This appeal must be allowed

I was in Court 4 at the Royal Courts of Justice at 9.30 this morning, the Court of the Lord Chief Justice. This one was a ‘real’ court room, all oak panel, wall-to-wall shelves of legal tomes and even a dock caged with cast-iron bars for the defendant (empty on this occasion).

It was a brief affair. The buzz of conversation stopped abruptly with the words “Court Rise” and in came the Lord Chief Justice himself. His first concern seemed to be if there would be enough copies of the judgement to hand out to those present. “Are all the ladies and gentlemen over there interested?” he inquired, looking in our direction. We nodded.

And then–at first I thought I had missed it–he announced “This appeal is allowed” and copies of the judgement were handed out. There were smiles, mixed with looks of bafflement (“Does that mean..?” “Yes?”). The smiles on Simon’s solicitor’s face confirmed the truth of the matter. Justice Eady’s judgement–that Simon Singh’s article could be taken to be an assertion that the BCA had acted dishonestly–is overturned. His Comment is Free article in the Guardian can now be defended (in the still ongoing libel trial) as fair comment.

Simon Singh speaking after his appeal victory
Simon Singh speaks to reporters after this morning’s ruling

I managed to snag a copy of the judgement and have been trying to digest it on my way back to the office. I am not qualified to articulate its meaning in any great depth but will highlight a couple of the more scientific aspects that struck me.

The justices first note the impact of the case brought by the BCA against the science writer:

“It is now two years since the publication of the offending article. It seems unlikely that anyone would have dared to 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 about the possible use of chiropractic.”

Quite. (Though given the eruption of material on chiropractic in the blogosphere and elsewhere since this case started, I’m not sure their lordships are quite on the money there).

They move on to consider the consequences of this case. In their submissions both sides have argued about the evidence for the claims of chiropractors. The justices are concerned where this will lead.

“Ms Rogers (counsel for the BCA) has told us that… 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.
One has only to contemplate this prospect to conclude that something is amiss.”

They then get to what I think is the nub of the matter and take the view (if I have understood correctly) that scientific evidence is a matter for debate between scientists rather than in court, mainly because it is not easy to define what are the ‘facts’ in many complex scientific issues. Singh’s comments about the BCA claims are held to be expressions of opinion.

“The opinion may be mistaken, but to allow the party which has been denounced on the basis of it to compel the 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 me, 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.’

This is a pass to which we ought not to come again”

Wonderful stuff. They do give good value for money these justices!

And finally, in what is perhaps a marker of the way their Lordships would like to see such cases treated in future, they quote a ruling by Judge Easterbrook from the USA:

“[Plaintiffs] cannot, by simply filing suit and crying ‘character assassination!’, silence those who hold divergent views, no matter how adverse those views may be to plaintiffs’ interests. 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.”

A good day for Simon Singh, for freedom of speech and for science.

But Simon’s case is not over yet. According to their statement, posted by The LayScientist, the BCA are disappointed and considering their position.

And the campaign for libel reform must continue. Tell your friends. Sign the petition.

Here’s another report on the outcome from the Index on Censorship (with twitter feed) and one from Austin, who was very quick off the mark!

Follow developments on Twitter via the #singhbca hashtag. The full ruling (definitely worth a read) should be available on Jack of Kent’s Blog later today.


Update: Judgement now available as a pdf thanks to Index on Censorship.

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34 Responses to This appeal must be allowed

  1. Austin Elliott says:

    Great stuff, Stephen. I’ve had a briefer go “here,”:http://draust.wordpress.com/2010/04/01/stop-press-simon-singh-wins-appeal-court-ruling-on-meaning/ also quoting “paragraph 34” (the bit citing the US Judge’s comment).
    The BCA _have_ said they are considering an appeal, but I rather suspect their lawyers will tell them leave to appeal is unlikely to be given. As I commented over at “Jack of Kent’s blog”:http://jackofkent.blogspot.com/2010/03/simons-judgment-day.html yesterday:
    bq. “I would guess… that the chances of a Supreme Court taking on an appeal on meaning, when [the] ruling [has] been made by a panel of three such senior judges after deliberating the specific question at length, would be vanishingly slim. So likely any application for leave to appeal would be turned down…”
    I wrote this as a hypothetical _”what if…”_ for if the Court of Appeal were to confirm Eady’s ruling, but I think it stands just as well now that they have overturned it.

  2. Stephen Curry says:

    Thanks Austin – it was a rather hectic morning. I wasn’t even sure that people were going into court but was urged on by @JackofKent. Very glad I did.
    I’ve added a link to your post within mine. Pleased to see we agree on the significance of paragraph 34 – but then I think all scientists would concur!

