Wednesday, 14 October 2009

Simon wins one

Simon Singh was wearing his lucky tie today. It worked.

News broke at around 10.30 this morning that after a short hearing the Court of Appeal had granted the science writer leave to appeal. He didn't just win on the narrow matter of Mr Justice Eady's definition of the word "bogus", either, but also on the important question of fair comment. So far, so good. It marks a dramatic, and perhaps surprising, change since the same court (albeit with a different presiding judge) rejected his written submission in forthright terms. On that occasion, back in July, Lord Justice Keene wrote that


the judge seems to me to have been right in both his decisions. His approach as a matter of principle to the two questions was in accordance with authority, and the absence of any express reference to certain matters of context does not mean that he did not take them into account. Just because it may be difficult to prove a negative such as there not being a “jot of evidence” for a proposition does not mean that it is not an assertion of fact. All in all, I cannot see any realistic prospect of a successful appeal.

Today, however, Lord Justice Laws (great name for a judge, though it's a shame he never reached the House of Lords: Lord Laws the Law Lord would have been even better than Lord Chief Justice Judge) took a radically different line. So different, in fact, that it's hard to believe they're interpreting the same law.

I've not seen the full details, but Padraig Reidy of Index on Censorship was first out of the blocks. According to his report,

In a scathing rebuttal of Mr Justice Eady’s previous judgement in the case, Lord Justice Laws said Eady had risked swinging the balance of rights too far in favour of the right to reputation and against the right to free expression. Mr Justice Laws described Eady’s judgement, centred on Singh’s use of the word “bogus” in an article published by the Guardian newspaper, as “legally erroneous”.

Laws also pointed out that Eady’s judgement had conflated two issues — the meaning of the phrases complained of, and the issue of whether the article was presented as fact or fair comment.

Laws said there was “no question” of the “good faith” of Singh in writing the article, as the matter was “clearly in the public interest”.

Lucky tie or not, Simon is at this stage only cautiously optimistic, telling Reidy that there was still "a long battle ahead". It is, after all, only a preliminary hearing: the British Chiropractic Association, who are probably by now looking for a way out, didn't even turn up. He appears in this YouTube video looking surprisingly downbeat, pointing out that the full appeal hearing won't be for another six months and the trial itself may be a year off.



Nevertheless, if IoC's report (along with various Twitterings) accurately reflects Laws's assessment, then things are suddenly looking very good indeed for Simon Singh - and for the wider cause of freedom of comment in matters scientific, whose standard-bearer he has become. Thus Singh's legal paladin Jack of Kent (not at all hyperbolic, merely enthusiastic) described the ruling as "the best possible result". Indeed, he informed the world via Twitter, the Court of Appeal also held Eady's original decision had been contrary to Article 10 of the European Human Rights Convention.

The court, in short, has accepted the following things: that the article was in the public interest, that Eady's definition violated Simon's right to free expression under the ECHR, that Eady's assessment that allegations in the article were fact rather than comment is also open to appeal, and that Eady's has got the law completely wrong. This isn't the first time that the judge has been slapped down by the Court of Appeal. In the Richard Desmond libel case, for example, Eady was told that one of his decision was so wrong it would have produced a miscarriage of justice, while in another case Keene LJ opined that not overturning an Eady decision would amount to "an abdication of judicial responsibility". This is getting to be a habit. Even so, the contrast between this judgement and July's is so profound as to suggest that something close to a revolution in legal thinking has occurred.

I think the tide is beginning to turn; indeed, it may have turned already. For one thing, the question of the heavy handed use of both libel law and prior restraint to curtail legitimate public debate is at last gaining political traction. In the wake of yesterday's climbdown by Carter-Ruck in the Trafigura case, Peter Bottomley today asked a question in Parliament about secret injunctions. In response, Gordon Brown (who appeared to be expecting the question) said that there was a need to "clear up an unfortunate area of the law". A big hint that legislation may be on the cards. Meanwhile the Sense about Science campaign to reform libel laws continues to win support. I'm going to stick my neck out here: I would be surprised if in a year's time Simon Singh still faces the prospect of having to defend his article against a claim of libel. The BCA will either be forced to drop their action, or it will be struck out.