Aston and Bordesley Green Vote Fraud Trial

Wednesday 9th March 2005

1
1 Wednesday, 9th March 2005
2 (10.30 am)
3 THE COMMISSIONER: Before we recommence Ms Harding's
4 evidence, two days ago I received a letter from
5 a Mr Roger Godsiff, who I understand to be a Member of
6 Parliament for one of the constituencies in Birmingham.
7 He enclosed a considerable bundle of correspondence
8 which he had had with the Returning Officer, Mrs Homer.
9 I took the view that it was not appropriate for Members
10 of Parliament to be communicating with judges about the
11 action which they were currently trying but as it
12 concerned correspondence with the Returning Officer,
13 I handed what I had received to Mr Coppel for his
14 examination and comments.
15 Mr Coppel has formed the view that this material,
16 were I to read it, contains a matter which bears upon
17 the issues that I have to try and he is of the view that
18 I should not read it. Having heard Mr Coppel's comments
19 on this, it seems to me that I think in all fairness to
20 everybody I should make the material available for the
21 other parties to see while myself not reading it.
22 If, when the matter is concluded, everyone were
23 of the view that I should read it, then I would.
24 If anybody was of the view that I should not, I will
25 not. So I will hand this back to Mr Coppel and ask him
2
1 to make that material available to the other parties
2 in the action at some convenient time.
3 MR BRODIE: Sir, does the material bear both on the
4 Bordesley Green and the Aston petitions?
5 THE COMMISSIONER: I understand from Mr Coppel, and I say
6 no more about this, that it contains material which is
7 critical of the conduct of the 2004 election for
8 Birmingham as a whole. I know no more than that and at
9 the moment I wish to know no more than that. If
10 Mr Godsiff were to wish to give evidence, no doubt he
11 could take appropriate steps with one of the parties.
12 MR DE MELLO: There is just one matter if I could please ask
13 you to address. It is this: my learned friend Mr Sukul
14 has at some stage, as I would suggest, to close his
15 case. Tariq Hussain is hanging in the air. At some
16 point I would like Mr Sukul to formally close his case
17 because there are matters which are outstanding in the
18 petition that I would like him to address before
19 Councillor Afzal is called to give evidence.
20 THE COMMISSIONER: Mr Sukul, you have heard what is said.
21 Certainly you will have to indicate at some stage,
22 though not at the moment, when you close your case.
23 I am assuming for the purposes of closing cases that the
24 handwriting experts' evidence will be held over to the
25 end.
3
1 MR DE MELLO: Yes.
2 THE COMMISSIONER: Mrs Harding, could you come back into the
3 box, please.
4 MR COPPEL: Before Mrs Harding resumes, I understood
5 yesterday that you made an order in relation to the
6 naming of agents.
7 THE COMMISSIONER: You are absolutely right. Has that been
8 complied with?
9 MR SUKUL: The answer to the question is yes. I actually
10 have in my hand --
11 THE COMMISSIONER: You have given this to Mr Coppel?
12 MR SUKUL: Sir, the position is this. I had an informal
13 discourse with Mr Coppel and I indicated to him that my
14 instructions are to take a certain course of actions
15 which, if I were to take it, might completely evaporate
16 the requirement for me it to serve this document upon
17 him.
18 I beg your indulgence. I have the document but
19 I probably will be looking at another hour or so before
20 I can come to that final decision.
21 THE COMMISSIONER: It had better be served by the end of the
22 mid-morning break or else.
23 Mr Hayes, I imagine you have the document you had
24 last night and you are prepared to let us all have it?
25 MR HAYES: This is the name and shame? I have taken the
4
1 view that I find this all rather distasteful.
2 THE COMMISSIONER: Your sensibilities do you credit. May we
3 take it therefore that you will not be asking me --
4 MR HAYES: No. Sir, you have the powers almost of
5 a medieval Pope. If you wish to name --
6 THE COMMISSIONER: On the basis that I am permitted, for
7 at least a period of five years, to excommunicate
8 people. I shall ask for the bell, book and candle
9 at the appropriate time.
10 MR HAYES: I shall not be naming and shaming.
11 THE COMMISSIONER: Mr De Mello?
12 MR DE MELLO: No, sir.
13 THE COMMISSIONER: The ball is in your court, Mr Sukul.
14 Do you have a list of people that you would wish me to
15 name in my report, if I make one, under Section 145?
16 MR SUKUL: Sir, the answer is yes. It is highly unlikely
17 that I would be looking to take that course of action
18 and it is only out of an excess of caution that I made
19 the comments I made earlier on.
20 THE COMMISSIONER: You had better decide quickly. If there
21 is any naming or shaming going on in this case, I have
22 to give those who might be named or shamed an
23 opportunity to appear before me under Section 160.
24 MR SUKUL: Sir, I hear what you say.
25 THE COMMISSIONER: I hope so.
5
1 You are still on oath, Mrs Harding.
2 MR SUKUL: Sir, I have no further questions for this
3 witness.
4 THE COMMISSIONER: Mrs Harding, can you answer me this
5 question: when was it that you were first asked to
6 recall the events concerning the Nickleby bag?
7 A. It would have been in order to put together my first
8 witness statement.
9 THE COMMISSIONER: So probably we are talking February this
10 year?
11 A. That is right.
12 Application to cross-examine by MR BRODIE
13 MR BRODIE: I am going to crave the court's indulgence again
14 for about five minutes.
15 MR COPPEL: I really do object.
16 MR BRODIE: Again, just the Nickleby bag.
17 MR COPPEL: Sir, can I set out very clearly the position of
18 the Returning Officer. I know of no basis for Mr Brodie
19 to ask questions of this witness. He does not represent
20 any of the parties to this action. His clients have not
21 been joined or made an interested party to this action.
22 He does not appear here as a friend of the court.
23 He has no right to ask any questions of any witness in
24 this action and I do not know of any power by which he
25 may be permitted to ask questions.
6
1 But even if he had such a right, and even if you had
2 such a power, sir, the basis upon which Mr Brodie
3 purports to be doing so is founded upon a false premise.
4 On the third day of this trial, on 5th March Friday last
5 week, Mr Brodie introduced his intention to involve
6 himself with this action on the basis that it was
7 relevant to the Bordesley Green matter. Mr Brodie has
8 of course formally closed the Bordesley Green matter.
9 Never mind, no doubt he will say. But we do mind.
10 Put that to one side and let us see what he told you,
11 sir, on Friday. This is what he said of his
12 involvement.
13 MR BRODIE: Could I have a reference please?
14 MR COPPEL: Of course, page 17, day 3. This is Mr Brodie to
15 you, sir:
16 "Can I raise something because this evidence in the
17 petition of the Returning Officer is quite relevant to
18 the Bordesley Green case."
19 What we had been hearing on that day was from
20 Mr Aziz, and Mr Aziz in paragraph 3 of his witness
21 statement and in oral evidence had stated that
22 Mrs Harding had pulled out from the Nickleby bag crisp,
23 unfolded local election papers, and that he, Mr Aziz,
24 had objected to the latter being counted. But she had
25 continued afterwards and so Mr Brodie says this:
7
1 "Can I raise something because this evidence in the
2 petition of the Returning Officer is quite relevant to
3 the Bordesley Green case. I had the opportunity of
4 looking at the evidence in this case and in particular
5 the evidence of the Returning Officer. As was the case
6 at the outset of the Bordesley Green petition, there is
7 no evidence filed by the Returning Officer that denies
8 the assertion made in this petition that this bag
9 contained loose ballots.
10 "There is evidence about how the bag might have got
11 into the NIA but there was no evidence, as there was not
12 in the Bordesley Green petition, as to the contents. So
13 as things stand, also no cross-examination of any of the
14 witnesses called by the Returning Officer, and in due
15 course the evidence will go unchallenged by the evidence
16 called by the Returning Officer and the court will be
17 invited to find on uncontested evidence that the
18 Nickleby bag contained these loose votes."
19 That is how it becomes relevant to the
20 Bordesley Green matter. Mr Brodie told the court on the
21 Friday that there was no evidence filed by the Returning
22 Officer that denies the assertion made in the Aston
23 petition that the Nickleby bag contained loose ballots.
24 That, Mr Brodie has told the court, is how the Nickleby
25 bag becomes relevant to the Bordesley Green matter.
8
1 That is the keystone for his involvement in this
2 case. Mr Brodie is wrong. He is wrong in two places.
3 Paragraph 7 of this witness's witness statement, she
4 states --
5 THE COMMISSIONER: But there is no doubt that there is
6 evidence put in by the Returning Officer -- and indeed
7 you referred me to it, I have it well in mind -- that
8 there were no yellow papers in the Nickleby bag.
9 So that is an issue which I shall have to try. Where do
10 we go from there?
11 MR COPPEL: My learned friend Mr Brodie tells the court that
12 the basis for his intervention in these proceedings is
13 because the Returning Officer has not put in any
14 evidence in relation to loose ballot papers. That is
15 what he told the court was his basis. That palpably is
16 incorrect.
17 THE COMMISSIONER: I allowed him to cross-examine Mr Owen on
18 the matter, contrary to your objections, it has to be
19 said. At the end of the day, I need to get to the
20 bottom of this and if I can be assisted by a short
21 cross-examination from Mr Brodie, then I am prepared to
22 take a fairly robust course.
23 May I point out that although you may be technically
24 correct, with the cases separate, one case has finished
25 and therefore counsel might be described as having
9
1 completed his job. Nonetheless, I was persuaded with
2 considerable difficulty, I was persuaded back
3 in November that it was not appropriate to order a joint
4 trial. I ordered a trial one after the other making it
5 quite clear at the time that the evidence in one could
6 stand as the evidence in the other, and that attendance
7 by the parties in one trial at the trial of another
8 would be not frowned upon.
9 Certainly Mr Sukul did not avail himself of the
10 opportunity to apply to cross-examine witnesses in
11 Bordesley Green and that was his choice. Mr Brodie has
12 availed himself of what I said, to seek to raise one or
13 two matters with witnesses here. Given that the
14 evidence in one can stand as the evidence in the other
15 I can see no harm in this.
16 MR COPPEL: Well, if I be permitted to finish --
17 THE COMMISSIONER: You of course have a right to re-examine.
18 MR COPPEL: I have a right, but as I state, the premise upon
19 which Mr Brodie sought to introduce his line of
20 questioning is palpably incorrect. It is not just this
21 witness, it is also Ms Hurst who specifically states in
22 paragraph 6 of her witness statement that she had no
23 recollection --
24 THE COMMISSIONER: Fine. Given that the premise put forward
25 on Friday may be inaccurate, if I am of the view that
10
1 I would be assisted by this, does the premise matter?
2 If I am not going to be assisted by it, it does not
3 matter when the premise is good.
4 MR COPPEL: It is for Mr Brodie to tell this court why it is
5 that he should be permitted, a non-party should be
6 permitted in this case to ask questions and how it may
7 be that the questions that he asks may assist in the
8 determination of the Bordesley Green matter, which is
9 the case on which he appears. He does not appear in the
10 Aston matter.
11 THE COMMISSIONER: I fully accept that.
12 MR COPPEL: We ask ourselves, does Mr Brodie suffer any
13 prejudice from the line that I am taking? And the
14 answer is no. The witness statements in the Aston
15 matter, both the petitioners' and the Returning
16 Officer's, were all available to him, Mr Brodie, during
17 the Bordesley Green matter. If there was anything
18 relating to --
19 THE COMMISSIONER: But you would have objected to him
20 cross-examining about the Nickleby bag in the
21 Bordesley Green matter.
22 MR COPPEL: No. If my learned friend could establish that
23 there was a relevance between what took place in the
24 Aston pen in relation to the Nickleby bag to the
25 Bordesley Green matter, that was the proper way of doing
11
1 it. He did not do so. He chose not to question the
2 Returning Officer's witness in the Bordesley Green trial
3 about these matters. He closes his case and now seeing
4 the Returning Officer's witnesses in another separate
5 matter, he wants to do what he chose not to do when he
6 had the opportunity.
7 Mr Brodie can dress it up the way he likes but
8 really what he is seeking to do is make up what he now
9 perceives to be the shortcomings in his adduction of
10 evidence in the Bordesley Green matter. He has no right
11 to do so, he has no power for that to be done, and if
12 the matter is pressed I did ask for a formal ruling.
13 THE COMMISSIONER: Is the matter pressed, Mr Brodie?
14 MR BRODIE: Yes, it is.
15 RULING
16 THE COMMISSIONER: I take the view that the structure of
17 these two trials is such that with evidence in one
18 standing as evidence in the other, there is ample
19 jurisdiction for me to allow someone who is a party in
20 one trial to ask brief questions in cross-examination of
21 someone who is a witness in another trial. I would not
22 have ruled otherwise had an application been made in
23 proper circumstances by Mr Sukul in the Bordesley Green
24 case and I see no reason why I should take a different
25 line in the Aston case.
12
1 I appreciate everything that Mr Coppel says, but if
2 this matter were regarded simply as a trial of two
3 totally unconnected events, then clearly Mr Brodie would
4 have no locus standi. But in view of the way in which
5 I have indicated that I will treat these trials, and
6 have done since the outset, I might say; also the way
7 in which I will treat evidence in these trials, I am
8 prepared to allow Mr Brodie some very restricted and,
9 I hope, brief indulgence to ask questions of this
10 witness and, should he wish to do so, of the other
11 witness who speaks as to the bag.
