Election Court refuses petition challenging election of Alistair Carmichael over alleged ‘illegal practice’

The Election Court dismissed the prayer of the petition and held that Mr Carmichael was duly elected and that his election was not void, following an evidential hearing in proceedings brought by a group of constituents.

Timothy Morrison and three other constituents lodged the petition claiming that Mr Carmichael was guilty of an illegal practice in terms of section 106(1) of the Representation of the People Act 1983 because he misled the electorate over his knowledge of memo leaked to the Daily Telegraph by his special adviser, which claimed SNP leader Nicola Sturgeon wanted David Cameron to be re-elected prime minister.

Lady Paton (pictured right) and Lord Matthews had previously ruled that “a false statement by a candidate about his own personal character or conduct made before or during an election for the purpose of affecting his return at the election has the effect of engaging section 106” of the 1983 Act, but ordered that evidence be led to assist in the resolution of the two remaining issues, namely: did the words complained of in the petition amount to “false statements of fact…in relation to the personal character or conduct” of the first respondent?; and were the words complained of uttered “for the purpose of affecting the return of any candidate at the election”?

On the first issue, the court observed that the first respondent had told a “blatant lie” when, in the course of a Channel 4 interview on Sunday 5 April 2015, he claimed that he had only become aware when contacted by a journalist of a memo leaked to the press by his special adviser Euan Roddin, which stated that First Minister and leader of the SNP Nicola Sturgeon had told the French ambassador that “she’d rather see David Cameron remain as PM”.

Lady Paton said: “There is no dispute that the words ‘I told you the first I became aware of this, and this is already on public record, was when I received a phone call on Friday afternoon from a journalist making me aware of it’ constituted a false statement of fact, in other words, a lie. Obviously the first respondent had been aware of the existence of the memo and its contents as described to him by Mr Roddin since the flight to the Faroe Islands in March 2015. Moreover he had authorised Mr Roddin to release the memo to the Daily Telegraph.”

However, on the matter of whether the lie could properly be characterised as a false statement of fact “in relation to personal character or conduct”, the judges were left with a reasonable doubt.

“It is of the essence of section 106 that it does not apply to lies in general: it applies only to lies in relation to the personal character or conduct of a candidate made before or during an election for the purpose of affecting that candidate’s return,” Lady Paton said.

The judges gave some examples of what might be regarded as false statements of fact in relation to personal character or conduct.

They explained that if a candidate made a false statement that he would never leak an internal confidential memo, no matter how helpful that might be to his party, as he regarded the practice of leaking confidential information as dishonest and morally reprehensible, and he would not stoop to such tactics, when in fact that candidate had leaked an internal confidential memo containing material which was inaccurate and highly damaging to an opponent, they would be likely to conclude that the candidate had given a false statement “’in relation to personal character or conduct” because he would be “falsely holding himself out as being of such a standard of honesty, honour, trustworthiness and integrity” that, in contrast with what others in Westminster might do, he would never be involved in such a leaking exercise.

However, the court held that in the present case, when speaking to the Channel 4 interviewer, the Mr Carmichael “did not make such an express statement about his personal character or conduct”.

In a written determination, Lady Paton said: “We are not persuaded that the false statement proved to have been made was in relation to anything other than the first respondent’s awareness (or lack of awareness) of a political machination. Accordingly we are not satisfied beyond reasonable doubt that the words used by the first respondent amounted to a ‘false statement of fact in relation to personal character or conduct’. It follows that we are not satisfied beyond reasonable doubt that an essential element of section 106 has been proved. Even if we were to apply a lesser standard of proof (i.e. the civil standard of ‘on a balance of probabilities’), we would not be satisfied that the first respondent has been proved to have made a ‘false statement of fact in relation to personal character or conduct’ in the course of the Channel 4 news interview…”

That conclusion was sufficient for the resolution of the case, but for completeness the court gave its views on other matters.

On the second issue, the judges were satisfied that it had been proved beyond reasonable doubt that the first respondent made the false statement of fact “for the purpose of affecting (positively) his own return at the election”.

Lady Paton said: “As the first respondent said in evidence, he wanted public attention to remain focused on that important political message, rather than becoming side-tracked by revelations that it had been he and his special adviser Mr Roddin who had leaked the memo to the Daily Telegraph. In his view, if public attention remained focused on that political message, voters who had anxieties about Scottish independence might find voting for the SNP a less attractive prospect…The inescapable inference, in our opinion, is that if the SNP became a less attractive prospect, the first respondent’s chances of a comfortable majority in what had become a ‘two-horse race’ in Orkney and Shetland would be enhanced.”

Furthermore, the judges considered that the evidence established that there was another purpose underlying the false statement, namely a desire not to be identified as being involved in the leak.

“Thus on the basis of all the evidence led before us,” Lady Paton added, “we are satisfied beyond reasonable doubt that another purpose underlying the false statement was self-protection (a self-protection extending to Mr Roddin, provided that neither of them could be identified). Such self-protection would avoid attracting critical comment, losing esteem in the public eye, and being the subject of any disciplinary consequences, all at a very inconvenient time during the lead-up to the election. Such self-protection would avoid his presenting as a less attractive electoral candidate for the voters in Orkney and Shetland.”