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ELECTION COURT

[2015] ECIH 90

P558/15

 

Lady Paton

Lord Matthews

 

DETERMINATION

delivered by LADY PATON

in terms of sections 144 and 158

of the Representation of the People Act 1983

in the petition of

TIMOTHY DENIS MORRISON AND OTHERS

Petitioners;

against

ALISTAIR CARMICHAEL MP

First Respondent;

and

ALISTAIR BUCHAN

Second Respondent:

 

in respect of

the election for the Orkney and Shetland County UK Parliamentary Constituency held on 7 May 2015

Petitioners:  J J Mitchell QC, Irvine;  Balfour + Manson LLP

First Respondent:  R Dunlop QC, R Anderson;  Gilson Gray LLP

Second Respondent:  No appearance by counsel

9 December 2015

Introduction

[1]        We refer to our previous decision Morrison v Carmichael 2015 SLT 675.  That decision is adopted herein, and forms part of this determination.

 

The two remaining issues

[2]        This court ordered that evidence be led to assist in the resolution of the two remaining issues, namely:

  1. Do the words complained of in the petition amount to “false statements of fact … in relation to the personal character or conduct” of the first respondent, within the meaning of section 106?
  2. Were the words complained of uttered “for the purpose of affecting the return of any candidate at the election”?

 

Relevant sections of the Representation of the People Act 1983

[3]

106 False statements as to candidates

(1)  A person who …

  1. before or during an election,
  2. for the purpose of affecting the return of any candidate at the election,

makes or publishes any false statement of fact in relation to the candidate’s personal character or conduct shall be guilty of an illegal practice, unless he can show that he had reasonable grounds for believing, and did believe, that statement to be true …

 

144 Conclusion of trial of parliamentary election petition

(1) At the conclusion of the trial of a parliamentary election petition, the election court shall determine whether the member whose election or return is complained of … was duly returned or elected or whether the election was void, and the determination so certified shall be final to all intents as to the matters at issue on the petition.

(2) The election court shall forthwith certify in writing the determination to the Speaker …

 

158 Report as to candidate guilty of a corrupt or illegal practice

(1) The report of an election court under section 144 … shall state whether any corrupt or illegal practice has or has not been proved to have been committed by or with the knowledge and consent of any candidate at the election, and the nature of the corrupt or illegal practice …”

 

Evidential hearing

[4]        Evidence was led on Monday 9 and Tuesday 10 November 2015.  Submissions were presented on Wednesday 11 November 2015.

[5]        The evidence comprised (i) witnesses led by counsel for the petitioners, namely Fiona Grahame, the third petitioner;  Tavish Scott, MSP;  and Alistair Carmichael MP the first respondent;  (ii) one witness led by counsel for the first respondent, namely Professor John Curtice of the University of Strathclyde;  (iii) productions;  (iv) a joint minute number 29 of process, in which counsel agreed that “copy productions lodged as nos 6/1-6/24 and 7/1-7/24 of process are to be treated as principals and as what they bear to be”;  and (v) a video clip of the first respondent’s interview on Channel 4 news.

[6]        A shorthand writer from Hansard recorded the entire proceedings.  Transcripts of both the evidence and the submissions are available.

 

Onus and standard of proof

[7]        At a by order hearing on 12 October 2015, counsel, while acknowledging that the law might require future clarification standing views expressed in Jugnauth v Ringadoo (Mauritius) [2008] UKPC 50, agreed that the onus of proof lay upon the petitioners, and that the standard of proof to be applied in this case was the criminal standard of “beyond reasonable doubt” (cf R v Rowe, ex parte Mainwaring [1992] 1 WLR 1059).


Credibility and reliability

[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.

 

Objections

[9]        There was an objection to the evidence of the third petitioner, relating to an interview of the first respondent on Shetland Radio.  In fact the evidence was given before the objection could be taken.  In the event, we have excluded that evidence from our consideration.

[10]      The only other objection ultimately insisted upon was an objection by senior counsel for the first respondent to a line of evidence relating to the first respondent’s response to the Cabinet Office inquiry.  We allowed the evidence, reserving all questions of competency and relevancy.  We were further addressed on the matter in submissions.  In our opinion the objection is without merit:  see paragraph [67] below.  However we intend to assess the evidence in two stages, the first stage being evidence excluding the evidence objected to.

 

The evidence

[11]      We are satisfied beyond reasonable doubt that the evidence established the following facts.

