Disclosure - Conspiracy to defraud electoral registration officer

R v Khan and others: Court of Appeal, Criminal Division (Lord Justice Pitchford, Mr Justice Wilkie, Mr Justice Holroyde): 7 October 2011

The defendants were tried on a single indictment before a Crown Court and a jury for an offence of conspiracy with others to defraud the electoral registration officer of Bradford City Council by dishonestly causing and permitting to be submitted to the officer falsely completed applications to vote by post.

The prosecution case was that the objective of the conspirators was to secure the election of their preferred candidate, Haroon Rashid, as MP for the Bradford West constituency in the general election held in May 2005. Haroon Rashid was the Conservative candidate for the constituency, a marginal seat, and the defendants were all members or supporters of the local party. Haroon Rashid was in fact defeated in the elections.

The prosecution alleged that the defendants had made applications for postal ballot papers in respect of individuals who did not live at the address given, or who had no knowledge of the application and had not given consent. The police recovered some 1,600 postal vote applications (PVAs) from the electoral offices in Bradford. They were all subjected to forensic examination for fingerprints and handwriting analysis.

They were also examined with electrostatic detection apparatus (ESDA) by which means it was demonstrated that in some instances an application had been completed and/or signed as one of a batch, the imprint of one being indented on the next.

The prosecution also relied on the expert evidence of handwriting experts. At the first trial, the defendant, JK, sought to remove from his interview record any reference to his allegations against another defendant, A, in respect of the 2004 council elections since it was thought there was a risk that it would re-bound against his interests. The jury in that trial, and in a subsequent, trial were discharged.

At the third trial, the prosecution agreed to the editing of JK's interview and he made no specific allegation against A. The jury was informed that the prosecution had examined 1,600 PVAs. Those which had been extracted into the schedule were considered relevant to the current trial. The 8,400 PVAs not examined by the police were not listed as unused material in the prosecution disclosure schedule and they should have been. It was first submitted on behalf of the applicants that the jury might speculate as to the existence among the 8,400 PVAs which were not examined of forms which would, if examined, demonstrate similar signs of fraud attributable to them.

The defendants submitted that the prosecution had failed in their duty of disclosure and sought the discharge of the jury. The judge refused the application to discharge and the trial continued. In his summing up, the judge wrongly observed that no explanation had been provided for the ESDA evidence and he failed to remind the jury of the defence case that if, as the prosecution asserted, RK was fraudulently signing PVAs in batches, it was a surprise that the ESDA evidence should only have revealed indentations from the forms relating to other defendants. The judge gave the jury a direction that they could consider the defendant, MR's failure to mention facts in his interviews which he later relied on at trial, pursuant to section 34, Criminal Justice and Public Order Act 1994.

However, the prosecution had not identified any fact upon which MR had relied at trial which he had not earlier mentioned in his interviews. The learned judge did not identify any such fact. The defendants were convicted. They appealed against conviction.

They submitted, inter alia, the prosecution had failed in its duty to disclose evidence to the defence. It was contended that the electoral registration officer and his staff were delegated investigators under arrangements such as those envisaged by paragraph 3.4 of the Criminal Procedure and Investigations Act 1996 (Code of Practice) Order 2005, SI 2005/985, which provided that, as from 4 April 2005, 'the officer in charge of an investigation may delegate tasks to another investigator, [or] to civilians employed by the police force [or to other persons participating in the investigation under arrangements for joint investigations]'.

It was argued that the PVAs comprised material retained and examined by the electoral authorities in the course of a criminal investigation. For that reason the material should have been treated by the trial judge as 'prosecution material' in respect of which the prosecution had failed to give disclosure. The disclosure regime which applied at the relevant time was that governed by the Criminal Procedure and Investigations Act 1996 ('CPIA') as amended by the Regulation of Investigatory Powers Act 2000.

Sections 3 (1) and 7 (1) CPIA required the prosecution to disclose to the defence any prosecution material which might undermine the case for the prosecution against the accused or might reasonably be expected to assist the accused's defence. It was further submitted that the judge had given an inadequate summary of the evidence relevant to the defence case. The result was that the jury might have been misled as to the strength of the prosecution case against them, which had not been cured by his directions to the jury. The appeals would be allowed.

(1) The criminal investigation had commenced before the changes to the disclosure regime introduced on 4 April 2005 by the Criminal Justice Act 2003. It followed that the joint investigation provisions of paragraph 3.4 did not apply to the present investigation. The enquiry carried out by the police was neither a joint, nor a delegated, investigation. It was in the nature of an examination by a complainant of suspicious documents subsequently handed to the police.

It would not, in such circumstances, be suggested that the bank was a joint or delegated investigator although it provided the material which was the subject of investigation. In those circumstances, the prosecution had not been under any obligation to list the remaining 8,400 PVAs in its unused material schedule. Accordingly, no obligation of disclosure arose (see [25] of the judgment). R v Alibhai [2004] All ER (D) 573 (Mar) considered.

(2) In the instant case that the absence of a careful and accurate direction upon the effect of the ESDA evidence in RK's case had the effect of undermining the fairness of his trial and therefore the safety of the verdict in his case. At the close of the prosecution case there was no evidence fit to be left to the jury from which the jury could conclude that MR was the author of Group C. The prosecution conceded that its against JK depended upon proof that MR was the author of Group C.

Accordingly, once the case against MR was undermined, so also was the case against JK. The jury had received an unbalanced direction as to the significance of evidence concerning MS. The jury should have been reminded of the material parts of his evidence. In all the circumstances, the court could not be sure that the verdict in MS's case was safe (see [42], 54], [81]-[82] of the judgment). The convictions would be quashed (see [42], [54], [82] of the judgment).

Abbas Lakha QC and Aneurin Brewer (instructed by Khan Solicitors) for JK. Nirmal Shant QC (instructed by Shaikh Ayub Solicitors) RK. Richard Barraclough QC (instructed by Shahid & Yasmin Solicitors) MS. Mukhtar Hussain QC and A Quzi (instructed by Stephen Lickrish Solicitors) for MF. Gordon Cole QC and Mark Ainsworth (instructed by CPS - York Special Crime Division) for the Crown.