Aston and Bordesley Green Vote Fraud Trial

Tuesday 8th March 2005

1 Tuesday, 8th March 2005
2 (10.00 am)
3 THE COMMISSIONER: Mr Sukul?
4 MR SUKUL: Sir.
5 MR COPPEL: Before my learned friend starts, at the back of
6 the court there are copies of all of the Returning
7 Officer's witness statements -- just John Owen's witness
8 statement is at the back of the court; multiple copies
9 for anyone who wishes to look at it.
10 I have still not heard from Mr Sukul whether there
11 are any people he wishes to have treated as agents of
12 the Labour Party respondents. The only point I make
13 is that as I have said before, time is running on.
14 THE COMMISSIONER: What I was going to say is I would
15 require all parties by the end of today, who consider
16 that I should name individuals in my report, to have
17 a list by the end of today, because clearly the time is
18 limited for summoning those people before the court.
19 MR COPPEL: In relation to the Bordesley Green matter, I can
20 confirm that everything went out yesterday by recorded
21 delivery.
22 THE COMMISSIONER: And it is possible that that one might be
23 able to find a way round that. Clearly I do not wish to
24 blight people's lives unnecessarily. It may be
25 necessary, but that is a matter which shall be thought
1

1 of.
2 Mr Hayes?
3 MR HAYES: At what stage would you wish to deal with the
4 police report?
5 THE COMMISSIONER: I think we will finish Mr Owen first.
6 Then we will deal with the police report. Mr Owen,
7 I think as you are in suspense at the moment, what is
8 your position with regard to the next witness after
9 Mr Owen?
10 MR COPPEL: My proposal, depending on how long my learned
11 friend was with Mr Owen, was to call Alison Harding
12 next. Then, hopefully, Lin Homer after that. Plainly,
13 Lin Homer is going to have other commitments which have
14 to be accommodated.
15 THE COMMISSIONER: That I will bear in mind. Put it this
16 way, Mr Coppel: bearing in mind Mrs Homer's commitments,
17 I am prepared to be quite flexible if you wish to
18 interpose Mrs Homer at any time. I cannot imagine there
19 will be many questions to be asked of her by most
20 counsel. She plays a less prominent role than in
21 Bordesley Green.
22 MR COPPEL: The reason we call her is that she is the named
23 fourth respondent so it is only right that she be here.
24 At the end of Mr Owen's evidence I would like to
25 cross-examine Mr Ayoub Khan because that should now be
2

1 concluded.
2 THE COMMISSIONER: That seems very sensible.
3 Mr Owen you are still on oath.
4 MR BRODIE: Sir, I indicated yesterday that I might not wish
5 to cross-examine Mr Owen but in fact I do. I have
6 spoken to Mr Sukul. He does not mind me doing so.
7 MR COPPEL: The Returning Officer does object to that, and
8 I indicated that to my learned friend. My learned
9 friend has had an opportunity of cross-examining
10 Mr Owen.
11 THE COMMISSIONER: Could you perhaps just indicate in what
12 area?
13 MR BRODIE: Only the Nickleby's bag which we say is
14 admissible in Bordesley Green on the basis of similar
15 fact.
16 THE COMMISSIONER: I think that is probably better made as
17 a submission rather than by way of further
18 cross-examination.
19 MR BRODIE: It refers to matters which are not entirely
20 clear.
21 THE COMMISSIONER: You would like to clarify things?
22 MR BRODIE: I do not think I will be more than five or ten
23 minutes.
24 THE COMMISSIONER: If it is purely clarification, Mr Coppel,
25 I am minded to see where we get, but I will ride this on
3

1 a very tight rein.
2 MR COPPEL: When my learned friend previously indicated that
3 he might want to use the Nickleby bag as similar fact
4 evidence, he asserted to the court that there was
5 nothing in the evidence of the Returning Officer that
6 dealt with the particular issue and he is wrong
7 in relation to that because in Alison Harding's witness
8 statement she does in fact deal with the very thing that
9 he said there was no evidence as to.
10 So I would ask my learned friend to look at that
11 again and whether he wants to pursue that line because
12 it is not right for counsel in another case to come and
13 cross-examine a witness that he has already had an
14 opportunity to do so.
15 THE COMMISSIONER: I take all that on board. I will hear
16 Mr Sukul first and we will see where we go with
17 Mr Brodie. If he wishes to clarify I am minded to start
18 and see how we go.
19 MR JOHN OWEN (continued)
20 Cross-examination by MR SUKUL
21 MR SUKUL: Sir, may I bid the court a very good morning and
22 a very good morning to you, Mr Owen.
23 The matters I wish to put to you just concern two
24 issues in this case. I have to ask you questions about
25 the warehouse bag, if I can call it that, and I will ask
4

1 you about matters concerning the Nickleby's bag and in
2 between there will be some questions concerning
3 compliance with the 2001 regulations.
4 Let me start with that. I take it from what
5 you have said in your statement, the very long
6 statement, that you are very conversant with the
7 provisions of the 2001 regulations. That sets out the
8 duties that the Returning Officer has in the conduct of
9 this election. Is that right?
10 A. Yes, it is.
11 Q. You would agree with me, would you not, that right from
12 the beginning there was a breach of one of the
13 regulations because of course the postal votes received
14 by the elections office were not in fact put into
15 a postal ballot box? Was that not a breach of the 2001
16 regulations? I think it is paragraph 82, if my memory
17 serves me right.
18 A. Strictly speaking that is a breach of the regulations.
19 Q. What do you mean by that?
20 A. I think I have referred in my witness statement to the
21 practicalities of running an election and that at
22 certain times it is not always possible to adhere to the
23 exact letter of the requirements of regulations, whether
24 it is to do with postal votes or other areas of
25 elections work.
5

1 Q. I want to stick just with postal votes and regulation
2 82. I really am not interested in anything else other
3 than that.
4 Tell the court what it is that prevented you or your
5 office from complying with regulation 82 and, when those
6 votes arrived, to put them in a postal ballot box?
7 A. There are a number of reasons that that was not done.
8 One of them was that the postal votes were being opened
9 in another building for the first time, they were being
10 opened at 1 Victoria Square, and the staff and the
11 ballot boxes to deal with the openings were actually
12 being dealt with at that building.
13 Another reason was just the practicalities of
14 actually putting each individual, large A5 size envelope
15 into the small aperture on the top of a ballot box.
16 Q. That happens all the time, does it not, Mr Owen; the
17 aperture of the ballot box is so designed as to
18 accommodate the passage of the envelope through it so
19 that the envelope is securely stored in the said ballot
20 box. That is the deal, is it not?
21 A. That is the theory but when you are dealing with 70,000
22 envelopes it would take a very long time to put each one
23 individually into each ballot box.
24 Q. Mr Owen, you are dealing with less than a thousand
25 envelopes here. I want to read a little something to
6

1 you, it says:
2 "Receipt of covering envelope, regulation 28."
3 You are familiar with it perhaps much more than
4 I am. It says this:
5 "The Returning Officer shall immediately on receipt,
6 whether by hand or by post, of a covering envelope or an
7 envelope which is stated to include a postal vote before
8 the close of poll, place it unopened in a postal voters
9 ballot box."
10 My question is: why did you not comply with
11 regulation 82?
12 A. I think it is for the reasons I have already stated.
13 Q. For the reasons of practicality?
14 A. Yes.
15 Q. You see, when I suggest that is not the reason why, my
16 suggestion is that you simply chose to disregard the
17 hand of Parliament, disregard regulation 82, and you
18 chose to carry those votes in a plastic shopping bag.
19 Is that not what happened?
20 A. No. Of course, votes were transferred over to
21 1 Victoria Square on a number of days, not just on that
22 Friday morning, to the National Indoor Arena, and on
23 other occasions postal ballot papers were transferred to
24 that building not in a ballot box but in other secure
25 conditions. And of course when it went to the NIA, it
7

1 was with members of my permanent staff in a car so that
2 the postal votes were always under the control of my
3 office.
4 Q. But they were not in control of what Parliament has
5 prescribed, a ballot box, were they, Mr Owen; they were
6 not, right?
7 A. That is correct.
8 Q. Let me ask you this, what I have done on my sheet of
9 paper to make life easy, perhaps more for me than for
10 you, I have listed the practices of your statement to
11 which I want to refer you.
12 THE COMMISSIONER: Is it fair to say that the 2001
13 regulations are simply not designed to cope with postal
14 votes on the scale which you had them in Birmingham?
15 A. Yes, I would say that the 2001 regulations are very,
16 very similar to the 1986 regulations, which were
17 designed for a postal voting system where you had to
18 meet specified criteria to get a postal vote and, in
19 adopting the 2001 regulations, the vast numbers that are
20 now involved for most Returning Officers were not taken
21 sufficiently into account.
22 THE COMMISSIONER: Both in this trial and in the former
23 trial, Mr Owen, you have given evidence as to the
24 difficulties that your staff had by having to apply
25 these regulations, not least the regulation which allows
8

1 postal ballot applications to be received up to six days
2 before the poll. Would it be a fair comment to say that
3 the 2001 regulations do not address the possibility that
4 life may be different after postal votes on demand from
5 what it was when it was postal votes for --
6 A. Yes, I think that certainly the deadline being so close
7 to polling day is one of the difficulties. Another
8 difficulty is that it is not possible under the
9 regulations to automate the process to any great degree.
10 It would be possible to live with a deadline of six days
11 before polling day if it was possible to automate the
12 issuing process. It is a very laborious process at the
13 moment where each ballot paper has to be stamped by hand
14 with the official mark and put into each envelope before
15 it goes out.
16 THE COMMISSIONER: In fact, it goes further. We have dealt
17 with a series of problems that have arisen in postal
18 voting, many of which are said in both these trials
19 really to give the opening on to fraud if people wish to
20 be fraudulent and most of them stem from the 2001
21 regulations.
22 A. Yes, I would agree.
23 Q. For example, a certain amount of fun, if I may say so,
24 was had by Mr Brodie from the fact that you did not keep
25 lists as required by the regulations and you said this
9

1 was quite impractical and served no useful purpose. And
2 you may well be right about both those. But again, this
3 was probably quite a good idea when you have a small
4 number of postal votes for people who are away on
5 business or in hospital?
6 A. Yes.
7 THE COMMISSIONER: So although Mr Sukul is entitled to
8 cross-examine you about what are admitted failures to
9 comply with regulation 82, is your answer essentially
10 this: regulation 82 simply does not cope with the
11 situation that you faced?
12 A. Yes, I would say so.
13 THE COMMISSIONER: Yes. Mr Sukul, that is the problem we
14 face in this case. You are quite right obviously to
15 raise regulation 82, and no doubt it is quite clearly
16 the breach of regulation 82 to be carrying plastic
17 shopping bags round the countryside with votes in. The
18 problem is not that it is being done, but whether that
19 betokens anything more sinister or whether it is simply
20 a way round the rules which does not harm anyone.
21 That is what I have to decide, Mr Sukul.
22 MR SUKUL: Yes.
23 THE COMMISSIONER: (inaudible: overspeaking). The breach
24 is admitted. The question I have to ask is: what turns
25 on it?
10

1 MR SUKUL: Yes. I must take a minute or two more of the
2 court's time because, sir, you have hit on a quite
3 important point.
4 The point is this, Mr Owen. The learned
5 Commissioner says this: confronted with a problem, I am
6 sure that the learned Commissioner meant that the
7 problem you faced was a considerable amount of postal
8 votes and that contributed, did it not, to the
9 practicalities or impracticalities that you mentioned;
10 is that fair comment?
11 A. Yes.
12 Q. Your statement makes it clear, does it not, and the
13 statement of others makes it clear, that there was an
14 express expectation in respect of this election that
15 a substantial quantity of postal votes were going to be
16 received by the elections office. That is right, is it
17 not? You were expecting a huge turnout of postal votes,
18 is that not right?
19 A. Yes.
20 Q. Is it not fair to say that bearing in mind that
21 expectation, bearing in mind the resources you had
22 available at your disposal, you could have complied
23 properly with the regulation 82 and then there would
24 have been no complaint. Is that not fair comment, would
25 you not say?
11

1 A. No, I think that would have been very difficult to
2 comply with, particularly when although we were
3 expecting a large number and a large increase in postal
4 votes that number was exceeded greatly in the very last
5 few days before the deadline. So we were expecting
6 perhaps up to 50,000 postal votes as a maximum, and then
7 it went past 60,000, went past 70,000 in those last few
8 days.
9 Q. All right. Last point on this: when you came to realise
10 that you were in some practical difficulties, what did
11 you do about it? Did you send a note to Mrs Homer to
12 say, "Look, we are in trouble with regulation 82 here,
13 what do I do?". What did you do about it?
14 A. I think regulation 82 was the least of my worries at
15 that time. There were conflicting priorities that I had
16 and I had to consider which work to concentrate on and
17 to think about having someone individually place postal
18 vote envelopes into a ballot box when we were a few days
19 from polling day, and there were a lot of other
20 important -- more important aspects to deal with, to
21 deal with the staffing of the count and the arrangement
22 for the count, that really was something that was quite
23 an easy decision for me to make to decide to disregard
24 that regulation.
25 Q. And you did disregard it?
12