[12]      A general election was to take place on 7 May 2015.  The first respondent was the Liberal Democrat candidate defending his seat in Orkney and Shetland.  That constituency had been held by Liberals and Liberal Democrats since 1950.  The first respondent had been the Member of Parliament for Orkney and Shetland for 14 years. 

[13]      There were four other candidates:  Danus Skene, Scottish National Party (SNP);  Donald Cameron, Scottish Conservative and Unionist Party;  Gerry McGarvey, Scottish Labour Party;  and Robert Watt Smith, UK Independence Party.

[14]      The constituency of Orkney and Shetland was regarded as a safe seat for the Liberal Democrats.  However the SNP was making progress.  In evidence, the first respondent agreed with the position as set out in the Press & Journal online on 26 March 2015 (number 6/12 of process) as follows:

“Scottish Secretary Alistair Carmichael has admitted he is facing a battle to hold onto the Liberal Democrats’ northern isles stronghold in May. 

 

Orkney and Shetland is often described as the safest Lib Dem seat in Scotland, with Mr Carmichael winning 62% of the vote in 2010.

 

But the senior UK Government minister indicated yesterday that he believed the SNP surge was evident on the islands.

 

He predicted that the Nationalists would be his main challengers …”

 

[15]      The first respondent’s special adviser, Euan Roddin, was assisting him in his electoral campaign.  Mr Roddin read a confidential memo dated 6 March 2015 prepared by a civil servant in the Scotland Office (number 7/1/1 of process).  That memo recorded Nicola Sturgeon, the First Minister and leader of the SNP, as reportedly having told the French ambassador that “she’d rather see David Cameron remain as PM (and didn’t see Ed Miliband as PM material)”.  Mr Roddin considered that information highly significant as the First Minister’s stated policy was pro-Labour (not pro-Conservative).  The memo seemed to confirm a growing suspicion that the First Minister wished the Conservatives to remain in office, as that would alienate many Scots and enhance the “Yes” vote in any future referendum on Scottish independence.  Accordingly Mr Roddin considered that the information should be in the public domain.

[16]      Importantly, however, the memo contained a caveat.  The author had added:

“I have to admit that I’m not sure that the FM’s tongue would be quite so loose on that kind of thing in a meeting like that, so it might well be a case of something being lost in translation.” 

 

[17]      In March 2015, on a flight to the Faroe Islands, Mr Roddin drew the contents of the confidential memo to the first respondent’s attention.  The first respondent was not shown the actual memo, and it appears that he was not aware of the caveat.  The first respondent authorised Mr Roddin to share the information contained in the memo with the press.  Mr Roddin was to liaise with Simon Johnson of the Daily Telegraph, a pro-Conservative newspaper.

[18]      On Wednesday 1 April 2015 Mr Roddin provided the Daily Telegraph with a copy of the memo.  He had discussed it with Mr Johnson on several occasions.

[19]      On Thursday 2 April 2015 a televised “Leaders’ Debate” took place.  The result of the debate was favourable to the First Minister and to the SNP.

[20]      On Friday 3 April 2015 the Daily Telegraph published online an article reporting that the First Minister had told the French ambassador that she would prefer David Cameron to remain in Downing Street.

[21]      The Herald noted online (number 7/13/1 of process):

“… The allegation is politically explosive as Sturgeon has repeatedly said she wants to see Miliband as prime minister, not Cameron …”

 

Similarly the Guardian newspaper online subsequently explained (number 6/6 of process):

“… The memo was potentially hugely damaging to the SNP leader because it suggested she was misleading voters about her preferred election outcome …”

 

[22]      The First Minister issued an almost immediate denial of the accuracy of the memo, stating that it was “categorically, 100%, untrue”.  That denial was confirmed by the French ambassador.  The First Minister requested an inquiry.

[23]      On Saturday 4 April 2015, the Cabinet Secretary Sir Jeremy Heywood ordered a Cabinet Office inquiry into the leaked memo.  The two issues to be investigated were (i) how the memo came to be written;  and (ii) how it got into the public domain.  At an early stage, the first respondent confirmed that ministers and special advisers would co-operate with the inquiry.

[24]      On Sunday 5 April 2015 the first respondent gave an interview to Channel 4 News.  The interview took place in the Edinburgh West Liberal Democrat Headquarters, Corstorphine.  The first respondent introduced himself as the Liberal Democrat candidate for Orkney and Shetland.  In the course of the interview, the first respondent was asked four times whether he had been aware of the memo, the fourth question being:

“Surely it’s a fair question to ask what you were aware of?”

