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Monday, 30 November 2009

On Denialism

Is Denialism a helpful term?

This question is prompted by a rather spirited exchange of views earlier today on Twitter. It was a discussion about climate change and global warming.

The discussion originated in the outraged reaction of a very eminent Bad Science blogger to a personal recommendation of a book for Christmas by a scientist on a science charity website.

The charity is Sense About Science, the co-ordinators of the Keep Libel Laws Out Of Science campaign.

(And here I declare my interest - I was another person asked to recommend a Christmas book on that same site: see here and scroll down past a more controversial choice to my more low-brow recommendation.)

The Bad Science blogger was very unhappy, for the book recommended by a scientist was Global Warming and Other Bollocks by Stanley Feldman.

It seemed that it was no business of a science charity to allow such a recommendation, for it was a Denialist book. And to carry this personal recommendation was in effect an endorsement. Someone somewhere at the charity, the blogger noted darkly, must have sanctioned such an endorsement.


At this point, I actually thought the blogger was joking.

Surely, it comes to a pretty pass when a science charity should censor personal recommendations of Christmas books on the basis of the correctness or soundness of the science, with Denialist texts to be summarily excluded.

I half-expected the Charity's Christmas cards to be the next target, perhaps for not showing a Snowman melting quickly enough.

But he was not joking; this was all deadly serious; it seems people should not to be allowed to know that this was someone's recommended Christmas book.

And this got me thinking.


For some time I have been troubled by the tone of climate change and global warming discussions, especially the use of the terms Denialism and Denialist.

As a layperson, I regard Denialism and Denialist as rather unhelpful terms.

Indeed, I would even propose a general rule.

Whatever the other merits of making an accusation of Denialism, it will usually tend to be a public engagement FAIL.

That is not to say that the term should be banned; I am not a banner. There may not be a public engagement context, or that context may not perhaps matter. And the term may well mean something important and precise to at least one person in the discussion and so may be preferred.

But for any layperson following the discussion, the accusation of Denialist can be problematic and off-putting. The important thing is to see whether someone is incorrect, and more emotionally-charged terms cannot not assist on this.


So returning to the Twitter discussion, my subsequent Tweets tell the story of how my mind started working:

"I do not like the way films and books are now trampled on as "denialist". It is a form of non-legal chill"

"For example, even I dare not ask critical questions about climate change as I anticipate endless bother. So I accept party line"

"So if it is so clear, why this clamour to stop access to the "wrong" stuff. It seems quasi-religious."

"Well, it makes an onlooker like me genuinely think you guys are trying to silence inconvenient truths."



So I decided to try and form my own view:

"Challenge re climate change debate: please someone recommend places where layperson can see evidence not contentions pro/anti"

"As a non-scientist skeptic, I want to see how far I can go to forming my own view without party-line, or being called denialist or whatever."

"Want to see info (a) climate change is happening, (b) it is man-made, (c) and if (a) correct (regardless of (b)), what can be done about it."

"I want to understand why the denialists are wrong. I am unimpressed by just getting them to shut up because they say unwelcome things."

"And until it is clear to a layperson what the evidence actually is, shouts of denialism seem inappropriate and counter-productive."


I added:

"I care not if someone is a "denialist". It is enough for me that they are incorrect."

(I then received dozens of links from many helpful people.)


Whilst I was typing these Tweets, I was also thinking about the recent revelations about the Climatic Research Unit at the University of East Anglia. On this, I share George Monbiot's concerns.

I am afraid I am now uncomfortable giving environmental campaigners the usual benefit of the doubt.

This is not to say that they are necessarily wrong or discredited. And it is certainly not to say that the likes of Christopher Booker, whose journalism about legal issues and EU law is so demonstrably incorrect and ill-informed, can crow about some imagined victory.

Instead, I believe that it is appropriate for laypeople to form their own views, to try and evaluate the evidence, and to try and assess the policy options against that evidence.

No longer should laypeople be deterred from raising critical questions about climate change and global warming because of the risk of being dubbed a Denialist. It may well be that they never should have been deterred; but I for one was, and I know of others.

And those proponents of climate change and global warning should no longer rely on the Denialist weapon. We all need to understand why the supposed Denialists are wrong, not just be told that they are so and for their books to be banned from even being recommended by a science charity for me to read at Christmastime.


So I have embarked on a layperson's journey, to see what I can grasp of the evidence for climate change and global warming, and the policy implications of this evidence. My conclusions may well have no wider significance; but at least they will be my conclusions, and not ones imposed on me.

