Aston and Bordesley Green Vote Fraud Trial

Monday 7th March 2005

1
1 Monday, 7th March 2005
2 (10.30 am)
3 THE COMMISSIONER: Mr Sukul? Your witness was in the middle
4 of giving evidence.
5 Legal Discussion
6 MR SUKUL: May I bid you good morning and my colleagues and
7 the court a very good morning.
8 May I raise three very brief matters. Firstly, and
9 not necessarily in the order of importance, Mr Ayoub
10 Khan who sits with me on my left has been with us for
11 some time and his name has been mentioned with some
12 regularity in the course of the proceedings.
13 Mr Ayoub Khan has expressed a desire to give
14 evidence in this case and over the course of the weekend
15 he has prepared a witness statement. I am guided by
16 the indication you gave when last we met on Friday that
17 any course of action can only happen with your leave and
18 permission.
19 It is this application that I seek to make before
20 you this morning, that the witness statement be admitted
21 so that Mr Khan may give evidence.
22 THE COMMISSIONER: Has the witness statement been shown to
23 the other counsel?
24 MR SUKUL: The statement is here but it has only just been
25 copied.
2
1 THE COMMISSIONER: In which case let us delay this until
2 they have had a chance to see the statements as they may
3 well object.
4 MR SUKUL: Sir, the point is this. It is more for my
5 personal convenience than anything else. There will
6 come a point in time when I have to address the court in
7 respect of the handwriting expert's report. I was
8 wondering, and I have taken some guidance from my
9 learned friend Mr Brodie in this respect, as to what
10 happened in the Bordesley Green petition.
11 THE COMMISSIONER: In the Bordesley Green petition nobody
12 required the handwriting expert to attend and in those
13 circumstances his evidence was read out by Mr Brodie for
14 the petitioners, but it matters not whom.
15 If anybody does require the handwriting expert to
16 attend --
17 MR HAYES: No, sir.
18 THE COMMISSIONER: In which case you are going to have an
19 easy ride on this one, Mr Sukul.
20 Mr Brook?
21 MR BROOK: No, sir.
22 THE COMMISSIONER: So the principle is that his evidence is
23 read at the appropriate time.
24 MR SUKUL: Indeed. May I mention this, and again I need
25 your guidance on it. What I am proposing as far as
3
1 reading out the handwriting expert's report is this.
2 I was simply going to look and read the conclusion and
3 flesh it out a little bit.
4 THE COMMISSIONER: Possibly the way to cut this short is at
5 some private and convenient moment you get into a huddle
6 with Mr Brodie and he will explain to you precisely how
7 he did it, which was perfectly acceptable to me, and
8 Mr Hayes can do likewise because he is putting in
9 a report and you can work out a modus vivendi between
10 you. That is the easiest way.
11 MR HAYES: What I was going to suggest was that my learned
12 friends and I put our heads together and we come up with
13 a series of admissions on handwriting.
14 THE COMMISSIONER: That seems to be very sensible. That
15 would save everybody a lot of time. Good suggestion,
16 Mr Hayes. It is a matter for you, gentlemen. Put your
17 heads together. I know Mr Coppel is neutral on these
18 matters. You can easily work out a way.
19 MR SUKUL: Thirdly, the third matter is this. I was hoping
20 to call this morning, to give evidence, Mr Tariq
21 Hussain, whose name is mentioned on the list of
22 witnesses.
23 There was an incident last night that caused the
24 local police to attend in Whitehead Road. Soon after
25 10 o'clock some men wearing balaclavas were present and
4
1 it seems that Mr Hussain, who lives nearby, has been so
2 intimidated by the incident that he has sent a message
3 to me saying that he simply does not want to come to
4 court to give evidence.
5 I am really in the hands of my friends and the court
6 so far as that is concerned.
7 THE COMMISSIONER: The answer to that is, you must consider
8 your position on that, but if there is evidence before
9 me to suggest that this witness is intimidated then
10 of course his statement can be admitted.
11 So I think the answer is that you will have to
12 activate that if it is not agreed that his statement can
13 be read. That said, can I just have a look at this
14 gentleman's statement.
15 MR SUKUL: 339, sir. (Pause)
16 THE COMMISSIONER: This is a second witness of the events of
17 the evening of 8th June.
18 MR SUKUL: Sir, yes.
19 THE COMMISSIONER: Fine. Well, the answer to that is
20 consider that line of approach, Mr Sukul, and I will
21 hear you later.
22 MR SUKUL: Those are the matters, I am very grateful.
23 MR HAYES: On what my learned friend has addressed you on,
24 I would be grateful if these matters were not left
25 hanging in the air because to make a suggestion that men
5
1 in balaclavas and intimidation -- of course we do not
2 have a jury but there are people whose reputations are
3 at stake.
4 THE COMMISSIONER: As long as everyone remembers we do not
5 have a jury, a fact that may possibly have got blurred
6 on Friday.
7 MR HAYES: I am a guilty party.
8 THE COMMISSIONER: Yes. All I was doing is making a general
9 observation for those to whom it might apply.
10 I quite agree. Clearly I am not, on what is phoned
11 through to those instructing Mr Sukul, I am not going to
12 be coming to any conclusion that anybody in this court
13 has been going round encouraging men to go round in
14 balaclava helmets intimidating witnesses.
15 On the other hand, if somebody has, it is something
16 we might actually look into, so I think Mr Sukul had
17 better look a little further into that and if you are in
18 a position to give me more on that later in the day,
19 Mr Sukul, I will not invite it now, see what you can do.
20 MR SUKUL: Sir, yes.
21 THE COMMISSIONER: You were just about to cross-examine the
22 gentleman who is giving evidence. Mr Iqbal.
23 MR COPPEL: Sir, you should have received a second witness
24 statement from Alison Harding. I have distributed
25 copies. I appreciate that my learned friends have not
6
1 had an opportunity, but I will ask at the lunchtime
2 adjournment for that to be introduced.
3 THE COMMISSIONER: I have not read it, I have it.
4 MR COPPEL: Secondly, I did mention on Friday the issue
5 about agents of the Labour Party respondents and that if
6 a list were to be prepared, as in the Bordesley Green
7 matter, that should be done sooner rather than later to
8 avoid delay. I simply reiterate that request because
9 I am conscious that time is passing.
10 THE COMMISSIONER: That is true. So far, I would not wish
11 to encourage or discourage anybody from wanting to
12 include or not include anybody. It seems to me, though,
13 that in view of the incident in the warehouse that the
14 fourth person alleged to be there present, I think it is
15 Mr Zulfikar Khan, I think he must consider himself at
16 least at risk of being one of those named, if I come to
17 adverse conclusions in respect of that meeting.
18 But as far as that is concerned I am at the moment
19 not aware of anybody in, as it were, the respondents'
20 camp who is currently on risk of a section 158/160
21 naming.
22 Does that cause you any problems, Mr Hayes?
23 I appreciate you have your client, Mr De Mello has his
24 clients, and of course you are not briefed by anybody
25 else. But those behind you may obviously wish to pass
7
1 that on to the gentleman concerned who is not currently
2 a witness.
3 MR HAYES: I may have to call him as a result of what
4 you have said, sir, or certainly make an application.
5 THE COMMISSIONER: Yes. He may wish to be heard. Whether
6 during the course of the evidence or on the subsequent
7 hearing is another matter.
8 MR HAYES: Sir, one matter that causes me a little bit of
9 concern. I was not here for Bordesley Green but I have
10 heard of this name and shame.
11 THE COMMISSIONER: Are you aware of how it works?
12 MR HAYES: No.
13 THE COMMISSIONER: Right. You need not look this up but the
14 Representation of the People Act, section 158, obliges
15 me to -- I will go back to 144 and 145. 145:
16 "At the conclusion of the trial of the petition ...
17 Local Government Act, the election court should
18 determine whether the person who was actually complained
19 of, or the person who was duly elected, whether the
20 election was void, and what the determination should
21 be."
22 Then:
23 "3. Where a charge is made in the petition of any
24 corrupt or illegal practice having been committed at the
25 election the court shall in addition to giving
8
1 a certificate, i.e. a judgment, at the same time make
2 a report in writing to the High Court as required by 158
3 and 160, and also stating whether any corrupt practices
4 have or whether there is reason to believe that any
5 corrupt practices have extensively prevailed in the
6 election in the area of the authority for which the
7 election was held or in any electoral area of that
8 authority's area."
9 Though I can make a special report as to matters
10 arising at trial, and so on and so forth.
11 158, if I come to the conclusion that there are
12 corrupt or illegal practices, and forgery of votes and
13 voting documents is clearly within that category, then
14 under section 158:
15 "The report of an election court under section 145
16 shall state whether any corrupt or illegal practice has
17 or has not been proved to be committed by or with the
18 knowledge and consent of any candidate in the election
19 and the nature of the corrupt or illegal practice.
20 "3. The report shall also state whether any of the
21 candidates has been found guilty by his agents of any
22 corrupt or illegal practice in relation to the
23 election."
24 MR COPPEL: That is 160, sir.
25 THE COMMISSIONER: 159 visits all sorts of terrible
9
1 consequences on candidates who are guilty of corrupt or
2 illegal practices.
3 160:
4 "The report under section 145 shall state the names
5 of all persons, if any, who have been proved at the
6 trial to have been guilty of any corrupt or illegal
7 practice. In the case of someone who is not a party to
8 the petition and who is not a candidate on behalf of the
9 officers claimed by the petition, the election court
10 shall first give notice to be given to him and if he
11 appears in pursuance of the notice shall give him an
12 opportunity of being heard by himself and recorded
13 evidence in his defence to show why he should not be
14 reported."
15 And the rest of the section sets out all sorts of
16 dire consequences.
17 So essentially, if I came to the conclusion that
18 there was a prima facie case that Mr X has been guilty
19 of a corrupt or illegal practice as it might be, forging
20 declarations of identity and ballot papers, I must give
21 Mr X an opportunity to be heard. If Mr X appears and at
22 the end of the day I am still convinced that he is
23 guilty of a corrupt or illegal practice, then it is not
24 in my judgment but in my report to the High Court
25 I say: Mr X was guilty of corrupt or illegal practices,
10
1 and the consequences are then visited on Mr X that he is
2 in effect disqualified from standing for a period,
3 disqualified from voting for a period, although he is
4 subject to no criminal charges, nor is my finding any
5 evidence against him in a Criminal Court.
6 MR HAYES: Sir, may I put down a marker that I may wish to
7 address you on the compatibility of those sections with
8 Article 6 of the European Convention. It may not arise,
9 obviously I am going to have to do a little research,
10 but my criminal court instincts, the bells are beginning
11 to ring that there might be a problem. There may not
12 be.
13 THE COMMISSIONER: If you wish to argue that the
14 Representation of the People Act 1983 is contrary to the
15 Convention of Human Rights, then --
16 MR HAYES: No, no, certain sections of it might be.
17 THE COMMISSIONER: That is fine, though I suspect that that
18 argument might have to be conducted in a higher court.
19 MR HAYES: But I would have to canvass it --
20 THE COMMISSIONER: You would have to canvass it before me,
21 and I would have to come to a conclusion as to whether
22 the naming and shaming ... So far as the candidates are
23 concerned, you might have a little difficulty with that
24 because the candidates are parties to the election.
25 MR HAYES: And therefore they have a full defence and plenty
11
1 of notice. It is the people who do not have adequate
2 notice.
3 THE COMMISSIONER: Who currently you do not represent. So
4 they must take their own advice. But of course it was
5 discussed and it seems to be common ground in the
6 Bordesley Green matter that anyone who wishes to attend
7 by a lawyer has a right to do so even though the statute
8 technically read would mean he would have to do it
9 himself.
10 But clearly under Article 6 he would be entitled to
11 turn up and be represented but otherwise, as he has
12 a right to be heard and call evidence, the problem is
13 not Article 6.
14 MR HAYES: Perhaps.
15 THE COMMISSIONER: Right, Mr Hayes.
16 MR DE MELLO: Just two things in relation to the last point,
17 sir.
18 As far as the last point is concerned, if you are
19 minded to identify a person who might have been called
20 to give evidence before you, then would you please alert
21 us if you are also minded to treat that person as
22 meaning Afzal's agent, potentially, so that we can then
23 decide how to deal with that issue.
24 THE COMMISSIONER: Yes. That is not a matter for me, it is
25 a matter for the petitioners. If the petitioners allege
12
1 that somebody is Mr Afzal's agent then that has to be
2 said.
3 MR DE MELLO: That has to be said otherwise I might just be
4 quiet and say nothing and the inference would be drawn.
5 THE COMMISSIONER: On the other hand, I think that if and to
6 the extent it is established that people forged votes,
7 the result of which was that votes were cast for
8 particular candidates that absent forgery may not have
9 been cast for those candidates, clearly there is
10 evidence there on which a court would be entitled to
11 conclude that those people were not, as it were,
12 disinterested vote riggers, that they were people who
13 were acting on behalf of the candidates.
14 Although I fully take on board what you say,
15 Mr De Mello, but there comes a point on the
16 practicalities where, as it were, there is something
17 which calls for an answer.
18 MR DE MELLO: And finally, sir, if I could please ask my
19 learned friend Mr Sukul to consider after this witness
20 is heard whether he intends to maintain the position
21 that Tariq Hussain will not be coming to give evidence,
22 I say this simply because then it will enable me to
23 cross-examine the second witness on matters which
24 I otherwise would have put to Tariq Hussain, and if
25 Tariq Hussain does not come to give evidence I might
13
1 lose that opportunity to cross-examine.
2 THE COMMISSIONER: I think it would be better at this stage
3 for an abundance of caution to assume that Tariq Hussain
4 is not coming. If he does come then there may be
5 a certain amount of duplication but I think that is the
6 sensible course.
7 You are still on oath. Mr Hayes, you are going to
8 show him some documents.
9 I have a document of which the first is
10 a declaration of identity 2954.
