can I clarify that they were sealed in a West Midlands
25
1 Police bag. I cannot remember whether the envelopes
2 were open or if they were individually sealed at that
3 particular time.
4 MR COPPEL: You state at paragraph 5 that on the morning of
5 Wednesday 9th June 2004 you had a telephone conversation
6 I think with the person you came to know as John Owen,
7 is that right?
8 A. Not me personally, I actually spoke to him when I came
9 to the electoral office.
10 Q. So somebody else spoke to Mr John Owen, did they?
11 A. I believe it was Mr Duffin, the Chief Superintendent.
12 Q. And he organised for you to go to the office of Mr Owen
13 at Great Charles Street?
14 A. That is where I was directed, yes.
15 Q. You then say that, paragraph 5, you do not recall
16 details of a conversation you had with Mr John Owen when
17 you delivered the sealed-up bag, is that right?
18 A. Not verbatim, no.
19 Q. If wonder if you could be shown Mr Owen's witness
20 statement in these proceedings, which is in volume 2,
21 it is a long statement, sergeant. I do not ask you by
22 any means to read anything more than the bit we are
23 concerned with, and that starts at page 442.
24 In paragraph 151, Mr Owen recounts his first being
25 told about the seizure of postal votes from the Wrylie
26
1 Industrial Estate on 9th June and he refers to the
2 telephone call to which you have just referred.
3 Then paragraph 152, he records more of the telephone
4 conversation, that is with your fellow officer, correct?
5 A. I assume probably it is.
6 Q. That is not a conversation he had with you, is it?
7 A. No, I did not speak to him on the telephone.
8 Q. Then over the page, just take your time perhaps to read
9 it all, so you get the context. (Pause)
10 You see in paragraph 153 Mr Owen refers to your
11 attending the offices of the elections office in Great
12 Charles Street, and the police officer he refers to
13 there, that is you, is it not?
14 A. Yes, sir.
15 Q. Tell me, you do not quarrel with anything Mr Owen has
16 set out in paragraph 153, do you?
17 A. No, I do not.
18 Q. You do not suggest that Mr Owen's account is in any way
19 materially incomplete, do you? (Pause)
20 A. I cannot disagree with him until I know what your
21 question is going to be.
22 Q. You do not say, "There is something missing from that
23 account of my delivering the bags to him" that he has
24 not put in this paragraph?
25 A. No, I have delivered them to him, that is the only thing
27
1 I can say.
2 THE COMMISSIONER: He signed for them.
3 A. Yes, upon receipt.
4 MR COPPEL: Thank you sergeant, I have no further questions.
5 THE COMMISSIONER: Mr Sukul, any re-examination?
6 Re-examination by MR SUKUL
7 MR SUKUL: Yes.
8 Sergeant, just stay with paragraph 153 for the
9 moment. My friend asked you about whether or not you
10 disagree with anything that is written in paragraph 153.
11 With the court's leave I would like you to look at 153.
12 THE COMMISSIONER: Is there a particular point you have in
13 mind?
14 MR SUKUL: Yes, the point is this: are you in a position on
15 the basis of the knowledge, the skill and the experience
16 and recollection that you have to make any comment on
17 paragraph 153 other than to say "I really cannot say".
18 What is it in this paragraph that you can speak
19 specifically about?
20 A. Taking the ballot papers there and handing them over, I
21 cannot disagree with what the other items were and who
22 he is taking them to. I cannot disagree with that.
23 Q. Let me ask you this: Mr Owen says this in the statement:
24 "I might have had a different view had the Fraud
25 Squad ..."
28
1 First things first, this is the first time we have
2 seen the Fraud Squad.
3 THE COMMISSIONER: It is not a question this officer can
4 answer. What this officer did is he took a quantity of
5 documents on his superior's request over to Mr Owen and
6 got a signature for them. That is as far as Sergeant
7 Nevin takes it. What more can one get out of him?
8 MR SUKUL: Sir, if I might crave your indulgence. It is the
9 first time this court has seen the phrase "Fraud Squad".
10 This court has never heard the phrase "Fraud Squad"
11 being used before.
12 Do you know of any involvement of the Fraud Squad
13 with this situation or was it the Economic Crime Unit?
14 A. The Economic Crime Unit, that is their old title, Fraud
15 Squad.
16 Q. So Fraud Squad and Economic Crime Unit --
17 A. Are one and the same.
18 Q. All right. Now we know that the Fraud Squad was in fact
19 involved with this?
20 A. The Economic Crime Unit.
21 Q. "And giving me the information I might have had
22 a different view had the Fraud Squad given me
23 information that the ballots were not addressed to the
24 Returning Officer, for example not in an envelope."
25 Sergeant, this is the view that is being expressed
29
1 by a man who you do not even know so you cannot really
2 comment about it, can you?
3 THE COMMISSIONER: I do not take him as commenting, Mr
4 Sukul. I think you might have got hold of the wrong end
5 of the stick here. The only point that is being made by
6 Mr Coppel is that Mr Owen's account of his dealings with
7 Sergeant Nevin are correct and all the dealings with
8 Sergeant Nevin that are described in paragraph 153 are
9 Sergeant Nevin turning up at Great Charles Street,
10 handing over a package and getting a signature for it,
11 and that is all. The rest of the paragraph is nothing
12 to do with Sergeant Nevin and it would be quite futile
13 for him to comment on it.
14 MR SUKUL: Sir, you have hit the nail on the head. The rest
15 of the paragraph is nothing to do with Sergeant Nevin.
16 Finally, it is right, is it not, to the best of your
17 memory, that when you attended the elections office
18 complete with bag in hand, 200-odd votes in it, you
19 would have spent a little time there with Mr Owen, would
20 you not?
21 A. The time which I would take to hand them over, get the
22 receipt completed and signed.
23 THE COMMISSIONER: Mr Sukul, you may take it that I have
24 heard evidence in the Bordesley Green petition, which
25 indicates to me that the elections office on 9th June
30
1 was not a place, if I can put it at its lowest, where
2 people were much inclined to stand around having a chat.
3 It was in a state of considerable activity, none less
4 than that of Mr Owen, who was in charge of the activity,
5 as it were. So I think you would be hard pushed to
6 persuade me that Mr Owen had stayed for a chat with the
7 sergeant.
8 MR SUKUL: I hear what you say, sir.
9 Sergeant, thank you very much.
10 THE COMMISSIONER: You are released, thank you very much.
11 Leave the papers there.
12 Mr Sukul, what are we going to do? Are we going to
13 call Mr Hemming and put his appointment to the sword?
14 MR JOHN HEMMING (sworn)
15 Examination-in-chief by MR SUKUL
16 MR SUKUL: Sir, page 306.
17 THE COMMISSIONER: Put the file to one side for the moment,
18 your yellow file, and if you would look at page 306.
19 MR SUKUL: Mr Hemming, it says in the middle:
20 "Witness statement of Mr John Hemming."
21 At 308 there is a signature there?
22 A. It is my signature.
23 Q. And do you confirm it is your statement?
24 A. I confirm it is my statement.
25 Q. If I read it:
31
1 "I John Hemming of 15 Chantry Road, Moseley,
2 Birmingham make this statement as follows:
3 "This witness statement contains information which
4 is within my own knowledge, save where it is stated
5 otherwise, in which case it is true to the best of my
6 information and belief.
7 "General concern about electoral fraud. I have been
8 concerned for a number of years about electoral fraud."
9 THE COMMISSIONER: As Mr Sukul has paused, perhaps we can
10 get a number of things on the record.
11 It is right, is it not, that you are yourself
12 a Councillor of Birmingham City Council?
13 A. South Yardley ward.
14 Q. And you were returned as such at the election on
15 10th June?
16 A. That is correct.
17 THE COMMISSIONER: And it is right also, is it, that you are
18 the leader of the Liberal Democrats on the Council?
19 A. That is correct.
20 THE COMMISSIONER: Thank you. How long have you been
21 a councillor?
22 A. 15 years.
23 THE COMMISSIONER: And always in the South Yardley ward,
24 whatever it may have been called in the past?
25 A. Because the boundaries have changed, the ward was Acocks
32
1 Green and became South Yardley and that took in parts of
2 what was Yardley ward a little bit.
3 THE COMMISSIONER: There was a name swap, was there not?
4 A. Yes.
5 THE COMMISSIONER: Acocks Green became South Yardley and Fox
6 Hollies became Acocks Green.
7 A. Sort of, yes. The communities of Acocks Green were
8 divided and are now united in one ward.
9 MR SUKUL: "Impersonation has gone on for a number of years.
10 The procedures to handle electoral fraud are difficult
11 to make use of although the changes to the law resultant
12 from the relaxation of the rules on absentee ballots
13 have made the process of defrauding the election much
14 easier.
15 "Fraud was planned. There was an informal
16 discussion as to how to abuse the postal ballot system,
17 which involved a number of Labour activists in a number
18 of wards. There was hearsay that this is discussed
19 in the city. It is, however, relatively difficult to
20 get prima facie evidence compared to the amount of fraud
21 that goes on. The process of central completion of
22 ballot papers, however, was known to have occurred in
23 2003 as well as 2004.
24 "South Yardley [blank] ballot collection. I kept
25 a particular surveillance where I became aware that the
33
1 ballot papers were being collected through seeing the
2 completion of a large number of applications on a door
3 to door basis. I therefore drove on a particular route
4 through Oldknow Road in the hope that I might catch
5 a collector. On Monday 6th at 5.10 pm, I was driving
6 down Oldknow Road in a northerly direction when I saw
7 someone at an open door holding papers. He recognised
8 me, claimed to be one of my supporters and indicated
9 that he had not seen me in the road and said he wanted
10 to talk to me.
11 "He came to the side of my car and I suggested
12 I pull further along and he sat in the car so that we
13 could talk. I pulled along, he sat in the car, he
14 noticed my three year old daughter in the back of the
15 car and gave her and me a Chew-It sweet.
16 "We started discussing his problem relating to
17 rubbish and rats. I noticed that the papers he had
18 contained one open, uncompleted ballot paper and an
19 opened set of postal ballots. I mentioned those and he
20 said people were throwing them away. I explained that
21 with my daughter in the car I could not come to see the
22 rubbish problem but I took details, including his name,
23 address and phone number. I asked if he was a taxi
24 driver and he said: yes, how do you know? I knew that
25 because the Breslins at 273 had told me that a taxi
34
1 driver was collecting postal applications."
