Another High Court court setback for disgraced Tory

Screenshot 2022-07-04 at 14.10.23

In what has been a turbulent year for former Oldham councillor, Khazir Rehman, his fall from grace has been rapid and almost complete.

Better known locally as ‘Kaiser’, he was convicted on 9th July, 2021, in Tameside Magistrates’ Court, of harassing the high profile Oldham Council Cabinet Member (and now Deputy Mayor), Dr Zahid Chauhan. A sentence of 12 weeks in prison, suspended for 18 months, was handed down on 16th August, 2021 following probation reports. A two year restraining order was amongst other conditions imposed.

Important public interest matters that have received no media coverage at all, locally, regionally or nationally, apart from elsewhere on this website.

Beginning on 17th August, 2021, the day after the sentencing hearing, Rehman has pursued a robust, if misguided, campaign to overturn the conviction and sentence. On that day, he applied to the magistrates’ court to have a case stated for an appeal to the Administrative Division of the High Court by way of an application for judicial review.

That application met with a reasoned refusal on 5th January 2022 by a District Judge sitting at Tameside. The claim for judicial review impugned as its targets: the conviction of 9th July 2021, the sentence of 16th August 2021, and the case stated refusal of 5th January 2022.

Permission for judicial review was refused on the papers on 8th March 2022 by HHJ Stephen Davies. Rehman had filed for urgent consideration the previous day, explaining that the urgency was “because the unpaid work was now starting”. This was 100 hours community work that had formed part of his sentencing in August, 2021.

HHJ Davies refused that application to stay the execution of the sentence. The case was then listed, with expedition, for an oral renewal of permission following further notification to the court by Rehman on 10th March 2022.

The Crown Prosecution Service, listed as an “Interested Party” on court documents, filed summary grounds on 30th March, 2022 opposing Rehman’s application for judicial review.

The case came before the Administrative Court, sitting at Manchester Civil Justice Centre, on 7th April, 2022 and started, as matters related to Kaiser Rehman often do, in dramatic fashion. Representing himself, he was nowhere to be found when the case was called onto to be heard at 2pm.

After a twenty minute delay, the judge, Mr Justice Fordham, told those present in court that no communication had been received by the court office, or by his clerk, from Rehman regarding his non-appearance. The judge, one of the most senior on the circuit, went on to say he was quite satisfied that it would not be appropriate for him to defer or adjourn the hearing. Having regard to the interests of justice, and ‘the overriding objective’ (a founding principle of the civil justice system), he was satisfied that it was appropriate to proceed.

Just under ten minutes later, Rehman appeared in court and told Mr Justice Fordham that he was unable to attend at court at 2 o’clock owing to a health condition. Having so heard, the judge paused the reading out of his judgment (ex-tempore in legal parlance) and allowed Rehman to address him, then resume his judgment having heard and considered those representations. A generous allowance as Rehman’s illness was not, apparently, preventing him from long hours of local election campaigning in Medlock Vale, the Oldham Borough ward he was seeking to re-claim as their elected representative.

During his oral submissions, Rehman was able to assist the judge with amplification of the contents of the hearing bundle, which included his grounds for judicial review, his grounds of oral renewal and his skeleton argument, all of which the judge said he had pre-read and already considered.

One of the reasons why HHJ Davies refused permission for judicial review on the papers was delay: He considered the delay in seeking to impugn the conviction and sentence not to warrant any extension of time and, also, considered that there was a lack of promptness in filing papers challenging the refusal by the magistrates’ court to state a case.

Mr Justice Fordham, however, took a different view: He told Kaiser Rehman that if he was satisfied that, in this case, there were some arguable ground for judicial review, in respect of which there is no legally adequate alternative remedy, he would not shut the case out on the basis of delay.

It is clear from the papers, said the more senior judge, that Rehman has sought to challenge the conviction and sentence and, moreover, sought to do that promptly. Whether he took the right course is something to which Mr Justice Fordham later returned.

In the reasoned refusal to state a case, the District Judge expressly said this:

“Through no fault of the applicant [Kaiser Rehman] the consideration of the application has been significantly delayed once received by the court. The application was incorrectly treated as an appeal against conviction. The appeal was processed and sent to the Crown Court in the usual manner. It is not clear what, if anything, the Crown Court did upon receipt of the appeal, but the delay in dealing with the application was raised by the applicant in November 2021. Its concerns were referred to a legal team manager who identified the mistake and notified the District Judge. The applicant was so advised and requested to pay the appropriate fee for the application to state a case, which he duly did. The application was then served by the court on the CPS”.

