The judges who heard Alistair Carmichael’s application to dismiss the election petition against him delivered a partial judgement today and ordered that a further hearing take place. From the BBC website:
The judges have ruled that the language used in section 106 was “wide enough to encompass a statement made by a candidate about himself”.
However, they said they wanted to hear evidence about the two remaining issues before issuing a determination on the case.
These are whether the words were false statements of fact which related to Mr Carmichael’s personal character or conduct, and whether they were said “for the purpose of affecting the return of any candidate at the election”.
The judges said they wanted to hear evidence on these issues because each case had to be considered on its own facts.
You can read the entire judgement here.
Commenting on today’s news, a Scottish Liberal Democrat spokesperson said:
Alistair Carmichael will continue to play a full role in the new stages of the legal process that are ongoing, confident of a positive outcome. Alistair’s focus will remain working hard for his constituents and doing his job as MP for Orkney and Shetland.
Alistair will need even more help to pay the exorbitant legal fees. If you want to see a good man have a fair fight against well-funded opponents, you can donate to the fund-raising site started by his old friend Sheila Ritchie here.
Comments on this post will be moderated because of the ongoing legal proceedings, so cybernats need not bother.
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11 Comments
This is such a travesty of justice. A sad day for Scotland.
If section 106 applies to false statements about oneself, what’s to stop our defeated candidates for Holyrood next year, for example, taking SNP winners to election court based on mistruths about their record in government in their campaign literature?
If the court rules against Carmichael on these grounds it will turn every close election into a legal quagmire with swarms of lawyers minting it from a cloud of politically motivated challenges…
I attach a link to the judgement – and appreciate your courtesy in allowing opponents of Mr. Carmichael’s behaviour to post here.
https://www.scotcourts.gov.uk/search-judgments/judgment?id=eb9eeea6-8980-69d2-b500-ff0000d74aa7
It is clear from this that our case is not malicious and has a good funding in law. On the contrary, almost every point raised by Mr. Dunlop was dismissed.
Whether Mr. Carmichael is a good man or not is up to the courts. He has already acknowledged that he is not honest.
The hearing will determine whether Mr. Carmichael’s false statements (that they are false is not disputed) was personal or political in character and whether they were intended to influence the outcome of the election.
Extraordinary finding that s106 potentially applies to self-talking which can positively affect the result of an election – as opposed to unfair slurs on an opponent which are clearly the intended subject of the provision.
There are huge implications for political literature and campaigning including interviews eg for Tory MPs in safe seats who claim to be ‘hardworking’ – but for the last general election at least are saved by the 21-day limit on submitting a petition. The finding also makes it more likely that candidates will be subject to intense personal scrutiny including through surveillance in order to identify evidence to contradict claims they have made about themselves in their literature.
If this finding is to stand, Parliament urgently needs to re-examine the rationale for the 21-day limit, which again was clearly designed only for slurs against an opponent. False statements about an opponent are of course immediately apparent to the person concerned, and can be challenged within the 21-day period. False statements about one’s own conduct often take months or even years to come out eg recent allegations by Lord Ashcroft that Cameron knew all along he was a non-dom and Salmond’s statements about taking legal advice on EU membership.
As with the Iraq inquiry, the leak inquiry could easily have been strung out by the respondents so as to prevent it reporting within 21 days.
Politicians being held to account for telling lies? Why should we be concerned at that?
“Section 106 of the Representation of the People Act 1983 specifies that it is a criminal offence to make or publish a false statement of fact about the personal character or conduct of an election candidate. The purpose of making or publishing this false statement must be seen to be to affect how many votes the candidate will get.
Section 106 thus specifies that, in this offence, it must be a distinct statement of fact as opposed to an expression of opinion or comment about a candidate.”
it doesn’t say who is making the statement.
In North East Fife the Conservative candidate put out a leaflet saying that only he could beat the SNP, illustrated by a graph showing, not the situation in that constituency, but overall in Scotland, showing ourselves as 4% or thereabouts. It was not made clear that this was the national picture rather than the constituency one. What actually happened was precisely what we had been saying, i.e. that we got 30% of the vote behind the SNP on 41%, with the Tories only polling 14%. Would that fall foul of the rules?
“Jane” it has to be about ” the personal character or conduct of an election candidate.” and ” it must be a distinct statement of fact as opposed to an expression of opinion” any Tory in Scotland claiming he could win (apart from Dumfriesshire, Clydesdale and Tweeddale) is merely expressing an opinion which would not be considered a fact by the electorate.
his claim had nothing to do with the character of the other candidates although it could be claimed to be a slightly delusional opinion.
If on the other hand someone claimed during an election that a candidate had indulged in intimate relations with a pig then unless there was documentary evidence (preferably a picture suitable for the front page of a tabloid) then that would be a different matter.
I am becoming increasingly concerned that the courts will be used in the future as a way of overturning an election result some people don’t like. I tend to adhere to the view that it should be the electorate, not a court, who decides these things – not necessarily through a recall petition but simply at the next election. I can’t accept that this particular action would have been pursued by the SNP had it happened in the 2010 election – it’s simply only because of the possibility of winning that they have gone along with that.
There is, though, the additional interest of the SNP MP for Edinburgh West who is being investigated for criminal activity although she herself denies it. If this were, hypothetically, to go to court and she was found guilty, she could be fined or imprisoned but not for long enough to trigger an automatic election. As it’s outside the 21 day period, the electorate couldn’t do anything about the statements she made during the election, and would have to hope for a by-election.
The other thing it is in danger of doing is redefining what “election” means. As I understand it, the current definition of “election” is the vote within one constituency. If the judges take it to mean across the country as a whole, then that effectively makes ROTP Act almost unworkable and would require urgent amendment. Whether we like it or not, FPTP means that there are 650 separate elections on General Election day, not just one for the whole country.
Can I respectfully suggest that those posting on this read the entire judgement.