  3. Lee Turnpenny says:

    Marvellous! Am sticking up copies of both your posts on noticeboards here. Cheers!

  4. Stephen Curry says:

    Cheers Lee – if you can, make sure to add the URL for the libel reform campaign web-site and encourage the good folk in Southampton to sign the petition.

  5. Lee Turnpenny says:

    Oh, have been on that for some time: broadcast E-mailing, pinning up info on unused noticeboards, writing a piece in the University comment paper – to the point where, in continually re-prodding the apathetic, I’ve become irritating to some. But I don’t care, and have managed to get a number to sign up, and who are following with interest, and expressing pleasure with today’s progress.

  6. Stephen Curry says:

    Great work – we will bludgeon them into submission!

  7. Ken Doyle says:

    “The opinion may be mistaken, but to allow the party which has been denounced on the basis of it to compel the 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.
    Excellent. Restores a little of my faith in the judicial system, even if it isn’t in this country 🙂

  8. Åsa Karlström says:

    Thanks Stephen for keeping us updated! Maybe a little woho! or _”That’s the spirit”_ is in order then?!
    I’ll need to read more in detail (and I’m assuming that this is no joke, although today’s date…) but it sounds like they saw what would happen to debate and other stuff if you get drawn into court…

  9. Stephen Curry says:

    Right on, Ken.
    Cheers Ă…sa. There is a nice round-up of some of the blog coverage at Noodlemaz’s blog.
    A listing of more mainstream coverage can be found at the news section of theLibel Reform Campaign web-site.

  10. Cath Ennis says:

    Great news – a triumph for reason and common sense!
    Thanks for the update, Stephen!

  11. Heather Etchevers says:

    Sigh of relief. Bigger sigh when Simon feels like he is out of trouble.

  12. Martin Fenner says:

    Stephen, thanks for the update. Seems to be the big science news today (other than that new “Nature/Science”:http://news.sciencemag.org/sciencenow/2010/04/science-nature-team-up-on-new-jo.html journal).

  13. Mike Fowler says:

    Nice write up, Stephen. I’ve been offline for a couple of weeks now, this is fine news to welcome me back!
    It’s almost like someone rolled a -giant chocolate ovum- rock away from the cave of scientific investigation and common sense.

  14. Stephen Curry says:

    Thanks guys – it was most certainly a victory for common sense, which is obviously a boon to science.
    For those that want to savour the nine-page judgement (linked to in the post), it is tautly argued and well worth reading.

  15. Jennifer Rohn says:

    It will be good to have the matter resolved once and for all, so science commentators can get about the business of writing critically safely. I do hope it doesn’t drag on for years.

  16. Austin Elliott says:

    I think it all depends on the BCA, Jenny. They have almost no chance of winning if they go to trial on the “meaning” from today’s ruling. They might try to appeal to the Supreme Court, but chances of that succeeding seem awfully slim given the seniority of the Appeal Panel (with England’s two most senior Judges among the three-man panel) and the clear steer of the ruling.
    In addition, if they bail now they are out probably ÂŁ 300-400K. But if they carry on to trial and lose they might be looking at a million.
    As I said in a comment on Jack of Kent’s blog, we already know Simon Singh was prepared to lose his own money on a point of principle. The BCA’s statement says they are too. But their actions will speak louder.

  17. Stephen Curry says:

    If they were to bail now, who would pay Simon Singh’s costs?
    I do hope that they decide to call it a day. The whole process has been a costly one for the BCA in terms of cash and the torrent of critical comment about chiropractors.

  18. Stephen Curry says:

    Ah, I see I should have taken the trouble to read Austin’s comments on costs on Jackofkent’s Blog.
    It’ll certainly be interesting to see what the BCA decide to do. I note that Simon Singh’s solicitor, Robert Dougan thought that, if they were to appeal today’s decision, “there’s a reasonable chance that the supreme court might take a look at this if they want to” – listen here.

  19. Grant Jacobs says:

    Good to see your thoughts.
    People often complain about legal-speak in the same way that they complain about scientists trying to explain things using scientific jargon. I can’t help but thing in one sense the Justices are teaching the sci comm a lesson here, too?
    I wrote an as-the-news-came-in blog last night on this (http://bit.ly/9sSXOv), adding new stuff as comments (something I’m not doing again as it has me bagging all the comments on the collective site which looks embarrassing…)
    What do people make of the BCA’s statement? I didn’t put my thoughts up on that, as let’s just say they’re not very charitable! 🙂
    I wish for Simon’s sake that the BCA stops the silliness. If this were to come to pass, with future cases in mind, is a Court of Appeal ruling enough that a “you can’t do this” precedent is set from this Court of Appeal ruling alone, or is a “conventional” court result needed for that? (Or is a change in the law needed?)
    It is interesting to see the reference to a recent change in NZ law in the final paragraph of the judgement, must try track that down.
    (I have *finally* managed to login after 3 days of trying… ’nuff said. I hope they’ve got the login system sorted out now. I’m still asked to “re”-login when I get to a blog even thought I’m already logged-in, but at least I can get in!)