12 Mr Brodie, can you be brief?
13 Cross-examination by MR BRODIE
14 MR BRODIE: I will be.
15 Mrs Harding, as you may have established during the
16 course of those conversations I appear for the
17 petitioners in the Bordesley Green petition.
18 I understand from your evidence that as of the election
19 in June of last year you had been involved in elections
20 in various capacities since 1997?
21 A. Yes, that is right.
22 Q. So for seven years you had acquired experience in the
23 operation of good election process?
24 A. In different capacities, yes.
25 Q. In view of your experience and qualifications, when
13
1 responsibilities were being distributed for the 2004
2 elections, you were given a significant amount of
3 responsibility for the Aston count?
4 A. Yes.
5 Q. You say in paragraph 14 of your second witness statement
6 at the end:
7 "Had there been a query as to the origins of the bag
8 [being the Nickleby bag] at the time the obvious course
9 would have been to get a resolution of that without any
10 delay."
11 And you consider that to be the appropriate
12 position?
13 A. Yes. That is what it says in my witness statement.
14 Q. You say that you would have considered the presence of
15 loose local government ballot papers in the Nickleby bag
16 to be remarkable?
17 A. Could you direct me to the point that you are actually
18 referring to?
19 Q. Would you accept if you had seen loose local authority
20 papers in the Nickleby bag you would have considered it
21 to be remarkable?
22 A. Yes.
23 Q. It is at the end of paragraph 11:
24 "I would have more certainly noticed something as
25 remarkable as this had it occurred."
14
1 The reason for that, I suggest, is that you knew
2 with your experience and qualifications and
3 responsibility which you had been given and the recent
4 training you had undertaken that there were no
5 circumstances in which the local government ballots
6 should have been found in that bag loose?
7 A. Yes.
8 Q. That is why it is remarkable if it was there?
9 A. Yes.
10 Q. We are talking here about the local authority elections?
11 A. Yes.
12 Q. The local authority count?
13 A. Yes.
14 Q. There was a European ballot at the time but the count
15 was not going to take place for another two days?
16 A. That is right.
17 Q. You found European ballot papers in that bag?
18 A. Yes.
19 Q. They ought not to have been there, ought they?
20 A. On reflection, no.
21 Q. On reflection, no. On reflection it is remarkable that
22 they were because they ought not to have been there?
23 A. I have already answered questions from Mr Sukul on that
24 and I agreed with him.
25 Q. What is your answer to my question, they ought not to
15
1 have been there and it was remarkable?
2 A. I accept that.
3 Q. So in retrospect ...
4 THE COMMISSIONER: I think the point that is being made
5 is that for European ballot papers to be present at the
6 count of the local authority election would be, if
7 anything, more remarkable than local authority papers
8 rather than less remarkable than local authority papers.
9 That is the point being made. How do you answer that?
10 A. Well, I would have expected that there would have been
11 up to two ballot papers within the postal votes. There
12 would have been, if a voter chose to do so, a European
13 ballot paper --
14 THE COMMISSIONER: These were loose European ballot papers.
15 One might see a circumstance, that would not be
16 irregular, in which loose local authority ballot papers
17 found their way to the NIA. But the point that is being
18 made is that surely the fact that there were loose
19 European ballots is even more unusual than loose local
20 authority ballots because European ballots should not be
21 there at all.
22 A. But when we were opening the postal votes we were
23 sorting the European ballots.
24 THE COMMISSIONER: But these were not opened, this was
25 a loose bundle of European ballots that was actually
16
1 sitting in the Nickleby bag, before anybody opened it or
2 emptied it. So I am very surprised that this is
3 considered by anybody to be less remarkable than a bunch
4 of local authority papers. I would have thought you
5 expected the papers by some glitch to have got in there,
6 but European ballots seems to be very unusual.
7 A. I accept it is remarkable that they were there.
8 MR BRODIE: You said yesterday that you took the decision
9 automatically, because there was nothing remarkable
10 about the contents of the bag, simply to empty the
11 contents of the bag and include those contents in the
12 count?
13 A. Yes, given the circumstances of that morning I knew that
14 there had been problems accommodating all of the postal
15 votes and that in the end not all had been opened prior
16 to the count.
17 Q. You then said that you subsequently sought the advice of
18 the legal officer, Mr Mirza Ahmad?
19 A. I said that I sought the advice of Mr Moore first and
20 then Mr Ahmed.
21 Q. By that stage you had already mixed the ballots in your
22 case?
23 A. I sought their advice --
24 Q. I did not ask why you sought their advice; had you by
25 that stage mixed the ballots?
17
1 A. Both the crate and the bag --
2 Q. Mixed the contents of the Nickleby bag with the other
3 votes that had been received on that table?
4 A. With the contents of the grey crate.
5 Q. So you would not, when you sought the advice of Mr Moore
6 and then Mr Ahmed, have been in a position to do
7 anything about any mistake you may have made, would you?
8 A. I sought their advice because of the questioning that
9 I received from the candidates and their agents.
10 Q. I will ask the question again. Would you have been able
11 to do anything about any mistake which you had made as
12 a result of advice given to you subsequently?
13 A. I accept that if any decision was taken in respect of
14 the votes, the decision would have had to be taken in
15 respect of both the Nickleby bag and the grey crate.
16 THE COMMISSIONER: The point that is being made is very
17 simple. If Mr Mirza had said, "Good heavens, no, you
18 should not possibly touch the votes in the Nickleby
19 bag", your answer would have had to have been, "Sorry,
20 it is too late. They are all mixed up with the ones
21 in the grey crate and we cannot tell which is which."
22 A. Yes.
23 THE COMMISSIONER: So if you had made a mistake it would be
24 completely irretrievable.
25 A. Yes.
18
1 THE COMMISSIONER: That is the point that is being made, is
2 it not, Mr Brodie?
3 MR BRODIE: That is the very point that is being made.
4 So asking for advice at that point was arguably the
5 wrong time to be asking advice; do you accept that?
6 A. Yes.
7 Q. In fact, because it is too late for you to do anything,
8 it is a foolish time to be asking for advice?
9 THE COMMISSIONER: I think that is comment.
10 MR BRODIE: Very well.
11 I move on to the final topic of this. You said
12 yesterday that if the situation occurred again today you
13 would do the very same thing, did you not?
14 A. Yes.
15 Q. We have had two and a half weeks of evidence of massive
16 electoral fraud, which has been reported in all the
17 national newspapers. Have you learned nothing from this
18 or should we just book this court for October?
19 MR COPPEL: That is an offensive question.
20 A. I think if I had known about the personal allegations
21 made against me, yes, I would have covered my back and
22 sought advice earlier on. But I have not heard anything
23 about the way in which I dealt with those votes. If
24 I had sought advice earlier on, the advice would have
25 been that the bag came from the elections office given
19
1 the evidence that I have seen. So would I have dealt
2 with the votes any differently? No.
3 THE COMMISSIONER: Mrs Harding, I am sorry to have to put
4 these questions because everybody has been far too
5 gentle with me to do so, but you are a solicitor with
6 the Supreme Court; is that correct?
7 A. Yes.
8 THE COMMISSIONER: Have you familiarised yourself with the
9 2001 regulations?
10 A. No, I am sorry.
11 THE COMMISSIONER: Were you not aware that under the
12 regulations postal ballots are to be brought to the
13 count in a sealed ballot box, that is an obligatory
14 requirement of regulation 82?
15 A. Yes, part of the training I received, yes.
16 THE COMMISSIONER: So when they did not arrive in a sealed
17 ballot box, as per the regulations, your evidence is
18 nonetheless that you sought no authority from anybody
19 senior to you to deal with those votes?
20 A. That is right. I had been told earlier on in the day
21 that there had been difficulties accommodating all of
22 the postal votes.
23 THE COMMISSIONER: Were you aware or unaware that what you
24 were doing was at least arguably in breach of the 2001
25 regulations?
20
1 A. At the time it was not at the forefront of my mind.
2 THE COMMISSIONER: That was because you had not familiarised
3 yourself with the regulations, is that correct?
4 A. Yes.
5 MR BRODIE: I have no further questions.
6 THE COMMISSIONER: Mr Coppel, any re-examination?
7 Re-examination by MR COPPEL
8 MR COPPEL: Three points, Mrs Harding.
9 When you opened up the envelope Bs, that is the ones
10 that look like this (indicating), purple corner and the
11 postage on them, what ordinarily was to be found inside
12 this envelope?
13 A. Inside the envelope ordinarily we found a declaration of
14 identity and a further smaller envelope.
15 Q. A smaller envelope like this (indicating), envelope A?
16 A. Yes.
17 Q. When you opened up envelope A, what did you generally
18 find inside envelope A?
19 A. There was either one or two ballot papers.
20 Q. If there were two, one was yellow, local government
21 election?
22 A. Yes, that is right.
23 Q. And the other one was?
24 A. White, European.
25 Q. Is that what you were expecting to find when you opened
21
1 up the envelope As, either one or two, yellow or white?
2 A. Yes, that is right.
3 Q. Did you see any difference between the loose white ones
4 that you found in the Nickleby bag and what you were
5 expecting to find when you opened up the envelope A?
6 A. No.
7 Q. Secondly, prior to your putting the contents of the
8 Nickleby bag and the grey crate onto the table, the
9 Aston table, what objection, if any, had been made by
10 the people surrounding the table to your doing that,
11 carrying out that task?
12 A. No objection was made at that time.
13 Q. They did not say to you, "Look at those white ballot
14 papers, you should not be doing this"?
15 A. That was not mentioned to me immediately as I emptied
16 the contents of the Nickleby bag.
17 Q. So far as you were concerned, was anyone at that stage,
18 when you took the contents out, saying to you "Deputy
19 Returning Officer, you should not be doing this"?
20 A. No.
21 THE COMMISSIONER: Mrs Harding, would you agree with me
22 that if you are a solicitor of the Supreme Court,
23 conducting a formal election process, it is your job to
24 make decisions as to what is right or wrong and not
25 necessarily wait for somebody standing by to object to
22
1 what you are doing?
2 A. Yes.
3 THE COMMISSIONER: Mr Coppel?
4 MR COPPEL: Was it part of your duty to watch the ballot
5 boxes arriving at the NIA late on the 10th or early
6 in the hours of the 11th?
7 A. No.
8 Q. Was it part of your duties to see the ballot boxes being
9 taken from where they had arrived at the NIA to the
10 counting table?
11 A. No.
12 Q. Was it part of your duties to enquire into the
13 regularity of how the boxes had been brought from when
14 they arrived at the NIA to the Aston table?
15 A. No.
16 Q. Did you receive, before undertaking the task of Deputy
17 Returning Officer, instruction from the elections
18 office, in particular Mr Owen?
19 A. Yes, I did.
20 Q. Did you attend all of those sessions?
21 A. Yes I did.
22 Q. Were you provided with written instructions as to your
23 tasks?
24 A. Yes.
25 Q. I would ask the witness to be shown tab 30 in my lot,
23
1 exhibit-bundle A to the witness statement of John Owen,
2 volume 3. Might the witness be handed a copy?
3 THE COMMISSIONER: Do you have a copy for the witness?
4 MR COPPEL: Perhaps somebody could be so kind as to provide
5 the witness with a copy free.
6 THE COMMISSIONER: Have a look at that for the time being.
7 MR COPPEL: Take your time to familiarise yourself with that
8 document. First of all, do you recognise it?
9 A. Yes, I do.
10 Q. When did you first receive it, do you remember, before
11 or after the election?
12 A. I received it on the Tuesday before the count, the
13 training session.
14 Q. Did you familiarise yourself with it as part of your
15 duties as DRO?
16 A. Yes.
17 Q. I will be corrected if I am wrong, but to save the
18 trouble of reading it, there is nothing in there that
19 tells you to go out and check the provenance of the bags
20 and the boxes that votes are provided to you at the
21 counting table, is there?
22 A. I do not believe there would be.
23 Q. The Commissioner has asked you about the 2001
24 regulations.
25 THE COMMISSIONER: I have seen this document before.
24
1 This document presupposes, does it not, that the
2 material will be arriving, as required by the
3 regulations, at the count in ballot boxes? It is
4 silent, unless I have missed it, as to what would happen
5 with material arriving at the NIA that was not in sealed
6 ballot boxes.
7 MR COPPEL: Were you briefed on the morning of the 11th by
8 Mr Owen?
9 A. Yes, I was.
10 Q. The briefing, I think you have stated in your witness
11 statement, started at about 8.30 in the morning, did it?
12 A. Yes.
13 Q. Do you know what time approximately it finished or how
14 long it ran for?
15 A. I would estimate that it finished by approximately
16 9 o'clock.
17 Q. Did Mr Owen say anything about the receptacles or
18 containers in which some of the votes had been carried
19 over to the NIA?
20 A. I believe that he said that there had been problems
21 accommodating all of the postal votes. I do not recall
22 there being anything more specific than that.
23 Q. When he said that there had been problems accommodating
24 all of the postal votes, what did you understand that to
25 signify?
25
1 A. That there had probably been problems with the number of
2 ballot boxes that were available.
3 Q. Was it suggested to you at any time during the course of
4 that briefing, so far as you can recollect, that you
5 should be suspicious about anything that was not in
6 a sealed ballot box?
