In our February post “Spiritual influence” and elections, we considered the early case law and the current statutes relating to “spiritual injury” within section 115 Representation of the People Act 1983, as amended. We suggested that there were some difficulties in the extrapolation of early case law on this issue to present-day situations, but noted that some aspects of “clerical influence” identified by O’Brien J in Dalton v Fulham appeared to fall within the “non-party campaigning” provisions of the Transparency of Lobbying (etc) Act 2014.
A project to review electoral law was announced by the Law Commission on 19 July 2011 and on 9 December 2014, in conjunction with the Scottish Law Commission and the Northern Ireland Law Commission, it launched the joint consultation Electoral Law which reviews UK electoral law, including “spiritual influence”, and makes provisional proposals or asks questions about its reform. The consultation closed on 31 March 2015.
The Electoral Commission has published a Research Paper The Regulation of the Campaign and Electoral Offences which summarizes the position up to 2012. It states [emphasis added]:
“1.48 No recent case of undue influence by threat of spiritual injury has been reported. However, the recent election petition arising out of the Tower Hamlets Mayoral elections has alleged undue influence by statements seeking to influence Muslim voters to back one candidate over another. It is questionable whether a public prosecution would be brought on this basis, and clarification of what amounts to undue influence by spiritual injury in the modern era is sorely needed.”
The High Court has now handed down its judgment on the Tower Hamlets petition, Erlam & Ors v Rahman & Anor  EWHC (QB), and this addresses a number of aspects of election law in relation to a petition brought by four members of the public, electors of the Borough of Tower Hamlets, under s128(1) of the 1983 Act. This provided a clarification of the current provisions on this aspect of undue influence, which was one of the thirteen corrupt or illegal practices alleged in the petition. We reviewed the judgment in “Spiritual influence” and elections updated: Lutfur Rahman found guilty of illegal electoral practices, and the present post considers in more detail the issue of undue “spiritual influence” addressed by the court.
Undue “spiritual influence” – the law
The Election Commissioner, Richard Mawrey QC, began by outlining the law in relation to election courts and their procedures. Anticipating potential criticism such as that after the high profile case of Watkins v Woolas, “usually voiced in terms of ‘unelected judges unseating democratically elected politicians’, the obvious implication being that this process is itself undemocratic”, he stated:
- “the resolution of disputed elections by the courts is not a power the judges have arrogated to themselves. It is a task laid upon them by Parliament, a task, what is more, that the judiciary originally resisted tooth and nail, ”.
- “… the criticism itself begs the question. If a candidate is elected in breach of the rules for elections laid down in the legislation, then he cannot be said to have been ‘democratically elected’, ”
He then considered: the legislative provisions relating to election petitions [21 to 38]; the functions of the election court, “a unique tribunal”, [39 to 44]; the burden and standard of proof, “criminal standard of proof to the issue of whether there has been general corruption and the civil standard of proof to the issue of whether it may reasonably be supposed to have affected the result,” [45 to 50]; Agency and the degree to which a candidate is responsible for the actions of his agents, [51 to 60]. The Commissioner reviewed the thirteen aspects of law on corrupt and illegal practices relevant to the case, [61 to 169]; following an examination of the general issues relating to “undue influence”, [139 -147], he then addressed the aspects specific to “spiritual injury”, [148 to 162].
As we noted in an earlier post, “spiritual injury” currently falls within section 115 of the Representation of the People Act 1983:
(1) A person shall be guilty of a corrupt practice if he is guilty of undue influence.
(2) A person shall be guilty of undue influence—
(a) if he, directly or indirectly, by himself or by any other person on his behalf, makes use of or threatens to make use of any force, violence or restraint, or inflicts or threatens to inflict, by himself or by any other person, any temporal or spiritual injury, damage, harm or loss upon or against any person in order to induce or compel that person to vote or refrain from voting, or on account of that person having voted or refrained from voting; or
(b) if, by abduction, duress or any fraudulent device or contrivance, he impedes or prevents, or intends to impede or prevent, the free exercise of the franchise of an elector or proxy for an elector, or so compels, induces or prevails upon, or intends so to compel, induce or prevail upon, an elector or proxy for an elector either to vote or to refrain from voting.