As Mr Justice Fordham pointed out, it would not be just, or fair, to hold that passage of time against Rehman in the light of those circumstances and those reasons, acknowledged in a reasoned determination by a judge. Then, when the refusal to state a case came on 5th January 2022, he wrote a letter before claim just over a month later on 8th February 2022 to which there was a response on 23rd February 2022. He then attempted to file his judicial review claim immediately afterwards, but there were some difficulties as a result of which it was eventually issued on 7th March 2022.

But the real issues in this case, Mr Justice Fordham says, are as to the alternative remedy of an appeal to the Crown Court and as to whether there is any arguable question of law which warrants the pursuit of judicial review and which would justify the grant of permission for judicial review. The rest of his judgment focused on those questions.

Turning first to the question of an alternative remedy, the judge emphasised that the point has been resoundingly made, throughout, to Kaiser Rehman, that he had a right of appeal (within 15 business days of sentence) under Criminal Procedure Rules, Part 34 and Section 108 of the Magistrates Courts Act to appeal against conviction and sentence to the Crown Court and to obtain a re-hearing on the evidence, including oral evidence, in that court.

It is clear, from reasons (i) to (v) that he was well aware of that option and that he, obstinately, or for as yet undisclosed reasons, chose not to take it, pursuing instead the route of requesting a case stated appeal to this Court.

(i) The application form that he used on 17th August 2021 said “use this form ONLY for an application to the court to state a case for the opinion of the High Court on a question of law or jurisdiction under Criminal Procedure Rules 35.2. There are different forms for appealing from the magistrates’ court to the Crown Court under Criminal Procedure Rules Part 34”.

(ii) When the CPS responded to the request to state a case, they took the position that there was no arguable “point of law”.

(iii) In refusing to state a case, the District Judge said this: “the findings which the applicant seeks to challenge are findings of fact, not matters of law” and “as such any challenge should have been pursued by way of appeal to the Crown Court”.

(iv) In refusing permission for judicial review on the papers, HHJ Davies said: “the Claimant [Kaiser Rehman] had the option of appealing to the Crown Court against conviction and sentence and chose not to avail himself of such option”.

(v) In the CPS’s summary grounds of resistance the point is repeatedly made that the “proper avenue” for the Claimant to challenge the conviction was “an appeal against conviction by way of re-hearing to the Crown Court, that being an alternative remedy that was and remains available”.

Undeterred by all of those references, Rehman has maintained that he has an arguable “point of law”, moreover one engaging “the public interest”, which required an appeal by case stated and which, in any event, warrants the grant of permission for judicial review. The District Judge disagreed with that. So does the CPS. HHJ Davies on the papers also reached an adverse conclusion on that point. Mr Justice Fordham, after taking all that into account said, quite correctly: “My function is to make up my own mind, afresh, as to whether I think there is some viable, arguable “point of law” arising in this case”.

He goes on to say: “The “error of law” which the Claimant says arises has been identified by him in the papers and today orally. In his Grounds of Renewal, he focuses on the question as to whether the four posts – which were the subject of the information laid against him – were “true” as to their “content”. He says that the District Judge in the magistrates’ court, in convicting him, adopted the position that the truth of the content did “not matter” and was “irrelevant”.

“He submits that that was an error of law. He says that a “flaw” always needs to be found in the “content” of publications or postings in what is an objective test applicable in the context of harassment, and where a conviction for harassment will be exceptional in the circumstances of freedom of expression and Article 10 protection.

“In support, he cites – although he did not provide it with the many authorities in the bundle – a case which is also referenced in the CPS’s summary grounds namely Trimingham v Associated Newspapers [2012] EWHC 1296 (QB), referring to paragraph 267. He made reference too to the earlier case of Thomas v News Group Newspapers Ltd [2001] EWCA Civ 1233. He says that in the present case the magistrates’ court needed to grapple with the question of whether the “contents” of the posts which were the subject of the information that had been laid against him were “true”.

“He further submits that the significance of that “truthfulness” is linked to the principle regarding looking objectively at “content” and linked to the protection that freedom of expression has under Article 10 in the context of publication, whether publication is by the press or by a private individual in a posted content.

“And, he submits, that was particularly important in the present case because it linked to the nature of the harassment alleged against him and the position as to alleged “distress” on the part of the complainant.

Kaiser Rehman, says Mr Justice Fordham, accepts that the evidence on which he wished to rely, in order to seek to demonstrate the truthfulness of what he posted, was not evidence before the magistrates’ court at his trial, which meant that the truthfulness of the posts “could not be tested”.