11 ASIF IQBAL (continued)
12 Cross-examination by MR HAYES (continued)
13 MR HAYES: Sir, yes. We start off with ballot paper number
14 002954. That should be on the top. Mr Iqbal, could you
15 see that?
16 A. Yes.
17 Q. All I want you to do is answer some simple questions.
18 That is your name on the signature of witness, is it
19 not?
20 A. That is correct.
21 Q. That is the name of the witness and your address?
22 A. Yes.
23 Q. There is a signature of the voter?
24 A. Yes.
25 Q. Did you write that?
14
1 A. No, I did not.
2 Q. Did you witness that person signing it?
3 A. Yes, I did.
4 Q. Can we turn to the next page, please, 2954 at the top.
5 Have you seen this form before, apart from me putting it
6 in front of you?
7 A. No.
8 Q. Have you written or signed anything on this piece of
9 paper?
10 A. No.
11 Q. We move on now to the next ballot paper, 002955. Again,
12 signature of witness, part 2. Is that you?
13 A. Yes.
14 Q. Is that your address?
15 A. Yes.
16 Q. Signature of voter, did you write that?
17 A. No, no I did not.
18 Q. Did you witness the voter signing that?
19 A. Yes.
20 Q. 2955, again, have you seen this apart from today?
21 A. No.
22 Q. Did you write on this piece of paper or sign this piece
23 of paper?
24 A. No.
25 Q. Thank you. Move now to ballot paper 002956. Part 2.
15
1 Is that your signature?
2 A. Yes.
3 Q. Name of witness is you?
4 A. Yes.
5 Q. Signature of the voter, did you write that?
6 A. No, I did not.
7 Q. Did you witness?
8 A. Yes. I did witness.
9 Q. Turn the page, 2956. Did you write anything on this
10 piece of paper?
11 A. No.
12 Q. Did you sign anything?
13 A. No.
14 Q. Is this the first time you have seen it?
15 A. Yes.
16 Q. We move now to ballot paper 002957. Again, part 2.
17 Is that your signature?
18 A. Yes.
19 Q. Is that your address?
20 A. Yes.
21 Q. Did you write the signature of the voter?
22 A. No.
23 Q. Did you witness him --
24 A. Yes.
25 Q. -- sign?
16
1 A. Yes.
2 Q. Next page, 2957. Apart from today, have you seen this
3 piece of paper before?
4 A. No.
5 Q. Have you written on it or signed it?
6 A. No.
7 Q. I am obliged.
8 Sir, I have just been handed a number of
9 applications to vote by post, the relevance of them
10 I really do not know.
11 THE COMMISSIONER: By whom have you been handed them?
12 MR HAYES: I do not know, they suddenly just appeared.
13 Might this witness be cross-examined by somebody else
14 and I could take instructions?
15 THE COMMISSIONER: You have one more document to do?
16 MR HAYES: I do not know.
17 THE COMMISSIONER: You have one more document to do in your
18 clip.
19 MR SUKUL: I have one more.
20 THE COMMISSIONER: I thought you had 2959.
21 MR SUKUL: 2959, yes.
22 THE COMMISSIONER: I am not sure we have had 2958. No,
23 there is not a 2958 but there is a 2959. Next to last
24 document and the last document. You have not put those.
25 MR HAYES: I do not have them.
17
1 THE COMMISSIONER: Do you have a document, which is the
2 declaration of identity 002959?
3 A. Yes.
4 THE COMMISSIONER: Is that your signature?
5 A. Yes.
6 THE COMMISSIONER: Did you sign for the voter?
7 A. No, I did not.
8 THE COMMISSIONER: Could you look at the one next to that,
9 which is the application to vote by post. Is any part
10 of that you?
11 A. No.
12 THE COMMISSIONER: That completes that clip of documents.
13 Subject to raising any matters that you have been
14 passed from behind, is that your cross-examination?
15 MR HAYES: It is, sir.
16 THE COMMISSIONER: Mr De Mello.
17 Cross-examination by MR DE MELLO
18 MR DE MELLO: Am I right in assuming that out of your
19 brothers you are the most assertive and articulate of
20 them? Would you accept that?
21 A. Just to point out, I do not have my witness statement in
22 front of me.
23 THE COMMISSIONER: Perhaps you ought to have that. They are
24 in mauve files. We need file 2. They are files of that
25 colour.
18
1 MR DE MELLO: Did you help your brothers, who are the
2 petitioners, draft the election petition?
3 A. No.
4 Q. Were you shown the petition before it was served?
5 A. No.
6 Q. Have you seen the petition at all?
7 A. When?
8 THE COMMISSIONER: At any time.
9 A. Yes, I have seen the petition.
10 MR DE MELLO: And you have read it?
11 A. Briefly.
12 Q. And you accept the contents of the petition as being
13 fairly accurate?
14 A. I believe so, yes.
15 Q. In June or May of 2004, were you or any of your brothers
16 acting as election agents for Ayoub Khan?
17 A. Not that I know of, no.
18 Q. Did you help him with his election in the Aston ward?
19 A. A little bit. I was a candidate in Ladywood and I spent
20 my time in Ladywood, most of my time, canvassing and
21 working in that area.
22 Q. We understand from the cross-examination earlier this
23 morning that you completed the DOI forms, which --
24 A. What forms?
25 THE COMMISSIONER: DOI, declaration of identity.
19
1 MR DE MELLO: And that was in respect of the Aston ward.
2 A. I believe so, yes.
3 Q. But do you accept that you helped in his campaign
4 together with your other brothers?
5 A. Yes, I helped in the campaign at times. But as I said,
6 I spent most of my time in Ladywood.
7 Q. Right. As a historical interest, Islam, one of the
8 councillors, polled 3,794 votes. Councillor Afzal
9 followed him with 3,606, Councillor Kazi with 3,548.
10 All three Labour candidates followed then by Abdul Aziz,
11 the Labour Liberal Democrat, with 3,034 votes. That is
12 right, is it not?
13 A. Yes, I cannot recall, but if that is what it was then
14 that is what it was.
15 Q. Do you accept that the general perception held amongst
16 the Liberal Democrat candidates was that the Labour
17 candidates for Aston were from different ethnic groups
18 representing different ethnic groups and did not trust
19 each other?
20 A. The general perception of?
21 Q. Within the Liberal Democrat candidates.
22 A. I cannot answer for the Liberal Democrat candidates,
23 I am afraid.
24 Q. Can I ask you, since I am not sure if your brother Tariq
25 Hussain is going to come here, to look at the petition.
20
1 I am not certain where it appears in the documents.
2 THE COMMISSIONER: Volume 1, page 1.
3 MR DE MELLO: 14.1.
4 THE COMMISSIONER: 14.1 is on page 9.
5 MR DE MELLO: If you would please turn to paragraph 14.2.
6 A. Yes, I see that paragraph.
7 Q. Do you now accept at that time, in May and June of 2004,
8 that the general perception was that the Labour
9 candidates for Aston were from different ethnic groups
10 and did not trust each other?
11 THE COMMISSIONER: Different ethnic groups from each other?
12 MR DE MELLO: And did not trust each other. I am reading
13 out what is cited in paragraph 14.2.
14 THE COMMISSIONER: Let us deal with this in stages. Did you
15 believe that the three candidates in the Aston
16 Labour Party were from different ethnic groups from each
17 other?
18 A. Yes.
19 THE COMMISSIONER: How many groups? Put some flesh on the
20 bones. What are we talking about?
21 A. I know that Nazrul Islam represents the Bangladeshis.
22 THE COMMISSIONER: And the other two?
23 A. Pakistani and Indian, I believe. Mohammed Kazi is
24 Indian and Mohammed Afzal is of Pakistani origin.
25 THE COMMISSIONER: But can I take it from their names that
21
1 they are all Muslim?
2 A. Yes, I would say so.
3 THE COMMISSIONER: But the families are from different parts
4 of the sub-continent?
5 A. Yes, I would say that.
6 THE COMMISSIONER: Did you have a belief, is the next part
7 of the question, that because of this the candidates did
8 not trust each other.
9 A. Yes, perhaps there was a belief.
10 THE COMMISSIONER: That was your belief.
11 A. Yes, I would say that.
12 THE COMMISSIONER: Does that answer your question?
13 MR DE MELLO: Yes.
14 I am told that Naser Iqbal, one of the witnesses,
15 may be present and unwittingly is in court. Perhaps
16 Mr Sukul might wish to ...
17 Continuing, sir.
18 MR SUKUL: If I can mention to counsel, Mr Iqbal is
19 a petitioner.
20 THE COMMISSIONER: You are quite right, Mr Sukul.
21 MR DE MELLO: Do you also accept that Councillor Islam,
22 Councillor Afzal and Councillor Kazi each ran a separate
23 and distinct campaign to woo the voters from the
24 respective communities: the Bangladeshis, the Pakistanis
25 and the Indians?
22
1 A. I cannot make any comments about how they undertook
2 their campaign. As I said, I was in Ladywood most of
3 the time, so you should ask them that yourself, I guess.
4 Q. Did you know that in May of 2004 Naim Ahmed instituted
5 an election petition in the High Court referred to by my
6 learned friend Mr Hayes; you were present in court?
7 A. No.
8 Q. You did not know about this, in May of 2004?
9 A. No.
10 Q. And am I right in suggesting that your brother Ayoub
11 Khan works for a firm of solicitors who are in fact part
12 of the team in court today?
13 A. Yes.
14 Q. In June of 2004, just before the elections had taken
15 place, did you or your brother Ayoub Khan or any other
16 brothers discuss the possibility of instituting an
17 election petition against the Labour councillors in the
18 event that the Liberal Democrats did not get into the
19 position in the Aston ward?
20 A. Not that I know of.
21 Q. You do not know?
22 A. I cannot ...
23 Q. But are you able to tell me how it is that within ten
24 days of the election on 11th June 2004, how it is that
25 a petition was lodged so soon after, on 22nd June 2004;
23
1 are you able to assist?
2 MR SUKUL: I wonder if I might mention this. The timescale
3 of the final petition following the close of polls,
4 indeed the reading of the result I think is 20 or 21
5 days, I cannot remember. I do not know whether or not
6 this witness is in a position to deal with the date on
7 which the petition was filed, bearing in mind what the
8 statute says.
9 THE COMMISSIONER: Do I have a date for the petition? I am
10 sure I do, but where is it? I have a completely
11 unreadable High Court stamp on the front.
12 The petition is said to be 23rd June so that is just
13 under two weeks after the election.
14 MR SUKUL: Sir, yes.
15 MR DE MELLO: I was mistaken on the date, it is indeed 23rd.
16 You told my learned friend Mr Hayes that you went to
17 Witton Road on 8th June?
18 A. Yes.
19 Q. Because you had a feeling that they, meaning the Labour
20 candidates, were up to no good. Yes?
21 A. Yes. They were, yes.
22 Q. And so by pure chance, Mr Hayes asked you, whether you
23 went there and you said absolutely so.
24 A. Yes. It was a hunch to see what they were up to. Let
25 me make this clear. I was in Ladywood but whenever
24
1 I would come back to Aston there were always things
2 happening, as in: Labour has blank votes, Labour has
3 done this and Labour has done that. That was, together,
4 let me just see what are the -- I mean, I was there for
5 that 8th June, God knows previously they may have been
6 going down to the warehouse almost every day, signing
7 blank ballot papers. It just happens to be on that day
8 I went there just to see what they were up to.
9 Q. But on this occasion you took your two brothers?
10 A. That is correct, yes.
11 Q. Why did you take them?
12 A. They wanted to come along. I said, "I am going to see
13 what these candidates are up to" and they said, "Shall
14 we come with you?" I said, "It is up to you".
15 Q. Your purpose of going there was to keep an observation
16 of what was going on outside the Labour campaign office?
17 A. The purpose was to find out what they were up to. It
18 just happened to be that when we went on to Witton Road
19 we saw a Primera car parked with Afzal and Zulfikar in
20 there. It was suspicious. We then parked up the top of
21 the road facing downwards and what happened after that
22 is in my statement, the Volvo parked up and more
23 suspicious behaviour started to happen.
24 Q. I will come to that in a moment. Was there anybody else
25 in the car with you besides your two brothers?
25
1 A. No.
2 Q. Do you know if there were any other cars from your team,
3 from the Liberal Democrat team, which might have been
4 there observing what was happening outside the Labour
5 campaign office?
6 A. No. Not that I know of.
7 Q. None that you know of?
8 A. No.
9 Q. Okay. So you took your two brothers and the purpose of
10 you taking your two brothers was that the three of you
11 could then witness what was going on outside the Labour
12 campaign office?
13 A. It was myself who suggested to go there. They did not
14 know anything about it. They said, "Where are you
15 going?" I said, "Let us see what these guys are up to".
16 I said, "I am the one that is going to find out what
17 they are up to". It was not that they had the intention
18 to come out and also observe, it was me that told them
19 that I am going there to find out and see what the
20 candidates are up to.
21 Q. Okay. I understand from my recollection that there is
22 a plan, a copy of the A to Z, page 707 in the bundle.
23 Let us have a look at that.
24 A. Yes, I have that.
25 Q. Before I ask you to come to the plan, you said in your
26
1 statement and told us a moment ago that you drove on to
2 Witton Road and saw Zulfikar Khan and Mohammed Afzal
3 sitting in a Primera car outside the local Labour
4 campaign office. Yes?
5 A. Yes.
6 Q. Can you tell me, with reference to this plan, where on
7 Witton Road the Labour office is?
8 A. Yes. If you can see -- can you see Witton Road on the
9 map?
10 Q. If you point it out to all of us.
11 THE COMMISSIONER: The B4140 running from south west, north
12 east, and then the 207 right hand quarter of the map ...
13 A. There is a star next to where it says Witton B4140.
14 THE COMMISSIONER: Beacon Hill, is it?
15 A. That is it.
16 MR DE MELLO: That is where the office is.
17 A. Yes.
18 Q. And in which direction were you travelling?
19 A. Let me make this clear. The office is not right on the
20 junction, it is a little further up from the junction.
