Carmichael survives election petition challenge

Scotland's Election Court has refused the petition challenging the election of Alistair Carmichael as Liberal Democrat MP for Orkney & Shetland.

Lady Paton and Lord Matthews ruled today that it had not been proved beyond reasonable doubt that he had committed an “illegal practice” in relation to his falsely denying that he was involved in the leaking during the election campaign of a civil service memorandum reporting an alleged conversation between First Minister Nicola Sturgeon and the French ambassador. However the court ruled against the MP on one of the two remaining issues it had to consider.

The judges 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 Representation of the People Act 1983. They ordered that evidence be led on the further issues of whether the statements complained of amounted to “false statements of fact… in relation to the personal character or conduct” of Mr Carmichael, and whether they were uttered “for the purpose of affecting the return of any candidate at the election”.

On the first issue, the court observed that Mr Carmichael 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 the First Minister had told the French ambassador that “she’d rather see David Cameron remain as PM”.

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

“It is of the essence of s 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”, said Lady Paton, delivering the determination of the court.

The judges considered 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 such a practice as dishonest and morally reprehensible, and he would not stoop to such tactics, when in fact he 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 [his] 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.

Lady Paton continued: "In the present case, when speaking to the Channel 4 interviewer, the first respondent did not make such an express statement about his personal character or conduct. 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 [his] personal character or conduct’. It follows that we are not satisfied beyond reasonable doubt that an essential element of s 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 [his] personal character or conduct’ in the course of the Channel 4 news interview”.

Had they reached the opposite conclusion, the judges would have held it proved beyond reasonable doubt that Mr Carmichael 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 & 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 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 & Shetland.”

Click here to view the full determination of the court.