A PETITION challenging the election of Alistair Carmichael as Northern Isles MP has been rejected after judges ruled it had not been proved beyond reasonable doubt that he had committed an “illegal practice”.
Four Orkney constituents were seeking to have his election in May overturned after it emerged that the Liberal Democrat had lied about his involvement in the leaking of an inaccurate memo about Scotland’s First Minister Nicola Sturgeon.
After an evidence hearing over three days in November, the Election Court has held that Carmichael’s election was not void under the terms of the 1983 Representation of the People Act.
The legal action has cost the four petitioners in excess of £200,000 and they are due to give a response on Wednesday afternoon.
Lady Paton and Lord Matthews had previously ruled “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 own return at the election” did have the effect of engaging the 1983 act.
The evidence hearing was called to clarify two issues – whether the words complained of in the petition amounted to “false statements of fact… in relation to the personal character or conduct” of Carmichael, and whether the words were spoken “for the purpose of affecting the return of any candidate at the election”.
The court observed that Carmichael had told a “blatant lie” when he claimed on Channel 4 News that he had only become aware of the Sturgeon memo – leaked to the Daily Telegraph with his approval by his special adviser Euan Roddin – stating that Sturgeon had told the French ambassador that she would rather see David Cameron remain as UK Prime Minister.
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 [i.e. Friday 3 April 2015] from a journalist making me aware of it’ constituted a false statement of fact, in other words, a lie.”
She said Carmichael had been aware of the memo’s existence since its contents were described to him by Roddin on a flight to the Faroe Islands in March, and he had authorised the memo’s release to the Telegraph.
But on the matter of whether the lie could be characterised as a false statement of fact “in relation to [his] personal character or conduct”, the judges were left with a reasonable doubt.
Lady Paton said: “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.”
She explained that if a candidate had made a false statement that he would “never leak an internal confidential memo… as he regarded the practice of leaking confidential information as dishonest and morally reprehensible”, 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 was “falsely holding himself out as being of such a standard of honesty, honour, trustworthiness and integrity that, in contrast to what others in Westminster might do, he would never be involved in such a leaking exercise”.
“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,” Lady Paton continued.
“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.”
That meant they were not satisfied beyond reasonable doubt that “an essential element” of section 106 of the 1983 act had been proved. Even applying a lesser standard of proof – the civil “on the balance of probabilities” standard – they “would not be satisfied” that Carmichael had made a false statement of fact in relation to his personal character or conduct.
Lady Paton said that point was sufficient to resolve the case, but “for completeness” she and Lord Matthews said they were satisfied that Carmichael had made a false statement for the purpose of affecting his own return at the election.
“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.”
They also established that Carmichael made the false statement out of a desire not to be identified as having been involved in the leak – for “self-protection” also extending to Roddin.
“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 voters in Orkney and Shetland.”
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