Legal debate in Carmichael case ends

Alistair Carmichael.

Two days of legal debate over the future of Isles MP Alistair Carmichael has concluded.

Judge Lady Paton brought the first part of the trial against Isles MP Alistair Carmichael to an end this afternoon.

Closing speeches were brought by Jonathan Mitchell QC, for the petitioners, and Mr Carmichael’s legal representative, Roddy Dunlop.

The case against the former Scottish Secretary has now been adjourned.

Lady Paton said she and judge Lord Matthews, who has also presided over the debate, needed to consider the submissions that had been brought forward.

She said a written judgment, or report, would be brought at a later stage.

The case had been brought by four of Mr Carmichael’s Orkney constituents. They claim the isles MP breached the Representation of the People Act over his involvement in a story published in a national newspaper on 3rd April.

Mr Carmichael admitted lying about his involvement in leaking a communication between the First Minister and the French Ambassador. The leaked memo had falsely claimed that Nicola Sturgeon would have preferred to see Prime Minister David Cameron returned to Downing Street after the general election.

Much of the debate in court has focused on Section 106 of the Act, which states that a person who, before or during an election, makes or publishes any false statements in relation to a candidate’s personal character or conduct shall be guilty of an illegal practice, unless he can show he had grounds to believe it was true.

Mr Dunlop had claimed an attack against a candidate’s political position did not equate to an attack on character.

Addressing the court, he reiterated his claims that the Carmichael case had no relevancy in law.
“We intend to lead no evidence at this part of the trial because we say the thing is irrelevant,” he said.

“I urge the court not to be diverted from what is, in essence, a very simple question. For the purposes of Section 106 a statement is either personal, or it is not. It cannot be both political and personal.

“My learned friend said, ‘I find it quite difficult to categorise an allegation of leaking the document as either personal or political.’

“Well if this court finds itself in that same difficulty, Mr Carmichael wins.

“The narrow construction means in the case of doubt the case is resolved in favour of Mr Carmichael.

“A false complaint that the secretary of state authorised a leak by the Scottish Office, can only be seen as public or political.”

Mr Dunlop added: “In closing, my learned friend advocates parliamentary reticence – Mr Carmichael should have said nothing. And if he’d done so he would have been fine.

“But consider what he actually did say. Because much of the discussion has focused on what has been claimed to be a false denial in involvement in the leak.

“He wasn’t accused of involvement in the leak.

“A false denial of knowledge of source of the leak is yet one further step removed from a false denial of involvement.

“If that does transcend the political and shade into personal, almost any false denial will.

“The true analysis is, as I said yesterday, this was political from start to finish. It relates to what the Scottish Secretary did as head of the Scottish Office, and he actually said nothing about his personal character or conduct.

“For these reasons I adhere to my submission that this court should bring an end to the matter now by ruling that the petition is, in law, irrelevant.”

Mr Mitchell insisted the petitioners were not complaining that the memo had been leaked.

“We do not complain that it was leaked. What we complain about is the cover up. That is what is seen as the issue of reputation.”

He cited the story of George Washington who owned up to cutting down the cherry tree.

“George Washington cut down the cherry tree and then said ‘I can not tell a lie,’ and owned up. That was more important. That’s why the anecdote is created and more important than the original act of vandalism.
“We do not complain of any non-statutory attack on Nicola Sturgeon, or on the SNP, or anyone else in the memo, and the leak process and the Daily Telegraph article.”

He denied that the “floodgates” would be opened if the court ruled against Mr Carmichael.

“There will be no likelihood of many more cases similar to this unless one agrees with a hypotheses … that, in fact, there are far more false statements made by candidates of themselves than are otherwise made in the way that has been noted in cases to date.

“It sounds highly unlikely. It may be true, who knows? If it is true, it would be a healthy discipline if it was made clear that it had to stop at risk of petitions.”