I will Blog from time to time on this journey. My first task is to understand the evidence for there being climate change and global warming; I will then seek to comprehend whether any evident change and warming is man-made, and indeed whether it matters if it is; and finally I will form a view on what, if anything, should be the political response.

I shall do this sincerely, and I do not knowingly have preconceptions.

Unlike other areas where Denialism is used in political discourse, I am not aware of having already strong or final views. (On HIV/Aids, I am strongly prejudiced against Rath et al, not least because of following the lawsuit against Ben Goldacre; and on the Holocaust, I regard Richard Evans's book as a sheer historical masterpiece.)

And so, undeterred by the risk of being called a Denialist, I am looking forward to what I hope will be a curious intellectual adventure....


ADDITION

5 December 2009: I have started an entirely new Blog to chronicle this adventure: Jack's Climate Quest .



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Thursday, 19 November 2009

Paul Clarke: An Anatomy of an Injustice

When the story about the prosecution and likely sentencing of Paul Clarke for the possession of a shotgun emerged at the weekend, it prompted a Twitter frenzy and even became a "trending" topic (hashtag #PaulClarke).

Typical Tweets were to the effect of:

"WTF! Man facing five years for doing his civic duty" and

"Man arrested just for handing gun in at police station".

As a result of this interest, my Blogpost on the case, pointing out that there was something to be said for possession of a shotgun being unlawful, received over 11,000 hits in two days.

In my Blogpost I was careful to note that, in this particular case, bringing the prosecution and the mandatory minimum sentence may both be asses, even if the underlying law was sound.

As a follow-up to that Blogpost, and as an exercise in trying to show the value of legal blogging, I will now set out the fuller context to this prosecution. The following is based on original research and various interviews.

If you believe that this case is an injustice (which is my opinion), then this information will enable you to identify the stage or stages in the process where the injustice lies.

Is it the strict liability offence itself?

The mandatory minimum sentence of five years?

The arrest and charge at the Police Station?

The decision to prosecute by the Crown Prosecution Service?

The court hearing?

The jury's conviction?

You decide.

And, if you do not think it is an injustice, at least you may be better informed about how any injustice was avoided.


1. The Offence

Mr Clarke was charged with the offence under section 5(1)(aba) of the Firearms Act 1968. This provides that:

"A person commits an offence if, without the authority of the Defence Council..., he has in his possession, or purchases or acquires, or manufactures, sells or transfers...any firearm which either has a barrel less than 30 centimetres in length or is less than 60 centimetres in length overall, other than an air weapon, a muzzle-loading gun or a firearm designed as signalling apparatus."

This is a strict liability offence: the simple possession of such a weapon constitutes the crime.

Such a basic and general prohibition would appear to be sensible in any gun control regime (and I strongly favour gun control), but it does have very problematic implications.

One such implication was set put by my fellow skeptic, Mike Ward, who writes as Schroedinger99. In his excellent and thoughtful Blogpost on Paul Clarke, he sets out the following scenario:

"Suppose I found a loaded gun in a park frequented by children (though deserted at the time of my discovery) and did not have my mobile phone on me. What should I do? Leave it there? Hide it? Take it to the police and rely on the good will of the CPS?"

In this situation, which I will now call Schroedinger's Shotgun, there is no easy answer. Picking up and taking the gun to the Police would, in principle, incur criminal liability.

It may be that one would not be arrested, charged, or prosecuted; or it may be that one would be able perhaps to run (a rarely successful) defence of necessity.

The Good Samaritan with Schroedinger's Shotgun would be commiting a criminal act.

However, with strict liability offences, there should always be flexibility in respect of when prosecutions are bought and flexibility also in sentencing. It is by these means that a just legal system ensures that a strict liability offence does not lead to injustice.


2. The Punishment

There is intended to be no flexibility in the sentencing for those convicted of the section 5 offence.

Under section 51A(5)(a)(i) of the Firearms Act 1968, "'the required minimum term' means..in relation to England and Wales...(i)in the case of an offender who was aged 18 or over when he committed the offence, five years".

The only exception is provided for under section 51A(2):

"The court shall impose an appropriate custodial sentence (or order for detention) for a term of at least the required minimum term (with or without a fine) unless the court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify its not doing so."

The word "exceptional" ensures that the mere circumstances of the offence or the offender are not enough: in either case the circumstances must be exceptional.

This mandatory minimum sentence, however, was not always the case.

Mandatory minimum sentences for a range of firearms offences were introduced by the Criminal Justice Act 2003, one of the most notorious and illiberal statutes ever passed by Parliament. The director of the pressure group Liberty stated:

"In years to come, as more innocent people emerge after years in prison caused by these plans, we'll wonder how Parliament let this shameful attack on justice get into law".