1 A. I did.
2 Q. Let us see if you disregarded anything else. Mr Owen,
3 you have your statement, your first statement. You have
4 your statement in front of you?
5 A. It is not right in front of me but I can find it.
6 THE COMMISSIONER: What page?
7 MR SUKUL: If you go to page 442, it is at paragraph 151.
8 Have I got that right, paragraph 151?
9 A. Yes.
10 THE COMMISSIONER: These are the warehouse notes?
11 MR SUKUL: Sir, they are, yes.
12 Mr Owen, just to set the scene a little bit, your
13 first statement comprises some 95 pages.
14 A. Yes.
15 Q. Your first statement, I think, is dated 5th February.
16 A. I will take your word for it.
17 Q. 5th February, is it not?
18 THE COMMISSIONER: Yes.
19 MR SUKUL: That is 95 pages on 5th February and then
20 yesterday, 7th March, you served another statement
21 comprising, I think, about 30 or 35 pages. Is that
22 right?
23 THE COMMISSIONER: The statement is 10 pages. There are
24 then exhibits.
25 MR SUKUL: And plenty of exhibits. All right.
13

1 Mr Owen, when you made the first statement,
2 95 pages, you put an endorsement at the bottom that you
3 believed what you said in that statement to be true.
4 Whatever was expressed in the 95 pages.
5 A. Yes.
6 Q. Then when you made the second statement, you say at the
7 bottom of that statement:
8 "I confirm that the contents of this statement are
9 true."
10 Yes?
11 A. Yes.
12 Q. If it be the case that what you said in the first
13 statement --
14 THE COMMISSIONER: Mr Sukul, may I remind you, as I have
15 reminded others, that there is still no jury in this
16 case. I am not a jury. And I know the witness
17 statements are ended by a statement of truth signed by
18 the person making the statement as they have been this
19 last 20 years.
20 MR SUKUL: So be it, sir.
21 Mr Owen, what is it that caused you to want to add
22 to your first extremely long statement so that you had
23 to make another statement yesterday? What factors
24 operated in your mind?
25 A. I think there were things that have been said by other
14

1 witnesses during the trial that I felt I could help to
2 clarify, and also hearing that evidence, and thinking
3 through and reading witness statements from other people
4 on the respondents' side, jogs my memory on some of the
5 points.
6 Q. All right. We will come to that in due course.
7 Sir, may I ask if Mrs Harding, who is present in
8 court, can be asked to leave.
9 THE COMMISSIONER: Fine. You have the right to insist if
10 she is here.
11 Mrs Harding, sorry about this, could you go and get
12 yourself a cup of coffee.
13 Mr Sukul, how does Mrs Harding impinge on the postal
14 votes on the Wrylie estate?
15 MR SUKUL: Mrs Harding is going to impinge on other matters.
16 THE COMMISSIONER: I appreciate that. I thought you were
17 going to ask about votes on the Wrylie estate.
18 MR SUKUL: I am.
19 At paragraph 151, which I think you have in front of
20 you, you make the point that you received a telephone
21 call on Wednesday morning at 9 o'clock from the police.
22 You remember that?
23 A. (Witness nods). I have said it was probably about 9 am.
24 Q. Right. Did you make a note anywhere to say that you had
25 received that call?
15

1 A. I believe I made a rough note on that day, and then
2 I made a detailed note the following day after
3 a telephone conversation with DC McLaren, which
4 I believe is attached as an exhibit to my statement.
5 Q. In fact it is, but that note is a note that you made,
6 you know it better than everybody else. That note
7 refers only to 10th June, it does not say anything about
8 9th June, does it? I am asking about 9th June.
9 THE COMMISSIONER: Page?
10 MR SUKUL: It is Mr Owen's exhibit, sir.
11 THE COMMISSIONER: It is in the great exhibit bundle rather
12 than the new exhibits?
13 MR COPPEL: Tab 49.
14 MR BROOK: Sir, can I hand up mine. (Handed).
15 MR HAYES: Sir, I have not had sight of this at all. It
16 would be helpful at some stage.
17 THE COMMISSIONER: Yes, it seems to be dated 10/6,
18 if we look at it.
19 Have a look at that, Mr Owen. (Handed)
20 That is the morning of the election?
21 A. Yes, it refers to Wednesday 9th June in the note.
22 THE COMMISSIONER: So the date of note is 10/6, but the 9th
23 is what it refers to.
24 A. It refers to the 9th and the 10th because it refers to
25 DC McLaren contacting me on the morning of the 10th.
16

1 THE COMMISSIONER: Right, thank you very much.
2 MR SUKUL: To what extent does it refer to the 9th, what
3 does it say about the 9th, the Wednesday? Does it say
4 you received a call from DC McLaren on the 9th?
5 A. It says that 275 postal votes were seized. It does not
6 say that was on the 9th but it was. It says that I have
7 been telephoned to ask if I would take these votes
8 rather than return them to the individuals or
9 alternatively to put them in the post because of course
10 that being Wednesday the 9th would mean that any
11 completed postal votes may not be received by my office
12 in time.
13 Q. But would you agree there is nothing in this note that
14 said you received a call from the police on the 9th?
15 A. I think it implies that.
16 Q. Okay. Either way, you confirm that you did speak with
17 the police on the 9th?
18 A. Yes.
19 Q. Who was it you spoke to on the 9th from the police?
20 A. I do not recall and I did not make a note of the
21 officer's name.
22 Q. Did the police call you or did you call the police?
23 A. The police called me.
24 Q. And that would have been the first time that you
25 realised there was this warehouse incident?
17

1 A. Yes. I did hear something in the newspaper, I do not
2 know if that was before or afterwards.
3 Q. It is right, Mr Owen, that the police told you during
4 the course of that conversation that the Fraud Squad was
5 investigating the incident that took place at the
6 warehouse; is that right?
7 A. No, I do not think so. I think they told me that
8 officers had attended the warehouse and had seized the
9 postal votes. They did not tell me it was the Fraud
10 Squad but I had been talking to the Fraud Squad about
11 fraud allegations and that is why I wanted to discuss
12 it -- yes, they did tell me that they had contacted the
13 Fraud Squad to ask for advice.
14 THE COMMISSIONER: An Inspector Churchill, the bottom of
15 page 57 of your statement, 442.
16 A. I tried to contact DI Churchill but I was unable to
17 contact him. I could not get through.
18 MR SUKUL: My question is this: during the course of that
19 telephone call that you received on Wednesday 9th June,
20 you became aware of the fact that the Fraud Squad was
21 involved in investigating the warehouse incident,
22 is that right?
23 A. I would not say that is exactly right. I think the
24 police told me that officers had attended and that they
25 had contacted the Fraud Squad for advice on what to do
18

1 with the postal votes. That did not necessarily say to
2 me that the Fraud Squad were investigating the whole
3 incident.
4 Q. All right. Let me just read you these lines from
5 paragraph 151. It says this:
6 "I first heard about the postal votes seized from
7 the industrial estate on the morning of 9th June. When
8 I received the telephone call from police at Aston
9 station, I do not recall the exact time but it was
10 probably about 9 o'clock in the morning. I was informed
11 that they had been called to investigate an incident on
12 the Wrylie Industrial Estate and had seized 275 ballot
13 papers from someone there. The local police had then
14 contacted the Fraud Squad who had advised that they
15 thought the local police should photocopy the documents
16 and then return them their owners."
17 That is what you said. I ask you again: during the
18 course of that telephone conversation, did you become
19 aware of the fact that the Fraud Squad was involved as
20 far as the seizure of the 275 postal votes was
21 concerned?
22 A. No, I was aware that the Fraud Squad had been contacted
23 for advice on what the police should do next.
24 Q. What did you think the Fraud Squad was involved in when
25 the police mentioned the Fraud Squad to you on the phone
19

1 at 9 am on Wednesday morning? What did you think the
2 Fraud Squad was being referred to for?
3 A. I really just thought --
4 THE COMMISSIONER: Fraud, I should not wonder.
5 MR SUKUL: Sorry, Mr Owen, I did not hear you.
6 THE COMMISSIONER: Why should they not contact the Fraud
7 Squad when they are confronted with what may be, on the
8 face of it, fraud?
9 MR SUKUL: I am simply trying to investigate what was
10 operating in Mr Owen's mind during the course of the
11 telephone call he received from the police.
12 Did you know that 275 postal votes were seized from
13 the warehouse?
14 A. Not unless I read it in the paper, if it had been in the
15 paper the day before.
16 Q. The police told you that morning that the votes were
17 seized, so at 9 o'clock in the morning you know that
18 275 votes were seized. Is that not true?
19 A. That is true and that is what I have said in my
20 statement.
21 Q. And you also knew that the Fraud Squad was investigating
22 the incident of the seizure?
23 A. No.
24 Q. So why did you say so in your statement then?
25 A. I did not think I had said that in my statement.
20

1 Q. But now that you have read it, you have said it.
2 You have made the point that the statement is true.
3 A. I think I said in my statement that the police from
4 Aston rang the Fraud Squad for advice and I did not
5 think that meant that the Fraud Squad were
6 investigating, I thought it was exactly as I have said
7 in my statement.
8 Q. All right, let us go beyond that. Police call you at
9 9 am, 275 votes seized at night in a warehouse, postal
10 votes. You knew that, did you not, at 9 o'clock in the
11 morning?
12 A. Yes.
13 Q. Did that not set alarm bells ringing from the point of
14 view of a senior elections officer: God, what is going
15 on here with these 275 votes? What was your reaction
16 when the police told you these votes were seized?
17 A. It is something that has never happened to me before.
18 I have never had a phone call saying that before in all
19 the time I have been working in elections.
20 Q. Fair comment. It is the first time it is happening to
21 you. It is the first time I am seeing you. My question
22 is: what did you do by way of reaction when the police
23 told you that in the middle of the night these 275
24 postal votes were seized? What action did you take?
25 A. I wondered what state those postal votes were in and
21

1 whether they should be accepted by me because the
2 purpose of the call was for the police to ask me if
3 I would accept those postal votes from them.
4 Q. Mr Owen, that happened the next day, or it happened that
5 very day?
6 A. It happened --
7 Q. The same day or the following day?
8 A. The same day.
9 Q. Fine, but that answer you have given to this court
10 happened later. I am focusing on 9 o'clock in the
11 morning. There was a second telephone call which I will
12 come to in due course that deals with the offer of
13 acceptance. I will come to it very shortly.
14 I will repeat my question: you hear about the
15 seizure, you are the senior man. What enquiry,
16 investigation, questions, note, reaction, response, what
17 exactly did you do? That is all I ask.
18 A. I wondered what my position was as elections officer on
19 the state of those postal votes. It is something that
20 has not happened to me before and I had to think about
21 whether these postal votes were in a state to be handed
22 to me or whether they should be kept by the police, if
23 they felt an offence had taken place and that there
24 should be an investigation.
25 Q. All right. So the first thing that comes to mind is
22

1 what is the state of these 275 votes. That is your
2 answer?
3 A. (Witness nods)
4 Q. So it must follow that you asked the police on the phone
5 "Officer, what state are these 275 votes in?" Did you
6 do that?
7 A. Either I asked him or he told me.
8 Q. You did not say this in your statement, Mr Owen.
9 THE COMMISSIONER: Paragraph 152:
10 "The officer from Aston police station rang me and
11 said the postal votes were all sealed up."
12 Third line of page 443.
13 MR SUKUL: What else did he say to you? How long did the
14 conversation take with you and the police officer?
15 A. I would imagine two or three minutes.
16 Q. And that is all the conversation that took place,
17 Mr Owen? The votes are sealed, that is it, that took
18 about 15 seconds. What was said in the other minute and
19 three quarters?
20 A. I imagine we will have either wanted to clarify exactly
21 what the state of those postal votes were and whether he
22 was suggesting to me that I should take them, what
23 advice he had received from the Economic Crime Unit,
24 as I now know them to be called. So I wanted -- before
25 I agreed to take them, I wanted to be clear that these
23