2 Sir, I will not read the name and address of the
3 person in question, but if it becomes an issue so be it.
4 THE COMMISSIONER: The person lived at a number that is
5 fairly close to 273.
6 A. That is right.
7 MR SUKUL: Yes.
8 Sub-heading 4:
9 "Ballot papers dangling from doors. I made special
10 efforts to ensure that voters received their own ballot
11 papers. I therefore visited Oldknow Road and took
12 photographs of the postal ballots dangling from doors
13 before pushing them through.
14 "Semi-riot in Bordesley Green."
15 THE COMMISSIONER: What has happened to those photographs?
16 A. I have copies of them.
17 THE COMMISSIONER: You have them here?
18 A. Actually I brought the wrong file so the answer is no.
19 Had I brought the other file, which I will do this
20 afternoon -- I will bring them through.
21 MR SUKUL: "On another occasion, I was called to Dora Road,
22 Small Heath, in the Bordesley Green ward because there
23 was something kicking off. I found that a Somalian
24 asylum seeker who was working as a postman had handed
25 a package to Shar Jahan. When I turned up with my
35
1 camera people disappeared but there was a small riotette
2 involving about 200 people and a pair of scissors later
3 that evening in Somerville Road. The rumour was that
4 the Labour Party had bribed the post office workers to
5 hand them blank ballots without going through the middle
6 man of the voter.
7 "Threats to postman. I spoke to the Evening Mail
8 journalist who had been contacted by Amir Khan, a
9 postman who had been offered £500 for votes and
10 threatened with being killed if he did not hand over the
11 votes.
12 "Car chase across Birmingham."
13 THE COMMISSIONER: Can we go back to geography? Oldknow
14 Road is in the Bordesley Green ward.
15 A. No, it is in South Yardley. Do you want me to show you
16 on the map?
17 THE COMMISSIONER: I have Oldknow Road marked --
18 A. On the old boundaries it is in Small Heath, on the new
19 boundaries it is in South Yardley.
20 THE COMMISSIONER: I see. It is this road here, just north
21 of the Small Heath --
22 A. Yes.
23 THE COMMISSIONER: It is just in South Yardley, formerly
24 Bordesley Green.
25 A. Formerly Small Heath actually because the old ward name
36
1 was Small Heath.
2 THE COMMISSIONER: And Dora Road is in Bordesley Green?
3 A. It is just the other side of the Coventry Road.
4 THE COMMISSIONER: Thank you very much.
5 MR SUKUL: "On the occasion of another visit to Bordesley I
6 was chased in my car by an activist from the PJP.
7 I drove to the police station and a row ensued in
8 Stechford Police Station about postal ballot fraud.
9 "Requests from the elections office. Being aware of
10 what was going on, or what was going to happen, I made
11 numerous requests to the elections office for them to
12 tell me when votes were going through the post so we can
13 try to ensure that they reach the voters.
14 "Voters prevented from voting. I heard from
15 a couple of voters in the Oldknow Road polling station
16 that they were prevented from voting because they were
17 supposed to have had postal votes that they had not
18 received.
19 "Count at the NIA. Being aware that around 400
20 votes in my ward had been stolen, I wanted to make
21 particular efforts to ensure that I had identified which
22 party was responsible. I therefore needed to do
23 a complex monitor of my own count, however, I also
24 wandered around between different counts. One of the
25 counts I visited was Aston in which a bag of ballots
37
1 were being counted that were disputed, including a pack
2 of European ballots not even in envelopes. I suggested
3 to the Lib Dems in Aston that they keep records of the
4 numbers of the ballot papers for a later petition.
5 "Ayoub Khan. Ayoub Khan, a Liberal Democrat
6 candidate and a former councillor for the Aston ward,
7 was returned as the winning Liberal Democrat candidate
8 on the election held in 2003. I remember that during
9 that election Ayoub Khan had approximately 2,400 votes
10 and won by a majority of over 600 votes. This year I am
11 certainly shocked that the Aston Labour candidates have
12 increased their votes by almost 100" --
13 THE COMMISSIONER: 150 per cent is in my copy. Is that
14 correct?
15 A. Yes, 150 is what it says here.
16 MR SUKUL: "... bucking the national trend.
17 "I believe that the facts stated in this witness
18 statement are true".
19 THE COMMISSIONER: Before Mr Hemming is cross-examined,
20 Mr Coppel, can I as in Bordesley Green call on the good
21 offices of those behind you? It would probably help us
22 to have in this case, as we had in the last, the
23 documents that were produced showing the results of the
24 2004 elections throughout Birmingham, the 2003, 2002
25 elections. We already have the documents but if they
38
1 could be formally produced in this hearing.
2 The other thing is this, which we do not have.
3 It would be of assistance, although I agree that this is
4 probably going to involve a little more work behind you,
5 if we were to be given figures for the Bordesley Green
6 and Aston elections in 2003 and 2002, simply indicating
7 the number of votes cast. It will be in the file
8 somewhere. I do not want it for the whole of
9 Birmingham, though it would obviously be a great help,
10 but I think if Mr Owen's staff could extract, because it
11 seems to me that the figures that Mr Hemming mentions in
12 paragraph 11 can be verified exactly and also we can
13 have a similar picture for 2002.
14 MR COPPEL: Sir, so that I understand the request correctly,
15 what you are asking for is the number of votes cast for
16 the various candidates in this ward in the year 2004,
17 the year 2003 and the year 2002? Is that correct?
18 THE COMMISSIONER: Yes, that would be a great help.
19 Well, not 2004 because I have that. That is in the
20 petition. In this ward and in Bordesley Green,
21 I appreciate of course in Bordesley Green the comparator
22 is Small Heath and I appreciate it is not entirely like
23 for like, but nonetheless it would give me the flavour
24 of what the actual voting figures were, to see not only
25 whether there has been an overall gross increase in
39
1 apparent voters, real voters, but also what it
2 represents in terms of party turnout.
3 MR COPPEL: Sir, that will be done.
4 THE COMMISSIONER: I think I will adopt the same order of
5 cross-examination and ask you to cross-examine first.
6 MR HAYES: I am obliged.
7 Cross-examination by MR HAYES
8 MR HAYES: Mr Hemming, we have established that you are the
9 leader of the Liberal Democrats in Birmingham, that
10 you have been a councillor for 14 years, in fact you are
11 deputy leader.
12 A. Of the Council.
13 Q. So you sit on the Cabinet?
14 A. Yes.
15 Q. You work closely with Lin Homer, who is the fourth
16 respondent?
17 A. Correct.
18 Q. Because she is Chief Executive of the --
19 A. Chief Executive of the Council.
20 Q. And you have been involved in politics for a very long
21 time?
22 A. Since 1976 in Birmingham, yes.
23 Q. And you have stood for Parliament for the Liberal
24 Democrats?
25 A. That is correct.
40
1 Q. I think in South Yardley?
2 A. It is not South Yardley, it is Yardley. Same area.
3 Q. And Estelle Morris is the sitting member?
4 A. She is coming off, but yes.
5 Q. She is retiring at this election?
6 A. Yes.
7 Q. And you will be standing?
8 A. I have been re-selected as the --
9 Q. So you are the prospective Parliamentary candidate for
10 whenever the election is going to be?
11 A. Whenever that may be, yes.
12 Q. And she has quite a small majority?
13 A. About 2,500.
14 Q. In fact it is 17 on the Liberal Democrat hit list, is it
15 not?
16 A. I do not know that, I have not actually checked.
17 Q. That is what it says on your website. There we are.
18 As the leader of the Liberal Democrats in
19 Birmingham, you have control over leafleting, over your
20 agents, of your workers?
21 A. That is never 100 per cent. The difficulty is you have
22 a thousand members in the city and much that you put as
23 much effort in as possible -- and that is the critical
24 thing. For instance, what I was saying to the police,
25 I spend a lot of time with my workers, prior to the
41
1 election and saying to the police "If you want to
2 investigate anything, I will go with you and ensure that
3 investigations ensue so that we are very, very clear,
4 but I cannot -- if you have a thousand members and maybe
5 another couple of hundred other workers who are not
6 actually members of the party you cannot control in
7 minute detail what they do, but you can set a tone,
8 there is no question about it.
9 Q. You have certainly set the tone for the Liberal
10 Democrats, you help them with the publicity,
11 understandably?
12 A. It varies across the city depending on the ward; some
13 wards are more independent, some wards work close
14 together. Within the Yardley constituency, for
15 instance, which is normally deemed to be three wards,
16 they work very closely together. Other wards are very,
17 very independent.
18 Q. And quite sensibly and quite properly you have always
19 had an interest in electoral abuses?
20 A. Ever since I was at university, when they fiddled the
21 student union elections.
22 Q. Absolutely.
23 A. I was quite surprised to find the same things happening
24 outside university.
25 Q. It is worse.
42
1 A. What actually happened was quite amazing.
2 THE COMMISSIONER: I cannot think why you are surprised.
3 Most student politicians graduate, if that is the
4 correct word, into being adult politicians. Two members
5 of the present Cabinet were head of the National Union
6 of Students.
7 A. I was actually surprised to find similar sorts of things
8 happening in real elections.
9 MR HAYES: You obviously had a great deal to do with this
10 petition, did you not?
11 A. The Aston petition, yes.
12 Q. Of course you did.
13 A. And to some extent the Bordesley petition as well.
14 Q. Bordesley is another matter which the Commissioner will
15 deal with at the appropriate time. All I am interested
16 in is Aston and I will go through the petition in a
17 little bit of detail with you later.
18 I just want to go through your actual statement.
19 The fraud was planned, number 2. What evidence do you
20 produce of this fraud?
21 A. Do you mean actually in my statement or in a wider
22 sense?
23 Q. Well, this is a statement of truth --
24 A. Yes --
25 Q. Before the Commissioner?
43
1 A. I have a list of all the allegations I supplied to the
2 police. There was definitely over 20.
3 Q. Why is it not in your statement of truth? It is highly
4 relevant, is it not?
5 THE COMMISSIONER: Were you asked to produce it? Have you
6 ever been asked to produce this list?
