PETITION OF TIMOTHY MORRISON AND OTHERS AGAINST ALISTAIR CARMICHAEL MP AND ANOTHER

ELECTION COURT

[2015] ECIH 71

P558/15

Lady Paton

Lord Matthews

OPINION OF THE COURT

delivered by LADY PATON

in the petition of

TIMOTHY DENIS MORRISON AND OTHERS

Petitioners;

against

ALISTAIR CARMICHAEL MP

First Respondent;

and

ALISTAIR BUCHAN

Second Respondent:

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

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

Second Respondent: No appearance by counsel but attendance in court by Harper Macleod LLP

29 September 2015

[1] At this stage of proceedings, we give an opinion (rather than a report to the House of Commons in terms of sections 144 and 158 of the Representation of the People Act 1983) as, for the reasons set out below, we require to hear evidence.

Background

[2] On 7 May 2015 a general election took place in the United Kingdom. In the constituency of Orkney and Shetland, 9,407 constituents voted for the Liberal Democrat candidate (the first respondent). 8,590 constituents voted for the Scottish National Party candidate. Thus the Liberal Democrat majority was 817, whereas in 2010 their majority had been 9,928.

[3] The petitioners are constituents of Orkney and Shetland. In this petition to the election court, they aver that the first respondent was guilty of an illegal practice in terms of section 106(1) of the Representation of the People Act 1983, and accordingly that he “was not duly elected or returned, and that the election was void”.

[4] Statements 4 to 9 of the petition (with statement 5 as adjusted on behalf of the first respondent) are in the following terms:

“4. That on 3 April 2015, a leaked Scotland Office memorandum (the ‘Memorandum’) formed the basis of a story in the Daily Telegraph with the headline: “Nicola Sturgeon secretly backs David Cameron”. The article reported that, according to an official account (a reference to the Memorandum), Ms Sturgeon had told the French Ambassador in February that she would prefer that ‘David Cameron remain’ in Downing Street. The article stated in terms that the disclosure undermined public claims made by Ms Sturgeon that week that she wanted to build a “progressive” alliance to keep the Conservatives out of office; and appeared to confirm growing speculation in Scotland that the SNP would privately favour another Conservative-led Westminster government ‘which it could campaign against in a bid to stoke up anti-English sentiment’ and make an “out” (of the UK) vote more likely in another independence referendum. No source for the leak of the Memorandum was given.

5. That on 5 April 2015, the Cabinet Secretary, Sir Jeremy Heywood, ordered a Cabinet Office-led inquiry into the circumstances of how the Memorandum came to be written and how it got into the public domain. The same day, the First Respondent was interviewed by Channel 4 news. The following exchange was broadcast:

‘Reporter for Channel 4 News: surely it’s a fair question to ask what you were, what you were aware of?

Alistair Carmichael MP: Yes. And listen that is why I am telling you, I will cooperate 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’ve told you, the first I became aware of this, and this is already on public record, was when 1 received a phone call on Friday afternoon from a journalist making me aware of it.

Reporter: Do you accept the buck stops with you when it comes to the Scotland Office?

Carmichael: Well eh of course as Secretary of State for Scotland I am responsible for the Scotland Office but you know you seem to be making eh some fairly eh substantial presumptions about eh the role of the Scotland Office in this. That's why we are having a proper inquiry conducted by the Cabinet Office.

Reporter: Do you think it's embarrassing for you and the Scotland Office?

Carmichael: No, I mean this is the middle of an election campaign - these things happen. Um eh I understand that the memo in question did actually come from the Scotland Office but these things are circulated within government.

Reporter: If it comes - if it turns out that a civil servant embellished and leaked a, a memo to the press what do you think should happen to that person?

Carmichael: That is why we have the inquiry being conducted by Sir Jeremy Heywood. You're now asking me to pass sentence on people for whom we don't have proper charges and we've not heard any evidence. That's why it's important that we allow the Cabinet Secretary to get on and to do his job.

