Science in Court

Yesterday morning I made my way to the Royal Courts of Justice in London’s Strand to attend the Court of Appeal hearing in the libel case brought by the British Chiropractic Association (BCA) against Simon Singh. I went partly to offer some small measure of moral support to Simon but also, I must confess, because I had never been in a courtroom in my life and was curious to see what goes on.

There have already been a couple of accounts of the day’s proceedings, in particular an expert lawyerly analysis from JackofKent, a lively first-person report from Crispian Jago and a useful summary from Austin Elliot here on NN. For background, see David Allen Green’s excellent piece in The Lawyer.

Singh Supporters at the Royal Courts of Justice
Supporters gathering outside the Royal Courts of Justice

So there isn’t much more to add. I’m certainly not qualified to dissect the legal niceties and implications of today’s proceedings; and I was only able to stay for the first act, so to speak. But it was a fascinating morning and I wanted to give an impression.

A decent crowd had gathered outside the court by 9:45, just before Simon arrived. He gave a short pep talk to the assembled supporters, thanking them for coming along and then we all trooped inside. Once through security–a sort of airport-lite arrangement–the crowd headed along marbled and then linoed corridors to Court 71 where, unfortunately there were only seats for about 30 members of the public.

Simon Singh at the Royal Courts of Justice
Simon speaks as his solicitor, Robert Dougans (left) looks on

The court-room was a modern affair; light from a suspended ceiling illuminated magnolia walls and a pastel red carpet. As far as I could tell, the legal teams of both sides occupied three of the four rows of seating in the centre of the room; the final row and seats at the back were taken by the public, all of whom seemed to be Singh supporters. The press were seated in a line on the left side of the room (I found a spot at the end of that line, near the back of the court). On the opposite side of the room, across from me, the clerks kindly found some additional chairs to allow as many people as possible to attend the hearing, though quite a number of people were still not admitted.

At the front of the court was a raised platform, faced with wood, behind which stood three high-backed red chairs. While the crowd settled, clerks and attendants fussed around these, adjusting cushions and organising paperwork. As 10:30 approached the noise of conversation diminished to a low murmur of voices.

Then it began: “Court rise,” announced the clerk. We all stood up and nothing happened. Then again “Court rise”–the clerk had clearly jumped the gun–but I was moving my bag and didn’t see the three judges enter the room. If someone had told me they emerged vertically from the floor I might have believed them, such was the sense of presence. There they were, three grey-haired men: on the left, Justice Neuberger, Master of the Rolls, in the middle Lord Chief Justice Judge and on the right Lord Justice Sedley. Their lordships were dressed identically; there were no wigs, but each was wearing a black cloak trimmed at the collar with two golden strips of dangling silk.

We immediately got under way. Singh’s counsel, Adrienne Page QC, took the floor and announced she would be presenting her case up until about 1 pm, leaving time for the BCA’s QC to speak in the afternoon. At least the QCs were wearing the traditional horse-hair wigs.

Page launched into her argument, taking a little time at the beginning to introduce the defendant, Singh, and the claimant, the BCA, to their lordships. Her voice initially sounded slightly wavering to me, indicative of nerves perhaps? But if that was the case she soon seemed to recover her composure.

The case for the defence that she developed was long and multi-threaded. Page rehearsed the initial complaint by the BCA and wove a complex argument that explored meaning and interpretation (especially of the phrase ‘happily promotes bogus treatments’), the nature and quality of evidence (and why Singh and the BCA might easily have different views as to what constitutes good evidence), the impossibility of proving a state of mind (and so dishonest intent), the import of European and English case law and the wider implications of trying to settle matters of science in a court of law.

I listened closely but I won’t pretend that I followed every strand of the case. The ready use of legal jargon by the judges and the QC made it hard work to keep up. Added to that most of the players were softly spoken and Page, who talked the most in the morning session, was facing away from me.

What struck me from the very outset, though, was the sheer strangeness of hearing science discussed in such detail in the unfamiliar surroundings of a courtroom.

