Friday, 2 April 2010

Simon Singh Appeal Ruling: Right result, wrong reasons?

Lord Denning, a famously idiosyncratic Master of the Rolls of the last century, used to say that the only job of a judge was to do justice between the parties. His critics pointed out that such an admirable regard to the rights and wrongs of particular cases risked bringing uncertainty into the law; and that uncertainty might of itself lead to injustice. Better to apply the law - and if that produced what was generally considered to be a bad result then it was the job of Parliament, not unelected judges, to change it.

Simon Singh's courtroom battle with the British Chiropractic Association has run parallel with a broader campaign for legislative reform of libel. The problems thrown up in his case, it is felt, can only properly be fixed by Parliament. The way in which libel has developed - piecemeal, largely without statutory rules, and under the direction of specialist judges who themselves practised as defamation barristers - has produced a closed, anomalous area of the law, out of sorts with modern beliefs about freedom of expression and the public interest in robust debate on matters such as science. It privileges the "reputation" of an individual or (most controversially) a company above truth and openness. As a consequence, it chills debate.

But yesterday, a high-powered Court of Appeal struck at the root of all that. By finding for Simon Singh's right to "fair comment" - explicitly redefined as "honest opinion" - the judges may have succeeded in removing much of the "chill-factor" that has left scientists afraid to publish their findings and investigative reporters pulling their punches. This is of course excellent news for him and for the wider cause of free expression, even it does risk taking some of the urgency out of the case for libel reform - in particular, the outrageously high costs that face an unsuccessful defendant who cannot discharge the burden of proof. Indeed, it risks strengthening the hand of the newly-formed "Lawyers for Media Standards", a group which includes the BCA's solicitors Collyer Bristow, in their campaign to retain the status quo. They may now be able to argue that the idea that libel law stifles scientific debate was a myth. It wasn't a legal problem, it was an Eady problem, and the Court of Appeal has now put Eady back in his box.

We shall see. It goes without saying that I'm delighted Simon Singh won. Reading yesterday's judgement, though, I felt a growing sense of queasiness - as though, however welcome the result, there was something not quite right about it, something forced, something intellectually rather sloppy. It was, in parts, over-written, with irrelevant quotes from Milton and references to Orwell's Ministry of Truth. It was severely deficient in analysis of case-law - the leading authority quoted was American (Judge Easterbrook) despite the historic differences between English and US libel law. It was superficial and perhaps arbitrary. This may, it has been pointed out to me, have something to do with the fact that it was a collaborative effort rather than the product of a single legal mind.

In one telling passage, the joint judgement read as follows:


11 It is now nearly two years since the publication of the offending article. It seems unlikely that anyone would dare repeat the opinions expressed by Dr Singh for fear of a writ. Accordingly this litigation has almost certainly had a chilling effect on public debate which might otherwise have assisted potential patients to make informed choices about the possible use of chiropractic. If so, quite apart from any public interest in issues of legal principle which arise in the present proceedings, the questions raised by Dr Singh, which have a direct resonance for patients, are unresolved. This would be a surprising consequence of laws designed to protect reputation.

12 By proceeding against Dr Singh, and not the Guardian, and by rejecting the offer made by the Guardian to publish an appropriate article refuting Dr Singh's contentions, or putting them in a proper prospective, the unhappy impression has been created that this is an endeavour by the BCA to silence one of its critics. Again, if that is where the current law of defamation takes us, we must apply it.


The judges here express, in the clearest terms, their disapproval of the case before them and of the BCA's behaviour in bringing it. Indeed, they rather over-egg the pudding: it is far from "unlikely" that anyone would repeat Singh's opinions for fear of a writ - the opinions have been repeated repeatedly, while the BCA and almost all of its members have ceased to make the claims Singh criticised in his original article. Far from inhibiting patients from making informed decisions, the principal result of the action has been to bring to public consciousness the dubiousness of these claims, and in a manner far more effective than the original article on its own could have done. There has never been so much debate. The learned lord justices appear to inhabit a parallel world in which no-one apart from a few lawyers has heard the phrase "happily promotes bogus treatments." Yet a Google search for the phrase (with inverted comments) turns up almost 55,000 results.