21 There is a post office on the corner.
22 Q. I have seen that.
23 THE COMMISSIONER: The photographs, what do they show? Turn
24 back and have a look at page 699. Is that Witton Road
25 or is that somewhere else?
27
1 A. That is Witton Road. The election office is where it
2 says "Top Style", I believe that is what it is.
3 THE COMMISSIONER: By the bus stop?
4 A. That is right. And the car was where that dustbin is,
5 it was around that.
6 THE COMMISSIONER: Outside Q-Zone Sport and Leisure.
7 A. Yes, I cannot be precise.
8 MR DE MELLO: Facing in which direction, in the direction of
9 travel?
10 A. It was facing downwards.
11 THE COMMISSIONER: We are in Witton Road here in the
12 photograph and we are looking in the direction of the
13 junction with Aston Lane. Am I right?
14 A. Aston Lane?
15 THE COMMISSIONER: There is a roundabout, if you look at the
16 plan at 907. You see Witton Road, there is a junction
17 with the roundabout, Aston Lane, just short of Witton
18 railway station.
19 A. Yes.
20 THE COMMISSIONER: Are we looking up the road towards Witton
21 railway station and Aston Lane or down the road towards
22 the big junction?
23 A. First down towards the Witton station.
24 THE COMMISSIONER: So that the star that we have on the plan
25 is the same side of the road as the offices?
28
1 A. That is correct.
2 THE COMMISSIONER: Right.
3 MR DE MELLO: So when you were driving down the road, as
4 I understand from your description, the office would be
5 on your left side?
6 A. We were driving up Witton Road. His car was parked down
7 Witton Road, does that make sense?
8 THE COMMISSIONER: As you drive down the road, is the
9 Labour Party headquarters on your left or your right?
10 A. On my left.
11 THE COMMISSIONER: So you are coming from Aston Road and
12 it is on your left.
13 A. Yes.
14 MR DE MELLO: So you see the car parked --
15 A. On the left. Facing. Opposite, down.
16 Q. Facing the opposite direction, and you were driving,
17 were you?
18 A. Yes.
19 Q. And I think it is a 30-mile per hour speed limit?
20 A. I would say so, yes.
21 Q. And you claim to have seen Afzal with Khan inside the
22 car?
23 A. When I drove on Witton Road, one of my brothers said,
24 "There is Afzal". I looked around and I recognised
25 Afzal and Zulfikar in the car.
29
1 Q. Did you slow down, did you stop and turn and look into
2 the car?
3 A. I did not really slow down. I continued at the same
4 speed.
5 THE COMMISSIONER: Was Mr Afzal known to you before this
6 incident?
7 A. Yes, I have known Afzal since I was a kid.
8 MR DE MELLO: And looking at the photographs again on
9 page 699, you see street lamps.
10 A. Yes.
11 Q. I am right in suggesting that they have an amber light,
12 a sort of orange glow, yes? Would you accept that?
13 A. Yes.
14 Q. Then you drive towards the roundabout, do you go right
15 on the roundabout and turn back on yourself?
16 A. Sorry, which point are you talking about?
17 Q. You pass Afzal's car, and you go to the roundabout,
18 do you?
19 A. No, no. I drive past Afzal's car, I look at Afzal's
20 car, and I say, "Yes, that is Afzal". I then take
21 a left, I remember, back around to see if it is for
22 certain Afzal's car.
23 THE COMMISSIONER: So if you look at the map you go left
24 down Prestbury or Ettington. You see where the star is?
25 A. That is correct.
30
1 THE COMMISSIONER: If you are driving down from the Aston
2 Road, the next left after the star is Prestbury Road.
3 A. I take that left.
4 THE COMMISSIONER: And then come up Bevington Road and down
5 the block?
6 A. I go down Whitehead Road, then back on to Bevington and
7 come back around.
8 THE COMMISSIONER: Back round the block.
9 A. Yes.
10 MR DE MELLO: Just to get it clear, you turn left in
11 Prestbury Road.
12 A. Yes. As I can remember.
13 Q. And then you cross over Whitehead Road?
14 A. I do not cross over it, I go down. Then I come on to
15 Bevington Road.
16 Q. And then you turn left again?
17 A. Yes. As I remember it, yes.
18 Q. Then you pass Afzal's car for the second time?
19 A. Yes, back on Witton Road as I remember.
20 Q. That is not in your statement, is it? If you look at
21 paragraph 3, you say:
22 "We drove on to Witton Road."
23 A. Yes.
24 Q. Paragraph 4:
25 "Afzal and Khan looked anxious and uneasy. We
31
1 parked out car outside the Roti Junction takeaway on
2 Witton Road."
3 And I am right in suggesting that it is
4 a restaurant, is it, or a takeaway only, and it is on
5 the right side of the road?
6 A. Yes.
7 Q. On the opposite side of the road much towards the
8 roundabout?
9 A. I have to get this ...
10 THE COMMISSIONER: Look at page 700, if you would. On
11 page 700 a photograph is taken just before the bus stop
12 outside the party headquarters. You will see in the
13 middle of the picture a block of premises which ends
14 with a white gabled building. Can you see that? In the
15 middle of the picture you will see on the left-hand side
16 of the road a block of two or three buildings.
17 A. Yes.
18 THE COMMISSIONER: The final one of which is a white
19 building with a gable, do you see that?
20 A. Is that the one in the middle of the road?
21 THE COMMISSIONER: Yes. Perhaps if I hold it up you can
22 see. What I am pointing to is that block of buildings
23 there (indicating).
24 A. Yes.
25 THE COMMISSIONER: Is the Roti takeaway from that block, or
32
1 this side of it as we are looking, or the far side of
2 it?
3 A. The Roti Junction is further up.
4 THE COMMISSIONER: Beyond where we can see in the
5 photograph.
6 A. Yes.
7 MR DE MELLO: So coming back to paragraph 4:
8 "We parked our car outside the Roti Junction."
9 And I come back to the question that you did not
10 mention what you have told us today in your statement;
11 that is right, is it not?
12 A. What I said there, that is -- when I drove the first
13 time round I did not mention it because there was no
14 need.
15 Q. Fine.
16 A. Because I am talking about the second time round, where
17 I did again pass and parked at the Roti Junction. Prior
18 to that I did not see any significance of that really
19 in the statement because ultimately I am there to put
20 down what I saw.
21 Q. Fine. And you saw Khan again together with Afzal for
22 the second time?
23 A. That is correct.
24 Q. So you parked next to the Roti Junction. How did you
25 get to park next to the Roti Junction?
33
1 A. I was just going explain that. I remember going up
2 Witton Road the section time. We then turned. Then
3 there is a road, we turned into that road and turned
4 around.
5 Q. Look at the map and tell us, page 707.
6 A. Okay. As we went up the Witton Road, passing his car
7 the second time round, you will see a little, what you
8 would call Lodge Road. Just below that there is Lodge
9 Road.
10 THE COMMISSIONER: You go up Lodge Road.
11 A. I turn my car round there, Lodge Road, and go back down
12 opposite the Roti Junction. Roti Junction is at that
13 point because Lodge Road is further down, about ten, 15
14 metres.
15 THE COMMISSIONER: Lodge Road then goes into Trinity Road.
16 A. Yes. That is the Lodge Road, but I did not go on to
17 Trinity Road. I turned my car round on to Lodge Road,
18 went back on the Witton Road, went back down Witton
19 Road. Parked opposite Roti Junction.
20 THE COMMISSIONER: In which case, is your car at that stage
21 facing towards the Labour Party headquarters or away
22 from it?
23 A. Towards.
24 MR DE MELLO: You say that Roti Junction is approximately
25 150 metres from the Labour campaign office; yes?
34
1 A. Yes. Approximately.
2 Q. Would you accept it is more in the region of about 300,
3 maybe 350 metres?
4 A. I cannot accept that. Is it -- did you measure it?
5 Q. I suggest that it is in the region of about 300 to
6 350 metres.
7 A. From my estimate I see it as 150.
8 Q. Okay. Then you position yourself there together with
9 your brothers?
10 A. Yes.
11 Q. And you claim to have seen, you have told us, Afzal, and
12 I am only concerned with Councillor Afzal.
13 A. Sure. Yes.
14 Q. I make it absolutely clear that Councillor Afzal was not
15 there that night, as you allege. Right?
16 A. Well, he was.
17 Q. That is what you say.
18 A. Of course.
19 Q. Did anyone get out of your car?
20 A. Yes. I believe my little brother got out of the car.
21 Q. There are double yellow lines in front of Roti Junction
22 takeaway, that is right?
23 A. Are there? I do not remember.
24 Q. Can you tell me who was sitting next to you?
25 A. Tariq Hussain.
35
1 Q. And Naser was behind?
2 A. That is correct.
3 Q. And who was it that left the car?
4 A. Naser Iqbal.
5 Q. You did not take the registration number of the car at
6 any time, the Primera car, Afzal's car?
7 A. I know the Primera car because Afzal has been driving it
8 for years and I know Afzal because I have lived in Aston
9 and he has been a councillor for a very long time.
10 I was not mistaken -- I am absolutely certain that that
11 was Afzal. Glasses, no hair. I know this chap for
12 years.
13 Q. And you claim in paragraph 5 of your statement that at
14 some point Afzal got out of the car and followed Islam
15 into the Labour campaign office. Do you see paragraph 5
16 of your statement?
17 A. I am looking at paragraph 5 now, yes.
18 Q. The last sentence.
19 A. Yes, that is what I remember, yes.
20 Q. And you saw that from where you were seated, 150 metres
21 by your count.
22 A. Yes.
23 Q. In the car with that street light, the lamps?
24 A. Because that -- each street light covers the area, as
25 you can see from that picture, and because I was
36
1 concentrating, there is not much activity around that
2 time of night and you can make out what you see easily.
3 Q. Look at paragraph 6 midway. You remember that one of
4 the cars went up Witton Road and it was, according to
5 you, a Toyota Carina, is that right?
6 A. That is right. After they all got in their cars and
7 moved on to their sort of mysterious location, if you
8 want to call it, I recognised Mohammed Kazi driving --
9 jumped in his car and drove off. I did not see him jump
10 into his car, what I saw was when he passed my car I was
11 observant at that point because there was lots of
12 suspicious behaviour. I looked over my shoulder and
13 said, "That is Kazi".
14 Q. What you have told us is this: the Primera drove off
15 followed by the Toyota Carina, yes?
16 A. No, no. Kazi's car went past mine. Okay?
17 Q. Yes.
18 A. At that time I do not think the Primera had gone because
19 I followed the Primera.
20 Q. I see.
21 A. So you ask me specific details to the dot about nine
22 months ago. What I can tell you is that Kazi's car did
23 pass mine and then I followed Afzal's car in the Primera
24 because there were people together, you see. They
25 opened their boot and took a bit of time, I guess.
37
1 Q. Let us look at your sentence at paragraph 6 again
2 because that is not what you said. You said in
3 paragraph 6 that the boot of the Primera was opened by
4 Councillor Afzal, a bag was placed in it. Afzal, Khan
5 and Islam and another person, a fourth person, sat
6 in the Primera. Yes?
7 "I remember that one of the cars went up Witton Road
8 passing my car."
9 You recognised it to be a Toyota Carina and what
10 I am asking you again is to confirm: are you there
11 suggesting that the Toyota Carina passed by before the
12 Primera left or after the Primera left?
13 A. You are trying to confuse me here.
14 Q. No.
15 A. What I am saying is that I saw Kazi's car pass mine,
16 I recognised it as Kazi's. I then looked at the Primera
17 and I followed the Primera car.
18 Q. Right. And the Toyota Carina was heading towards the
19 warehouse?
20 A. The Toyota Carina was passing mine up Witton Road.
21 Q. Going in the direction of the warehouse where the cars
22 ultimately end up?
23 A. It was not going towards the warehouse, the Toyota
24 Carina which Kazi was sitting in. It went past me. God
25 knows where he went. Obviously he ended up over there,
38
1 and I followed the Primera.
2 Q. More importantly, it was going in the direction of the
3 Labour Party --
4 THE COMMISSIONER: Do we have the warehouse on our map,
5 Mr De Mello?
6 MR DE MELLO: I think it is further on. I think it is just
7 off the corner of the photocopy of the A to Z, perhaps
8 the right-hand corner. It might be on the next page.
9 THE COMMISSIONER: Remind me of the address of the
10 warehouse.
11 MR DE MELLO: The address of the warehouse is ... (Pause)
12 Birch Road East, it is just past Wrylie Road in the
13 corner of your map. Birch Road East.
14 THE COMMISSIONER: Yes, I have that. It backs on to the
15 canal.
16 So in other words, in order to get from the Labour
17 headquarters to the warehouse you have go up Witton Road
18 and beyond the roundabout with Aston Lane.
19 MR DE MELLO: To be absolutely sure, the Toyota Carina in
20 fact passed your car and was driving past the Labour
21 campaign office?
22 A. This Toyota Carina, from what I have seen, I did not see
23 him come out of the election office. What I saw, it was
24 not going towards the industrial Witton Road, it was
25 going up towards that big massive junction, in that
39
1 direction. I followed the Primera. The Primera was
2 going towards Witton Road, Aston Lane.
3 Q. Were there any cars between you and the Primera when you
4 were following it?
5 A. Not that I can remember. At what point?
6 Q. At any time.
7 A. Not that I can remember, no. It was late and there was
8 not many cars.
9 Q. Altogether you claim to have seen a Toyota Carina,
10 a Mercedes, a Lexus and a BMW, correct?
11 A. Altogether, the whole evening, yes. If I have said that
12 then that is what I saw, yes.
13 Q. Did you or any of your brothers call the police that
14 evening?