Reporter: People are calling it a smear, do you think it feels like a smear?

Carmichael: No. Look, I mean these things happen from time to time, this is not the first occasion that there has been eh a leak of a government document, that's why we have a well-worn system which sets up the inquiry of the sort that Sir Jeremy Heywood is doing and that's what it's doing and that what it’s eh now got to be allowed to get on and do.’

6. That on or about 8 April 2015, a spokesman for the Liberal Democratic Party, speaking on behalf of that party and the First Respondent, stated to the press that "The leak was not from a Liberal Democrat and that is the end of the matter". The leader of that party subsequently told the press, in stating the First Respondent's position, that ‘Alistair Carmichael's been absolutely clear — of course he didn't leak them’.

7 That on 22 May 2015, the Cabinet Office issued a press release headed “Scotland Office memorandum leak: Cabinet Office inquiry statement”. The press release states as follows under the heading ‘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 [the First Respondent].

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 [Nicola Sturgeon]

Alistair Carmichael [the First Respondent] 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 [the First Respondent] 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 [the First Respondent] and Mr Roddin have also accepted the conclusions.

Neither Mr Carmichael [the First Respondent] nor Mr Roddin will take their severance pay."

8. That section 106(1) of the Representation of the People Act 1983 provides as follows:

‘A person who, or any director of any body or association corporate which —

(a) before or during an election,

(b) 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, the statement to be true.’

9. That the First Respondent's statement as to when he first became aware of the leak of the Memorandum took place before the election which is the subject of this petition. It was untruthful, as he was well aware. It was a deliberate attempt to conceal the truth, namely that he was not only aware that the leak of the Memorandum had come from the [Scotland] Office but that he had been directly involved in its release. The First Respondent has accepted responsibility for what was found by the Cabinet Secretary to have occurred. He has forgone his severance pay on having vacated the office of Secretary of State. The fact that the First Respondent saw fit to tell untruths in this regard, and to deliberately conceal his role in the leak of the Memorandum, relates directly to his personal character. It calls into question his integrity as an individual. It thus calls into question his suitability to represent the Constituency at Westminster. Notwithstanding that the First Respondent now seeks to suggest he did not have sight of the terms of the Memorandum before its release, it may reasonably be inferred from the transcript of the interview and the findings of the Cabinet Office inquiry that the First Respondent did not tell the truth when he was interviewed by Channel 4 News on 5 April 2015. That interview was broadcast to an immediate audience of around 650,000 people, including voters in the First Respondent's Constituency such as the Petitioners. Against a background of polling which indicated the SNP would gain the majority of votes in each of the 59 constituencies in Scotland, with the result that no Liberal Democrat or any other political party would obtain a Scottish seat at Westminster, it is believed and averred that the statement by the First Respondent referred to was for the purpose of affecting the return of the candidates at the election, whether that election is taken to be to the Constituency or the general election as a whole. The First Respondent, having before an election and for the purpose of affecting the return of a candidate at the election, made an admittedly false statement of fact in relation to his personal character as a candidate, is thereby guilty of an illegal practice contrary to section 106 of the Representation of People Act 1983, on which basis the prayer of the petition ought to be granted and the election of 7 May 2015 for the Constituency declared void.”

The issues debated on 7-8 September 2015

[5] Counsel agreed that a preliminary legal debate was required to resolve the following questions:

1. Is section 106 of the 1983 Act engaged by “self-talking”, as opposed to attacking another?

2. If question 1 is answered in the affirmative, do the words complained of in the petition amount to “false statements of fact … in relation to the personal character or conduct” of Mr Carmichael, within the meaning of section 106?

3. If questions 1 and 2 are answered in the affirmative, do the averments in the petition disclose a relevant offer to prove that the words complained of were uttered “for the purpose of affecting the return of any candidate at the election”?

These questions were accordingly debated on 7-8 September 2015.

