29 September 2015

"We wish to hear evidence..."

It's perhaps appropriate that I didn't have time to blog about the election court's Carmichael judgment this afternoon. I was giving a lecture to our young lawyers on Socrates, Plato, and that most basic and most intractable of questions, "what is justice"? 

Cast your mind back, if you can, to the two days of hearings earlier this month. The petitioners' case is based on section 106 of the Representation of the People Act, which penalises making "false statements of fact" in relationship to the "personal character and conduct" of a candidate during a general election. The petition has next to nothing to do with Nicola Sturgeon, or at least not directly. Mr Carmichael is the candidate. By advising Channel 4 and the nation that he hadn't the foggiest clue how the Scotland Office memo found its way into the public domain, the Orkney four argue that Mr Carmichael lied about his own personal character and conduct during the general election campaign. 

They contend that he did so to maintain his reputation as a man of honour in Orkney and Shetland, better to secure his re-election. They argue that this behaviour is caught by section 106 of the 1983 Act. If they are right, Mr Carmichael will not only lose his seat: he will be barred from seeking elective office for three years, and exposed to the (realistically remote) possibility of criminal prosecution. This is a serious business.

The legal debate earlier this month didn't concern the facts of the case. Carmichael's legal team argued that the election petition could and should be kicked out on the law, without a breath of evidence being heard. They argued that the case was without legal foundation and the Orkney four had simply misread electoral law. Roddy Dunlop QC sought to persuade Lady Paton and Lord Matthews that the Representation of the People Act should be interpreted narrowly. Look at the consequences, he said: this is a penal statute. You have an obligation to construe this law carefully. Against this backdrop, the QC advanced four key arguments. And for the petition to survive, the petitioners needed to prevail on all four points. 

Firstly, Dunlop argued, the penalties of section 106 shouldn't extend to what he styled a candidate's "self-talking". That's a funny phrase for something we might put more simply: a candidate lying about themselves rather than about someone else. If you dig through the parliamentary record, he suggested, you find this legislation was intended to punish those who slander their opponents: not those who polish their CVs or deliberately tell national news organisations that they didn't do something which they did, in fact, do.

On this basis, Dunlop suggested, Carmichael couldn't be held responsible under section 106. Secondly, the QC argued section 106 should only apply to false statements which paint a candidate in a negative rather than a positive light. This distinction has no basis in the text of the legislation, which speaks only of falsehoods rather than whether the lie casts the candidate in a positive or a negative light. It finds no echo in earlier caselaw. 

Unconvincing? Lady Paton and Lord Matthews thought so. Their opinion reduces this aspect of Carmichael's case to molten slag. The plain text of section 106 extends to everybody who tells lies about a candidate during an election. As Jonathan Mitchell QC quipped during the oral hearing, "Alistair Carmichael is a person". The Act extends to him just as completely as it would his campaigners or his constituents. And the broad language in which the Act is drafted also catches happy lies and nasty lies. Digressions about parliamentary debates in the 1880s are an unhelpful sideshow. The text is clear.

On the remaining two points, the election court's decision is more equivocal. Remember, Carmichael argued that his lies were political, rather than personal. The leak was a political act. Surely lying about whether or not you committed a political act should also be construed as political in character? But why does this matter?

Section 106 punishes only false statements of fact in relation to a candidate's personal character or conduct. The courts have long recognised a protected area of speech - political speech and political debate - which lie beyond the pains and penalties of section 106. If Carmichael can persuade the court his lies were political and not personal in character -- he keeps his seat and gets off scot free. At least in law. Carmichael sought to persuade the judges that this was an open and shut question. He failed. At para [32], Lady Paton offered the court's rationale for rejecting this construction:
"We do not therefore accept the submission by senior counsel for the first respondent that the context of the statement under challenge (namely the fact that he was being asked questions in his capacity as Secretary of State for Scotland, it being understood that the leak had come from the Scotland Office) automatically has the result that the statement should be categorised as one given “in relation to the public or official character of the candidate” (Fairbairn, Lord Ross at page 396). 
On the contrary, 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."
Carmichael also raised the question of motive. The petitioners must show that Carmichael's lies were motivated by his election in the northern isles. They must show, in short, that he lied to save his own skin, rather than to dent the SNP nationally, or to diminish the credibility of Nicola Sturgeon as a political figure.