7 A. Nobody asked -- in fact the police in their, I think,
8 I do not know exactly what has been put in the bundles
9 from the police, but the police in the disclosure give
10 a list of 51, I think, allegations made to the police.
11 I have it in the file that I can bring at 2 o'clock, and
12 when I went through that I found six allegations
13 I passed to the police that they have missed out.
14 I found also, for instance, in Aston, where I had
15 passed -- what you need to understand is how this works.
16 I sit at the centre and I receive information from
17 across the city. So for instance, I received an
18 allegation in Aston that certain postal votes were being
19 misdirected, they were being sent to other than the
20 voter.
21 I passed that information to the police. Now, what
22 I found very, very interesting was when the police
23 reported on their investigation they said it was false.
24 However, there is in fact prima facie evidence that that
25 is in fact true because --
44
1 THE COMMISSIONER: One moment. As I said yesterday,
2 everything is being taken down and used in evidence and
3 it has to be taken down by the shorthand writer. He
4 is capable of working considerable miracles but there is
5 a limit even to those miracles, and if you go too fast
6 it does not get recorded. So let us take this more
7 slowly. I appreciate that your normal method of speech
8 may well be fast, I know mine is, but do bear in mind
9 that everything has to be recorded on the LiveNote.
10 A. I will do that again then.
11 MR HAYES: And can we try and do it in bitesized chunks?
12 A. That was a bitesized chunk.
13 Q. Can we have smaller bite sizes then?
14 A. As leader of the party --
15 THE COMMISSIONER: You sit in the centre and the information
16 comes to you?
17 A. Yes. In a number of wards we were delivering leaflets
18 which said, "What out, vote thieves are about, let us
19 try to prevent electoral fraud".
20 One of my challenges for instance, and one of my
21 criticisms of the Returning Officer is I did request
22 a list, can I explain the technical detail first? There
23 is a deadline by which applications for postal votes can
24 be accepted for changed postal votes, which is a week
25 before the deadline that can be accepted for new postal
45
1 vote requests. This is an important point.
2 If somebody's postal vote is misdirected it is
3 possible to redirect it back to them or get
4 a cancellation of the postal vote as long as you are
5 aware --
6 MR HAYES: Can I stop you a moment please. What I would
7 like you to do is just answer the questions. Your
8 learned counsel in re-examination --
9 A. Okay.
10 Q. There are simple issues here that the Commissioner has
11 to deal with. This is all very interesting stuff but
12 I have some specific points to put to you.
13 A. I sit at the centre passing information from my people
14 to the police.
15 THE COMMISSIONER: You say "misdirected". At the risk of
16 incurring Mr Hayes's wrath, you are aware, presumably,
17 that an application for a postal vote can ask for the
18 vote to be sent to an address other than that of the
19 elector.
20 A. That is true.
21 THE COMMISSIONER: Normally, when Mr Owen's office gets an
22 application for a postal vote, they take the address
23 from the application, and if the application says "send
24 it to my home", fine. If they say "send it to some
25 other address", that is noted.
46
1 The postal vote is then sent out according to what
2 is on the register, so that the elections office is
3 really bound by what it has on its register?
4 A. That is right.
5 THE COMMISSIONER: There may of course be a mistake in
6 compiling the register, they may get a number wrong of
7 the road or something of that nature, but in general if
8 something is directed to an address other than the
9 voter, that is because the voter has apparently asked
10 for that on the application form?
11 A. That is correct.
12 THE COMMISSIONER: What was your particular worry about
13 so-called misdirected votes?
14 A. There is a right for political parties or candidates to
15 ask for a list of postal votes, and from the list of
16 postal votes it is transparent which ones have been sent
17 to addresses other than those of the voters. It is very
18 easy to identify. And from that list you can then go
19 and knock on the door of the voter and say, "Have you
20 asked for your vote to be misdirected?" which in the
21 main obviously is not the case, and then you can get
22 them to sign something which gets them their vote back.
23 THE COMMISSIONER: If you have a case of a voter who has
24 apparently asked for his voting papers to be sent to
25 another address and you go and knock on the door and
47
1 say, "Did you really do this?" and he says "No,
2 of course I did not", then on the face of it something
3 has gone wrong with the application for a postal vote.
4 A. I knew that already because I had been canvassing all
5 the large numbers of postal votes in my ward and finding
6 that people had not requested postal votes. So I was
7 quite well aware that there was requests being entered
8 for people who had not requested postal votes. In fact
9 the mere fact that in certain roads in my ward: Oldknow
10 Road, Tennyson Road, Malmesbury Road et cetera, almost
11 door to door there were postal vote requests going in,
12 in itself shows some strangeness because it is just so
13 unlikely, and I started door knocking down Oldknow Road,
14 found people who had not requested postal votes who had
15 had them requested on their behalf, and I then passed
16 that information on the police of course as well.
17 THE COMMISSIONER: I think that answers that question.
18 It is better to run that one to earth before Mr Hayes
19 goes to the next topic. You were not here for
20 Bordesley Green, but in Bordesley Green a considerable
21 body of evidence has been adduced, which is for me to
22 accept or not, that applications for postal votes were
23 improperly put in by someone other than the voter and
24 the voting papers asked to be sent to some other
25 address. And a considerable body of evidence was
48
1 adduced from voters who said in effect "I did not ask
2 for a postal vote yet I appear to have voted". So that
3 is the context in which I ask the question of
4 Mr Hemming.
5 MR HAYES: I am only interested in Aston. Did you make any
6 complaints to the police about Aston other than the
7 warehouse?
8 A. Yes.
9 Q. Are they in your statement of truth?
10 A. No.
11 Q. Why not?
12 A. Because I was guided to be fair -- yes.
13 Q. Mr Hemming, you are a professional politician. That is
14 not an insult. You have served your community for
15 15 ...
16 THE COMMISSIONER: There is something known as leading with
17 your chin, Mr Hayes.
18 A. Although I was involved in detail right at the start of
19 the case, the statement is written not -- it is written
20 in response to what requests were made by Steel &
21 Shamash.
22 MR HAYES: Yes. But the truth of the matter is --
23 THE COMMISSIONER: You say requests made by Steel & Shamash
24 who are the Labour Party solicitors. This was to answer
25 the request for information that was served on the Aston
49
1 team?
2 A. That is right. So it is basically not in itself --
3 it is done in response to Steel & Shamash's questions.
4 THE COMMISSIONER: Do you have copies of your complaints to
5 the police relating to Aston?
6 A. I do have them, but I could ask my PA to go to
7 The Council House and get the right file. There is
8 a file on my desk.
9 THE COMMISSIONER: Is that at the town hall? If that could
10 be done then it might help, because if there are
11 documents you would presumably like see them.
12 MR HAYES: Yes. We have heard nothing from the police on
13 this. You have seen all the evidence in this case.
14 A. It was in the disclosure from the police.
15 Q. Well it has certainly not come across to us.
16 THE COMMISSIONER: Do you not have the police disclosure?
17 MR HAYES: I have the disclosure that has been dealt with
18 in this court so far.
19 THE COMMISSIONER: There was voluminous police disclosure
20 in the early stage of Aston which you may not have been
21 supplied with. It was certainly supplied to Steel &
22 Shamash.
23 MR HAYES: I have not seen that. I am relying on two things
24 for the purposes of this cross-examination. The
25 statement of truth from Mr Hemming and also, if need be,
50
1 the responses that were given to Steel & Shamash,
2 which --
3 A. The statement is written in response to Shamash's
4 questions as to this, that and the other. The police --
5 Q. Not the statement of truth?
6 A. The statement of truth was done in response to Shamash's
7 question.
8 Q. Surely for a statement of truth you should be coming
9 here to tell the court precisely what the allegations
10 are that you are making --
11 A. That is in the police disclosure.
12 Q. But from you, you are giving evidence.
13 A. But it is in the police disclosure.
14 THE COMMISSIONER: He is a witness, not a party. So his
15 witness statement is what has been compiled by the
16 lawyers as to the topics they wish him to cover. It
17 does not purport to be a comprehensive account of his
18 participation, it is simply what they want to put in the
19 statement.
20 MR HAYES: What I was going to put to him was this: it
21 hardly deals with Aston at all.
22 A. That is true.
23 Q. This is the petition in relation to Aston, 3 is about
24 South Yardley and this taxi driver who gave you a couple
25 of Chew-Its. Where that takes us I really do not know.
51
1 Then we have ballot papers dangling from doors, that is
2 number 4 and you are going to provide us with
3 photographs at some stage.
4 That has nothing to do with Aston.
5 A. It actually does because a lot of these things relate to
6 the whole of the city. The post office's inability to
7 put things through a door relate to everywhere in
8 Birmingham.
9 Q. Just pause there. The post office's inability to put
10 things through a door. How does that come as part of
11 a Labour Party fraud?
12 A. But the whole point about this is that there are
13 a number of factors. There are parts which are fraud by
14 the Labour Party which involved discussions between
15 Labour people in advance of the elections. There are
16 parts that relate to bribery of persons and parts that
17 relate to the incompetence of the post office in the
18 sense that they do not deliver everything through the
19 door, so it is easy for people to steal things from the
20 door, which is partially an explanation of how people
21 get hold of postal ballots without them having been
22 completed by the voter.
23 Q. What evidence do you have that there was consultations
24 and discussions within the Labour Party to make a fraud
25 at these elections?
52
1 A. There are a lot of discussions that go around the city.
2 I accept it is hearsay.
3 Q. It is tittle-tattle.
4 A. It is hearsay.
5 Q. It is what you hear in the pubs and bars and on the
6 streets.
7 A. It gets evidenced by the results. It gets evidenced by
8 the frauds -- and I do have on me all the misdirects for
9 Aston, for instance. What I do have in this file,
10 I kept a list of the misdirects for Aston. Whether they
11 have been adduced anywhere else, I happen to have them
12 because --
13 THE COMMISSIONER: Mr Sukul, have you seen this document?
14 MR SUKUL: I do not think I have, sir.
15 A. These are misdirects for Aston.
16 MR HAYES: Let us go to 5.
17 THE COMMISSIONER: This is a list that you have compiled of
18 voters, whose application for a postal vote contained an
19 address for the ballot papers different from their own
20 address.