15 A. Sorry?
16 Q. Did you or your brothers call the police that evening?
17 A. Not that I know of.
18 Q. Do you know a person called Omar Choudhry?
19 A. Yes.
20 Q. Who is he?
21 A. He is a person who lives in Broadway.
22 Q. He was not in the car with you?
23 A. No.
24 Q. And we understand that he telephoned the police at about
25 14 minutes past midnight and informed the police that
40
1 a black Primera owned by a councillor is delivering
2 postal ballots?
3 A. Yes. Is that what he said?
4 Q. I understand that is the evidence given by one of the
5 officers, but did you provide Omar Choudry with any
6 information about this incident that night?
7 A. I did not, but I believe Tariq Hussain may have. He was
8 on the mobile phone, but I was driving.
9 Q. You went to the warehouse, yes?
10 A. Yes.
11 Q. And if you look at your statement --
12 THE COMMISSIONER: Broadway comes into Witton Road just
13 north of Labour Party headquarters.
14 MR DE MELLO: At paragraph 10 -- I will start at
15 paragraph 9.
16 You told us about the Toyota Carina. Paragraph 9:
17 "We were parked outside on the side road. We
18 decided to minimise detection by bending down in the car
19 seats. A few minutes later I saw a dark coloured
20 Lexus."
21 Then you noticed headlights and then you noticed
22 a Toyota Carina and you recognised the driver as
23 Mohammed Kazi.
24 THE COMMISSIONER: Let us take it in stages. At the time
25 when the Toyota Carina passed you in Witton Road was it
41
1 going in the same direction as you or a different
2 direction?
3 A. It was going in a different direction.
4 THE COMMISSIONER: So it goes down towards the High Road?
5 A. By the big junction.
6 THE COMMISSIONER: And you are pointing up in the general
7 direction of the trading estate.
8 A. Yes.
9 THE COMMISSIONER: So you, as you say, follow the Carina
10 which you say is --
11 A. The Primera, I follow the Primera.
12 THE COMMISSIONER: You follow the Primera, which you believe
13 to be Councillor Afzal's car.
14 A. Yes.
15 THE COMMISSIONER: To the trading estate.
16 A. Yes.
17 THE COMMISSIONER: And it is when you are at the trading
18 estate that the Carina arrives?
19 A. A little while after, yes.
20 MR DE MELLO: Do you know anyone in the Birmingham Post
21 newspaper?
22 A. Did I know anyone in the Birmingham Post? Not that
23 I know of.
24 Q. Did you or your brothers speak to the Birmingham Post
25 newspaper soon after this incident on 9th June?
42
1 A. Not that I know of.
2 Q. I am going to ask you to look at a newspaper cutting
3 which I will first hand over to my learned friend,
4 Mr Sukul. I have copies for you and I am going to ask
5 you questions about it. This is a newspaper cutting
6 from the Birmingham Post dated 10th June. It says in
7 its headline:
8 "The Midnight Mystery Car Full of Votes."
9 In the left-hand column, the second last paragraph:
10 "After talking to several people at the scene police
11 officers decided to take no further action."
12 A. Which paragraph is this?
13 THE COMMISSIONER: The left hand of the three columns, two
14 paragraphs up.
15 MR DE MELLO: Have you found it? I will continue reading:
16 "A police spokeswoman said, 'We received information
17 regarding alleged election irregularities and attended
18 premises in Birch Road, Witton, at 12.15 am on
19 Wednesday. The matter is it not currently subject to
20 police action. Councillor Kazi and his colleagues were
21 tracked by a Liberal Democrat postal ballot surveillance
22 team. Liberal Democrat supporters followed Councillor
23 Kazi by car from Witton Road where Labour's offices are,
24 to a back street. Councillor Kazi said he and his
25 colleagues decided to go to the industrial estate
43
1 because they were being intimidated by Liberal
2 Democrats. A Liberal Democrat support who said he was
3 too frightened to be named told how he sat in a car
4 outside the Labour office in Witton Road from 10.30pm on
5 Tuesday. We had been there for about half an hour when
6 three cars drew up. Several people went into the
7 building and came back out again about 15 minutes later,
8 opened the boot of a car and placed some bags inside.
9 They closed the boot, got in the car and drove off. We
10 followed them to an industrial estate where they drove
11 into a cul-de-sac and stopped, remaining in the car.
12 "Two minutes later a big BMW with tinted windows
13 came in behind us, then a Lexus car came in travelling
14 really fast. In total six cars drove in and I noticed
15 that Councillor Kazi was sitting in one of the cars.
16 A few minutes later the police turned up and we decided
17 to leave."
18 What I want to ask you is this: do you know if any
19 one of the occupants of your car telephoned or informed
20 the newspaper journalist about this incident?
21 A. Like I said, it is possible that Tariq may have rang
22 them up but I am not aware of that. Does he give his
23 name in that?
24 THE COMMISSIONER: Are you the Liberal Democrat supporter
25 who told these matters to the paper?
44
1 A. I did not.
2 MR DE MELLO: Do you know if your brother Tariq may have
3 done so?
4 A. I was not aware of that but he may have done so, yes.
5 Q. Given that Tariq might not turn up, I am going to ask
6 you, perhaps unfairly, and I will be stopped, to
7 comment. Are you able, perhaps, to offer any
8 explanation at all why Councillor Afzal is not mentioned
9 in this description?
10 A. I cannot.
11 MR SUKUL: Sir, I do not think he will manage that.
12 THE COMMISSIONER: Can you comment on it?
13 A. No.
14 MR DE MELLO: What I suggest to you, and I will repeat it
15 again, is that that night Afzal was not there. Your
16 account is made up.
17 A. That is absolutely ridiculous.
18 Q. What I suggest to you is that you and your brothers may
19 or may have not been there and Afzal is not in
20 a position to refute that, but what is quite clear
21 is that together with your brothers, you fabricated the
22 account that Afzal was part of a plot, namely that
23 he was engaged in taking a bag of postal votes to
24 a warehouse in Witton.
25 A. That is absolutely --
45
1 Q. You do not accept that?
2 A. Of course not. Maybe you should say the same thing to
3 the police officer as well who pointed him out.
4 THE COMMISSIONER: You had better leave Mr Sukul to make any
5 comments of that nature. Rest assured he will.
6 MR DE MELLO: I have a few more questions. I know that my
7 learned friend has asked you about the forms, but may
8 I just ask you a couple of questions arising from that,
9 please.
10 You said, as I understand it, if I could summarise
11 it, that you witnessed the voter's signature, yes, and
12 you signed the form and you wrote down your name and
13 address in your own handwriting?
14 A. Yes.
15 Q. With respect to all the forms do you know or did you
16 know at the time the identity of the voters?
17 A. Whenever I have witnessed DOIs, and I have witnessed
18 a number of them in Ladywood as well, I would not have
19 witnessed it if I did not know the person.
20 Q. Next, if you please look at the forms and glance at your
21 handwriting and signature?
22 A. Which form?
23 Q. For example, 2954 is the start, I think. That is your
24 handwriting and your signature?
25 A. Yes. It looks like my handwriting.
46
1 Q. For the sake of clarity, 2954, you know the occupant,
2 Ahmed Bashi, he is the person who has signed H Ahmed
3 I think. Although his name appears at B Ahmed in the
4 application to vote form he signed H Ahmed.
5 A. Like I said, whenever I witnessed the DOI --
6 Q. I am not concerned about the discrepancy.
7 A. I have witnessed quite a few.
8 Q. But you know each of the occupants?
9 A. What I do know is -- I am aware that when they sign
10 that, that is their vote.
11 Q. Notably the application forms, some of them, I think the
12 first three of them, are dated 1st -- I should be
13 careful. The first, 2954 and 2955, and 2958, are dated
14 1st May 2004.
15 THE COMMISSIONER: When you say dated, the application to
16 vote is dated but the declaration of identity of course
17 is not dated at all.
18 MR DE MELLO: The three DOI forms, are you able to tell me
19 whether, from your memory, they were witnessed on the
20 same day?
21 A. Unfortunately, like I said, I have witnessed a number.
22 Q. Secondly, is that your normal handwriting, is that the
23 way you normally write?
24 A. The witness, yes.
25 Q. And thirdly, is that your normal signature?
47
1 A. That there, that is another signature that I have, it is
2 not the normal one.
3 THE COMMISSIONER: That is your normal signature, is it, the
4 signature of witness?
5 A. I have a different signature, which is on my driving
6 licence, but I use that as well.
7 MR DE MELLO: Do you have any more signatures that you use
8 on different occasions?
9 A. Absolutely not, no.
10 Q. Let us look at your witness statement, it is signed by
11 you, page 317.
12 A. Yes.
13 THE COMMISSIONER: That is a different signature.
14 MR DE MELLO: Is it yours?
15 A. That is my signature, yes.
16 THE COMMISSIONER: That would be the one on your credit
17 card.
18 A. Well, yes. I can show you it.
19 THE COMMISSIONER: Do not worry.
20 MR DE MELLO: I want to ask you, it has been handed to me
21 this morning and I have not had the opportunity to show
22 Mr Sukul this. I will do that first. It is the copy of
23 an application to vote by post form made purportedly by
24 yourself.
25 Can I please hand one to the learned
48
1 Commissioner and yourself. (Handed)
2 THE COMMISSIONER: That is your signature?
3 A. Yes.
4 MR DE MELLO: And is your name and address completed in your
5 own hand?
6 THE COMMISSIONER: No, the name and address -- a high number
7 of them are in the same handwriting. I do not know
8 where it comes from but I have seen a number with very
9 similar handwriting. I do not think anything turns on
10 the name and address bit.
11 Is that your signature?
12 A. It looks like my signature, yes.
13 MR DE MELLO: Again, this is another variant of your
14 signature?
15 THE COMMISSIONER: Compare that with 317 and they are a bit
16 different, are they not?
17 A. Yes.
18 MR DE MELLO: There is nothing to it, you say, having
19 a number of different signatures for different purposes.
20 You do not see anything amiss about that.
21 A. I have a signature and, you know ...
22 THE COMMISSIONER: I think that is alluded to in Mr Allen's
23 report and maybe in Mr Cosslett's report as well. One
24 of the problems of their trade is that people have two
25 different signatures or three different signatures.
49
1 Whether it is a matter of fact in any given case, that
2 is one of the hazards of the handwriting experts' trade,
3 apparently.
4 MR DE MELLO: Not discrediting the witness, it may be
5 that --
6 THE COMMISSIONER: You are perfectly at liberty to do so if
7 you have the material.
8 MR DE MELLO: Will you please excuse me a moment?
9 THE COMMISSIONER: Certainly.
10 MR DE MELLO: Thank you very much.
11 THE COMMISSIONER: Mr Coppel?
12 Cross-examination by MR COPPEL
13 MR COPPEL: Mr Iqbal, I wonder if you could look at your
14 statement to this court, please. Do you have a copy
15 before you?
16 A. Yes.
17 Q. Turn please to paragraphs 11 and 12. You are there
18 concerned with the count which took place on
19 11th June 2004, correct?
20 A. Yes.
21 Q. I wonder if you could be shown, please, a copy of the
22 plan exhibited to the second witness statement of Alison
23 Harding. That is exhibit AH2 in the statement which
24 I have just handed up this morning. Sir, do you need
25 another copy?
50
1 THE COMMISSIONER: No, it is here. Do not, as they say,
2 panic. (Handed)
3 This is another example of your artwork?
4 MR COPPEL: Yes, sir.
5 THE COMMISSIONER: After a while I recognise the style!
6 MR COPPEL: I will not ask you, sir, to comment.
7 THE COMMISSIONER: If you look you will see a picture here
8 that looks like that (indicating). Do you have that?
9 A. Yes.
10 MR COPPEL: Mr Iqbal, would you familiarise yourself first
11 of all with the plan. You will see that it purports to
12 represent what we term pen E at the National Indoor
13 Arena on 11th June.
14 A. Yes.
15 Q. You will see in the plan that there are five tables
16 shown. Do you see that?
17 A. Yes.
18 Q. There is an entrance towards the top of the page and
19 there is an entrance towards the bottom of the page.
20 Do you see those?
21 A. Yes.
22 Q. Towards the left of the page, one of the tables depicted
23 in the plan is marked "Aston Table"?
24 A. Yes.
25 Q. Then there are to its right three further tables, table
51
1 2, table 3 and table 4?
2 A. Yes.
3 Q. And then at the top, table 5, do you see that?
4 A. Yes.
5 Q. Tell the court, by indicating on the plan, exactly where
6 you were on 11th June during the course of the count.
7 A. Exactly where I was? I did not just stand there for
8 five or six hours.
9 THE COMMISSIONER: Whereabouts did you go?
10 A. Where my election count was taking place was table 2,
11 which is Ladywood, right next to Aston. Where you have
12 written "Candidates and Agents Permitted Here", that is
13 the area where I was.
14 THE COMMISSIONER: So you were going up and down that area
15 looking at both tables?
16 A. Yes.
17 MR COPPEL: So that I understand your answer correctly,
18 you were tasked to look at what was taking place at the
19 Ladywood table, is that right?
20 A. I was a candidate on the Ladywood, yes.
21 Q. So you were principally concerned with what took place
22 on table 2?
23 A. Only until the Nickleby bag issue arose, yes.
24 Q. So correct me if I am wrong. You would have been
25 standing, looking over the backs of the counting
52
1 assistants at table 2, until the Nickleby's bag
2 incident. You would have been standing behind the
3 counting agents at table 2 looking at what was taking
4 place, or am I mistaken?
5 A. I was walking up and down, looking over shoulders
6 throughout the whole day. I do not see what you are
7 trying to say. At which point in time are you talking
8 about?
9 Q. Let us start first thing in the morning, for the first
10 hour and a half or so before, to use your words, the
11 Nickleby's bag incident blew up. Correct me if I am
12 wrong, you would have been principally concerned with
13 what was taking place on table 2, yes or no?
14 A. Yes, principally, yes.
15 Q. In being concerned with what was taking place at table
16 2, you were looking over the shoulders of the counting
17 assistants at table 2, correct or incorrect?
