Monday, 26 January 2009

On "Calling for a Police Inquiry"

There is something deeply depressing about the latest Lib Dem ploy. In response to the exposure of certain Labour peers in respect of their "consultancies", the Lib Dems have "called for a police inquiry" - see here.

The conduct of the Labour peers appears to be highly disappointing. If the allegations are true they should be disciplined by Parliament as well as their parties. The allegations are serious. Ken Clarke's demand for an urgent ministerial statement was exactly the right response.

But the Lib Dems now want to turn this into a police matter. One wonders, yet again, what part of "liberal" and "democracy" do the Lib Dems not understand? For the demands for the police to get involved may be neither liberal nor democratic.

The now-common calls for a police involvement are in fact a bad sign of a trend in modern British politics, the creeping normalization of involving the police into political controversies - the Lord Levy matter, then Damian Green (on whom, more later), the lobbying for 42 Days, even the chumminess of Sir Ian Blair and the former unlamented Mayor of London.

Outside of high level politics, it is also now a routine weapon of pressure groups and campaigners to make a complaint to the police, allowing the lazy journalist an easy introductory paragraph.

By normalizing police involvement in political controversies, the Lib Dems (and others) are slowly shifting the grounds of the domestic political process.

Friday, 23 January 2009

The Economist on CAM

There is a good piece in today's The Economist on the genuine problems of regulating Complementary and Alternative Medicine in the United Kingdom.

It is heartening that the serious concerns about CAM are now breaking into the quality mainstream media.

Monday, 19 January 2009

On the Dark Side of Christian Voice

I used to regard the British group Christian Voice, whose National Director is Stephen Green, as noisy, misguided, nuisance litigants, happy to provide the lazy Mainstream Media with daft quotes or even a hare-brained formal complaint or legal claim.

They were the Mary Whitehouses of our generation.

In a way, I enjoyed following their stupid and counter-productive antics.

The private blasphemy prosecution which they brought in respect of Jerry Springer: the Opera was so misconceived that the Court re-defined the offence so that it was almost impossible for any prosecution ever to be brought again. The abolition of blasphemy a few months later was a mere formality.

(The English High Court's judgment is set out in full here. It is well worth reading.)

Christian Voice has also made backfiring complaints to the Advertising Standards Authority. The current complaint, about the Atheist Bus Campaign, is on the basis that the statement that there probably is no God cannot be substantiated. Only a moment's thought would make one realise that, if upheld by the ASA, this would prevent religious advertising too.

To adapt Voltaire, if Christian Voice didn't exist, militant atheists would want to invent them.

However, I did not mind Christian Voice that much. Like Mary Whitehouse, I thought, they just used existing laws and entitlements. If there was a problem, the real issue was that these laws and entitlements were available for such exploitation. I did not regard the motivation of Christian Voice as being of any significance.

But then, prompted by their latest antics, I examined their website and found an astonishing document entitled Britain in Sin - see here.

I have never read a document by any British pressure group which is so completely contemptuous of the rule of law, and of civil liberties and human rights.

The document purports to set against each of the Ten Commandments the legislation (and sometimes government policy) which, in their view, is contrary to that Commandment.

(Needless to say, as with any fundamentalist "Christians", there is no mention here of the actual ethical teachings recorded for their supposed founder, Jesus of Nazareth. No cheeks are turned, and every stone cast is the first one.)

To capture the sheer and stark affront to legality and democracy contained in this document, it should read in full. But a flavour can be gained by the following.

"Thou shalt have no other gods before me" seemingly means that the United Nations, the Universal Declaration of Human Rights, and the European Convention on Human Rights should all be disregarded. This is not because of any practical difficulties, but because they are examples of the "Enlightenment" and thereby break the First Commandment.

And so it goes on. Some of the examples are bizarre. The Fraudulent Mediums Act breaches the prohibition on false idols as it "legalises necromancy"; as does the Sunningdale Agreement on Anglo-Irish affairs, but here no reason is even given.

