Carmichael election petition court wants to hear evidence

The illegal election practice of making or publishing false statements about any candidate during an election campaign can apply to statements a candidate makes about themselves, as well as those attacking another candidate, the Election Court in Scotland ruled today.

Lady Paton and Lord Matthews have decided they want to hear evidence before reaching a final decision on the petition brought to challenge the election of Alistair Carmichael as Liberal Democrat MP for Orkney and Shetland at the general election in May. The petition was brought on the basis of Mr Carmichael's admittedly false denial during the campaign that he was involved in the leaking of a civil service memorandum about an alleged conversation between First Minister Nicloa Sturgeon and a French diplomat.

Following preliminary argument on whether the petition relevantly alleged a breach of s 106 of the Representation of the People Act 1983, the judges 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 s 106”.

However, they wish to hear evidence in relation to two issues before giving a determination and report to the House of Commons in terms of ss 144 and 158 of the 1983 Act: whether 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 s 106; and whether 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”?

Delivering the opinion of the court, Lady Paton emphasised that the section applied to the return of "any candidate" at the election: "we see no reason why the 'person' making the false statement about one of the candidates cannot be that candidate himself".

She continued: "We find support for that primary conclusion from the fact that circumstances can be envisaged where a false statement of fact made by a candidate in relation to his own personal character or conduct might well affect his own return at the election."

Further, there was “nothing in the statutory language to restrict the meaning of those words to solely hostile, attacking, vilifying types of statements”, and despite the serious consequences of an offence under s 106, the section could apply to a “praising and laudatory” statement provided it was made “for the purpose of affecting the return” of the candidate.

Rejecting an argument for Mr Carmichael that the statement was made in Mr Carmichael's capacity as Secretary of State for Scotland, she commented: "we consider that a false statement of fact may be 'in relation to the candidate’s personal character or conduct' even although it is made in a political context by someone who is the holder of an office in a particular party and relates to events involving politicians, political campaigning, political parties’ offices, staff, publications and so on. 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…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.”

A further hearing will now take place to discuss the next part of the trial, including the question of the standard of proof.

Click here to view the opinion.