18 A. Yes, I was looking over the shoulders of the counting
19 agents and walking up and down and speaking to other
20 people and talking about how things were. I did an
21 array of things.
22 Q. For the greater part of that time you had your back to
23 the Aston table, correct or incorrect?
24 A. I do not know. I cannot measure how much time I had my
25 back against the Aston table. What I can say is yes,
53
1 obviously I was a candidate for Ladywood and I did keep
2 looking over there, but also I was concerned with
3 what was going on with Aston. Obviously because of this
4 big hoo-hah about these chaps being caught in the --
5 Q. We will get to the hoo-hah in a minute but let us deal
6 with before we get to the hoo-hah. For those moments
7 that you were looking at what was going on on the
8 Ladywood table, you could not see what was going on on
9 the Aston table?
10 A. If I was looking at Ladywood, I could not see, but for
11 how long ...
12 Q. Then, to use your phrase, a hoo-hah developed at the
13 Aston table, correct?
14 A. Yes.
15 Q. What time?
16 A. I cannot remember. It was somewhere in the morning.
17 Q. Mid-morning, late morning?
18 A. In the morning. It was not late. It was early morning,
19 between 9 and 10.
20 Q. See if you can help me this way. How long had the
21 counting process in pen E been going on before the, to
22 use your phrase, hoo-hah began?
23 A. Not very long. About half an hour, possibly. Again,
24 I cannot remember but it was not very long.
25 Q. Do I understand you correctly to be saying that that
54
1 caused you to take away your attention from what was
2 going on on table 2, the table with which you were
3 directly concerned, and devote yourself to the Aston
4 table?
5 A. At that stage, yes.
6 Q. Did you forget about what took place at the Ladywood
7 table thereafter and concentrate on the Aston table, or
8 did you return from time to time to the Ladywood table?
9 A. When the initial identification of this bag appeared,
10 for at least half an hour, 45 minutes, maybe longer,
11 I did not look at my watch, there was this massive
12 discussion about this Nickleby bag. A lot of people had
13 congregated around there because obviously this bag was
14 full of postal ballots, which I saw myself, as I have
15 said in the witness statement.
16 After that, when I believe they were to be counted
17 after discussion took place between numerous people, but
18 I specifically remember the Chief Legal Officer,
19 Mr Ahmed, saying that is going to be counted. We
20 started to write numbers down of DOIs. After that,
21 I moved back to my own table but kept moving back and
22 forward, okay, as in going to my table at Ladywood,
23 looking at what is happening, and going back to Aston.
24 But let me point this out. Yes, at the time when
25 I realised there was not a real realistic chance of me
55
1 winning at Ladywood because it was not a high turnout
2 and we knew it was against the leader of the Labour
3 party, my concerns were obviously with Aston.
4 Q. Do I understand you correctly that for over an hour you
5 ceased to pay any attention to what was taking place at
6 the Ladywood table, the table with which you were
7 directly concerned?
8 A. I never said over an hour. I said 30 minutes possibly.
9 I cannot -- I did not measure the time, but there was
10 a significant amount of time, there was a significant
11 amount of time when discussions took place about where
12 this bag had come from, when they piled the postal votes
13 on the table, and when I stood there writing numbers
14 down. That was a significant time. I cannot say how
15 long it was.
16 Q. So that I understand your evidence correctly, you are
17 telling this court that for all of the time when this
18 discussion took place and for all of the time when the
19 envelopes were opened, you paid no attention to what was
20 taking place at the Ladywood table, the table with which
21 you were directly concerned. Correct or incorrect?
22 A. More or less, yes. When say more or less, I did speak
23 to my other candidates on the Ladywood table,
24 I remember, and I said: keep me updated with what is
25 happening at the Ladywood table because there is
56
1 obviously a big issue happening at Aston.
2 Q. Can you identify on the plan at which end of the Aston
3 table you say the discussion concerning the plastic bag
4 took place?
5 A. Where it says, "Opening of postal ballot envelopes",
6 that area there.
7 Q. It is correct, is it not, that at the time that you went
8 over to the Aston table to consider the issues
9 surrounding the plastic bag, there were a lot of other
10 people also showing interest in its contents?
11 A. Yes.
12 Q. There was a bit of a scrum, was there not?
13 A. Scrum?
14 Q. A bit of --
15 A. It was not a rugby match.
16 Q. There was a bit of jostling about for position, was
17 there not?
18 A. Position for what?
19 Q. To see what was going on. There were a large number of
20 people surrounding that end of the table; correct?
21 A. There were people surrounding the table.
22 Q. A large number of people surrounding the table, were
23 there not?
24 A. How many is large?
25 Q. 10, 15.
57
1 A. About 7, 8, I would say.
2 Q. And different views were being expressed by different
3 people, were they not?
4 A. I cannot recall specific views. People were saying
5 certain things, yes, but I cannot recall...
6 Q. There were differences of views that were being
7 expressed, were there not?
8 A. Not that I can recall. The only thing -- people were
9 saying, "Where has this bag come from?" There were no
10 different views. From whom?
11 Q. You are saying that for 30 minutes people were saying,
12 "Where has this bag come from?" There was discussion,
13 was there not?
14 A. Yes, of course, but the gist of the discussion
15 was: there is a bag on the table, where has it come
16 from? European ballot papers on the top folded up.
17 That was the gist of the discussion. There was no
18 discussion amongst the supporters there about should
19 this be counted or not; this bag appeared and there
20 should not have been all these votes in a bag, a
21 shopping bag.
22 Q. What actually took place in the pen on the Aston table
23 early in the count was this: the contents of that bag
24 had been taken out and put on the table at the beginning
25 of the morning. Those envelopes, together with other
58
1 unopened postal ballot envelopes, had been slit open,
2 and at some time during that process someone complained
3 about the plastic bag. That is correct, is it not?
4 A. Of course that is not correct. I have explained to you
5 that there was a bag on the table, people saw this bag,
6 it should not have been there.
7 THE COMMISSIONER: When they were arguing about the bag, was
8 the bag still full or had the bag been emptied?
9 A. The bag was still full until the Chief Legal Officer
10 said the votes would be counted.
11 THE COMMISSIONER: That is where the battle lines are drawn.
12 MR COPPEL: Yes. You say that thereafter, after the Chief
13 Legal Officer, is it, you say made the decision?
14 A. Mm-hm.
15 Q. You say he made the decision before or after speaking to
16 Mr Owen, or did he not speak to Mr Owen?
17 A. I cannot remember who he spoke to. What I do know is he
18 did say: those votes are going to be allowed in the
19 count.
20 Q. And you say it was he and no-one else who was the umpire
21 of this decision?
22 A. I believe I saw Lin Homer but I do not know at what
23 stage. But as far as I am concerned, he was the one
24 that said --
25 Q. You saw Lin Homer, did you?
59
1 A. Yes, but I cannot remember when, whether she was around
2 at that time or she came after this. Do not worry about
3 Lin Homer. What I can say is that it was the Chief
4 Legal Officer who said: those votes are going to be
5 counted.
6 Q. Mr Iqbal, I do worry about Lin Homer, thank you. And
7 she is the Returning Officer and an important figure in
8 terms of what happens on the 11th, is she not?
9 A. I would say yes.
10 THE COMMISSIONER: Are you aware of Ms Homer having any
11 input in this decision?
12 A. No, not that I am aware of.
13 MR COPPEL: Are you aware of Mr Owen having any input in
14 this decision?
15 A. Not that I am aware of it.
16 Q. Are you aware of the Deputy Returning Officer at the
17 Aston table making a decision in relation to these
18 votes?
19 A. Who is the Deputy Returning Officer?
20 Q. Alison Harding.
21 A. I do remember a lady behind the table, yes.
22 THE COMMISSIONER: Did she make the decision?
23 A. Not that I knew of.
24 MR COPPEL: Help me with your exhibit AI1.
25 THE COMMISSIONER: That is the long list of numbers. I am
60
1 not quite clear, what is it actually a list of? Are
2 these the votes in the Nickleby's bag or all the postal
3 votes or what?
4 A. This was a list of the numbers that were taken of the
5 Nickleby's bag on the table. But I believe also there
6 were brown envelopes and there were postal votes in
7 those brown envelopes which were also poured on to the
8 table, but they were minimum, from what I remember.
9 There were far more postal votes in the Nickleby's bag.
10 MR COPPEL: Do you remember a plastic crate, a grey plastic
11 what is termed a post office crate?
12 A. Do I remember? I remember plastic crates in the back
13 where you on your plan ...
14 THE COMMISSIONER: Did you see a black plastic crate with
15 postal votes in at the Aston table at any time?
16 A. No, I did not see that.
17 MR COPPEL: Did you see a crate --
18 THE COMMISSIONER: You see the big black box there?
19 A. Mm-hm.
20 MR COPPEL: Did you see any crates like that full of postal
21 votes?
22 A. No.
23 MR COPPEL: Did you see any crates that were grey in colour
24 and significantly smaller than that with any postal
25 votes in them?
61
1 A. I cannot recall. I just cannot recall.
2 Q. Tell me, Mr Iqbal, what were the counting assistants
3 doing at this end of the table before it was decided to
4 go ahead and count the postal ballots and open the
5 postal ballots in the Nickleby's bag? Were they sitting
6 idle?
7 A. I believe they were, again -- right at the end of the
8 table?
9 Q. That is right, at the end of the table we are speaking
10 about.
11 A. The person I remember was -- was it Alison Harding the
12 presiding officer, the deputy person? There were people
13 sitting there, yes, they must have been counting.
14 Q. Were they counting, were they opening up envelopes?
15 A. Not until the envelopes were taken out of the Nickleby's
16 bag.
17 Q. So they were sitting idle until they were taken out of
18 the Nickleby bag?
19 A. Well, I did not see anyone counting them.
20 Q. Mr Iqbal, I am going to ask you again: the people that
21 were at this end of the table, not Alison Harding, the
22 people sitting at this end of the table, what were they
23 doing before the contents, you say, of the Nickleby's
24 bag were poured out on to the table and those envelopes
25 opened up, what were they doing?
62
1 A. I do not know. My focus was on the Nickleby's bag.
2 They may have got up and gone to the other side, they
3 may have gone back and sat down. I do not know.
4 Q. Would you remember if they at that stage had been
5 opening any envelopes?
6 A. Well, again, I do not know. What I remember is what
7 I said in my statement. And you tend to remember things
8 which are different. People are counting in these
9 massive pens, a lot of things happening, and I remember
10 what I saw, which was unusual.
11 Q. Let us go back to AI1. You did not bring a computer
12 with you into the NIA, did you?
13 A. No.
14 Q. And this has been prepared after 11th June, correct?
15 A. Yes, it has.
16 Q. It has been prepared in support of these proceeding, has
17 it not?
18 A. It was prepared because other people had taken numbers
19 down, and I was given the task to put them on
20 a spreadsheet, as I have done, in front of you.
21 THE COMMISSIONER: Where did you get the numbers from?
22 A. There were other people taking them down, Liberal
23 Democrat supporters, on pieces of paper, ballot counting
24 papers.
25 THE COMMISSIONER: So this is a list compiled by a number of
63
1 different people writing down notes on pieces of paper.
2 A. That is correct.
3 MR COPPEL: Who gave you pieces of paper with which to
4 prepare this document; what are the names of those
5 people?
6 A. Shah Jahan, Asif Mukhtal, and then the other pieces of
7 paper were taken off the people who wrote the numbers
8 down and I was given the task to put them on
9 a spreadsheet.
10 Q. I want you to tell this court the names of the people
11 you say --
12 THE COMMISSIONER: Mr Coppel, before we take this too much
13 further, I am not quite clear -- we had this exhibit --
14 as to what subsequent use the exhibit has been put in
15 these proceedings.
16 MR COPPEL: Well ...
17 THE COMMISSIONER: We have not run a check on these numbers,
18 have we?
19 MR COPPEL: No.
20 THE COMMISSIONER: We ran no check in the scrutiny on these
21 numbers. I am just wondering how far they take us and
22 how far you need pursue this question of the list.
23 MR COPPEL: Sir, the answer is that a serious point is being
24 made by Mr Iqbal in relation to what he observed on
25 11th June.
64
1 THE COMMISSIONER: The key difference between the witnesses
2 for the petitioners and the witnesses you propose to
3 call is when and how the Nickleby's bag was emptied.
4 The contents of the Nickleby's bag, leave aside
5 whether there are or are not loose ballot papers,
6 everybody is agreed that the bulk of the contents are
7 postal votes. Nobody, as I understand it, argues that
8 what came out of the postal vote envelopes was on its
9 face irregular, so that the gut question that had to be
10 asked is: should the Nickleby's bag have been admitted
11 at all or not?
12 The issue there, one of the issues, is when did it
13 come to light, what was done, what decision was taken?
14 That has been fully explored with the witnesses
15 perfectly properly, I wonder just how far we need to
16 take the list.
17 MR COPPEL: I take the hint, sir.
18 THE COMMISSIONER: You see where I am coming from.
19 MR COPPEL: Yes. The point that is going to be made, and
20 it is only fair I put it to the witness, is this: there
21 is a sharp issue of fact between the witnesses for the
22 Returning Officer and the witnesses for the petitioners
23 as to what took place at that particular time at the
24 Aston table.
25 Necessarily one lot are correct, the other lot are
65
1 incorrect and one way of ascertaining who is the more
2 likely is to test the evidence which is being given by
3 this particular witness. Not to hide anything, what we
4 say is that it is simply not possible for a document
5 such as AI1 to have been prepared from what was before
6 either Mr Iqbal or, as he now tells us, the other
7 Liberal Democrat people at the table.
8 THE COMMISSIONER: The point is made but I think there is
9 a limit to the merit that can be gained from pursuing
10 it, frankly. I think I will have to bear with you at
11 quarter past because it is time for our break. I was
12 hoping to finish this witness before the break but it
13 has turned out not to be the case.