Section 106

[6] Section 106 of the 1983 Act provides:

“False statements as to candidates

(1) A person who … -

(a) before or during an election,

(b) 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 …”

Submissions for the first respondent

[7] Senior counsel adopted the note of argument for the first respondent, a copy of which can be accessed on http://www.scotcourts.gov.uk/docs/default-source/election-court-petition/election-court-petition---morrison-amp-ors-v-carmichael-amp-anr---respondent-note-of-argument.pdf?sfvrsn=2. He made further oral submissions, inviting the court to answer the three issues in the negative, and to dismiss the petition (the court having the power to do so in terms of section 123(2) of the 1983 Act).

[8] What follows is an abbreviated outline of the submissions, which may be supplemented by the note of argument.

[9] Introduction: (i) Section 106 had serious consequences, and potentially penal consequences (if the procurator fiscal chose to prosecute: section 169 of the 1983 Act). Section 106 should therefore be strictly construed (Bennion, Statutory Interpretation (6th ed) sections 271-282; Grieve v Douglas-Home, 1965 SC 315 at page 335; R (Woolas) v Parliamentary Election Court [2012] QB 1, paragraphs 82-86, 94-95), particularly as there was no statutory requirement that the statement should have any causative effect. (ii) Where Parliament had legislated against a background of judicial pronouncements, Parliament may be taken to have affirmed those pronouncements (Barras v Aberdeen Steam Trawling & Fishing Co Ltd, 1933 SC (HL) 21; Woolas, paragraph 86). (iii) Where Parliament had legislated against a background of a known practice, unless Parliament had expressly outlawed that practice, it must not be assumed to have done so (Grieve v Douglas-Home, 1965 SC 315, pages 335-336).

[10] The first issue: Parliament had not addressed self-talking in section 106, whereas it had in other sections (for example, section 65A). The decided cases assumed that two persons were required, and that the aim was to prevent someone from disparaging another (Cockermouth Division of the County of Cumberland (1901) 5 O’Malley & Hardcastle 155, page 159; Attercliffe Division of the City of Sheffield (1906) 5 O’Malley & Hardcastle 218, page 221). The promoter of earlier legislation, namely the Corrupt and Illegal Practices Prevention Act (1883) Amendment Bill, had made a clear statement of the bill’s purpose (HC debate 1 May 1895 vol 33 cc217-63). Moreover section 106(3) provided the remedy of interdict, which was relevant to one person making a disparaging statement against another. Even if it were thought that section 106 might conceivably extend to self-talking, a narrower construction should be preferred (see (i) in paragraph [9] above).

[11] The second issue: The words “in relation to” required something more than a loose or consequential connection (Martin v Most, 2010 SC (UKSC) 10, paragraph 49; Fairbairn v Scottish National Party, 1979 SC 393, pages 396-397; R (Woolas) v Parliamentary Election Court [2012] QB 1, paragraphs 70 et seq.) What Mr Carmichael said was clearly related to public and political matters, not personal character or conduct. He was being asked questions in his capacity as Secretary of State for Scotland. He had been approached as it was understood that the leak came from the Scotland Office. A cabinet office inquiry was in train. One could not find a more public, political context. If the petitioners’ argument was correct, the statutory requirement that the statement be “in relation to the candidate’s personal character or conduct” became devoid of content, as once Mr Carmichael had spoken falsely, his private character was engaged. In the 120 years prior to this case, the petitioners’ approach had never been suggested, far less sustained. The cut and thrust of politics had to be allowed some vigour. If there was any doubt about the categorisation of the statement as “personal” or “political”, the narrower construction should be adopted (see (i) in paragraph [9] above).

[12] The third issue: In statement 9 of the petition, the formulation “believed and averred” was used. That was insufficient to found a relevant case (Brown v Redpath Brown & Co Ltd, 1963 SLT 219 at page 222). In any event, the petitioners averred an alternative:

“it is believed and averred that the statement by the First Respondent referred to was for the purpose of affecting the return of the candidates at the election, whether that election is taken to be the Constituency or the general election as a whole [emphasis added]”.