  20. Stephen Curry says:

    Well done for sticking at it Grant and finally managing to get into the system to make a comment. It has been a rather frustrating month since the change over to the new system. The people at NN are working hard on it, I’m sure, but the resolution to these bugs can’t come soon enough.
    And well done for publicising the case in NZ!
    The BCA statement is very cautiously worded. They say “we are considering whether to seek permission to appeal to the Supreme Court and subsequently proceed to trial”. This could perhaps be taken to mean that, given today’s decision, they many not consider it worth pursuing the case unless they think they have a fair chance of getting the supreme court to overrule the appeal judgement. It’s their call of course but they might salvage a little of their reputation by coming to their senses and bailing out.
    However one factor in the decision, which I hadn’t appreciated until I read Simon Singh’s piece in The Guardian today, is that the chiropractors will have to bear the brunt of the ~ÂŁ200k costs incurred until now. The stakes are high.

  21. Grant Jacobs says:

    Hi Stephen,
    Thanks for the kind words. My post isn’t getting a lot of attention here, or at least not as much as I would like, mainly as our blogs go very quiet over holidays because NZers take holidays seriously 🙂 (Stunning early autumn day, I was outside painting the house.)
    Thanks for pointing to the Guardian piece, interesting to read about the legal costs. I wonder if this trickles down to individual chiropractors, i.e. that in the end the individual chiropractors are covering these costs?
    “That” Easterbrook citation in the C.o.A. judgement is similar to what Prof. Frizelle (Christchurch, NZ; my hometown) wonderfully concluded an editorial in the NZ Medical Journal in 2008 with, writing in response to chiropractors complaining about an earlier editorial by Prof. Colquhoun of UCL, London, who was editorialising an article by Gilbey who questioned chiropractors’ (among others’) right to the title ‘Doctor’ in NZ (a practice I don’t particularly agree with). Prof Frizelle wrote to encourage chiropractors to join in, in an evidence-based way: “let’s hear your evidence not your legal muscle.” This was in response to the local chiropractors association issuing a letter via their lawyer to the journal claiming the earlier articles were defamatory issuing what to my eyes are some pretty heavy-handed demands, some of which may seem to be familiar to those in the UK.
    Shades of my place and your place in the two locations, Christchurch and UCL. Do you know David Colquhoun?
    (Have to admit I wish there was an edit feature for the commenting, so that I might correct my ghastly errors. I always seem to seem them afterwards… Sigh. Our blog commenting doesn’t have an editing feature either, but I can at least edit my comments on my own blog via the moderation facilities!)

  22. Austin Elliott says:

    The debate about costs is also ongoing at Jack of Kent’s legal blog, which is the go-to source for stuff on the Singh case – my comment about costs Stephen referred to is “here,”:http://jackofkent.blogspot.com/2010/04/bca-v-singh-astonishingly-liberal.html?showComment=1270155439271#c1521262280129609472 and there is a bit of discussion subsequently, inc. a contribution from Evan Harris MP, who is heavily involved in the Singh case and the libel reform campaign.
    Basically if the clock stops now it is ÂŁ 200-400K cost to the BCA (their *and* Singh’s costs so far – precise estimates vary, with Singh today giving the lower figure Stephen just alluded to). If the BCA go to trial and lose, again they pay both sides’ costs, by then doubtless much more. If they go to trial and _win,_ Singh would be faced with paying at least most of the bill for both sides. The total post-trial could easily be a million.
    There is some discussion over at the Badscience Forum (start “here”:http://www.badscience.net/forum/viewtopic.php?f=3&t=8946&start=1600#p326584 and work down) of whether the BCA can afford the loss. Though they are obviously richer than an individual like Simon Singh, they are not _that_ rich. If I were the BCA’s members – who in a way are analogous to the members of a scientific learned society – I would be seriously wondering about the judgement of my Executive Committee that had pursued such a potentially ruinous lawsuit.
    In some ways I think the BCA are a bit “trapped” by the amount they have already put in. Stopping now leaves them at least ÂŁ 200K in the hole (a big chunk of their reserves) so there is a natural impulse to keep going to try and get it back. They way I characterised this in my comments elsewhere is that it is the classic gambler’s problem of having to force oneself *not* to chase a loss.
    It is worth noting that this is not the first time the chiropractic profession has gone to law rather than actually debate critics on the scientific facts. They have, in fact, a long history of using “legal chill”, both in this country and elsewhere, e.g. in the US and New Zealand (for details try David Colquhoun’s _Improbable Science_ blog). For this reason we should, as scientists, be duly grateful to people like Singh, and the editor of the _New Zealand Medical Journal,_ who have refused to cave in under the legal threats.

