Judgement Highlights in the Carmichael Case.


“at best disingenuous, at worse evasive and self-serving.”

So, the case is over and the judgement delivered. Mr Carmichael has won – he is still an MP but he is now disgraced by how the judges have talked about him.

We had to win three specific points – and all of them to be successful.

a) ‘self-talking’ had to be truthful was covered in the September ruling

b) that, byond reasonable doubt, the mistruth was about his own personal character

c) and that it was to effect the results of the local election.

In effect, there is a fourth point, that he did not have reasonable grounds for believing the statement to be be true.


The only point we lost was on was b. That he behaved in a way that is shameless throughout the process and only revealed information as he was compelled to is not sufficient grounds for the election to be void.

At this stage, we have no complaints about the judgement or the language within it. Our case had a very fair hearing indeed and judicial review seems unnecessary. The dissatisfaction come from the law that means Alistair Carmichael can behave in the ‘self-seeking’ way he continues in and still be returned as an MP despite his use a lie to manipulate results. Most people would not be pleased with this kind of victory.

The judgement shows clearly that whilst our case did not succeed, Mr. Carmichael is proven beyond reasonable doubt to be a liar who distorted facts to influence the election in his own constituency. Most people will not see that a personal lie is worse than a political lie – the difference is key to the law but not to how most people live their lives. Fibbing  at work is not acceptable.

We have been clear through out the process that we respect the Court – the ruling is balance and fair. The judges have described what happened clearly and the only witness whose evidence at some points was unreliable was Mr. Carmichael’s.  Below are extracts from the judgement  which can be accessed here.

[8]  “We had no concerns about the credibility and reliability of the witnesses, with one exception:  that related to the first respondent’s evidence that, in the context of questions about the source of the leak, he was not concerned about his reputation or his standing in the constituency.  In our opinion the evidence generally, and in particular the evidence about the furious reaction to the leak, the immediate investigation into its source, and the first respondent’s disingenuous approach when responding to the Cabinet Office inquiry, taken with the first respondent’s own evidence in court, proved beyond reasonable doubt that the first respondent hoped not to be identified as being involved with the leak, all as further discussed in paragraphs [65] and [68] to [70] below.  We accordingly did not accept the first respondent’s evidence on that matter.”

Carmichael lied to Channel 4

[44] “There is no dispute that the words “I told you the first I became aware of this, and this is already on public record, was when I received a phone call on Friday afternoon [i.e. Friday 3 April 2015] from a journalist making me aware of it” constituted a false statement of fact, in other words, a lie.  Obviously the first respondent had been aware of the existence of the memo and its contents as described to him by Mr Roddin since the flight to the Faroe Islands in March 2015.  Moreover he had authorised Mr Roddin to release the memo to the Daily Telegraph.  The memo had been given to Mr Johnson of the Daily Telegraph on 1 April 2015.  Thus it is not suggested that the first respondent had “reasonable grounds for believing, and did believe, that statement to be true”.

The judges commented on Westminster culture

Evidence about the practice of leaking in Westminster was therefore of considerable assistance.

[52]      The practice of leaking information, particularly false information, in order to embarrass political opponents, may strike many members of the public as by definition dishonest and reprehensible.  However the evidence led in the present case suggested that in British politics, certainly in Westminster, the leaking of information in order to achieve a political goal is not uncommon.  A House of Commons Public Administration Select Committee Report “Leaks and Whistleblowing in Whitehall” (10th report of session 2008-09, number 7/23 of process) contains the following passages:

The point we lost on – we did not establish beyond reasonable doubt that Mr. Carmichael’s lie was about his personal character.

[58]      In the present case, when speaking to the Channel 4 interviewer, the first respondent did not make such an express statement about his personal character or conduct.  He did not, for example, describe himself as a trustworthy, straightforward, and honourable individual who would not be involved in any leak, far less an inaccurate leak.  His constituents might, as a result of their own experience of him as their MP over the past 14 years, have formed their own view about his character and conduct, and might have thought that he was indeed of such character that his code of conduct would not permit him to be involved in such a leak.  They would, of course, be entitled to that view.  But on 5 April 2015 in the Channel 4 interview, the first respondent did not expressly make a false statement to the effect that his personal character and conduct was such that he would never be involved in a leaking exercise.  What he said was a blatant but simple lie about his lack of awareness of one particular leak.  We accept that the lie was intended to imply his non-involvement in that leak.  What is less clear, however, is whether his lie can be construed as proof beyond reasonable doubt that he was making a false statement about himself to the effect that he was someone who was upright, honourable, trustworthy, and straightforward, and therefore would not be involved in the leak.