The first respondent’s reply is noted in transcript number 7/3 of process as follows:

“Yes and listen that’s why I’m telling you I will co-operate fully with Sir Jeremy Heywood’s inquiry, but it has to be Sir Jeremy Heywood’s inquiry and that’s why I will answer the questions to him, 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. 3 April 2015] from a journalist making me aware of it.”

 

The interview was published online at 10 am.

[25]      That same day, Sunday 5 April 2015, The Daily Record published an article at 10 pm on its website (number 6/4 of process) with the headline “Scottish Secretary Alistair Carmichael:  ‘I know who wrote Nicola Sturgeon memo but I’m not telling’.”  That article included the following passage:

“A SCOTLAND Office civil servant was behind the leaked memo that claimed Nicola Sturgeon wants David Cameron to remain as Prime Minister.

 

Scottish Secretary Alistair Carmichael has fingered an official in his own department for writing the note.

 

But the Lib Dem refused to name the individual now at the centre of a Whitehall inquiry and a furious political row.

 

Carmichael, who remains in charge of the Scotland Office during the general election campaign, said yesterday:  ‘I know the person involved but I’m not going to go beyond that.

 

This is not somebody in public life, it’s a civil servant – so he’s entitled to the inquiry being done properly.”

 

[26]      On Sunday 5 April 2015, a spokesman for the Scottish Liberal Democrats advised the press (number 7/13/2 of process):

“Alistair did not know anything about the memo until it was brought to his attention by the Telegraph.”

 

On Wednesday 8 April 2015 the Independent newspaper published an interview with Nick Clegg, the then leader of the Liberal Democrats.  Mr Clegg stated the first respondent’s position as follows:

“Alistair Carmichael’s been absolutely clear – of course he didn’t leak them.”

No-one in the Liberal Democrat party, other than the first respondent and Mr Roddin, knew how the leak had occurred.

[27]      Subsequently, on or about Sunday 12 April 2015, the first respondent completed and submitted the questionnaire which had been issued to him as part of the Cabinet Office inquiry.  That questionnaire is dealt with in greater detail in paragraphs [68] et seq below.  For present purposes, it is sufficient to note that the first respondent’s completed questionnaire did not result in the resolution of the matters being investigated by the inquiry.  Some 28 members of staff in the Scotland Office had to complete questionnaires and attend interviews.

[28]      Some time before the election on 7 May 2015, the Cabinet Office inquiry examined all relevant official phone records, e-mails, and print logs relating to the 28 persons in the Scotland Office who had had contact with the memo.  By this method, the inquiry traced Mr Roddin’s contacts with Simon Johnson of the Daily Telegraph, as Mr Roddin had used his government mobile phone to contact Mr Johnson.  Mr Roddin was interviewed by the inquiry before the election, although the precise date was not elicited in evidence.  While precise details of that interview are not known, it seems likely that Mr Roddin explained his involvement with the memo and the Daily Telegraph.

[29]      The general election took place on Thursday 7 May 2015.  In Orkney and Shetland, 9,407 constituents voted for the Liberal Democrat candidate (the first respondent).  8,590 constituents voted for the SNP candidate.  The other candidates attracted fewer votes. Thus the Liberal Democrat majority was 817, whereas in 2010 it had been 9,928.

[30]      On Sunday 10 May 2015 the first respondent had a conversation with Tavish Scott MSP.  The first respondent told Mr Scott that statements which he had made to Channel 4 News were wrong, and that a Cabinet Office inquiry into the leak was underway.  The conversation did not go into any further detail.

[31]      On Tuesday 12 May 2015 the first respondent was interviewed as part of the Cabinet Office inquiry.  At that interview, the first respondent gave details of his involvement with the memo.  In particular he confirmed that he had authorised Mr Roddin to release the contents of the memo to the Daily Telegraph.

[32]      On Friday 22 May 2015 the Cabinet Office inquiry published its findings (number 6/2 of process).  Those findings included the following passages:

The memo

… The Cabinet Secretary has concluded that there is no reason to doubt that [the civil servant who was the author of the memo] recorded accurately what he thought he had heard.  There is no evidence of any political motivation or ‘dirty tricks’.