7 A. I do not recall any instruction of that kind.
8 THE COMMISSIONER: Do you need to be instructed?
9 The essence of all elections is that votes should be, at
10 least if everything is going properly, in a sealed
11 ballot box, whether it is a vote cast at a polling
12 station or a vote cast by post.
13 The 2001 regulations are a lamentable document, but
14 at least they are clear on that. That is what I do not
15 understand, Ms Harding, and I am not sure that I really
16 am understanding as to why you should have thought that
17 it could be proper for votes not in a sealed ballot box
18 to be dealt with without getting the say-so of somebody
19 senior to you. You were taking a considerable risk,
20 were you not?
21 A. I accept now that, yes, that was a risk.
22 MR COPPEL: Mrs Harding, do you know how many pieces of
23 legislation in fact governed this election?
24 A. No, I am afraid I do not.
25 Q. The Electoral Commission itself has said electoral law
26
1 has developed in a piecemeal fashion over many years and
2 it is to be found in no fewer than 36 pieces of
3 legislation, dating back to the Parliamentary Elections
4 Act 1695. As part of your duties, did you look at the
5 1695 Act?
6 THE COMMISSIONER: I regard that as a facetious question.
7 The treatment of postal votes is in a very short compass
8 of the 2001 regulations, which are directly applicable
9 to the events at the NIA. Legislation in 1695 is not.
10 MR COPPEL: Sir, there are 36 pieces of subsidiary pieces of
11 legislation governing this election. For it to be
12 seriously put to this witness that she should to
13 familiarised herself with all of those or any number --
14 THE COMMISSIONER: What is put to this witness is that it is
15 quite clearly in the regulations that postal ballots
16 should be in a sealed ballot box, which is what somebody
17 with no knowledge of electoral law at all would take to
18 be the case. Anything else would be counter-intuitive,
19 because any person who has ever participated in any
20 election knows that a vote cast in a polling station
21 goes into a sealed ballot box and it remains sealed
22 until it is unsealed for the purposes of the count.
23 Therefore the expectation, even of the dimmest lay
24 voter, would be that votes would be in a sealed ballot
25 box. So the point that there are 36 pieces of
27
1 legislation does not actually take us very much further.
2 MR COPPEL: Mrs Harding, were you appointed to the position
3 of DRO because of your experience or because of your
4 legal background, so far as you are aware?
5 A. So far as I am aware, I believe I was appointed because
6 of the experience I had previously had with elections.
7 Q. When complaint was made at 10.30-ish in the morning
8 about your taking the contents out of the plastic bag,
9 was it being said to you by any of the complainants that
10 these were not proper because they were not contained in
11 a sealed plastic box?
12 A. No.
13 Q. Was that said at any time during the day?
14 A. No.
15 MR COPPEL: I think, sir, perhaps the witness could be given
16 an adjournment.
17 THE COMMISSIONER: I am sorry, yes. I will rise for ten
18 minutes. I will take this as the mid-morning break.
19 (11.20 am)
20 (A short break)
21 (11.30 am)
22 MR COPPEL: Mrs Harding, it was said to you before the short
23 adjournment that the expectation of even the dimmest
24 voter was that the envelopes ought to have been in
25 a sealed ballot box. That is what even the dimmest lay
28
1 voter would expect. Did any of the various people
2 surrounding your end of the Aston table say to you that
3 these ought to have been in a sealed ballot box?
4 A. No.
5 Q. When you brought Mr Moore into the discussion did he say
6 to you, "These ought to have been in a sealed ballot
7 box"?
8 A. I do not recall him saying that to me.
9 Q. When Mr Ahmad was brought into the discussion, did he
10 say to you, "These ought to have been in a sealed ballot
11 box"?
12 A. He may have done, but I do not recall him saying that to
13 me.
14 Q. And in the ensuing discussions that took place at about
15 10.30 in the morning, all the voluble discussions that
16 were taking place, were people saying to you, "These
17 ought to have been in a sealed ballot box"?
18 A. I do not recall any comments of that sort.
19 Q. Did anyone around the table refer to the 2001
20 regulations?
21 A. No.
22 Q. Were you provided with a copy of the 2001 regulations?
23 A. No.
24 MR COPPEL: I have no further questions.
25 I call Ken Moore.
29
1 MR KENNETH MOORE (sworn)
2 Examination-in-chief by MR COPPEL
3 MR COPPEL: Mr Moore, for the record would you tell the
4 court your full name?
5 A. Kenneth Moore.
6 Q. Your professional address?
7 A. Lancaster Circus, Birmingham.
8 Q. And your occupation?
9 A. Principal Manager, Pensions.
10 Q. You have in connection with these proceedings prepared
11 and signed a witness statement, a copy of which you
12 should find in the bundle before you at page 499.
13 A. Yes.
14 Q. If you turn, please, to page 503, is that your
15 signature?
16 A. It is.
17 Q. It is signed and dated 7th February 2005. Is this your
18 witness statement?
19 A. It is.
20 Q. Is it true and correct in every detail?
21 A. It is.
22 Q. Omitting formal parts it reads:
23 "I am employed by Birmingham City Council as
24 Principal Manager, Central Payments and Pensions, and
25 have previously acted as the Deputy Returning Officer
30
1 since 1987. I have acted in this role on approximately
2 20 occasions once you take into account both the local
3 and general elections. I am the DRO for Edgbaston and
4 I undertook the role of senior DRO at the counting of
5 the votes for five wards including Aston.
6 "Of the eight senior DROs at the count my role was
7 to support, assist and offer general guidance during the
8 course of the count for DROs for the wards of Aston,
9 Ladywood, Nechelles, Soho and Sparkbrook. At all times
10 the DRO remains responsible for the conduct of the count
11 and allocation of duties to their counters for their
12 ward. I have not previously been involved in an
13 election where there have been SDROs. Previously the
14 chain of command was simply a DRO reporting upwards to
15 the Chief Legal Services Officer and the Elections
16 Officer. I had formed the opinion through being asked
17 by John Owen to take on the role and from my previous
18 experience that the post of SDRO was created due to the
19 potential complexity of the count. This was because all
20 three seats for elected membership were up in all wards
21 rather than the usual one seat, and thus sorting and
22 counting the ballot papers would be likely to be more
23 difficult and problematic.
24 "The role of the SDRO was therefore advisory and
25 consultative. My line of reporting upwards was to Mirza
31
1 Ahmad, Chief Legal Services Officer, and to John Owen
2 the Elections Officer. I was aware that Mirza Ahmad and
3 John Owen would be going around all the counts in all of
4 the wards and would be the officers available to assist
5 the DRO and the SDRO on any technical and procedural
6 issues arising that could not otherwise be resolved.
7 "The Deputy Returning Officer for Aston was Alison
8 Harding. My recollection is that the count was set to
9 commence at 9 am and I arrived at the NIA at
10 approximately 8.45 am. On arrival, I was directed by
11 someone from election control staff, whose name I cannot
12 recall, to attend a briefing of SDROs and DROs. My
13 recollection is that this briefing finished at
14 approximately 9.15 am and we returned to the counting
15 area to commence the count."
16 Pausing there, do you remember anything of the
17 briefing?
18 A. Not a great deal at this moment, no.
19 Q. Do you remember anything being said about the manner in
20 which votes had arrived at the NIA?
21 A. No, I do not.
22 Q. "In comparison to counts for other elections I have been
23 involved in, this count was particularly difficult, all
24 three seats in each ward were up for election as opposed
25 to the usual one seat. So the number of people
32
1 attending was increased significantly. There was also
2 a significant increase in the number of postal votes at
3 this election, and the verification procedures for these
4 are more complex than for other ballot papers.
5 "It was also unusual in that the counting for the 40
6 wards was divided up into eight groups of five ward
7 counts. Each group of five wards was being conducted
8 simultaneously in the same part of the counting room.
9 I recall thinking that the hot and rather claustrophobic
10 atmosphere was probably a contributory factor to the
11 animated nature of some of the candidates and their
12 agents.
13 "My understanding was that the elections office
14 issued the general instruction that the DROs were to
15 allocate a number of counters to work specifically on
16 the verification stages of the postal votes while the
17 other counters would be engaged in the processes
18 relating to other ballot papers. For the processing of
19 the postal votes, I took the view that due to the volume
20 of postal votes it would be up to the DROs to organise
21 the particular number of counters they wanted to assign
22 to this part of the count.
23 "Part of my role as an SDRO was to ensure that
24 the DROs had followed this instruction and work was
25 taking place on both postal votes and other ballot
33
1 papers. At about 10 am, Alison Harding approached me
2 and told me that she was experiencing difficulties
3 in that candidates and their agents were impeding the
4 counters. I then went with her back to where the Aston
5 counters were, which is about 15 metres away from where
6 I had been, and saw that several candidates and their
7 agents from various parties were leaning right over the
8 counters and by so doing were making their job more
9 difficult.
10 "My recollection is that both Alison and I told them
11 to move back to allow the counters more room to work.
12 They did move back. I recall there were other occasions
13 during the early part of the morning when Alison
14 mentioned to me that the proximity of candidates and
15 their agents was impeding the counters and she had told
16 them again to move back.
17 "At about 10.30 am, I walked over to Alison to check
18 whether there were still difficulties with the proximity
19 of candidates and their agents to the counters. Alison
20 told me that a candidate, although I do not know from
21 which party, complained about a shopping bag and queried
22 where it had come from."
23 I just pause there, Mr Moore. Prior to that, prior
24 to 10.30, had Alison mentioned to you any complaint
25 about a shopping bag?
34
1 A. No, she had not.
2 Q. When you went over to the Aston table at 10.30, how many
3 purple envelopes so far as you can recollect were there
4 on the table that had either been opened or that
5 remained to be opened?
6 A. My recollection is a sea of envelopes across that top
7 part of the table. So there was certainly several
8 hundred on the table.
9 Q. Did you see the shopping bag itself?
10 A. No.
11 Q. When you were brought over, where did you understand the
12 contents of the bag to have been put?
13 A. I understood the contents of the bag to have been put on
14 the table.
15 Q. When you were called over about 10.30, had they finished
16 opening up what you have termed the sea of envelopes at
17 that end of the table?
18 A. They were still in the process of being opened, my
19 recollection is, but it looked like the vast majority
20 were unopened.
21 Q. At that point, 10.30, when you were called over from
22 this particular point, what was the atmosphere like at
23 that end of the Aston table?
24 A. Very tense, animated, a lot of noise. It was just
25 a very -- it did not seem a very pleasant atmosphere at
35
1 that part of the table.
2 Q. Approximately, as best you can, how many people were
3 around that end of the Aston table?
4 A. I would say 20 to 30 people.
5 Q. Did you have to push your way through?
6 A. Very much so, yes.
7 Q. What were the voice levels?
8 A. It was loud.
9 Q. What was it like for those sitting at the table opening
10 up the envelopes?
11 A. The counters that were immediately in front of where
12 I was standing were very harassed, very flustered.
13 I can only imagine it could not have been a very
14 pleasant experience for them.
15 Q. I resume reading:
16 "Alison told me that she had seen the shopping bag
17 situated in the pile of postal votes upon her arrival
18 for the count and had treated them as postal votes to be
19 processed. Alison indicated that the postal votes had
20 been removed by her from the bag and had been mixed with
21 others for processing prior to their being counted.
22 "Alison's opinion, which I shared, was that those
23 votes would not have come from any other place other
24 than the elections office or a polling station, bearing
25 in mind the tight security arrangements at the count and
36
1 the fact that the bag had been found with the other
2 postal votes that morning. Consequently, Alison and
3 I took the view that providing that the ballot papers
4 had the appropriate perforated marks and matched the
5 declarations of identity, there was no reason why they
6 should be treated as void."
7 Pausing there, at that stage did anyone say to you,
8 any of the 20-odd people you mentioned before, around
9 that end of the counting table, "Those envelopes, they
10 should have been in a black plastic box"?
11 A. I have no recollection of that.
12 Q. I continue:
13 "I noticed that Mirza Ahmad was present within our
14 counting area so I asked him to come over so that Alison
15 and I could tell him about the complaint about the
16 shopping bag. Alison briefed Mirza on this and I recall
17 that the three of us were in agreement that the bag
18 could only have been put where it was by someone in the
19 elections office. Mirza advised the individual, I think
20 a candidate from one of the parties who had complained,
21 and the count continued. I do not recall the reaction
22 of the individual. I then moved away from the Aston
23 count to resume my other duties."
24 Had there been a pause in the opening process at
25 this point, had the counters all been put on hold while
37
1 this was being resolved with Mirza Ahmad?
2 A. No.
3 Q. Did you see at that stage Sir Albert Bore in the room?
4 A. I saw Sir Albert Bore at various points throughout the
5 day. He was a candidate on another area so he was
6 around that table.
7 Q. As best you can, how long did the discussion that you
8 had with Alison Harding and Mirza Ahmad last?
9 A. I would say no longer than two or three minutes.
10 Q. And when Mirza Ahmad eventually advised the individual
11 of his decision, what was the reaction?
12 A. I cannot recall the exact reaction because I was
13 a senior DRO for five wards, so at that point in my mind
14 it was a done thing, and I was being advised to see
15 what was happening in the rest of the (inaudible).