The wording is virtually the same as section 2 of the Corrupt Practices Act 1883, itself taken from the Corrupt Practices Act 1854, but substitutes the words “temporal or spiritual injury,” in place of ”intimidation.” The 1883 Act was the first statutory provision relating to “spiritual injury”, hence the frequent reference to common law in earlier actions for allegedly corrupt practices; the range of terms used to describe such practices; and the sometimes differing approaches adopted by the courts.
The allegations in the instant case fall within two categories – undue spiritual influence, and misconduct of several types at polling stations, [139, 147]. With regard to the former, the Commissioner concluded that “[the relevant part of] s115 cannot properly … be considered a dead letter or obsolete“, on the basis that:
- “ … s 115 has a long legislative history. On each occasion that election law has been consolidated and updated … these provisions have been considered by Parliament at least twice since the Second World War and it was not thought appropriate to delete reference to spiritual injury, ;
- “the general rule of English law is that, if a statutory provision is considered and construed by the courts in reported cases, then when that provision comes to be re-enacted or consolidated … the provision in relation to undue spiritual influence has been carried forward from statute to statute for well over a century, Parliament must be assumed to have approved the construction placed on it by the courts during that period,”.
From the 19th century Irish cases, the Commissioner evinced two principles:
- “while clergy of all religions are fully entitled, as are all citizens, to hold and to express political views and to argue for or against candidates at elections, there is a line which should not be crossed between the free expression of political views and the use of the power and influence of religious office to convince the faithful that it is their religious duty to vote for or against a particular candidate.
It does not matter whether the religious duty is expressed as a positive duty – ‘your allegiance to the faith demands that you vote for X’ – or a negative duty –‘if you vote for Y you will be damned in this world and the next’. The mischief at which s 115 is directed is the misuse of religion for political purposes”, .
- “the question of spiritual influence cannot be divorced from a consideration of the target audience … As with undue influence in the civil law sphere, it is the character of the person sought to be influenced that is key to whether influence has been applied,” .
He noted  that very little argument was directed to the potential effect of Art 10 of the ECHR on this aspect of electoral law or as to its interaction with Art 9 (religious freedoms) and Art 3 of the Protocol (free and fair elections). The court therefore adopted the approach of the Divisional Court to Art 10 in Woolas where Thomas LJ pointed out, the right of free speech in Art 10 is not absolute: it is subject to ‘such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society’. In applying Art 10, therefore, a balance must be struck between the right of free speech itself and the competing rights and obligations that arise in a democratic society.
With regard to undue spiritual influence, the Commissioner cited with approval the judgment of Fitzgerald J (later Lord Fitzgerald) in Longford¸ which he summarized as:
- “The priest or other religious authority has the right of the ordinary citizen to hold and express political views, and the law will protect that right. There is … a line beyond which the priest may not go and that line is reached when the priest uses his religious and moral influence to attempt to ‘appeal to the fears, or terrors, or superstition of those he addresses’, to ‘hold hopes of reward here or hereafter’, or to ‘denounce the voting for any particular candidate as a sin, or as an offence involving punishment here or hereafter’.”
The Commissioner prefaced these considerations with the cautionary comment,
“151 … law relating to undue spiritual influence is not and cannot be construed as applying only to the Christian religion (a fortiori only to the Roman Catholic branch of it). Patently in the United Kingdom of the 1880s and 1890s no religion other than some form of Christianity was sufficiently represented in any part of the country to be psephologically significant. It is therefore inevitable that the decided cases should arise out of instances where the spiritual influence alleged was that of the Christian church. In considering those cases, therefore, it is necessary to strip out those elements which are peculiar to Christianity and, more particularly, to Roman Catholicism, in order to ascertain the basic legal principles being applied by the courts.