As he put it in his written Grounds of Renewal: “the court also lost my evidence proving the posts were true” and “therefore the content could not be tested”. As to that inability to test truthfulness of the content of the posts, he makes two points, in particular. The first is that it was the magistrates’ court’s fault that that evidence was not available, to test the truthfulness of the content.

He says the magistrates’ court had “lost” the evidence which he had submitted to it on 4th June 2021, and that this was the reason evidence was not available at the trial on 29th June 2021. The second point is that he says that, in any event, the onus is on the prosecution. The CPS had to prove the commission of the crime and to the criminal standard. So, it was necessary for the prosecution to identify a flaw in the content of the posts, which in the present case involved grappling with the issue of their “truth”.

Mr Justice Fordham disagreed, saying, there is no arguable “question of law” arising in this case, as a proper basis for the grant of permission for judicial review, or which undermines as unlawful or unreasonable or unfair – even arguably – the refusal to state a case. So far as what the magistrates’ approach was, as the District Judge’s reasoned refusal to state a case confirms:

“The applicant’s case was that the matters referred to were true and posted by him in the exercise of his free speech. The applicant wanted the court to embark on an enquiry as to the truth of the allegation but adduced no evidence to enable the court to do so. As such the court declined to engage in such an enquiry and proceeded to determine the matter in issue on the basis of the evidence presented”.

Kaiser Rehman confirmed to Mr Justice Fordham, in oral submissions, that he had retained copies of the evidence which he says was relevant to the question of truthfulness. If it was the case that that evidence had been provided to the magistrates’ court on 4th June 2021, that he still had his copies of that evidence in his possession, and that he was intending to rely on that evidence at the trial, it follows that he would have had that evidence with him at the trial.

The judge pointed out that he was not, of course, making findings of fact, but simply stating the obvious: Had it been the position that there was evidence, which he was saying that was adduced by filing it in the magistrates’ court on 4th June 2021, in readiness for reliance at the trial, and that he had that evidence available and with him at his trial, then he would have been able to raise that with the magistrates’ court. He would be in a position to seek to adduce that evidence. It is possible that the question of adjournment might then have arisen. And if an adjournment, in such circumstances, had been refused, then it is possible that issues would have arisen out of that refusal.

As the CPS pointed out in its summary grounds of resistance, the District Judge’s “decision not to embark upon an exploration of the truthfulness of the blog posts was reasonable in light of the absence of evidence in connection with this point” and the fact that the magistrates’ court “did not need to resolve the truthfulness or otherwise of the conduct said to constitute harassment in order to determine whether Kaiser Rehman was guilty of the offence”.

So far as the latter point is concerned, the CPS in its summary grounds of resistance submits as follows: that irrespective of whether the blog posts were in fact true, the truthfulness of the material is not, as a matter of law, defence to the offence of harassment. In support it cites the Trimingham case and Sube v News Group Newspapers [2020] EWHC 1125 (QB).

Kaiser Rehman has had ample opportunity to seek to provide any authority which undermines that submission. In the Administrative Court’s judgment, there is no reasonable argument presented to the them as to why the “truthfulness” would need, either in principle, or in the present case, to be a pre-condition to a conviction. Nothing in the structure of the statutory scheme in the Protection from Harassment Act, 1997 supports a conclusion in those terms.

The questions that the magistrates’ court had to decide were questions of fact arising from the statutory scheme, including any question arising from a section 1(3)(c) ‘reasonable course of conduct’ defence to the charge of harassment (and the judge emphasised that such provision is identifying a “defence”). The Sube case, referred to earlier in the hearing, discusses harassment by “publication” and said this, in a part of the judgment relating to harassment, in which both Thomas and Trimingham legal authorities are subsequently cited: “…. much harassment does involve the persistent publication of embarrassing or otherwise unwelcome statements, true or false, on the Internet or on social media”.

In that case-specific light, Mr Justice Fordham ruled that there is no arguable question of law, still less engaging the claimed ‘public interest’, such as would warrant a judicial review or (through a judicial review of the refusal of a case stated) would justify an appeal by case stated. He reached that conclusion, whilst recognising that cases concerned with communications and freedom of expression can raise questions of law, justifying coming direct from the magistrates’ to the High Court.

A good example of that (in the bundle for the Rehman hearing) is Scottow v Crown Prosecution Service [2020] EWHC 3421 (Admin), which involved various errors of law in the approach of the magistrates in a case in which the prosecution had proceeded pursuant to the Malicious Communications Act 1988. Linked to all of this is the important and indeed, in the court’s judgment, central feature of this case: Kaiser Rehman had an entitlement, if he had wished to pursue it, to appeal by way of re-hearing to the Crown Court. As, on all the occasions on which that was pointed out to him, had already been referenced .