Lady Paton's opinion is extremely clear here - the court can't reach a conclusion about (a) whether the lie was political or personal or (b) what motivated the cover-up - without hearing evidence. It isn't a decision which the election court can make on the law alone.
"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. We do not accept, therefore, that it is sufficient simply to provide the court with a written narration of events and to invite the court to reach a view on the basis of the statute and the authorities. On the contrary, we consider that, in a case such as this, there may be subtle but significant inferences and nuances to be drawn from evidence when heard."
Law and fact interact. The election court's decision is necessarily context-dependent. Better to understand that context, evidence must be heard. That doesn't mean the four petitioners will ultimately prevail -- though they must be feeling considerably more chipper, having survived adjudication at the threshold. There remains every likelihood that Carmichael will keep his seat on the court's final analysis.  But it seems highly probable that the last Liberal Democrat in Scotland will find himself obliged to give evidence. And that wasn't part of the plan.

Lady Paton's legal opinion is an upset. An upset for those who thought this case was a crackpot and oppressive challenge without any sound basis in the Representation of the People Act. The election court's judgment today is a rebuke to the lazy cynics and a vindication for the Orkney four. This is no screwball use of the legislation. Their case is novel, absolutely. Unusual, for sure. But electoral law is complex, little understood and often arcane. It remains a mystery to me, how many folk who (a) know sod all about election law and (b) didn't bother to find out still felt able to pronounce the petition hopeless, baseless and motivated by ill will. Well, ye ken noo.

Lady Paton's decision also represents a bitter upset for Mr Carmichael, whose last best hope was to have the case kicked on the law. Now there is a distinct possibility that the northern isles MP will find himself in the witness box, answering impertinent questions including "Would you describe yourself as an honest man, Mr Carmichael? Do you think your constituents in Orkney and Shetland regard you as an honest man? Why did you lie? When you told Channel 4 that you were not involved in the leaking of this document, that was a lie, wasn’t it? Do you really think that is a credible explanation for your behaviour, Mr Carmichael?”

Grisly. "We wish to hear evidence." Five of the cruellest words in the English language.


  1. great summary,thankyou very much LPW

  2. Suepoib! I was hoping that the court would take this stance. I could never see how any reading of the legislation could have meant that 'self-talking' (allegedly lying about oneself) was not covered by section 106 or that only negative statements of fact about a character's personal character or conduct were prohibited, ,eaving lying positive statements within the law. To rule otherwise would have made it possible for any candidate in an election to lie about themselves and their personal behaviour, to grant themselves undeserved honours and kudos, without fear of any legal penalty.

    Having heard his evidence, should the court find that Carmichael lied about his personal character or conduct, all that remains is for the court to decide whether or not the lying was done to affect the outcome of the election: "Mr. Carmichael, did you lie about your involvement in the leak to protect your reputation among the voters of Orkney and Shetland?"

  3. I keenly anticipated your verdict on the case so far. Many thanks for your post. There could very well be difficult times ahead for Carmichael, considering that he has already admitted he lied. Interesting times indeed.

  4. "Surely lying about whether or not you committed a political act should also be construed as political in character?"
    Everyone knows lying is a matter of personal character, whether or not you are a politician, and whether or not the lie is about a political act.
    Of course, claiming there is such a thing as a purely "political" lie is precisely the sort of thing a lying politician would do to excuse the personal lies they've told about their political acts, especially if it means saving their political skin.

    1. That's exactly what i was thinking David. Whether political or personal, it originated in his napper. Whether he lied through his teeth, or through his teeth he did lie. A lie is a lie. And he told it

    2. When a politician lies to damage the character of an opponent electoral law rightly draws a distinction between whether the lie damaged the personal or political character of the opponent. If the lie damaged only the political character of the opponent there is a sensible case for the law to allow that as part of the "rough and tumble" of political debate.
      However when a politican lies to enhance their own character the distinction between a "personal" and "political" lie becomes entirely moot. It matters not to a self-praising politician whether their personal or political character is enhanced, since the lie enhances both their personal and political character at the same time.
      A politician who tells lies about their own character is just as much an abuser of the electoral process as one who tells lies about the character of an opponent. So any electoral law that doesn't apply in the case of a politician who tells lies about their own character is completely worthless and unfit for purpose.

  5. Good news indeed.

    Thanks for making the explanation a little more understandable to laymen.

  6. Will it be considered relevant that Mr Carmichael in his comments to Channel 4 could have chosen NOT to lie?

  7. "The petitioners must show that Carmichael's lies were motivated by his election in the northern isles. They must show, in short, that he lied to save his own skin, rather than to dent the SNP nationally"

    If damage is done to the SNP nationally, that must inevitably mean that damage is also done to the local SNP candidate.

  8. What will happen if he refuses to give evidence ?
    Surely he has a right to remain silent and not answer incriminating questions ?
    I was always under the impression it was not a crime to tell a lie, well certainly not for crown witnesses in particular.

