Judges presiding over the historic legal case against Alistair Carmichael are seeking further evidence before reaching a decision over the isles MP’s future – which may result in Mr Carmichael giving evidence himself.
It follows a televised hearing in the rarely-held election court after claims the MP broke the law by lying about his involvement in a memo leak.
Four constituents argued the Westminster representative breached Section 106 of the Representation of the People Act (1983) when he denied knowledge of the memo, which claimed Nicola Sturgeon preferred to see the Tories in power following this year’s General Election.
He subsequently admitted he had authorised his special adviser, Euan Roddin, to release the document. But that admission only came after Mr Carmichael had been returned to his Orkney and Shetland seat, by a massively reduced majority.
During a preliminary legal debate earlier this month, lawyers acting for Mr Carmichael claimed the MP’s statement that he had no knowledge of the leak did not fall under the terms of the 1983 legislation. They argued the case being brought before the election court was “irrelevant” and “bound to fail”.
It was argued that Mr Carmichael could not have breached the legislation because he was talking about himself when he claimed he had no knowledge of the leak.
However, Lady Paton and Lord Matthews have ruled the act does apply in Mr Carmichael’s case.
They have ruled the legislative provision which makes it an “illegal practice” to make or publish false statements about any candidate during an election campaign can apply to “self-talking” as well as attacking another candidate.
But they wish to hear evidence in relation to two remaining issues before giving a determination.
Delivering the opinion of the court, Lady Paton said: “Even bearing in mind the serious consequences of an offence in terms of Section 106, it is our opinion that… Section 106 is engaged when a candidate is talking about himself; and… 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.”
However, the judges said they wish to hear further evidence.
Lady Paton added: “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… 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.”
The case, brought by Orkney constituents Tim Morrison, Fiona Grahame, Carolyn Welling and Euphemie Matheson, has been made possible by a crowd funding page which raised £89,000. A similar page in support of Mr Carmichael, organised by Lib Dem activist Sheila Ritchie, has so far raised just over £7,000.
• See more in this week’s Shetland Times.