All of the other matters in the Rehman case, in the court’s judgment, clearly fell within the umbrella of being questions of fact and evidence which would not be appropriate for judicial review. That is on these two bases: The first is that they do not constitute an arguable public law error. Judicial review is not a “merits” forum in which the substance and evidence are re-evaluated afresh, by way of a re-hearing. The second is that there is the alternative remedy which has already been emphasised, which provides precisely such a forum.

Two features of the case have been emphasised in particular, in submissions at the oral hearing by Kaiser Rehman:

(i) The first relates to the particulars given in the information which was laid against him in the magistrates’ court on which he was convicted. A number of points have been made in writing, and orally, in relation to those particulars; the relevant timeframe, and the particular “course of conduct” identified in the four posts, with their dates, that are described in that information. The CPS has made the points that the evidence that was before the magistrates, read together with the particulars, “illustrative” and “non-exhaustive” as they were, provided clarity so that Kaiser Rehman knew the case he was facing; that it was evident that he had grasped the issues; that the prosecution served all the evidence on which they were relying; and that the question is whether there was any “prejudice” arising from any defect in the way that the case was particularised.

The answer to all of these points, in Mr Justice Fordham’s judgement (and judgment), is that the “merits” remedy of an appeal in the Crown Court enabled Rehman to have all of the issues considered by a court that would have been a “re-hearing”. He would have been able to make all and any arguments in that court about the way in which the case was presented, and all in any arguments about the nature of the incidents in the evidence and referenced in the particulars. It would be open to the Crown Court at an appeal by re-hearing to reconsider any issue that arose as to the nature of the particulars.

(ii) The remaining point that was emphasised in submissions at the oral hearing concerns emails. The information which was laid against Kaiser Rehman related to postings on social media (that is to say, publication). The references throughout by the CPS referred to the case against him as having been based on such postings. Rehman told Mr Justice Fordham that there were emails in the background and run up to the trial. His point relating to emails is that the District Judge, in refusing to state a case, has included reference to the “prosecution case” being that he “pursued a coordinated and pre-planned course of conduct to harass the complainant by sending emails to third parties and making posts on social media which were intended to impugn the character of the complainant”. The Rehman case is that, as a result of those reasons, there are concerns as to whether in fact his conviction was based on materials – emails – that were not properly before the magistrates’ court and were not properly part of the prosecution case before the magistrates’ court. To which Mr Justice Fordham points out: “it is noticeable is that the very next paragraph of the District Judge’s reasoned refusal to state a case focuses specifically on “posting”. Having said that, the Claimant fairly points out that there is later in the refusal reasons another reference to “emails and social media posts”. The point is also, fairly, made by him that the magistrates’ court has not, for its part, responded to the hint given by HHJ Davies, on the papers, that it would be helpful to have any “note” of the magistrates’ “reasons for conviction”. Nor has such a note been provided by the CPS. Indeed, the CPS in its summary grounds has, in fairness to the Claimant, said that it is accepted that it is “unclear whether emails were adduced at trial”.

As the CPS puts it in its summary grounds: “It is submitted that even if this was an error in the District Judge’s written reasons [the reasons for refusing to state a case], this does not give rise to a proper ground for judicial review. There was a clear evidential basis for the conviction solely in relation to the blog posts, something which appears to be conceded by [Kaiser Rehman] in his grounds of renewal”. The CPS went on later to say that in relation to emails “the Crown’s case was that the social media posts as particularised in the charge constituted the harassment, but that there was a background of messages and emails being sent”, which background was “relevant to the issues”, but that “it is clear that the District Judge determined the issues on the basis of evidence adduced during the trial”, and that “the reference to emails does not substantiate any procedural impropriety, irrationality or other unfairness”.

Mr Justice Fordham agreed with those submissions: In his judgment he sets out that those references to “emails” by the District Judge, in the refusal to state a case, do not, of themselves, constitute a viable ground for judicial review, either of the conviction and sentence, or of the refusal to state a case for an appeal to this Court. But, putting all of that to one side, he returned, in that context, to the alternative remedy: This is a case in which Kaiser Rehman had the untrammelled entitlement to ask the Crown Court, at a re-hearing, to consider the evidence afresh. That, the Administrative Court says, gave him a full and complete remedy in relation to any grievance that he felt that he had in relation to the evidence on which he had been convicted in the magistrates’ court. By contrast, the same Court’s judicial review jurisdiction is restricted to arguable public law grounds, and appeal by case stated is restricted to only questions of law or jurisdiction.

