Carmichael is innocent. Aye. Right.

There has been a great deal of comment about the Carmichael judgement today. In particular I recommend

  1. Lallands Peat Worrier whose headline makes the important point “No vindication here. Only survival.” (http://lallandspeatworrier.blogspot.co.uk/2015/12/no-vindication-here-only-survival.html)
  2. Derek Bateman who points to the repellent conjunction of Carmichael getting off with Darling joining Morgan Stanley’s board, presumably at a nice high salary. As Derek puts it “Two spivs together ready to go to any length for personal advancement, both lacking the essential element for public office – decency” (http://derekbateman.co.uk/2015/12/09/men-of-honour/)

Starting off with Craig, he was taken aback by the statement Carmichael put out after the judgement was announced to the effect that

Although I was always confident of winning the last few months have been a difficult and stressful time for me and my family.

We have been enormously grateful for the tremendous levels of support received from local people, in both Orkney and Shetland, regardless of which political party they normally support…

This case was politically motivated. It was a deliberate attempt by nationalists to remove the last Scottish Liberal voice at Westminster, and is a mark of the unhealthy polarisation of Scottish politics since the referendum.”

Craig condemns this straightforwardly with the description of it as “extraordinary arrogance“, coordinated with similar statements by “Willie Rennie and “Bomber” Tim Farron“.

However, I would go further – it is further indication of a man who regards truth and falsehood as commodities to be manipulated to suit himself, his own interests, and the interests of his career development (such as it is now). That statement is nothing more than a succession of lies. Lies which no doubt will never be exposed by the msm

  1. He was always confident of winning. Really? As Lallands Peat Worrier puts it, “At the outset of the case, many scoffed that the action was doomed, a baseless, tissue-paper thin witch hunt that the courts would junk at the first available opportunity. Many of these prophets will feel vindicated in their cynicism today, but they are mistaken. Against all prophecies to the contrary, the petitioners scored point after legal point, persuading Lord Matthews and Lady Paton that this wasn’t a tenuous frolick – or a pop-eyed interpretation of the Representation of the People Act – but a serious, arguable challenge, well-founded in law.” It is I suppose possible that he was confident at the outset, but that must have disappeared soon after the start, like the proverbial snow off a dyke, as he realised he did have a case to answer after all.
  2. He has been enormously grateful for local support. Really? A crowd-funding appeal to pay his legal costs attempted to raise £50,000 but closed after raising less than 10% of that (http://www.thenational.scot/news/fundraising-bid-for-hero-mp-carmichael-ends-after-complaints.7544). Tonight the fund raised by the Orkney Four stands in excess of £184,000 (https://www.indiegogo.com/projects/the-people-versus-carmichael#/)
  3. The case as politically motivated and” a mark of the unhealthy polarisation of Scottish politics since the referendum.” First of all, not all of the “Orkney 4” who were the petitioners, as Danus Skene (the SNP candidate who just failed to unseat Carmichael in May) puts in the Shetland Times, “The Orcadian petitioners are four private citizens of differing political persuasions, and their initiative has no links to the SNP or, so far as I am aware, any other organisation“. However as Skene also notes in the same online comment, it was “political in that it is an attempt to hold a lying politician to account” (http://www.shetlandtimes.co.uk/2015/12/09/case-was-politically-motivated-says-carmichael). To the extent it is indicative of the political situation in Scotland, it is perhaps a positive indication that the electorate are no longer prepared to sit meekly by while their politicians lie (and let’s not forget this was admitted by Carmichael) to them and do nothing, even if it’s only to help fund the necessary legal action.