1 were postal votes that were in a state for me to accept
2 and he was not able to convince me completely on that.
3 That is why I have said in my statement that immediately
4 after speaking to him, I tried to contact DI Churchill
5 and other officers of the Economic Crime Unit.
6 Q. That came later. What is the name of the officer you
7 said that you spoke to at 9 am from the police?
8 A. I do not recall, I did not make a note of his name.
9 Q. He told you, did he not, that when first the votes were
10 seen by the police at the warehouse they were in
11 unsealed envelopes; did he not say that?
12 A. I do not recall that. I am very clear that I would not
13 accept postal votes --
14 Q. I am not suggesting that at all. I would be
15 disrespectful to you if I did that. I did not say that.
16 What I am saying is this: when you spoke to the officer
17 for two minutes or three minutes that morning at
18 9 o'clock on 9th June, he would have explained to you,
19 would he not, that when the police seized the votes
20 during the course of the night from the warehouse those
21 votes were in fact first seen unsealed, the officer must
22 have said that to you, Mr Owen, did he not?
23 A. I do not recall that. I have heard that since, but my
24 note, which I made the very next day from rough notes
25 that I made at the time, do not state that and I do not
24

1 recall that.
2 Q. All right.
3 THE COMMISSIONER: Mr Owen, answer this: we have heard from
4 the police officers, obviously their evidence is
5 disputed and I shall have to hear other evidence on it,
6 but assume for the moment, for the sake of argument,
7 they are right. We have heard from the police officers
8 that when they go to the warehouse they discover a large
9 number of these votes on the table with ballot papers
10 out of the envelopes and loose on the table.
11 Now, was anything of that kind suggested to you by
12 the police on 9th or 10th June?
13 A. I do not recall any such conversation.
14 Q. If something of that kind would have been said what
15 would your reaction have been to those votes when you
16 later got them?
17 A. I would have been very careful about agreeing to accept
18 them. I would have wanted to have known whether anyone
19 was actually seen writing information on to documents.
20 But if, for instance, those documents were just there
21 out on a table, then it is accepted, although
22 suspicious, for candidates to check (?) these postal
23 votes and it would be possible for them to say that they
24 may have wanted to just check that the documentation was
25 all in order before forwarding them to my office.
25

1 THE COMMISSIONER: But that would mean opening up envelopes.
2 A. Unless the envelopes were open in the first place when
3 they were collected from people, because they had done
4 so on the basis of: give me the envelope as it is, so
5 that I can check the documents for you. I am not saying
6 that is of course what happened, but that is
7 theoretically what could happen in any circumstances and
8 therefore it is something that I would have to consider
9 carefully.
10 I certainly would not want to reject acceptance of
11 postal votes because I am very uncertain on what grounds
12 I could do that, unless I was very clear that there had
13 been some fraud or something untoward taking place and
14 I would be looking to the police to give me advice on
15 that and that is why I tried to contact DI Churchill
16 anyway, just because of the suspicious circumstances
17 that were involved.
18 MR SUKUL: Mr Owen, staying with paragraph 151, you were
19 given some indication that all was not well, because you
20 say this:
21 "The local police had then contacted the Fraud
22 Squad, who had advised that they thought that the local
23 police should photocopy the documents and then return
24 them to their owners."
25 MR COPPEL: The next sentence?
26

1 MR SUKUL: "The local police told me this would have meant
2 opening up sealed ballot papers."
3 When you were told that in the opinion of the Fraud
4 Squad the documents should be returned to their owners,
5 did that not engage some kind of alarm in your mind that
6 all may not be well?
7 A. Yes, and that was why I tried to contact the Fraud
8 Squad, to have that discussion with them about what
9 their concerns were. But because the officer on the
10 phone explained to me that a sample check had been made
11 that was okay, then obviously that led me towards
12 acceptance of the postal votes subject to being able to
13 speak to the Fraud Squad to get their clear view.
14 Q. Your evidence is this: every attempt you made to speak
15 to the Fraud Squad on a matter of public importance,
16 every effort failed?
17 A. Yes, I am unable to get a response on the telephone to
18 a number of telephone numbers that I tried.
19 Q. All right. How far away from the police station was
20 your office at that time?
21 A. I am not exactly sure where the Fraud Squad is based.
22 Q. Ivory Street, Viceroy House; how far away from that were
23 you?
24 A. I do not know.
25 Q. The police told you that the check had been made against
27

1 one voter, is that right? And that is what you say
2 in the statement.
3 A. Yes.
4 Q. You were very familiar with the way DOIs are written,
5 the ballots and so on. Did you ask the police if they
6 were sure that they had gone to the address of the voter
7 as opposed to the address of the witness?
8 A. No.
9 Q. Did you not ask the police: how was it that you were so
10 sure you went to the address of the voter?
11 A. I think I left the police to do their job and take what
12 they say as being correct.
13 Q. Your knowledge is this, is it not, that the police had
14 an envelope B which contained the DOI and the ballot
15 paper. Nowhere in that envelope B was recorded the
16 voter's address. That is right, is it not?
17 A. If the declarations of identity had the top third,
18 because this was a personalised printed document --
19 Q. But usually that is torn off?
20 A. It is supposed to be torn off, but in some cases it is
21 not.
22 Q. But we can proceed on the basis that it is more likely
23 than not, because it is the rule to tear the top third
24 off. That would have been torn off and then the rest of
25 the DOI would have been placed in the envelope B; that
28

1 is the way things happen normally, is it not?
2 A. Yes. The officer told me that they had opened an
3 envelope and were able to go to the voter's address to
4 check the details. So I accepted that.
5 Q. Mr Owen, my question is this. You know full well that
6 in the general scheme of things the voter's address
7 would not be contained in envelope B, when envelope B is
8 to be given to the elections office. Why did you not
9 ask the police officer: how is it that you come to know
10 the voter's address, that is highly confidential?
11 Because of course the ballot paper was exposed. Did you
12 not raise that enquiry to ensure the validity of the
13 check the police made? Did you raise it?
14 A. I do not know that the ballot paper would be disclosed
15 if that was inside the envelope A, as it should have
16 been.
17 Q. Mr Owen, how else could the police check --
18 THE COMMISSIONER: I think the point that is being made is
19 this. The check with the voter, which certainly is
20 a surprising incident in this case, would necessitate
21 the police officer having first of all a declaration of
22 identity which identified the name and address of the
23 voter so they could go and visit him, and, secondly,
24 would necessarily involve removal of the ballot paper
25 from envelope A in order to be able to ask the voter,
29

1 which apparently seems to have been done, whether he
2 completed the ballot paper in the way that it was
3 completed.
4 That I understand to be the enquiry that was made
5 so that had you been given those full facts, you would
6 have deduced that somebody somewhere had taken a ballot
7 paper out of an envelope and waved it in front of some
8 unsuspecting voter at half past one in the morning.
9 It is a bizarre episode and I must make of it what
10 I can.
11 But were you aware that that is what actually
12 happened? What did you understand the check to be made?
13 A. I was told that in an envelope that was already open it
14 was possible to visit the voter and that that voter was
15 visited and confirmed that everything was in order.
16 I was not told at that time that the ballot paper had
17 been shown to the voter, just that the voter had
18 confirmed that they were happy with the situation that
19 they had completed the declaration, I imagine, and
20 therefore there was nothing untoward.
21 At the end of the day --
22 THE COMMISSIONER: So you did not deduce that the voter had
23 been shown his ballot paper.
24 A. I did not at that stage.
25 THE COMMISSIONER: You may be right but it is all a very
30

1 opaque business.
2 Mr Sukul, I may have missed it. Can you actually
3 refer me to the part of the petition where it is part of
4 your case against the Returning Officer that the
5 warehouse votes were accepted incorrectly. You make
6 your case, obviously in detail, against the respondents.
7 I just do not see it there. You have (inaudible) with
8 Mr Owen and have taken it quite some distance, but
9 I just wonder, it is not part of your case that these
10 were improperly received by Mr Owen?
11 MR SUKUL: Sir, I trust that it is.
12 MR COPPEL: Nor is it in the schedule of allegations,
13 of course, the compendious schedule of allegations.
14 THE COMMISSIONER: Mr Sukul, as I say, I want to give you a
15 nice free rein, but at the end of the day this is not
16 pursuing any case you have hitherto made against the
17 Returning Officer.
18 MR SUKUL: Sir, not being the architect of the petition
19 myself, not being infallible, it proceeds on the basis
20 that matters as important as this may have been included
21 by those who drafted the petition. If it be the case
22 that it is not there, I express the highest possible
23 apologies.
24 THE COMMISSIONER: But you had Mr Owen's statement well in
25 advance of this case.
31

1 MR SUKUL: I did.
2 THE COMMISSIONER: Therefore you had what Mr Owen was saying
3 about the votes from the warehouse.
4 MR SUKUL: Sir, the best I can do is page 3 of the bundle,
5 paragraph 7.7. It says this:
6 "Invalid postal votes were accepted as valid by the
7 election staff office."
8 So at least there is an oblique reference to the
9 matters I am raising with Mr Owen now. It is not as if
10 there was a complete absence of that allegation. Right
11 from day one, back in June of last year.
12 THE COMMISSIONER: Perhaps you could cut matters short by
13 putting to Mr Owen what you say Mr Owen ought to have
14 done.
15 MR SUKUL: Indeed.
16 Mr Owen, having heard that the police made a check
17 and having consulted your own experience and knowledge
18 in these matters, you should have asked the police,
19 should you not, to explain to you the means by which
20 they say they visited the voter's address. You did not
21 do that?
22 A. I think I had to consider, faced with the information
23 I had, that these were postal votes sealed in envelopes
24 addressed to the Returning Officer and whether there was
25 any reason that I could actually reject their request
32

1 for me to accept them.
2 Q. Just to make sure I have it clear in my mind, right up
3 to the point in time where the officers said they made
4 their check, your evidence is that you still did not
5 know that the votes were unsealed when first the police
6 officers saw them?
7 A. That is right.
8 Q. That is your evidence, Mr Owen?
9 A. Yes.
10 Q. All right. The petitioners do not accept that.
11 I suggest to you that you knew full well that when first
12 the police visited the warehouse they saw the votes open
13 and scattered over a large table in the presence of six
14 Asian men and that you knew that happened.
15 Now, Mr Owen, let us press on. You were asked
16 whether or not you were prepared to receive the police
17 bag full of 275 votes; that is right, is it not?
18 A. (Witness nods)
19 Q. Do you remember the officer who asked you that?
20 A. No, I do not think I saw that officer.
21 Q. Did you make a note of a phone call coming from the
22 police saying: Mr Owen, we have got 275 votes in this
23 bag, are you prepared to accept them? Did you make
24 a note of that anywhere?
25 A. I think the exhibit that we have just looked at is that
33

1 note.
2 Q. But it does not say the name of the officer, rank or
3 anything at all, nothing at all?
4 A. That is correct.
5 Q. So are you in a position to help us in any way to
6 identify the officer who telephoned you that morning and
7 asked if you were prepared to accept those 275 votes?
8 A. I recognised an officer who gave evidence last week, who
9 said that he delivered those envelopes --
10 Q. Please, Mr Owen, just --
11 THE COMMISSIONER: That is an answer to the question,
12 Mr Sukul. It is a perfectly good answer.
13 Mr Sukul, I sometimes get the impression, and
14 I hesitate to say this, that you actually do not listen
15 to a word I say. I said quite clearly to you, Mr Sukul,
16 that the case you are now putting in cross-examination
17 to Mr Owen is not a case that you have pleaded anywhere
18 in any of the voluminous pleadings in this case, and
19 I really cannot see on what basis you now seek to
20 construct a case that Mr Owen improperly received these
21 275 votes when that is not your pleaded case, it is not
22 your opened case.
23 I am here to try the case on the pleadings, not such
24 case as may occur to counsel off the top of his head
25 in the middle of the trial.
34

1 MR SUKUL: Sir, you will need to make a ruling in this
2 regard because I have pointed the court to paragraph 7.1
3 at page 3 of volume 1, where the petition is set out.
4 THE COMMISSIONER: I asked for the particulars and the
5 particulars do not include this allegation.
6 MR SUKUL: But the allegation has been set out back in June
7 last year.
8 THE COMMISSIONER: It does not give you a free rein to make
9 up your case on the hoof.
10 MR SUKUL: If that be the case then I should be proscribed
11 from asking Mr Owen anything at all to do with the
12 warehouse incident, and if that be the case and if that
13 is the ruling, then I must --
14 THE COMMISSIONER: I have suggested to you, Mr Sukul, that
15 you should briefly put what your case is to Mr Owen
16 instead of flogging through the vast number of questions
17 which you have obviously devised for Mr Owen on this
18 matter. If you have a case to put to him, put it to him
19 and let us get on to the next topic.
20 MR SUKUL: I am doing my best to put it to him.
21 Who asked you to accept these votes?
22 A. The police at Aston.
23 Q. And it was still your knowledge that the votes were
24 sealed when they were coming to you in that bag?
25 A. Yes.
35

