By Peter Golds
Are the Crown Prosecution Service and the Police watering down election law?
This question seems extraordinary, yet the answer appears to be that this is what is actually happening, at least in England.
Earlier this year the Electoral Commission published An analysis of cases of electoral fraud in the UK in 2016.
The accompanying press release was, very controversially, for the Electoral Commission headed “Electoral fraud: high stakes highlighted in new report.” It went on to include the following:
Ailsa Irvine, Director of Electoral Administration and Guidance at the Electoral Commission, said:
“It is important that voters are confident that the police and prosecuting authorities take allegations of electoral fraud seriously.”
Sadly, there is an increasing perception that neither the police or the prosecuting authorities are taking these allegations seriously. This report provides examples as to how the police and the CPS in England respond to electoral fraud.
The situation in Scotland is far more robust. There, if there is personation and it is chargeable, then the person committing the offence is likely to end up in Court and on conviction be penalised and lose the right to stand in elections.
Here is a Scottish example, quoted verbatim, from the report:
“EU Referendum, East Ayrshire, personation in a polling station
A voter attended at a polling station in East Ayrshire during the EU Referendum claiming to be another voter (his friend) and was accordingly issued with a ballot paper in that name which he then used to cast a vote.
The polling staff had no reason to be suspicious as the voter was not otherwise known to them and they had no reason to believe he was not who he said he was. Later in the day the same voter attended again and sought to vote again, this time in his own name. Due to certain physical characteristics of the voter (he was very tall and wore distinctive clothing) and the vigilance of the Presiding Officer he was suspected of having already voted earlier and formally challenged. In response he answered the prescribed questions and also produced his driving licence and so the Presiding Officer had no choice but to issue him with a ballot paper in his own name.
The Presiding Officer remained certain, however, that he had already voted and referred his concerns to the central election office who immediately submitted a formal report to the Police with all relevant details, which enabled them in turn to secure an early admission of guilt.
The individual subsequently pleaded guilty in Court and was given a Community Payback Order of 300 hours. The elector was disqualified from standing for election for a period of five years.”
That is what the public would expect of voting fraudsters. Sadly in England, as is known only too well from Tower Hamlets, the potential offender is likely to be “spoken to.”
To prove this very point here are some English examples taken from the very same report;
“EU Referendum, Cheshire West and Chester voting area – personation in a polling station
An elector voted at a polling station using his mother’s polling card in the morning and voted in his own right at the same polling station in the afternoon. Polling station staff alerted the police after they became suspicious. The police established that this was a mistake as he did not realise that he had committed an offence. The police spoke at length with the person who accepted a police caution.
EU referendum, Oxford voting area – personation in a polling station
The offender (who had moved away from the area) attended his former local polling station wishing to vote there. He was not allowed to vote there as he was no longer registered to vote. The offender had the same first name as the person currently registered at his old address. The offender left the polling station but returned to vote later claiming to be the person currently registered at his old address. He voted under the name of the current elector. The offender fully admitted the offence of personation in Police interview and, after CPS advice was sought, he was offered and accepted a police caution.
Reigate and Banstead Borough Council – personation in a polling station
The offender gave the name and address of a registered elector at a polling station and cast a vote as that elector. The actual elector arrived to vote later in the day and was given a tendered ballot paper. The offender was identified from a CCTV recording and interviewed by the police. He admitted the offence and accepted a police caution.
Preston City Council – false statement on a nomination form
The offender, who was an election agent for the Conservative party, forged signatures on 8 candidate nomination forms. The offender was subsequently interviewed by the police and admitted the offences, and accepted a police caution.”
In one of the cases a genuine elector lost their vote because of the fraudster.
Finally I record a case from the report which resulted in one of the very rare prosecutions for electoral fraud in England. This took place in Derby where election officials of the local authority initiated a prosecution and the circumstances were as follows:
“Derby City Council, Allestree ward
Fraudulent electoral registration and nomination form.
Richard Smalley, a Conservative Party candidate who was successfully elected to the Allestree ward of Derby City Council on 5 May 2016, was accused of submitting a fraudulent registration application and nomination form knowingly using a false address within the local authority area, where he did not live. It was alleged that he also voted using that address.
He pleaded guilty at Derby and South Derby Magistrates’ Court on 23 August 2016 and was sentenced to two months in prison. He was also disqualified from standing for election for a period of five years.”
In the aftermath of the June General Election, I was contacted by a number of people and asked about incidents of voters going on to both facebook and twitter boasting that they had voted twice or even more in the general election.
Already the police are being quoted as saying that this will be difficult to investigate. This is not so. Once the fraudster is identified then it is easily established as to which addresses they voted from by examining the marked register from the polling station or stations. In the event of a postal vote, an examination of the postal vote return and the application to vote by post will have both a signature and the date of birth of the applicant. If a person has boasted about voting more than once and this is established by the above easily obtainable documents, then the fraudster can and should be prosecuted.
Voter corruption is prosecuted in Scotland, and it should be in England as well. It is to the shame of the CPS and our police forces that, despite evidence, it is not prosecuted as frequently.
