I suppose the first thing I should make clear is that the following post is my opinion, it does contain facts, but overall the post should be regarded as being mostly about my opinion of those facts rather than simply a collection of facts devoid of my personal opinions. As such I would think it constitutes commentary on a current event. I would normally think that such things go without saying but in light of today’s events I’m not so sure.
Today, I attended the preliminary hearing for the British Chiropractic Association (BCA) vs. Simon Singh case at the (discussed previously). This case is concerned with an article Singh wrote for the Guardian over a year ago and whether or not his comments in the article constitute libel against the BCA.
The specific paragraph that the BCA claim is based around is the following (and in particular the bolded phrases):
You might think that modern chiropractors restrict themselves to treating back problems, but in fact they still possess some quite wacky ideas. The fundamentalists argue that they can cure anything. And even the more moderate chiropractors have ideas above their station. The British Chiropractic Association claims that their members can help treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, even though there is not a jot of evidence. This organisation is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments.
At the hearing both lawyers agreed that the key issues for the preliminary hearing were:
1) The exact meaning of Singh’s statements and whether they implied intentional dishonesty or not.
2) Whether or not Singh’s statements were meant and presented as comments or as facts.
They also agreed that the larger issue of whether or not there was any evidence for the claims made by the BCA, that Singh criticised, could wait until the trial.
Both sides then presented their interpretations of the ‘meaning’ of Singh’s statements and their view on whether his statements constituted opinion/comment or fact. As this was my first time at court I was not quite prepared for how mind numbingly dull the presentations of lawyers can be- I am now. Each lawyer talked for over an hour with a significant proportion of that time being taking up with finding inventive new ways to make the exact same point over and over and over again. The BCA lawyer was guilty of this to a much greater extent than Singh’s lawyer, who only really laboured points towards the end of her presentation.
This may be standard operating procedure for legal cases and wouldn’t cause most lawyers to bat an eyelid and if this is the case I feel extremely sorry for lawyers. Personally, I felt that my will to live was significantly damaged after listening to the BCA lawyer spending at least 50 minutes expounding the same point over and over and over again, via increasingly obscure (and largely unjustified) references.
Anyhow, setting such frustrations aside here is a roundup of the main arguments made by both sides:
- The BCA lawyer made the case that Singh’s statements created the impression that the BCA promoted chiropractic treatments while knowing that they are entirely ineffective. Thus, she argued Singh’s statements in effect claimed that the BCA were being deliberately deceptive and this is how most readers would interpret the statements. She also argued that Singh’s statements were offered as fact and thus although contained in an opinion piece article should be regarded as factual claims rather than ‘comments’.
- Singh’s lawyer conversely argued that Singh’s statements were not intended to imply that chiropractors knowingly promoted bogus treatments but rather that they promoted treatments which had been proven to be bogus. In particular, she argued that the paragraph being complained about had to be read alongside the following paragraph in which Singh set out the basis on which he judged chiropractic treatments to be bogus (i.e. the research of Edzard Ernst and his own research for Trick or Treatment). In regards the comment vs. fact issue she contended that although containing factual information the article as a whole was clearly presented and intended to be a critical commentary on chiropractic medicine.
Now, obviously I am generally biased in this case towards Singh’s position however I’m willing to admit when I see something which I think is a fair point. The comment vs. fact issue is thus something I recognise that can be genuinely debated. The BCA lawyer had a fair point that something being an opinion piece or in a comment section doesn’t mean that it cannot contain factual claims which may be libelous. However, Singh’s lawyer had an equally fair point that the article was clearly introduced as an alternative and critical commentary being offered during ‘Chriopractic Awareness Week’ (an event created by the BCA).
Personally, I’m swayed by the fact that the article appeared in the ‘Thought for the Day’ section of the Guardian newspaper and the ‘Comment is Free’ section of Guardian online to immediately label it as commentary. However, I also realise there are factual claims in the article so I would agree with the BCA there. This is however not really an issue as I think that Singh is more than happy to defend the factual claims he made… it’s just the claims he didn’t make he has an issue with.
Which leads us to the debate over the ‘meaning’ of his statements…
I found it remarkable that the BCA lawyer would suggest that Singh had intended to imply that chiropractors do not actually believe in chiropractic treatments, as it is painfully obvious that this is not what his statements meant. Anyone who has read Trick or Treatment or Singh’s other articles/discussions on alternative medicine (or indeed almost any critical treatment of alternative medicine) should recognise that this is not the case he typically makes and I believe that his surrounding work and previously stated opinions should have been taken into account.