1 Q. You still had no knowledge about whether they were seen
2 unsealed at the warehouse?
3 A. I still had no knowledge.
4 Q. It is right, Mr Owen, and I think there is some part of
5 your statement that refers to it, that soon after midday
6 you received the police bag with the votes?
7 A. Yes.
8 Q. And you mentioned the police officer, I think it is
9 Sergeant Nevin, who came here and said he delivered
10 them. Did you have a conversation with Sergeant Nevin?
11 A. I had a brief conversation.
12 Q. Did you ask him about the seizure at the warehouse?
13 A. No, I do not recall any detailed conversation.
14 I believe I may have told him that I had tried to
15 contact the Fraud Squad and that I had been unable to do
16 that on the Wednesday.
17 Q. You are making every effort to contact the Fraud Squad,
18 are you not?
19 A. Yes.
20 Q. The Fraud Squad deals with crime. Was it not part of
21 your thinking that crime was involved with these 275
22 votes?
23 A. Yes, I had some suspicions and that was why I was trying
24 to contact the Fraud Squad.
25 Q. All right. You see, Mr Owen, the case for the
36

1 petitioners is that you knew full well that they were
2 unsealed when the police first saw them but nonetheless
3 you accepted them and made them part of the count.
4 Did you discuss this with Mrs Homer?
5 A. Yes.
6 Q. I think DC McLaren was with you when you did that,
7 he had come to visit you, had he not? Detective
8 Constable McLaren came to see you to discuss these
9 votes?
10 A. I had a conversation with DC McLaren, which --
11 THE COMMISSIONER: If you look at 156, "DC Bruce McLaren
12 came to see me"; it is on election day.
13 A. Yes.
14 THE COMMISSIONER: That really sets out your dealings with
15 Mr McLaren.
16 A. I believe I rang Lin Homer immediately DC McLaren left
17 my office.
18 MR SUKUL: DC McLaren did not mention that the votes were
19 unsealed when they were first seen by the police at the
20 warehouse.
21 A. I recall him saying that he asked the Aston police to
22 photocopy documents and return the originals to the
23 owners. I do not recall him saying that ...
24 Q. He never said that?
25 A. I do not recall that.
37

1 THE COMMISSIONER: By the "owners" I suppose he meant the
2 actual voters.
3 A. Yes.
4 THE COMMISSIONER: It simply illustrates the inexperience of
5 the police in dealing with this sort of incident, which
6 is quite outside their normal run of experience.
7 There we are.
8 MR SUKUL: Mr Owen, let me take you to the morning of the
9 count.
10 Page 450, please, Mr Owen. This aspect of your
11 activity during the course of the morning is extremely
12 important, and I am going to read word for word, and
13 I will put certain questions to you.
14
15 At paragraph 177 you say this:
16 "During the count of 11th June 2004 in the earlier
17 part of the morning."
18 Let us wait there. This court has heard many
19 questions that dealt with time and approximate time.
20 You are at the NIA at, say, 7 o'clock in the morning.
21 Just say. By 8.15 you hold a meeting with your senior
22 staff, that is true, is it not?
23 A. Yes.
24 Q. Your meeting with the staff finishes at 9.15. Yes?
25 A. Approximately.
38

1 Q. You said, in the earlier part of the morning:
2 "I recall that I was asked to go to the Aston room,
3 I was told either by party supporters or by the counting
4 staff that there was a carrier bag containing postal
5 votes."
6 So you are saying that in the earlier part of the
7 morning you became aware of a carrier bag containing
8 postal votes. That is fair, is it not?
9 A. That is what I have said in this witness statement.
10 Q. Right. The earlier part of the morning. Help us: what
11 sort of time are you talking about?
12 A. At the time I wrote this statement, I was thinking that
13 it would be before 10.30.
14 Q. Right. So this would have been before 10.30, so some
15 time between 9.15 and 10.30 you would have become aware
16 of a carrier bag containing postal votes; that is fair
17 comment, is it not? There is nothing wrong with that?
18 A. That is what this first statement says.
19 Q. And that statement is yours, I am asking you about this
20 statement. That is what you wrote.
21 A. That is what I believed to be true at the time that
22 I signed the statement.
23 Q. We will come to the second statement in a moment.
24 You will have every opportunity to deal with it.
25 In hindsight, this carrier bag to which you have
39

1 referred to in paragraph 177 is in fact the Nickleby's
2 bag.
3 A. Yes.
4 Q. So from now on I am going to be referring to this
5 carrier bag as the Nickleby bag because that is the
6 issue before the court.
7 This is what you say:
8 "The party supporters were demanding to know where
9 the Nickleby bag had come from."
10 That is right, is it not?
11 A. (Witness nods).
12 Q. So between 9.15 and 10.30 these party supporters are
13 griefing (?) you about this bag?
14 A. (Witness nods).
15 Q. Where was the bag that they were griefing you about?
16 Where was it when first you saw it?
17 A. I am not as clear about this incident as I am about the
18 telephone call from the police about accepting the
19 postal votes, because I made a note of that conversation
20 immediately afterwards. On this day, I was very busy.
21 I had the whole of the National Indoor Arena, 40 ward
22 counts going on. I was walking around in the various
23 rooms, I had had a very long day and a difficult day the
24 previous polling day, and this Friday turned out to be
25 a very long and difficult day for me as well.
40

1 I do not recall this as well as the other
2 incident --
3 Q. Mr Owen --
4 THE COMMISSIONER: Let him finish.
5 A. So I am not absolutely certain as to where and when
6 I saw the Nickleby bag.
7 MR SUKUL: Your memory can be assisted by what you have
8 written in your statement. Is that right?
9 A. I have written two statements but I am sure that they
10 will cover the points adequately.
11 Q. On 5th February of this year this is what you wrote.
12 You said that the party supporters or the counting
13 staff -- that there was a carrier bag containing postal
14 votes.
15 You went into some detail in this statement. I am
16 asking you this: where was the carrier bag when first
17 you saw it, when the party supporters were -- your
18 word -- harangued:
19 "I was being harangued."
20 That is not a word I even know, "harangued" by the
21 party supporters. Do you remember the experience which
22 the party supporters put you through?
23 THE COMMISSIONER: Can you let him answer the first
24 question. Where was the bag when you were first shown
25 it? Can you remember?
41

1 A. I cannot. I do not remember.
2 THE COMMISSIONER: Can you remember, when you first saw the
3 bag, did it have anything in it or was it empty?
4 A. The only firm recollection I have is being asked where
5 such a bag would come from, and me being clear that it
6 would have been accepted properly by my office and my
7 drawing the conclusion that it will have come from
8 a polling station because I had seen a number of carrier
9 bags being delivered to the National Indoor Arena after
10 the close of poll with ballot boxes from polling
11 stations.
12 MR COPPEL: I would ask Mr Sukul to be very careful that
13 he is fair to this witness in what he puts to Mr Owen
14 because Mr Owen says in his statement that he thinks
15 he was shown the carrier bag. He does not state that
16 he was shown the carrier bag. If Mr Sukul is to put
17 questions to Mr Owen suggesting that he is being
18 inconsistent I would ask that he put the point very
19 carefully and very fairly.
20 THE COMMISSIONER: Yes.
21 MR SUKUL: Mr Owen, let me ask you very carefully this: you
22 say in your statement that, at 178:
23 "I was being harangued by the party supporters to
24 confirm where the carrier bag had come from. As I had
25 seen the bags of postal votes arrive in the polling
42

1 station the night before, I said in response that
2 I assumed the carrier bag had come from the polling
3 station."
4 You see that?
5 A. Yes.
6 Q. These are party supporters who are haranguing you, they
7 are on to you, they are griefing you, they are asking
8 you questions. They are unsatisfied with your answer.
9 You cannot appease them, they are being very unpleasant,
10 they being quite unreasonable; is that a fair
11 description of what was taking place?
12 A. Yes.
13 Q. Is it also fair to say that all these people who were
14 doing all of this to you could not have been doing it to
15 you about an empty bag. It had to be a bag with
16 contents inside because nobody would grief you about an
17 empty bag. They must be talking to you about a bag that
18 has contents in it.
19 With that in mind, do you accept that at the time
20 when the party supporters made your life so
21 uncomfortable, the bag to which they were referring,
22 the bag about which they were complaining, had contents
23 in it?
24 A. No, I do not accept that. I think --
25 Q. So they were quarrelling with you about an empty bag?
43

1 THE COMMISSIONER: Let him finish.
2 A. I think it is more likely because I do not remember the
3 bag that the bag did not have votes in it at that time.
4 I think if the bag had been there, and then I would have
5 been asked to make the decision or help make the
6 decision on whether it should be counted or not, and
7 I believe now, having seen other witness statements and
8 having heard other evidence during the course of this
9 trial, that it is more likely that the bag was not there
10 for me to look at, and that is why I do not recall
11 seeing it. Because that decision had already been taken
12 and the petitioners were complaining to me that it
13 should not have been counted and that it should not have
14 been validly received, and the main thing that
15 I remember is that argument and my assertion that it was
16 properly received and will have come, because I believed
17 at that time that it would have come from a polling
18 station before the -- and been received at that station
19 before the close of poll.
20 Q. So, Mr Owen, the upshot of all this is that everything
21 you have said in paragraphs 177 and 178, all of that is
22 lies?
23 A. Certainly not.
24 Q. Let me ask you this: you have expressly stated in
25 paragraph 177 reference to a bag about seven times. Are
44

1 these people complaining about an empty bag?
2 A. They could well have been.
3 Q. Pardon?
4 THE COMMISSIONER: They could well have been, was his
5 answer.
6 MR SUKUL: Your evidence before this court is that all these
7 people are complaining to you, grieving you, haranguing
8 you about an empty carrier bag, that is what you are
9 saying to this court under oath.
10 A. I could quite imagine that if candidates were annoyed
11 and concerned that a bag had been opened and started to
12 be counted, they would continue to complain about that
13 and certainly ask me about that on seeing me entering
14 the room.
15 THE COMMISSIONER: Well, let us inject a little bit of sense
16 into this. Mr Owen, whether the bag was empty or full
17 when you were discussing it, it was clear to you that
18 the complaint being made was: this bag had got votes
19 in it?
20 A. Yes.
21 THE COMMISSIONER: And that the people who were making the
22 fuss were people who thought that those votes in that
23 bag should not have been counted.
24 A. Yes.
25 THE COMMISSIONER: And that was the situation with which you
45

1 were faced on that particular occasion?
2 A. Yes. And the particular question that I was repeatedly
3 asked was: where had the bag come from? That was the
4 particular point that I was being pressed on, because
5 presumably they felt that it had come from an improper
6 place, not to have been received properly by my office.
7 THE COMMISSIONER: So whether the bag was full or empty at
8 the time you knew that the complaint being made
9 was: these are votes which are suspicious and should not
10 be counted?
11 A. Yes.
12 THE COMMISSIONER: That was the complaint, right.
13 MR SUKUL: There is then some acceptance, Mr Owen, from the
14 learned Commissioner's deductions that the complaint was
15 being directed at a bag that contained some amount of
16 votes. That is fair comment?
17 A. To a bag that had contained --
18 Q. Yes.
19 A. Yes.
20 Q. You accept that now?
21 THE COMMISSIONER: I do not think he has ever said any
22 different, has he?
23 MR SUKUL: Sir, I wonder if I may just take a little
24 instruction. It will only take a matter of seconds.
25 THE COMMISSIONER: Of course.
46

1 MR SUKUL: I have no further questions for this witness.
2 THE COMMISSIONER: Mr Brodie, could you start the area that
3 you wish to explore and we will see whether or not you
4 transgress the invisible line.
5 Cross-examination by MR BRODIE
6 MR BRODIE: Sir, I will try and avoid doing that, but since
7 it is invisible ...
8 Mr Owen, my cross-examination today will be limited
9 to the issue of the Nickleby bag and you appreciate what
10 we say about the Nickleby bag, just to make sure you are
11 not confused. We say the contents of the Nickleby bag
12 are such that they make it more likely that our
13 allegations in relation to the three ballot boxes in the
14 Bordesley Green count contained only envelope As
15 containing only Labour Party votes, containing also the
16 declarations of identity; do you understand that that is
17 what we are saying?
18 A. Okay.
19 Q. The ordinary practice for the receipt of covering
20 envelopes or envelope Bs, save when they came from the
21 polling station, was that they were either delivered by
22 hand or delivered by post to the election office. That
23 is right, is it not?
24 A. Yes.
25 Q. Thereafter they were taken on trolleys, we hear, by
47