The legislation relating to mandatory minimum sentences for a range of firearms offences were not even properly scrutinised by Parliament. They were introduced at the very late (and post committee) "Report stage".

Introducing the raft of late amendments, the Lord Chancellor stated:

"Clauses 271 to 276 introduce a mandatory minimum sentence for firearms offences. This is a clear demonstration of the Government's commitment both to deter criminals from using firearms and to ensure that they receive an appropriately tough custodial sentence on conviction."

These were warmly supported by Labour peer Lord Harris of Harringey

"Clause 271 sets out minimum sentences for unauthorised use of firearms which are welcome. I sincerely hope that they will act as a deterrent to the routine carrying of firearms as a fashion accessory, the risk of which is that a minor dispute or scuffle can quickly escalate into a serious incident in which a firearm is used.

In a recent case an individual was shot by someone with whom he had had a minor dispute on a dance floor. The bullet killed the first victim, and, having passed through him, travelled through a partition wall and killed a second unrelated victim. If this clause proves an effective deterrent in reducing the number of people carrying firearms in public, such incidents will become less likely and public safety will be improved and lives saved."


In my view, a more sensible position was stated by the Liberal Democrat peer, Lord Dholakia

"Equally objectionable are the provisions for minimum sentences, both those relating to firearms offences in Clauses 271 to 276 and those relating to life sentence tariffs in Schedule 17. Minimum sentences are fundamentally wrong because they prevent judges from doing justice to offenders by tailoring the sentence to the individual circumstances of the case. They are wrong because they deter guilty pleas, unnecessarily put witnesses through the trauma of giving evidence and, because of the difficulties witnesses face, sometimes produce wrongful acquittals of offenders. In those cases the offenders will walk free, although they would have pleaded guilty if they had not been confronted with a draconian minimum sentence."

(The Lords debate is also notable for the well-informed reservations of two Law Lords - Woolf and Ackner - at the restrictions on sentencing discretion throughout the bill.)

The distinguished Joint Lords and Commons Select Committee on Human Rights then issued a damning report on the Criminal Justice Act 2003, including the provisions on mandatory minimum sentences for firearms. The report stated:

"We consider that doubts about the ability of courts to take account of a defendant’s personal circumstances when sentencing mean that there is a risk of a violation of ECHR Articles 3 and 6.1 in individual cases."

(Article 3 covers punishments; Article 6.1 covers fair trials.)

The Committee's Report further stated:

This [provision] would require a court to sentence a person convicted of certain offences under section 5 of that Act to a minimum term of imprisonment of five years if the defendant was aged 18 or over at the time of the offence, and three years if he was aged 16 or 17 at that time.

If this prevents a court from having regard to the circumstances of the particular
offence and the individual offender when passing sentence, it could deprive him or her of a fair hearing, violating ECHR Article 6.1, and fail to treat him with appropriate respect for his or her humanity...

[...]

In the case of this clause, however, new section 51A(2) of the 1968 Act would allow the court not to sentence to the statutory minimum term if it is ‘of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify its not doing so.’ In relation to mandatory life sentences for repeat offenders, the Court of Appeal (Criminal Division) has discharged its responsibility under section 3 of the Human Rights Act 1998 to give a somewhat extended meaning to the term ‘exceptional circumstances’justifying not imposing the life sentence.

[...]

However, it is not clear what would count as an exceptional circumstances in the context of a variable sentence with a minimum term for an offence involving firearms, rather than a mandatory life sentence."


I have not been able to track the government's response to this.

But, in any case, the Criminal Justice Act 2003, with its late, unscrutinised, and illiberal amendments to the Firearms Act 1968, duly took full legal effect.


3. Paul Clarke enters the Police Station

It was with this statutory regime in place, of which he was clearly unaware, that Mr Clarke took a shotgun to the Police Station.

Mr Clarke is perhaps not necessarily the most sympathetic character, though the test of a just legal system is how such figures are treated.

He had previously overturned on appeal a conviction regarding an attack on a DVLA inspector with a broomhandle. The news report of that case does suggest a certain implausibility to the account of Mr Clarke, but nevertheless his conviction was quashed.

His solicitor has also volunteered in a radio interview that there was a previous incident involving a cattle prod. There may be other incidents.

It is clear that Mr Clarke and the Police knew each other well. I understand that Mr Clarke may also be currently suing the Police in a civil action.