 

The leak

In investigating the source of the leak, the investigation team searched all relevant official phone records, emails and print logs.  Those who had access to the memo were asked to complete a questionnaire on what they did with the memo when they received it.  They were then interviewed.

 

The investigation established the following facts:

  • an official mobile phone was used to make telephone calls to one of the authors of the Daily Telegraph story.This phone was held by Euan Roddin, previously Special Adviser to the then Secretary of State for Scotland, Alistair Carmichael
  • Mr Roddin confirmed that he provided a copy of the Scotland Office memo to a Daily Telegraph journalist on 1 April 2015, and discussed the memo with the journalist on a number of occasions.He told the investigation team that he acted in what he saw as the public interest and that in his view the public needed to be aware of the position attributed to the First Minister
  • Alistair Carmichael confirmed that he had been asked by Mr Roddin for his view of the possibility of sharing the memo with the press.Mr Carmichael agreed that this should occur.He recognises that, as a Secretary of State, he was responsible for his own conduct and that of his Special Adviser.He could and should have stopped the sharing of the memo and accordingly accepts responsibility for what occurred.
  • ·no-one else had any involvement in the leaking of the memo

 

The investigation team has therefore concluded that Mr Roddin, with the assent of Mr Carmichael in the circumstances described above, was the direct source of the Daily Telegraph story.  The Cabinet Secretary has accepted their findings in full.  Mr Carmichael and Mr Roddin have also accepted the conclusions.

 

Neither Mr Carmichael nor Mr Roddin will take their severance pay.”

 

[33]      On the same day, Friday 22 May 2015, the first respondent wrote a letter of apology to the First Minister (number 6/1 of process) in the following terms:

“Dear First Minister,

 

I am writing regarding the publication in the Daily Telegraph of an account which reported a conversation between you and the French Ambassador.  I understand the Cabinet Secretary is publishing a statement in respect of his findings from his inquiry today.

 

I wish to inform you that I am taking full responsibility for the publication of that document when I was Secretary of State.

 

I accept that its publication was a serious breach of protocol and that the details of that account are not correct.  I am clear that this was an error of judgement on my part and wish to offer you my sincerest apologies for the embarrassment caused to you and the French Ambassador.

 

Yours truly,

 

Alistair Carmichael”

 

[34]      As the Guardian reported online on 22 May 2015 at 17.14 (number 6/6 of process):

“Speaking to the BBC, Carmichael said: ‘It was something that I could have stopped and very much should have stopped.  That was an error of judgment on my part, I deeply regret it, and for the consequences of that error of judgment, I’ve apologised to the first minister and to the French ambassador.

 

If I were still a cabinet minister at this point, I would tender my resignation; obviously the Liberal Democrats are no longer in government, so I’ve not.  But I have said to the cabinet secretary that I will not accept the ministerial severance payment that is normally offered to ministers when they leave office.’

 

Losing their severance pay will cost Carmichael £16,876 and Roddin at least £15,500 …”

 

[35]      In the first respondent’s weekly column in the newspaper The Orcadian dated Thursday 28 May 2015 (number 6/5/3 of process), the headline read “My apology is comprehensive and without reservation”, and in the body of the text the first respondent wrote:

“ … I understand that my behaviour has done damage to the relationship of trust that I have with many of you, as your Member of Parliament. 

 

I regret that more than I can say, and I am truly sorry for what I have done – not just giving my agreement to the disclosure of the Scotland Office memo but also for not subsequently being truthful about it…

 

One of my biggest regrets about my current position is that I have inevitably contributed to the already low esteem in which politics is held …”

 

[36]      The publication of the inquiry’s findings caused disbelief, shock, anger, and outrage amongst constituents in Orkney and Shetland. 

[37]      Fiona Grahame, the third petitioner, explained in her evidence (transcript 9 November 2015 pages 12-13, abbreviated):

“ … I was very shocked, actually, and my first reaction was really kind of how stupid was that, but also I really couldn’t – it was hard to get your head around that someone you had trusted and respected so much and had such an important position as Secretary of State for Scotland as well would do such a thing … as lie to us, as to lie to the people of Orkney and Shetland … I have a very high regard for politicians.  I do not believe they all tell lies and I did believe that Alistair was a hard-working, honest person put in a very difficult position, working in a coalition he said he didn’t like being within, but he did it, he said, for the good of the country.  So I was very shocked at that, that he lied to us … [After the disclosure on 22 May there was much discussion in Orkney] … and … I couldn’t find anybody that wasn’t shocked … disbelief … that he had been so involved and he had basically lied about this memo … After … the whole memo had been exposed as being false, why did he just not say there and then [in April] instead of waiting until after the election? … all the way through the election we had believed that he had not known … [that] he hadn’t been the instigator of this leak, and we did truly believe he was defending somebody in his office and that he was still the honest man we thought he was.”