The comment that "if that is where the current law of defamation takes us, we must apply it" ought to alert the reader to the coming judicial sleight-of-hand. For that plainly is where the current law of defamation takes us, even if Eady went too far. It was open to the Court to develop the law in the direction of free expression; instead they sidestepped it. They did so principally by interpreting the expression "not a jot of evidence" - which, rather than "bogus" or "happily", was taken to be the nub of the issue - to mean something rather different, viz, "there is no worthwhile or reliable evidence". This, they go on to state, is a value-judgement (and thus a comment rather than an assertion of fact); moreover, it is a reference to Simon Singh's view of the evidence, rather than the BCA's. They state (para 30):

The natural meaning of the passage, in other words, was not that the BCA was promoting what it knew to be bogus treatments but that it was promoting what Dr Singh contended were bogus treatments without regard to the want of reliable evidence of their efficacy – a meaning which takes one back to the assertion that there was not a jot of evidence for the BCA's claims.


In other words, "evidence" is synonymous with "good evidence." With respect (as lawyers are wont to say) this is Humpty-Dumptyish. On this basis, Simon Singh's article might well escape being construed as libellous, but only because it was meaningless, or at most tautological. Of course he was saying more than merely "the BCA's is happily promoting treatments without a jot of what I consider to be evidence." At the very least, he meant that the BCA was being "reckless and irresponsible" by not paying heed to the weight of evidence. The trouble is, that's not what he said. He said that there was "not a jot of evidence". And whatever criticisms might, on scientific grounds, be levelled against the BCA's "plethora", something the organisation does (or did) believe to be evidence obviously does exist. Paragraph 21:

He [Singh] then sets out, ailment by ailment and study by study, his reasons for considering that none of the available epidemiological evidence reliably supports the BCA's claims. This is met by a reply of comparable length in which the BCA, again ailment by ailment and study by study, contests his view and asserts that there is some dependable evidence for its claims. Ms Rogers has told us that, given the judge's ruling that these are verifiable facts, the trial can be expected to involve expert evidence on both sides and a judicial conclusion as to whether there is any evidence for the BCA's claims.


The Court of Appeal is right to view this as an horrendous prospect, and one quite unsuited to a court of law. As they go on to say, "One has only to contemplate this prospect to conclude that something is amiss." It is here that the words of Judge Easterbrook - quoted towards the end of the judgement - have real force:

Scientific controversies must be settled by the methods of science rather than by the methods of litigation. … More papers, more discussion, better data, and more satisfactory models – not larger awards of damages – mark the path towards superior understanding of the world around us.


But that unwelcome spectre is precisely what Mr Justice Eady was trying to prevent. The effect of his restrictive interpretation of "not a jot of evidence", "bogus" and "happily" was to render irrelevant any weighing up of the evidence for and against the treatments mentioned in Simon's original piece. As he put it in his original, now discarded, judgement, "What matters is whether those responsible for the claims put out by the BCA were well aware at the time that there was simply no evidence to support them." And that, of course (the awareness, not the evidence), is a question of simple fact rather than science. Unfortunately for Simon, it was a test he would have been unable to meet. And of course it was not his intended meaning. But it is a possible interpretation of the words he used, and not an unnatural one.

When Eady's ruling was handed down last year I suggested a form of words - which Allen Green dubbed "the Heresiarch manoeuvre" - that would have satisfied Eady's definition of "bogus" while preserving Singh's meaning by reiterating the lack of reliable evidence for the treatments that the BCA had promoted. The BCA's honesty would have been reaffirmed, but so would their lack of scientific rigour. They would have won the battle but lost the war. What will happen now, if the Court of Appeal ruling stands but the case proceeds to trial? Simon Singh will still have to prove something - that the BCA ought to have been aware of the balance of scientific evidence, and that preferring their plethora to the weightier research adduced by Singh and Ernst amounted to "promoting bogus treatments" in a manner unbefitting their responsibility to the public. It may be that he will be able to do so. What I question is whether he can do so in a way that doesn't turn Eady's courtroom into a scientific seminar.

It may not come to that. In the hearing, the BCA's QC Adrienne Page said the following:

Of course he could have said "There is no evidence that I think is reliable", but let us go a step further: that there is no reliable evidence. Again, it is very doubtful whether we would be here at all, because it would then be apparent ... that that would be the kind of proposition which manifestly signals to the reader that we are in the land of debate and we are in the land of opinion.

In other words, if Simon Singh had said what the Court of Appeal has decided that he did say, then the BCA on their own admission would have no case. This may be what the Court wanted to achieve. But in taking the sting out of Simon's words, the judges undermined their force, rendering harmless an article that, if it meant anything, was a fierce (if justified) attack on the BCA's behaviour.