  9. I think this indictment relevantly charged the accused with telling a falsehood, but telling a falsehood simpliciter is not a crime by the law of Scotland.

    Mather V HMA 22 July 1914 JC 184


  10. This case is genuinely a terrible waste of time and money. There is no chance in hell that the court will hold that simply leaking a document and then denying it would engage section 106 of the Representation of the People Act 1983. The whole argument is a nonsense. Those SNP crowdfunders who have funded the petitioners in this case would have done better to give their money to help the poor and the needy, rather than to pay the legal fees of lawyers arguing a hopeless case. The action seems to have been raised by the SNP's proxies out of vindictiveness and spite at having failed to win Orkney and Shetland. Just as with the referendum, the SNP clearly want to keep re-running this constituency election until they get the "right" result.

    1. Is this the best you can do?

    2. That's it? SNP baaaaad! Oh dear.

    3. Only one of the four are affiliated with the SNP in any manner. So yeah, that kind of quashes your rather petulant argument.

    4. Surely it is the time and money of the petitioners in this case and those of us who have chosen to support them, of our own free will and with our own spare cash?

      Many of us feel that this action is important to the electorate of Scotland, as it appears to be the only way of holding elected officials to account.

      I feel personally aggrieved, for example that, as a taxpayer, I appear to be paying for his defence, while also helping to pay for his prosecution. As an elected MP, his salary, expenses and perks are paid by the taxpayer, who has no choice in the matter. Some of us have also chosen to give help to the petitioners, so are paying twice for the same legal process.

      That is surely a criticism which should be levelled at the current legislation, rather than the action, jmcg89?

    5. Unless you're the judges, you've got no idea what the outcome of the case will be. And even if you were the judges, you'd still have no idea since the evidence hasn't been heard yet! Even if Carmichael isn't found to have told lies about his personal character or conduct to try to influence the outcome of the election in Orkney and Shetland, the case has already been extremely useful in clarifying that section 106 *does* cover instances where candidates lie about themselves, *does* cover laudatory lies (for the very good reason that what might be considered damaging by some parts of the electorate might be considered praiseworthy by other parts) and that a decision as to whether a false statement is personal or political in nature is dependent on the facts and circumstances. Whatever the outcome of the case, these clarifications of the law are very welcome.

    6. Here is a further clarification on whether the false statement was personal or political, based on the facts and circumstances:
      Even if Alistair believed he was only protecting his political character he has since learned he was actually protecting his personal character, if only temporarily.
      After he admitted the lie many people decided he didn't have the right personal character for any political office. It was his personal character that took the hit.

  11. jmcg89 obviously you don't hold position First Minister of Scotland in high regard

  12. Since the judges have called for "evidence" the court must now explore the full context behind Carmichael's lie. Witnesses must be called. Who else knew about the memo? Who was the memo addressed to? These are precisely the sort of "subtle but significant inferences and nuances" the judges must answer before they can decide the "nature and purpose" of the lie.

  13. "This case is genuinely a terrible waste of time and money"

    Legally it's not, as the judges have proved so far.

    Carmichael said at one point that "these things happen" during an election. In other words, that politicians lie, deny that they lied, act like injured martyrs when pressed and deceive people who are about to make an important decision about whom to elect as their representative in parliament.

    I'd rather we cleaned out the stables and demanded accountability from our MPs. Wouldn't you?

  14. How can the court trust the evidence produced by a self confessed liar?

  15. It is strange that so many people are upset at supposed lies by one man and yet can completely ignore or perhaps not even recognise lies spoken by another one ...taken from the Spectator "
    ” I’m thinking of Alex Salmond in particular. On almost every critical point raised during the debate about Scotland’s future, Salmond was deliberately misleading. I’m not just thinking of his claim that he’d received legal advice reassuring him that an independent Scotland wouldn’t need to reapply for membership of the European Union. When the Information Commissioner ordered the Scottish government to respond to an FOI request to disclose the advice it had received, Salmond’s ministers spent £19,452.92 of public money appealing the decision, only to admit later that the ‘advice’ was a figment of Salmond’s imagination. So the First Minister misled the Scottish people on this point and spent taxpayers’ money to try to conceal the fact.
    Then there were the SNP’s fictitious claims about the economic impact of independence — and I’m indebted here to the blogger Kevin Hague, who has devoted years to unpicking the SNP’s rhetoric. For instance, there was the assertion that Scotland sends more money to Westminster than it gets back, thanks to North Sea oil....etc .”
    see more here .
    And of course Kevin Hagues excellent factual blogs that exposes SNP and Wings over Scotlands misinformation , why did Scots fall for this ?
    Now i am sure most honest people can see the different standards being applied to Alistair Carmichael and to Alex Salmond and other SNP Capaigners..now why should that be i wonder ?