Of course Carmichael couldn’t leave it at that. In an interview with Norman Smith on the BBC, he added to the above with

  1. the bald claim that he has been cleared by the Court. He has not been. He was found to have lied, and to have lied at least in part to encourage his own election which, as the judgement said, had become a two-horse race. The case fell on whether he had lied about his personal character – even then the court was left with only “reasonable doubt”. Hardly a ringing endorsement.
  2. Did he have a case to answer, asks Norman Smith, who then lets him off with the rather lame response that he “had already apologised“? Rather like I shoot someone dead and then say sorry, so I shouldn’t have to appear in court. The judgement of the court was quite clear. Even now, after his reputation has been thoroughly trashed in the media and in an electoral court, he continues to tell lies. The fact is that he actually lost on two of the three points raised by the petitioners – he did lie and he did seek personal advantage from that lie. It fell only one point – whether it reflected his personal character, and it is to that we will now turn.

The Court found for the petitioners on whether Carmichael had lied, and lied to influence his election. In paragraph 61, the judgement says,

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.”

In other words, not only did he lie, he lied precisely to encourage his own election in Orkney & Shetland.

Moreover, they go on to describe his conduct during the Cabinet Office inquiry as “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.” (para 68). One example of this was his denial to the Cabinet Office questions “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). 

However perhaps the most damning comment comes much earlier – paragraph 8 in fact – where we find “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.” The first respondent is Alistair Carmichael, thus the only witness the court found shifty and unreliable was the former Secretary of State for Scotland.

So how did he get away with it?

It is at paragraphs 58 and 59 that Lady Paton and Lord Matthews address the part of their judgement which was fatal for the petitioners. These read as follows

“[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. ”

The key to this part of the judgement is “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“. So had Carmichael, in the course of that interview, not only denied knowing anything about the memo, and the leak, but protested that he would never ever involve himself in such skulduggery then we might have had a different outcome. One is almost reminded of the legendary Baxter Basics MP of Viz fame

Craig Murray is absolutely scathing about this part of the judgement – the reasoning is “pathetic” concluding “This is the judgement of a woman justifying a pre-determined stitch-up.”

However, is there not another issue here – namely should a politician – especially one in a senior position as Carmichael had been at the time – be expected to ever have to provide such assurances? Should we not simply be able to assume, as mere electors, that they would not only not involve themselves in skulduggery of this nature, but of any type? Is the pitch of the politician not essentially “you can trust me electorate. Honest!”

It might be argued, as Malcolm Bruce did in defence of Carmichael at the time that “”If you’re suggesting that every MP who has never quite told the truth – or indeed, told a brazen lie – including ministers, cabinet ministers and prime ministers, we’d clear out the House of Commons very fast, I would suggest,” (http://www.huffingtonpost.co.uk/2015/05/26/malcolm-bruce-alistair-carmichael_n_7440076.html) Of course that omits the fact that most of them, or most often, they don’t get caught. Part of Carmichael’s problem was that he was caught – something that Lady Paton and Lord Matthews in their judgement point out he went to some pains to avoid during the Cabinet Office Inquiry. In other words, it wasn’t just Channel 4 News that Carmichael lied to. It was also the Inquiry, and, reading between the lines of the judgement, perhaps his own Party Leader as well. Something of a pattern? No?

However, Paton and Matthews’ judgement argues that unless Carmichael had given assurances that he would not leak – something at one point in the process he said was “the sort of thing that happens” – then we have reason to believe that he might do just that – i.e. that we certainly cannot trust our politicians. But the fact he didn’t give those kind of commitments/ guarantees got him off in this case.

Let’s look at this another way. Carmichael has leaked the memo by giving his Special Advisor, Euan Roddin, permission to pass it on to the Telegraph. He is confronted by Channel 4 who ask him what he knows about the matter. Instead of simply saying that he knows nothing at all, and that the first he knew about was when he read about it in the papers, he adds that leaking a confidential memo is not something he would ever do (i.e. what he didn’t do, thus causing the petition to fail). Does this really say anything significantly different about his personal character than if he had – as he did – missed out the bit about not leaking? What is more important? Protesting that he would not leak? Or, at the very least, authorising the leak? For the Electoral Court, it seems clear that the former is more important in their interpretation of the Representation of the People Act. Yet what that means is that actually doing the act, has less importance than protesting that one would never do this, oh dear me, no. Is this really what Lady Paton and Lord Matthews meant?

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