It is also clear that Mr Clarke is a forthcoming member of his local community. A local paper report carries the following interview:

"Paul Clarke, 26, of Nailsworth Crescent, Merstham, said: "Every area has a posher and a poorer end of town. If Merstham was in Lambeth, it would be the posh bit where the councillors live.

"I'd much prefer to live in Merstham to the centre of Reigate. At least we know our neighbours, and can knock on their door to borrow teabags.

"We may not all have a lot of money, but we have a lot more fun and people are friendlier.""


Mr Clarke telephoned the Police Station and asks for (and is put through to) Chief Superintendent Adrian Harper.

Perhaps unwisely for someone about to appear with a shotgun and ammunition, Mr Clarke tells Chief Superintendent Harper:

"I’ve got something to give you”.

(This does rather evoke the similarly ambiguous "let them have it" of Derek Bentley.)

When Mr Clarke does turn up at the Police Station he is arrested and placed in the cells.


4. Mr Clarke's version of events

Mr Clarke gave a statement to the Police. In this statement he says he found the shotgun and ammunition discarded in his garden two days previously and that he was handing the shotgun to the Police as his civic duty.

(This statement was later read out in court.)

Regardless of whether this story is plausible, it is important to note that this is the only version of events present in the now-initiated process. I understand that there has not been any evidence controverting this version considered at any stage.

Although this version has not been tested by cross-examination, it has not been contradicted. Mr Clarke's testimony on this is the sole basis for the prosecution brought against him.


5. The Guidance for Police in such a situation

What should the Police have done?

In 2002 (and thereby before the Criminal Justice Act 2003), the Home Office published formal guidance to all Police Forces on how to deal with firearms offences.

This guidance is still available on the Home Office site and presumably is still in force.

Chapter 25.5 of this guidance provides sensible advice for Police Officers when someone turns up at a Police Station to surrender an illegal firearm.

"Anyone surrendering an illegally held firearm should be questioned discreetly with a view to establishing its history but, unless circumstances exist to give serious cause for concern as to its provenance (for example, if it appears to have been stolen), the person handing it in should not be pressed. The emphasis should be on creating an environment in which people hand in illegally held firearms."

I asked Surrey Police whether they could confirm whether there had been any regard to this guidance in arresting and charging Mr Clarke. Their press office provided me with the following statement:

"A 27-year-old man, charged with possession of a prohibited weapon, has been found guilty at Guildford Crown Court and is awaiting sentence. It is inappropriate for us to comment further at this stage as we do not wish to influence sentencing.

Anyone who finds a sawn-off shotgun or a handgun should treat it as suspicious and as a potential crime scene, and report it to police immediately via the 999 system. A crime may have occurred and forensic opportunities need to be preserved."


So it is still not known whether the Surrey Police had any regard to this important operational guidance when they decided to arrest Mr Clarke.

But, as we will now see, the Crown Prosecution Service is commendably more willing to comment, notwithstanding the issue of sentencing.


6. The decision to prosecute

It is for the Crown Prosecution Service to decide whether to prosecute. Such a decision should always be taken on the basis of the public interest.

As the version of the facts provided by Mr Clarke is the only one at play here, the decision that the public interest required a prosecution seems in need of an explanation.

This is particularly so when the combination of a strict liability offence and a minimum custodial sentence means that the decision to prosecute is in effect a decision to impose criminal liability and at least a five year sentence.

I now set out in full, so you can form your own view, the email exchange I had with the helpful press office at the Crown Prosecution Service.


JoK Question:
Please confirm whether the decision to prosecute was taken personally by the Chief Crown Prosecutor for Surrey.

CPS Answer:
“A District Crown Advocate in the Crown Prosecution Service in Surrey authorised Surrey Police to charge Paul Clarke. Each case is kept under constant review and following a further review of the case Portia Ragnauth, Chief Crown Prosecutor for Surrey, decided that it was still in the public interest to bring the case to court.”


JoK Question:
Please tell me what you can about why the CPS decided to prosecute this case, especially as (a) the facts before the court (and not it seems controverted) would indicate such a prosecution was not in the public interest, and (b) the Home Office's relevant guidance states:
"Anyone surrendering an illegally held firearm should be questioned discreetly with a view to establishing its history but, unless circumstances exist to give serious cause for concern as to its provenance (for example, if it appears to have been stolen), the person handing it in should not be pressed. The emphasis should be on creating an environment in which people hand in illegally held firearms"

CPS Answer:
“Under the Code for Crown Prosecutors the CPS considered it was in the public interest to prosecute Mr Clarke as he was in possession of a sawn off shot gun. He had come into possession of the shot gun and two shotgun cartridges some days earlier and had not immediately contacted the police to make them aware of its existence. He was given the opportunity by the police to explain the full circumstances as to how he was in possession of the lethal weapon but his explanation lacked credibility. “


JoK Question:
Can you expressly confirm whether the CPS had any regard to the relevant Home Office guidance in their decision-making, in particular chapter 25.

