UPDATE: The Orkney Four issue statement after self-confessed liar Carmichael escapes justice

Lady Paton and Lord Matthews ruled that it had not been proved “beyond reasonable doubt” that he had committed an “illegal practice”. This means that the evidence they presented did not reach the criminal level of proof required for the case to succeed.

The judges did not dispute that Carmichael had lied but they had “reasonable doubt” about whether the lie was personal rather than political.

They found: “On the first issue, the court observed that the first respondent [Mr Carmichael] had told a ‘blatant lie’ when, in the course of a Channel 4 interview on Sunday 5 April 2015, he claimed that he had only become aware when contacted by a journalist of a memo leaked to the press by his special adviser Euan Roddin, which stated that First Minister and leader of the SNP Nicola Sturgeon had told the French ambassador that ‘she’d rather see David Cameron remain as PM’.”

Lady Paton said: “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.” 

However, on the matter of whether the lie could properly be characterised as a false statement of fact “in relation to [his] personal character or conduct”, the judges were left with a reasonable doubt. 

The case was brought by four Orkney residents under Section 106 of the Representation of the People Act 1983.

Tim Morrison, Cary Welling, Phaemie Matheson and Fiona Grahame will give their response to the ruling at a news conference in Kirkwall later this afternoon.

We reproduce their statement in full:

Initial statement from the 4 Orkney petitioners.

The case has been lost on the slimmest of legal technicalities. It is more of a loss for Alistair Carmichael than a win. To appreciate the true tenor of the judgement the full transcript should be read.

The  petitioners have won 2 out of the 3 points. In the judges' words the following are the true reflection of the case.

We are disappointed but see the win as caveated by damning comments on Mr Carmichael’s behaviour by the judges.

Our bold type and highlights

For completeness the judges say:

‘(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. 

[63] As the first respondent said inevidence, 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 ouropinion, is that if the SNP became aless 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. 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.

For this reason also, we consider that the first respondent made the false statement “for the purpose of affecting [his] return … at the election”.

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. 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 IndependentHighlands 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.