16 Q. Did you see anything whatsoever to suggest, as the
17 petitioners have suggested in this petition, that
18 Sir Albert Bore took part in the decision to count these
19 votes?
20 A. No. I saw nothing of that sort.
21 Q. Is that something you are likely to have missed?
22 A. It is something I would admit, yes.
23 Q. Sorry, have missed.
24 A. It would be speculation at this point to say that, but
25 I would have thought I would not have missed it.
38
1 Q. I resume your statement:
2 "9. The DRO for the Soho ward was David Roberts.
3 The counting area for this ward was situated on the
4 opposite side" --
5 THE COMMISSIONER: Does this relate to anything in this
6 particular petition?
7 MR COPPEL: Bear with me. Not that paragraph, paragraph 10:
8 "At no time was a request made to me to keep the
9 postal votes from the shopping bag separate and to my
10 knowledge no such request was made to Alison Harding or
11 anyone else in the elections office. At no time during
12 the course of the day did I see any postal votes that
13 appeared to have been changed or Tippexed out, although
14 in fairness I would not expect that to be the case
15 unless they were brought to my specific attention by the
16 Deputy Returning Officers."
17 And there follows a statement of truth. Wait there
18 please.
19 THE COMMISSIONER: Mr Hayes?
20 MR HAYES: I have no questions.
21 MR DE MELLO: No questions.
22 MR BROOK: No questions.
23 Cross-examination by MR SUKUL
24 MR SUKUL: Mr Moore, good morning to you. Let us clear up
25 a little point. You have substantial experience in
39
1 election counting day, you have been present at many
2 counts.
3 A. I have.
4 Q. And it is right that the only people who were admitted
5 to the counting area would have been the candidates and
6 their agents?
7 A. That is correct.
8 Q. Is it not quite normal at counting time, or counting
9 day, for there to be a little bit of activity because of
10 the interests of the various candidates and their agents
11 in the result of the count?
12 A. It is.
13 Q. Yes. And so it is nothing unusual that there would have
14 been some kind of anxiety, activity, by the interested
15 parties at that time, in the Aston pen?
16 A. That is correct. I think the difference was that there
17 were three candidates, so the numbers of people seemed
18 to be increased as to what I have been used to normally.
19 Q. Nothing unusual about that?
20 A. Apart from the three seats all being (inaudible),
21 nothing unusual.
22 Q. Let me just take you to the relevant matters then.
23 Mr Ahmad I think is senior to you, is that right?
24 A. He is, yes.
25 Q. Mr Moore, you have mentioned the conversations that you
40
1 have had with both Mrs Harding and Mr Ahmad. Were you
2 told about the fact that loose European ballots were
3 found in a shopping bag?
4 A. I have no recollection of that, no.
5 Q. Nobody has ever mentioned that to you?
6 A. No.
7 Q. All right. Let me just take you back to the point in
8 time when you arrived at the Aston pen. I think that
9 was about 8 o'clock or so.
10 A. No, about 9 o'clock.
11 Q. All right.
12 THE COMMISSIONER: After the briefing?
13 A. After the briefing.
14 MR SUKUL: I am grateful, sir.
15 After the briefing, as far as you can remember, the
16 only people who were present in the Aston pen and around
17 the Aston table would have been the table counters, the
18 table supervisors, Mrs Harding and so on?
19 A. As far as I can recall, yes.
20 Q. You told my learned friend that the count had already
21 started?
22 A. (Witness nods)
23 Q. And you had seen a sea of envelopes there? You told my
24 learned friend that the count had started because you
25 saw a sea of envelopes on the table?
41
1 A. That was the sorting stage.
2 Q. That was the sorting stage?
3 THE COMMISSIONER: Sorting or opening?
4 A. Well, opening.
5 MR SUKUL: So there is a clear distinction between
6 sorting/opening, and actually counting the papers
7 themselves, that is right, is it not?
8 A. Yes.
9 Q. Okay. When you saw the sea of envelopes, that would
10 have been, say, 9.30. I could not be too far wrong with
11 that, could I?
12 A. No, I think it was about 10.30.
13 Q. Can you remember what you were doing between 9.15 and
14 10.30?
15 A. Not specifically, but as I explained I had five counting
16 areas to go round so I think I would have been going
17 round talking to the DROs for those areas.
18 Q. Just focus on Aston. 9.15 to 10.30 is an hour and 15
19 minutes. It is quite long in relative terms bearing in
20 mind what was going on that morning. Anything that
21 comes to memory that is important that you were involved
22 in?
23 A. Not that I can recall, no.
24 Q. Could you see Mr Ahmad in the general area at that time?
25 A. I do not recall seeing Mirza Ahmad until I saw him about
42
1 10.30.
2 Q. And that was the first conversation as such that you had
3 with him?
4 A. I believe so, yes.
5 Q. Between 9.15 and 10.30 you had no knowledge at all about
6 this Nickleby bag?
7 A. That is correct.
8 Q. You have never seen it?
9 A. I have never seen it.
10 Q. Mr Moore, help me with this. You are a senior man, as
11 I have mentioned, as far as election rules and this kind
12 of thing are concerned. Clearly you must be very, very
13 familiar with what we call the section 82 requirement,
14 the requirement to ensure that postal votes are put into
15 a sealed ballot box.
16 THE COMMISSIONER: Rule 82.
17 MR SUKUL: I am so sorry, thank you.
18 THE COMMISSIONER: Technically regulation 82. Regulation
19 82. You are not a lawyer so you may not be aware of it,
20 but regulation 82 provides that there should be in
21 effect a final ballot box, which remains at the last
22 moment to be filled with postal votes that come in at
23 the last minute. It is then to be sealed and taken to
24 the count and opened at the count. That seems to be the
25 scheme of it. So that the final postal ballots should
43
1 arrive in a ballot box at the count.
2 A. Mm-hm.
3 THE COMMISSIONER: That is what the rule says. You appear
4 not to have been aware of that?
5 A. I think I was generally aware of that, but not in that
6 sort of detail.
7 MR SUKUL: All right. But do you consider that compliance
8 with that rule to be something that is reasonably
9 important?
10 A. I do.
11 Q. Let us go to this conversation you say that you had with
12 Mrs Harding. You were told, were you not, first of all
13 that there was some kind of discomfort as a result of
14 the candidates and agents just gathering around, peering
15 over chairs and that sort of thing?
16 But following that, you came to know that there was
17 or is a dispute about a shopping bag containing postal
18 votes?
19 A. Yes.
20 Q. And that happened at about 10.30?
21 A. (Witness nods)
22 Q. Well, you had mentioned to me earlier on that when you
23 first saw the sea of envelopes that would have been at
24 around 10.30?
25 A. Yes.
44
1 Q. Then you say that this issue about the shopping bag came
2 up at about the same time?
3 A. Yes.
4 Q. Well, at the time when this issue was brought to you,
5 which is 10.30, and at the time when you saw the sea of
6 envelopes, which is 10.30, which came first?
7 A. I would say it was about the same time.
8 Q. Right.
9 THE COMMISSIONER: Mr Moore, can I ask: when were you first
10 asked to recollect the events of 10th June in relation
11 to the bag incident?
12 A. It would be some two months ago.
13 THE COMMISSIONER: Your recollection of it is that at the
14 time when it was raised with you, you were told that the
15 bag had already been emptied out?
16 A. Correct.
17 THE COMMISSIONER: What I do not get from your statement,
18 and we did not get from Mrs Harding, and we may or may
19 not get from Mr Mirza Ahmad, is any suggestion, if that
20 is correct, of election officers saying to anyone: it is
21 a bit late now, we cannot do anything about it, which
22 would be the normal person's reaction, if somebody came
23 to you and said, "There are all these votes in
24 a Nickleby bag, they should not be counted", and you
25 say, "What has happened to them?" "Well, they are being
45
1 counted", so your reaction and my reaction would
2 probably be, "It is a bit late, what can I do about it?"
3 MR COPPEL: Mrs Harding does deal with it, paragraph 17 of
4 her second witness statement.
5 THE COMMISSIONER: If I am being unfair to Mrs Harding, let
6 me just check that. Yes, I may be making an unfair
7 point with Mrs Harding then and I see that it probably
8 is yes. It does to that limited extent, but you do not
9 seem to have said at any time "It is a bit late".
10 A. I may well have done at the time but I have no
11 particular recollection of saying that. With hindsight
12 I think it is something one would say.
13 MR SUKUL: Mr Moore, adopting the word "hindsight", if
14 confronted with this kind of situation in the future,
15 sealed ballot boxes, you have heard the evidence, there
16 is no secret about it. Sealed ballot boxes properly
17 placed on or under the table, the counting table. On
18 the counting table a green plastic shopping bag
19 containing hundreds of postal votes in an important,
20 serious, solemn local government election, 20 years of
21 experience, what advice would you give insofar as it
22 concerns the decision to involve those postal votes
23 in the election count?
24 MR COPPEL: I am sorry, this forms no part of the schedule
25 of allegations which the petitioners make as part of
46
1 their case. It is a line of enquiry that is being
2 pursued for the better part of this morning. It is not
3 part of the pleaded case against the Returning Officer
4 and it points --
5 THE COMMISSIONER: I think the real objection is that it is
6 a hypothetical question, Mr Sukul. I think that is the
7 real objection to the question.
8 MR COPPEL: There is a secondary objection, and that is
9 this. Points are being scored against witnesses that
10 they do not mention it in their witness statements.
11 Of course they do not, it does not form part of the
12 schedule of allegations.
13 MR SUKUL: If by way of comment you may allow me, that there
14 have been multiple references by my learned friend who
15 sits on my right about witnesses appearing for the
16 petitioners when in fact sadly, regrettably, they did
17 not, including the man who sits on my left, chose not to
18 mention the witness statements.
19 THE COMMISSIONER: Mr Sukul, the question you asked was
20 hypothetical, I just wonder whether you need to take it
21 any further.
22 MR SUKUL: Just to mention this, then, Mr Moore: your role
23 insofar as it concerns the decision to count the votes
24 in the bag is nil then, is it not? You had no role at
25 all in the decision to count those votes?
47
1 A. In the circumstances of what happened, that is correct.
2 Q. That is your evidence?
3 A. Mm-hm.
4 Q. You were not consulted before the bag was emptied?
5 A. That is correct.
6 Q. You were not told about the loose European ballots?
7 A. I have no recollection of that, no.
8 Q. And I just want to ask you this: do you remember
9 Mr Ahmad making a decision that the count should be
10 stopped whilst he conducted some enquiries about the
11 bag?
12 A. No, I do not. I have no recollection of that at all.
13 Q. You say in your statement that he was with you at the
14 appropriate time. You say at the same time, in fact
15 your words were:
16 "I know Mr Mirza Ahmad was present in our counting
17 area."
18 You cannot remember him saying, "Look, let us hold
19 this count, let us hold this bag, let me go and make
20 enquiries and come back"?
21 A. I have no recollection of him saying that, no.
22 Q. Just one moment, sir.
23 Mr Moore, if you had spoken to Mr Ahmad about
24 whether or not the votes could be counted, you would
25 remember that, would you not?
48
1 A. I would remember that, yes.
2 MR SUKUL: Thank you very much, sir.
3 THE COMMISSIONER: Mr Moore, you are a man of considerable
4 experience of elections going back over many years.
5 Can you remember any other election where votes turned
6 up in plastic bags?
7 A. No.
8 THE COMMISSIONER: You say in your statement that,
9 paragraph 7:
10 "Alison's opinion, which I share, was that those
11 votes would not have come from any other place other
12 than the elections office or a polling station, bearing
13 in mind the tight security arrangements at the count.
14 Consequently, Alison and I took the view that providing
15 they had the correct perforated marks there was no
16 reason why they should be treated as void."
17 I get the impression from that, and correct me if I
18 am wrong, that this was an assumption that was being
19 made by you and Mrs Harding and that no actual enquiries
20 were made as to the provenance of the bag at that time?
21 A. That is correct, but my recollection at the time was
22 that since the contents of the bag had been mixed with
23 those on the table, there was no other decision that --
24 no other action that I could take from that point on.
25 THE COMMISSIONER: Yes.
49
1 Anything arising out of that, Mr Coppel?
2 MR COPPEL: No sir, might the witness be excused?
3 THE COMMISSIONER: Of course.
4 MR COPPEL: I call Mirza Ahmad. He was asked to leave the
5 room. He has been asked to come back in.
6 Sir, you will find his statement starting at
7 page 493.
8 THE COMMISSIONER: Might I simply say this: it is my duty as
9 the Commissioner enquiring into these matters and
10 subsequently reporting these matters to raise anything
11 that I consider appropriate with the witnesses. I would
12 not normally invite that to be characterised as points
13 scoring.
14 MR COPPEL: Sir, there was no suggestion by me of points
15 scoring by the Commissioner, merely by my learned
16 friends.
17 MR MIRZA AHMAD (sworn)
18 Examination-in-chief by MR COPPEL
19 MR COPPEL: Mr Ahmad, would you please tell the court your
20 full name?
21 A. Sir, I am Mirza Ahmad Marakh Nabip Ahmad.
22 Q. And your professional address?
23 A. 11 to 14, Ingleby House, Birmingham.
24 Q. And your occupation please?
25 A. I am a barrister, Chief Legal Officer with Birmingham
50
1 City Council, and also the monitoring officer for
2 Birmingham City Council.
3 Q. You have in connection with this proceeding prepared and
4 signed a witness statement, a copy of which should be
5 before you at page 493? Do you see that?