1 whoever, to Victoria Square. There was no sorting
2 carried out at the elections office, that is right, as
3 well, is it not?
4 A. Yes.
5 Q. You were served in September of last year with a list of
6 further particulars which you were being asked to
7 provide by the petitioners in this petition. That is
8 right, is it not?
9 A. Yes.
10 Q. And you completed and served those particulars following
11 a direction that you do so, by 7th January of this year.
12 That is right well, is it not?
13 A. I imagine so.
14 Q. So you had a number of months to consider the issue of
15 the Nickleby bag by the time you provided that reply to
16 the request for Further and Better Particulars?
17 A. I do not think I had very much sight of the further
18 particulars before the response was due back, so
19 certainly I did not have a great deal of time to
20 consider the questions in those further particulars.
21 Q. Very well. How long would you say you had, a week, two
22 weeks?
23 A. I think I only saw them the day that they were due to go
24 back.
25 Q. So you did not have any sight of them at all before the
48

1 day they were due to be served?
2 A. I believe so.
3 Q. Did you have any input into the replies?
4 A. Yes.
5 Q. So you may not have seen the final version, but you knew
6 what it would contain in advance of the day on which
7 they were returned?
8 A. I think I did see the final version but I think I am
9 saying I did not have as long as I would have liked to
10 consider the questions.
11 Q. You see, in your reply, and you --
12 THE COMMISSIONER: Can we look at it?
13 MR BRODIE: Of course, yes.
14 MR COPPEL: Page 197.
15 THE COMMISSIONER: Volume 1. Do you have volume 1? It may
16 be on the floor next to you.
17 MR BRODIE: It is 196 actually:
18 "Of the postal votes that we found within a Nickleby
19 shopping bag, the count held on 11th June 2004. Request
20 6: provide details of when and where the postal ballot
21 envelopes were placed into the Nickleby shopping carrier
22 bag."
23 And the reply is:
24 "On 10th June 2004, a Nickleby shopping bag with
25 postal votes in it was handed in over the counter at the
49

1 election office. The Returning Officer does not know
2 when or where these postal votes were put into the bag.
3 Later on 10th June the Returning Officer's staff removed
4 the contents of this bag as well as the other
5 receptacles that had been used for bringing in postal
6 votes for sorting into the wards to which the postal
7 votes related. Early on 11th June 2004, the Nickelby
8 bag, together with other bags, was then used as
9 a receptacle to take postal votes from the elections
10 office to the count at the NIA."
11 The impression that that is giving is that the sort
12 into wards was conducted at the election office?
13 A. (Witness nods).
14 Q. That was an impression that you intended to give when
15 you provided those particulars?
16 A. Because that was my understanding at the time.
17 Q. So your understanding at the time was that postal votes,
18 which consisted of a large proportion of the votes which
19 were cast in this election, would initially be sorted at
20 the elections office?
21 A. Only on the morning of the 11th June. Because the
22 circumstances on that day were different to every other
23 day.
24 Q. I understand that. You say in your most recent
25 statement at page --
50

1 MR COPPEL: In fairness to the witness, I hope Mr Brodie is
2 going to take the witness to paragraph 180 of his first
3 witness statement.
4 MR BRODIE: I hesitate to decline to do so, although the
5 temptation is great, bearing in mind --
6 THE COMMISSIONER: "My staff would have emptied the contents
7 of the bags of postal votes to sort them into wards at
8 the election office. Having conducted extensive
9 enquiries of my staff, I now know that this was not
10 the case and, as set out above, the task of sorting them
11 was done at 1 Victoria Square."
12 So the provenance of the bag, as you understood it,
13 was that it arrives at the elections office, it is then
14 taken to Victoria Square, it is sorted at Victoria
15 Square and is then onwardly transmitted to the NIA.
16 Have I got the picture right?
17 MR BRODIE: No.
18 A. I think the timing of the sorting is the only issue that
19 is being raised and my understanding, when the further
20 particulars were given, I had been told by my staff that
21 the bag had been sorted and I misunderstood that that
22 had happened before it went to the NIA when in fact
23 I now know that it happened after it got to the NIA.
24 THE COMMISSIONER: So that 180, in fact, is also incorrect?
25 The reply gives the impression it is sorted at the
51

1 election office; 180 corrects that and gives the
2 impression that it is sorted at 1 Victoria Square.
3 MR COPPEL: The last sentence, sir.
4 THE COMMISSIONER: "... the bag was delivered about 3 pm".
5 Well, we do not really have a time, do we, for the
6 handing in of the Nickleby bag?
7 A. It must have been after 3 pm.
8 THE COMMISSIONER: So after 3 pm it goes unsorted straight
9 to the NIA.
10 A. On the Friday morning.
11 THE COMMISSIONER: And somebody sorts it on the Friday
12 morning?
13 A. Yes. It may have contained other postal votes that were
14 handed in after 3 pm as well. It does not mean that it
15 was only that bag and its contents that was handed in
16 after 3 pm that went across to the NIA because that
17 receptacle was just used as a general receptacle to
18 collect and deliver those postal votes to the counting
19 centre.
20 THE COMMISSIONER: But the history of the bag itself is
21 that it goes to the elections office; from the elections
22 office to Victoria Square; from Victoria Square to the
23 NIA?
24 A. No, it did not go to Victoria Square at all because it
25 must have come to the elections office after 3 pm, that
52

1 is why it did not go to 1 Victoria Square.
2 THE COMMISSIONER: So if it came after 3 pm, it goes
3 straight to the NIA?
4 A. Yes.
5 THE COMMISSIONER: I see. As you say, possibly with other
6 documents in beyond the ones which it contained when it
7 was delivered.
8 A. Yes.
9 MR BRODIE: Our understanding is that plastic bags were used
10 and reused for the transport of postal votes from the
11 elections office to Victoria Square throughout the
12 period when these votes were being received at the
13 election office. Is that right?
14 A. Possibly.
15 Q. So we do not really know where the actual bag, the
16 plastic receptacle, came from?
17 A. No.
18 Q. All we know is where it ended up, and where it ended up
19 was in the Aston count?
20 A. That is fair to say.
21 Q. The point I make here is this. The reply to the request
22 for Further and Better Particulars in relation to the
23 Nickleby bag was drafted on your instructions?
24 A. Yes.
25 Q. Did you not consider it important to get those
53

1 instructions accurate? We are talking about court
2 proceedings.
3 A. It was accurate to the best of my knowledge at the time,
4 but I have misunderstood the information and, as I have
5 said previously, it was drafted at a late stage.
6 Q. I understand that, but what caused you to conduct
7 extensive enquiries after you had provided the reply
8 rather than before?
9 A. I imagine it was in preparation of my witness
10 statements.
11 Q. So it would appear on the face of it that the enquiries
12 you undertook prior to the reply were not sufficiently
13 extensive?
14 A. I think they probably were extensive. It was that
15 I misunderstood the timing of when the sorting took
16 place which is a fairly simple mistake.
17 Q. No, no, I do not suggest that it is not a simple mistake
18 to make.
19 At the count you said that -- I will go to your
20 statement. The bottom of page 450:
21 "I would say that I was being harassed to provide
22 a response and finally I said that I felt certain that
23 the carrier bag must have come from a polling station."
24 Are you trying to say that had you not been harassed
25 at the time you would have come up with a different
54

1 response?
2 A. No, I do not think so.
3 Q. So the fact you were being harassed had no impact
4 whatsoever on your response?
5 A. I think it prevented me from making other enquiries to
6 what other possible place it could have come from, and
7 of course that other possible place was the election
8 office, which I did not realise at that time.
9 Q. Did you have any knowledge at that time that late votes
10 received at the election office would be brought over in
11 a plastic bag?
12 A. No. And it was certainly unusual for us to have the
13 count on the following day as we did in this election,
14 on the Friday. Normally, the count would take place on
15 the evening and we would not be receiving the quantity,
16 as we have said right throughout this trial, of postal
17 votes being delivered at late stages to the elections
18 office. So it was a little unusual, although it was
19 something that should have been thought through in
20 detail.
21 Q. And was not?
22 A. It was not thought through in as much detail and with as
23 much care as I would have wished. Given the opportunity
24 and of course given the circumstances that we had to
25 deal with, it was the best that we could do at the time.
55

1 THE COMMISSIONER: Would it make any difference to the
2 admissibility of the votes in your mind whether they
3 were delivered to a polling station or delivered to an
4 elections office, provided they were delivered before
5 close of poll?
6 A. Absolutely not, as long as they were received by that
7 time they are acceptable.
8 MR BRODIE: You appreciate now that the appearance of votes
9 in plastic bags is not one that could be designed to
10 engender a feeling of security in candidates as to the
11 reliability of the electoral process?
12 A. I would agree with that.
13 Q. We know from the statements of Alison Harding, Cheryl
14 Mulvihill and Lynne Taylor, that what the Returning
15 Officer's case is on the Nickleby bag would appear to be
16 that three plastic bags were left in the elections
17 office on the night of 10th June, and then brought over
18 to the NIA for counting.
19 A. Yes.
20 Q. Those plastic bags would not have been sorted as to
21 ward?
22 A. I believe that is correct.
23 Q. Because they were simply the late received covering
24 envelopes for the Local Authority elections for all the
25 wards in Birmingham City Council?
56

1 A. Yes.
2 Q. We then see from their evidence that although there was
3 no table set aside for the purposes of sorting into
4 wards, they went into one of the pens, in fact the pen
5 for the Aston count, and sorted according to ward?
6 A. Yes.
7 Q. From Lynne Taylor's statement at 532, she says the
8 majority of postal votes were for Aston and these were
9 therefore put into the sturdiest carrier bag we could
10 find. I believe this may have been the Nickleby bag
11 although I cannot be sure of this.
12 That, on the face of it, appears to be the Returning
13 Officer's case. But it does not explain, does it, why
14 there should be in that bag, sorted that day, a freshly
15 filled bag, which, on the face of it, should contain
16 just covering envelopes for votes cast in the Aston
17 ward, a number of European ballot papers in a plastic
18 bag? It does not explain that, does it?
19 A. No, I do not know that our witness statements say that
20 that was the case at that time.
21 Q. Alison Harding's.
22 THE COMMISSIONER: Alison Harding's witness statement --
23 there is a dispute as to whether there were any yellow
24 ballot papers but Alison Harding appears to agree with
25 Mr Sukul's witnesses that there was a bundle of white
57

1 European ballot papers with an elastic band round them.
2 I think what Mr Brodie is really saying is: how did that
3 get in the bag if the bag is post-sorting into wards?
4 A. I obviously do not know. I was not there at the time
5 because certainly it would be possible for someone to
6 hand a carrier bag full of postal vote envelopes into
7 the elections office between 3 pm and 10 pm. My staff
8 would not go through each individual envelope and check
9 that it has all been sealed properly and that it is an
10 envelope with a postal vote in it.
11 THE COMMISSIONER: I follow that, but the problem is here
12 that by the time the Nickleby bag gets to a situation
13 when it is seen by the witnesses at count, it has
14 already been sorted into wards.
15 A. Yes.
16 THE COMMISSIONER: So that there has already been a process
17 carried out to it, so it is very odd if after that has
18 happened there is this wad of European election papers
19 sitting on the top of it, it seems an odd thing for
20 anyone to do, to put that on top of the bag after they
21 have been sorted into wards. I can well understand they
22 might have been there when they arrived at the elections
23 office but by the time you have reused the bag, what are
24 they doing there?
25 A. I think I was going to go on to say if those loose
58

1 European ballot papers were attached to some Aston
2 postal vote envelopes my staff may well have left them
3 with those envelopes. I am really just guessing at
4 that.
5 MR BRODIE: My position is this: when you gave your reply to
6 the request for Further and Better Particulars, that was
7 not fully considered and you accept that.
8 When you gave your reply at the time of the count,
9 that was not fully considered and even at this stage,
10 some four days into an election petition which was filed
11 in June of last year, which made specific reference to
12 the contents of the Nickleby bag, you still are not able
13 to provide a considered response to its contents.
14 A. I would say that certainly during the run-up to the
15 election, as I have already referred to, we had a number
16 of difficulties to deal with of the poll votes and,
17 given the circumstances, I think the consideration that
18 was given to those points was probably sufficient from
19 my point of view, considering the other important work
20 that I was trying to do with my staff in the run-up to
21 the election to make sure the election was held
22 substantially in accordance with the law.
23 Q. I understand that, but the election had come and gone by
24 the time that you were served with the request for
25 Further and Better Particulars. By that stage --
59