No less striking was the air of professional courtesy that imbued the proceedings with an exceedingly civilised ambience. The judges were patient and polite, apologising on one occasion for having spoken to softly (Neuberger) and on another for having left part of the paperwork behind in his rooms (Judge). At several points they waited patiently, to allow Page the time to find her place in her notes. There was no arrogance or superiority, but a keen and tenacious interest.

There were plenty of probing questions from the judges, testing and stretching the argument. When this happened Page had to think quickly on her feet, but she was adept at doing so. She might pause for a moment but on each occasion that I witnessed, she took great care not to cede ground and was able to provide a substantive reply. I could see where at least some of the money was going.

Also surprising were the moments of levity that were sprinkled through the proceedings. At one point, where the interpretation of the article in the mind of the reader was being discussed, Sedley confessed to resisting the temptation to discuss Guardian readers as a subspecies of humanity!

The case for the defence took almost two and a half hours to present. It was carefully and methodically done. When necessary Page would draw the judges’ attention to this or that piece of documentation, referring to a particular page in this tab of that volume and we would wait while each of them hoisted the large binders into place from the racks at their sides and flipped to the correct page. The heavy manoeuvring of all this paperwork lent an archaic gravitas to the process; I suspect the judiciary will resist computerisation for some time.

But I’m not here to poke fun (though I was a tad disappointed that at no point did anyone stand up to shout ‘Objection!”). I was, in fact, impressed by the conduct of the proceedings. Between them the judges and the QC performed a rigorous dissection of the main points of the defence case. I would go so far as to say that I have a newfound respect for the legal profession. It may be a scandal that the libel law of England and Wales permits such cases–where the issues are matters of science and public health that need to be fully and publicly debated–to be dragged through the courts. But I was re-assured on this morning’s evidence that, once in those courts, due and intelligent process is possible.

Tempted as I was, I couldn’t stay for the afternoon session but gather from other reports (see links above) that the judges were at least as quizzical and perhaps even more critical of the case made by the counsel for the BCA. It does seem to have been a good day in court for the freedom of science, but as JackofKent wisely cautions, it is still too early to tell. The judges’ ruling will only be available in a few weeks and their demeanour in court should not be taken as a guide to the final outcome.

And as Simon Singh himself was at pains to point out, this case is far from over and he is not the only scientific victim of our dreadful libel laws. That is why it is important that we continue to support the campaign for reform.

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13 Responses to Science in Court

  1. Alejandro Correa says:

    For example in my country all this in the Supreme Court in Santiago (Chile), is very solemn. I participate as Judicial Expert in Chile (in Biology and others) I have had several cases difficult, but I have never been called to a hearing. I’ve always written informed but you really have to be great at writing and not confuse the judge in the defense of demandado or the complainant, the fundamentos have to be precise and eloquent without ambiguity of any kind. If the judge orders the Judicial Expert appointed to participate in an oral audience, there is that prepared very well the defense because there are lawyers pending for anyone error of the Judicial Expert as to destroying it alive and making swallow pieces. It complicated the issue. It search the needle in the haystack.

  2. Alejandro Correa says:

    Sorry meny words in spanish (bad).
    For example in my country all this in the Supreme Court in Santiago (Chile), is very solemn. I participate as Judicial Expert in Chile (in Biology and others) I have had several cases difficult, but I have never been called to a hearing. I’ve always written informed but you really have to be great at writing and not confuse the judge in the defense of demanded or the complainant, the base have to be precise and eloquent without ambiguity of any kind. If the judge orders the Judicial Expert appointed to participate in an oral audience, there is that prepared very well the defense because there are lawyers pending for anyone error of the Judicial Expert as to destroying it alive and making swallow pieces. It complicated the issue. It search the needle in the haystack.

  3. Alejandro Correa says:

    Stephan – I find that this well to talk about these issues. although they are very complicated. It’s like walking on fire.
    There are lawyers who are very intelligent but fortunately do not know mathematics.