6 A. I do indeed.
7 Q. If you turn please to page 497, the final page of that
8 witness statement. Do you see a signature there?
9 A. That is my signature.
10 Q. And it is dated 3rd February, 2005.
11 A. Yes, indeed.
12 Q. Is that true and correct in every particular?
13 A. Absolutely.
14 Q. I wonder please if you could start reading it to the
15 court and there will be times when I will interrupt you
16 to ask further questions.
17 A. "I am Mirza Ahmad, MBA LLM barrister, of Ingleby house,
18 11-14 Cannon Street, Birmingham. I am employed by
19 Birmingham City Council in the capacity of Chief Legal
20 Officer. I am a member of the General Counsel of the
21 Bar and Chairman of the Bar Association for the local
22 government and the public service."
23 Can I just stop there? Do you want to know when
24 I was called to the Bar and when I became a member of
25 the General Counsel of the Bar?
51
1 THE COMMISSIONER: When you were called to the Bar might
2 help.
3 A. 1984, July:
4 "I have been with Birmingham City Council
5 since June 2000. I made this statement from information
6 within my own knowledge, save where otherwise stated.
7 In addition to being the Chief Legal Officer, I am also
8 the monitoring officer for Birmingham City Council",
9 which as you know, sir, is a statutory provision under
10 the Local Government and Housing Act 1989, section 5 to
11 be more precise.
12 "Furthermore, under the delegated power by virtue of
13 section 35(4) of the Representation of the People Act
14 1983 the Returning Officer, that is Lin Homer, appointed
15 me as a Deputy Returning Officer as I reported directly
16 to her, and have line management responsibilities of the
17 elections office which is led by John Owen,
18 since July 2002.
19 "The day-to-day conduct of the election was,
20 however, left to John Owen, the elections officer, who
21 I know is an expert in such matters at a national
22 level."
23 THE COMMISSIONER: We have heard his evidence, Mr Ahmad.
24 MR COPPEL: Pause there. Could you tell the court of any
25 other professional qualifications that you hold?
52
1 A. Indeed, sir. I am also a member of the Birmingham Law
2 Society as a co-operative member. You may be surprised
3 at the terms of that, I certainly checked my position
4 with the Bar Council before accepting it. Clearly my
5 Chief Legal Officer position is as city solicitor and
6 the title has changed and I am obviously a barrister.
7 I therefore represent the legal department of Birmingham
8 Law Society.
9 THE COMMISSIONER: I think you may take it, Mr Ahmad,
10 although there is no reason why you should know this,
11 but I am reasonably familiar with the structures of
12 local government. It is a field in which I have
13 practised for many years, though not, I hasten to add,
14 representing your council.
15 A. I am also since October 2004, sir, the lead officer for
16 the Association of Council Secretaries and Solicitors,
17 which is a national body, representing Chief Legal
18 Officers like myself in terms of all the local
19 authorities and monitoring offices, and the lead officer
20 responsibilities are in terms of ethical framework, that
21 is a local government code of conduct for members.
22 I should also mention, sir, that you will know from
23 your Bar days that I was also a member of the very
24 influential Alexander Working Party looking at the
25 composition of the Bar Council itself.
53
1 THE COMMISSIONER: Yes, I remember that.
2 MR COPPEL: Could you resume, please?
3 THE COMMISSIONER: Were you then in private practice or in
4 local government?
5 A. Local government.
6 THE COMMISSIONER: Where were you before Birmingham?
7 A. Prior to Birmingham -- I joined Birmingham in June 2000
8 and prior to that I was assistant director of legal
9 services and also the Metropolitan Borough Council,
10 which is in the Greater Manchester Area.
11 I have been in local government, sir, since 1985.
12 "I make this statement in response to allegations
13 made at point 18 of the election petition which is
14 headed "The Nickleby Bag".
15 "I arrived at the count at the National Indoor Arena
16 on 11th June 2004 at approximately 8.30 am in order to
17 assist the Returning Officer, Lin Homer, with any
18 queries that might arise during the day. Therefore,
19 I was often moving from one ward to another, speaking
20 with election staff to see how matters were progressing,
21 and obviously to identify any potential problems that
22 may need sorting on the day."
23 MR COPPEL: We have heard from other witnesses that there
24 was a briefing by John Owen which started at about 8.30
25 in the morning. Did you go to that briefing?
54
1 A. With all due respect to John no, primarily because, 1,
2 I was exceptionally busy in other matters, and 2, I had
3 heard the briefing prior to coming to the day anyway.
4 I assisted John in other previous briefings for
5 elections.
6 Q. You were just about to go to 10.30 in the morning.
7 Would you tell the court what you were doing between
8 your arrival at about 8.30 in the morning and 10.30?
9 A. Indeed. Clearly there needed to be the collection of
10 the communication equipment from electoral control.
11 I did that, and obviously I was then moving around
12 between the different wards, as I have said, to see and
13 make sure everything was in order.
14 Q. You have just spoken about communication equipment.
15 What was that?
16 A. It was a hand-held communication device.
17 Q. And you had one, did you? Who else had one?
18 A. Certainly I recall John Owen having one. Lin Homer had
19 one, I do not know whether she was carrying it around
20 but she certainly had access to it. I also recall
21 Miranda Freeman, maybe the press officer, Audrey Geeber,
22 and maybe the different DROs in each of the pens having
23 the ability to communicate with election control very
24 quickly.
25 Q. Before you got to 10.30 am would you have at any time
55
1 entered pen E?
2 A. It goes without saying, yes. Because prior to 10.30,
3 clearly I was moving around and seeing how the count was
4 progressing in the different pens.
5 THE COMMISSIONER: You cannot remember presumably when you
6 entered pen E.
7 A. No.
8 MR COPPEL: When you went into pen E before 10.30 did you
9 notice anything unusual in pen E?
10 A. Nothing unusual.
11 THE COMMISSIONER: We have heard that the pens were very
12 crowded, is that your recollection?
13 A. Absolutely. Clearly there was a lot of excitement
14 in the air and I suppose a lot of anticipation by
15 candidates and their agents.
16 THE COMMISSIONER: A lot of people talking very loudly,
17 I should not wonder.
18 A. There were a lot of people around and clearly they had
19 to raise their voices to be heard.
20 THE COMMISSIONER: And possibly people were talking in
21 languages other than English?
22 A. Yes.
23 MR COPPEL: You have touched there on the atmosphere in the
24 pens. What was the atmosphere in the pens like early
25 in the morning and did it change during the course of
56
1 the day?
2 A. Well, certainly in terms of prior to the commencement of
3 the count there were the usual I would imagine
4 hospitalities between the agents and their candidates
5 and other members of the public who might have passed
6 there. But obviously, as the morning progressed and
7 there did not appear to be a straightforward result
8 coming out, then the anticipation of the quick result
9 may have turned to frustration and anxiety and I would
10 imagine also, sir, that a lot of people in the room did
11 not understand what was happening. So their lack of
12 understanding would have contributed to the heightened
13 anxiety and frustration.
14 Q. Prior to 10.30 in the morning, that time you went in,
15 had you received any queries that you can recollect from
16 any of the DROs or the SDROs in pen E?
17 A. No.
18 Q. I wonder if you could resume then, at paragraph 4 of
19 your witness statement.
20 A. "At approximately 10.30 am, the Deputy Returning Officer
21 for Aston, Alison Harding", who is one of my senior
22 solicitors, sir, "asked me for some assistance with
23 regard to election agents and candidates who she felt
24 were intimidating counters and preventing them from
25 carrying out their job properly and efficiently."
57
1 Q. Can I ask you to pause there. How were you brought into
2 this conversation; were you called over, radioed, how
3 was it?
4 A. No, I was doing my walk around in terms of the different
5 pens and it is at that stage that I was approached by
6 Alison and Ken Moore.
7 Q. If you could continue, please, and read 4 to 6 before
8 I interrupt you again.
9 A. "At the same time, she also mentioned that some queries
10 had arisen regarding the origin of a Nickleby bag which
11 had contained some postal votes. At this point, we were
12 joined by the senior Deputy Returning Officer, Ken
13 Moore."
14 Sir, Ken is not one of my members of staff.
15 THE COMMISSIONER: He has told us he is not legally
16 qualified.
17 A. He is not in my department.
18 THE COMMISSIONER: No, he is a pensions chap.
19 A. Absolutely:
20 "Alison informed me that as far as she was aware,
21 these postal votes had come from the elections office as
22 they were there when she arrived that morning.
23 Furthermore, they were with all the other documents and
24 postal votes ready for the count.
25 "I had various people asking me about the origins of
58
1 the bag and alleging that these were votes confiscated
2 by the police who were taking criminal proceedings.
3 I did not know who all these objectors were, other than
4 former councillor Ayoub Khan, although all of the
5 objectors were Liberal Democrat supporters."
6 The reason why I say that, they were clearly wearing
7 rosettes.
8 THE COMMISSIONER: I do not think it is in issue.
9 A. "I agreed to seek clarification from John Owen, the
10 election officer, as he would know the history of the
11 bag. Until then, I would have instructed one of the
12 elections staff at the Aston ward pen, possibly Alison
13 Harding, that the votes should not be included in the
14 count for the time being."
15 I place emphasis on "for the time being".
16 "At no time did I agree with former councillor Ayoub
17 Khan, or anyone else present for that matter, that the
18 votes would never", and I place emphasis on "never", "be
19 counted. I could not take that decision without first
20 having sought clarification on the issue from the
21 elections officer, which I duly did. It would of course
22 have been negligent for any official to agree to
23 anything without firstly checking the relevant facts."
24 THE COMMISSIONER: Pausing there, Mr Ahmad, you are the head
25 of legal, in effect, in Birmingham.
59
1 A. Chief Legal Officer, yes.
2 THE COMMISSIONER: If you are confronted with a problem,
3 your immediate reaction is that you should go to John
4 Owen to discuss it with him?
5 A. No, sir, my immediate reaction is to find the facts and
6 my finding of facts involved not just listening to what
7 Alison and Ken Moore were saying to me, but to actually
8 ask the objectors of their view of the circumstances.
9 THE COMMISSIONER: Before making any decision you go and
10 consult John Owen?
11 A. After I had obtained the facts and checked them, it was
12 clear to me that I had a difference of view from what
13 Alison had told me, quite properly, and what the
14 objectors were saying, and it was therefore at that time
15 that I formed the view that I needed to be certain in my
16 mind where the bags had come from.
17 THE COMMISSIONER: You told us in this statement, what you
18 said is effectively: hold everything for the moment
19 while I get some more information, some more facts, and
20 that includes going to see Mr Owen.
21 A. Absolutely. Can I just say why Mr Owen?
22 THE COMMISSIONER: He is the obvious person to see?
23 A. Absolutely:
24 "John Owen, the elections officer, had confirmed
25 that the bag had been properly received by the elections
60
1 office and as such the bag's contents should be counted
2 as per normal procedure with the other postal votes.
3 I had this conversation with John Owen in one of the
4 corridors to the counting rooms, as I went looking for
5 him after contacting him by intercom system. I had no
6 cause to doubt his advice and after he confirmed that
7 the votes could be included, he did not accompany me
8 back to the Aston ward pen. As a result, I indicated to
9 both Alison Harding and Ken Moore that the votes should
10 be included in the count, which they did. I duly
11 advised the crowd of Liberal Democrat and Labour
12 supporters, who were present at the counting table,
13 accordingly."
14 THE COMMISSIONER: And how happy were they?
15 A. Mixed reactions, as you would expect.
16 MR COPPEL: Mr Ahmad, may I ask you a few questions
17 in relation to that account. First of all, did you at
18 this time actually see the Nickleby bag?
19 A. Which time are we talking about, after I came back from
20 John Owen or before?
21 Q. Before.
22 A. I could see a Nickleby bag, it was very clear.
23 THE COMMISSIONER: We are told it is green.
24 A. I am aware of that.
25 THE COMMISSIONER: Perhaps you shop at Nickleby's, I do not
61
1 know.
2 A. I have in the past but not recently.
3 THE COMMISSIONER: Either they have gone down market or
4 you have gone up market. Do not answer that.
5 MR COPPEL: When you saw it this first time, where was it
6 in relation to the table: on the table, under it?
7 A. My recollection is that it was underneath the table.
8 Q. At this stage, did you peer inside it?
9 A. No.
10 Q. So far as you could see, did it appear as if it had
11 contents in it or did it appear as though the contents
12 had been removed?
13 A. It appeared to be empty; which is why I did not peer
14 into it.
15 Q. It might be convenient at this stage if you could have
16 before you a plan of pen E, exhibit AH2. It is 511O.
17 Perhaps you can take a moment or two to familiarise
18 yourself with it.
19 A. Okay.
20 Q. When you first spoke to Alison Harding at about 10.30
21 about this issue, where were you by reference to this
22 plan?
23 A. If you look at the bottom of the page, sir, you will see
24 there is an entrance at the bottom of the left hand
25 corner of the plan, that is where I would have entered
62
1 pen E. Therefore, working up, will it help --
2 THE COMMISSIONER: Which side of the table would you be?
3 The side that says "Deputy Returning Officer and Two
4 Table Supervisors" or "Candidates and Agents Permitted
5 Here"? We see there is a series of DRO areas and
6 candidates and agents areas.