14 I have now read the statement of Ms Harding for the
15 purposes of anyone who wishes to address me at some
16 future date.
17 All I would say about it is this: it is a prime
18 example about how anything that can be misunderstood
19 will be misunderstood. I undoubtedly did say that her
20 account of it was less satisfactory. That was clearly
21 taken by those instructing you as indicating that it was
22 a less satisfactory means of credibility. What
23 of course I meant was that, if true, it is a less
24 satisfactory state of affairs even than the one put
25 forward by the petitioners, therefore even if her
66
1 evidence is correct this may not help you any. That was
2 the point I was intending to make. I could not
3 obviously have expressed any view as to the satisfactory
4 nature of evidence until I have seen the lady give
5 evidence. Right, quarter past.
6 (12.05 pm)
7 (A short break)
8 (12.15 pm)
9 MR COPPEL: Just a very few questions remaining.
10 It was others rather than you who prepared the notes
11 from which you created this spreadsheet?
12 A. No. I took numbers down as well.
13 Q. Do you still have the documents that you jotted down the
14 numbers on?
15 A. I believe it is at home.
16 Q. Do you have the documents that others used to jot down
17 the numbers and from which you prepared the spreadsheet?
18 A. Yes, I believe I do.
19 MR COPPEL: I would ask to you produce those documents to
20 the court, please.
21 Thank you.
22 MR SUKUL: I have no re-examination.
23 THE COMMISSIONER: You are free to go.
24 MR SUKUL: My next witness is Naser Iqbal.
25
67
1 NASER IQBAL (affirmed)
2 Examination-in-chief by MR SUKUL
3 A. My name is Naser Iqbal.
4 MR SUKUL: Could you turn to page 337. Do you see it there?
5 A. Yes.
6 Q. On the following page, 338.
7 A. Yes.
8 Q. Is that your signature there?
9 A. Yes.
10 Q. Is the document you are looking at your witness
11 statement?
12 A. Yes, it is.
13 Q. I will just read it:
14 "I, Naser Iqbal, of 144 Whitehead Road, Birmingham
15 make this statement and say as follows:
16 "This witness statement contains information which
17 is within my own knowledge save where it is stated
18 otherwise, in which case it is true to the best of my
19 information and belief. I am one of the petitioners and
20 I am also the younger brother of Ayoub Khan, a Liberal
21 Democrat candidate for the 2004 June elections. On
22 8th June 2004, I was with my brothers Asif Iqbal and
23 Tariq Hussain. Asif Iqbal was the driver and Tariq
24 Hussain was the front seat passenger. I was sitting
25 in the rear passenger seat.
68
1 "At around 11 pm we drove on to Witton Road and
2 I saw Zulfikar Khan, the Aston ward Labour secretary,
3 and Mohammed Afzal, the Labour candidate, sitting in
4 a car outside the local Labour campaign office. We
5 drove round the block and on return found that they were
6 still sitting in the car outside the Labour election
7 campaign office.
8 "We parked our car outside the Roti Junction
9 takeaway on Witton Road not far from the Labour campaign
10 office. A few moments later, a car drove down Witton
11 Road, passing our car, and parked opposite the car in
12 which Mohammed Afzal and Zulfikar Khan were sitting.
13 "I went for a walk towards the Labour campaign
14 office and I saw the Labour candidate, Mohammed Nazrul
15 Islam, and a passenger get out of the car that had just
16 parked up. Mohammed Nazrul Islam and the passenger got
17 out of the car. I could see that the passenger had a
18 large carrier bag and that Mohammed Nazrul Islam had
19 something hidden under his clothing.
20 "They walked into the Labour campaign office,
21 accompanied by Mohammed Afzal and Zulfikar Khan. A few
22 moments later a number of people came out of the Labour
23 campaign office. I saw Zulfikar Khan and another man
24 come out of the office with carrier bags and place them
25 in the boot of the Primera. Zulfikar Khan then sat in
69
1 the front passenger side of the Primera and the man sat
2 in the rear passenger side.
3 "Then Mohammed Afzal and Mohammed Nazrul Islam
4 came out of the office. Mohammed Afzal sat in the
5 driver's seat and Mohammed Nazrul Islam sat in the rear
6 passenger side of the Primera. I went back to our car
7 and we decided to follow this Primera car. We followed
8 this car and saw the car go into a deserted warehouse
9 car park. When we drove into the car park at the
10 warehouse I saw Mohammed Afzal and Zulfikar Khan along
11 with the other passengers in the rear. I could clearly
12 see Mohammed Afzal and Zulfikar Khan because Mohammed
13 Afzal had the driver's side window down and had his
14 right arm leaning outside the window. Also, our car
15 headlights shone directly at him.
16 "We turned our car around as there was a dead end
17 and headed back out of the car park. We parked on the
18 side of the road. I then saw a Mercedes car with
19 private registration "NAJEB", or something similar,
20 drive up and enter the same car park. Whilst we were
21 parked outside on the side road, me and my brothers were
22 crouched down in our seats so no-one could see us.
23 "A car parked next to us and I could see the driver,
24 who was Mohammed Amin Kazi. We then saw the police
25 arrive and left.
70
1 "I believe the facts stated in this witness
2 statement are true."
3 It is dated 17th February 2005.
4 Please remain there, Mr Iqbal.
5 Cross-examination by MR HAYES
6 MR HAYES: Mr Iqbal, you are another brother of Mr Ayoub
7 Khan?
8 A. That is correct.
9 Q. The younger one?
10 A. Of course.
11 Q. I would imagine you are a practising Muslim?
12 A. That is true.
13 Q. You go to the mosque?
14 A. Of course.
15 Q. Again, this may or may not help, but why did you not
16 touch the holy book today?
17 A. That is because according to my research which I did,
18 I did not find -- well, in Islamic law there is no such
19 thing as touching the Koran.
20 Q. You know the consequences of touching the holy book and
21 telling a lie?
22 A. There is no such thing in the Islamic law. How can you
23 say it is a sin, how can you say that?
24 Q. Some of us have been round the courts for a long time
25 and some of us have seen a lot of Muslims who actually
71
1 touch the Koran.
2 A. We base the -- (inaudible: overspeaking) -- on facts.
3 Q. All I am really asking you is this: are you here to tell
4 the truth?
5 A. Of course I am here to tell the truth.
6 Q. Or are you here to tell lies?
7 A. I am here to tell the truth. You know, I am
8 a practising Muslim and I am going to tell the truth.
9 Q. You say you saw people in your car. This was part of
10 a Liberal electoral surveillance team, was it not?
11 A. I do not understand what you are talking about.
12 Q. My learned friend a moment ago put a newspaper report,
13 where in that newspaper report there was talk of
14 a Liberal electoral surveillance team.
15 A. The news report, they can say whatever they want to say.
16 I am telling you what is in my statement.
17 Q. Could you just listen very carefully to the questions
18 and do your best to answer them. Were you part of
19 a Liberal election surveillance team?
20 A. Okay ...
21 Q. It is a yes or no, really. It is not difficult. Yes or
22 no?
23 A. I am a petitioner.
24 THE COMMISSIONER: Was there a team set up to keep an eye on
25 the Labour Party?
72
1 A. Not that I am aware of.
2 MR HAYES: Therefore the newspaper article that my learned
3 friend put to your brother, that is wrong, is it?
4 A. What is in the newspaper ... I am talking about my
5 statement here. What I saw, what I believe is that
6 three councillors, Labour councillors, have committed
7 fraud.
8 Q. It may well be.
9 A. That is why I am a petitioner.
10 Q. I will read it to you, just so we are thinking along the
11 same lines.
12 THE COMMISSIONER: It says Councillor Kazi and his
13 colleagues were trapped by a Liberal Democrat postal
14 ballot surveillance team. That is what the journalist
15 calls it. Were you part of a team keeping an eye on the
16 Labour Party?
17 A. No.
18 MR HAYES: You see, a journalist can be wrong, but in that
19 article it goes on quoting a Liberal Democrat spokesman.
20 We have heard it was not the brother who gave evidence
21 a little white ago. Was it you? Did you speak to the
22 paper?
23 A. No.
24 Q. I am not going to take that any further.
25 "Around 11 o'clock we drove into Witton Road and
73
1 I saw Zulfikar Khan, the Aston ward Labour secretary,
2 and Mohammed Afzal", and that will be dealt with by my
3 learned friend, "the Labour candidate sitting in a car
4 outside the Labour campaign office. We drove round the
5 block and on return found that they were still sitting
6 in the car outside the Labour campaign office. We
7 parked our car outside the Roti Junction takeaway on the
8 Witton Road, not far from the Labour campaign office."
9 What are you actually doing that night then?
10 You had gone round the block, you were keeping
11 the Labour Party office under surveillance, what were
12 you doing?
13 A. I think you should ask that to Asif Iqbal, he was the
14 one driving the car.
15 THE COMMISSIONER: What did you think you were doing in
16 Witton Road on that evening?
17 A. Asif Iqbal told us where he was going to go, and that is
18 some kind of suspicion that he had, some kind of --
19 whatever he heard.
20 THE COMMISSIONER: You were there to see what was going on?
21 A. I just wanted to come along.
22 MR HAYES: I am obliged, thank you, sir.
23 Then we go on:
24 "A few moments later a car drove --
25 THE COMMISSIONER: Mr Hayes, I had the opportunity of
74
1 looking at your cross-examination of the last witness.
2 I was not totally certain at the end of the day how much
3 of it your clients, as opposed, obviously, to Councillor
4 Afzal, disagree with.
5 MR HAYES: This one is slightly different and there is
6 a purpose.
7 THE COMMISSIONER: I do not want to stop you. I simply want
8 to indicate that bearing in mind when the police
9 officers gave evidence, it was not specifically
10 challenged on behalf of either of your clients that they
11 were there at the warehouse. Clearly at some stage
12 I will have to decide what they were doing at the
13 warehouse at 1.30 am, but nonetheless, that was not
14 (inaudible), but that is Mr De Mello's case.
15 MR HAYES: And that Mr Islam was in the car, of that there
16 is no doubt.
17 Then we come to 7 which in my respectful submission
18 is different from what we have heard about.
19 THE COMMISSIONER: You can certainly deal with differences
20 in the statement, but from my point of view, if it
21 assists you, I am more interested in what was going on
22 in the warehouse than how they got to the warehouse.
23 If what they were doing at the warehouse was
24 entirely above board and in order, then the fact that
25 they may have behaved like stage villains on the way
75
1 there, drawing attention to themselves by driving around
2 in cars and looking suspicious, is really nihil ad rem.
3 If, on the other hand, I come to the conclusion that
4 what they were doing there was seriously wrong, then it
5 will not matter if they had arrived there in
6 a chauffeur-driven Rolls, frankly. So how they got
7 there is of limited concern. That said, you may ask any
8 questions you like but it is an indication of what is
9 important and what is not.
10 MR HAYES: That is really helpful, sir.
11 It is really 7 I want to ask you about:
12 "I went for a walk towards the Labour campaign
13 office and I saw the Labour candidate Mohammed Nazrul
14 Islam and the passenger get out of the car that had just
15 parked up."
16 And this is the key line that I want to question the
17 witness on:
18 "I could see the passenger had a large carrier bag
19 and that Mohammed Nazrul Islam had something hidden
20 under his clothing."
21 We have not heard that from anyone else before, have
22 we? You have been here.
23 A. Yes.
24 Q. Are you sure it is true? We have heard from your
25 brother, and he makes a special point, and that is
76
1 paragraph 5 --
2 A. What I saw is true.
3 THE COMMISSIONER: Paragraph 5:
4 "... looked like a carrier bag, placing it under his
5 clothing and walking to the Labour campaign office."
6 MR HAYES: "... someone going to the boot of the car and
7 retrieving what looked like a carrier bag."
8 THE COMMISSIONER: It does not say who it is, but he
9 certainly describes someone putting something under his
10 clothing.
11 MR HAYES: Precisely, and of course Councillor Islam is
12 well-known. If he could say it was Councillor Islam, he
13 would have said it. I want to know why this witness had
14 said Councillor Islam.
15 Why did you say it?
16 A. Because I had seen him.
17 Q. You are sure, you have not just made it up after the
18 event?
19 A. No.
20 Q. But at the end of the day all you can say, and this is
21 the line of questioning, sir, which I hope is reasonably
22 helpful, is that you saw something that you thought was
23 suspicious and that was the end of it?
24 A. What I saw was something which was A4-sized.
25 Q. No, no.
77
1 A. You asked me what I saw.
2 THE COMMISSIONER: The activity that you saw going on was
3 suspicious is what he is saying to you. Did you think
4 something wrong was going on?
5 A. According to my belief, I believe that they had false
6 votes and they were committing fraud.
7 MR HAYES: Just pause there. The witness said something
8 about A4 size. What do you mean?
9 A. He had under his clothing something that was A4 sized.
10 Q. Right. But where is that in your witness statement?
11 A. It is probably not in there but that is what I saw.
12 Q. Just a moment. This is a major part of the petitioners'
13 case, yes?
14 A. Yes.
15 Q. You are a petitioner?
16 A. Yes.
17 Q. You were part and parcel of helping put together this
18 case?
19 A. That is right.
20 Q. You know the importance of saying to the
21 Commissioner precisely what you saw on that night, yes?
22 A. I can -- certain things, when you talk about it
23 sometimes they may come later on, that you elaborate on.
24 Q. A4 suggests a ballot paper or something integral to the
25 voting process, does it not, yes?
78
1 A. Yes. It could be.
2 Q. Because what you are trying to say to the court is that
3 you now saw clear evidence of vote rigging, are you not?
4 A. What I am saying is that I saw Councillor Nazrul Islam
5 with something A4 under his clothing.