I have urged those who contacted me to register formal complaints and to seek an update as to the investigation. One very important matter to note is that whereas a DPP decision on prosecution may be reviewed, a police decision may not be reviewed on request. This is a reason to ensure that the police are carrying out their job. When making a complaint to the police, insist that a formal statement is taken. If, as a complainant, the fraudster can be identified, include the tweet / facebook entries as evidence. Before signing any statement ask the police to confirm that it will be admissible in a criminal court and be prepared to go to Court to back up what you know.
The Electoral Commission report also expresses, for the first time, serious concerns with the ongoing Tower Hamlets’ inaction. This is covered in paragraphs 1.13 to 1.16 of the report.
I can do no more than directly quote the initial paragraph:
“In March 2016 the MPS announced that that no charges would be brought in relation to allegations of electoral fraud following the May 2014 elections in Tower Hamlets. A statement by the MPS explained that, following assessment of information arising from the trial and the April 2015 judgment of the election court in relation to the petition challenging the result of the May 2014 Mayoral and local government elections in Tower Hamlets, and in consultation with the Crown Prosecution Service, “a decision has been made that there is insufficient evidence that criminal offences had been committed”.
The final sentence of this paragraph leads on to an extraordinary story. Six days after the publication of the March 2016 Press Release, which was coincidentally Budget Day, a now retired officer, wrote to solicitors acting for Lutfur Rahman on MPS notepaper in which he said:
“In accordance with section 181 [of the 1983 Act] the [MPS] Special Enquiry Team consulted with the DPP in relation to the review findings in order to determine whether any criminal offences have been committed.
“The DPP decision is that there is insufficient evidence that crime (sic) has been committed in this instance.”
As is known, this “Special Enquiry” Team had not sought to examine the 27 files of material that had been sent to the DPS by Commissioner Mawrey. Nor had they approached locals, myself included, who had publicly offered evidence, to secure witness statements that would have been admissible in a criminal court. Extraordinarily, they did not approach or interview the four petitioners.
So what information was offered and available to the MPS?
On 2 September 2015, DI John Sweeney (now retired and the author of the letter to Rahman’s solicitor quoted above) wrote to Francis Hoar, barrister to the Election Petitioners, asking for assistance in obtaining “further information and evidence” in relation to the Election Court case. Mr Hoar responded, stating he “would of course be delighted to help” and confirmed: “There were 27 files for the trial bundle but seven of these contain the witness statements and exhibits of the Petitioners’ witnesses and the documents that were referred to in the PwC report”.
After receiving no acknowledgement of receipt or response from DI Sweeney, Mr Hoar wrote a further three times; 29 September, 2 October and 23 October. Eventually another team member, DI Gail Granville responded to Mr Hoar on 23 October but made no reference to the available evidence offered for review.
On 15 October 2015, eight days before DI Granville contacted Mr Hoar, former Assistant Commissioner Helen King (also retired and now principal of St Anne’s College, Oxford) responded to former Communities Secretary, Greg Clark, who himself had written on 28 August to Commissioner Hogan-Howe requesting an update on the Met’s ongoing fraud investigations in the Borough. In her response, AC King stressed how the rules regarding the admissibility of evidence for a Judge at an Election Petition Hearing differ from the standards required for criminal cases to be prosecuted by the Police and CPS.
Former Assistant Commissioner King must have been aware that DI Granville and DI Sweeney and their team had not contacted or interviewed potential witnesses for admissible evidence or sought permission to examine the 27 files at the DPS.
On 26th April 2016, six months later, DI Granville then wrote to Lutfur Rahman’s solicitor in similar terms to DI Sweeney. She wrote in her letter:
“I can confirm that the letter from DS John Sweeney is correct with the DPP decision that there is insufficient evidence that a crime has been committed in respect of the electoral fraud and malpractice allegations arising out of the Election Court.”
Note that the words used again are ”the DPP decision.” Lutfur Rahman immediately undertook court action to have his disqualification from public office lifted on the grounds that he had not faced criminal charges. When his Court bundle was published at the end of 2016 both the Sweeney and Granville letters were included as evidence in support of his claim.
On publication of the documentation there was a flurry of interest. The MPS then became an “interested party.”
As an interested party, a witness statement by Commander Cundy, on behalf of the Commissioner of the Metropolis was entered and, I quote directly, Paragraph 13 of Commander Cundy’s statement;
“Lutfur Rahman was not a named suspect for any of the allegations investigated by the MPS.”
The Court was later to confirm that NO file was ever passed to the CPS , or by extension the DPP, for consideration of whether to bring a prosecution against the application – Lutfur Rahman.
This application concluded on June 21st 2017, when Lord Justice Lloyd-Jones sitting with Justice Supperstone handed down a decision dismissing the application.
I quote Paragraph 17 of the Judgement:
“The MPS and DPP have clarified that the description of the decision as the “DPP decision” was inaccurate. The decision that there was insufficient admissible evidence to prosecute the Applicant was made by the MPS.”