21 A. But a local one rather than one that is up in the north
22 of Scotland or something.
23 THE COMMISSIONER: You might possibly smell a rat if Aston
24 votes were being sent to Inverness.
25 MR SUKUL: As it happens, the document to which you refer
53
1 forms part of the witness statement. But I understand
2 this witness statement was not served.
3 A. No, exactly. I do not know why. I was told all you had
4 to do was stick to this one.
5 THE COMMISSIONER: This is not helping Mr Hayes any, is it?
6 MR SUKUL: No, it is not.
7 THE COMMISSIONER: This is not totally satisfactory,
8 Mr Sukul. You made a witness statement on
9 24th February.
10 A. What it is -- I worked -- what I was concerned about was
11 that there were certain things which I was not sure was
12 in the evidence so I collated that evidence that I had,
13 which related specifically to Aston, including the
14 misdirects, and I drafted a second statement. But
15 obviously I am not -- I am in touch with the legal team,
16 I am not running with it. The view was expressed that
17 we should not submit this.
18 THE COMMISSIONER: Is there a signed version of this?
19 A. There is not because we did not get to that stage.
20 THE COMMISSIONER: Mr Sukul, you and your team -- as you
21 know, I take a mid-morning break for the benefit of the
22 hard pressed and particularly hard pressed this morning
23 shorthand writer. I suggest that you and your team look
24 at this document and decide whether you wish to put this
25 in as an additional witness statement of Mr Hemming.
54
1 I would only permit you to do so on the basis that
2 copies were supplied to the other counsel in the case
3 and they had an opportunity to read it. It seems to me
4 that clearly Mr Hemming is an important witness in this
5 matter and if there is information that he can give,
6 then he should give it and be cross-examined
7 appropriately by Mr Hayes and Mr De Mello accordingly.
8 What I am going to do is rise now. It is ten to 12.
9 I will give you in fact twenty minutes and I will resit
10 at ten past 12. By that time, I would really require
11 you to have reached a position as to whether you want
12 this evidence in. I have not read this nor will I until
13 someone asks me to do so.
14 If it means that Mr Hayes, for example, or
15 Mr De Mello require further time to consider any
16 cross-examination they wish to direct, if it goes in,
17 then obviously I will be reasonably indulgent in that
18 regard.
19 Mr Hayes, I think that is the best I can do for you
20 given that Mr Hemming has brought this up, perfectly
21 properly, and I think that is the best way to handle it.
22 MR SUKUL: Just before you leave your seat, sir, I am told
23 there is probably some force in this -- that the date of
24 the statement post-dated one of the deadlines by which
25 statements should have been served upon the respondents.
55
1 That is all I hear. For my part, this morning is the
2 first time I have set eyes upon it.
3 THE COMMISSIONER: I think it is probably better that you
4 consider it and then other counsel consider it. I think
5 in any event now that it has, as it were, come to light,
6 and no criticism of Mr Hemming for this, I think you and
7 your fellow counsel had better see this because I think
8 it is quite legitimate for Mr Hayes to have it and
9 Mr De Mello of course, for material for
10 cross-examination.
11 (11.50 am)
12 (A short break)
13 (12.10 pm)
14 THE COMMISSIONER: Mr Sukul, what is the score on this?
15 MR SUKUL: The score is this. The second statement has been
16 photocopied. It is the petitioners' application that
17 the second statement be admitted. Sir, I hinted at the
18 reason before you rose.
19 THE COMMISSIONER: It was out of time and you did not serve
20 it for that reason.
21 MR SUKUL: Yes. In addition to that, I have seen it for the
22 very first time today. In fact I still have not had
23 a chance to read all of it. I am entirely in your
24 hands. If the interests of justice allow ...
25 THE COMMISSIONER: Mr Hayes, does it put you in a position
56
1 of any embarrassment?
2 MR HAYES: I have not read it yet. I doubt it. It seems to
3 me a bit of a tirade against the Local Authority with
4 a bit of flak on us.
5 THE COMMISSIONER: I expect Mr Coppel to have something, but
6 I thought I would try the easier target first. Also,
7 you are first on the indictment.
8 MR HAYES: I am worried about this. I am not going to
9 object to it going in because you have enormous powers,
10 and rightly so, and it is right and proper that we
11 should hear what Mr Hemming has to say. But when I see
12 it is dated 24th February, it is out of time.
13 A. The date should be now.
14 THE COMMISSIONER: And the date at the end as well.
15 A. Sorry, it is today.
16 MR HAYES: Serving out of time has not been a problem for
17 the petitioners before. I got the two police officers
18 this morning.
19 THE COMMISSIONER: Yes. That I see, Mr Hayes.
20 Mr De Mello, I appreciate that you are busy playing
21 catchup, does it put you in any more problems than you
22 would have been in if Mr Hemming was giving evidence on
23 his original statement?
24 MR DE MELLO: No. I propose to ask little or no questions
25 for the time being.
57
1 THE COMMISSIONER: Mr Coppel?
2 MR COPPEL: Severe objections, sir. There are scurrilous
3 allegations in this document against the Returning
4 Officer. They are allegations, which, if they are to be
5 dealt with properly by the Returning Officer, involve
6 very considerable investigation. That must have been
7 known to those preparing this witness statement when
8 they served it on me five minutes ago. It is going to
9 need an adjournment of this trial if it is to be dealt
10 with properly, and they should be struck out completely.
11 THE COMMISSIONER: Mr Coppel, I see your obvious objection
12 to this. The case as opened, as you rightly pointed
13 out, contained only a relatively small and discreet
14 number of allegations against the Returning Officer.
15 No application has been made, nor, as I understand
16 it, could be made, to amend the petition to put in
17 additional allegations against the Returning Officer.
18 Insofar as there are further charges made against the
19 Returning Officer in Mr Hemming's statement, it seems to
20 me that they would not relate to any matter at issue
21 currently before me.
22 Therefore, without having seen it -- this is sight
23 unseen because I have not at the moment seen the
24 statement -- it seems to me that you would have,
25 I think, good grounds for objecting to anything in the
58
1 statement which appeared to contain material complaints
2 against the Returning Officer which were not part of the
3 petitioners' case.
4 That said, it may be possible, and I merely produce
5 this as a speculation, it may be possible that if over
6 the lunchtime adjournment you were able to speak to
7 Mr Sukul you could agree with him which areas of the
8 statement you considered to be objectionable and
9 Mr Sukul might be able to meet you on some or preferably
10 all of those.
11 If that were done, would that meet your objections?
12 MR COPPEL: Sir, if it were done in the form such that the
13 scurrilous allegations that are made in the document are
14 completely removed so that there is no record of them,
15 that would meet my objection.
16 THE COMMISSIONER: Mr Coppel, obviously I can pass no
17 judgment on whether they are scurrilous, true, false or
18 whatever. All I can say is if they are objectionable on
19 the basis that they are not directed to issues currently
20 in the petition, then the sensible course, as I assume
21 that they are on a computer --
22 A. Yes.
23 THE COMMISSIONER: -- is simply to edit them on the computer
24 and produce an edited version which will not contain the
25 matters which are not relevant to the enquiry.
59
1 That, it seems to me, is the way forward. Whether
2 it is sensible to continue with Mr Hemming's evidence
3 in the circumstances would seem to me to be relatively
4 doubtful unless Mr Hayes feels that there are matters
5 that he can properly cover on the original statement
6 without, as it were, straying into the new material.
7 MR HAYES: I can happily soldier on. I would like time at
8 an appropriate moment to go through this in detail, but
9 my learned friend for the Director will note that there
10 are allegations, very serious allegations, against the
11 police as well, particularly a sergeant who has given
12 evidence.
13 THE COMMISSIONER: It did not occur to me that there might
14 be and therefore I neglected to see whether Mr Brook ...
15 MR BROOK: Perhaps unusually I do have something to say on
16 behalf of the Director in this instance.
17 THE COMMISSIONER: If I said the same to you as I said with
18 regard to Mr Coppel, would that provide a way forward?
19 MR BROOK: It would. There are allegations against the
20 West Midlands Police in this document. They are not
21 party to this petition and for that reason I say the
22 allegations against them should be struck out of this
23 document and not form part of the record.
24 THE COMMISSIONER: I think the answer is that we should
25 proceed as I have indicated, but perhaps if everybody,
60
1 as it were, puts their heads together over the lunchtime
2 adjournment we may be able to provide a relatively
3 agreed additional material. But for the moment I will
4 not see this statement or read it, I will simply take it
5 that at some future time I may see a version of it which
6 contains matters which are relevant to the issues in
7 this petition and do not go beyond them.
8 MR BROOK: Yes.
9 THE COMMISSIONER: That is not of course to say that
10 Mr Hemming may or may not be right in the allegations he
11 makes, but if they are not relevant to this enquiry I am
12 not going to investigate them.
13 MR HAYES: Sir, once you have read this document, you may
14 take a view.
15 THE COMMISSIONER: Well, as I do not propose to until it is
16 edited, it may not be a view that will help me greatly.
17 But you can proceed on the basis that the second
18 statement for the moment is not in and the evidence is
19 not going to be given for the moment.
20 MR HAYES: For the moment I am carrying on in the same vein
21 as I was.
22 THE COMMISSIONER: That seems a very proper course.
23 MR HAYES: Mr Hemming, you mentioned about the police and
24 you mentioned that you had made allegations to the
25 police, which we are not going to go into at this stage
61
1 or perhaps not at all.
2 You also told us, did you not, that the police were
3 of the view that the allegations were false?
4 A. That is actually going into the document.
5 Q. This is what you told us earlier on. It is really a yes
6 or no, is it not, because you told us it was false. Was
7 that right?
8 A. Basically, if you take two of the misdirects, the police
9 investigation reported that the misdirects -- the
10 allegation that votes were misdirected, was false.
11 Yet on the evidence of the list of postal votes and the
12 electoral roll, it is very clearly true.
13 Q. No, please. I asked a very simple question. Is it
14 right what you told us? And we can look it up on --
15 (inaudible: overspeaking).
16 THE COMMISSIONER: And you disagree?
17 A. I disagree very simply on the fact that it is on the
18 list. It is straightforward.
19 MR HAYES: That is all we need. The police say it is false,
20 you say they are wrong.