6 Q. But this is the first time that we have heard that, Mr
7 Iqbal, and I am asking you quite simply why.
8 A. Because it took place.
9 Q. But why is this the first time that we have heard it?
10 A. That is -- to me that is a stupid question.
11 Q. Give me a stupid answer then.
12 A. How can I give you a stupid answer?
13 Q. I am not going to take this any further. The point is
14 made, whether it is a good one or a bad one is entirely
15 a matter for you.
16 THE COMMISSIONER: I think you should stop digging.
17 MR HAYES: I have no more questions for this witness.
18 THE COMMISSIONER: Mr De Mello.
19 Cross-examination by MR DE MELLO
20 MR DE MELLO: You are the petitioner in this case, one of
21 the petitioners?
22 A. Yes, I am one of the petitioners.
23 Q. And we know that you assisted in formulating the
24 petition?
25 A. That is true.
79
1 Q. And one of the grounds which I am concerned with, if you
2 would please turn to the petition.
3 THE COMMISSIONER: You will find it in volume 1, which is
4 the right of the two files on the floor.
5 MR DE MELLO: It is page 9.
6 Just tell me this: if you look please, firstly, at
7 paragraph 13.6, were you responsible for formulating
8 that contention at paragraph 13.6? "We contend ..."
9 A. In this petition, what I contributed was section 14.
10 Q. But I understand --
11 THE COMMISSIONER: Do you take issue with any of that as
12 a statement of law?
13 MR DE MELLO: 13.6, no I do not.
14 But what I would like you to perhaps amplify, before
15 I move on to 14, is that in 13.6, is that the view that
16 you hold as a petitioner in support of the Liberal
17 Democrat candidates? Essentially it sets out the
18 procedure to be followed when a postal vote is being
19 cast and, having read it, do you accept that that is
20 a view which you yourself at the relevant time
21 professed?
22 A. Yes, I did.
23 Q. I will come to 14 in a moment, but can I also then ask
24 you, because you have perhaps not seen these forms
25 before, to deal with a certain number of application
80
1 forms.
2 THE COMMISSIONER: Do we have copies for the witness?
3 MR DE MELLO: Yes.
4 THE COMMISSIONER: Do you want to deal first with the issues
5 of what happened on 8th June before coming to that?
6 MR DE MELLO: Certainly I will follow that track.
7 Let us deal with paragraph 14 of page 9. You tell
8 us firstly at paragraph 14.1 that:
9 "Around 11.30 on Tuesday 8th June 2004, Mohammed
10 Islam, Mohammed Afzal and Mohammed Kazi, the Labour
11 candidates for Aston ward, were followed with bags of
12 postal votes, taking them from the campaign office in
13 Witton Road to a deserted road near a warehouse on the
14 Wrylie Industrial Estate. The police were called and
15 attended for around an hour and a half. During this
16 period a witness phoned the Labour candidates on their
17 mobile and the sounds of panic were heard."
18 Did you provide that statement?
19 A. I provided a certain amount of that statement, yes.
20 Q. Can you tell me what you did provide?
21 A. What is within my actual statement is what took place.
22 Q. With respect, am I right in suggesting that you are the
23 only petitioner who was present that night on 8th June,
24 who then witnessed what you claim happened in your
25 statement, and you are the person who assisted in
81
1 preparing this petition, correct?
2 A. I am a petitioner, yes.
3 Q. Look at it. The last sentence:
4 "During this period a witness phoned the Labour
5 candidates on their mobile and the sounds of panic were
6 heard."
7 Was it you who telephoned the Labour candidates?
8 THE COMMISSIONER: Let us take it a stage back. Did you at
9 any time observe Labour candidates talking on their
10 mobile phones?
11 A. Did I observe Labour candidates?
12 THE COMMISSIONER: Did you see any of the Labour candidates
13 on that evening, 8th June, talking into a mobile phone?
14 A. I cannot remember.
15 THE COMMISSIONER: Did you at any time hear what are
16 described as sounds of panic from the Labour candidates?
17 Did you hear anything said or done by the Labour
18 candidates? You saw you saw them, but did you hear them
19 do anything?
20 A. I cannot remember.
21 MR DE MELLO: Do you recall whether a witness phoned the
22 police?
23 A. I cannot remember.
24 Q. So were you responsible for providing the solicitors
25 with the information that the police were called and
82
1 attended for around an hour and a half?
2 A. What I provided, which I have stated -- there are three
3 other petitioners and of course they provided
4 information.
5 Q. But I am right in suggesting, am I not, that Qadeer
6 Ahmed, Nagman Mir and Ayaz Iqbal were not witnesses to
7 the incident which occurred on 8th June?
8 A. I do not know.
9 Q. Well, with respect, you were the person who was
10 a witness to this incident on 8th June?
11 A. Yes, I was the person who saw and witnessed it.
12 Q. Was the petition shown to you before it was lodged?
13 A. I do not understand the question.
14 THE COMMISSIONER: Did you read the petition before it
15 was sent to the court?
16 A. Yes.
17 MR DE MELLO: Did you point out to your solicitors: look
18 here, there is something in this paragraph at 14.1 --
19 THE COMMISSIONER: Can we have what he said to his
20 solicitors?
21 MR DE MELLO: Certainly.
22 Did you at any stage indicate perhaps that there
23 might be things in there which are inaccurate or not to
24 your knowledge?
25 A. The information which I have provided, that is the
83
1 information that I have provided. There are other three
2 petitioners, question them.
3 Q. Can you tell me, soon after 8th June 2004, when did you
4 first provide information to your solicitors? Do not
5 tell me what you provided but tell me when first.
6 A. I cannot remember exactly the date. What I can remember
7 is that I did have a discussion with the petitioners.
8 THE COMMISSIONER: Before the petition was sent in?
9 A. Before the petition -- yes.
10 THE COMMISSIONER: We know the petition was sent in on the
11 23rd so you must have said something between the 8th
12 when this happened and the 23rd.
13 A. Yes, I must have.
14 MR DE MELLO: Mr Iqbal, can you also assist. You have given
15 us quite a detailed statement on page 338 about how you
16 had driven to Witton Road in your brother's car and then
17 you got out of the car and went for a walk, and you had
18 seen Afzal -- and I am only concerned with Afzal --
19 in the car and how he was followed to the industrial
20 warehouse.
21 But none of this appears in the petition at
22 paragraph 14.1. Are you able to tell us why not?
23 A. Can you repeat that question again?
24 Q. I will try to paraphrase it. You have given us a lot of
25 detail in your witness statement and, more importantly,
84
1 that Afzal's car was seen there.
2 THE COMMISSIONER: Why does that need to be in 14.1? 14.1
3 was a summary of what it is alleged Councillor Afzal
4 did. Why is it necessary to plead evidence? The formal
5 rule is not to plead evidence, but simply to plead the
6 allegation.
7 MR DE MELLO: The reason is that we have put to this witness
8 and the previous witness that Afzal was not there.
9 THE COMMISSIONER: Yes, that is a different matter.
10 MR DE MELLO: Secondly, they could not have seen his black
11 Primera car.
12 THE COMMISSIONER: I am not sure that was put to the last
13 witness but I take no point on it.
14 MR DE MELLO: The point that we are pressing for is that
15 this description of events is very fabricated.
16 THE COMMISSIONER: It is suggested that you made this up,
17 that Councillor Afzal was not there and his car was not
18 there, how do you respond to that allegation?
19 A. That is a lie, first of all.
20 MR DE MELLO: Do you know if your brother Tariq Hussain had
21 contacted the Birmingham Post?
22 A. I do not know.
23 Q. Well, I understand that he is not coming to give
24 evidence. I am not certain, so I might ask you a few
25 questions, and if you are not able to assist please say
85
1 so. But as far as you are concerned, the only persons
2 who were in the car with you were your brothers, Asif
3 and Tariq. Yes?
4 A. That is true.
5 Q. And according to the newspaper article, to which we have
6 alluded a moment ago, there is a mention of a witness
7 who sat in the car and that witness apparently provided
8 information to the newspaper reporter. It was not you,
9 was it?
10 THE COMMISSIONER: Did you speak to a reporter from the
11 Post?
12 A. No.
13 MR DE MELLO: Are you able to tell us, I will repeat once
14 again, whether Tariq Hussain might have done so?
15 A. I do not know.
16 Q. Well, can you tell me, when you got to Witton Road, at
17 paragraph 4 of your statement, in which direction were
18 you travelling? Were you heading past the Labour --
19 A. The same direction which Asif Iqbal --
20 Q. You heard his evidence.
21 A. Yes.
22 Q. I am not going to press on with that then.
23 Next, do you recall seeing Councillor Kazi's car at
24 any stage?
25 A. Yes, that was just when we were outside the actual
86
1 industrial warehouse.
2 Q. So he arrived there after you had arrived? Is that
3 right?
4 A. We were parked on the side, and Councillor Amin Kazi,
5 his car parked ...
6 THE COMMISSIONER: What does he drive?
7 A. I do not know what he drives. I saw his face.
8 MR DE MELLO: Assume he was driving a Toyota Carina. Do you
9 recall see a Toyota Carina?
10 A. I can distinctly remember his face.
11 Q. Look at paragraph 12 of your statement and tell me,
12 having read that:
13 "Whilst we were parked outside on the side road,
14 me and my brothers were crouched down in our seats so
15 no-one could see us. A car parked next to us and
16 I could see the driver, who was Mohammed Amin Kazi."
17 Do I understand it that Kazi arrived there after you
18 got to the warehouse? Are you able to say?
19 A. Can you repeat the question?
20 Q. Do you recall whether Kazi got to the warehouse before
21 or after you got there?
22 A. After. When we parked.
23 Q. Okay. Let us move on to the forms. I will just show my
24 learned friend, Mr Sukul, first of all.
25 THE COMMISSIONER: A copy for me and a copy for the witness.
87
1 (Handed)
2 MR DE MELLO: Firstly, if you turn to -- bear with me
3 a moment.
4 THE COMMISSIONER: If you look at 003127, declaration of
5 identity. Name of witness, is that you?
6 A. That is me.
7 THE COMMISSIONER: Is that your signature on signature of
8 witness?
9 A. Yes.
10 THE COMMISSIONER: Did you write the signature of voter?
11 A. No.
12 THE COMMISSIONER: If you turn over the page,
13 the application to vote by post.
14 Is there any part of that document that is written
15 by you?
16 A. No.
17 THE COMMISSIONER: Could you turn please to the third
18 document, which is 003126. Is that again your name as
19 witness?
20 A. Yes.
21 THE COMMISSIONER: And your signature?
22 A. As a witness, yes.
23 THE COMMISSIONER: Did you write the signature of voter?
24 A. No.
25 THE COMMISSIONER: Could you look at the final document,
88
1 which is an application to vote by post. Did you write
2 any part of that document?
3 A. No.
4 MR DE MELLO: But in each instance (inaudible) the voter
5 signed was satisfied that the voter was the person who
6 you knew?
7 A. Yes.
8 Q. And looking at 3127, do you know a person called
9 Mohammed Majid?
10 A. Yes, at that time.
11 Q. And the same, 3126, application to vote by post, you
12 know the person called Abdul Kali?
13 THE COMMISSIONER: They both live at 33 Nelson Road, do
14 they?
15 A. Yes.
16 MR DE MELLO: Is that your usual signature which appears on
17 3127?
18 A. Yes, that is my usual signature.
19 Q. Which is, according to my eyes, somewhat different to
20 the signature appearing in your witness statement on
21 page 338.
22 THE COMMISSIONER: I was just going to say they looked
23 remarkably similar. The moral of the story, Mr De
24 Mello, is cobblers should stick to their last and that
25 goes for me as well.
89
1 MR DE MELLO: Finally, just in relation to this point, I ask
2 you to look at your application to vote by post, which
3 I have given Mr Sukul. (Handed)
4 THE COMMISSIONER: Thank you very much.
5 Is that your signature, Mr Iqbal?
6 A. Yes, that is my signature.
7 MR DE MELLO: That is your signature, is that right?
8 A. Yes, that is my signature.
9 Q. Can you help me on a couple more matters. Firstly, are
10 you able to tell me whether your brother Ayoub Khan is
11 intending to participate in the elections in May of
12 2005, we assume it is2005?
13 A. If it is about Ayoub Khan, I think the best person to
14 ask is Ayoub Khan.
15 THE COMMISSIONER: You mean the council elections?
16 MR DE MELLO: That is right.
17 Secondly, it may be that I might have to ask Ayoub
18 Khan if your brother Tariq does not come, but to your
19 knowledge, do you know if he is coming to give evidence?
20 A. I do not know about Tariq Hussain.
21 Q. I want to ask you something entirely different. Do you
22 know of Tariq Hussain of NT warehouse?
23 A. Tariq Hussain?
24 Q. Of NT warehouse.
25 THE COMMISSIONER: That is the warehouse that everybody went
90
1 to on that night, or did not.
2 You mean the owner of it?
3 A. The name Tariq Hussain?
4 MR DE MELLO: Yes.
5 THE COMMISSIONER: Do you know the man who owns that
6 warehouse that you were sitting outside?
7 A. I know him by the name Najib.
8 MR DE MELLO: I think Najib might be Tariq's brother but
9 we will leave it as it is.
10 Thank you very much.
11 THE COMMISSIONER: Mr Brook?
12 MR BROOK: No questions.
13 MR COPPEL: No questions.
14 MR SUKUL: Nothing from me.
15 THE COMMISSIONER: Thank you, you are free to go.
16 Obviously this would be a suitable time to take the
17 adjournment. Can I ask you, Mr Sukul, who is your next
18 witness? Assuming that there are still problems with
19 Mr Tariq Hussain, who is your next witness?
20 MR SUKUL: Mr Ayoub Khan.
21 THE COMMISSIONER: I have no statement from Mr Ayoub Khan.
22 What about the witnesses on your list?
23 MR SUKUL: Nobody else on that list is coming, sir, and I
24 raised matters with my --
25 THE COMMISSIONER: None of them are coming to give evidence
91
1 everybody is happy with that?