7 A. Obviously I had access to the DRO areas --
8 THE COMMISSIONER: You come in at the bottom of the plan as
9 we look at it.
10 A. Yes, and I was approached by Alison and Ken Moore about
11 here.
12 THE COMMISSIONER: So that is at the bottom of the plan, as
13 we look at it, which is the furthest end of the Aston
14 table for where the opening of the postal ballot
15 envelopes is marked.
16 A. It would be around here.
17 THE COMMISSIONER: If you look at the Aston table, the
18 opening of postal ballots is marked as happening at the
19 top of the picture.
20 A. Indeed it was, which is why after Alison and Ken had
21 spoken to me I needed to check what the objections were
22 from the other side. I then proceeded up the aisle
23 until I obviously listened to what the objectors were
24 saying.
25 THE COMMISSIONER: So you were talking to them across the
63
1 table?
2 A. Indeed.
3 MR COPPEL: Step-by-step, what did Alison Harding first tell
4 you?
5 A. I think initially she had concerns about some of the
6 candidates and agents intimidating the candidates.
7 Subsequently, she raised --
8 THE COMMISSIONER: Did she raise the bag first or did
9 Mr Moore, can you remember?
10 A. It was Alison because it was her table.
11 THE COMMISSIONER: But Mr Moore was there.
12 A. Yes.
13 THE COMMISSIONER: So the three of you are talking down and
14 near the entrance?
15 A. It was around here, sir.
16 THE COMMISSIONER: In the blank area just inside the
17 entrance. And then you go up the left hand side of the
18 page as we look.
19 A. Indeed.
20 THE COMMISSIONER: And you speak to the objectors who are
21 in the area on the opposite side of the table.
22 A. Yes.
23 MR COPPEL: So that we get an idea, approximately how many
24 objectors are we talking about?
25 A. In terms of vociferous objectors I would imagine there
64
1 were between five or six vociferous objectors. In terms
2 of the crowd, I would imagine there were between 15 and
3 20.
4 Q. As you understood them, vociferous or not vociferous,
5 what exactly were the concerns that were being
6 articulated to you about the bag or its contents?
7 A. Ayoub Khan was very vociferous and agitated about the
8 Nickleby bag, alleging that these were the votes that
9 the police had confiscated and therefore should not be
10 in the count at all and retained for evidence.
11 THE COMMISSIONER: Were you at this stage aware of what has
12 been called the warehouse incident said to have occurred
13 about 36 hours earlier?
14 A. I had read the newspaper article.
15 THE COMMISSIONER: So really what you knew about it was
16 in the Post.
17 A. In the Birmingham Post.
18 MR COPPEL: Were there any other concerns that were being
19 articulated by the objectors, vociferous or otherwise --
20 A. Ayoub Khan was again being vociferous that if these had
21 come from the polling stations, then they should be in
22 sealed envelopes rather than being in a bag. Those were
23 two major things that I recall.
24 Q. At that stage, what were the issues that you considered
25 needed resolving?
65
1 A. I suppose the third point that needed to be flagged up,
2 sir, was that there were allegations from Mr Khan that
3 the bag came after the count, in a sense it appeared at
4 the NIA not coming from the alleged -- and therefore as
5 a lawyer clearly I needed to satisfy myself whether that
6 was correct or not. Alison was very clear to me in the
7 earlier discussion that she had seen the bag before the
8 count started but that was one person's perspective of
9 what happened and I needed to be clear in my own mind
10 where that bag came from.
11 THE COMMISSIONER: I expect as a lawyer, familiar with but
12 not an expert in electoral law, you would be slightly
13 surprised to find votes in plastic bags at all.
14 A. I suppose my concern, quite legitimate concern, was that
15 anyone could potentially have, because there was
16 a crowd, come on the day and just dumped it there. That
17 was my concern in my mind, quite legitimately, and
18 I therefore needed to satisfy myself that that had not
19 occurred.
20 MR COPPEL: So you have told the court, you heard their
21 concerns, the things that are running through your head,
22 the concerns that need to be addressed and need
23 resolution. What did you do next?
24 A. I would have, in view of the vociferous allegations
25 being made and the need for clarity, asked Alison to not
66
1 proceed with the count at that moment in time, but to
2 leave them as they were until I obtained clarification
3 from John Owen as to the authenticity and whereabouts of
4 the bag in question.
5 I then proceeded, sir, to move down the aisle, so
6 down the aisle, sticking with the DROs and election
7 staff. I cannot recall specifically whether I proceeded
8 through the middle of pen E, again the DRO election
9 staff end, or whether I proceeded along this aisle.
10 THE COMMISSIONER: You go out the other exit.
11 A. I contacted John Owen. I had moved away from the
12 allegers, I had moved away probably halfway through the
13 table and contacted John on the intercom. Sorry, that
14 is John Owen.
15 THE COMMISSIONER: We have this plan of the NIA, we know
16 that on this plan you have pen E at the bottom right,
17 and John Owen is whereabouts on this plan when you go
18 and see him, very roughly?
19 A. I entered here, I then obviously had that discussion
20 with Alison Harding and Ken Moore. Moved up to the --
21 this is the objectors, I moved down, either I moved
22 again through the middle, the election staff end, or
23 alternatively I moved through the other side primarily,
24 to avoid the crowd.
25 THE COMMISSIONER: No problem with that. Where did you
67
1 actually meet up with John Owen on that plan?
2 A. Before I actually went that way, John on the intercom
3 said he was coming down through the aisle so I then
4 proceeded to move to the middle aisle, and it is around
5 here that I met John.
6 THE COMMISSIONER: That is the aisle running between the two
7 rows of pens.
8 A. Absolutely.
9 THE COMMISSIONER: So you are outside pen E when you see
10 him.
11 A. Absolutely.
12 THE COMMISSIONER: Do you want to deal with paragraph 7?
13 MR COPPEL: Yes, sir, if I may: what did he tell you, what
14 did you tell him?
15 A. I explained there had been a number of objections from
16 the Liberal Democrat candidates and asked him whether or
17 not he had received any bags, lawfully being delivered
18 to the elections office and being delivered to the NIA,
19 and he assured me that he had been approached by a few
20 people beforehand and so far as he was concerned the
21 bags were legitimate and should be counted. I did not
22 discuss with him whether the Nickleby bag was the bag in
23 question. I said, "Did you receive, has the elections
24 office received, any bags directly from the elections
25 office?"
68
1 Q. After the end of that conversation before you returned
2 to pen E, what, if any, reservations did you have
3 in relation to the decision that you had to make?
4 A. None whatsoever. The elections officer had confirmed to
5 me that he had received or the elections staff had
6 received maybe two or three bags at the elections office
7 and they were transported to the NIA for counting. That
8 was perfectly legitimate.
9 Q. What did you do after the conversation with John Owen?
10 A. Return immediately to pen E to advise the candidates of
11 my decision.
12 THE COMMISSIONER: Were they still standing in the same
13 place, the top end of the table?
14 A. What I proceeded to do was return from the top end --
15 THE COMMISSIONER: In the entrance there?
16 A. In the entrance and on this occasion I decided not to go
17 down the elections officer route, but proceeded directly
18 through the crowd to where I knew the objectors were.
19 THE COMMISSIONER: So you would be round about the point of
20 the arrow above "Candidates and Agents Permitted Here".
21 A. In terms of where your pen is pointing, sir, that would
22 be correct.
23 THE COMMISSIONER: That is just to the left of the other
24 word "Candidates".
25 MR COPPEL: And I think you have said in answer to the
69
1 Commissioner's question that some were pleased, some
2 were less than pleased.
3 THE COMMISSIONER: Some were happier than others.
4 A. You would expect that, sir.
5 MR COPPEL: For how long did you stay there delivering your
6 decision and listening to the ensuing --
7 A. Clearly I recognised the sensitivity of the situation.
8 After having made my decision I then proceeded down the
9 aisle and back up the elections officer route to see and
10 make sure, to provide an oversight that things were
11 moving and progressing correctly.
12 So I would then have been standing, once the
13 decision had been made, at the other end of the counting
14 tables, possibly near the barrier where it is indicated.
15 The decision had been made.
16 Q. Perhaps if you could resume reading your witness
17 statement from paragraph 7.
18 A. Would you remind me which page?
19 THE COMMISSIONER: 495.
20 MR COPPEL: I am grateful.
21 A. "7. I dispute and strenuously deny the inference from
22 the petitioners that I only confirmed the origin of the
23 Nickleby bag after speaking with the then leader
24 the council, Sir Albert Bore. In fact I do not recall
25 seeing councillor Sir Albert Bore at this time.
70
1 Furthermore, I did not consult with him over any
2 election issues including the origins of this bag."
3 To have done so, sir, you know that it would have
4 been wholly improper and inappropriate in my view as
5 a professional and as a barrister.
6 "We may, however, have talked [that is we in the
7 sense of councillor Sir Albert Bore] about that issue
8 and other legitimate council business that was happening
9 that day and later in the month, which is the Annual
10 General Meeting, after I communicated my decision to the
11 persons present at the Aston ward pen. I am clear about
12 my role and as monitoring officer I take seriously my
13 statutory duties and act objectively and fairly at all
14 times.
15 Q. Can I stop you there and ask you, please, if you could
16 look at paragraph 4 of Mr Aziz's witness statement to
17 this court, which we find starting at page 312?
18 THE COMMISSIONER: I am wondering whether it might be
19 sensible to do that after paragraph 8.
20 MR COPPEL: Certainly.
21 THE COMMISSIONER: If you read paragraph 8 and we will go
22 back to Mr Coppel's question about Mr Aziz's statement.
23 A. "I believe the petitioners are mistakenly mixing this
24 incident with a later incident which occurred that day
25 about 1 o'clock with Councillor Bore. At that time,
71
1 some Muslims from various political persuasions asked me
2 about facilities for Friday prayers. I said I would see
3 what was available. I learned from either John Owen or
4 some other elections office staff", I cannot be certain
5 about that, Mr Coppel, "that the Labour Party had
6 organised a prayer facility in the Labour group room.
7 It was at this time that councillors Bore and Afzal
8 mentioned to me that they had arranged specific
9 facilities for Friday prayers, and I became aware that
10 the Liberal Democrats group had not."
11 As there was no legal requirement, sir, as you know,
12 for the City Council to make any rooms available for
13 such purposes, I advised the relevant persons to enquire
14 of their own political group offices.
15 "I certainly did not consult with either of these
16 about the Nickleby bag, although Councillor Afzal, in
17 the same way as former councillor Ayoub Khan, had made
18 it clear to me in front of each other", this is that
19 earlier incident, sir, "where they stood on the contents
20 of the bag.
21 "I advised Councillor John Hemming, the leader of
22 the Liberal Democrat group, of this mix-up by the
23 petitioners when I first read the petition.
24 MR COPPEL: Going back to Mr Aziz, paragraph 4, page 313 of
25 the bundle. I will read it out to you, this is what he
72
1 states and has confirmed on the Koran:
2 "I later spoke to Ayoub Khan and Naim Ahmed and
3 I think John Hemming was also informed about the bag.
4 Ayoub Khan argued at length with the chief election
5 officer, Mr Owen, and Mr Mirza Ahmad, the legal officer.
6 I then saw Mr Mirza Ahmad, Mr Owen, Albert Bore and
7 Muhammad Afzal in deep conversation, and soon after the
8 go-ahead for votes in the bag to be counted was given.
9 When the presiding officer and the counting staff took
10 out the ballot papers the extent of the fraud became
11 clear."
12 Would you comment please on what I have just read
13 out?
14 A. I do not recall John Owen being present in terms of any
15 decisions around that table. In terms of Councillor
16 Bore, he may have been on the other side of the barrier
17 along with Councillor Afzal. That is all I can say.
18 Q. Were you in any way influenced in your decision relating
19 to the contents of the Nickleby bag by anything said to
20 you by Sir Albert Bore?
21 A. Absolutely not. This may be of course after I made the
22 decision anyway, because as I said earlier, I moved
23 behind to where that barrier was.
24 Q. I wonder, please, if you could go to Mr Ahmad's witness
25 statement. It starts at page 309. It is paragraphs 9
73
1 to 10. I shall read them out. Mr Ahmad states and
2 confirmed on oath:
3 "Ayoub Khan then came to me and told me that the
4 Chief Legal Officer stated that because the bag arrived
5 this morning on the count day it was not to be counted.
6 In the meantime I could see that the Chief Legal Officer
7 was surrounded by Sir Albert Bore, the leader of the
8 Birmingham City Council, and the Labour group, and
9 Muhammad Afzal, a Labour candidate for the Aston ward.
10 Moments later the Chief Legal Officer returned,
11 stated that he had changed his mind and was going to
12 allow these votes to be counted."
13 Your comments?
14 A. Not true.
15 Q. Turn now, please, to Mr Ayoub Khan's witness statement.
16 Page 378A. Paragraph 6. I shall read 6 to 10 in fact:
17 "At the count at the NIA I saw a Nickleby bag full
18 of postal vote envelopes and a bundle of European ballot
19 papers placed on top. I took issue to those votes since
20 I was aware that postal votes had been seized by police
21 at the warehouse a few days prior. I asked the
22 presiding officer as to why these votes were in
23 a carrier bag and not in a ballot box. I also asked
24 when and where the bag had come from. The presiding
25 officer could not provide me with any answers and said
74
1 she would make some enquiries before opening these
2 votes.