The entire social security and housing systems, and all state education, are a breach of the commandment to "Honour thy father and mother"; as is the postwar fiscal policy of budget deficiting, apparently because Keynes was "a promiscuous homosexual" who "hated thrift, saving and financial prudence".

Bizarrely, the 1931 suspension of the Gold Standard is even held to have broken the Commandment of "Thou shalt not steal".

And this is before one even gets to their disdain of all the Jenkins-type liberal reforms, such as of divorce and homosexuality law.

The document, however, is that of a cowardly group. It strongly states that one should follow God's law, and passionately details how the local law is contrary to such an imperative. But the practical implication of this stance is ducked in this document.

The practical implication is, of course, that the local laws are illegitimate and should not be obeyed. And news reports show that is the implication that Christian Voice do draw.

It explains the conduct of Christian Voice in some of their, in my view, unlawful attempts to curtail free speech in their demonstrations, for a recent example see here.

Indeed, as Mr Green is reported as saying when blasphemy was abolished:

"Christians will now have to take matters into their own hands when Christ is insulted on stage and on screen".

So not only are Christian Voice contemptuous of the rule of law, and of human rights and civil liberties, their actions and public statements reveal this contempt.

This dark side of Christian Voice should be borne in mind when we read of their latest idiocy.

It certainly throws into context their cynical uses and abuses of law and the legal system.

Sunday, 18 January 2009

On Introducing Mr Jeremy Sherr

I would like to introduce you to Mr Jeremy Sherr, a homeopath.

Mr Sherr is a controversial figure, the reasons for which are set out in the fine post by Gimpy here.

On the science and ethics side, I can add nothing to the severe criticisms made of Mr Sherr by Gimpy, Ben Goldacre, Le Canard Noir and others here.

But what does concern me is Mr Sherr's interesting use of law. For example he relies greatly on the Tanzanian legislation on Alternative Medicine. I will post on this curious stance soon, as my reading of the statute is very different from his.

He is now also threatening to sue for libel, see his assertion

I have posted a comment on that page asking Mr Sherr to set out why exactly the statements he describes would be libellous, that is why such statements would make people think worse of him (the legal test for libel).

He has so far not posted my comment or an answer. This is a pity, as his answer on that point would be most interesting.

Does Mr Sherr actually think that people would think worse of him for promoting homeopathy instead of conventional treatment?

It would be a surprising, but heartening, admission for him to make.

Saturday, 17 January 2009

On The Non-Atheist Bus Driver

The Atheist Bus Campaign is superb; a great triumph for the secular cause.

However, I am concerned about some of the attitudes expressed about Ron Heather, the bus driver who does not want to drive such a bus. See story here.

I always flinch when I think a mob is forming, even if it is a mere cyber mob. This is especially the case where I share some of the views being expressed.

I guess this is usually an over-reaction, but it is an instinctive response which I am glad to have.

The bus driver is not a wedding registrar refusing to do a civil ceremony, nor is he a chemist refusing to dispense a morning-after pill. In those cases, the individual is refusing to the job they are actually paid for.

The bus driver does not wear a sandwich board. He does not post adverts on bill boards. He is not an advertising executive with an account. In fact, he is paid nothing for the adverts and I expect it does not feature in either his employment contract or job description.

He is simply paid to drive a bus. This is what he seems willing to do. The bus company and their employee seem to have reached a compromise where he can drive other buses. This is what I hope would happen with an atheist bus driver complaining of a Christian advert.

The advert is incidental to his job, not a central feature. Carrying the advert is not a job requirement.

The Atheist Bus Campaign should be a celebration, a positive signal. We should not be horrid to those who do not share our views.

This is simply not a case where such a person should be forced to be offended.

(Declaration of interest, I come from a family of professional drivers, including bus and taxi drivers!)

Thursday, 15 January 2009

On A New Libel Threat Against Science: NMT Medical v Dr Peter Wilmshurst

Please see below from the excellent Health Watch site.