CPS Answer:
"This Home Office guidance as indicated is operational guidance addressed to the police and is not guidance to CPS prosecutors on how to deal with cases involving firearms offences. Crown Prosecutors apply the Code for Code Prosecutors when considering whether or not they should prosecute.

When making our decision we took into account that:
It’s a strict liability offence which means there is no defence to any possession.
It is a sawn off shot gun which is an aggravating feature. It carries a minimum of 5years imprisonment-mandatory-unless there are exceptional reasons. Our charging is quite clear because of the serious nature that these weapons can inflict, statute was passed to ensure that the possession reflected the serious nature hence 5 years imprisonment."



JoK Question:
On what basis was it decided that Mr Clarke's account lacked credibility?

CPS Answer:
"Paul Clarke claimed that he found the shot gun in his garden and decided to bring it to the police station. Evidence showed that he was in possession of the gun and the cartridges for some days earlier and that at that time he did not try to contact the police, for them to collect the weapon. He could not explain why he waited some days before bringing the gun to the police station and why he did not contacted the police for them to come and collect the gun.

The jury heard both the defence and prosecution case and reached the verdict that Paul Clarke was guilty of possession of a firearm."



Jok Question:
Is it correct to say that the CPS did not have regard to that guidance? I should be most grateful for a simple yes/no.

CPS Answer:
"The CPS did not have regard to the Home Office guidance as I explained it is guidance to police officers."


Whatever the merits of the decision by the CPS to prosecute Mr Clarke, I think the press office at the CPS should be congratulated for providing these full answers in a matter of current controversy.

(The CPS's own guidance on when to prosecute is here.)

However, the worrying aspect of this is that the decision to prosecute was based on what appears to be a subjective reaction to the only evidence available: Mr Clarke's own version of events.


7. The Court Hearing

The court case did not last long. It started late one afternoon, and the verdict was given by the following lunchtime.

The prosecution called only one witness, the police officer (a Detective Sergeant) who made the arrest.

Indeed, all the prosecution had to show was possession, and the arresting officer did indeed see Mr Clarke with the shotgun at the Police Station.

Chief Superintendant Harper was not called, and it is indeed in the public domain that he is currently suspended from duty in respect of an unrelated matter.

The only other prosecution evidence were technical expert reports regarding the shotgun.

The shotgun was produced in court by the arresting officer, and it was shown to the jury by the court clerk. One observer recalls wondering if this made the court clerk also guilty of the possession offence for those moments.

The shotgun also looked clean and not in the state of a weapon found in a garden. It is not known whether this was because it had been cleaned after its receipt by the Police.

Mr Clarke did not give oral evidence. He was fully entitled to do this, and it is the right of every defendant to force the prosecution to prove its case.

He pleaded not guilty, probably in the hope that the jury would not convict.

There was also an application in open court, when the jury was not present, to strike the case out as an abuse of process, but this was refused.

The judge summed up by stating this was an unusual case and that, as it was a strict liability, there could be no defence. However, he was careful not to direct the jury to convict: it was a matter for them.

The jury took twenty minutes to return a guilty verdict.


7. What happens next?

The case has not finished.

The court is still to pass sentence.

It may well be that the judge will find that there are exceptional circumstances to warrant not applying the mandatory minimum sentence.

This would be done either on the basis of Mr Clarke's statement (on which of course depended the CPS's decision to prosecute) or by Mr Clarke being orally examined (subject to Mr Clarke's consent) in court in a Newton Hearing.

(Newton Hearings are when there is oral examination not to establish liability but to establish the gravity of an offence for the purpose of sentencing.)

This case could still thereby conclude by Mr Clarke receiving an absolute or conditional discharge, or a suspended sentence.

However, it is still possible that there will be a custodial sentence, even if for lesser a period than five years.

Whatever the outcome, any injustice suffered by Paul Clarke will be the result of a strict liability offence, a misconceived and illiberal mandatory sentencing regime, the decisions to arrest and then charge, the decision to prosecute, the decision to not strike the case out, and the decision of the jury.

And at no point so far has Mr Clarke's version of the facts been contested.




Acknowledgments

I am deeply grateful to the excellent Holly Thompson, the journalist who originally broke the story at the Surrey Mirror for her generosity in sharing her knowledge of the case. She attended the court for the hearing and kept a detailed shorthand note. For the way she followed and then promoted this case, she is a credit to journalism.