3 "Some moments later a tall gentleman appeared and
4 I explained my concerns to him. He said he would call
5 someone senior, and then Chief Legal Officer, Mr Mirza
6 Ahmad, arrived. The presiding officer told Mr Ahmad
7 that the votes had arrived on that morning. Mr Ahmad
8 said that they would not be counted if this was the case
9 since the polls had closed the night before. Councillor
10 Afzal and his supporters were saying that the votes were
11 valid and that they should be counted. Mr Ahmad went to
12 seek clarification. As Mr Ahmad was walking away,
13 Councillor Afzal chased him and began to speak to him."
14 Pausing there, have you ever been chased?
15 A. Never, in terms of councillors. I would remember.
16 Q. "I also saw Sir Albert Bore who was at the count at the
17 next table participate in the conversation. I could see
18 that they were talking about the bag because Councillor
19 Afzal kept pointing to the bag whilst speaking. This
20 seemed very strange as I would have expected mutual
21 concern across all parties into the origin of the bag,
22 especially when no-one knew which way the voters had
23 voted. Soon after, Mr Ahmad returned and stated that
24 the votes should be counted as they were received at the
25 elections office the night before."
75
1 Pausing there, comment?
2 A. As I said earlier, that statement of events never took
3 place. It is a total fabrication by those who wish to
4 peddle lies.
5 Q. I resume:
6 "I argued with Mr Ahmad and the presiding officer to
7 have these votes counted separately and that the bag was
8 to be kept safe but I was totally ignored. In fact
9 Mr Ahmad at one point threatened me and said that I was
10 under the regulations governing the conduct of
11 councillors and that I would be escorted out of the
12 building by police."
13 Comment?
14 A. I had to remind former councillor Ayoub Khan that as
15 a councillor he was still subject to the code of conduct
16 of members which the City Council introduced back
17 in January 2002. Part of that code of conduct requires
18 members to respect other people, it also makes sure that
19 members do not misuse or use their influence to change
20 officer decisions, and based on previous discussions
21 that Alison Harding had made clear to me in terms of
22 intimidating behaviour to counters and the like, and the
23 vociferous objections being made by this individual,
24 I felt that one opportunity to neutralise the position
25 would be to remind him of his legal obligations under
76
1 the code of conduct and that is what I did.
2 I do not, however, recall saying to him, and would
3 not have said this to him, that he would be escorted out
4 of the building. That was not the remit of the code.
5 My remit of the code would have been: I will report you
6 to the standards board for (inaudible) if you persist.
7 THE COMMISSIONER: Would you have any authority to have
8 someone in effect frogmarched out of building?
9 A. If they were clearly fighting or causing a breach of the
10 peace a plaintiff would be called.
11 THE COMMISSIONER: But it would not be your authority.
12 A. No, it would be a police intervention.
13 THE COMMISSIONER: Would that be essentially a decision that
14 you would take as Chief Legal Officer or a decision that
15 would be taken by one of the purely election people?
16 A. No, I think I had delegated authority for Lin Homer, as
17 I explained earlier, so I would have had that authority
18 to deal with the unacceptable behaviour.
19 THE COMMISSIONER: So if there had been a real problem you
20 could have called in the police and the police would
21 have dealt with it in whatever way they thought
22 appropriate.
23 A. Yes.
24 MR COPPEL: I will just deal finally with the last few lines
25 of Mr Khan's witness statement:
77
1 "It all seemed one-sided, and I could not understand
2 the biased manner in which I was being treated, given
3 that my request was more than reasonable. Mr Ahmad also
4 said that if I was not happy with his decision I could
5 challenge at the High Court. I was not at all surprised
6 later when the vast majority of votes that were being
7 taken out had votes for Labour."
8 Comment finally?
9 A. As a matter of law, as you know, people can challenge
10 the elections.
11 THE COMMISSIONER: Did you actually tell him that?
12 A. I may have said something along those lines if he
13 persisted.
14 MR COPPEL: If we could return, please, to --
15 THE COMMISSIONER: I do not suppose you thought he ever
16 would?
17 A. It is a matter for him sir, not a matter for me to
18 comment on.
19 THE COMMISSIONER: When were you first asked to make
20 a statement recalling these events?
21 A. I think it was earlier this year. 3rd February was when
22 I signed it so it was probably the back end of January.
23 THE COMMISSIONER: Would it be fair to say that when you did
24 this you were very largely having to rely on your own
25 memory. No written record of that day.
78
1 A. Not of that day, no.
2 MR COPPEL: Just a few paragraphs to read. Just on the last
3 exchange, Mr Ahmad, you have indicated you did not keep
4 notes. Is your recollection of the events you have
5 recorded to this court or in this witness statement in
6 any way impaired by the passage the time, unclear?
7 A. No, sir.
8 Q. Resume reading, please, paragraph 9.
9 A. "In any event, I spoke to a number of councillors during
10 the day, all of whom I know through my position as the
11 Chief Legal Officer, and Monitoring Officer for
12 Birmingham City Council. In addition, I had a further
13 reason to speak to not only Councillor Bore, but also
14 Councillors Mike Whitby and John Hemming about a council
15 business management committee meeting that was scheduled
16 to take place that afternoon."
17 THE COMMISSIONER: Is Mr Whitby --
18 A. He is the current leader of the council and --
19 THE COMMISSIONER: Was he the Conservative leader?
20 A. Indeed.
21 THE COMMISSIONER: That is what I deduced.
22 A. "It has been custom and practice for the City Council to
23 organise such a meeting on the same day of the count so
24 that members of the committee had the development data
25 to assist them with their preparations for the Annual
79
1 General Meeting."
2 I say that obviously in terms of proportionality, we
3 deal with different committees and people that the
4 parties would have to nominate to get on to those
5 committees at the Annual General Meeting.
6 "The data would include, for example,
7 proportionality calculations of the Local Government and
8 Housing Act 1989, which could only be completed once the
9 results of the election were known. It became clear,
10 however, during the day that this was primarily because
11 Perry Barr was going to be recounted into Sunday so
12 there was no way that we were actually going to be
13 having any conclusive results of data until Sunday
14 evening."
15 THE COMMISSIONER: I have been told by Mr Owen that the
16 result of the election was that the Labour Party failed
17 by eight votes to poll an absolute majority and the
18 results with a coalition between the Conservatives and
19 the Liberal Democrats in the event.
20 A. That is a matter of record, yes.
21 THE COMMISSIONER: I have the figures somewhere. What was
22 the result in Perry Barr? Would that have affected the
23 ultimate outcome?
24 A. I think the two parties would have combined regardless
25 of the result of Perry Barr.
80
1 THE COMMISSIONER: Perry Barr was hung over until the
2 Sunday?
3 A. Yes.
4 Continuing:
5 "It became clear, however, during the day that it
6 was unlikely that the count would be finished in time
7 for the meeting even after one adjournment had been
8 agreed by all the relevant members so the meeting was
9 rescheduled for the following week."
10 Can I say there that part of that rescheduling meant
11 that I needed to speak to the relevant councillors of
12 that committee, and of course they were all in the NIA
13 and that included therefore speaking to the group
14 leaders and obviously the other members who were present
15 from the council business management committee. But
16 in the end, as I have said, it was rescheduled to
17 Monday. Continuing:
18 "I also remember speaking to a number of other
19 councillors, including Councillor John Alden, who was
20 the Lord Mayor for 2003/2004, Paul Tilsley, as well as
21 former councillor Paul Whitehouse, who was the Lord
22 Mayor elect for 2004/2005 until he lost his seat.
23 THE COMMISSIONER: Is the Lord Mayor always a councillor?
24 A. You can only be a Lord Mayor if you are a councillor.
25 THE COMMISSIONER: That is what I said. So the Lord Mayor
81
1 must always be a councillor.
2 A. Yes:
3 "In fact I would have exchanged greetings with most
4 if not all the councillors who I saw during the day. To
5 single out my conversations with Councillor Bore is
6 therefore highly improper and misleading in my opinion".
7 In respect of paragraph 7.14 --
8 THE COMMISSIONER: Does that relate to a live allegation,
9 Mr Coppel?
10 MR COPPEL: It was a certainly a matter which has been
11 raised in evidence.
12 THE COMMISSIONER: We had better have it then. Please read
13 it.
14 A. "In respect of paragraph 7.14 of the petition I am
15 confident that all interested parties were given the
16 same information at the same time. However, due to the
17 time it took to finish the count, perhaps there was the
18 mistaken belief against certain parties that the
19 information was being withheld in respect of the
20 petitioners' response 45 to the Returning Officer's
21 request for further information I do not recall that at
22 the count any of the candidates for the Liberal Democrat
23 complaining to me that information from the count had
24 not been made available to them.
25 "The statement of truth, I believe the contents of
82
1 this witness statement are true, 3rd February 2005."
2 MR COPPEL: Thank you very much, please wait there.
3 THE COMMISSIONER: Mr Hayes.
4 MR HAYES: No questions.
5 Cross-examination by MR DE MELLO
6 MR DE MELLO: Just one question that my learned friend has
7 not clarified.
8 You heard that Ayoub Khan said that Councillor Afzal
9 had chased you. You do not look like a running man,
10 neither does he, but clearly he did not chase you. That
11 is right, is it not?
12 A. I would have remembered if he had.
13 MR DE MELLO: Thank you.
14 MR BROOK: No questions, sir.
15 THE COMMISSIONER: Mr Sukul?
16 MR SUKUL: Sir, before I ask any questions I wonder if
17 I might just comply with your last direction and mention
18 to the court, and indeed to my friend who sits on my
19 right, that the petitioners will not be serving
20 a section 160 notice.
21 THE COMMISSIONER: Thank you very much. That is all you
22 need say.
23 MR SUKUL: Thank you. I am sorry, I wonder if I might ask
24 you this. We have five minutes until the luncheon.
25 Perhaps we can reassemble at five minutes to two?
83
1 THE COMMISSIONER: You mean you are not going to finish by
2 lunchtime. I am sure Mr Ahmad would rather be back at
3 his desk. How much do you have to ask him?
4 MR SUKUL: A fair bit, I am afraid. There are some matters
5 that have developed only in the last few minutes.
6 THE COMMISSIONER: If we are not practically going to finish
7 him by lunch, reluctantly I will have to say after the
8 short adjournment, but you must bear in mind that
9 Mr Ahmad, like Mrs Homer, has a day job and appearing
10 here is not it.
11 I need not obviously remind you of the rules
12 relating to witnesses being cross-examined. Shall we
13 say five to two then?
14 (12.55 pm)
15 (The Short Adjournment)
16 (2.00 pm)
17 THE COMMISSIONER: Mr Hayes?
18 MR HAYES: Just a matter of housekeeping, which might be of
19 assistance to you, sir. When I get to open the case,
20 which it appears is not going to be today, I would seek
21 leave to bring witnesses in relation to the schedule of
22 allegations 1, and that, sir, is against Mr Islam, that
23 he personated a number of people. I have served
24 statements today on my learned friends, and, sir, you
25 should have them. These are people who are saying they
84
1 were not personated at all.
2 Similarly, forged signatures in (ii), Mr Ali, and
3 onwards, witnesses these people saying, "No, no, they
4 are our signatures". I do not know what my learned
5 friends' view of that is, but in my respectful
6 submission it would be sensible to do that. If it is of
7 assistance to you, sir, then we will do it; if it is
8 not, I will not bother.
9 THE COMMISSIONER: What are you actually proposing, you are
10 proposing to call these witnesses or put their
11 statements?
12 MR HAYES: Either my learned friend accepts what they say is
13 true or he does not.
14 THE COMMISSIONER: At the moment nobody has leave to put in
15 any further evidence at all. So obviously stage 1 is
16 that you put these documents before your fellow parties
17 and see what their views are. If they are happy that
18 I should read them or they should be read out, fine.
19 If not, you will have to make your application.
20 MR HAYES: I thought I ought to give you plenty of notice.
21 THE COMMISSIONER: I will put them to one side for the
22 moment. I will not read them until anybody tells me to.
23 MR HAYES: The other question is -- and it may not assist
24 you, but if it does I will do my best -- mystery A.
25 This is not going to cheer you up, sir. I have 97
85
1 witnesses on the mystery A bundle who are quite prepared
2 to come and say, "It is our signature and we voted
3 Labour". Does that assist you?
4 THE COMMISSIONER: On the mystery A?
5 MR HAYES: Yes.
6 THE COMMISSIONER: It may, although whether I would need to
7 see 96 people in court is another matter. Obviously,
8 the time might come as to whether I would have to be
9 satisfied as to these people coming along at this very
10 late stage, but I simply put down a marker on that.
11 You must conduct your case in the way that is most
12 appropriate to you, but you are aware of the allegations
13 that are made against your two clients. If you are able
14 to show that either there were no forged votes in the
15 Labour interest (inaudible), then you would be obviously
16 well on the way to establishing your case. If, on the
17 other hand, you can show that some are, some are not,
18 you may. If you can show that plenty were forged but
19 your clients had absolutely no knowledge of it, that
20 might get them off the hook, though it might not get the
21 election off the hook.
