How election courts work: The Alistair Carmichael case & other trials

A post Dr. Heather Green, Senior Lecturer.

Four voters from Orkney and Shetland raised a court challenge after May’s general election, claiming that their MP, Alistair Carmichael, had breached election law by falsely denying complicity in the leak of a memo that suggested Nicola Sturgeon was secretly hoping for a Conservative victory. I wrote on the Scottish Constitutional Futures Forum blog in May about the background and legal arguments. Last week the election court ruled that Carmichael had not committed the election offence of making a false statement about his personal character or conduct, because his denial (made to Channel 4 news) was of the straightforward ‘I knew nothing about it’ variety, and not of the ‘I am the sort of fine upstanding person who would never indulge in those sort of dirty tricks’ kind. In the words of Lady Paton, he told ‘a blatant but simple lie’, though stopped himself from adorning that with a potentially criminal and false comment about his moral goodness. Only by this small act of self-restraint was his defence established, and his Parliamentary seat saved. This was the first election court to sit in Scotland since 1964, when poet and defeated Communist candidate Hugh McDiarmid tried and failed to unseat the Tory PM Alec Douglas-Home by arguing that he had breached election campaign spending rules: Grieve v Douglas-Home 1965 SC 315.

I have written about the wider context of the Carmichael case in an article for Democratic Audit-Scotland. Anyone interested in issues about the costs of the case, Carmichael’s reaction to the ruling, and claims that the case was ‘politically motivated’ can read that here. In terms of legal doctrine, the case is important because it establishes that the offence of making false statements – in the Representation of the People Act 1983, s106 – applies to candidates talking themselves up (so-called laudatory self-talk) as well as to the more common allegation of maligning the character of an opponent. The latter type arose in Watkins v Woolas [2010] EWHC 2702 (QB), a rare example of an MP (and former Labour minister) losing his seat over false claims in his campaign leaflets that the Lib Dem candidate had been courting votes from Muslim extremists.

Election courts have exclusive jurisdiction to hear challenges to the outcomes of elections, which must be raised by a so-called election petition. Petitioners must be electors or defeated candidates. Election courts do not have a continuing existence, but are constituted afresh for each petition and cease to exist when the case is decided. Regular judges (two for challenges involving MPs; one for local election cases) are picked from a rota to sit; usually this is in the constituency in which the election is challenged. The Carmichael court, unusually, sat in Edinburgh rather than Lerwick or Kirkwall to avoid inconvenience for parties and witnesses.

Election courts hear claims that the election result in a constituency (or local authority ward) is unsafe because there was some form of wrongdoing, civil or criminal, in the course of the election. Administrative errors by polling staff – such as forgetting to count ballot papers – could be challenged. Another civil issue involves the alleged disqualification of candidates. This arose in the case of the late Tony Benn MP, who in the 1960s inherited a peerage that barred him from standing for the House of Commons. Despite this being well publicized, the electors picked him in a by-election. His win was then contested successfully in an election court by a losing candidate. Parliament subsequently passed the Peerage Act 1963 to allow reluctant Lords to disclaim peerages.

Election courts are unusual in terms of the procedure they employ. They have special investigative powers, using processes that are inquisitorial as well as adversarial. They have the power to order up ballot papers from secure storage and to scrutinize them to determine if votes were validly or fraudulently cast. In some respects election courts are like criminal courts: they hear allegations of election fraud, and use the criminal standard of proof to determine if the crimes were committed. In other respects they are like civil courts: the disputes are set up like private law contests between petitioner and respondent. A successful petitioner, like the one in the Tony Benn case, may secure a personal victory by being declared the election winner by the court. In that case it held that electors who cast ballots for Benn knowing him to be barred from sitting in the Commons could be deemed to have thrown away their votes. When those were discounted, the runner-up could be identified as the winner. More usually, the court will exercise its power to void the election if the petition succeeds. A person found to have committed election crimes is barred from standing in the by-election held to rerun the contest voided by the court; and loses voting and candidacy rights for a period of between 3 and 5 years, depending on the nature of the crime. Election courts cannot fine or imprison culprits: their judgments to do not amount to formal criminal convictions; separate prosecutions may be initiated following the court’s resolution of the petition.

There has been a marked increase in the number of election petitions in the last two decades, due mainly to the rise in fraud surrounding the increased use of postal voting. An infamous example happened in Birmingham in 2005, a local election case in which the judge remarked that the scale of the fraud ‘would disgrace a banana republic’. He uncovered a menu of 14 types of postal voting fraud conducted by the disgraced councillors, such as stealing postal voting papers protruding from letter boxes, and registering non-existent ‘ghost’ voters to cast postal votes in their names. This was done on an industrial scale, some of it in a disused warehouse where there was plenty space to doctor stolen and fraudulently acquired ballot papers. The same judge sat to hear a case in Tower Hamlets earlier this year, in which a locally elected mayor was found to have committed an old statutory offence of using ‘undue spiritual influence’ to persuade voters. This crime originates in 19th century instances of Irish bishops threatening the Catholic faithful with God’s displeasure should they fail to vote for the Church’s preferred candidate. The Tower Hamlets mayor, a prominent member of the local Bangladeshi community, had used a letter signed by 101 imams insisting it was every good Muslim’s duty to vote for him. This was an offence (among many others perpetrated at the polls); the mayor’s election was voided by the court and another was held to pick a new one.