This is an absolute outrage.

I will see what further information I can find and will revert back.

"Dr Peter Wilmshurst – an appeal for support

Dr Peter Wilmshurst is a previous recipient of the HealthWatch Award (in 2003) for his courage in challenging misconduct in academic medical research. He is now being sued for libel and slander by NMT Medical, based in the US, who are the manufacturers of a device (STARFlex)

He was one of two principal co-investigators in a clinical trial to test whether using the STARFlex device to close a hole between the right and left atriums of the heart (patent foramen ovale) would reduce the incidence of migraine, particularly migraine with aura.

The published results of the trial were negative. Dr Wilmshurst, who supported the idea that closing such shunts might affect migraine, later put forward several ideas why the results were negative, with which the company disagreed. He is now being sued in a British court. See below for the full news story from the BMJ.

The Medical Defence Union (MDU) will not help him. They say that whether they provide help is discretionary.

His NHS Trust will not provide any financial help for his defence. This is despite the fact that the Trust received money from the trial. He was contracted by his hospital to do research and this research was approved by the Director of R&D (i.e. it was part of his job). He commented on the results at a scientific meeting (also part of his job), but the Trust has now abandoned him to pay for his own defence.

HealthWatch offers an Award annually to the person we think has done most to explain why clinical trials, which are usually very valuable, may sometimes be unreliable. One of the reasons is that the researchers may falsify their data. Exposing this bad practice usually requires a whistle-blower who thereby puts his own career in peril. In 2003 we honoured Peter Wilmshurst for doing exactly that, and we hope it may have encouraged others to do likewise. He has now done a similar service concerning the device promoted by NMT.


Cardiologist is sued for comments on potential migraine device

Clare Dyer

A leading British interventional cardiologist who was a joint principal investigator in a clinical trial of a device made in the United States is being sued for libel and slander in the English courts by the manufacturer. The case concerns comments attributed to him about the trial that were posted on a US based news website for heart specialists.

NMT Medical, which is based in Boston, Massachusetts, makes the STARFlex septal repair implant. The company has launched the legal action against Peter Wilmshurst, a consultant cardiologist at the Royal Shrewsbury Hospital. Dr Wilmshurst and a headache specialist from King’s College London, Andrew Dowson, led the Migraine Intervention with STARFlex Technology (MIST) trial in the United Kingdom to study the effect of the device on migraine (Circulation 2008;117:1397-404).

The company is suing over an article published in October 2007 by Heartwire, an online cardiology news service ( Dr Wilmshurst gave an interview to a Heartwire journalist, Shelley Wood, at the transcatheter cardiovascular therapeutics meeting in Washington, DC, in 2007.

The MIST trial was launched in early 2005 to study whether using the STARFlex device to close a hole between the right and left atriums of the heart—patent foramen ovale—would reduce the incidence of migraine, particularly migraine with aura.

Migraine is relatively common among people who have right to left shunts, which allow blood to flow from the right to the left atrium; and those who have had shunts closed for other reasons have reported a reduction in the frequency and intensity of migraines.

The published results of the trial were negative. Dr Wilmshurst, who supported the idea that closing such shunts might affect migraine, later put forward several ideas why the results were negative, with which the company disagreed. He suggested that in some cases the device might not have sealed off the shunts and that some of the patients might not have been properly screened, with the result that they were included in the trial, even though they did not actually have patent foramen ovale.

Two members of the steering committee, Dr Wilmshurst and Simon Nightingale, also of the Royal Shrewsbury Hospital, were not listed as authors of the study. They had been offered coauthorship but refused because they were not allowed access to the whole data set.

In his 90 page defence to the libel action, filed at the High Court in London, Dr Wilmshurst admits making some, though not all, of the comments attributed to him but says that his statements were true and made in the public interest.