But the only relevant election was the election for the constituency of Orkney and Shetland, not the general election as a whole (The Interpretation Act 1978; Grieve v Douglas-Home cit sup at page 329). The test of the “weaker alternative” applied (Macphail, Sheriff Court Practice (3rd ed) paragraph 9.36). Accordingly the petition was irrelevant.

Submissions for the petitioners

[13] Senior counsel adopted the notes of argument for the petitioners, copies of which can be accessed on http://www.scotcourts.gov.uk/docs/default-source/election-court-petition/election-court-petition---morrison-amp-ors-v-carmichael-amp-anr---petitioners-note-of-argument.pdf?sfvrsn=2; http://www.scotcourts.gov.uk/docs/default-source/election-court-petition/election-court-petition---morrison-amp-ors-v-carmichael-amp-anr---petitioners-note-of-argument-2.pdf?sfvrsn=2. He made further oral submissions. The three issues should be answered in the affirmative. The court should make a determination in terms of sections 144 and 158 of the 1983 Act that the first respondent was guilty of an illegal practice, namely that during the election, and for the purpose of affecting his return at the election, he made a false statement of fact in relation to his own personal character or conduct, without reasonable grounds for believing that the statement was true, for the purpose of affecting the return of candidates (including himself) at the election. Alternatively, the court should answer the first and second issues in the affirmative, and hear evidence on the third issue (although the court might also wish to hear evidence on the second issue).

[14] What follows is an abbreviated outline of the submissions, which may be supplemented by the notes of argument.

[15] The nature of the election court: The election court was a specially-constituted UK court, akin to a committee of Parliament. It was not part of the court hierarchy. It did not issue an operative judgment, but rather reported to the House of Commons. Ordinary court procedure did not therefore apply. The petitioners were entitled to rely on both their petition (rule 69.14(1)(c)) and their statement of the matters on which they intended to lead evidence (rule 69.13(1)). Those documents gave ample fair notice.

[16] The first issue: A “person” meant a person. “Any candidate” meant any candidate. There were few decided cases simply because the issues in this case had not previously been argued before a court. Such authority as there was included Banks v Lewis, 8 June 1983 (Court of Appeal 1983 WL 880567) where the bench assumed that self-talking was struck at in principle, and that section 106 could apply. In Erlam v Rahman [2015] EWHC 1215 (QB), Commissioner Mawrey QC noted in paragraph 104 that the wording of section 106(1)(b) was “deliberately wide”. There was no reason or point in restricting section 106 as suggested by the first respondent. On a proper construction, the statement could be laudatory, defamatory, or both. The report of the Standing Committee on the Corrupt and Illegal Practices Prevention Act (1883) Amendment Bill, 28 May 1895, (282) made it clear that a suggested amendment inserting the words “and injurious” after the word “false” was not adopted. In any event, in controversial matters, it might be difficult to ascertain whether a false statement relating to those matters would properly be regarded as laudatory or disparaging in a particular constituency.

[17] The second issue: Some false statements made during an election would not trigger the sanctions of section 106; but some would. For example, during election campaigning, to say of a candidate that he was “homophobic” would be a clear example of a false statement in relation to his personal character or conduct, albeit made in a political context. Woolas covered a range of circumstances, and demonstrated that a statement concerning public matters or politics might develop into a statement about personal character or conduct. Mr Carmichael’s statement was not a statement of political position: it was an untruth, involving personal character or conduct (cf North Louth (1911) 6 O’Malley & Hardcastle 103, at page 158). In making the answer he did, Mr Carmichael put his own reputation on the line. He put forward his own personal trustworthiness and honesty, and founded on them. Nothing in politics called upon him to lie about his awareness of the leak. He was not adopting a political position, or carrying out a political act.