 

[38]      Similarly the Independent Highlands and Islands MSP Jean Urquhart was reported in The Orcadian newspaper dated 28 May 2015 (number 6/5 of process) as saying:

“Mr Carmichael’s actions go far beyond a simple ‘error of judgment’ – this was a calculated and deeply cynical attempt to undermine the integrity of Scotland’s First Minister during the election campaign.

 

It was a deliberate attack on a fellow politician, and this incident seriously calls into question Mr Carmichael’s fitness to continue as MP for Orkney and Shetland …

 

Politics is all about best judgment and integrity, and he has failed his constituents on both counts – by … leaking [the memo] in the first place, and then by delaying his admission of guilt until after the election.

 

Mr Carmichael is the Liberal Democrats’ ‘last man standing’ in Scotland – but only as a result of intentionally deceiving them about his role in this underhanded attempt to undermine Nicola Sturgeon.”

 

[39]      The newspaper further reported that Mrs Urquhart had spoken to a number of Shetland residents who were “shocked and appalled” by Mr Carmichael’s behaviour.  She said:

“It is incredible that he believes he can continue to represent the constituents he has openly misled …”

 

[40]      There were many calls for the first respondent’s resignation.

[41]      On 29 May 2015 the current petition to the election court was lodged, seeking to have the first respondent proved to have committed an illegal practice in terms of section 106 of the Representation of the People Act 1983, such that the court should determine (and report to the Speaker of the House of Commons) that the first respondent was not duly elected, and that his election was void.

 

Whether the words uttered by the first respondent amounted to a false statement of fact in relation to his personal character or conduct made for the purpose of affecting his return at the election such as to engage section 106 of the 1983 Act

 

The false statement of fact

[42]      The words complained of in the petition are set out in paragraph [24] above, being part of the interview for Channel 4, namely:

“Yes and listen that’s why I’m telling you I will co-operate fully with Sir Jeremy Heywood’s inquiry, but it has to be Sir Jeremy Heywood’s inquiry and that’s why I will answer the questions to him., 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 from a journalist making me aware of it.”

 

[43]      There is no dispute that the statement was made before an election.

[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”. 

[45]      The two issues in dispute are:  (a) whether the lie was a false statement of fact “in relation to [the first respondent’s] personal character or conduct”; and (b) whether the lie was uttered “for the purpose of affecting the return of [the first respondent] at the election”.  Only if those two elements are proved beyond reasonable doubt are the petitioners able to rely upon section 106.

 

(a)  Whether the first respondent made a false statement of fact “in relation to [his] personal character or conduct”

[46]      Many of the leading authorities in this area of election law focus upon the distinction between false statements in relation to “political” or “public” matters on the one hand, and “personal” or “private” matters on the other.  The distinction is important, as it is considered that members of the public are able to assess and, if necessary, discount false criticisms of political or public matters, whereas false allegations about candidates’ private lives and conduct (perhaps seriously damaging their standing with the electorate) are much less easy for members of the public to verify or refute, particularly in the relatively short time available in an election campaign.  Equally, on the view which we have taken in our earlier decision (namely that section 106 may be engaged where a statement could be regarded as positive and in favour of the candidate), an inaccurate laudatory or exculpatory or vindicating statement in relation to the personal character or conduct of a candidate for the purpose of affecting his return at the election may be less easy for members of the public to verify or refute.

[47]      In one leading judgment, R (Woolas) v Parliamentary Election Court [2012] QB 1, Thomas LJ at paragraph 110 et seq explained:

“110 In our view, the starting point for the construction of section 106 must be the distinction which it is plain from the statutory language that Parliament intended to draw between statements as to the political conduct or character or position of a candidate and statements as to his personal character or conduct.  It was as self-evident in 1895 as it is today, given the practical experience of politics in a democracy, that unfounded allegations will be made about the political position of candidates in an election.  The statutory language makes it clear that Parliament plainly did not intend the 1895 Act to apply to such statements;  it trusted the good sense of the electorate to discount them.  However, statements as to the personal character of a candidate were seen to be quite different.  The good sense of the electorate would be unable to discern whether such statements, which might be highly damaging, were untrue;  a remedy under the ordinary law in the middle of an election would be difficult to obtain.  Thus the distinction was drawn in the 1895 Act which is re-enacted in section 106 of the 1983 Act and which is reflected in the decisions to which we have referred at para 87(ii) above.