NMT Medical’s solicitor, Robert Barry, told the BMJ that the company disagreed with Dr Wilmshurst’s statements but did not want to comment and would be producing a detailed answer by 25 November, the date fixed by the High Court. The company is also seeking an injunction to restrain Dr Wilmshurst from repeating his comments.

Dr Wilmshurst admits telling Ms Wood that some of the data he had seen were "internally inconsistent and mathematically impossible." He says he also told her that one theory for the MIST trial’s failure was the possibility that a high rate of residual shunts remained among patients who had supposedly had their patent foramen ovale closed.

He admits saying that his review of the echocardiograms suggested that the rate of residual shunts was approximately one third of the total, although Dr Dowson told the Washington conference that the residual shunt rate was only 6%. It was possible, Dr Wilmshurst alleged, that some of the patients enrolled in the trial may not have been properly screened and may not have had a patent foramen ovale.

Further investigation could have determined whether residual shunting was in fact a problem with STARFlex, he told her, but he had not been allowed access to the full data set. If it was a problem, he said, "that information needs to be in the public domain" and would have "much larger implications for STARFlex, a device already marketed in Europe for the treatment of cryptogenic stroke."

His solicitor, Mark Lewis of the law firm George Davies, argues in Dr Wilmshurst’s defence that he was "under a social, moral, and ethical duty" to make the information public and that the cardiologists and other healthcare professionals who read the Heartwire article had a legitimate interest in receiving the information.

The defence alleges that the libel action is "highly oppressive and unconscionable" and intended to "bully" him into silence.

Richard Davis, NMT Medical’s vice president and chief financial officer, said that the company did not want to comment on pending litigation. "He’s making these comments, they’re not new, and we believe they’re inaccurate and inappropriate."

Cite this as: BMJ 2008;337:a2412

Reforming the English Law of Libel

The English law of libel is wrong in so many ways, one has to retreat to basic principles so to work out how to deal with it.

First, there is the question of the appropriate function of libel in a modern society: what is it actually for? Those who follow British public life are used to it just being there; but those less familiar with Britain's quirky political-legal culture are bemused and uncomprehending.

Historically, the law of libel protected reputation. Over the last few decades, however, the various areas where statements can really damage reputation - professional dealings, employers' references, credit references, reports to authorities - have come under the doctrine of "qualified privilege". This means that a claimant cannot sue - even if the statement is false or grossly unfair - unless they can show that the defendant is being malicious. Absent malice there is no case to answer.

The scope of qualified privilege means that the law of libel now deals with a residuum of situations. These can include the neighbour writing false letters to the press or to neighbours; but it is now most commonly used for statements published or broadcast by commercial media entities.

Because (in my view rightly) many sensible people are appalled by the antics of the tabloid media, the law of libel has developed into the primary weapon of those who suffer (or who could suffer) by a tabloid splash, and this is at the cost to quality and responsible journalism.

Instead of protecting reputation, the law of libel has become the vehicle for managing publicity.

That publicity needs to be managed is arguable; but that does not mean that it should be the law of libel which is used for this purpose.

Indeed, the law of libel is conceptually and practically ill-suited for such suits.

Libel is a tort, like trespass or negligence. In trespass, it is enough to show that the trespasser is on your land; in negligence, it is enough to show that you have suffered an injury caused by the breach of a duty of care. Similarly, and not unsurprisingly, the law of libel merely required the claimant to show reputation had (or could be) suffered by a statement. Reputation was treated like property or personal safety; one had a "cause of action" when it was interfered with. To this day, libel - like trespass - is actionable per se - one does not even have to show loss to be entitled to a legal remedy.

But when libel is taken from its true function of protecting reputation and used instead to control publicity, the problems and abuses begin to manifest and multiply. If I trespass on your land, I have a defence if I have a licence (ie, permission); and there is no injustice in the court's requirement that I prove that I have a licence. However, if your reputation is damaged by my libel, there can be injustice in the requirement that I prove it is true or a "fair" comment. Such an onus on the defendant, which is appropriate in trespass case, is inappropriate in a libel case.