I am also very grateful to Lionel Blackman, solicitor for Paul Clarke, for a lengthy interview which provided a great deal of background information on the case, especially on the legal aspects.

Many thanks are due to the patient and helpful press offices of both Surrey Police and the Crown Prosecution Service for dealing with my queries.

And, er, "much kudos" to all the Twitterers and Bloggers who also collected information on the case and provided insightful analysis. In particular: the doyen of Legal Bloggers Charon QC, who encouraged me to do this as an exercise in showing the value of legal blogging; and also Schroedinger99, Constantly Furious, and Niaccurshi.




Copyright 2009, Allen Green. Moral rights asserted.


COMMENTS MODERATION

No purely anonymous comments will be published; if there is no link, please use a name for ease of reference to others. Any idiotic or unlawful comments will also not be published.

Wednesday, 18 November 2009

Against PCC Regulation of Blogs

Of course, Blogs are already regulated: Bloggers are subject to the general law.

In particular, as self-publishers, Bloggers are subject to the general law of defamation and copyright. Bloggers are also subject to criminal law, for example in respect of contempt of court and, where applicable, unfair commercial practices.

Most Bloggers are also subject to contractual obligations to the Blogging service providers (such as www.blogger.com in my case) or to their server. (Some Bloggers escape these further obligations by controlling their own servers.)

So those who say that Blogging should not be regulated are perhaps missing the point that it already is.

It is against this background that one should consider a possible move by the PCC to regulate Blogs. The source for this possibility is (of all things) a Blogpost by Ian Burrell.

It is clear that such thinking is at a very preliminary stage; in fact, even saying that is perhaps putting it too highly.

Nonetheless, it is important for Bloggers and their readers to think about this possibility now and, in my view, signal their informed opposition.

Regulation means restriction. To be regulated means that there are things one cannot do which one otherwise would do. Accordingly, if one can do such things anyway, one is not really being regulated.

Regulation also means being subject to another person's enforcement of that regulation, the regulator. This enforcement can be at the regulator's own motion, or at the application of a third party, the complainant.

Even schemes of so-called self-regulation seek to separate out the roles of the regulated and the regulator: the PCC is supposedly independent of the newspaper industry; even the Reader's Editor at The Guardian is distinct from the editorial team.

So, in the case of Blogging, to accept PCC regulation would mean to accept further restrictions than are there already under the general law and (for many) the contractual relations with Blog service providers and servers. It would also introduce a new dynamic, with possible complainants and a regulator to whom a Blogger will be accountable for their Blogging.

And this in turn will open up a new avenue for strategic complainants. A strategic complaint is one where there is an ulterior objective of generally silencing a person on a particular issue.

It may well be that the PCC is ineffective and unimpressive, but it still will mean that a second party (the regulator) and a third party (the complainant), over which of course the Blogger has no control, can place the Blogger seemingly in breach of a regulatory obligation. Moreover, the strategic complainant can cause the Blogger to have to spend time and effort in dealing with a complaint or series of complaints.

(In the context of Bad Science Blogging, one should recall that PCC complaints were the weapons of choice of chiropractors before they discovered the libel shotgun.)

Notwithstanding these general objections to additional regulation, and to the opening up of the possibility of strategic complaints, there are obvious concerns as to the basic competence of the PCC.

Here Unity at Liberal Conspiracy has done a fine job in setting out the repeated failures by the PCC to even regulate the newspaper industry properly.

There is no reason whatsoever to believe that PCC regulation would improve the general standard of Blogging, no greater public benefit to offset the additional regulatory burdens.

And this brings me to a further reason to object to the possibility of PCC regulation: I do not wish to provide the PCC with any credibility or legitimacy. Yesterday Alan Rusbridger, the editor of The Guardian, resigned from the PCC Code committee following the PCC's whitewash report into the phonetapping scandal.

The PCC is, in my view, a figleaf over the nastiness and bad practices of the tabloid press. No credible Blogger should really want to buy into that regime.

There are some Bloggers - clearly Quangocrats in the making - who see PCC regulation as an opportunity for Bloggers to sit on committees seeking to hold the mainstream media to account and guarding against the tabloid excesses.

I see this earnest and well-meaning stance as hopelessly naive; if anything, the participation of such worthy Bloggers in the ineffective PCC would probably be seen as further legitimising the current bad practices.

The possible regulation of Blogs by the PCC will probably come to nothing. I hope so. However, thinking about why such regulation would be misconceived (or indeed whether it is misconceived) is not time wasted.

