Two judges have been urged to throw out a case alleging that Alistair Carmichael, the former Scotland secretary, is guilty of telling a “Homeric catalogue of lies” to protect his election chances.
Lady Paton and Lord Matthews, sitting in a rare election court in Edinburgh, were told that the case against Carmichael – that he allegedly deliberately deceived voters in Orkney and Shetland about his role in the leak of a Scotland Office memo – was too weak to be upheld.
The court heard that Carmichael had admitted telling lies and half-truths about his role in authorising the leak of a memo wrongly reporting that Nicola Sturgeon, the first minister, had secretly admitted to French diplomats that she wanted to see a Tory prime minister elected.
The Liberal Democrat MP initially denied having prior knowledge of the leak, but following a Cabinet Office inquiry he admitted he had allowed his special adviser, Euan Roddin, to release details of the document.
Jonathan Mitchell QC, appearing for four of Carmichael’s constituents who want his election struck down and rerun, said those lies about his involvement in the leak were solely to protect his reputation among Orkney and Shetland’s voters.
“His denial strikes at the very root of his honesty and his integrity as a person,” Mitchell told the court, as he summed up the four constituents’ case that the lies breached the Representation of the People Act 1983.
He said Carmichael and Roddin had launched “an unguided missile into the blue” and then lied about it until five days after the election, which Carmichael won with a massively reduced majority of 817 votes.
Carmichael’s advocate, Roddy Dunlop QC, told the court that the vast bulk of Mitchell’s evidence and arguments about the MP’s conduct with the Cabinet Office, his own party and other newspapers was irrelevant and had to be thrown out.
He said only part of the evidence against Carmichael was in the petition to the court: a Channel 4 News interview that the then minister had given two days after the leak was published by the Daily Telegraph.
In that interview, which took place a month before the election, the MP was not asked whether he was involved in the link, but only whether he was aware the memo existed. Carmichael falsely told Channel 4 News that he had first become aware of it on the day it was published by the Telegraph.
Dunlop said the Representation of the People Act was clear that an election trial had to focus solely on allegations put in the original election court petition. Carmichael would lose his seat and career if found guilty, and it was an abuse of process to rely on evidence not allowed under the act, the lawyer said.
“I can’t think of a case where a person would be expected to stand trial for an offence not libelled [put on the indictment against them],” Dunlop said. “It is disproportionate to end a man’s political career on the basis of something blurted out in a TV interview.”
Accusing Mitchell of misrepresenting and spinning what Carmichael had said in other parts of his evidence, Dunlop said his opponent’s attempts to use any other evidence were “entirely fallacious and wrong in law”.
Dunlop was also scathing about Mitchell’s claim that Carmichael had lied to the Cabinet Office in early April by failing to admit his guilt in a short leak inquiry questionnaire sent to 28 people in government. That issue was not included in the original election court petition and so could not be used against the MP, he said.
“Mr Carmichael was placed in an unfair position because he didn’t have access to the questionnaire or any advance warning that he was going to be criticised for what he put in it,” Dunlop added. “It is in my submission simply irrefutable that the leak was a political leak; that was very clearly Mr Carmichael’s evidence,” Dunlop said later.
Mitchell told the court that Carmichael’s honesty and integrity were central to his re-election in May. The MP had behaved in a “disgraceful way” by failing to admit his role at the first opportunity when he filled out the questionnaire.
Prof John Curtice, an elections expert, told the trial that Carmichael had held one of the safest seats in the UK, but based on national opinion polls the Scottish National party had needed only a four-point swing in Orkney and Shetland to win the seat. In a small electorate like that, only a few people needed to change their vote.
The court heard that the 1983 act was flawed. Civil cases are normally heard by one, three or five judges to allow a majority decision. This was being heard by Paton and Matthews, sitting as a committee of the House of Commons.
They will report their findings to the house at a later date. If they find that Carmichael’s lies were a breach of the act, the Speaker is required to declare his election void. Carmichael has no right of appeal but could seek a judicial review.
If Paton and Matthews cannot agree, the act says his election will stand. The four complainants would then need to take the case to judicial review by senior Scottish civil court judges.
“It’s well known that this isn’t the best drafted statute on the book,” Mitchell said. He said it was being jointly reviewed by English and Scottish law commissions.
