LEGAL arguments have started in Edinburgh as four constituents of former Scottish Secretary Alistair Carmichael attempt to overturn his election win in Orkney and Shetland.

The only Liberal Democrat MP in Scotland was not in court for the hearing, which was raised under the Representation of the People Act, 1983.

The petitioners claim Carmichael misled the electorate over the leaking of an inaccurate memo that alleged Nicola Sturgeon wanted David Cameron to remain as Prime Minister.

The Act makes it a criminal offence to make a “false statement” about the character and conduct of an election candidate.

The memo, written by a civil servant, was said to be an account of a conversation between the First Minister and French ambassador Sylvie Bermann.

Roddy Dunlop QC, for Carmichael, yesterday asked Lady Paton and Lord Matthews to dismiss the case and claimed the petition was irrelevant and “bound to fail”.

He said: “He [Carmichael] disclaimed any prior knowledge of the leak and it’s accepted that that was not correct.”

The petitioners were, he added, arguing that what Carmichael said was a breach of Section 106 of the Act.

Dunlop said this forbade election candidates from making false statements about their rivals, but a false statement of fact had to be “directly related” to the personal character or conduct of a candidate.

“The subject of the statement must be a candidate at the election,” he said. “The statement must be made with the purpose of affecting the return of that candidate. The statement needs to be a statement of fact, it needs to be false and the statement must be in relation to the candidate’s personal character or conduct.”

Dunlop added that attacking the political position of a candidate did not necessarily attack their character, and that the petitioners’ case “[flew] in the face of the authorities” and was “wrong in law”. The false statement also had to refer to personal conduct, said Dunlop, adding that the Act did not apply to candidates speaking about themselves.

He said the consequences of the petitioners winning the case would be serious for Carmichael – it would impose criminality, the loss of a parliamentary seat and would disbar him from standing for election

He went on to say that the petitioners accepted they could not complain about the leak itself, as Sturgeon was not a candidate in the election.

The QC added that if the petitioners were right then the Election Court would get a lot busier, as all that would be required was a dispute during an election with one false answer.

If that were the case, he said, any prospective MP in the run-up to an election would have to be strapped to a lie detector and “administered with a truth serum”.

Jonathan Mitchell QC, representing the petitioners, said Carmichael did not dispute that he made certain statements of fact that were false.

However, he said the MP disputed that he was attempting to affect the return of a candidate, as the petitioners claim.

He pointed out that the petition should not be treated as a normal petition to the Court of Session, as the Election Court was a special type of hearing.

“It is well known that this is an area of the law which needs modernisation,” added.

The case is being heard at an Election Court sitting in the Court of Session – the first such court in Scotland for more than 50 years, and continues today.