In my opinion, the high standard of Blogging - such as in the comprehensive destruction of the "plethora" described by Ben Goldacre here - is because of the freedom of people to be Bloggers, subject only to the general law and any obligations to service providers and servers.

Once there are additional restrictions - voluntary or not - and new ways for other people to influence what is Blogged, then Blogging will become less free and more formalised.

Which is exactly what the mainstream media (MSM) want.

I have seen MSM hatchet jobs on Bloggers as diverse as Guido, Belle de Jour, and Night Jack.

But the greatest risk to Blogging is to extinguish the sheer freedom to Blog.

To be subject to a code (over which one has no control) and to deal with a regulator and complainants (over which one also has no control) will tend to undermine this freedom.

And once such regulation is in place, there will of course be regulation creep.

I support the freedom to Blog under the general law.

If you agree, please go over to Liberal Conspiracy and read their draft letter. I hope you agree with it and sign it.

Tuesday, 17 November 2009

In Defence of Blogging

If you care about Blogging, please go along to the Liberal Conspiracy website and, if you agree (as I hope you do), sign the excellent letter there.

Monday, 16 November 2009

Libertarianism And Gun Control

I am sure that, in any given situation when faced with a gun pointing at me, I would like to have a gun pointing back.

However, this is not the basis of an ideology; it is merely a statement of self-interest and perhaps common-sense.

Libertarianism purports to be an ideology; people claim to be libertarians; they promote libertarian values and principles; and they formulate and implement libertarian policies.

American and some British libertarians oppose gun control and argue that you and they have a fundamental right to "bear arms".

Their usual argument for doing so is that you and they should have the right to an armed defence: if one outlaws guns only the outlaws will have guns.

But this libertarian position has a stark implication which they will always seek to evade and avoid.

Anyone can point a gun at you; but only the libertarian believes that the person pointing that gun at you has a fundamental right to possess it.

I will admit that I would want, in my self-interest, a gun when faced with a gun; but libertarianism - as an ism - demands more than this; and I for one will never concede that the person already with the gun has a 'fundamental' right to bear that arm.

Saturday, 14 November 2009

Paul Clarke's Shotgun

Paul Clarke carried a shotgun through the streets of a Surrey town.

It also seems he carried ammunition for the gun.

The shotgun was concealed in a black plastic bag.

During that walk he could have been mugged or had an accident.

He had possession of the shotgun during the length of that walk; and it is perhaps fortunate that he kept possession for all that time

In the event, he took the shotgun into a police station.

In a statement read to the court (but not it seems tested in cross-examination), he claims he found the shotgun in his garden and he claimed further that by taking the shotgun to the police station he was simply performing his civic duty.

This may or may not be correct.

In the event, it doesn't matter, as mere possession of a shotgun (without a licence) is a criminal offence.

The way this story was reported in a local newspaper - see here - has meant that a high number of people on Twitter and elsewhere are outraged.

I agree with that outrage to the extent that a minimum sentence of five years appears utterly disproportionate.

I also think that, if the facts are indeed as reported, the CPS should not have prosecuted Mr Clarke. The CPS should only prosecute when it is the public interest to do so.

(And one should always be skeptical of newspaper reports of any court case.)

But on the narrow point as to whether that possessing a shotgun - and taking that shotgun through the streets (even if to a police station) - should be unlawful, then I think it should be.

It was not his civic duty to take a shotgun and ammunition through the streets of a Surrey town.

Until that shotgun (and ammunition) was safely in the custody of the police, there was a real risk that it could be used to kill or badly maim other people. That is why possessing such shotguns is a criminal offence, unless there is a licence.

Whenever it appears the law is an ass, one should be critical.

The statutory minimum sentence may well be an ass; the decision to prosecute here may also be an ass; but prohibiting the possession of shotguns is, in my view, not an ass.

If the facts are as reported, then the prosecution should not have been brought; and, if brought, a conviction should only carry a mere discharge.

But prohibiting the possession of the shotgun and ammunition would appear to me to be what the criminal law should be doing.



________

16 November 2009: See thoughtful and thought-provoking blogpost at Bad Reason.

Thursday, 12 November 2009

Understanding the Reverse Burden of Proof in Libel

In English libel proceedings, the "reverse burden of proof" is so counter-intuitive and so seemingly outrageous, it is difficult to comprehend just why it exists at all.

The effect of this reverse burden is to put the defendant in a weak position from the very beginning of the case, in terms of both what legally needs to be proved and the (often terrfying) costs in doing so.

It also means that the claimant (a far better word than the archaic plaintiff, by the way) can actually win a case even though the defamatory statement is true simply because the defendant is not evidentially or financially able to prove its truth.