  4. Stephen Curry says:

    It’s interesting to hear that you have participated as an expert in legal cases (though not in court). I have to say I was very struck by the rigour of the questioning and the great care that had clearly been put into the preparation of the defence case.
    I couldn’t help thinking that if chiropractors put such care into an examination of the evidence for some of their practices, this libel case might never have arisen in the first place.

  5. Brian Clegg says:

    Thanks for that Stephen – it’s one of those times I really miss not being in London as I would have loved to have been there (like you, I have no experience of such proceedings) – and you gave an excellent feel for the experience.

  6. Austin Elliott says:

    Yes, agreed, Brian, Stephen has done a great job of giving a sense of being there.
    Also ditto Brian’s frustration at being distant from the action… sometimes the London-centricity of Britain is very irksome.
    I too find the law and its workings fascinating, and I have commented a few times on the blogs that the kind of cognitive and analytical skills scientists (and other academics) use are very similar to those the lawyers need.
    We even have a family joke that I really should have been a lawyer, rather than a moderately unsuccessful scientist. My mother certainly thinks so! Though who knows, if the UK Univs are really serious about making people redundant, I may yet get the “opportunity” to retrain.

  7. Stephen Curry says:

    Thanks Brian and Austin – I was very glad I’d decided to go along (despite some competing pressures on my time) and only sorry I couldn’t stick it out for the afternoon session which, by all accounts, was even more gripping.
    I’m sure you’d make a very good lawyer, Austin. Seriously.
    The analytical skills on display from the QC and the judges were truly impressive. At times, it felt a bit like a live session of peer review. If more scientific papers were to be held up to that kind of scrutiny, it think the quality would certainly improve.

  8. Frank Norman says:

    At times, it felt a bit like a live session of peer review
    It would be interesting to attend a real live peer review session, to compare. Shame they are all closed.

  9. Brian Derby says:

    Stephen – As stated in Jack of Kent’s blog, science is not on trial here and by arcane processes of English law the Court of Appeal could decide that the judge made the wrong decision on Simon Singh’s case but (oddly to my mind) decide that it was not so wrong as for an appeal to stand. This seems very odd to me but then I am not a lawyer.
    Although you were impressed by the QC acting for Simon Singh’s understanding of science, or at least the nuances of reporting and commenting on science, that has not been my impression when acting as an Expert Witness in commercial law trials. Of course, I can give no specific details but generally I have found it painful to be in court when a Barrister has been questioning me or other witnesses because of their desire to reduce much of the argument to a non-scientific code with the use of inappropriate similes. I guess a lot depends on the quality of the barrister. I have noticed that they often put a lot of effort into diminishing witnesses: e.g. Professor Derby’s opinion is at variance with Mr. …. Or in attacking me: of course Professor Derby’s opinion may be from an academic viewpoint…
    Perhaps things always seem more impressive when viewed from a distance. Certainly court time has never been exciting in my opinion when acting as a witness.

  10. Stephen Curry says:

    Brian – I didn’t mean to imply (by my title) that science was on trial, merely that it had made an appearance in court. Indeed during yesterday’s proceedings, one of the judges commented that it would be a very bad thing if decisions about “the science” were to end up being made in court (though I fear this is sometimes the consequence of our poorly framed libel legislation).
    It is good also to hear of your rather different perspective of courtly treatments of science. Certainly I was impressed by the level of the discussion yesterday but I was not assuming that that level is always attained. Indeed, arguably, yesterday only happened because of a mistaken view taken by Justice Eady when the preliminary hearing on meaning took place last May.
    And I’m sure that being a _witness is much more stressful than being just an eye-witness!

  11. Alejandro Correa says:

    Stephen – You said is very stressful and particularly when have to cancel the fees of the expert appraiser.
    And I’m sure that being a witness is much more stressful than being just an eye-witness!

  12. Stephen Curry says:

    Frank – sorry I missed you earlier comment. Peer review may not be a live event but there are some moves to open it up for more public scrutiny, as I discussed here — now available in paperback. ;-)
    Alejandro – I can imagine that cancellation of fees would add to the unpleasantness of the situation!

  13. Alejandro Correa says:

    Affirmative.