THE LEGAL challenge against Alistair Carmichael’s election in May is to proceed to the next stage – which may result in the Northern Isles MP giving evidence in court.
Earlier this month the Election Court in Edinburgh, sitting for only the third time in half a century, heard a preliminary legal debate after four constituents lodged a challenge.
The case is now to be out to a “By Order” hearing to discuss the next part of the trial, including the question of the standard of proof.
The constituents – who have raised £89,000 in crowdfunding towards the cost of mounting the legal challenge – are arguing that Carmichael breached the Representation of the People Act 1983 by authorising the leak of a memo claiming Nicola Sturgeon wanted David Cameron to remain as Prime Minister, and then lying about his involvement in it.
The four Orkney-based constituents contend 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” does have the effect of engaging section 106 of the 1983 act.
Carmichael’s QC had asked the judges to dismiss the case as “irrelevant” and “bound to fail” at the September 7-8 hearing, televised live by STV.
But Lady Paton and Lord Matthews, who presided over the hearing, on Tuesday published their opinion that section 106 “is engaged when a candidate is talking about himself” and also “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”.
They now wish to hear evidence on the circumstances because “each case must be considered on its own facts, and the question may often be one of fact and degree”.
Tim Morrison, one of the four petitioners, said they were “delighted that the court decision today has vindicated us so far, that Mr Carmichael’s conduct comes within the scope of legislation and is going to go ahead to an evidential hearing”.
“The best outcome for us is that there is a by-election as soon as possible,” Morrison said. “We hope for him to resign now so that this happens sooner rather than later.
“We are sorry that he is ruling this out, this lengthens a process that will now possibly involve him giving evidence under oath.”
Much of the two-day hearing focused on whether Carmichael’s lie about his involvement in the memo leak was “personal” or “political”.
Lady Paton said: “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 crowdfunding page started by a Liberal Democrat activist Sheila Ritchie has so far raised £7,170 towards Carmichael’s own legal costs.
Lady Paton and Lord Matthews’ determination can be found here.
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