 

111 In our judgment, as Parliament clearly intended that such a distinction be made, a court has to make that distinction and decide whether the statement is one as to the personal character or conduct or a statement as to the political position or character of the candidate.  It cannot be both.

 

112 Statements about a candidate which relate, for example, to his family, religion, sexual conduct, business or finances are generally likely to relate to the personal character of a candidate …”

 

[48]      Further guidance has been given by Commissioner Mawrey QC in Erlam v Rahman [2015] EWCH 1215 (QB):

“113 … [Thomas LJ in Woolas] … drew a distinction between statements made about a candidate in his political capacity and those made about his personal character and conduct.  The court accepted, however, that a statement might start out as being purely political but might go further and attack the candidate’s personal character …”

 

[49]      We agree.  As stated in paragraph [32] of our previous decision:

“ … we consider that a false statement of fact may be ‘in relation to the candidate’s personal character or conduct’ even although it is made in a political context by someone who is the holder of an office in a particular party and relates to events involving politicians, political campaigning, political parties’ offices, staff, publications and so on.  Each case must be considered on its own facts, and the question may often be one of fact and degree.  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. … We consider therefore that it is necessary for this court to examine the facts surrounding the statement and its context with some care.    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 … we consider that, in a case such as this, there may be subtle but significant inferences and nuances to be drawn from evidence when heard.”

 

[50]      A significant feature of the present case is that the catalyst for the false statement was a leak of confidential but inaccurate information, generally accepted as being damaging to the First Minister and the SNP.  The leak was made to the Daily Telegraph on 1 April 2015, and was used by that newspaper at a time of its choice (in fact 3 April 2015) as the basis of an article designed to undermine voters’ confidence in the SNP. 

[51]      Previous reported cases have not dealt with such a catalyst.  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:

Political leaking and self-authorisation

 

32.  We were told by David Hencke that the majority of leaks tended to be political in origin, primarily coming from special advisers or ministers, and undertaken with political goals in mind.  Similarly, Professor Hennessy said that one reason for leaking was a desire to embarrass other government departments.  Again, he attributed this form of leaking primarily, but not exclusively, to political sources …

 

33. Ministers have much more scope to authorise or self-authorise the release of information than civil servants and it is therefore harder to speak of a minister ‘leaking’ information.  Two of our witnesses cited the saying ‘I brief, you leak’ to illustrate this difference of authority.

 

35.  The partial, premature or anonymous disclosure of information damages trust and morale within government;  in particular, leaking against ministers or departments undermines Cabinet-based government.  This applies to the anonymous release of departmental information by ministers as much as it does to leaks by special advisers or civil servants.  However, no government has seemed able or willing to stamp out this practice.

 

36.  Special advisers are, in theory, subject to the same rules regarding the disclosure of information as other civil servants.  However, only the responsible minister has the power to discipline a special adviser for leaking information.  In practice, this is unlikely where the adviser has been acting in what they believe to be the minister’s interests.  We do not believe this is a desirable situation … However, political leaking is a problem that can only be tackled by a change in political culture …

 

[53]      That report suggests that the practice of leaking information by special advisers and ministers, for the purpose of achieving a political goal or goals, is not uncommon.  It suggests that leaking with a view to embarrassing others involved in politics, while regarded as undesirable and damaging for trust and morale within government, is not regarded as so morally reprehensible that the person responsible for the leak becomes a social or political outcast.  The fact that the practice of leaking appears to be part of politics, and indeed if undertaken by a minister may be regarded as “briefing”, rather than “leaking”, suggests that participation in a leak would not necessarily be regarded as dishonest or dishonourable.  No matter how much members of the public might personally disapprove of the practice, it appears at present to be part of the Westminster culture.  Members of the public cannot therefore assume that a member of Parliament or office-holder will never be involved in a politically-motivated leaking exercise, all the more so during an election campaign. 

[54]      Against that background, we turn to consider whether the lie told by the first respondent in the course of the Channel 4 interview can properly be characterised as a false statement of fact “in relation to [his] personal character or conduct”.  Did the first respondent in some way, either expressly or by implication, give a description in relation to his personal character or conduct which was false?

