Yesterday I sat in an English courtroom and and witnessed a travesty. I was in a public gallery packed with Simon Singh’s supporters for the preliminary hearing of the BCA v Simon Singh at the High Court. The BCA had objected to an article Dr Singh penned for The Guardian newspaper, which appeared during ‘Chiropractic Awareness Week’ in April 2008. The article has since been removed from the newspaper’s website but can currently still be viewed here.
The BCA were offended by this passage:
“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.”
They had asked the author to retract the allegations, claiming these were “factually wrong, defamatory and damaging to the BCA’s reputation”, but Simon refused to do so, so the BCA sued him. Not The Guardian, him.
I’m not going to give a full account of both parties oral submissions. It wasn’t that easy to hear them and what I did hear was pretty boring. Even the judge, Sir David Eady, was seen yawning once, which was about 16 times fewer than I did. From what I could follow, Singh’s lawyers argued that the passage was an opinion — a comment — rather than a statement of fact and that this was clear from the context. In the paragraph following the offending passage, Dr Singh gives the grounds for his opinion:
“I can confidently label these treatments as bogus because I have co-authored a book about alternative medicine with the world’s first professor of complementary medicine, Edzard Ernst. He learned chiropractic techniques himself and used them as a doctor. This is when he began to see the need for some critical evaluation. Among other projects, he examined the evidence from 70 trials exploring the benefits of chiropractic therapy in conditions unrelated to the back. He found no evidence to suggest that chiropractors could treat any such conditions.”
A mere forty minutes into the proceedings, the judge was spotted glancing wistfully at the clock. That he wrote almost nothing down while listening to the submissions was noticed by several of us. When it was time to give his ruling he simply read out the conclusion he had aready reached and written down before he’d even entered the courtroom that morning. And an extraordinary conclusion it was too. He dismissed out of hand the suggestion that it was a comment rather than a statement of fact, which was kind of what I expected. What I didn’t expect, what nobody expected — least of all the BCA and their lawyers, I imagine — was what Mr Justice Eady said next. In his view, the word ‘bogus’ doesn’t simply mean ‘not genuine’ but implies a deliberate attempt to deceive.
This view is in accord with the one expressed by the BCA lawyers and, to be honest, I can understand it. The word ‘bogus’ is often associated with criminal behaviour e.g. the crime known formally as ‘burglary artifice’ is commonly referred to as ‘bogus callers’. (I disagree with the BCA lawyers argument about the word ‘happily’ meaning ‘knowingly’. Cobblers! It’s quite possible to ‘happily’ promote something not knowing it to be false.)
That said, I also understand why Simon Singh used it, even if he didn’t intend to imply deliberate dishonesty. It is impossible for us to know which alternative therapists are knowingly conning people and are fully aware that the remedies and treatments they prescribe are, at best, useless. Some skeptics find it impossible to believe that these people can’t be aware that their remedies lack scientific support and I have some sympathy with this view. But I think most of us believe that the vast majority of therapists are sincere in their intentions and are actually very, very deluded. What adjectives can be used to describe remedies that have no active ingredients or treatments based on completely false hypotheses — regardless of how much faith the practitioner may have in them? They are bogus therapies, are they not? Would ‘false’ be a better word? How about ‘sham’ or ‘fake’ or ‘phony’? I’d suggest that Justice Eady consult a thesaurus and let us have his suggestion.
In fact there is no word that conveys the meaning Simon obviously intended — which is that there is no good scientific evidence to support chiropractic and it doesn’t bloody work — that doesn’t have a negative connotation. There is no appropriate word that can’t be interpreted to be implying deliberate dishonesty if that’s what the reader wants to do and, obviously, the BCA did want to. They may have courted publicity by announcing it was Chiropractic Awareness Week but columns in quality newspapers by high-profile science authors exposing chiropractic for the nonsense it is, is not the kind of publicity they want or need. What else could the BCA do to keep its thousand or so members (who pay a very high annual subscription) happy but sue?
I digress. The unexpected was not Eady’s understanding of the word ‘bogus’ but in his assertion that, in using it, Simon Singh was stating in no uncertain terms that the BCA was being dishonest and that, should the case go to full trial, the onus will be on Simon to prove that the BCA were being deliberately dishonest. Yes, really. The burden of proof for something he didn’t claim or intend to imply in the first place will be on Simon Singh, the defendant.
This is likely to mean that it will be impossible to go to trial. Legal blogger Jack of Kent, who was also there yesterday, comments that,
unless there is hard evidence of dishonesty, it may not even be professionally possible for Simon Singh’s lawyers to put the required case to the court: English barristers and solicitors are prohibited from alleging fraud unless there is sound and cogent evidence before them on which to base the allegation.
Simon has three weeks in which to appeal against Eady’s extraordinary ruling. Whatever happens, the battle against batshit loopy and potentially dangerous so-called ‘therapies’ like chiropractic will continue unabated. Cases that illustrate just how dangerous chiropractic can be are viewable here.
Related posts by other bloggers
Jack of Kent: An astonishingly illiberal ruling
The Lay Scientist: The Simon Singh Verdict: British Skeptics are Under Siege
Heresy Corner: Eady’s Bogus Judgement