12 October 2015

Carmichael questions, Carmichael answers...

In Parliament House in Edinburgh today, Lady Paton and Lord Matthews reconvened the election court, investigating the return of Alistair Morrison Carmichael as MP for Orkney and Shetland. Earlier, the two Court of Session judges held that the case against Mr Carmichael under s.106 of the Representation of the People Act 1983 couldn't be kicked on legal grounds alone. "We wish the hear evidence", the two judges said. Today, the judges set down a timetable for the hearing of that evidence. And equally importantly, deciding (a) where it would be heard and (b) whether STV would be entitled to film the oral evidence of the former Secretary of State, and other witnesses. 

So what are the important details? Firstly, the case has been set down for four days from Monday the 9th of November. The final list of witnesses will have to be produced later this month. This is a formidable length of time to hear evidence. Reports of today's by order hearing are limited and incomplete -- but the time scheduled suggests that the election court may hear from a significant number of witnesses. The petitioners are seeking to establish that Carmichael's lies related not only to his political conduct and character -- but extended to his personal conduct and character also. It remains unclear how precisely this will be demonstrated -- but we might hear from a surprising range of people in pursuit of this aim.

Secondly, there is to be no change of venue. Generally speaking, election petitions should be heard in the constituency concerned. This, to allow locals - electors - to attend the court proceedings and to hear the case both for and against the Member of Parliament they have returned. Today, Lord Matthews and Lady Paton have decided that the Carmichael case should continue in Edinburgh. There will be no decamping to the sheriff court in Lerwick to hear testimony. 

But the judges have also kiboshed the idea that the evidence - and cross-examination - of witnesses should be televised. This, argued Lady Paton, would "create a risk to the proper administration of justice". The final submission of lawyers for the two sides can be broadcast -- but unless you hie yourself along to the Court of Session -- you won't be able to see the former Secretary of State's account of himself and his behaviour. On one level, this decision is unsurprising. Cameras are a new phenomenon in Scottish court rooms. It was, perhaps, naive to image that the election court would cross the rubicon so hastily, and allow the evidence in this case to be broadcast live. Instead, we'll have to rely on scribbled transcripts in the media. 

A few other questions suggest themselves. Firstly, could Carmichael avoid all this by simply standing down and contesting the subsequent by-election in the northern isles? Under the Representation of the People Act -- he couldn't. Under s.139 of the 1983 Act:
The election court will sit until it reaches a conclusion. The court's judgment - one way or the other - is now inescapable. But could the former Liberal Democrat Secretary of State simply decline to give evidence before Lady Paton and Lord Matthews? Again, the answer is no. Carmichael must appear if summoned. Under section 140 of the Act, the election court has power to require witnesses to appear before it. And if they fail to do so? They commit a contempt of court. There's no escaping this assize.


But even if Carmichael appears in the witness box, does he really have to answer all of the questions put to him? Can't he stonewall, or evade, or otherwise decline to assist the court in its deliberations? No dice here either. Under section 141, witnesses don't even enjoy a privilege against self-incrimination before an election court. And a prevaricating witness commits a contempt of court. There is no escape -- no legal bolt hole -- for Mr Carmichael in the four corners of the 1983 Act. He has no option but to stand in the witness box, and to answer the questions which will be put to him directly and truthfully. For a politician, more used to fencing with journalists, and providing apt but evasive answers -- this is likely to be an unfulfilling, embarassing, and potentially disastrous personal experience.


Mr Carmichael may have escaped the horrors of a televised cross-examination, but he must be anticipating the next stage of this case with little relish. His way is littered with thorns. Every step - every misstep - risks slurping this tarnished, unbruising bruiser, into another political sinkhole. Wise man say: help me Rona.

38 comments :

  1. Nicola Sturgeon had him on the ropes - I'm sure QC Mitchell will be as able.

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  2. Can The First Minister of Scotland sit in the gallery?

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    1. I imagine Sturgeon has better things to be doing...

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  3. How exactly would cameras in the court "create a risk to the proper administration of justice"? What is the precise nature of this "risk"?

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    1. Possible witnesses been targets

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    2. I had high hopes of at least one grammatical sentence that gave a rational and believable explanation for the lack of cameras. This disappoints on both counts.

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    3. Lady Paton's comments have been reported only to a very limited extent. On that basis, I'll say only this: I'm not sure I'm convinced by the logic of this arguement either. But the Scottish rules on televising judicial proceedings remain in transition at the moment. Given how much televising cross-examination cuts against judicial history, you can at least understand caution and reticence.

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    4. I might be persuaded by the "logic" of the argument if someone had actually made a logical argument.
      Saying cameras "create a risk to the proper administration of justice" is a non sequiter for an argument that we weren't offered.
      A logical argument would require, at minimum, a description of what the risk is, who would be at risk, and why, followed by a statement along the lines of the one that was made.
      For example, here is my logical argument for televising witnesses:
      The presence of cameras makes it more likely witnesses will tell the truth, because they know lots of people are closely watching their facial expressions and body language.
      Conversely, if cameras are not present, witnesses are less likely to tell the truth, because they know only the small group of people in the courtroom are closely watching their facial expressions and body language.
      Therefore, having cameras present reduces the risk of an improper administration of justice, whilst simultaneously increasing the likliehood of a proper administration of justice.
      I am curious to know what the logical argument is for not allowing cameras, since I suspect it has nothing at all to do with "creating a risk to the proper administration of justice."