[18] The third issue: The traditional rules of Scottish court pleadings did not apply to the election court. While it was conceded that the reference to the general election at the end of statement 9 was a mistake (which had occurred as the petition was prepared in haste) the petitioners were otherwise entitled to lead evidence on the basis of the petition and the note of argument.

Discussion

The first issue

1. Is section 106 of the 1983 Act engaged by “self-talking”, as opposed to attacking another?

[19] The first issue involves two questions. (i) Is section 106 engaged when a candidate makes a false statement of fact about himself; and (ii) Is section 106 engaged only when any false statement of fact made about a candidate is a hostile or attacking or disparaging or vilifying type of statement, rather than a laudatory or praising statement. Each of these questions depends upon a proper construction of the statute.

[20] (i) Is section 106 engaged when a candidate makes a statement about himself? In our opinion, the language used in section 106 is wide enough to encompass a statement made by a candidate about himself.

[21] The section applies to “a person” who makes a statement. There is no restrictive definition in the 1983 Act of the word “person”. The Oxford English Dictionary and the Chambers Dictionary define person as “individual human being”. There is nothing in the Act to suggest that the qualification of an individual as a “candidate” has the effect, within the statutory scheme, of disqualifying that individual as a “person”. Accordingly we start out from the premise that section 106 can apply to any individual human being, without qualification.

[22] We then note that section 106 refers to a person “who … (a) before or during an election, (b) 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”. Thus the section refers to “the return of any candidate at the election” (emphasis added). Accordingly in our opinion the section applies to each and every candidate in the election. The candidates in the election in question are listed in paragraph 2 of the petition as follows: (1) the first respondent Alistair Carmichael, for the Scottish Liberal Democrats; (2) Danus Skene, Scottish National Party; (3) Donald Cameron, Scottish Conservative and Unionist Party; (4) Gerry McCarvey, Scottish Labour Party; and (5) Robert Watt Smith, UK Independence Party. Thus we consider that section 106 applied in respect of each of those candidates, each being “any candidate at the election”. Thus if any person (ie individual human being), satisfying the conditions set out in section 106(a) and (b) were to make a false statement of fact in relation to the personal character or conduct of any of the candidates listed in (1) to (5) above, then section 106 would be engaged. On a proper construction of section 106 we see no reason why the “person” making the false statement about one of the candidates cannot be that candidate himself.

[23] We find support for that primary conclusion from the fact that circumstances can be envisaged where a false statement of fact made by a candidate in relation to his own personal character or conduct might well affect his own return at the election. It is unnecessary to give examples, although senior counsel in oral argument gave several illustrations. Such a false statement might affect the candidate’s return in a positive or a negative manner: either, in our view, would qualify as “affecting the return of any candidate at the election” (section 106(1)(b)). If it were to be assumed that a candidate would be more likely to make a false statement for the purpose of placing his own personal character or conduct in a positive light (ie such that he became more attractive to the electorate), then in such circumstances in view of the conclusion we have reached in relation to laudatory false statements (see paragraphs [24] to [28] below) we consider a fortiori that a false statement by a candidate about his own personal character or conduct made before or during an election for the purpose of affecting his return at the election has the effect of engaging section 106.

[24] (ii) Is section 106 engaged only when any false statement of fact made about a candidate is a hostile or attacking or disparaging or vilifying type of statement, rather than a laudatory or praising or positive statement? As with the first question concerning section 106 (see paragraphs [20] to [23] above), our initial approach is to look at what the statute actually says. The statute refers to “any false statement of fact in relation to the candidate’s personal character or conduct”, made “before or during an election”, “for the purpose of affecting the return” of the candidate at the election. We see nothing in the statutory language to restrict the meaning of those words to solely hostile, attacking, vilifying types of statements. We do not consider that the words or phrases used are ambiguous: they are in our view clear and include any type of false statement of fact made in the circumstances specified, whether the statement could be regarded as complimentary or disparaging. The key issues, in our opinion, are the fact that the statement of fact in relation to the candidate’s personal character or conduct is false; that the statement is made before or during an election; and the statement is made “for the purpose of affecting the return” of the candidate. We conclude that the section may apply whether the purpose is to affect the return of the candidate in a positive way, or in a negative way, provided that the purpose is to “affect” the return.