At the Administrative Court hearing, Rehman submitted, candidly, that he was concerned that he would be ‘out of time’ if he tried to, belatedly, exercise his entitlement to have the Crown Court reconsider his case by way of an appeal. That question is not one for the Admin Court: If he made an application for an extension of time for an appeal to the Crown Court, that would need to be considered by that court on the basis of the material which is put before them.

However, having said that, Mr Justice Fordham generously observed that it would be appropriate if he were to assist that court, Mr Rehman and the CPS, to the extent of simply identifying some features of this case that the Crown Court may consider relevant, if the Kaiser was to, belatedly, seek to exercise his right of appeal against conviction and sentence:

(i) The first point relates to the passage of time that the court took in dealing with the Rehman application to state a case. As was explained at the start of his judgment, Mr Justice Fordham said it has been recorded in a reasoned decision of the magistrates’ court that Kaiser Rehman was blameless so far as that protracted delay is concerned. It is an irony that the reason for that delay was that the papers were evidently treated within the court as being the “appeal to the Crown Court” which the senior judge found is, indeed, his alternative remedy.

(ii) The second feature to record is that it is clear that this is a case in which, rightly or wrongly (and the court has held wrongly), Rehman has been pursuing an alternative avenue in seeking to impugn and challenge his conviction.

(iii) The third point that is worth recording is that any issues which do cause concern, arising out of the magistrates’ court’s reference to conviction being in part based on “emails”, is only a matter that has come to light in this case by virtue of the reasoned refusal to state a case. If, and insofar as that is a feature which plays into the consideration of whether it be just to allow an appeal by way of re-hearing to now be pursued, it should be recognised that such a matter has only come to light relatively recently.

(iv) The fourth point is that this is a situation in which, so far as the senior judge can tell, on the face of it, there is, as yet, no note of the magistrates’ reasons for the conviction.

(v) The fifth and final point is that the CPS, in its summary grounds and dated very recently, has taken the position, before the High Court, that the proper avenue in this case to challenge conviction was appeal by way of re-hearing which is “an alternative remedy that was, and remains, available”. Those summary grounds go on to say: “There remains an alternative remedy, namely an appeal against conviction to the Crown Court (with an extension of time, by way of Criminal Procedure Rule 34.2).”

It would be right, Mr Justice Fordham goes on to say, for the Crown Court, in considering any application for an extension of time, at least to be aware of those features, including the position that the CPS has taken before the High Court. But, he repeats: “None of those observations involve this Court embarking on consideration of whether an extension of time for an appeal to the Crown Court is, or is not, appropriate in this case. Moreover, as will be obvious, this Court only has the visibility about this case that it has been given, based on what it has been told and shown. There may be other features of this case, of which I am unaware, and, about which, the Crown Court would be made aware”.

Mr Justice Fordham, accordingly, refused the renewed application for permission for judicial review. Neither the CPS nor the Defendant, Greater Manchester Magistrates’ Court, were represented at the hearing and the judge made no order as to costs. A welcome relief for Kaiser Rehman who faces a bill in the order of £200,000 as a result of another High Court reversal in February, 2022. In a connected civil claim, and following a protracted trial process, the Queen’s Bench division of the High Court found that he had harassed and libelled Cllr Riaz Ahmad, a former Oldham Borough Mayor, magistrate, and school and college governor (read more here). Another matter of high public interest that has received no media coverage, locally, regionally or nationally.

A co-defendant in those proceedings was disgraced, unemployed, Tameside-based conspiracy theorist, Raja Miah. His part in the claim was compromised in an out of court settlement that involved removal of offending materials, an apology and a charity donation.

Miah and Rehman are long term friends and political allies. Even more so, latterly, as Miah has taken effective control of the local Conservative Party, and its four councillors in Oldham, and Rehman, is their best known election candidate and leading strategist. Notwithstanding, he was very heavily defeated in the Medlock Vale vale ward that he had served as a Labour councillor from 2014 until 2018 and left the election count on 6th May, 2022 humiliated and in tears.

Miah also faces a harassment trial at the same Tameside Magistrates’ Court on 16th August, 2022. He has pleaded not guilty to harassing a 38 year old woman from the Salford area of Greater Manchester (read more here). He was arrested in a dawn raid at his home in July, 2021, an action by the police he has repeatedly described, in the most unflattering of terms, as ‘politically motivated’.

The Crown Court office in Manchester has been contacted regarding the present status of any application by Kaiser Rehman for an extension of time to file an appeal to them against his conviction and sentence.

Page last updated Tuesday 5th July, 2022 at 0930hrs

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Published by Neil Wilby

Former Johnston Press area managing director. Justice campaigner. Freelance investigative journalist.

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