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  4. Is it possible in the context of the case for carmichael to be asked if he knew the comments on the memo were faked and added. How could it be phrased? He must know it is a possibility? So if he lies and it comes out later he'll go to prison.

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    1. It is far from clear to me that such questions would be relevant. The central issue is Mr Carmichael's own personal conduct and character. Everything else is a political sideshow.

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  5. Extremely disappointed that this court has decided not to allow the members of the public, who have actually had to pay for this action to be brought and who don't happen to live in Edinburgh, are not going to see the entire case broadcast.

    If you are one of his constituents or one of the many contributers funding this action in the interests of democracy who doesn't have the money to travel to Edinburgh and pay for 4 nights accommodation in the capital, you have to "rely on scribbled transcripts in the media"?

    Can't quite get my head around seeing the words "rely" and "media" in the same sentence. If only...

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  6. I know a decison was taken but could the two sitting Law Lords have permitted to recording of the entire process for later diffusion? Allowing live transmission of the final submissions. It would have been a good case study for students of the future as this is a very unique situation

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    1. I think the latter probably will be televised. All we will miss is the direct evidence of witnesses. That, at least, is my understanding of what Paton and Matthews decided on Monday, from the reports.

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    2. I got that but after a decision is made what hard would there be to have a full recording of the all the procedings being made available?

      Serious question.

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    3. hard equals harm

      though Hard Time for Carmicael has a certain ring about it.

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  7. Can he be asked about anything related to the circumstances of his conduct that isn't specifically about his conduct? For example: did Mundell also see the memo/know that it was fabricated?
    Bit much to hope for, I know.

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    1. Broadly speaking: no. The focus of the questioning will have to be on matters relevant to the election petition. Everything else is unimportant for the case.

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  8. Can Mundell be asked to attend as a witness?

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    1. He could, if he has relevant evidence to give. You might wonder, however, what - if anything - he might know which would be relevant to the key issues in the case.

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  9. I would guess that there will be a lot of to-ing and fro-ing over relevance of questions, and that that could be a reason itself for proceedings not being televised. Would "strike that from the record" or whatever, be appropriate at times?

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  10. A TV link to Lerwick Sheriff Court would meet the needs of the constituents without the horrors of broadcasting?

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    1. The electorate of Orkney and Shetland should demand a Live Stream to their local courts or appropriate public building.

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    2. Some of us like the horrors. It would be an educational aid, at least, for the hard pressed law lecturer...

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    3. Yes, but don't you think that broadcasting a question like "Is it true you like to eat live hamsters?" shouldn't actually be broadcast? The first proceedings were procedural and therefore safe, but with a politician in the witness box ...

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    4. "with a politician in the witness box...." what?
      What is so "unsafe" about it that you can't even bring yourself to say what you mean?

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  11. Four days of evidence? Ouch! Carmichael's buggered no matter what the court finally says about the nature of his lies.

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    1. From supplementary reports, I understand that the evidence is set down at least for three days. With a fourth kept in reserve, in case things overrun. As they tend to do.

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  12. LPW - there'll be a lot of amateur reporters in court, bloggers, perhaps not aware of the rules of reportng court proceedings to avoid "contempt of court". Perhaps it would be a good idea for you to produce a quick guide as to what can, and can't be reported?

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    1. A bit of good news then: this is not a criminal assize. The Contempt of Court Act 1981 applies -- but it is very unlikely that any publication, or blog, or article, will interfere with the course of justice in this matter. Two very experienced Court of Session judges aren't going to be moved by a tweet, or a hostile tabloid write-up. As a consequence, more or less every breath of evidence, and every kind of reporting and comment on that evidence, should be acceptable here.

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    2. Ah right, having had a quick read up, I get you. Yes, I somehow doubt if Paton or Matthews will be hanging on the word of any blogger, even your good self! Good stuff.

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  13. The source of the memo, provided to Carmichael's advisor, by whom/which UK department? So, get the advisor - forgotten his name, in the stand.Sticky wicket for him.

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  14. Will you be there, Andrew? I am sure I am not alone in preferring a daily summary from you rather than the MSM.

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    1. Excellent idea! I am up for a tenner towards crowd funding our Peat Worrier's presence in the court room. In return we want a daily summary in his inimitable style. Andrew, please get onto Indigogo so they can pass the plate around for you.

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  15. I'm quite sure many of us would crowdfund this exercise, as many of us already have. However, my objection is that this court has already raised the expectation of democracy in the judicial system, and that the public would be able to watch the unfolding of this case live, BY IT'S OWN ORIGINAL DECISION to allow broadcasting of the initial proceedings.

    This is an unique case, and should be treated as such. Hopefully, the next time the electorate seek to challenge the election of their representative, the legislation will be in place to ensure that it is not such a convoluted and costly process, and broadcasting will not be necessary.

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