Timothy Morrison and others v Alistair Carmichael MP and Alistair Buchan

The legislative provision which makes it an “illegal practice” to make or publish false statements about any candidate during an election campaign can apply to “self-talking” as well as attacking another candidate.

Judges in an Election Court petition brought by a number of constituents challenging the election of Alistair Carmichael as Liberal Democrat MP for Orkney and Shetland have ruled 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 has the effect of engaging section 106” of the Representation of the People Act 1983. 

However, the judges said they wish to hear evidence in relation to two remaining issues before giving a determination and report to the House of Commons in terms of sections 144 and 158 of the 1983 Act. 

On 7-8 September 2015, Lady Paton and Lord Matthews heard a preliminary legal debate on three questions which the Election Court requires to resolve:

1. Is section 106 of the 1983 Act engaged by “self-talking”, as opposed to attacking another?;

2. If question 1 is answered in the affirmative, do the words complained of in the petition amount to “false statements of fact … in relation to the personal character or conduct” of Mr Carmichael, within the meaning of section 106?; and

3. If questions 1 and 2 are answered in the affirmative, do the averments in the petition disclose a relevant offer to prove that the words complained of were uttered “for the purpose of affecting the return of any candidate at the election”?

On the first issue, the court held that the language used in section 106 was “wide enough to encompass a statement made by a candidate about himself”. 

The judges further observed that that there was “nothing in the statutory language to restrict the meaning of those words to solely hostile, attacking, vilifying types of statements” and that the section could apply to a “praising and laudatory” statement provided that the statement is made “for the purpose of affecting the return” of the candidate.  

Delivering the opinion of the court, Lady Paton said: “For the reasons given above, even bearing in mind the serious consequences of an offence in terms of section 106, it is our opinion that (i) section 106 is engaged when a candidate is talking about himself; and (ii) section 106 is engaged 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.” 

However, the judges said they wish to hear evidence in relation to issues 2 and 3 before giving a determination, as “each case must be considered on its own facts, and the question may often be one of fact and degree”.  

Lady Paton added: “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.”  

The case will now be put out to a By Order hearing to discuss the next part of the trial, including the question of the standard of proof.

The full opinion of the court can be accessed via the Scottish Courts and Tribunals Service website (see link below) from 12 noon on 29 September 2015:

http://www.scotcourts.gov.uk/search-judgments/judgment?id=eb9eeea6-8980-69d2-b500-ff0000d74aa7