21 A. Yes, on certain allegations.
22 Q. Let us move on to page 3.
23 THE COMMISSIONER: I think, again, without going into the
24 police one way or the other, one thing that has become
25 quite apparent from the police evidence today is that
62
1 the police, indeed any police force, would necessarily
2 be dealing with matters well outside their normal sphere
3 of competence.
4 A. I think that is fair.
5 THE COMMISSIONER: And an ordinary police officer or
6 sergeant such as we have seen would obviously require to
7 refer to higher authority if he were to know whether
8 conduct about which complaint had been made was or was
9 not in accordance with electoral law.
10 A. Not only that, there is also the question of the
11 investigation. These particular allegations about
12 misdirections, it is very clear when you have the right
13 information that the votes have been misdirected. That
14 is a statement -- the fact that -- whether it is through
15 fraud or not depends on the paperwork, but actually --
16 THE COMMISSIONER: By misdirection, you mean simply directed
17 to another address than that of the voter?
18 A. Yes, that is right. Obviously, in theory, there are
19 legitimate circumstances in which that is acceptable.
20 The difficulty of the situation, not just here but
21 across the country, is that it happens in situations
22 that are clearly unacceptable.
23 THE COMMISSIONER: As I understand it, what you are saying
24 simply is no more than this: if you have a list of
25 electors who have requested a postal vote to be sent to
63
1 something other than their address, you could, anybody
2 could theoretically go along and ask them "Did you ask
3 for your vote to be sent to this address?" and get a yes
4 or no answer.
5 A. That is correct.
6 THE COMMISSIONER: That may be no more than is obvious, but
7 nonetheless that seems to me the way in which this line
8 is proceeding.
9 MR HAYES: I am obliged.
10 Number 6, threats to postmen:
11 "I spoke to the Evening Mail journalist, who has
12 been contacted by Amir Khan, a postman, who has been
13 offered £500 for votes and threatened with being killed
14 if he did not hand over the votes."
15 What evidence do you have of that?
16 A. I spoke to the postman.
17 Q. Are we going to hear from the postman?
18 A. No. What evidence do I have that I spoke to the
19 journalist?
20 THE COMMISSIONER: Who is that? (inaudible: overspeaking).
21 You did not speak to the postman?
22 A. It is hearsay, yes. Obviously, much that there is
23 disclosure evidence that these situations had occurred,
24 and it is in the disclosure and that counts as prima
25 facie evidence, I accept that is hearsay.
64
1 MR HAYES: All I am asking, I cannot see a statement of
2 truth from the postman. Is there one?
3 THE COMMISSIONER: A witness statement is the normal way we
4 call it, I think.
5 MR HAYES: They used to be called affidavits.
6 THE COMMISSIONER: You and I go back a long way, Mr Hayes.
7 They still exist but in very rare circumstances.
8 "Witness statement" is the normal way in which we
9 describe them in the Civil Courts if that helps.
10 MR HAYES: Greatly obliged.
11 THE COMMISSIONER: Statement of truth is simply the
12 verification at the end of it.
13 MR HAYES: Do we have a witness statement from Mr --
14 A. What we do have is a police crime --
15 Q. Just pause --
16 A. We do not have a witness statement from the postman.
17 THE COMMISSIONER: Or from Mr Bell?
18 A. Or from Mr Bell, no.
19 MR HAYES: The car chase across Birmingham. This is number
20 7:
21 "On the occasion of another visit to Bordesley I was
22 chased in my car by an activist from the PJP."
23 This is Bordesley, it does not concern us.
24 THE COMMISSIONER: Not your concern, Mr Hayes.
25 MR HAYES: We can leave that alone. Number 8, request from
65
1 the elections office. Well, my learned friend Mr Coppel
2 will deal with that.
3 Voters prevented from voting. You say here that you
4 heard from a couple of voters in the Oldknow Road
5 polling station. That is Yardley, is it not?
6 A. South Yardley.
7 Q. It is not Aston, is it?
8 A. I know it is not Aston but it gives you a taste of what
9 is going on in the city as a whole, and the important
10 part of this is that it is not limited to two wards and
11 not limited to one Local Authority.
12 Q. This is a petition which I will go through with you in
13 a moment, about Aston specifically. Bordesley has been
14 dealt with.
15 A. It does make reference to the wider position.
16 Q. If you want to deal with the wider position I will ask
17 you this question: has this got anything to do with
18 these councillors?
19 A. Specifically, in respect of what happened in Oldknow
20 Road, it has no direct link to Aston because Oldknow
21 Road is road in Aston but it gives you a taste of what
22 is going on.
23 Q. The count, you are aware, you say that around 400 votes
24 in your ward had been stolen. Again, this is your ward,
25 is it not, not Aston?
66
1 A. That is true.
2 Q. Then Mr Ayoub Khan, we know about Mr Khan. I hope he is
3 going to give us some evidence. He was the defeated
4 candidate in Aston, was he not?
5 A. In a sense that --
6 Q. He did not win, did he?
7 A. No.
8 Q. So he was defeated. I think he came 6th?
9 A. Yes.
10 Q. The postal votes rose from --
11 THE COMMISSIONER: But he was an outgoing councillor, as
12 I understand it.
13 A. Yes.
14 THE COMMISSIONER: What was the composition of that ward
15 before?
16 A. The difference with the old elections is that three
17 people at a time were being elected.
18 THE COMMISSIONER: I appreciate that, but three people went
19 and three people were elected.
20 A. Two Labour and one Lib Dem, going to three Labour.
21 THE COMMISSIONER: The two Labour were Councillor Afzal, and
22 who was the other Labour councillor?
23 A. That was Tony Kennedy, who re-stood in the Perry Barr
24 ward.
25 THE COMMISSIONER: I see. So neither of the other Labour
67
1 candidates were at the time councillors?
2 A. No. Councillor Kazi was a councillor for the Handsworth
3 ward.
4 THE COMMISSIONER: But not in that particular ward?
5 A. Afzal was in that ward, Kazi (indistinct) and Islam was
6 not (?) anywhere.
7 MR HAYES: So this witness statement of yours, dated
8 18th January, does not deal with anything specifically
9 against the first and third respondents?
10 A. The witness statement was written in response to issues
11 raised by Steel & Shamash. As you know, on considering
12 matters at a later stage, I identified matters that were
13 directly linked to Aston and obviously we are going to
14 work on that over lunchtime.
15 Q. I am not so sure that is right, and the reason I am
16 suggesting it is not right -- we can dig it up at
17 a later stage -- is that the firm of solicitors to whom
18 you refer asked you for what we used to call further and
19 better particulars. And you gave them.
20 THE COMMISSIONER: They did not ask Mr Hemming.
21 MR HAYES: They asked the petitioners. That is what the
22 firm of solicitors were asking about, and it is dealt
23 with when you are asked, as a guiding force in this
24 petition, which you are, clearly, are you not?
25 A. Well, I am not a guiding force. The case is being run
68
1 by the legal team for the petitioners. I did take part
2 in the drafting of the original petition and after that
3 point I have not had that much involvement to be fair.
4 Looking at things there are certain aspects I thought
5 should be adduced at evidence. There was difficulty
6 because that was after the deadline for submitting
7 witness statements and that is where we are at at the
8 moment.
9 Q. Let us have a look at this petition, page 1 of volume 1.
10 Let us turn to page 2:
11 "5. Massive electoral fraud organised by Labour
12 supporters."
13 I am only interested in Aston. Where is, from your
14 point of view, the evidence there?
15 A. Where is the evidence what?
16 Q. Of massive electoral fraud organised by Labour
17 supporters.
18 A. In what? Are you talking about --
19 Q. It would be helpful if I read paragraph 5.
20 A. Yes. Paragraph 5 is an allegation.
21 Q. Yes. I will read it to you.
22 A. I can read it.
23 Q. It is helpful for the record:
24 "Massive organised electoral fraud mainly involving
25 the misuse of postal ballots was committed by the
69
1 winning Labour candidates in this election and their
2 agents. This fraud was condoned by the Labour
3 leadership in Birmingham, which took little action to
4 prevent it and it was part facilitated by lax and
5 unlawful procedures operated by the elections officers
6 of Birmingham City Council. Postal vote abuses were
7 committed in at least the following Birmingham City
8 Council wards: Aston ..."
9 And you go into details about the others.
10 Again from your experience, where is the evidence
11 about this in Aston?
12 A. Are you actually asking the questions on what evidence
13 is there to justify that allegation?
14 Q. No, I am asking from your experience as a politician
15 what you witnessed that can assist the Commissioner on
16 the allegations which are made.
17 THE COMMISSIONER: I am not sure this is entirely a fair
18 question, Mr Hayes. Because if you actually look, that
19 is a general statement. Paragraph 6 is the allegation
20 that it was planned. Then allegation 7, which is
21 divided into 16, actually then gives the way in which
22 it is said the Birmingham-wide fraud was committed.
23 So, in a sense, the answer to your general question
24 is in the answers to the questions to paragraph 7.
25 MR HAYES: Precisely.
70
1 THE COMMISSIONER: So that in a sense your question is
2 answered by the petition but you may have further
3 questions which the petition clearly invites.
4 MR HAYES: What I was trying to do is set the scene.
5 THE COMMISSIONER: I make that 19 wards out of 40, is that
6 right?
7 A. Yes.
8 MR HAYES: What I was trying to do is set the scene and then
9 deal with the specifics and ask Mr Hemming. We are
10 interested in evidence. Let us deal with it.
11 THE COMMISSIONER: Labour did not win them all, did they?
12 A. No. They did not win my ward even though votes were
13 stolen there.
14 THE COMMISSIONER: Edgbaston was Conservative, was it not?
15 A. Yes. The number of votes defrauded in each ward varied
16 because obviously some had much larger levels of fraud
17 than others, and to some extent it is looking at the
18 postal vote application batches that gives you an
19 indication of what is going on across the city.
20 MR HAYES: Right. I am specifically going to ask you 7, and
21 it goes up to 16. The evidence that you have seen
22 yourself, that you know about as a witness, I am going
23 to ask them specifically so that it is clear to
24 everybody what I am asking:
25 "7.1. Applications for postal votes were filled in
71
1 on behalf of voters without the voter's knowledge.