Even just reading the paragraph that the BCA complained about in the full context of the article, it is clear that he is criticising the BCA and chiropractors in general for a) having little or no concern about what scientific evidence there is that chiropractic treatments work and consequently b) offering chiropractic treatments for illnesses for which there is no evidence (or plausible means) by which they could help. That’s very different than saying ‘all the BCA chiropractors don’t believe in chiropractic treatments’ which is what the BCA lawyer argued he meant.
There are outright frauds who are well aware that what they are promoting doesn’t work, but most critics, and certainly Simon Singh, have acknowledged that in a lot of cases advocates do truly believe in what they are promoting.
The bottom line however is that the judge completely agreed with the BCA lawyer. I’ll give that a minute to sink in before I go on…
Got it now?
The judge, after hearing both lawyers arguments, read what seemed to be a pre-prepared statement, which basically concluded that:
- Singh’s statements meant that the BCA and Chiropractors in general were aware that their treatments do not work and were thus promoting treatments they knew to be false. The judge also defined a’ bogus treatment’ as not being one which lacks evidence or which later scientific evidence has shown to be ineffective but instead as one which is known to be false and is meant to intentionally deceive.
- Singh’s article was intended to be read entirely as fact and was not offered as a critical commentary.
The acoustics in the court weren’t great and the lawyers and the judge spoke very quietly and as a result when the judge was explaining his decision I actually thought I had misheard and he was simply restating the BCA’s case, as it seemed incredibly unlikely that he could have reached such a silly verdict. I was wrong. That was his decision.
The effect of this, is that Simon Singh has only two choices 1) to appeal the decision and hope that, if the appeal is accepted, the next judge is more reasonable or 2) to concede defeat.
Under the meaning that the judge decided on, to win the case he would have to effectively demonstrate that all the BCA’s members do not believe in chiropractic medicine and are intentionally defrauding the public. This is not a claim he made in the article and is not a claim that it is possible to defend. There are certainly BCA chiropractors who fully believe in what they do. So his only real option is to appeal the ‘judgement’ at the court of appeals and hope that 1) his appeal is accepted and 2) the next judge doesn’t redefine the meaning of what he actually said to something impossible to defend. From Simon Singh’s comments at the pub afterwards, it seems that he and his legal team reached the same conclusions… and although nothing’s official I suspect an appeal will be forthcoming (if I understood right his team has 21 days from now to file an appeal, so we will find out soon enough).
When I first heard about this case I thought it was a pathetic attempt to silence criticism and was hoping it would be thrown out on a technicality or abandoned by the BCA as a PR disaster however after I read the defence Singh’s team submitted I was optimistic that the case could actually turn into something very important- a trial assessing the evidence for some chiropractic claims (again, see my previous post on the topic). After attending the court case, I’ve now been left with a completely different impression, instead of seeing this as a potential opportunity for truth to win out I’ve come to realise that the legal system is ill equipped to deal with these kind of debates (the political blogger Jack-of-Kent, who was also in attendance, echoed the same sentiments afterwards- expect an excellent summary from him very soon).
The fact that a judge has the ability to redefine the meaning of Singh’s criticism from ‘chiropractic treatments are promoted but there is no real evidence they work’ to ‘all chiropractors are conmen who know chiropractic treatments don’t work but promote them anyway’. And then make their new interpretation the argument that Singh’s team would have to defend if they went to trial, completely floored me. That really doesn’t seem to be the way the legal system should work.
Also suprising is that I discovered (when congratulating Ben Goldacre on his recent legal victory– he also appeared in the pub afterwards) that the judge in this case was the same one who passed a judgement in favour of Ben Goldacre in his recent libel case. Ben was also being sued for critical articles of alternative medicine he wrote in the Guardian, though his articles were directed at the notorious aids denialist and vitamin pill promoter Matthias Rath. In many respects the two cases seem very similar and yet they have wildly different outcomes from the same judge- it is a genuine puzzle to me (although it may well have something to do with the fact that Matthias Rath looks like and acts like a real life Bond villain).