152. Accordingly, just as undue spiritual influence under s 115 of the 1983 Act is not confined to Christianity, it is equally not confined to religions which have the Christian sacraments or an equivalent, the threat of withdrawal or refusal of which can be used by clergy to influence voters. Similarly, it is not an essential ingredient of the section that the spiritual influence should be that of a monotheistic religion or of a religion which contains a belief in an afterlife where punishments and rewards are meted out for conduct in this life. In an appropriate case undue spiritual influence could be created by what some might regard as a cult, such as Mr Moon’s ‘Unification Church’ or even ‘New Age’.”
Undue “spiritual influence” – consideration of the evidence
As noted above we reviewed the judgment in “Spiritual influence” and elections updated: Lutfur Rahman found guilty of illegal electoral practices. However, for completeness, a number of parts are included below. Richard Mawrey QC preceded his consideration of the undue spiritual influence aspects of the case with comments on the sensitivities involved:
526 This is, without any doubt, the most troublesome part of the case. In the Britain of 2015 anything that concerns Islam is extremely sensitive. Whatever this judgment says on the subject of spiritual influence is likely to prove controversial and may cause offence, either genuine or feigned. As has already been pointed out, when this judgment discusses the relevant law, it would have been easy to evade the issue by holding that, notwithstanding the clear words of the statute, spiritual influence should be treated as obsolete.
527 To evade an issue or to reach a ‘fudged’ solution in the hope of avoiding offence would be an abdication of the judicial function. It may sound pompous to cite the old Latin tag fiat Justitia ruat caelum (let justice be done though the heavens fall) but a court that works on any other principle and does so for fear of the consequences is betraying the trust that the public reposes in it.
528 It is accepted, therefore, that this section of the judgment cannot help but be controversial.
The Commissioner summarized the Petitioners’ case as:
529 … In formulating his campaign, Mr Rahman, as well as playing the race card, was determined to play the religious card. The campaign would be targeted at Tower Hamlets’ Muslim population with a stark message: ‘Islam is under threat: it is the religious duty of all devout Muslims to vote for Mr Rahman and his party.’
532 … Mr Rahman solicited and obtained the support of the clerics, largely through a close relationship between himself and Mr Hoque, the Chairman of the Council of Mosques. Though perhaps not in the same league as the Imam of Mecca, the Chairman is someone of considerable power and influence amongst the Muslim clerics of the Borough and to have him as an ally would be a trump card in Mr Rahman’s re-election bid.
The Petitioners relied upon on two incidents involving Mr Rahman and Mr Hoque, the Chairman of the Council of Mosques, who was “someone of considerable power and influence amongst the Muslim clerics of the Borough”, [533 to 545]. These incidents suggested that they were working hand-in-glove and that, at the very least, Mr Hoque’s activities on behalf of Mr Rahman were carried on with the latter’s knowledge and consent. The court considered that it was “extremely unlikely that Mr Hoque’s message was confined to these episodes or that he otherwise kept silent about his support, but [confined] itself to those episodes where credible evidence exists, .
The Commissioner noted that subsequently, on 16 May 2014 (six days before the election) the Weekly Desh, a newspaper published in Bengali and in English with a circulation of about 20,000, had carried a letter, solely in Bengali, signed by 101 imams and other religious leaders: it was a serious matter and the letter was intended to be taken seriously [546 & 547]. He concluded that though the document spoke of ‘the community’ throughout in a neutral fashion, it was published solely in Bengali and ‘the community’ was intended to be taken as ‘the Bangladeshi community’ .