2 No check was made on the signature of voters in
3 applications."
4 Never mind the second sentence, the first sentence.
5 THE COMMISSIONER: Which is correct.
6 A. The second sentence is correct. I was obviously
7 canvassing in my own ward so I would only identify that
8 in my own ward.
9 MR HAYES: So the answer to my question regarding Aston is
10 no?
11 A. I am leader of a party in the city, but what that means
12 is also I have to fight my own ward and you cannot just
13 not do anything in your own ward. So most of my time
14 has to be spent actually campaigning in my own ward.
15 Q. But from the first witness statement we have from you,
16 you were going to other parts, to other wards, not just
17 your own.
18 A. I am sorry, but I do actually pick up things from other
19 wards, like the misdirects in Aston.
20 Q. I just want to be clear on that. So your personal
21 experience and knowledge regarding 7.1 in relation to
22 Aston is no?
23 A. It depends what you mean by personal experience and
24 knowledge. People report allegations to me. They are
25 reported with details that I then pass on to the police.
72
1 Those allegations go to the Economic Crime Unit or
2 Fraud Squad or whatever. The question then comes.
3 Somebody has given me a detailed allegation of such an
4 issue, a person says they have been sent a postal vote
5 when actually they have not requested one. That person
6 has not spoken to me so it is hearsay and inherently
7 most of the information I deal with is going to be
8 hearsay and therefore you should not be surprised that
9 it is. I was not actually in the warehouse in Witton
10 but I was aware that it went on.
11 Q. I do not think anybody is suggesting that you were.
12 THE COMMISSIONER: 7.1 is essentially the misdirects, as
13 you have called them?
14 A. It is not just the misdirects. It is where you have
15 someone fill in an application for a postal vote on
16 a fraudulent basis. So whether it goes misdirected or
17 to their own address, it is being done without the
18 voter's knowledge.
19 THE COMMISSIONER: I see.
20 MR HAYES: 7.2, postal votes were stolen from the doors of
21 voters; do you have any evidence of that?
22 A. That is hearsay again. I personally deal mainly in
23 hearsay.
24 Q. Who told you about this happening?
25 A. I would have to check all my records.
73
1 Q. You do not know?
2 A. I did keep detailed records. I have e-mail records of
3 everything I sent off to the police. I have a lot of
4 stuff in the file, I can rummage through it all.
5 Q. It is not a question of rummaging.
6 A. It still remains hearsay.
7 Q. This is a petition making very serious allegations.
8 Either you have evidence, in terms of hearsay or primary
9 evidence, or you do not. If you have not produced this
10 evidence, this hearsay, I ask you why not?
11 A. Do you want me to rummage through and find it?
12 THE COMMISSIONER: Mr Hayes, again we are getting slightly
13 off beat. It is perfectly legitimate for you to
14 ascertain that Mr Hemming is in a sense delivering
15 hearsay. I think it is probably not fair to criticise
16 him for not producing the evidence because it is not his
17 case. He is not actually a party. I know that he has
18 accepted that he is part of the Liberal Democrats'
19 campaign, as it were, but in a sense any criticisms that
20 evidence is not adduced I think is not fairly directed
21 to Mr Hemming, but it would be fairly directed to the
22 petitioners.
23 MR HAYES: My difficulty is Mr Hemming's evidence in this.
24 THE COMMISSIONER: It is all hearsay.
25 MR HAYES: We do not even have the hearsay. A lot of
74
1 it is: I might have some evidence in my file.
2 In my respectful submission, if this petition is to
3 be taken seriously, this should have been detailed and
4 submitted and served. It really has not been. I could
5 go further on this, or would it not be helpful because
6 you are the person I have to convince.
7 THE COMMISSIONER: Mr Hayes, my approach to this has to be
8 that absent hearsay evidence being given in the approved
9 Evidence Act manner, I have got to look at direct
10 evidence only.
11 Mr Hemming is coming from a different angle but the
12 angle I have to come from, and you may rest assured that
13 I will, is that hearsay evidence will cut no ice because
14 I cannot -- I can listen to it but I cannot take it as
15 being hard evidence unless it is backed up by hard
16 evidence.
17 If Mr Hemming says: I have heard that applications
18 for votes were filled in fraudulently, that gets me
19 nowhere. But if I am then presented with hard evidence
20 that this happened, that is a different kettle of fish.
21 MR HAYES: Then I will not proceed any further on this
22 because you have made your position very clear.
23 A. Which is correct.
24 THE COMMISSIONER: I suspect if you go through 7.1 to 7.16
25 a lot of what is in there Mr Hemming will say: I am
75
1 simply a recipient as leader of the Liberals which
2 I receive in good faith. I pass it on to the police or
3 the election office as the case may be, but I am not
4 there on the streets seeing small boys stealing
5 envelopes from letterboxes or people putting fire bombs
6 in pillar boxes and this sort of suggestion. He simply
7 gets the information and passes it on. How far that
8 takes me I think is obviously limited.
9 MR HAYES: Then I will not waste the court's time on it.
10 THE COMMISSIONER: I thought that might be a good
11 indication.
12 MR HAYES: Just move quickly to 13.4, if you would, and
13 13.5, I will read both to you:
14 "The Labour Party leader for Birmingham, Sir Albert
15 Bore, has been quoted as saying, 'As a candidate I am
16 allowed to apply for postal voting on your behalf,
17 collect the forms, have it delivered to my address,
18 fill it in for you, put it in together and deliver it to
19 the elections office. There is nothing illegal about
20 it, but it looks and feels wrong. That is why the
21 system needs to be looked at again. It is very
22 concerning the way the postal vote system is being
23 used."
24 Then:
25 "Such a statement condones such activity, arguing
76
1 that candidates completing postal vote forms and ballot
2 papers on behalf of voters is not unlawful."
3 Do you agree with 13.5? Are you saying that Sir
4 Albert Bore is actually condoning the allegations which
5 are being made by the petitioners?
6 A. Basically, yes. The question under 13.4 is whether that
7 is actually true in law. There was somebody, I believe,
8 who was convicted on Monday this week in Blackburn,
9 Lancashire as a result of filling in and signing postal
10 ballot applications and the like.
11 Behind all this issue here there is a substantive
12 issue, which is the nature of electoral procedure and
13 law in this country. There are questions as to what is
14 or what is not lawful, which are obviously questions the
15 police will not be expert in, and the fact that the
16 police may have made the wrong decisions from time to
17 time is not something that one can hold the police
18 particularly at the lower levels directly responsible
19 for. But there are substantial issues as to being very
20 clear as to what the law is and I do not think under
21 13.4 that is a true statement of what the law is.
22 Secondly, making such a statement in my view does
23 condone such activity. It is saying it looks wrong, but
24 it is not illegal. Now, there is an issue there to be
25 debated as to what the strict position of the law is.
77
1 I do not think it is that unclear and one of the things
2 I said to the police is that I found it very surprising
3 that things that were illegal in the north-west of
4 England were not illegal in Birmingham. However, those
5 are wider issues than necessarily directly what happens
6 in Aston.
7 THE COMMISSIONER: Mr Hayes, I have a feeling in the back of
8 my mind that the request for further information asks
9 for further particulars of these allegations.
10 Am I right?
11 MR HAYES: It did not take us very much further, from what
12 I recollect.
13 THE COMMISSIONER: I remember that somewhere it said this
14 came from a report in the Birmingham Post.
15 MR HAYES: It does. I have actually got the report. But
16 all it does is just quote exactly what Councillor Bore
17 says.
18 THE COMMISSIONER: It is an accurate verbatim --
19 MR HAYES: Yes, but the context is, in my respectful
20 submission, that he, like Mr Owen, has criticised the
21 Government for introducing a postal ballot system which
22 is open to abuse.
23 THE COMMISSIONER: Yes. I think the slight problem is, and
24 obviously it is a matter on which no doubt there will be
25 legal argument: if that is what Sir Albert is reported
78
1 as saying, of course he may have been misreported.
2 I think it may be argued that that is not an accurate
3 statement of the law.
4 Certainly, the first part of the statement is not
5 only inaccurate but I am sure Sir Albert would say that
6 he firmly believed that to be the correct position, but
7 if it is not the correct position and people have relied
8 on it to go out and do that, it may cause further
9 trouble. But I would be loath to drag Sir Albert into
10 the arena unnecessarily as I am sure he has better
11 things to occupy his time with.
12 It is a matter which I think somebody somewhere at
13 some stage has to consider. Because if wittingly or
14 unwittingly the leader of the council sets people on
15 a trail which may well be unlawful, then the consequence
16 and the ramifications may be considerable.
17 MR HAYES: Yes, but the essence and the context of what
18 he was saying was that the system is wrong. Of course
19 when one looks at what Mr Owen has been saying --
20 THE COMMISSIONER: It may be wrong but it may not be as
21 wrong as he suggests.
22 MR HAYES: But it is still wrong.
23 I really want to ask you now about the election
24 itself, Mr Hemming. There was a fetid air about this
25 election, was there not?
79
1 A. I would not say fetid is necessarily -- it was agitated
2 particularly and there were great concerns, a number of
3 my members had written to the Returning Officer to
4 express concerns about what was likely to go on. It was
5 not in isolation. Obviously the fact that the whole
6 council was being re-elected rather than a third put
7 a lot more pressure on.
8 Q. That is not really what I meant. This is at a time when
9 the Muslim community were feeling particularly
10 vulnerable because of the ramifications of the Iraq war.
11 That is right, is it not?
12 A. Or possibly in 2003. I think there was a similar
13 sentiment in 2003 to that of 2004.
14 Q. Yes, and across the country the Liberal Democrats were
15 making gains because the party policy was against the
16 war, that is right, is it not?
17 A. Yes.
18 Q. That is one of the factors, not the only factor. It is
19 a factor.
20 THE COMMISSIONER: Again, this is a question to which
21 I should know the answer, on day 9 of these proceedings.
22 Can I assume that Birmingham was, prior to the election,
23 Labour controlled?
24 A. The majority on the council -- it was a Labour
25 administration but they did not have a majority of the
80
1 seats.
2 THE COMMISSIONER: So they did not have a majority but it
3 was a Labour administration.