22 MR COPPEL: Before we start, one small housekeeping matter.
23 I have a copy of the correspondence from Mr Roger
24 Godsiff, which I have marked for counsel's eyes only,
25 for self-evident reasons. I shall hand it to my learned
86
1 friends at a convenient time.
2 THE COMMISSIONER: As everybody is now represented by
3 counsel in this case, counsel's eyes only, I think.
4 Then you can decide what to do, if anything, about it.
5 Mr Sukul?
6 MR SUKUL: Sir.
7 Cross-examination by MR SUKUL
8 Mr Ahmed, your credentials are very impressive. You
9 would have taken some time to prepare this witness
10 statement, is that right?
11 A. As I said to sir earlier in my examination-in-chief,
12 I presented my draft sometime in January.
13 Q. You prepared the draft on your own or were you assisted?
14 A. Initially I did my own drafting and then obviously that
15 was shared with my instructing solicitors.
16 Q. Right. This question has been asked before. You have
17 had a great deal of time to reflect upon what you have
18 written. Do you consider that upon reflection you would
19 have omitted from this statement any matter, any
20 information, you now consider to be relevant or
21 important?
22 A. I have had no further time than anyone else in this
23 matter. That is the first point I should make, to pick
24 you up on that. The second point, the statement was
25 written without the benefit of other witnesses'
87
1 statements and the evidence that I heard.
2 Q. Please answer my question. Do you consider now that
3 you have left out from the statement any information
4 that you now consider to be quite relevant or indeed
5 important?
6 A. Recollection is of course triggered by a lot of events.
7 Q. I take it --
8 THE COMMISSIONER: Are you aware of anything that you have
9 omitted?
10 A. Not intentionally, sir, no.
11 MR SUKUL: Let me take you straight to paragraph 5 of your
12 statement. Are you with me, Mr Ahmed?
13 A. I have paragraph 5.
14 Q. Firstly, in order to be fair to you and to put that
15 paragraph in its temporal perspective, tell me if I am
16 wrong. What you say took place there is referrable to
17 10.30 in the morning. If you look at paragraph 4 you
18 can confirm or deny that.
19 A. It was around 10.30 that morning.
20 Q. Right.
21 THE COMMISSIONER: Mr Sukul, I simply put this for your
22 consideration. I take the view certainly provisionally
23 as a result of the questions that I asked of this
24 witness this morning that the actual difference or
25 distance between your case and this gentleman's evidence
88
1 is possibly rather less than you perceive.
2 MR SUKUL: I will be grateful for your guidance, sir.
3 THE COMMISSIONER: Clearly there are a number of matters
4 which remain obviously in issue between you, namely
5 whether and to what extent this gentleman spoke to other
6 people before making his decision.
7 MR SUKUL: Yes.
8 THE COMMISSIONER: But the fundamentals of the account as
9 given by Mr Ahmed do not, in their essentials, up to
10 that point, differ very markedly in the case that
11 you are putting forward. I simply give that as an
12 indication so that you would not be encouraged to
13 cross-examine on matters where, if I put it this way,
14 your case might go backwards rather than forwards.
15 MR SUKUL: Mr Ahmed, it is right, is it not, that you would
16 not have gone to meet with John Owen to call him on the
17 radio, seek clarification in respect of the contents of
18 the Nickleby bag, if the contents of the Nickleby bag
19 had already been mixed with the contents of any other
20 container?
21 A. I do not accept that proposition.
22 Q. I must read to you then what I have before me:
23 "I had various people asking me about the origins
24 of the bag and alleging that these were votes
25 confiscated by the police, who were taking criminal
89
1 proceedings. I did not know who all of these objectors
2 were - other than former Councillor Ayoub Khan -
3 although all of the objectors were Liberal Democrat
4 supporters. I agreed to seek clarification from John
5 Owen, the elections officer, as he would know the
6 history of the bag and until then I would have
7 instructed one of the elections staff at Aston ward pen,
8 possibly Alison Harding, that the votes should not be
9 included in the count for the time being. At no time
10 did I agree with former councillor Ayoub Khan or anyone
11 else present for that matter that the votes would never
12 be counted. I could not take that decision without
13 first having sought clarification on the issue from the
14 elections officer, which I duly did. It would,
15 of course, have been negligent for any official to agree
16 to anything without firstly checking all the relevant
17 facts."
18 I put it to you from what you have said, bearing in
19 mind your command of the English language, that you
20 would not have gone through that rigmarole if the
21 contents of the bag had already been mixed on that
22 counting table with the contents of the grey crate?
23 A. You have to put it to me, I understand your position,
24 but it is actually factually incorrect. I was there,
25 you were not.
90
1 Q. Yes. Well, do you deny or confirm to this court here,
2 and under oath, that at the time when you took this
3 course of action you knew or did not know that the
4 contents of the Nickleby bag were still in the Nickleby
5 bag?
6 A. I have already given in examination-in-chief that the
7 bag was empty, as far as I was concerned the votes were
8 on the table.
9 Q. So Mr Ahmed --
10 THE COMMISSIONER: Mr Ahmed, I think the point that is being
11 made is this: you asked everybody to call a halt while
12 you went and got further information?
13 A. In terms of what was on the table, indeed sir.
14 THE COMMISSIONER: And as far as you know, they did halt at
15 that stage?
16 A. My understanding is they did.
17 THE COMMISSIONER: I think the inference that one would draw
18 from that is that you considered that if a mistake had
19 been made it was at least possible to be repaired?
20 A. At that stage, it could have been repaired if the ballot
21 papers, the envelopes, were clearly marked as coming
22 from that bag. As I said, they were on the table.
23 THE COMMISSIONER: By calling a halt the impression I get is
24 that you say, "Stop everything".
25 A. In relation to those issues.
91
1 THE COMMISSIONER: So you felt when you went away and made
2 your enquiries that it was serving some useful purpose.
3 A. Absolutely, to clarify in my mind where the bag had come
4 from.
5 MR SUKUL: Let me take you back one hour. You enter the pen
6 at some point in time around 9 o'clock, is that right?
7 A. Approximately 8.30.
8 Q. At about 9 o'clock the candidates and their agents were
9 able to enter the pen?
10 A. They were there at 9 o'clock or thereabouts.
11 Q. You saw Liberal Democrat candidates and agents in the
12 pen at about 9 o'clock, 9.10, 9.15?
13 A. I cannot be certain I saw them at 9 o'clock in the pen
14 but obviously in the hall of the NIA, clearly people
15 were around at 9 o'clock. That was the official time
16 for the count.
17 Q. I did not ask about the hall, I am asking about the pen.
18 Is it fair to say that by 9.30 Liberal Democrat
19 candidates and agents were in the pen, near to table E?
20 A. I think it is reasonable to assume that any person --
21 if the count is going to start at 9 o'clock, the
22 counters and their agents would be there by 9 o'clock.
23 Q. You say you did not see this Nickleby bag standing or
24 sitting on that table, is that your evidence?
25 A. My evidence is that I saw the Nickleby bag underneath
92
1 the table.
2 Q. Underneath the table.
3 A. Underneath the table with the crates.
4 Q. When did you see it underneath the table?
5 A. When I came to look at around 10.30 with Alison Harding.
6 Q. That is the first time you saw it?
7 A. Absolutely.
8 THE COMMISSIONER: Do you remember seeing the grey post
9 office crate which is hiding under Mr Coppel's desk?
10 A. There were certainly some crates but I cannot be certain
11 in terms of pen.
12 THE COMMISSIONER: Was there any box or bag on the table,
13 actually sitting on top of the table?
14 A. Certainly at 10.30 I do not recall any bag or crate.
15 THE COMMISSIONER: So there was just paper on the table?
16 A. Envelopes, yes.
17 MR SUKUL: That is at 10.30, I am asking you at 9 o'clock
18 what did you see.
19 A. I had no recollection in terms of what was there at
20 9 o'clock.
21 Q. All right. But your recollection is this, that some
22 time around 9 o'clock, 9.15, the people to whom you
23 referred as protesters, they were there? There were
24 candidates and agents there?
25 A. Vociferous objectors are the words I used rather than
93
1 protesters.
2 Q. I am not good with semantics. Let us stick with the
3 point, please.
4 A. But you are.
5 Q. Do you confirm that at about 9.15 or 9.30 the objectors
6 were there, yes or no?
7 THE COMMISSIONER: Were they objecting at 9.30?
8 A. I do not know if the individual objectors were there at
9 9.30. I have no recollection that they were there at
10 9.30.
11 I have clearly stated for the record too, sir, that
12 there is a reasonable supposition that people who were
13 required to attend at 9 o'clock, their candidates and
14 agents would be there at 9 o'clock.
15 MR SUKUL: When first did they object to you?
16 A. At 10.30 when I came into pen B.
17 Q. And you say that by then, is it your evidence, that by
18 then the contents of the bag had already been mixed with
19 the contents of the crate?
20 A. Well, I do not know what they were mixed with in terms
21 of the crate but I do not recall the bag being full of
22 votes that were already on the table, whether they were
23 mixed with the contents of the crate. I have no
24 recollection what they were mixed with.
25 Q. Mr Ahmed, what do you say was the status of the contents
94
1 of the Nickleby bag at 10.30? Were they here, were they
2 in the Bullring, were they on the table, what was
3 happening with them?
4 A. I have already gone (?) in evidence in terms of saying
5 they were on the actual table, the contents.
6 THE COMMISSIONER: Was anything said to you about these
7 white European ballot forms at the time do you recall?
8 A. Not that I can recall now, sir. Clearly I know that
9 through the evidence there have been references to the
10 white ballot papers.
11 THE COMMISSIONER: Looking back on it, is it something that
12 would have rung a bell if somebody said, "And what is
13 more, this bag contains or contained these loose ballot
14 papers"?
15 A. More reason for me to enquire, sir.
16 THE COMMISSIONER: But you cannot remember enquiring about
17 those?
18 A. Those were not in issue.
19 MR SUKUL: Does that mean you were never told about the
20 white European ballots?
21 A. I was dealing with the Nickleby bag.
22 Q. Please. Were you or were you not told that there were
23 white loose ballot papers in the Nickleby bag?
24 A. I was not told.
25 Q. Let me take you back to 10.30. What do you say was the
95
1 status of the Nickleby bag at 10.30 in pen E? Were
2 they --
3 A. The bag itself was, of course, empty so it had no status
4 at all.
5 Q. The contents, Mr Ahmed?
6 A. Were on the table.
7 Q. Were they mixed with the other votes from other
8 containers?
9 A. There were votes, the envelopes were on the table.
10 Whether they were mixed or not I have no recollection.
11 I would not know whether they were mixed or not. They
12 were on the table. I have no personal knowledge of
13 that. That is all I can assist you with.
14 Q. You can assist me with this: at 10.30, were you in
15 a position to take a decision to separate the Nickleby
16 bag contents from any other documents which might have
17 been on that table?
18 A. I was not in a position to do so, no.
19 Q. Were you or were you not?
20 THE COMMISSIONER: He just said no.
21 MR SUKUL: I did not hear, I am sorry. You were not in a
22 position?
23 A. I was not in that position.
24 Q. So if you were not in a position to distinguish the
25 Nickleby bag from a crate or anything else, why did you
96
1 not simply say to those vociferous protesters, "It is
2 too late now, there is nothing I can do. The contents
3 of the bag are already mixed with something else. There
4 is no point in complaining to me now". But of course
5 you did not say that, did you?
6 A. I was concerned --
7 Q. Did you say that, Mr Ahmed. Did you say that?
8 A. Sir, I was very concerned, as I said in my
9 examination-in-chief, as to the whereabouts of the bag.
10 It is only right and proper that as Chief Legal Officer
11 I would look at the issues. There were vociferous
12 protesters, objectors, in relation to that bag. I had
13 to make a decision on the moment as to whether or not
14 the authenticity of that bag was real. What follows
15 afterwards is a different matter as to whether or not
16 you can stop something.
17 Q. Let me waste this court's time and ask you this question
18 again. Did you tell the protesters --
19 THE COMMISSIONER: Quite patently he did not.
20 MR SUKUL: Is that your evidence?
21 THE COMMISSIONER: It is already his evidence.
22 MR SUKUL: The reason you did not tell them that was because
23 of course that was not appropriate? The reason you did
24 not tell them is because of course the contents of the
25 bag were not mixed with any other documents.
97
1 The contents of the bag were preserved and that is why
2 you went to look for Mr Owen. That is why you engaged
3 (?) a radio, and that is why you went to look for
4 Mr Moore. That is what happened, is it not?
5 A. I understand you have to put your case to me, Mr Sukul,
6 and the answer is no, that is not what happened. Beyond
7 that you have to be, as an advocate, very careful about
8 what you present as an advocate to me.
9 Q. Do not go down that road. That is for this gentleman,
10 not for you.
11 A. It may have a bearing on this matter.
12 Q. I put it to you, Mr Ahmed, that it is an absolute true
13 fact that you knew full well that the Nickleby bag
14 contents were not mixed and that is the reason why you
15 went through this rigmarole of trying to find people who
16 would have helped you to make a decision.
17 Sir, those are all the questions.
18 THE COMMISSIONER: Mr Coppel?
19 MR COPPEL: No, thank you.
20 THE COMMISSIONER: Thank you very