[59]      On this matter, we are left with a reasonable doubt.  That doubt is whether the false statement was a general one in relation to his personal character or conduct, or whether it was more specific and limited to a false statement that he was not involved in that particular leak.  Put another way, insofar as this issue is a legal one, or rather a question of mixed fact and law, we are not persuaded that the false statement proved to have been made was in relation to anything other than the first respondent’s awareness (or lack of awareness) of a political machination.  Accordingly we are not satisfied beyond reasonable doubt that the words used by the first respondent amounted to a “false statement of fact in relation to [his] personal character or conduct”.  It follows that we are not satisfied beyond reasonable doubt that an essential element of section 106 has been proved.  Even if we were to apply a lesser standard of proof (i.e. the civil standard of “on a balance of probabilities”), we would not be satisfied that the first respondent has been proved to have made a “false statement of fact in relation to [his] personal character or conduct” in the course of the Channel 4 news….

The point we won

HOWEVER ….. the judgement continues ‘for the sake of completeness.’

[68]      The relevant evidence demonstrated, in our view, that the first respondent’s role in and response to the inquiry were unimpressive.  The first respondent stated in evidence that he had agreed at the outset of the inquiry that “ministers and special advisers would co-operate with the inquiry” (transcript 10 November 2015 page 21).  Yet in our opinion his evidence relating to the questionnaire issued by the inquiry demonstrated a lack of candour and co-operation on his part.  As he explained, he received the questionnaire on or about 12 April 2015.  There were four fairly general questions.  Two questions which he could recall were along the lines of whether he had received the memo, and if so, what had he done with it.  The first respondent said that he felt entitled to answer the first question in the negative, as he had never physically received or seen the memo.  As a result, he considered that the second question became “largely redundant” (transcript 9 November 2015 page 75).  He commented that answers depended on the questions asked, and that the choice of question was for those conducting the inquiry.  By adopting this approach, he “thought that it might have been possible to avoid the whole truth”.  He acknowledged that he had answered the questionnaire “less than fully truthfully” (transcript 9 November 2015 page 68).  We are satisfied beyond reasonable doubt that it was only after Mr Roddin was identified by means of telephone records as the person who leaked the memo to the Daily Telegraph, and only when the first respondent was interviewed face-to-face on Tuesday 12 May 2015 (some five days after the election), that the first respondent admitted his involvement in the leak.

[69]      In evidence, the first respondent gave the impression that the timing of his admission was purely as a result of the rate of progress of the Cabinet Office inquiry. In our opinion however, the first respondent’s approach to the inquiry was at best disingenuous, at worst evasive and self-serving.  We consider that he could and should have been straightforward and candid in his response to the inquiry.  That would have been likely to reveal his involvement in the leak at some time prior to the election, so that his constituents, when voting, would have been “in full possession of the facts during the election” (in the third petitioner’s words, transcript 9 November 2015 page 20).  It is our opinion that his failure to be straightforward and candid with the inquiry resulted from his hope that he would not be identified as being involved in the leak – preferably not identified at all, but at least not identified until after the election on 7 May 2015, as otherwise his chances of electoral success might be prejudicially affected.

[70]      On the evidence, the subsequent revelation of what could be seen as a deliberate “cover-up” by the first respondent very much enhanced the shock, outrage and upset felt by his constituents when the inquiry published its results on 22 May 2015, a fortnight after the election.  We refer to the comments of the third petitioner and the Independent Highlands and Islands MSP, quoted in paragraphs [37] and [38] above.  Ultimately however the first respondent’s unimpressive response to the inquiry, although showing him in a bad light, and resulting in his constituents being initially misled and then justifiably shocked and dismayed on discovering that they had been so misled, cannot alter our conclusion that section 106 does not, on a proper application of the law to the facts proved, apply in this case.



One thought on “Judgement Highlights in the Carmichael Case.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s