1 THE COMMISSIONER: I think we have got this point,
2 Mr Brodie, bearing in mind that you are to some extent
3 on indulgence. If you have a further point, fine, but
4 I think the point about the pleadings process is made,
5 it is well made but it is made and I think we can pass
6 to something else.
7 MR BRODIE: I see the implied invitation to sit down and
8 I will sit down.
9 THE COMMISSIONER: A nod is as good as a wink.
10 Mr Coppel, are you able to re-examine?
11 Re-examination by MR COPPEL
12 MR COPPEL: Yes.
13 You were asked a series of questions by my learned
14 friend Mr Sukul about strict compliance with regulation
15 82 of the 2001 regulations, namely not putting into
16 postal ballot boxes, ballots, the sealed postal ballots.
17 Do you remember that line of questioning?
18 A. Yes.
19 Q. As a result of using plastic bags to hold postal ballots
20 rather than the sealed boxes as required under
21 regulation 82, as a result of that difference how many,
22 if any, postal ballots were counted that would otherwise
23 not have been counted?
24 A. None.
25 Q. As a result of that difference, the using of plastic
60

1 bags rather than sealed ballot boxes, how many, if any,
2 postal ballots were not counted that would, if you had
3 used a sealed plastic box, have been counted?
4 A. None.
5 Q. You were asked a lot of questions about the Wrylie
6 Industrial Estate and the investigations and --
7 THE COMMISSIONER: Can I just take Mr Coppel's question
8 a little further, Mr Owen. Obviously in an ideal world
9 you comply with regulation 82 for the simple reason that
10 the law takes the view that ballot papers ought to be in
11 a secure container, whether it is a ballot box in
12 a polling station or a box containing postal ballots,
13 for the obvious reason that if they are in a secure
14 container they are less likely to be tampered with.
15 A. Yes.
16 THE COMMISSIONER: Your evidence is very much to the effect
17 that the large influx of postal votes made compliance
18 with regulation 82 simply impractical.
19 A. Yes.
20 THE COMMISSIONER: So the choice that faced you really was
21 to play it in accordance with the book, in which case a
22 large numbers of votes might simply have been just
23 disregarded, or to, not cut corners, but to work round
24 the solution by using other than ballot boxes.
25 A. Yes.
61

1 THE COMMISSIONER: But I think the point that has been made,
2 and it is to some extent made by Mr Brodie and Mr Sukul,
3 is this: because regulation 82 was not complied with, we
4 had votes both in Bordesley Green and in Aston that were
5 in an unsatisfactory state. In Bordesley Green they
6 were in unsealed boxes and in Aston they were in plastic
7 bags.
8 Clearly, that is going to excite the suspicions of
9 those who are already minded to be suspicious.
10 A. I particularly agree with the plastic bags, but I seem
11 to recall I may have suggested at Bordesley Green that
12 those boxes may have been sealed originally, but because
13 they were put next to other ballot boxes from polling
14 stations they would have been opened and their lids
15 taken off. So it is possible in fact that ... But
16 certainly I agree that plastic bags are undesirable.
17 MR COPPEL: Mr Owen, I want to take you next, and indeed
18 lastly, to the Wrylie Industrial Estate and the series
19 of questions asked of you by Mr Sukul. You were asked
20 by Mr Sukul about the checks that the police said they
21 had made with the voter. You remember the random dip?
22 A. Yes.
23 Q. How common is it, in your experience, for voters when
24 they return a postal ballot not to tear off the top of
25 the declaration of identity?
62

1 A. I was not present at all of the openings of postal votes
2 that were held in the few days up to polling day.
3 I would imagine that it is certainly not most of them,
4 it is going to be a minority, but there certainly is
5 a small number, a small percentage. It may be as many
6 as 5 per cent at a guess, but certainly having heard the
7 witness statements and the cross-examinations that have
8 gone on in the trial, if candidates and supporters have
9 collected up postal votes that were not sealed at the
10 time, then there is more chance that that part of the
11 document would remain on it.
12 THE COMMISSIONER: Do the instructions tell people to tear
13 the top off?
14 A. Oh yes.
15 THE COMMISSIONER: The object being of course that the
16 declaration of identity ought not to be traceable
17 thereafter.
18 A. That is correct.
19 MR COPPEL: Finally, you were asked a series of questions
20 about the telephone conversation that you had with
21 a police officer whose name you do not know on the
22 morning of 9th June. Do you remember that?
23 A. Yes.
24 Q. Can you recall whether during the course of that
25 conversation the police officer told you that they had
63

1 checked the specimen ballot paper in the small hours of
2 the morning or was that not spoken to, what time it took
3 place?
4 A. I think I certainly understood that to have happened
5 very late that night or in the small hours of the
6 morning.
7 MR COPPEL: Thank you, Mr Owen, I have no further
8 re-examination.
9 THE COMMISSIONER: Thank you, Mr Owen.
10 Now, a difficult call for you, Mr Coppel. You have
11 Mrs Homer here. Do you call her in the hopes of getting
12 her over nice and quickly or do we take a break?
13 MR COPPEL: Can I ask Mr Sukul whether it will be nice or
14 quickly?
15 Mr Sukul says I should go with the break.
16 MR HAYES: Before the break, there is Detective Constable
17 Shepherd to deal with at some stage.
18 THE COMMISSIONER: Is he here?
19 MR HAYES: I understand not, but he has given a report,
20 which is rather important.
21 MR BROOK: In fact he is a PC. He is not here. There is
22 a report. I have not asked him to come to court not
23 least because he was on the late shift last night.
24 THE COMMISSIONER: I was not aware that I had made quite
25 the firm statement about police officers attending that
64

1 I am reported in The Times newspaper as doing, but that
2 is nobody's fault and may well be a misunderstanding.
3 I notice that you have it open in front of you.
4 MR HAYES: Sir, yes.
5 THE COMMISSIONER: I think so far as this is concerned,
6 I have this report and I think what I would like at some
7 stage, although not at this moment, is I would like
8 Mr Sukul's view on what, if any, action I ought to be
9 taking in respect of it. Because if this report is
10 accurate, then I would clearly require a great deal of
11 persuading to admit the evidence of the witness was
12 referred to yesterday because without attending.
13 MR HAYES: In my respectful submission, it goes further than
14 that. Mr Sukul, clearly on instructions -- no criticism
15 of him -- made it quite clear that the reason Mr Tariq
16 Hussain was not attending is because he had been
17 threatened by men in balaclavas, and it went further
18 than that.
19 THE COMMISSIONER: He does not seem to appear in this report
20 at all. We are talking the same incident, are we?
21 MR HAYES: Yes.
22 THE COMMISSIONER: I know the address is right, but this
23 seems to record someone with a completely different
24 name.
25 MR HAYES: In fact, we had evidence from Mr Ayoub Khan, who
65

1 said:
2 "My brother called the police last night. He is
3 frightened. He is in a panic, an absolute frenzy.
4 He does not think it is worth coming to take the witness
5 stand. He is worried not so much about himself, but
6 about the safety of his five young children."
7 This incident, such as it was, occurred at about
8 8 o'clock on Sunday night. It was over by --
9 THE COMMISSIONER: It certainly does not appear to be
10 the incident that was described to me yesterday. It may
11 be, of course, that it is the same incident and that the
12 incident takes a different complexion when viewed from
13 the police point of view than when viewed from the point
14 of view of those concerned at the other end. That may
15 or may not be the case, but on the face of it, this may
16 be an entirely different incident in the same area.
17 MR HAYES: It is, according to the police statement,
18 a telephone call from --
19 MR BROOK: I apologise for interrupting. Can I assist the
20 court. I have been told that is the only police log in
21 connection with that road of that day.
22 THE COMMISSIONER: That is fair enough.
23 MR HAYES: You have seen the police report. You have
24 seen --
25 THE COMMISSIONER: The police report certainly does not bear
66

1 out what I was told in court in court yesterday.
2 MR HAYES: In my respectful submission it is far, far worse
3 because Mr Iqbal reported that he was concerned to the
4 police. The police followed it up. "On this occasion",
5 says the officer, "he informed me that his friend was
6 involved in a big fraud case and he thought that the car
7 might be something to do with it."
8 THE COMMISSIONER: I do not need it read out, I have read it
9 and I do not necessarily want it read into the record.
10 I think the position is that I appreciate your
11 concerns, Mr Hayes. At this stage all I need say
12 is that the police report that I have received does not
13 in any material respect corroborate the account I was
14 given yesterday in court. As I asked for the police to
15 investigate it, I have the result of their
16 investigation. I propose to leave it to Mr Sukul at
17 some future time to make such application as he wishes
18 with regard to the evidence of that witness. If he
19 makes no application I shall simply disregard that
20 evidence and I will certainly proceed on the basis that
21 the allegations that were made yesterday have not been
22 substantiated.
23 MR HAYES: Sir, I do not want to make a meal of this, but in
24 my respectful submission this report suggests quite
25 clearly that someone has not been telling the truth and
67

1 we are in the run-up to a General Election. For the
2 Times newspaper to report, quite accurately, "Men in
3 balaclavas scare 'vote-rigging' witness into silence",
4 which is clearly untrue.
5 THE COMMISSIONER: It is what the court was told yesterday
6 and is accurately reported by the Times newspaper.
7 MR HAYES: No criticism of The Times at all.
8 THE COMMISSIONER: Their reports have so far been -- indeed
9 I can say verbatim accurate, and clearly you would wish
10 it to be equally known that if those matters are not
11 substantiated, that should be stated in open court.
12 MR HAYES: Sir, yes, because I am sure you would be the
13 first to deprecate this court being used as some sort of
14 pre-election circus.
15 THE COMMISSIONER: I have indicated to all parties in this
16 case that circuses are to be held elsewhere. We may be
17 in a theatre, but it is a lecture theatre and not an
18 election theatre.
19 It is now a quarter to 12. Shall we say five to 12?
20 (11.45 am)
21 (A short break)
22 (11.55 am)
23 MR COPPEL: I call Lin Homer.
24 MRS LINDA HOMER (sworn)
25 Examination-in-chief by MR COPPEL
68

1 MR COPPEL: For the record, would you please tell the court
2 your full name.
3 A. Linda Margaret Homer.
4 Q. Your professional address is?
5 A. The Council House, Birmingham.
6 Q. Your occupation?
7 A. Chief Executive of the City Council.
8 Q. And you are, I think, the Returning Officer?
9 A. Yes.
10 Q. You have in connection with this proceeding prepared and
11 signed a witness statement. I wonder if you could look,
12 please, at page 379 of the bundle in front of you.
13 A. Yes.
14 Q. That should be the first page of the statement, and
15 I wonder then if you could turn to page 385. Is that
16 your signature?
17 A. Yes, it is.
18 Q. It is dated 8th February 2005. Is this your statement?
19 A. Yes, it is.
20 Q. Is it true and correct in every detail?
21 A. Yes.
22 Q. I wonder, please, if you could start reading, and I will
23 interject at two points, I think.
24 A. "I, Linda Homer, of The Council House, Victoria Square,
25 Birmingham, will state as follows:
69

1 "I am the fourth respondent in these proceedings. I
2 am head of paid services for Birmingham City Council as
3 well as the Returning Officer and the electoral
4 registration officer. Each of these posts is distinct
5 from the other and it is therefore important to
6 understand the differences between them. I was
7 appointed Head of Paid Services for Birmingham City
8 Council in October 2002. In Birmingham my role as such
9 is more commonly referred to as the Chief Executive.
10 "The Local Government and Housing Act 1989,
11 section 4, governs the role of head of paid
12 service/chief executive. This requires every local
13 authority to appoint a head of paid service whose role
14 is essentially to co-ordinate the manner in which the
15 local authority discharges its various functions.
16 "The strategic heads of council departments report
17 directly to me on the performance of their particular
18 departments. As with other Local Authorities,
19 Birmingham City Council is required by the
20 Representation of the People Act 1983, section 35, to
21 appoint an officer as a Returning Officer for local
22 government elections.
23 "Prior to my appointment, Birmingham City Council
24 had established a practice of appointing the Head of
25 Paid Services as Returning Officer. It continued with
70

1 that practice by appointing me as Returning Officer
2 in October 2002.
3 "By virtue of section 8 of the Representation of the
4 People Act 1983, Birmingham City Council is also obliged
5 to appoint an officer as electoral registration officer,
6 the ERO. In addition to my role as Chief Executive and
7 Returning Officer in October 2002, I was also appointed
8 as the ERO.
9 "As the ERO it is my responsibility to maintain
10 a register of Parliamentary electors for each
11 constituency, as well as the register of local
12 government electors for local government areas within
13 the electoral areas of Birmingham City Council.
14 "As part of this role, I am under a duty to conduct
15 an annual canvass for the purpose of ascertaining who is
16 entitled to be or to remain registered in these
17 registers. Section 10, sub-section 1, Representation of
18 the People Act 1983.
19 "Finally, I am required to publish each year
20 a register of the Union citizens entitled to be
21 registered as European Parliamentary electors. Although
22 I have ultimate responsibility for electoral
23 registration and election functions, the day-to-day
24 organisation of these matters is dealt with by my
25 elections office. During elections I appointed the
71