Paragraph 23 of the Court of Appeal judgement has been much quoted:

The present case is not in this class: the material words, however one represents or paraphrases their meaning, are in our judgment expressions of opinion. The opinion may be mistaken, but to allow the party which has been denounced on the basis of it to compel its author to prove in court what he has asserted by way of argument is to invite the court to become an Orwellian ministry of truth. Milton, recalling in the Areopagitica his visit to Italy in 1638-9, wrote:

"I have sat among their learned men, for that honour I had, and been counted happy to be born in such a place of philosophic freedom, as they supposed England was, while themselves did nothing but bemoan the servile condition into which learning among them was brought; …. that nothing had been there written now these many years but flattery and fustian. There it was that I found and visited the famous Galileo, grown old a prisoner of the Inquisition, for thinking in astronomy otherwise than the Franciscan and Dominican licensers thought."

That is a pass to which we ought not to come again.


Way to miss the point, Sedley. Passing over the irony of Milton's parenthesis ("as they supposed England was") we should note that Galileo was not expressing an opinion when he asserted that the earth revolves around the sun and not the other way around. He was enunciating a truth, one for which he believed there was compelling evidence. Similarly, when Simon Singh states that the evidence doesn't justify the BCA's now largely retracted claims, he is merely summing up the evidence. The "opinion" at issue is the view that not deferring to scientific consensus is conduct unbecoming a "respectable" organisation such as the BCA claims to be.

If anything, it is the BCA who are the "heretics" here (the difference being that, unlike Galileo, they are on the wrong side of the facts). If it can never be defamatory to label as irresponsible anyone who takes a view of evidence different from the scientific orthodoxy of the age, however strong or unpleasant the language used, then the way is open for the scientific establishment to bully and belittle dissenting points of view. In some cases, if not in this one, the result may be to close down important debates.

The reference to Orwell's Ministry of Truth, whose job was to manufacture lies rather than establish the truth, strikes me as both emotive and gratuitous. It's a worrying hint that the judges' desire to produce a result acceptable to public opinion or their own beliefs is running ahead of their analysis of the law. If anything may be characterised as Orwellian, it is the claim that a factual assertion - that there is no (good) evidence - is merely an expression of opinion ("properly characterised as a value judgement") about the nature of evidence. This piece of sophistry may help get Simon Singh off his libel hook, but neither legally nor scientifically is it a good principle. It is, to coin a phrase, bogus reasoning.

The clue to what is going on here is found in Paragraph 32:

It may be said that the agreed pair of questions which the judge was asked to answer... was based on a premise, inherent in our libel law, that a comment is as capable as an assertion of fact of being defamatory, and that what differ are the available defences; so that the first question has to be whether the words are defamatory even if they amount to no more than comment. This case suggests that this may not always be the best approach, because the answer to the first question may stifle the answer to the second.


This is explosive stuff, especially when read in conjunction with the Easterbrook quote and the statement that the fair comment defence (which the Court redefines as "honest opinion") is "an essential ingredient of the right to free expression." There's a half-hearted attempt to downplay the significance of these paragraphs by framing them as obiter dicta - "However this may be, we consider that the judge erred in his approach to the need for justification" - but these and other remarks leave the clear impression that the three senior judges simply do not like the law of libel as it has evolved and are attempting to re-write it.

Jack of Kent has a fascinating post this morning about how the Easterbrook quote was unearthed by Simon Singh's solicitor Robert Dougans, "who has long-maintained that the best way for English law to grapple with the various problems caused to free expression by the law of libel is to look to the jurisprudence of other common law jurisdictions, rather than that of the European Convention on Human Rights." And indeed there was very little reference to the Article 10 right to free expression in yesterday's judgement. "The starting point for rigorous legal thinking about free expression, in Robert's view, should be the First Amendment and not the qualified protection of Article 10." Perhaps it should. I certainly prefer it. Unfortunately, the US Constitution, last time I checked, is not part of English law. The European Convention (in the form of the Human Rights Act) is.

Jack of Kent predicts that the Easterbrook quote "may now become influential", even though it is obviously not binding as a precedent. If so, the Court of Appeal will in effect have imported a new defence into English libel law, and have done so stealthily. The law would, in my view, be better for it. But there were other, more straightforward means of accomplishing this, for example making use of Article 10 to lay down a specific public interest defence which would have covered Simon Singh's case and others like it. Such a path would more clearly have lifted the chill of libel and more effectively have sabotaged the BCA's case. Instead, the court has engaged in piece of casuistical manipulation to reach its preferred result. That's hardly likely to produce greater clarity, or even to deter future claims. And the decision itself, with its logical lacunae, may prove vulnerable to challenge.

UPDATE: If all this hasn't exhausted you, I can recommend this excellent analysis by Danno, which takes issue with some of my points and generally agrees with the CoA. Like me, though, Danno (who also comments at length below) senses that the ruling is in important ways rather lacking. Also well worth reading is this post by Skeptic Lawyer who argues that the CoA has made "the right decision, but on the basis of bad law".