Election Court rules s106 of Representation of the People Act 1983 is engaged by ‘self-talking’

Two judges in an Election Court petition brought by a number of constituents challenging the election of Alistair Carmichael (pictured right) as Liberal Democrat MP for Orkney and Shetland held 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 Representation of the People Act 1983.

However, the judges said they wish to hear evidence in relation to two remaining issues before giving a determination and report to the House of Commons.

Timothy Morrison and three other constituents lodged the petition claiming that Mr Carmichael 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.

The petitioners argued that the MP was guilty of an illegal practice in terms of section 106(1) of the 1983 Act, and accordingly that he “was not duly elected or returned, and that the election was void”.

On 7-8 September 2015, Lady Paton (pictured right) and Lord Matthews heard a preliminary legal debate on three questions which the Election Court required to resolve:

1. Is section 106 of the 1983 Act engaged by “self-talking”, as opposed to attacking another?;

2. If question 1 is answered in the affirmative, do the words complained of in the petition amount to “false statements of fact…in relation to the personal character or conduct” of Mr Carmichael, within the meaning of section 106?; and

3. If questions 1 and 2 are answered in the affirmative, do the averments in the petition disclose a relevant offer to prove that the words complained of were uttered “for the purpose of affecting the return of any candidate at the election”?

On the first issue, the judges held that the language used in section 106 was “wide enough to encompass a statement made by a candidate about himself”.

Lady Paton said: “The section applies to ‘a person’ who makes a statement. There is no restrictive definition in the 1983 Act of the word ‘person’. The Oxford English Dictionary and the Chambers Dictionary define person as ‘individual human being’. There is nothing in the Act to suggest that the qualification of an individual as a ‘candidate’ has the effect, within the statutory scheme, of disqualifying that individual as a ‘person’. Accordingly we start out from the premise that section 106 can apply to any individual human being, without qualification.”

“Thus if any person (ie individual human being), satisfying the conditions set out in section 106(a) and (b) were to make a false statement of fact in relation to the personal character or conduct of any of the candidates…, then section 106 would be engaged. On a proper construction of section 106 we see no reason why the ‘person’ making the false statement about one of the candidates cannot be that candidate himself,” she added.

The court further held that that there was “nothing in the statutory language to restrict the meaning of those words to solely hostile, attacking, vilifying types of statements” and that the section could apply to a “praising and laudatory” statement provided that the statement is made “for the purpose of affecting the return” of the candidate.

Lady Paton explained: “We do not consider that the words or phrases used are ambiguous: they are in our view clear and include any type of false statement of fact made in the circumstances specified, whether the statement could be regarded as complimentary or disparaging.

“The key issues, in our opinion, are the fact that the statement of fact in relation to the candidate’s personal character or conduct is false; that the statement is made before or during an election; and the statement is made ‘for the purpose of affecting the return’ of the candidate.”

The judges concluded that the section may apply “whether the purpose is to affect the return of the candidate in a positive way, or in a negative way, provided that the purpose is to ‘affect’ the return”.

Delivering the opinion of the court, Lady Paton said: “For the reasons given above, even bearing in mind the serious consequences of an offence in terms of section 106, it is our opinion that (i) section 106 is engaged when a candidate is talking about himself; and (ii) section 106 is engaged if the statement is made for the purpose of ‘affecting’ the return of that candidate, whether the statement can be regarded as attacking and vilifying or as praising and laudatory.”

However, the judges said they wish to hear evidence in relation to issues 2 and 3 before giving a determination, as “each case must be considered on its own facts, and the question may often be one of fact and degree”.

Lady Paton added: “Circumstances can be envisaged where a false statement of fact is of such a nature that the effect in relation to a candidate’s personal character or conduct transcends the political context. In other words, being involved in a political matter will not necessarily provide protection from the effect of section 106.

“We consider therefore that it is necessary for this court to examine the facts surrounding the statement and its context with some care. The question of the type of relationship between the statement and the personal character and conduct of the first respondent is one which requires evidence, including evidence as to the motive or reason for giving the false statement.”

The next part of the trial will therefore take the form of a By Order hearing to discuss further procedure, including the question of the standard of proof.