[25] We find support for that conclusion in the following.

[26] First, as Commissioner Mawrey QC observed in paragraph 104 of Erlam v Rahman [2015] EWHC 1215 (QB):

“… the wording of s 106(1)(b) is deliberately wide: ‘for the purpose of affecting the return of any candidate at the election’. Although s 106 usually refers to statements made to the detriment of a candidate, the wording is wide enough to encompass a false statement made in favour of a candidate (for example, that he was a substantial philanthropist or had been awarded a medal for bravery) which might affect his electoral chances, albeit positively rather than negatively.”

We agree.

[27] Secondly, as was pointed out during the debate, what may seem vilification to one part of the electorate, may seem positive and laudatory to another part of the electorate. Examples given in relation to past times included poaching salmon. Current examples might include support (or lack of support) for certain stances in controversial issues such as abortion, assisted suicide, and immigration. Accordingly it is not clear where the line would be drawn if the section were to be construed as suggested by the first respondent.

[28] Thirdly, esto there is any need to consult travaux préparatoires (and our primary position is that no such consultation is necessary as there is no ambiguity about the statutory language: see paragraph [24] above), the petitioners’ counsel’s researches provided the court with the standing committee’s rejection of the proposed amendment which would have inserted the words “and injurious” after the word “false” (see paragraph [16] above). We accept the submissions by senior counsel for the petitioners that, although the promoter of the bill might have wished the statutory provision to be restricted to vilification, that was not in fact what Parliament enacted.

[29] Conclusion in relation to the first issue: For the reasons given above, even bearing in mind the serious consequences of an offence in terms of section 106, it is our opinion that (i) section 106 is engaged when a candidate is talking about himself; and (ii) section 106 is engaged if the statement is made for the purpose of “affecting” the return of that candidate, whether the statement can be regarded as attacking and vilifying or as praising and laudatory. We see no reason to adopt a more narrow or restrictive construction of the clear language of the 1983 Act. As for the lack of precedent, it is our view that the issues which arise in this case have simply not arisen in previous cases. We therefore answer the first question in the affirmative.

The second and third issues

2. If question 1 is answered in the affirmative, do the words complained of in the petition amount to “false statements of fact … in relation to the personal character or conduct” of Mr Carmichael, within the meaning of section 106?

3. If questions 1 and 2 are answered in the affirmative, do the averments in the petition disclose a relevant offer to prove that the words complained of were uttered for “the purpose of affecting the return of any candidate at the election”?

[30] As Lord Ross explained in Fairbairn v Scottish National Party, 1979 SC 393 at page 396:

“… a distinction falls to be drawn between a false statement in relation to the personal character or conduct of the candidate on the one hand and a false statement in relation to the public or official character of the candidate on the other hand. I accept … that every false statement in relation to the public character of a candidate may in one sense reflect upon the candidate’s personal character, but before there can be an illegal practice in terms of the statute, the false statement of fact must be directly related to the personal character or conduct of the candidate …”

[31] A false statement of fact “in relation to the candidate’s personal character or conduct” may arise out of or emanate from what appears prima facie to be a public or political statement, or event, or circumstances. Thus in R (Woolas) v Parliamentary Election Court [2012] QB 1, the divisional court, having observed that a court hearing a claim must decide whether a 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 … [paragraph 111]”

then gave an example of a statement of fact “in relation to the candidate’s personal character or conduct” which had nevertheless arisen out of or in the context of what was, prima facie, a public or political matter: for in paragraph 121, they reasoned as follows:

“… when it was asserted in ‘The Examiner’ that those whose votes were being wooed by Mr Watkins [an unsuccessful candidate] were those who were not simply extremists but those who advocated extreme violence, in particular against Mr Woolas [the successful candidate] it plainly suggested, as the election court found, that Mr Watkins was willing to condone threats of violence in pursuit of political advantage. It was not then a statement about the type of support he was wooing, but a statement that he was willing to condone threats of violence. That further statement took the statement from being a statement as to Mr Watkins’s political position to being a statement about his personal character – that he condoned criminal conduct. It was not simply an implied statement in relation to a political matter, but a statement that goes to his personal character as a man who condones extreme violence …”

The divisional court therefore agreed with the election court that the circumstances described in paragraph 121 amounted to a statement of fact “in relation to … the personal character or conduct” of a candidate, Mr Watkins. They further agreed that Mr Woolas had properly been found guilty of an illegal practice and his election correctly determined to be void. The court referred to Fairbairn with approval, and also cited, inter alia, North Louth (1911) 6 O’Malley & Hardcastle 103 where the court had, at page 158, described a statement about a candidate as affecting “his veracity and honour even more than his political character”.

[32] We do not therefore accept the submission by senior counsel for the first respondent that the context of the statement under challenge (namely the fact that he was being asked questions in his capacity as Secretary of State for Scotland, it being understood that the leak had come from the Scotland Office) automatically has the result that the statement should be categorised as one given “in relation to the public or official character of the candidate” (Fairbairn, Lord Ross at page 396). On the contrary, 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. In other words, being involved in a political matter will not necessarily provide protection from the effect of section 106. 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 do not accept, therefore, that it is sufficient simply to provide the court with a written narration of events and to invite the court to reach a view on the basis of the statute and the authorities (such as the guidance given in respect of the words “in relation to” in paragraph 49 of Martin v Most, cit sup ). On the contrary, 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.

[33] As we wish to hear evidence, the question of the sufficiency of the pleadings must be addressed.

[34] In our opinion, 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, such as the “weaker alternative” rule, or the law relating to the use of “believed and averred”, must be applied to election petitions.

[35] Rule 69.13 provides:

“(1) … any party shall, not less than 6 days before the date of the trial, lodge in process a statement of the matters on which he intends to lead evidence …”

Rule 69.14 provides:

“(1) No evidence shall be led at the trial of an election petition other than matters contained in – …

(b) the statement lodged under rule 69.13 (statement of evidence to be led), or

(c) matters which have been sufficiently set out in the petition,

except with the leave of the election court or one of the judges on the rota for the trial of election petitions, on such conditions as to postponement of the trial, payment of expenses or otherwise, as may be ordered.”

[36] Thus the petitioners are entitled to rely upon both their petition and their note of argument (paragraph 1 of which identifies the note as being “also the statement required under rule of court 69.13(1) of the matters on which the petitioners intend to lead evidence”). Those two documents, in our opinion, set out sufficiently clearly an offer to prove facts which may engage the operation of section 106. For example, the petitioners, in paragraphs 15 to 20 of their note of argument/statement of evidence to be led, set out material from which they invite the court to conclude that the only reasonable inference to be drawn is that the statement made by the first respondent was made for the purpose of affecting the return of candidates (including the first respondent himself) in the constituency of Orkney and Shetland.

[37] We accept that criticisms may be made of the petition and note of argument/statement of evidence to be led. For example, senior counsel for the petitioners acknowledged that the averment relating to the general election in statement 9 of the petition had no legal basis in section 106 and should properly be deleted. However in the light of our opinion in paragraphs [34] to [36] above, we consider that this criticism may be dealt with by this court noting counsel’s concession and ruling that no evidence will be permitted in support of that particular averment.

[38] We reserve our opinion on the question of the standard of proof.

Decision

[39] We wish to hear evidence in relation to issues 2 and 3 before giving a determination and reporting to the House of Commons in terms of sections 144 and 158 of the 1983 Act. The next part of the trial will therefore take the form of a by order hearing to discuss further procedure, including the question of the standard of proof.