2 MR SUKUL: Save Tariq Hussain.
3 THE COMMISSIONER: Save Tariq Hussain, who remains a
4 problem, but everybody else on the list you are happy
5 should be read?
6 MR COPPEL: No is the answer.
7 THE COMMISSIONER: I know your problems with Mrs Mir.
8 MR COPPEL: Mrs Mir and Matloob as well. Neither of those
9 I would be happy going in as evidence without the
10 opportunity to cross-examine. I have indicated to my
11 learned friend that that is our position.
12 THE COMMISSIONER: Can you sort it out by 2 o'clock as to
13 who is here and who is not? At 2 o'clock I will hear
14 any application to receive the evidence of Mr Ayoub
15 Khan, but unless that evidence goes directly to the
16 issues that are in the case I will require some
17 persuading that somebody who was not hitherto been
18 a witness, though obviously having an opportunity to do
19 so, would be giving evidence.
20 That, of course, goes equally as for Mr Ayoub Khan
21 as for any witness from any of the other parties. So do
22 think carefully about it between now and 2 o'clock.
23 MR BRODIE: Can I raise one matter?
24 THE COMMISSIONER: I have got those.
25 That was quickly dealt with.
92
1 (1.00 pm)
2 (The short adjournment)
3 (2.00 pm)
4 THE COMMISSIONER: Mr Sukul, have you sorted out the
5 position with regard to witnesses?
6 MR SUKUL: Sir, the answer to the question is yes, but it
7 may not be satisfactory.
8 THE COMMISSIONER: What is the position with regard, first
9 of all, to the witnesses on the rest of your list, apart
10 from Mr Tariq Hussain?
11 MR SUKUL: Those witnesses will not be attending and, sir,
12 you are right to say that with the exception of Tariq
13 Hussain certainly Mr Hayes has mentioned to me that he
14 has a professional desire that Mr Hussain should attend
15 but those are matters for him when he comes to address
16 you in due course.
17 The current information is this: following the
18 incident last night to which I alluded a little bit
19 earlier on, and bearing in mind the fiery way in which
20 this campaign has in fact been orchestrated back in May
21 and June of last year, and various incidents that
22 apparently took place prior to the election itself,
23 Mr Tariq Hussain has sent word that he simply does not
24 wish to give evidence. He feels if he does he will be
25 opening the doors further to more threats of
93
1 intimidation.
2 THE COMMISSIONER: Have the police been informed of this?
3 MR SUKUL: The police were informed last night and I am told
4 that soon after 10 o'clock they attended at Whitehead
5 Road which is apparently where Mr Hussain lives or
6 frequents.
7 THE COMMISSIONER: It would be of assistance, I think, if
8 enquiries were made of the police who attended Whitehead
9 Road to find out what the position was. If the police
10 attended and were simply spoken to by someone who made
11 complaints or threats, that is one thing.
12 On the other hand, if the police attended Whitehead
13 Road and found large numbers of people in balaclava
14 helmets, then I might take a different view. So I think
15 we should ask the police what the position is on this
16 and I will allow to hold Tariq Hussein over for the time
17 being. I am sure Mr Brook will help.
18 MR BROOK: Now that the request has been made by the
19 court --
20 THE COMMISSIONER: Could you see if that can be sorted out?
21 MR BROOK: Perhaps I can be excused.
22 THE COMMISSIONER: Of course, I am very much obliged,
23 thank you.
24 Let us take the easy ones first. 9, 10 and 11 in
25 your witness list, the two Sarkaris and Sujon Miah
94
1 Choudhury. Is everybody happy that those should be
2 read?
3 MR SUKUL: I do not think that they are. I have spoken to
4 my learned friends and the upshot of that brief
5 discourse is this from my point of view. I am going to
6 leave the matter in your good hands as to whether you
7 consider it right and fitting in all the circumstances
8 that they should be read.
9 In saying that, I have to accept professionally that
10 my friends would be disadvantaged by the fact that they
11 would not be given the opportunity to cross-examine
12 these absent witnesses.
13 THE COMMISSIONER: Mr Hayes, how seriously do you want
14 either of the Sarkaris there?
15 MR HAYES: I do not want any of them.
16 THE COMMISSIONER: Mr De Mello?
17 MR DE MELLO: No.
18 THE COMMISSIONER: So we can read the Sarkaris. Mr Sujon
19 Miah Choudhury, he produces a lot of documents that he
20 says he did not sign. Do you want him, Mr Hayes?
21 MR HAYES: No, sir.
22 THE COMMISSIONER: Mr De Mello?
23 MR DE MELLO: No, sir.
24 THE COMMISSIONER: That is three witnesses we can read.
25 I take it Mr Coppel is neutral as always?
95
1 MR COPPEL: Yes.
2 THE COMMISSIONER: What is the position about Qas Matloob?
3 MR SUKUL: Apparently he is out of jurisdiction, somewhere
4 abroad, somehwere overseas. He has not been seen for
5 some time.
6 THE COMMISSIONER: In which case, you had better ascertain
7 that for sure; in which case, you can serve the notice
8 under the Civil Evidence Act, and if he is genuinely
9 beyond the sea his statement will be admitted, subject,
10 of course, to comment that it is not subject to
11 cross-examination. So if you can get your act together
12 on that I will leave you to do that under the Civil
13 Evidence Act.
14 That finally leaves Mrs Mir of your witnesses, who
15 I have already indicated is not going to help me one way
16 or the other so presumably you will simply not call her?
17 MR SUKUL: Absolutely.
18 THE COMMISSIONER: So all we are left with now is Mr Tariq
19 Hussain, who we may have to take a bit further, and
20 the question of whether I do or do not allow you to call
21 Mr Ayoub Khan.
22 MR SUKUL: I think I have probably exhausted what I can say
23 in support of an application to admit his statement.
24 THE COMMISSIONER: It is very late, is it not? And it is
25 not as if he has not been concerned with this case for
96
1 some time.
2 MR SUKUL: May I mention this briefly, I mention it out of
3 instructions and possibly there is a component of the
4 requirement to serve the interests of justice.
5 Sir, because of the frequency with which the name
6 Ayoub Khan has been mentioned and because of the
7 (inaudible word) of relevant evidence that has been
8 associated with Mr Ayoub Khan, because of the fact that
9 he says, and I think it has not been challenged, that
10 that he was in fact present at a crucial point in time,
11 the counting of the bag and so on is seen and taking
12 place, and also because of some expression on the part
13 of certainly one of my good and learned friends that he
14 should be called to give evidence; in fact, one
15 expression actually came in open court.
16 Then, finally, Mr Ayoub Khan himself wishes to
17 apprise the court of the knowledge that he has. I am
18 thinking that it may well be that it perhaps only just
19 tilts the balance that prudence and common sense might
20 just warrant that his statement be admitted and he might
21 be allowed to give evidence in this trial.
22 That really is the only way I can pitch it insofar
23 as my capability goes, but I am in your hands.
24 THE COMMISSIONER: I have read his statement and it seems to
25 me that the relevance of it with regard to the issues so
97
1 far in the petition is very largely as to his attendance
2 at the count.
3 MR SUKUL: Sir, yes.
4 THE COMMISSIONER: About which obviously there is quite
5 a bit of evidence already. Bearing in mind that the
6 principal person dealing with the count is Mr Coppel,
7 what are your views on this?
8 MR COPPEL: The first point we make is that it is very late
9 indeed to bring into evidence a brand new witness, and
10 there has been of course an order in place since
11 late November relating to evidence in this trial.
12 Secondly, there is no explanation from the
13 petitioners as to why it is now sought to be brought in
14 at this late stage. That is conspicuously absent from
15 my learned friend's application to this court.
16 Thirdly, none of the usual explanations for the late
17 introduction of a witness are present here. Mr Khan's
18 evidence is not responsive to anything which has bubbled
19 up during the course of the hearing. Mr Khan is
20 self-evidently not someone who has just come to light as
21 a witness. He has been here from day 1, he has attended
22 the scrutinies and what have you.
23 So far as the Returning Officer is concerned, were
24 it to be permitted to be introduced, and the onus does
25 lie on the petitioners, we would need to follow it up
98
1 with enquiries of at least five people from the
2 Returning Officer's side so we say: why has it been
3 brought in now, why should we be put to this trouble?
4 They have had their opportunity to put this evidence
5 before, which they have done through other witness.
6 If this is to be pursued now it does involve
7 considerable disruption and additional work for the
8 Returning Officer with no explanation, none whatsoever.
9 THE COMMISSIONER: When you say enquiries of five persons,
10 is that witnesses from the witness list?
11 MR COPPEL: Four are, one is not.
12 You will have seen that Mr Ayoub Khan squarely
13 raises the issue of the so-called conversation that took
14 place with Sir Albert Bore, and in fact I think he
15 describes it in greater detail than anyone to date has
16 put in their witness statement and we would certainly be
17 wishing to enquire of Sir Albert Bore, bearing in mind
18 the very serious allegations that are made in this
19 witness statement as to what took place.
20 I cannot leave that stone in any way, shape or
21 form --
22 THE COMMISSIONER: Does someone have a spare copy? I rather
23 foolishly left mine in my room. (Handed)
24 MR COPPEL: It is paragraphs 8 to 10 that are of particular
25 concern. That is the point. We cannot leave that stone
99
1 unturned.
2 THE COMMISSIONER: Clearly not. One of the perhaps
3 unsatisfactory things from all sides in this petition is
4 this: Sir Albert Bore's name has been mentioned in
5 a number of different contexts: the words attributed to
6 him in the newspapers and his participation in the
7 count. Nobody on the respondent's side has thought to
8 call him as a witness, despite the fact that his name
9 has been in the petition.
10 Clearly, I would not wish to open a Pandora's Box at
11 this late stage. I can see your concerns on this,
12 Mr Coppel. Let us see what the others have to say.
13 Mr Hayes, you would love to have Mr Ayoub Khan
14 there, would you not? I can see you honing your
15 cross-examination as I sit here.
16 MR HAYES: Sir, I made an application at the earliest
17 opportunity, saying that as Mr Ayoub Khan is an integral
18 part of this petition -- he has been part of the legal
19 team -- I have made suggestions if not allegations
20 against him. He has not a cameo, but a starring role in
21 these proceedings and it would be only right and proper
22 and fair to him if I had the opportunity of -- not
23 taking too long, not going through all the politics, we
24 have had enough of that. Well, I suspect you have, sir,
25 but I certainly have.
100
1 We can just go through one or two little issues,
2 which in my respectful submission are of great
3 importance. Because on the handwriting evidence his
4 name does crop up and I am sure there are certain
5 matters that he would want to clarify. And Mr Sukul has
6 been kind enough to grant, from his point of view, what
7 we would like.
8 THE COMMISSIONER: Yes.
9 MR HAYES: I would be disadvantaged, in my respectful
10 submission, and so would the respondents I represent,
11 if he is not called. It will be narrow
12 cross-examination, it will not be wide
13 cross-examination, and it will not stray away from
14 anything I have not dealt with with other witnesses.
15 THE COMMISSIONER: Mr De Mello?
16 MR DE MELLO: I share Mr Coppel's concern to this extent.
17 Firstly, Mr Khan, who I understand (inaudible) no
18 aspersions cast on him, might have involuntarily been
19 influenced by matters that he heard. Secondly, in
20 particular I would disagree for you to allow his
21 paragraph 8 to be introduced because, if you do recall,
22 I have not cross-examined any of the witnesses who have
23 mentioned the deep conversations held between Councillor
24 Afzal and the other persons mentioned there for the
25 first time, Mr Khan says that Councillor Afzal chased
101
1 him and began to speak to Mr Khan.
2 That throws a wholly different light, and I have
3 been denied the opportunity of presenting the full
4 picture as far as the other witnesses are concerned, so
5 I am a little worried about paragraph 8 standing as
6 it is. It would object to that.
7 Secondly, I would also object partially to
8 paragraph 10. I do not object to the rest of his
9 statement to the extent that if he wants to come to give
10 evidence, then so be it. But to that extent, I am
11 disadvantaged and I share the concerns that Mr Coppel
12 has expressed.
13 There is of course a danger that Mr Khan who has
14 been present throughout and wearing two hats is now
15 being asked to come in and might well say things that he
16 might have heard, and sub-consciously the things he has
17 heard might well influence the account that he might
18 give. Those are my feelings.
19 THE COMMISSIONER: Mr Brook?
20 MR BROOK: I have no submission.
21 RULING
22 THE COMMISSIONER: I am asked to rule on whether or not
23 Mr Ayoub Khan's statement should go in and he should be
24 called to give evidence. What troubles me here is the
25 very late stage at which this is put forward.
102
1 Of course, as a technical matter, this statement is
2 well out of time and I could simply reject it as being
3 out of time without any explanation being put forward as
4 to why it is out of time, as to why the matter has not
5 been dealt with. Quite clearly, Mr Ayoub Khan has been
6 integral to this case since day 1. He is, in effect,
7 the representative of the solicitors instructing the
8 petitioners' counsel, and he has attended all the
9 hearings so far.
10 So there is actually no reason at all why he should
11 not have given a statement at a very much earlier stage
12 about the incident at the National Indoor Arena
13 concerning the Nickleby's bag, which has been an issue
14 between the parties in this case from the earliest time,
15 and the Returning Officer has indicated at the earliest
16 possible time that the account given in the petition and
17 indeed the account put forward by the petitioners would
18 be contested.
19 On the other hand, there is no doubt that I have
20 a very wide jurisdiction with regard to witnesses,
21 probably somewhat wider than if I was sitting in an
22 ordinary civil action. So much so, Mr Hayes urged me at
23 the end of last week, that I should have Mr Ayoub Khan
24 give evidence. I think Mr Hayes would probably have
25 said whether anyone likes it or not, and that certainly
103
1 was the tenor of Mr Hayes' application. Now that this
2 application is made by Mr Sukul, Mr Hayes is gung ho for
3 it.
4 On the other hand, I have to take into account the
5 very relevant concerns of th