1 elections officer John Owen and his line manager Mirza
2 Ahmed to be Deputy Returning Officers with full power to
3 discharge all my functions.
4 "This delegation is allowed by virtue of section
5 35(4) of the Representation of People Act 1983. At
6 every election I have an initial meeting with my two
7 Deputy Returning Officers, John Owen and Mirza Ahmed, to
8 discuss the general arrangements and to agree any
9 significant changes to usual procedures. Although I
10 appoint two Deputy Returning Officers to discharge all
11 of my functions, in practice the elections officer John
12 Owen is responsible for the day-to-day organisation of
13 an election. Elections in June 2004 were no different
14 in this regard.
15 "Following the initial meeting with my Deputy
16 Returning Officer, regular meetings and discussions are
17 held to update me on progress and I am contacted
18 urgently if any serious problems or concerns arise.
19 Again, the June 2004 elections were no different in this
20 regard. I recall regular discussions with John Owen on
21 a number of issues in the run-up to the election.
22 I recall John and I discussed the staff shortages due to
23 the massive increase in postal vote applications. As a
24 result of his e-mail to me dated 2nd June 2004
25 confirming the position, I sent an e-mail on the same
72

1 day asking all directorates to supply staff to assist in
2 the issue process. These e-mails are found at tabs 40
3 and 41 of exhibit-bundle A.
4 "I also recall, for example, in the week of the
5 election attending a training session for senior staff
6 run by John, to which I had been invited by him.
7 I received notification on 19th May 2003 that the then
8 Lord Chancellor's department, now the Department of
9 Constitutional Affairs, would be recommending me to the
10 Lord Chancellor as the Regional Returning Officer for
11 the West Midlands region at the European elections to be
12 held in June 2004. My appointment was subsequently
13 confirmed by statutory instrument number 2003/3362,
14 which was made on 19th December 2003.
15 "The local elections were originally to be held
16 in May 2004, however on the basis that the European
17 Parliamentary Elections were taking place in the next
18 month it was decided to hold a combined election
19 in June 2004. My appointment as Regional Returning
20 Officer meant in addition to my role as local returning
21 officer in arranging the European Parliamentary election
22 in Birmingham, I had the responsibility for the whole of
23 the West Midlands region. This involved the following
24 tasks: dealing with the nomination process, producing
25 the ballot paper for printing by each local Returning
73

1 Officer, coordinating the work of all the local
2 Returning Officers in the region, which is 34 local
3 authorities containing about 4 million electors,
4 authorising the announcement of local results, collating
5 the local results on Sunday 13th June, calculating the
6 regional results using the D-HONT method, which is
7 a method of proportional representation, and declaring
8 the seven MEPs elected.
9 "Although I am in charge of elections, I take the
10 view that John Owen is the elections expert. My role
11 therefore both in the run-up to the elections on polling
12 day and on the day of count was as a general manager.
13 Throughout the process, I did ask questions and John
14 would articulate his reasons for adopting a particular
15 course or making a particular decision. He always gave
16 reasoned answers and I cannot recall any occasion when
17 I did not agree with his approach.
18 "In the run-up to the June 2004 elections there was
19 growing controversy surrounding postal votes.
20 A significant number of issues were raised by the
21 Labour Party, the Liberal Democrats and the Conservative
22 party relating for example to the alleged non-arrival of
23 postal votes. There was also at the time continued
24 press coverage about the alleged stealing of votes and
25 the alleged intimidation of postmen. Although not
74

1 directed at the Returning Officer or my staff, this was
2 all in the ether."
3 MR COPPEL: Can I ask to you pause there. We have heard
4 evidence in these proceedings from Councillor Hemming
5 in relation to what he says were complaints made in the
6 run-up to the 10th June election. Have you recently
7 conducted a check of the e-mails which were received by
8 you from Councillor Hemming in the two months prior to
9 10th June 2004?
10 A. Yes, I have.
11 Q. How many of those e-mails from Councillor Hemming relate
12 to the possibility of fraud in relation to postal
13 ballots?
14 A. I looked through my e-mail log, and the only one that
15 I could see that related directly to these issues was an
16 e-mail received from him on 9th June at about 7 o'clock
17 that evening.
18 Q. Could I ask you to look at this document please?
19 (Handed).
20 Is that the e-mail to which you refer?
21 A. Yes, it is.
22 Q. So that I understand this correctly, that was an e-mail
23 sent by Councillor Hemming, 7 o'clock or later, on the
24 eve of the poll, is that correct?
25 A. Yes, the time log records it as arriving at -- being
75

1 sent at 19.08 on 9th June.
2 Q. I exhibit that e-mail, sir.
3 THE COMMISSIONER: Do you have copies?
4 MR COPPEL: Not yet.
5 THE COMMISSIONER: I think this is going to be R2 because R1
6 was the plan of the NIA before it appeared as an exhibit
7 to Mr Owen's statement. I think we had it separately.
8 Run off photocopies and we will have it after the short
9 adjournment.
10 MR COPPEL: Mrs Homer, I wonder if you could resume reading
11 paragraph 10.
12 A. "I recall speaking to John Owen in the week of the
13 election when he told me that the police intended to
14 deliver 275 postal votes that had been seized from the
15 persons who had been found with them on the Wrylie
16 Industrial Estate.
17 "John and I agreed that these votes should be
18 accepted as validly received postal votes, as they were
19 sealed in their proper envelopes addressed to
20 the Returning Officer. On this basis, there were no
21 grounds for us to recommend the votes as invalidly
22 received postal votes. The grounds on which ballot
23 papers can be rejected as having been improperly
24 received are circumscribed by the rules, e.g. where they
25 arrive too late. Unless one of the circumscribed
76

1 grounds applies it is not for the Returning Officer or
2 her staff to refuse to receive a postal vote on the
3 suspicion that an electoral offence has been committed.
4 "I subsequently met with John Owen and DI Churchill
5 on 24th June when the police updated me on their
6 investigation. On 10th June, polling day, I spent the
7 day visiting a selection of polling stations. At each
8 of these I spent approximately half an hour at each,
9 speaking with election staff and generally observing.
10 I have retrieved my itinerary entries from that day.
11 These show I left The Council House at around 9 and
12 returned some time between 12 and 12.30 pm. My diary
13 shows that during the morning I visited the following
14 polling stations."
15 THE COMMISSIONER: None of them in Aston.
16 A. No.
17 THE COMMISSIONER: And then in the afternoon you visited
18 some, none of them in Aston.
19 A. That is correct sir:
20 "My visits were very much focused on motivational
21 management for the staff at polling stations, ensuring
22 that staff felt valued for their contribution to the
23 process. The polling stations on my agenda were not
24 selected with any degree of science. The previous year
25 John Owen had assisted with the selection and had
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1 attempted to pick a cross-section of polling stations
2 across the city. This year, given the extra work in the
3 run-up to the elections on 10th June 2004, I considered
4 that John's time would be better spent on tasks other
5 than selecting polling stations that I should visit.
6 The choice was therefore made by my office who ensured
7 that I had a geographical spread subject to travelling
8 constraints and that I did not visit polling stations
9 I had visited previous year."
10 As it transpired, as you said, sir, the polling
11 stations I visited were ones where few problems seemed
12 to arise:
13 "I attended the local election count at the National
14 Indoor Arena, NIA, on 11th June 2004 for the whole day.
15 I was strategically but not operationally in charge.
16 John Owen was in charge of operations. On arrival at
17 about 8.30 am I sought to give support to the
18 approximately 700 staff and also cast my eye over the
19 arrangements generally. I made sure there was adequate
20 provision for the press. I walked the floor a couple of
21 times and greeted any observers. During these walks
22 I tried to spot issues of capacity. I did some
23 firefighting in relation to the badging system that we
24 had adopted. There were some individuals who did not
25 have the correct badges with them to access the areas
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1 that they wished to. We took a measured view in order
2 to try to maintain a balance between the counters and
3 the watchers. It is important to ensure that the
4 counters do not become distracted by those observing.
5 "Once the count started, it became clear that it was
6 progressing slower than either John or I anticipated, in
7 particular it became clear that it would not finish
8 until well after lunchtime. As there were approximately
9 700 staff, towards the end of the morning I had to put
10 in place arrangements for them to be provided with food.
11 Later it became necessary to reassign staff when they
12 had finished a particular task in order to start them on
13 a new task. We also needed to deal with the need for
14 some staff to depart due to other commitments, for
15 example child care provisions.
16 "John Owen and I had originally believed that the
17 count would be finished during the early afternoon. It
18 actually finished at 10 pm in the evening. We were
19 surprised by the complexity of the voting pattern, and
20 in particular the number of split votes on the ballot
21 papers.
22 "There was a general desire on the part of the staff
23 and the politicians that the count should be finished on
24 Friday 11th June 2004. In the past Birmingham City
25 Council election staff have previously been good at
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1 estimating the time required for a count. On 11th June
2 we were aware on an hour to hour basis that the count
3 was progressing much slower than we had anticipated and
4 consequently our estimates for finishing were also
5 amended on an hour to hour basis. Because of the
6 complex and varying voting patterns it was not possible
7 to extrapolate from progress by mid-morning or early
8 afternoon so as to estimate that the count would finish
9 as late as 10 pm.
10 "I had earlier taken the decision that we should not
11 carry out the count on Thursday evening, 10th June 2004,
12 after close of poll, I also took the decision that the
13 count, despite taking much long than we had originally
14 anticipated should not be held over until Saturday 12th
15 June to complete.
16 "The European count was already scheduled to take
17 place on 13th June 2004, and there would have been
18 severe logistical difficulties in terms of staff
19 recruitment had part of the local election count also
20 been carried out on that day."
21 Q. And then follows thereafter the statement of truth.
22 I wonder on that last paragraph if I could ask you
23 a few questions. On the day of the count, 11th June,
24 were you asked to rule on whether the contents of the
25 Nickleby bag should be opened or otherwise accepted for
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1 counting?
2 A. No, I do not recall any conversations about the bag.
3 Q. Were you asked to participate in any way in the decision
4 to accept the contents of the Nickleby bag for opening
5 and/or counting?
6 A. None that I can recollect.
7 Q. During the course of 11th June, during the count, were
8 you ever asked to rule on or otherwise participate in
9 decision-making relating to any of the other wards about
10 accepting votes for counting or opening?
11 A. Yes. There were a number of issues where I was asked
12 questions during the course of the day. I did walk the
13 floor all day and was fairly visible, and as you will
14 know, I was drawn into a major issue in Bordesley Green,
15 but I was also asked to comment on a situation in a
16 number of the pens to do with staffing or the way counts
17 were being carried out, and I have to say none of the
18 politicians were shy about ensuring that I was kept busy
19 during the course of the day.
20 Q. Finally, what do you infer from the fact that you were
21 not brought into the Nickleby bag dispute but, as
22 you have said, the politicians were not shy to bring you
23 into other disputes?
24 A. I think it is difficult for me to put myself in other
25 people's heads. As I have said on a number of
81