    1. I don't remember Alex Salmond claiming he "misstated his awareness" about this, yet people still think they can draw direct comparisons between this and Carmichael''s admitted falsehood. Remind me again: which two judges have ruled Salmond has a case to answer? What is strange is this morally-blind insistence on trying to make an unfair comparison between two entirely dissimilar events.

    2. "entirely dissimilar events." Only in your tainted eye's, is a lie not a lie regardless what the subject was ? It would appear that its ok in SNP supporters eyes for a senior SNP Politician to blatantly lie on an issue of National importance and then go on to cost the Scots nation a further approx £20K by trying to appeal against having to reveal his source of legal advice to the Governments own Information Officer when Salmond already knew very well it simply did not exist other the delusional fiction inside his own head. Alex Salmond isn't backward on needlessly wasting Public funds, that IS dishonest and makes him completely untrustworthy and yet the SNP's cult followiing continue to idolise him. How long will it take do you think until they finally realise they are worshipping a false God ?

    3. Eyes, it would appear, don't come any more "tainted" than yours.
      You are completely incapable of seeing the difference between Carmichael's admitted falsehood and your completely unsubstantiated allegations against Salmond. A "lie" is only a "lie" if it's proven to be a "lie". So it's time to put up or shut up. Where is your proof Salmond "lied"?

    4. Erm what part of this don't you understand ? Pay particular attention to the parts "Information Commissioner" and "FOI" request...are you suggesting the Government Information Commissioner is a liar too ? Lol, why is it SNP followers refuse to see the truth that Salmond simply blatently lied to them ? "When the Information Commissioner ordered the Scottish government to respond to an FOI request to disclose the advice it had received, Salmond’s ministers spent £19,452.92 of public money appealing the decision, only to admit later that the ‘advice’ was a figment of Salmond’s imagination. So the First Minister misled the Scottish people on this point and spent taxpayers’ money to try to conceal the fact.

    5. Here is another example of SNP MSP and Parliamentary Liaison Officer to the First Minister of Scotland Joan McAlpine either being extremely stupid or blatently lying as well. ...there is no such thing as "Export Duty" ...its a fictional tax made up by the SNP and its Cybernat followers for Propanganda purpose's alone...does Scotland really deserve to have people behave like this at any level in its Government ? Don't people have to be honest ? Perhaps in a Nationalist eyes this sort of behaviour is acceptable ? The last large organisation who used Newspapers in this way were the Natzis and of course there is plenty of recorded History of Natzi sypathisers within SNP History. Multiple accounts of misinforming the Public here https://whytepaper.wordpress.com/2015/10/21/all-aboard-the-grievo-train/

    6. And yet another example of can only be deliberate lying as he has been corrected on this several times already ..this time another SNP MSP Stewart Stevenson, it either shows a blatent willingness to lie or perhaps he is extremely stupid as he has been picked up and corrected on this at least twice before and yet keeps on doing it time after time...perhaps its time for a few crowdfunders to be started ? https://whytepaper.wordpress.com/2015/10/08/three-in-one/

  16. Who is paying Carmichael's ever increasing legal fees, I wonder? The LibDems? That party has been curiously silent on this matter. If I were a LibDemmer I would not be thrilled to see my money being spent to defend the principle that a politician can lie with impunity so long as the lie isn't "personal", The UK Govt?

    What's certain is that these Orkney Four have taken on a huge risk, for none of them are rich and all of them stand personally liable for crippling legal fees if the case goes against them. They have been proven right so far to have done so. Theirs is a worthy contribution to clarifying the law and raising pressure on MPs to behave more honourably, for this case will surely have repercussions.

    I am up for another tenner to their indiegogo fund. Let's help them!

    1. According to the blurb on Carmichael's crowdfunder: "Alistair must find the money to pay for this case. The liability is his and his alone."
      That seems to suggest the Lib Dems aren't paying for all or part of his fees, since, if they were, it would no longer be Alistair's liability "alone" but a shared liability between Alistair and the Lib Dems. For the sake of Alistair and the people organising his crowdfunder I hope they aren't accidentally giving the impression he alone is paying when, in reality, the Lib Dems are also paying, because there are people out there who might regard that as seriously misleading at best.

  17. It can be seen that Carmichael's statement was a defence of his personal character - whether he intended it to be or not - simply by noting that many people's opinion of his personal character changed for the worse after he admitted the statement was false.