This is the "reverse standard of proof" for which English libel law is both famous and infamous. But it does not need to be this way. There is no reason for the tort to have such a legal structure. For example, a claim for negligence has to show that (a) there was a duty of care, (b) which was breached, and (c) which caused loss. Closer to home, the (under-used) tort of "malicious falsehood" requires the claim to show both malice and falsity.

In libel, therefore, there is no good reason why it could not be reformed so that it falls to the claimant to show not only that reputation is damaged, but also that the statement at issue is false or unfair. From a technical point of view, the effect of such a reform would be neutral - the same things would have to be shown for a claim to ultimately succeed - but in practical terms the change would be profound.

At a stroke, in my view, many of the abuses of English libel law would disappear.

It is the current ability of a claimant to get the claim off the ground, and so force the defendant to chose to either expensively mount a defence or surrender, that opens up the opportunities to exploit "conditional fee arrangements" and "libel tourism".

There can be no objection to such a reform from a legal perspective; it merely aligns the tort of libel with the torts of malicious falsehood and negligence rather than the tort of trespass. Such a reform would not even need legislative intervention: the law of libel is common law, and it is open to the English courts to reformulate the elements of any common law tort.

There are other changes would which could be made, though these are less urgent. For example, the basis of the award of damages could be modified.

Currently, the claimant can sue for "general damages". This is the amount which the court awards for the libel. The court can also award "specific damages" for actual, provable loss. The court can also grant an injunction or make a declaration.

In my view, general damages should now only be awarded for malice or if the defendant has not made an appropriate apology or correction. This would not be a difficult change to make - the courts are already experienced in dealing with malice in the context of qualified privilege. If the law of libel is actually to deal with reputation then injunctive or declarative relief would be sufficient to address the injury suffered.

Another reform would be to limit the circumstances where a libel claim can be brought without loss. This is already the case with slander, where claims can only be brought without loss in the context of business or professional reputation.

In reforming libel, however, sight should not be lost of the wider legal context.

As I said above, the law of libel has been distorted as it is (currently) the easiest legal means to control publicity. The demand for a legal way of doing this will remain and may distort any reformed law of libel.

Accordingly, the law of libel should not be treated in isolation.

Libel is one of a vast range of legal means of dealing with unwelcome statements.

Some of these means are also torts or other "private law actions" where one person sues another- slander, malicious falsehood, privacy, confidentiality, nuisance, and copyright.

Other means are criminal sanctions, where the State prosecutes the individual for a mere statement - deception, official secrets, incitement to religious or racial hatred, obscenity, outraging public decency, public order offences, even some terrorism offences.

And then there are regulatory means, where a person can complain to a specialist body - Press Complaints, Advertising Standards, Trading Standards, the Information Commissioner, and (of course) the local authority if the statement is being made far too loudly by your next door neighbour.

Overarching all these legal means is the qualified right of free expression under the Human Rights Act. This creates a presumption that any expression is lawful, unless there is public interest in it being limited.

Any reform of libel should have regard to this legal context.

In my view, the developing law of privacy - where the claimant can have protection against public statements about private matters without having to (artificially) show that it affects reputation and where it does not matter if the statement is true or false - and the law of malicious falsehood can be left to deal with managing publicity.

A select committee of the House of Commons is examining possible reforms of libel law, so a reform may even happen soon...

Tuesday, 6 January 2009

On The Adoration of the Magi

Today is Epiphany, the celebration of the visit of the Magi to the infant Jesus.

So this is a good excuse to feature here the magnificent work of art above and to suggest its significance for Christianity.

The work is the Adoration of the Magi by Leonardo da Vinci. It is unfinished and dates from around 1482, when the 30 year old Leonardo left Florence for Milan.

It is a startling picture, not least because the Magi are shown to be deeply awed or starkly terrified. Such responses would of course be entirely appropriate to God becoming man.