[55]      At the outset, we note that the word “statement” is defined in the Oxford English Dictionary as “something which is stated … a written or oral communication setting forth facts”.  A definition in the Chambers Dictionary is “a thing stated, especially a formal written or spoken declaration”.  Accordingly a communication of some sort is required, whether written or oral.  Conduct alone will not satisfy the requirements of section 106, although conduct may shed light on the meaning or import of the statement given. 

[56]      In our opinion it is a crucial part of the offence in terms of section 106 that the false statement must be “in relation to … personal character or conduct”.  The restriction was no doubt imposed by Parliament for the reasons referred to by Thomas LJ in Woolas quoted above.  Thus an example of what was perceived to be a lie was given in evidence by Tavish Scott MSP (namely the statement given by Alex Salmond that Scotland had legal advice about an independent Scotland’s membership of the European Union).  In our view, that would not be caught by section 106, as it was not a statement in relation to personal character or conduct.  It is of the essence of section 106 that it does not apply to lies in general:  it applies only to lies in relation to the personal character or conduct of a candidate made before or during an election for the purpose of affecting that candidate’s return.

[57]      If a candidate, in the course of an election campaign, made a false statement to the effect that he had “never been convicted of forgery/bribery/extortion” (when in fact he had been so convicted), it is likely that we would be persuaded that the words amounted to a false statement “in relation to [his] personal character or conduct”.  Again, if a candidate made a false statement that he “would never be involved in any type of fraudulent or dishonest financial dealing” (when in fact he had), it is likely that we would be similarly persuaded.  Bringing matters closer to the present case, if a candidate made a false statement that he “would never leak an internal confidential memo, no matter how helpful that might be to his party, as he regarded the practice of leaking confidential information as dishonest and morally reprehensible (all the more so if the information was inaccurate), and he personally would not stoop to such tactics”, when in fact that candidate had leaked an internal confidential memo containing material which was inaccurate and highly damaging to an opponent, we would be likely to conclude that the candidate had given a false statement “in relation to [his] personal character or conduct”, because he would be falsely holding himself out as being of such a standard of honesty, honour, trustworthiness and integrity that, in contrast with what others in Westminster might do, he would never be involved in such a leaking exercise.

[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 interview, a fortiori bearing in mind the desirability of a strict interpretation of section 106: cf Bennion, Statutory Interpretation (6th edition) sections 271 – 282;  Thomas LJ in R (Woolas) v Parliamentary Election Court (supra), at paragraphs 82 et seq and 94 – 95. 

[60]      That is sufficient for the resolution of this case.  However for completeness, we give our views on other matters.

 

(b)  Whether the first respondent made the false statement of fact for the purpose of affecting his return at the election

[61]      On this issue, we are satisfied that it has been proved beyond reasonable doubt that the first respondent made the false statement of fact for the purpose of affecting (positively) his own return at the election.  We have reached that view for two reasons.

[62]      The first respondent explained in evidence that his aim was to keep the attention of the media (and the public) focused on an important revelation about the First Minister and the SNP which the leaked memo was intended to support.  That revelation was summarised by the first respondent in his first answer to the Channel 4 interviewer (number 7/3/1 of process) as follows:

“ … the self-evident truth is of course that we know that Nicola Sturgeon would like to have the Conservatives in government on their own at Westminster because the one thing that matters more to the Nationalists than anything else is getting independence and they would see that as an opportunity to create a wedge between Scotland and the rest of the United Kingdom.”

 

[63]      As the first respondent said in evidence, he wanted public attention to remain focused on that important political message, rather than becoming side-tracked by revelations that it had been he and his special adviser Mr Roddin who had leaked the memo to the Daily Telegraph. In his view, if public attention remained focused on that political message, voters who had anxieties about Scottish independence might find voting for the SNP a less attractive prospect.  The inescapable inference, in our opinion, is that if the SNP became a less attractive prospect, the first respondent’s chances of a comfortable majority in what had become a “two-horse race” in Orkney and Shetland would be enhanced.

[64]      Thus we are satisfied beyond reasonable doubt that the false statement of fact was made for the purpose of affecting (positively) the return of the first respondent as a Liberal Democrat in the constituency of Orkney and Shetland.