This statement contradicts both of the letters sent by former DI Sweeney and current DI Granville, to the solicitor acting for Lutfur Rahman. In each case they both wrote that the decision not to prosecute was one by the DPP.
What therefore actually happened within the “Special Enquiry” team?
Other events have transpired to bring this further into the public domain. On 9th February 2017 the Police and Crime Committee of the GLA undertook an oral hearing of the Tower Hamlets electoral situation. Oral and written evidence came from the Tower Hamlets Commissioners, Mayor Biggs, myself, Francis Hoar, Claire Bassett of the Electoral Commission, Nick Vamos Head of Special Crime at the CPS, Commander Cundy, DI Granville and a representative of MOPAC.
Committee members from the Conservative, Labour, Liberal Democrat, Green and UKIP parties were extremely critical of the police who did not have a good day.
Mr Vamos had contacted me before the meeting to clarify his much quoted comment that “he had not read the Mawrey Judgement.” In an email to me he wrote;
“You have referred several times in correspondence to my statement at the meeting on 26 July 2016 that I had not read all of Richard Mawrey QC’s judgment. Whilst this is factually correct, it would be misleading to use it to support the implication that no-one in the CPS had read the judgment, nor the judgment of Lloyd Jones LJ in the subsequent judicial review. In fact both judgments were considered very carefully at the time by the Specialist Prosecutor who advised the police throughout their investigation. That same Specialist Prosecutor then briefed me in detail in advance of the meeting on 26 July 2016.”
However, Mr Vamos has declined to reveal the identity of his adviser and after a number of FOI requests, the Information Commission are now formally considering my objection to his refusal to identify who provided him with the advice by which he reached what is best described as a “controversial” decision.
If the Information Commissioner can require Tony Blair to release Cabinet Minutes detailing who was involved in taking the country into the Iraq war, then UK taxpayers are fully entitled to know who advised the CPS in their decisions relating to the Rahman case.
The outcome of the February hearing is that on March 21st the Deputy Mayor for Policing under Section 54 of the Police Act 1996, as amended by the Police Reform and Social Responsibility Act 2011, has invited Her Majesty’s Inspectorate of Constabulary to carry out an inspection into this case and make recommendations for future improvement.
This decision has also resulted in the MPS at last commencing some engagement with concerned local residents.
I return to my opening. The UK election law and voting procedures, date back to a very different time. International observers have regularly highlighted the frailties of a system based so much on trust.
Multiple voting, corrupt and false registration, anonymous leaflet production, postal vote “farming” and intimidation at polling stations are by any standard against the law here or indeed in any country which values democracy and fair representation. The police should be robust in defending electoral freedom and both the police and the CPS should ensure that fraudsters are dealt with and not merely “spoken to”.
There can be no public interest in avoiding dealing with voter fraud. This goes to the heart of our democratic traditions.
Several times in this article I have referred to DI Gail Granville. This officer of “the Special Enquiry Team” was one of the two officers who wrote to Rahman’s solicitors to say “that it was a DPP decision that there is insufficient evidence that a crime has been committed in respect of the electoral fraud and malpractice allegations arising out of the Election Court.”
In June of this year the MPS confirmed in the High Court that this statement, in writing, was not correct. DI Granville was involved in many of the decisions relating to the Tower Hamlets case. She was the officer who infamously, in terms of the post petition “investigation,” said at a briefing “addresses were visited and people spoken to”. Neither she nor her team contacted those who could have offered admissible evidence. No wonder her current superior writes in a Court Statement that “Lutfur Rahman was not a named suspect for any of the allegations investigated by the MPS”.
Let us remember that Lutfur Rahman was found guilty on no fewer than seven counts of corrupt and illegal practices by the Election Court.
Following the calling of the general election this year a meeting of political parties contesting the election in Tower Hamlets took place. This took place after the Deputy Mayor for Policing had called in HMIC. The MPS were led by none other than DI Gail Granville. Present in the room were people from different political parties, none of whom had been contacted by DI Granville for information or statements in the aftermath of 2014.
With even the Electoral Commission expressing concern at malpractice, and the political and media interest in the matter, the Police and CPS must enforce the law as it is enshrined in statute, and not be selective in enforcement. There can be no argument that “voter fraud” should be ignored as “public interest”.
The Police and CPS need to understand election law in both implementation and practice. This is a complex matter which strikes to the heart of how we are governed. It deserves more than asking somebody else to read a landmark legal Judgement and provide a brief or ignoring witnesses because the perceived solution to this particular crime is simply to “speak to people”.
The MPS has suffered massive reputational damage over this mess, which is entirely of their own making. The new Metropolitan Police Commissioner will hopefully ensure that properly briefed and interested officers undertake this admittedly difficult task.
I hope that the HMIC report will provide robust solutions to deal with this problem in the future.
The Rahman Party, in whatever guise they appear next year, will be delighted to see the police officers who failed Tower Hamlets and London in 2014 supervising the 2018 elections. The electorate deserve better than this.