4 A. One Labour councillor had moved parties to us, which
5 took them down from 57 to 56. There were two People's
6 Justice Party councillors, 24 Liberal Democrats and the
7 Conservatives made the difference up to 117, which is,
8 I think, 35 but I have not done the maths.
9 THE COMMISSIONER: So in the new council, there are 120
10 members.
11 A. That is correct.
12 THE COMMISSIONER: Remind me as to how they split.
13 A. 53 Labour, 39 Conservative and 28 Liberal Democrats.
14 THE COMMISSIONER: Right. Nobody else.
15 A. No People's Justice Party and nobody else.
16 THE COMMISSIONER: So it is a Labour administration but
17 a minority government?
18 A. No, the previous administration was a minority Labour
19 administration. It is now a joint administration
20 between the Conservatives and Liberal Democrats.
21 That is how I am deputy leader of the Council, whilst
22 leader of the Liberal Democrats.
23 THE COMMISSIONER: Yes, of course. Thank you. That gives
24 me the picture. I have the information already, but
25 I had forgotten the exact make-up of the present
81
1 council.
2 MR HAYES: Every political party was doing the best they
3 could to get the most number of votes.
4 A. To some extent.
5 THE COMMISSIONER: That has really been true since ancient
6 Athens. One is also familiar with the fact that
7 certainly every election that has occurred in my
8 lifetime has been described as the "dirtiest election
9 ever". It is a cliche that comes out at every election.
10 Would you agree with that, Mr Hemming?
11 A. When you have three councillors in a ward, and this
12 applies in all parties, you may find that some work
13 harder when they are personally up for election than
14 when one of their colleagues is up for election, and
15 when you have all three up for election they work a lot
16 harder.
17 MR HAYES: Would you say this election was a particularly
18 dirty election?
19 A. In the sense of there being substantially more fraud,
20 yes, I would say that.
21 Q. What about the leaflets that went round the Muslim
22 community?
23 A. There have been debates about whether the issue of the
24 Iraq war was an appropriate issue to discuss within the
25 wards. There have been debates about that. Tip O'Neill
82
1 did say that all politics is local.
2 Q. I am going to show you some leaflets and I would greatly
3 appreciate your guidance. Let us just look at the first
4 page. This is for the record a colour leaflet with
5 a picture of Tony Blair with blood on his hands. "Vote
6 Labour", it says at the top. There are pictures of dead
7 babies.
8 A. That is not actually produced by the Liberal Democrats.
9 THE COMMISSIONER: Who is this produced by?
10 A. I do not know, but it is not produced by us.
11 MR HAYES: "Western forces liberating the Iraqi people by
12 torture and humiliation. Innocent civilians massacred
13 by Israeli democracy and thanks to the backing of UK and
14 the USA, innocent Iraqi babies burnt alive by coalition
15 smart bombs. The war on terror continues. Vote Labour
16 and we promise to continue our war on terror."
17 Are you saying that you had absolutely nothing to do
18 with that?
19 A. Well, I have not seen it before. I have no idea who
20 produced it.
21 THE COMMISSIONER: What you are saying is this is not an
22 official Liberal Democrats poster.
23 A. This is not an official Liberal Democrat poster, no.
24 THE COMMISSIONER: It is a deeply unpleasant document.
25 MR HAYES: It is not urging people to vote Liberal
83
1 Democrats, it is not urging people to vote Labour.
2 THE COMMISSIONER: Except in an ironic sense. It is urging
3 them not to vote Labour.
4 A. That is fair enough, but it is not something we
5 produced.
6 MR SUKUL: Sir, where is all this going to? The witness
7 says he knows nothing about it, he has never seen it.
8 What can he possibly say about it if he is seeing it for
9 the first time this morning?
10 MR HAYES: If my learned friend turns to page 2 his question
11 will be answered.
12 Have a look at page 2. There is a letter dated
13 17th May 2004 to you from Albert Bore:
14 "Dear John. Over recent times there has been little
15 upon which you and I have agreed and much more on which
16 we have had public disagreements - from policy
17 priorities, to spending plans, to the fact in Birmingham
18 is improving ...
19 "However, even with that backcloth, I was shocked to
20 see a Liberal Democrats publication for 'Aston, Newtown
21 and The Broadway.' This purports to have been published
22 by the Aston Liberal Democrats and gives an address of
23 144 Whitehead Road, Aston. I believe the content of
24 this leaflet was deliberately designed to cause
25 disharmony and racial unrest in our city, something
84
1 which I find totally abhorrent considering the pride I
2 thought we all took in the harmonious relationships
3 enjoyed by the various communities which live side by
4 side together, peacefully.
5 "As Leader of the Council, I am writing to you to
6 ask you to publicly disassociate yourself with this
7 leaflet and its contents and to condemn those who have
8 published it. I believe it is essential that you take
9 those steps so that the people of Birmingham can be sure
10 that none of the three major political parties who
11 represent this city will tolerate such irresponsible and
12 inflammatory publications. You may recall, when a
13 Conservative Member of the Council made different but
14 equally irresponsible comments which threatened peaceful
15 relations in the city, the Leader of the Conservative
16 Group was very quick to condemn such actions. I hope
17 you will act equally swiftly with a public
18 disassociation from the contents of this leaflet.
19 I look forward to confirmation from you that that is the
20 case."
21 Did you receive that letter?
22 A. Yes.
23 Q. Did you reply to it?
24 A. I do not remember.
25 Q. It is rather an important letter, is it not?
85
1 A. It is a publicity stunt that you get as usual. It did
2 not refer to this leaflet, by the way. I did receive
3 this letter.
4 THE COMMISSIONER: Can you remember the leaflet --
5 MR HAYES: I am just about to refer to that.
6 A. I do not think it was the subsequent leaflet.
7 THE COMMISSIONER: It is the next page, is it?
8 MR HAYES: It could be the next page.
9 A. No, I do not think it was the next page. I think it was
10 a completely different one. I still do not see what it
11 has to do with this election.
12 Q. It was not put in the bundle. It was this leaflet here.
13 (Handed). One for the witness.
14 THE COMMISSIONER: All I can say about the next document is
15 that it is unlikely to get them any votes among the
16 proof reading community.
17 MR HAYES: Let us have a look at this. This is Aston,
18 Newton and The Broadway, Liberal Democrats. June 10th.
19 There is a picture of Councillor Ayoub Khan. Naim
20 Saeed, he was a candidate, was he not, in this election?
21 A. They are all candidates apart from Charles Kennedy.
22 He was not standing in Birmingham.
23 Q. And Abdul Aziz?
24 A. He was standing in Birmingham. And Claire Short is not
25 a Liberal Democrat.
86
1 Q. No, she is Labour.
2 A. Ladywood actually is Aston, by the way, so it is
3 relevant.
4 Q. Yes.
5 "Labour MP predicts Labour will lose in Birmingham."
6 THE COMMISSIONER: Ms Short is the MP for the constituency
7 which covers this ward.
8 A. That is correct.
9 MR HAYES: At the bottom of the next page:
10 "Printed and published by Aston Liberal Democrats,
11 144 Whitehead Road Aston, Birmingham."
12 This document was published by your party?
13 A. That is correct.
14 Q. With your agreement?
15 A. I do not sign off all the leaflets.
16 Q. Let us have a look and see what is on the other side.
17 This is what --
18 THE COMMISSIONER: It is a lot less offensive document than
19 the first one you showed me.
20 A. I think it makes a valid point, that this is what Labour
21 and the Conservatives did to human rights in Iraq.
22 It is a statement of fact. These photographs came out
23 of the newspapers published in the UK.
24 MR HAYES: Let us see what this document says:
25 "This is what Labour (and the Conservatives) have
87
1 done to human rights in Iraq."
2 And there is a well-known and horrific picture of
3 someone being tortured on the left and humiliated on
4 the right.
5 THE COMMISSIONER: These are the Abu Graib pictures.
6 MR HAYES: Yes. Then it says:
7 "One year on ... we still say NO!
8 "Liberal Democrats still believe it was wrong for
9 Tony Blair to send British troops into Iraq."
10 THE COMMISSIONER: It is illustrated by a cartoon showing
11 President Bush operating Mr Blair as a puppet.
12 MR HAYES: "Since the start of the war, over 840 Coalition
13 soldiers have died - 59 of them British. Reliable
14 reports show that at a minimum 8,958 civilians have also
15 lost their lives."
16 Did you not think that that was a horribly offensive
17 leaflet to put through the doors of the Muslim
18 community, whose votes you wanted?
19 A. No. But I cannot see where this is relevant to the
20 election petition.
21 Q. The way it is relevant comes to the next document, which
22 is on 3. Again, Aston ward, Liberal Democrats. Who is
23 this published by? Ah, "Promoted by and published by
24 Mr Ayoub Khan on behalf of the Liberal Democrats:
25 "Time to kick out 20 years of Labour rule tomorrow."
88
1 Well, that is fair does.
2 "Can you trust these types of candidates to run your
3 city? Citizen attacked by Aston Labour Councillor in
4 Public House."
5 And then:
6 "Labour candidate arrested for postal ballot fraud."
7 That is a lie, is it not?
8 A. Well, Shafaq Ahmed was arrested for carrying a load of
9 postal ballots.
10 THE COMMISSIONER: Who is this gentleman?
11 A. He was not in Aston.
12 THE COMMISSIONER: Was he a candidate?
13 A. He was a Labour candidate for Bordesley.
14 THE COMMISSIONER: So he is one of the Bordesley --
15 A. One of the Bordesley Three.
16 THE COMMISSIONER: I do not think we had evidence of him
17 being arrested, did we, Mr Brodie?
18 MR BRODIE: We had evidence of the police speaking to him
19 and him being in possession of postal ballot papers.
20 THE COMMISSIONER: These are the seven papers of which
21 we have a police record?
22 MR BRODIE: Yes.
23 THE COMMISSIONER: I do not recall him being arrested.
24 He may have been, but he was certainly not charged.
25 MR BRODIE: We do not know whether or not he was arrested.
89
1 We do know he was not charged.
2 MR HAYES: You see, you had been running the whole midnight
3 mystery of votes, which is the warehouse incident, in
4 other Liberal Democrat publications, had you not?
