Dame Shirley vs absent auditor

The Curtain will lift this week on one of the most eagerly awaited legal hearings of recent years - and one of the chief protagonists will not be there.

Dame Shirley Porter, the redoubtable former Tory leader of Westminster City Council, will finally get her day in court as, along with four former councillors and officials, she appeals against the pounds 31m surcharge slapped upon them by the District Auditor in the "homes for votes" scandal. But the District Auditor, an accountant from Deloitte Touche called John Magill, will not be giving evidence.

The five were found guilty by Mr Magill of using the council to further political ambition. The central charge was that council homes were made available to likely supporters in key marginal wards in an effort to boost the size of the Tory majority.

For five weeks Dame Shirley, the appellants and a battery of QCs will argue that Mr Magill acted unfairly when he decided to impose the record amount last year. Originally, he found against six defendants but the sixth has been excused on health grounds.

The Porter camp claims that Mr Magill was prejudiced against them from the moment, in January 1994, that he called a press conference to publicise his interim findings. Their formal submissions had not then been made but Mr Magill went ahead and said: "My provisional view is that the council was engaged in gerrymandering, which I am minded to find is a disgraceful and improper purpose, and not a purpose for which a local authority may act."

The Porter camp maintains that once he had read that statement, in the glare of the TV cameras, there was no going back; the damage was done. Even though Mr Magill went on to say that he would consider any representations before reaching a final view, his interim statement and the calling of a press conference, they say, meant that any finding of not guilty was impossible.

Much of the five-week hearing will be devoted to the way Mr Magill's eight-year inquiry was conducted, from the time the allegations were first made in 1986. Costing around pounds 4m, his investigation saw the suicide of one respondent and the nervous breakdown of another.

The Porter appeal was boosted by a recent report from Lord Nolan's Committee on Standards in Public Life which said the procedure under which the auditor investigates, prosecutes and decides the verdict and sentence should be scrapped.

Mr Magill is not giving evidence, said a Deloitte Touche spokesman, because he believed he effectively acted as judge in making the surcharge finding. In the same way that judges in the civil and criminal courts did not appear as witnesses in appeals against their decisions, he would not be appearing in this case, said the spokesman.

His absence is expected to be questioned by Dame Shirley's lawyers, who are likely to claim that he was not a judge but an accountant in private practice, whose firm was receiving a substantial fee from the gerrymandering inquiry, and he should therefore give evidence.

Once the lawyers have covered the arguments over the alleged unfairness, they will move on to dispute Mr Magill's finding of guilt. Dame Shirley will argue that she did nothing wrong, and political considerations are never far from any council's decisions. If she loses, she may appeal to the European Court.