“551… [T]he Imams’ message is clear; our religion is under attack, our enemies despise us and wish to humiliate us; it is your duty as faithful sons and daughters of the [Church][Mosque] to vote for candidate X: only he will defend our religion and our community. As the Imams’ letter puts it ‘[our opponents are] spreading jealousy and hatred in the community. We consider these acts as abominable and at the same time condemnable’…”
There was “a world of difference, however, between what might, if unkindly, be termed a general ecclesiastical bleat about how politics has gone to the dogs, and a specially targeted letter aimed at one particular body of the faithful, telling them their religious duty is to vote for candidate A and not for candidate B” . There was a substantial body of credible evidence that the imams were declaring that it was the duty of faithful Muslims to vote for Mr Rahman . Moreover:
“559. Although the official line was that this document was compiled entirely by the clerics involved, it is noticeable that much of the language does bear a striking resemblance to that of the political messages put out by Mr Rahman’s campaign. Although Mr Rahman claims to have been taken by surprise by the appearance of the letter, it beggars belief that neither he nor his close associates knew that it was coming out…”
560. The only inference one can draw from the evidence is that, at a relatively early stage, Mr Rahman decided to run his campaign on the basis that it was the religious duty of faithful Muslims to vote for him …”
In conclusion, therefore:
“564. Controversial though it may be, and likely to cause offence, it is none the less the clear duty of this court to hold that the participation of the Muslim clerics in Mr Rahman’s campaign to persuade Muslim voters that it was their religious duty to vote for him and, in particular, the Imams’ letter, did, however unwittingly for most of the signatories, cross the line … between what is permissible and what is impermissible.
565. Sadly, therefore, the court feels it has no option but to find that there was undue spiritual influence contrary to s 115(2) of the 1983 Act.”
The court’s judgment did not turn solely on “undue spiritual influence”, and given the nature of election law, it useful therefore to give some detail of its findings against Mr Rahman and his agents. Firstly, in view of the burden and standard of proof relating to corrupt practices, the Commissioner could not be satisfied that the allegations of voters going into polling booths together or of THF (“Tower Hamlets First”) supporters leaving campaign material inside polling booths were capable of amounting to undue influence. Similarly, the evidence relating to voters being told that Mr Rahman was the Labour Party candidate was much too flimsy to amount to a viable case of ‘fraudulent device’ contrary to s 115(2)(b). Neither allegation was considered further, [145,146].
In contrast, the allegation of undue influence in relation to intimidation at the polling station was considered in detail, [575 to 624]. Judged against the common law offence of intimidation, prior the provision of s164(2) of the 1983 Act, “the answer would have been straightforward … [i]ntimidation is what it was and what it was intended to be by those organising it.” However, “bearing in mind the level of proof required for a court properly to be satisfied to the criminal standard [within s115 of the 1983 Act], this element of the case falls short – only just, but it does fall short – of reaching that level”, .
Nevertheless, the court was satisfied and certified that in the election for the Mayor of the London Borough of Tower Hamlets held on 22 May 2014, ,
a) the First Respondent Mr Rahman was guilty by his agents of corrupt practices contrary to: i) s 60 of the 1983 Act; ii) s 62A of the 1983 Act;
b) the First Respondent Mr Rahman was guilty by his agents of illegal practices contrary to: i) s 13D(1) of the 1983 Act; ii) s 61(1)(a) of the 1983 Act;
c) the First Respondent Mr Rahman was personally guilty and guilty by his agents of an illegal practice contrary to s 106 of the 1983 Act;
d) the First Respondent Mr Rahman was guilty by his agents of an illegal practice contrary to s 111 of the 1983 Act;
e) the First Respondent Mr Rahman was personally guilty and guilty by his agents of a corrupt practice contrary to s 113 of the 1983 Act;
f) the First Respondent Mr Rahman was personally guilty and guilty by his agents of a corrupt practice contrary to s 115 of the 1983 Act.
The court was also satisfied to the relevant standard of proof and certifies that in the election for the Mayor of the London Borough of Tower Hamlets held on 22 May 2014, 
a) there were corrupt and illegal practices for the purpose of promoting or procuring the election of the Respondent Mr Rahman at that election and
b) those corrupt or illegal practices so extensively prevailed that they may reasonably be supposed to have affected the result of such election.