  23. Austin Elliott says:

    PS David Colquhoun’s blogpost on “legal chill” attempts from chiropractors in New Zealand is “here”:http://www.dcscience.net/?p=245
    It was the farrago detailed there that led the Editor of the _NZ Medical Journal_ to challenge the chiropractors:
    bq. *”Let’s see your _evidence_ – not your legal muscle”*
    – a comment which obviously chimes with the Judge Easterbrook quote cited approvingly by the Appeal Judges yesterday.

  24. Stephen Curry says:

    Thanks for your contributions Grant and Austin. Colquhoun is pretty well known in these circles and even lurks on NN from time to time, I believe. I’ve met him a couple of time (as has Austin, I’m pretty sure).
    I admire his anti-quackery work greatly (and knew of his NZMJ ‘incident’). He had an especially good post yesterday about the dismantling of a complementary medicine course at the University of Buckihgham which is well worth reading. Gives a great insight into how these battles are fought (this time without recourse to legal means).

  25. Austin Elliott says:

    Heh – serendipitous commenting coincidence there, Grant. Pretty good for 12,000 miles apart..!
    Re the BCA’s costs, like any society/association they have cash reserves and assets (see the Badscience Forum discussion, or “here”:http://www.zenosblog.com/2009/10/profit-and-loss/). But as their income will come mostly from member subscriptions, I guess there is a good chance the Singh case costs would get passed on to the members via increased subscription charges.
    On David Colquhoun – yes, he is a friend of mine, largely as a result of our shared interest in quack medicine and similar in recent years. Though I actually first met him long ago when, as a very green 1st yr PhD student, I went to ask him a rather basic statistics question. I commented on this briefly “here,”:http://draust.wordpress.com/2008/11/19/the-first-nutritionistas-song/#comment-1032 but perhaps I will re-tell the story some time on my NN blog… as it tells you something, not just about David, and also about what I guess both he and I would see as the “scientific tradition” exemplified over many years by the UCL bioscience departments.

  26. Åsa Karlström says:

    I read yesterday that you are not allowed to “help out with legal fees while the case is being tried” according to UK law since you can be tried as an accomplice then…. did I understand that correct?!
    So, Singh could get some contributions _after_ the fact i.e. the trial is done and can’t be retried but as of now he is on his own completely?!
    I guess it seems right, considering the paper couldn’t even contribute with their lawyers… I find it very disturbing, on top of all the other things. I clearly hadn’t understood the intricacies of all the “BCA sues Singh as a private person”.
    Anway, anyone knows about some kind of thinking about contributing to him after the fact? To help out then?

  27. Stephen Curry says:

    I don’t know about that particular regulation, Ă…sa. However, Simon Singh is funding his own case. As he says in the Guardian article I linked to above, he has a healthy bank balance thanks to his book sales. I don’t think he’s actually looking for contributions for himself, though the campaign for libel reform is interested in case support (hence the Big Gig that I went to a few weeks ago).
    The Guardian did offer the BCA the right to reply but when that was declined and Simon said he was sticking by his story, they backed out of the proceedings. I don’t know exactly why but newspaper publishing is an expensive business these days.

  28. Lee Turnpenny says:

    I went to see Singh speaking at an Hampshire Skeptics in the Pub event in Winchester a few weeks back. That was a question – about _The Guardian_ – I was going to ask… but he answered it in the course of his talk. After the Goldacre-Rath affair, even though Rath dropped it, and one or two other ongoing things, it couldn’t risk/afford getting involved in another. (Wonder whether the BCA knew this, and whether it would have gone after the newspaper also if it hadn’t pulled the piece?)

  29. Lee Turnpenny says:

    … and I have to say Singh was remarkably sanguine about it, when he could have, justifiably, felt very aggrieved.

  30. Stephen Curry says:

    Thanks for the clarification Lee.
    Although Singh seems to be confident that he has the resources to fight this battle, even if he were to lose (less likely after Thursday’s judgement but still possible), he has nevertheless displayed remarkable courage and determination in defending his point of view.

  31. Lee Turnpenny says:

    Absolutely. What I meant was that he kindly conveyed no negative bitterness towards _The Guardian_.

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