5 A. Obviously, because you have them.
6 Q. This is Aston ward. Is there not a subliminal message
7 there that it is one of the Aston people who has been
8 arrested for ballot fraud?
9 A. It does not say it was an Aston candidate, and there is
10 an element -- this does come down to this point, that
11 you do try to manage a standard so all parties do have
12 approval processes by which they determine which people
13 should be allowed to stand and which people should not
14 be allowed to stand. Regardless -- even if, for
15 instance, it was a fact that there was an error of fact
16 in this leaflet, I do not see what it has to do with the
17 election petition.
18 Q. What I suggest to you is that you and your party would
19 do anything, and did do anything, to try and grub
20 together some votes to win?
21 A. That is not actually true. What happened was that in
22 a number of wards, not just Aston but also in my ward,
23 we reported articles and photographs which were printed
24 in the Sunday Times, the Daily Mirror and various other
25 newspapers and appeared on the television and said to
90
1 people, "This is what the Labour and the Conservative
2 Party have done to human rights in Iraq."
3 You can argue about whether Iraq is relevant to
4 local elections. Tip O'Neill, who said all politics is
5 local, would argue the case. The fact that the Health
6 Service and the Government intend cutting many of the
7 number of beds may not be directly within the remit of
8 the Local Authority, but it is pertinent to an election
9 campaign.
10 Q. Never mind the Iraq War. What about Karen Harwood?
11 A. Who?
12 Q. You know Karen Harwood, do you not? Have you not heard
13 of Karen Harwood?
14 A. Was she the independent in Aston?
15 Q. Yes.
16 A. Okay.
17 Q. The next -- (inaudible: overspeaking).
18 I will read it out to you:
19 "Outcry Over Polling Con, June 2nd 2004, by Neil
20 Elkes of the Evening Mail.
21 "A city election candidate was today accused of
22 conning voters after urging people to back her political
23 rivals.
24 "Questions now being asked in the council after it
25 emerged that an independent candidate for Aston, Karen
91
1 Harwood, plastered her apartment windows with Liberal
2 Democrats posters. The move has prompted Labour and
3 Conservative leaders to accuse the Lib Dems of dirty
4 tricks and muddying the water for voters in the
5 hotly-contested inner city seat.
6 "With just days to go until polling, a time when all
7 candidates are desperate for publicity, Ms Harwood has
8 been elusive. The Evening Mail has made several visits
9 and made and posted letters to her published home, 10
10 Christchurch, a flat in a converted church at the
11 junction of Victoria Road and the A34 island, but had no
12 reply.
13 "Liberal Democrats posters are clearly displayed in
14 the windows. Conservative leader Councillor Mike Whitby
15 said, 'For an independent candidate to urge people to
16 support someone else trivialises the election process.
17 It is perverse to say the least.'.
18 "It was 'highly suspicious' that a candidate would
19 ignore approaches from the press ahead of the June 10
20 election. Labour's Councillor Tony Kennedy is certain
21 that it is an election ploy by the Lib Dems. 'It is
22 a conspiracy to draw votes away from Labour by
23 pretending they are switching to an independent rather
24 than another party.'
25 "He said that as all the Labour and Lib Dem
92
1 candidates had names of Asian origin, Labour's
2 disillusioned white voters might feel comfortable
3 switching to an independent candidate with an English
4 name.
5 "Liberal Democrat leader, Councillor John Hemming,
6 today said that he had no knowledge of Ms Harwood or her
7 Liberal Democrat posters. 'Everyone has three votes in
8 this election, so it is possible for an independent
9 candidate to urge her supporters to give their other two
10 to the Liberal Democrats. They would not say vote once
11 for us and nobody else.'.
12 "A source at the City Council election office said
13 that it was 'weird' and unheard of for a candidate to
14 campaign for someone else, although not necessarily
15 against any election regulations."
16 Firstly, did you say those -- have the press got it
17 right?
18 A. Yes, the press have got that right. I am not saying
19 that they have quoted correctly what everybody else
20 said, but they have quoted me correctly.
21 THE COMMISSIONER: Is this a convenient moment, Mr Hayes?
22 MR HAYES: Yes.
23 THE COMMISSIONER: We will say five past two. Whether I am
24 to be much assisted by this independent lady urging
25 people to vote Liberal Democrat has not necessarily
93
1 become apparent at the moment.
2 (1.10 pm)
3 (The Short Adjournment)
4 (2.05 pm)
5 Legal Discussion
6 THE COMMISSIONER: Have you sorted out the problem of
7 Mr Hemming's second statement?
8 MR COPPEL: No, sir.
9 THE COMMISSIONER: In which case we shall not put it in.
10 MR COPPEL: My learned friend presses it and we consider
11 that a ruling has to be made.
12 THE COMMISSIONER: Given that leave is required to deal with
13 it out of time, if it has not been possible to reach
14 a modus vivendi then I suppose I shall have to give
15 a ruling, but that means I would have to read the
16 statements.
17 MR COPPEL: De bene esse we do not have any difficulty with
18 that.
19 THE COMMISSIONER: Do you have a copy?
20 MR SUKUL: Sir, I am not so sure of the Latin but I can tell
21 you this. There has been something like a 90 per cent
22 meeting of minds between Mr Coppel and I. In fact the
23 statement that was in court before has been excised
24 substantially and a new version printed. There are but
25 two short paragraphs --
94
1 THE COMMISSIONER: Which are contentious?
2 MR SUKUL: And I am content and indeed I canvassed this with
3 my learned friend --
4 THE COMMISSIONER: Have you also spoken to Mr Brook about
5 this because he took grave exception to aspersions about
6 the police.
7 MR SUKUL: We spoke and we have no problems with that
8 whatsoever.
9 MR BROOK: I think we are in agreement that any aspersions
10 against the police are not for this tribunal. There are
11 other ways of making allegations against the police.
12 THE COMMISSIONER: Indeed there are.
13 MR SUKUL: May I point you to paragraphs 2 and 4, sir?
14 THE COMMISSIONER: I will read this simply without
15 prejudice, as they say.
16 MR COPPEL: Sir, can I ask you to look at version 1 because
17 that impinges on your ruling on version 2.
18 THE COMMISSIONER: Right. (Pause)
19 Assuming I have them in the right order ...
20 Paragraph 3 seems to have got longer rather than
21 shorter. Am I right or have I missed something?
22 MR COPPEL: Paragraph 3 in version 2 is shorter rather than
23 longer. It is now --
24 THE COMMISSIONER: You are quite right. (Pause). In the
25 middle of page 2 is a section that was in the original
95
1 paragraph 7. Should that be simply out?
2 A. Just delete that because it has moved to paragraph 5.
3 It should have been deleted where it started from.
4 THE COMMISSIONER: I see. Then paragraph 5 is the long
5 list, which I assume is pretty well identical. 6 is the
6 old paragraph 15. I can see what has gone and what
7 remains. Of what remains, first of all can I ask
8 Mr Brook to confirm: are you reasonably content with
9 what remains?
10 MR BROOK: I am, sir.
11 THE COMMISSIONER: All matters relating to the police have
12 been excised?
13 MR BROOK: Yes.
14 THE COMMISSIONER: Mr Coppel, you on the other hand are not
15 happy. What are the ones to which you object?
16 MR COPPEL: Numbered paragraph 2 and the first paragraph of
17 numbered paragraph 4. (Pause)
18 THE COMMISSIONER: Is not the problem with both 2 and 4
19 this, that there may well be different perceptions as to
20 the amount of power a Returning Officer has to deal with
21 fraud? The evidence certainly before me in
22 Bordesley Green and the legal position, as we have
23 examined it in respect of Bordesley Green, indicates to
24 me, subject of course to further argument in this case,
25 that the Returning Officer has almost no duty and almost
96
1 no powers to prevent fraud.
2 Is that a fair summary, Mr Coppel?
3 MR COPPEL: It is a fair summary in relation to their powers
4 but that is not to say they are not concerned.
5 THE COMMISSIONER: One would assume that any Returning
6 Officer would be concerned by allegations of fraud.
7 MR COPPEL: And follow through those concerns with
8 correspondence and what have you.
9 THE COMMISSIONER: Yes. But if push comes to shove the
10 actual power to do anything about it is very limited?
11 MR COPPEL: In terms of statutory powers to do anything,
12 that is correct.
13 THE COMMISSIONER: So far as, for example, the first part of
14 paragraph 4 is concerned, which details certain
15 proposals that Mr Hemming put to Mr Owen, I have no wish
16 at this stage to enquire whether they were or were not,
17 but if they were this would not be something within
18 Mr Owen's remit.
19 MR COPPEL: Sir, that is correct, but there are freestanding
20 allegations which are made against the Returning Officer
21 in relation to generally lax procedures on the part of
22 the Returning Officer. The statement which is made in
23 paragraph 2 tends to be supportive of that insofar as it
24 suggests that the Returning Officer was generally
25 indifferent to these matters.
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1 At any rate, they are not matters which have formed
2 any part of the petition in this matter, the petition
3 which we have had now before us for eight months. They
4 are not matters upon which the Returning Officer, for
5 that reason, has adduced evidence. If it is to stand in
6 Councillor Hemming's witness statement we want an
7 opportunity to adduce evidence to respond to it, but in
8 any event we do not see why it is here in the first
9 place. It does not assist in the resolution of this
10 matter. It should be out and it is prejudicial to
11 of course the Returning Officer.
12 THE COMMISSIONER: It is only prejudicial to the extent that
13 I might consider it prejudicial.
14 MR COPPEL: No, sir, it is prejudicial because it goes on
15 the public record, people read it, and if I do not take
16 steps to answer it in terms of the evidence from people
17 from the Returning Officer's side, then it stands. This
18 is a sensitive office which is occupied by my client.
19 She has to tread a very fine balance and matters like
20 these are extremely unhelpful to the performance of her
21 office.
22 THE COMMISSIONER: Yes, but I have to look at this, do
23 I not, in the context of what I know is going to be
24 Mr Owen's general evidence as to his awareness from way
25 back of the possibilities of fraud and of the steps that
98
1 he and his fellow election experts have taken to try and
2 minimise it at a national and local level, and the lack
3 of response to their concerns that has sometimes been
4 shown. All that is currently in Mr Owen's statement as
5 it was in Bordesley Green.
6 MR COPPE