Paragraphs 674 to 680 detail the consequences of the judgment and the election having being avoided.
On 28 April, it was announced on the web site of Lutfur Rahman that he would be appealing the judgment made against him at the election court. Nevertheless, the scope for any appeal against the decision of an election court is limited. Having made its determination and report, an election court is functus officio i.e. it is dissolved since there is no standing “election court”. Section 145 of the 1983 Act, Conclusion of trial of local election petition, provides that:
(1) At the conclusion of the trial of a petition questioning an election under the local government Act, the election court shall determine whether the person whose election is complained of, or any and what other person, was duly elected, or whether the election was void, and the determination so certified shall be final to all intents as to the matters at issue on the petition.
The Law Commission’s Research Paper Legal Challenge to Elections, which is contemporary to its joint consultation paper of 9 December 2014, supra, states [1.15]
“Having made the determination (and perhaps a report), the election court is dissolved. There is no appeal on issues of fact though a special case may be stated on any question of law to the High Court in England and Wales, Inner House of Court of Session in Scotland, and Court of Appeal in Northern Ireland. In R (Woolas) v The Parliamentary Election Court an election court was held to be subject to judicial review for error of law”.
Although Woolas was concerned with a parliamentary election court, Thomas LJ stated, , [emphasis added],
“There is, however, another type of election court – an election court for a local election – in respect of which the issue [applicability of judicial review] was considered. Although both types are referred to as election courts in the legislation, it is necessary for the purposes of determining this issue to refer to them respectively as a parliamentary election court and a local election court. In R v Cripps ex p Muldoon  QB 68, a Divisional Court (Robert Goff LJ and Mann J) decided that a local election court was amenable to judicial review. That decision has not been called into question; indeed since that decision there have been judicial reviews of local election courts where the issue of jurisdiction has not been questioned: see, for example, R v Rowe ex p Mainwaring  1 WLR 1059.
This judgment has provided a present-day benchmark on the understanding of “undue spiritual influence.” With regard to its future role, however, the Commissioner said in his concluding remarks,
669 … undue spiritual influence (which is always going to be controversial) needs reconsideration. If it is to be retained (and the court is neutral on that topic), it should be more clearly articulated and, if thought appropriate, re-stated for a 21st century environment.
This contrasts with aspects of the Electoral Commission joint consultation which said:
“11.51 … we do not think the law is, or ever was, that any kind of statement by religious authorities as to a campaign matter amounts to undue influence.
11.52 There is a case for removing the express reference to threatening ‘spiritual’ injury, leaving the courts to decide whether someone was in a special position of influence over another which he or she abused. The counterargument is that this might leave the law uncertain. One may go even further, and state that it is impractical for the law to distinguish between proper and improper reasons for voting in a particular way.
11.53 We provisionally propose that the offence of undue influence should be restated to involve pressure, duress or trickery as outlined above, and seek consultees’ views on whether the offence should also cover the abuse of a position of influence.”
These statements were made before Erlam & Ors v Rahman & Anor was decided and would clearly benefit from reconsideration in the light of all the issues of electoral law that were considered by the court.
 Dalton v Fulham (1892)  O’M & H 130.
  EWHC 2702 (QB) (Election court); reported as R (on the application of Woolas) v Election Court  EWHC 3169;  QB 1; (Divisional Court).
 The Act was the first statutory provisions which required candidates to publish their expenses.
 County of Longford (1870) 2 O’M & H 6; Northern Division of the County of Meath (1892) 4 O’M & H 185; and Southern Division of the County of Meath (1892) 4 O’M & H 130.
 The full quotation is included paragraph 153 of the judgment, and also in our earlier post.
 The translated version of this letter is at paragraph 549 of the judgment, and is also included in our post “Spiritual influence” and elections updated: Lutfur Rahman found guilty of illegal electoral practices.
 i.e. Having fulfilled its function, it has no further force or authority. R v Cripps ex parte Muldoon  QB 686.