[65]      Furthermore, we consider that the evidence established that there was another purpose underlying the false statement, namely a desire not to be identified as being involved in the leak.  The rebuttal of the content of the memo had been so furious, and the First Minister’s prompt denial so clearly corroborated by the French senior diplomats, that the interest of the public and the media quickly focused on the fact that an inaccurate leak damaging to the First Minister and the SNP had emanated from the Scotland Office in the course of a hard-fought election campaign.  As the Channel 4 interviewer asked the first respondent (number 7/3/2 of process) “Do you think it’s embarrassing for you and the Scotland Office?”  Accordingly from the point of view of the first respondent, the leak, instead of being successful, had to a large extent back-fired.  A Cabinet Office inquiry into the source of the leak had begun (on Saturday 4 April 2015, the day before the Channel 4 interview).  The media were speculating about who might have leaked the memo, and for what purpose.  The first respondent stated in evidence that these inquiries very rarely established the source of a leak, and also that he wished to protect Mr Roddin.  One inference from his evidence in court and from his actions at the time (see paragraph 66 et seq below) was that he could foresee that the consequences of being identified as someone involved in the leak would be unpleasant and detrimental to him.  Moreover the nature of the rebuttals issued by Nick Clegg and the spokesperson for the Liberal Democrats might be thought to imply that, in the party’s view, no Liberal Democrat candidate (or certainly not the first respondent) would have been involved in such a leak. Thus on the basis of all the evidence led before us we are satisfied beyond reasonable doubt that another purpose underlying the false statement was self-protection (a self-protection extending to Mr Roddin, provided that neither of them could be identified).  Such self-protection would avoid attracting critical comment, losing esteem in the public eye, and being the subject of any disciplinary consequences, all at a very inconvenient time during the lead-up to the election.  Such self-protection would avoid his presenting as a less attractive electoral candidate for the voters in Orkney and Shetland.  For this reason also, we consider that the first respondent made the false statement “for the purpose of affecting [his] return  … at the election”.

 

The first respondent’s response to the Cabinet Office inquiry

[66]      As noted in paragraph [10] above, the line of evidence relating to the first respondent’s response to the Cabinet Office inquiry was objected to.  Evidence on that matter was allowed subject to competency and relevancy.  While it is not strictly necessary for us to rule on the matter, again we do so for completeness.

[67]      We consider that senior counsel for the petitioners was entitled to explore the first respondent’s response to the Cabinet Office inquiry, despite the lack of detailed averments on that matter, for two reasons.  First, it was a matter peculiarly within the knowledge of the first respondent.  The petitioners had no way of discovering, prior to the court hearing, the details which emerged during evidence.  The inquiry was confidential.  Only the ultimate findings were published (number 6/2 of process).  The first respondent had not volunteered any additional information either within the court process or outside.  Secondly, as we indicated in paragraph [34] of our earlier decision, it is our opinion that:

“ … the proceedings in an election petition and answers are indeed sui generis.  The proceedings are not an ordinary action in the Court of Session or in a sheriff court.  The election court is a United Kingdom statutory body which has taken over certain functions of a committee of Parliament.  The election court does not ultimately issue an executive judgment, but reports to the House of Commons.  As an election petition must, in terms of the 1983 Act, be presented to the Court of Session, it is necessary to have some rules of court governing procedure (chapter 69):  but those rules do not, in our opinion, result in the imposition of the strict rules of relevancy and specification applicable to ordinary actions raised in the Court of Session or the sheriff court.  Thus we do not accept that strict rules of pleading … must be applied to election petitions.”

 

In the present case, the petitioners aver that a Cabinet Office inquiry was ordered on 4 April 2015.  The petitioners also aver that the inquiry published its findings on 22 May 2015, and the findings are quoted in paragraph 7 of the petition.  There is a further reference to the inquiry in paragraph 9.  In our opinion, those averments are sufficient in terms of Rules of Court 69.13 and 69.14 in election court proceedings such as these for an exploration in evidence of the first respondent’s role in and response to the inquiry.  On any view, the evidence was relevant to the second question which we had to address, as it was of assistance in assessing the first respondent’s purpose in making the false statement.

[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.

 

Conclusion

[71]      For the reasons given above, we refuse the prayer of the petition.  We give our determination in terms of section 144 and section 158 of the Representation of the People Act 1983 as follows:

  1. the first respondent has not been proved to have committed an illegal practice in terms of section 106 of that Act;
  2. the first respondent was duly elected;
  3. the first respondent’s election was not void.