This depiction contrasts with the still and dutiful aristocrats conventionally shown as attendees to the great event, for example the Adorations of his contemporaries Botticelli:

And the usually disturbing Bosch;

If the adoration actually did occur, I suspect Leonardo's psychological realism would be nearer the mark.

Leonardo scholars suggest that he was more concerned with the technical problems of human and other representation, and that this explains his approach to this and other works.

That said, he did leave this potential altar piece unfinished, and I often wonder if this is because the monks were shocked.

Leonardo did not only show the effect Jesus would have if he was God but also if he was human.

The Benois Madonna shows Mary playing with Jesus as if he was indeed a baby (if somewhat obese) and she was a happy young mother:

As, to a lesser extent, does his Madonna of the Carnation:

Leonardo's depictions of Jesus as a God or as a man are perhaps disconcerting to us, but they really should not be.

The fault lies with the conventions of Christian art, which often makes bores of all its subjects.

If Jesus was God then it would suddenly and fundamentally change the lives of those who realised it. And if Jesus was man then he would indeed be like a human being, as a baby and an adult.

But Christian art too often depicts him as neither.

My late Grandad said that if Chritianity was true, then why did Christians look and sound so bored (he had turned over to Songs of Praise by accident).

Leonardo in a way shows what it would be like if Christainity was true.

One wonders what the original Last Supper looked like (now almost gone); not so much for the amazed and telling looks of the disciples, but for the look on the face of Jesus.

Monday, 5 January 2009

On Israel And Other Such Political Problems

One politician once said to another:

"Dear boy, you are not one of those who believe that there are solutions to political problems?"

I like to think highly of human potential, and of what decency and goodwill can achieve. However, certain political tensions do not seem to lend themselves to "settlement".

The tension continues, and sometimes it explodes, until one side is defeated, or surrenders, or is just plain exhausted.

Unless one side gives way in such a manner, talks and treaties are well-meaning but often inconclusive.

And a mis-judged "settlement" - such as the Treaty of Versailles - can indeed make things worse.

All that said...

...the option of simmering tensions and short-term crises may sometimes be preferable than for one side to collapse or be defeated.

Sunday, 4 January 2009

On Why Weren't The "Good Guys" Celebrated?

Why are the "good guys" not celebrated in English folklore and popular culture? At least, not before the 1900s?

It is a difficult question, but this is my theory.

Until the 1900s, it was the "bad guys" - the law breakers - who were celebrated rather than those who enforced it.

Take for example the thief Robin Hood:

Or the highwayman Dick Turpin:

Or even the underworld king Jonathan Wild:

In contrast, those charged with upholding the law were the villains. For example, the Sheriff of Nottingham:

Or the witchfinder Mathew Hopkins:

And the hanging Judge Jeffries:

Even the literary character Sherlock Holmes was a private operator, usually working independent of (or in spite of) the officials who enforced the law.

So, in view of the lack of a tradition of the law enforcers as "good guys", it is perhaps not a surprise that the first popular police screen characters were the slapstick Keystone Cops, and not anything more dignified:

Indeed, it was only the cinema and television age, with a fictional invention such as Dixon of Dock Green - following the American wild west sheriff and Elliot Ness traditions - that there appears any popular sense in England as a law enforcer as a good guy:

Why was this?

I think the answer lies in a sense of the law's legitimacy. Before the 1900s, legislation was associated with the "them" and not "us". Even though the sheriff of Nottingham, Hopkins, and Jeffries were on the side of law and order, and that Robin Hood, Turpin, and Wild were dishonest law breakers, the latter somehow had more legitimacy when the tales were told.

As such, perhaps the popularity of the criminal as folklore - or literary - hero is perhaps a good barometer of the popular sense of legitimacy of law itself.

All because the bad guys are often starkly without merit, that does not mean that those who wield the State's immense power get instant easy support.

The legitimacy of State power always has to be earned. The State does not, and should not, get it by default.