I had to get to work so I wasn’t there for the end of the hearing after lunch so there may be some details I missed. With that said, I didn’t get the impression from Jack-of-Kent or Simon Singh that there was much more that could be done at this hearing and I personally can’t see what else could be achieved with the ‘meaning’ the judge had decided upon.
To finish I recommend reading the skeptical legal blogger Jack-of-Kent’s account of the hearing when it appears. It will undoubtedly be more thorough than my version and will likely pick up on many legal details that I, as an untrained and extremely bored, layman missed. His blog can be found here.
And now after wishing Simon all the best with the appeal -Good Luck Simon!- I’m now going to go and see the new Star Trek and put this dark day for reason and science behind me.
Here’s the BCA’s press release on the outcome of the hearing.
And Jack-of-Kent has now also posted his detailed summary on his site.
Thanks for the excellent account of this horrible exercise in injustice. Sounds like there won’t be any comparing of evidence about chiropractic, since that apparently isn’t the question at stake. Simon Singh is a great writer, and does not deserve this. Even worse, the UK deserves better. What good is free speech if you’re not free to criticize a BOGUS treatment?
I’d also like to thank you for writing such a detailed account of what happened, it’s greatly appreciated. I’m deeply saddened at the judge’s decision, and dearly hope that Simon will fight it – but then again, I can only imagine what a hassle it would be, in work, in time, and in cost. Though in regards to that, I’m sure that there would be many of us that would be glad to help fund it!
Thanks once again, really great blog post.
I don’t understand what the judge was thinking. Singh explicitly states that chiropractors have ‘wacky’ ideas and ideas ‘above their station’. If chiropractors know what they are doing is bogus, then neither of those things is true. So Singh can’t have meant to imply that there is fraud going on.
Thanks for this update. I had to leave at around 12 as I had to prepare for an assessment on my Bar course, of all things. I’d assumed that matters would carry on into the afternoon if not Friday, so was surprises to get back at 3 and find the court empty, and deeply dismayed to then see the messages about what had happened.
Yes, interim hearings can be deathly dull – they usual centre on arcane technicalities of law, and don’t involve anything as interesting as cross-examination of witnesses. Furthermore, as you’ve seen, modern practice is that the judge will have seen both sides’ written submissions in advance. On the plus side, by dealing with technicalities first they can often simplify trials. But, as seen here, in libel cases that can mean simplifying the case down to a version one or other side just cannot hope to answer.
Jack-of-Kent is as you say very well-informed on this, so I’ll await his comments with interest.
Thanks for this account. Hopefully the story is not over yet.
Thanks for all the kind words. I had to write down an account to try and relieve some of the frustration after hearing the judgement.
JonA> The judgement is a serious blow for freedom of speech because it will encourage others who have been criticised to take out similar cases… I think this is a good illustration of why the UK is becoming the libel capital of the world.
Chris Coltrane> I know what you mean about time and money issues. Though, I got the impression that Simon was prepared to fight his case as far as was possible, which is some good news at least.
Jeremy> Singh’s lawyer made that exact point apparently it didn’t convince the judge. No idea why!
Simon> I remember seeing you at the court. You gave the good advice to turn off mobile phones! I take your point about the judge having read the two sides written accounts previously but it still seems odd to me that both lawyers presentations seemed to have next to no impact on the decision. I’m still reeling from the fact that the judge could define the meaning in such a counter-intuitive way. When I’ve discussed this with non-law friends they too have been extremely surprised that a judge could make Singh’s side have to defend at trial a meaning that he doesn’t agree with. It’s quite an eye opener!
Excellent account of a bad day in court. Have now also blogged: http://jackofkent.blogspot.com/2009/05/bca-v-singh-astonishingly-illiberal.html
I hope you don’t think that disclaimer will cut any ice with that very nice Mr Justice Eady I saw yesterday? He’ll make it mean whatever he wants it to mean.
Hey, he should be called Humpty Dumpty!
“When I use a word,” Humpty Dumpty said in a rather a scornful tone, “it means just what I choose it to mean – neither more nor less.”
I have now set out the options for Simon Singh. What would be the rational response? http://jackofkent.blogspot.com/2009/05/what-should-simon-singh-do-next.html
thanks this post. I made some adjustments
I must say this is a great article i enjoyed reading it keep the good work
Thanks for posting this, I found it very informative. 🙂
Remarkably useful How much time do you spend updating this blog every day? I don’t know if my comment is going to pop up because I’m not very tech savvy, hopefully I can get this right!