1 occasions, I take the view that we have a number of
2 staff there who have to be allowed to make their own
3 decisions but obviously if things are not being brought
4 to my attention it leaves with me a generalised view
5 that what is going on in those rooms is proceeding
6 satisfactorily.
7 THE COMMISSIONER: Essentially you are there as a final
8 Court of Appeal on that particular day.
9 A. I think that is the way I was used on a number of
10 occasions.
11 MR COPPEL: Would you ever have gone into pen E during the
12 course of the count on 11th June?
13 A. I went into every pen more than once during the course
14 of the day. I essentially walked up and down all of the
15 pens, tending to go in one door, walk slowly through the
16 room, observe, talk, and out the other door, and so
17 forth. And I pretty much spent the whole day doing
18 that.
19 THE COMMISSIONER: All the politicians know who you are?
20 A. I do not think there are any politicians who do not know
21 who I am, sir.
22 THE COMMISSIONER: Before you are cross-examined can I ask
23 you a question, I might have perhaps asked Mr Owen but
24 I am sure you know the answer as well. Are there any
25 council elections this year?
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1 A. No.
2 THE COMMISSIONER: This is the fallow year, is it?
3 A. Yes.
4 THE COMMISSIONER: Prior to that we know there was a one
5 councillor election in 2003 and a one councillor
6 election in 2002. In 2001, was there a full council
7 election?
8 A. No.
9 THE COMMISSIONER: When was the last time there was
10 a full --
11 A. All out? I think it was about 20 years ago, and it --
12 THE COMMISSIONER: This is the first time in about 20 years
13 you have had a full re-election of the council?
14 A. Yes, and it came about because of the rewarding because
15 you cannot continue the rolling process when the
16 boundaries have changed.
17 THE COMMISSIONER: This is the result of a major boundary
18 change which I have on the map behind me.
19 A. Yes.
20 THE COMMISSIONER: So that as from now it will go fallow,
21 and then 1, 2, 3 one councillor elections, and then
22 fallow then 1, 2, 3.
23 A. That is correct.
24 THE COMMISSIONER: So unless people had very long memories
25 they would not have remembered the last all-out council
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1 election.
2 A. They were a few people with very long memories there on
3 that day but you are correct, there were not that many
4 people helping at the count or participating as
5 candidates who will have recalled the previous all-out
6 election.
7 THE COMMISSIONER: And you say the problem was exacerbated
8 by the fact that a number of people had not voted
9 a straight ticket and that makes counting more
10 difficult.
11 A. Yes, there was a significant use of a mixed vote, and if
12 I may say so, from observing during the course of the
13 day, quite a mixed vote. One would stand and look over
14 the shoulders of counters and be quite surprised at how
15 people were casting three votes, but that meant a large
16 number of the votes were laid out for complicated
17 counting rather than sorted into bundles for what
18 I would call simple counting.
19 THE COMMISSIONER: Mr Owen very efficiently gives us the
20 returns, the results by ward for June 2004. It appears
21 that there are a number of wards where the three
22 councillors are not of the same party.
23 A. That is correct.
24 THE COMMISSIONER: Which indicates a certain element of
25 cross-voting, if I can put it that way.
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1 A. Yes.
2 THE COMMISSIONER: Mr Hayes?
3 MR HAYES: I have no questions.
4 THE COMMISSIONER: Mr De Mello?
5 MR DE MELLO: No questions.
6 MR BROOK: No questions.
7 THE COMMISSIONER: Mr Sukul?
8 Cross-examination by MR SUKUL
9 MR SUKUL: Mrs Homer -- is "Mrs Homer" appropriate for me to
10 address you by?
11 A. I am happy with Mrs, that is what most people use.
12 Q. Mrs Homer, there came a point in time when you would
13 have come into the knowledge that the 275 votes seized
14 by the police at the warehouse were unsealed when the
15 police first saw them. Do you know about that?
16 A. Yes, I accept what you are saying. There came a time
17 when I became aware that the votes were unsealed.
18 Q. Okay. You are a very experienced person in the field of
19 election law and election processes, is that not right?
20 A. I would not say I was as experienced as John Owen, no.
21 Q. Mrs Homer, you remember that John Owen would have spoken
22 to you on 10th June following a conversation he had with
23 the police officer whose name is DC McLaren. You
24 remember Mr Owen mentioning to you that DC McLaren had
25 visited him and spoken with him?
85

1 A. I would not have been able to remember the policeman's
2 name, but yes, I recollect the conversation.
3 Q. And it is not in your statement so I am pleading to your
4 memory as best I can. John Owen, with whom you were in
5 regular contact, had a conversation with you about the
6 police before the close of poll, is that right?
7 A. Yes, I think that is correct.
8 Q. Mrs Homer, if it had happened that you had come into
9 knowledge before the close of poll, indeed before the
10 count, that these 275 votes that were seized by the
11 police were first seen by the police to be in unsealed
12 envelopes, in the middle of the night in this deserted
13 warehouse, would you not have taken a decision that
14 because these votes were so tainted they ought not to be
15 included in the count?
16 A. It is quite difficult to judge what would have happened
17 completely in that hypothesis. I am confident John and
18 I would have had a longer and much more detailed
19 conversation if either he or I had been told
20 categorically by the police that the votes had been
21 seized after being observed, as some of the witnesses
22 have said, in a state of open disarray with some
23 activity going on.
24 Q. All right. My question to you is this: if you were ever
25 confronted in the future as Returning Officer with
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1 a sets of facts that tells you clearly that here is
2 a bag of 275 votes seized by the police, but these votes
3 when first they were seen by the police were contained
4 in open envelopes, ballot papers exposed, would you
5 contribute or would you decide that those votes ought to
6 be counted in an election?
7 A. I think I have to -- what I would do is ask the police
8 questions because there is for me a very clear divide in
9 this between myself as the Returning Officer, who has
10 responsibility for the mechanics of this election, and
11 the role of the police and the DPP for considering
12 whether offences have been committed. I have to say, if
13 the description that we have now been given had been
14 shared with us, I think both John and I might have
15 wanted a fuller conversation with the police to say: are
16 you saying an offence was committed or was not
17 committed, and are you saying -- what are you saying
18 about the state these votes were in?
19 I think both John and I still however feel
20 constrained and I would be very interested in
21 your Honour's judgment in relation to this. If the
22 police said clearly to us: there is no offence, I think
23 if the votes appear to be in order at the state the
24 police say to us there is no offence, we are then duty
25 bound to count those. But any sensible Returning
87

1 Officers, as we did in this case, will know how many
2 votes there were and therefore in any subsequent
3 challenge like this there would be clarity about the
4 number of votes. If that decision by the police is
5 proven subsequently to be wrong it would enable a court
6 to make a decision as to whether the election stands or
7 not.
8 I am very much more dubious simply because of the
9 difficulty it would place us in of becoming some kind of
10 challenge to those people who have the responsibility
11 for determining whether a criminal matter has occurred.
12 I do not think I would have the skills and I am
13 confident in the current arrangements that we would not
14 have the capacity as the elections office to undertake
15 that role.
16 Q. Just one last point, and it is this point: now that
17 you have come into knowledge of the evidence that has
18 been given to this court on oath by a number of police
19 officers, that those votes were in fact unsealed --
20 MR COPPEL: That is not correct. It is only one police
21 officer.
22 MR SUKUL: Do you consider that the decision to count those
23 votes as part of the overall count is a decision which
24 ought not to have been taken?
25 A. No, I think we made the correct decision on the
88

1 information that was available to us. As I have just
2 indicated to you, if we had been given a fuller picture,
3 I think we would have instigated a much fuller
4 conversation and then reached a decision. I think it is
5 very difficult to hypothesise what that would have been
6 without having the conversation, and that decision would
7 then have been documented in order that it can be
8 properly challenged in a place like this.
9 Q. All right. Just let me ask you this. You have made no
10 mention of this Nickleby bag in your statement. There
11 must have been some point in time when on the morning of
12 the count somebody would have mentioned this Nickleby
13 bag. Is that fair comment?
14 A. You would have thought, if it was as important as has
15 been suggested, that somebody would have mentioned it,
16 but I am confident nobody did.
17 Q. Not at all?
18 A. I have to say, like a number of people who have listened
19 to this evidence, I have no understanding of what
20 Nickleby's is. I think we have been told it is
21 a gentlemen's outfitters. It just seems to me it is one
22 of those things that if it had been raised it would have
23 stayed in my recollection.
24 THE COMMISSIONER: It is a gentlemen's outfitters and it has
25 at least one outlet in the block that contains New
89

1 Street Station. Those who come from London, I believe,
2 pass it every day, whether they pop in and buy
3 themselves clothes I have no idea. But it is in the
4 concourse of New Street Station. Is that the Palisades?
5 A. Yes, it is. It may be that it is a gentlemen's
6 outfitters, unfortunately it has not taken my notice
7 whatsoever I am afraid.
8 MR SUKUL: Mrs Homer, the learned Commissioner knows a great
9 deal more than I about Nickleby's. In fact I was the
10 first to raise it in court now that I did not have
11 a clue then and I certainly do not have a clue now what
12 Nickleby is.
13 But at no point in time during the course of the
14 morning was the Nickleby bag raised by anybody?
15 A. I certainly have no recollection of that. To be honest
16 I have been reading the transcripts but I do not think
17 anybody has suggested they did raise it with me, no.
18 MR SUKUL: Indeed they have not. May I mention my kind
19 thanks for you giving evidence. Those are my questions.
20 THE COMMISSIONER: I am interested in a question raised by
21 Mr Sukul. It is quite clear from all the evidence
22 I have heard here and from the Act and the regulations,
23 that the investigative function of the Returning Officer
24 is almost nil.
25 A. Yes, sir.
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1 THE COMMISSIONER: If something looks like a valid vote and
2 you have no evidence to suggest it is not, you have no
3 power and no resources to be ferreting around to see
4 whether it is or is not valid.
5 A. Yes, sir, that is my interpretation, that that is the
6 duties placed on me.
7 THE COMMISSIONER: It is also quite clear, and I explored
8 this in detail with Mr Owen at the last trial, that
9 although documents come in with signatures like
10 applications to vote and declarations of identity, your
11 office has no means of verifying those signatures?
12 A. That is correct.
13 THE COMMISSIONER: And it follows, of course, that there are
14 absolutely no means of verifying the signatures or
15 indeed the existence of the witnesses.
16 A. That is correct.
17 THE COMMISSIONER: I will be corrected if I am wrong, but my
18 understanding of the witnessing provisions is that there
19 is no requirement for the witnesses to be resident
20 in the ward or even in the electoral area? Am I right
21 in that, Mr Coppel? Mr Owen nods.
22 A. That is one I would head toward the expert on. He
23 nodded and I would take his view on it.
24 THE COMMISSIONER: If you get a witness statement which says
25 his name is John Smith and he is a resident in Auckland,
91

1 New Zealand, providing the whole thing looked regular,
2 you would have to accept it.
3 A. Yes, I think that is the position we are in.
4 THE COMMISSIONER: So far as the police are concerned,
5 we have been told that the police have, as you would
6 expect, little knowledge or experience of electoral
7 offences.
8 A. I think that is right, although I would say that I think
9 the experience in Birmingham probably puts the force
10 here slightly more into the experienced strike than
11 maybe the case elsewhere in the country.
12 THE COMMISSIONER: I think possibly this election has given
13 them a steep learning curve. But in general we have
14 heard, and again one would expect, that they have to be
15 reactive rather than proactive?
16 A. That is necessarily so. All I would say is that issues
17 like personation have been issues for many years in
18 Birmingham. We have much more regular contact here
19 in the police for presence at polling stations on
20 polling day, and for back-up support at the count.
21 THE COMMISSIONER: The problem in the past has been
22 personation at polling stations?
23 A. Absolutely, I think for all of us postal voting was
24 a changed challenge this year.
25 THE COMMISSIONER: Postal voting at polling stations is
92

1 slightly easier to police, I use police in a general
2 rather than official way, slightly easier to police than
3 a postal vote?
4 A. I think you meant personation.
5 THE COMMISSIONER: Sorry. Yes.
6 A. I think it is, although I think for all of the parties
7 there have been concerns really about the capacity even
8 to manage that, simply because of the scale and the
9 numbers of polling stations. Whilst one can make
10 a comment and a judgment about where such issues might
11 arise, we clearly cannot sustain a police presence at
12 all polling stations throughout the day.
13 THE COMMISSIONER: Would it be a fair comment, you say
14 target areas, that the areas most at risk are the areas
15 where the contest is closest?
16 A. I think that is inevitably so.
17 THE COMMISSIONER: So if you had a safe seat for one
18 particular party then there would clearly be very little
19 point in anybody personating either for that party or
20 against them because it would have to be done on such
21 a large scale to make detection more probable.
22 A. That is correct.
23 THE COMMISSIONER: So it is really if you were in the
24 personation business you would target what might be
25 termed the marginal ward?
93

1 A. I think that is correct, and that is much the same
2 discussion John and I have with the police in order to
3 ask where we will focus our peripatetic workers, because
4 we send staff round from polling station to polling
5 station, we try and put experienced people everywhere
6 but we back them up with people who are available on
7 call, and then we back that up obviously with requests
8 for police presence where we think it will be necessary
9 and of value.
10 THE COMMISSIONER: Obviously what I have said about marginal
11 wards will follow equally with marginal Parliamentary
12 constituencies?
13 A. Yes.
14 THE COMMISSIONER: There we are. Clearly you must be
15 regarding the election that none of us knows is going to
16 happen on 5th May with a certain degree of trepidation?
17 A. I think one has to regard each of these affairs as
18 a learning opportunity, sir. We will give thought,
19 clearly, to the way we run the next election based on
20 our experience of the last one, and if we have the
21 benefit of them by the time we get there, any of your
22 comments in this case which are available and are
23 relevant.
24 THE COMMISSIONER: But of course at the end of the day
25 you are dependent on the laws contained in the 2001
94

1 regulations unless somebody does something to alter
2 them.
3 A. Very much so.
4 THE COMMISSIONER: Anything arising out of that, Mr Coppel?
5 Re-examination by MR COPPEL
6 MR COPPEL: Just one thing. Right at the end of that
7 exchange with the Commissioner you said that you will
8 give thought clearly to the way that Birmingham City
9 Council, and you the Returning Officer, will run the
10 next election based on your experience of this election
11 and what has taken place in the petition. Are you able
12 to tell the court what practical steps, if any, you are
13 taking as a result of what might be termed "the
14 experience"?
15 A. There are a number of discussions. I have it say these
16 are not complete. I would like the opportunity of
17 sitting down for several hours' discussion with John to
18 start putting int