Nonetheless, it is worth trying to understand why the tort of libel is structured in this way, and I will try an explain it by analogy with other English torts.

Imagine a Farmer, and imagine that I am in his field.

He comes and says "get orf my land". He threatens to sue me as a trespasser. The Farmer can prove he owns the field and he can also prove that I am standing in his field. He doesn't have to prove damage, for - like libel - trespass is actionable without proof of damage.

"Aha," I say, "I have a legally-valid contractual licence (like a ticket for a rave); I have a legal right to be on this land; and so I have a complete defence to your action for trespass."

"No you haven't," replies the Farmer.

In court, it would then be for me to prove that I have a licence, and not for the Farmer to disprove it.

(It would be the same with the owner of a copyright suing someone claiming to have lawfully downloaded a copyrighted work, though there damage would have to be shown.)

I do not think this is necessarily unreasonable: I claim to have a licence and so it is for me to show that is the case.

But this is, like in libel, a reverse burden: I am having to prove my defence.

So what has gone wrong in libel?

Imagine now a Reputable Person.

I defame that person - almost literally I de-fame her. By analogy, I am trespassing on her reputation.

In theory, the Reputable Person has to prove that she has a reputation in England & Wales and that I have defamed that reputation. In this way, the Reputable Person is in a position similar to the Farmer.

Once the Reputable Person has shown this, then the law says it is for me to prove that I am lawfully defaming that reputation, just like an alleged trespasser can try and show he has a legal right to be in the field.

Where, in my view, libel has partly broken down on this issue is that the courts just nod through what the Reputable Person needs to show to get the claim off the ground.

Any link with England & Wales seems to be enough; no scrutiny is put to whether someone actually has a relevant reputation; and any criticism (even calling Steven Berkoff ugly) is held to be defamatory.

And so the burden is instantly thrown on to the other side - to show that the statement was justified or fair comment or privileged. And with this burden goes all the terrifying costs risks.

In my view, libel should not be treated like trespass or copyright infringement; the claimant should have to certify the falsity of the defamatory factual statement before a claim can be brought, and that this certification should be open to cross-examination by the defendant.

But courts should be far more rigororus in putting the claimant to test on what already has to be proved to bring a libel case: that there is an applicable reputation in England & Wales in the first place, and that the statement defames that reputation.

If the courts did this then the reverse burden of proof (and the costs) would not be such a problem.

Wednesday, 11 November 2009

Simon Perry: the Activist as Journalist

The regional newspapers of England were once mighty institutions, proudly distinct from the output of London's vulgar Fleet Street. Indeed, The Guardian itself was The Manchester Guardian before its (perhaps misconceived) move south.

More recently, however, many regional newspapers have become shadows of their former selves, with severe cuts in editorial staff and content. Very rarely will regional newspapers take serious risks - it does happen, but not as often as previously.

It is in this context that the Leicester Mercury is to be congratulated for taking on the redoubtable Simon Perry to write about quackery.


His first article is online here, and it is very well done and a good read.

Simon, a friend of mine, is the head of Leicester Skeptics in the Pub and he is also one of the prime movers behind the intense pressure now on the chiropractic profession to act in accordance with their legal and regulatory obligations.

I hope the Leicester Mercury will carry many more articles by Simon and that their internet edition attracts traffic from all over the UK, and elsewhere, whenever Simon does do an article.

More generally, the mainstream media are perhaps becoming more interested in exposing the excesses of CAM and quackery. If so, there will be no better journalist-activist example for others to follow than Simon Perry.

Libel Reform: Free Speech Is Not For Sale

Over the last year two distinguished pressure groups, English Pen and Index on Censorship, have conducted a joint inquiry into English libel law.

I was one of many bloggers and lawyers who participated in this inquiry. Numerous journalists, publishers, and NGOs, were also involved. In particular, I attended two wide-ranging and enlightening roundtable discussions.

However, I had no idea as to what the inquiry's conclusions would be, or indeed how any eventual report would be structured or presented. Indeed, I had no notion whether anything would come of it at all.

The report of the inquiry was published yesterday: Free Speech Is Not For Sale.

And the report is excellent and important.

It should be read by anyone concerned at the awful state of the English law of libel and what can be done about it.

For me, there are a number of reasons why this report is so significant.

First, and - in my mind - most crucially, the report correctly emphasises that libel should be about the lawful protection of reputation. Often discussions about the abuses of libel law, and how it can be reformed, seem to overlook what libel law is supposed to be for in the first place.

Unless one works outwards from the appropriate function of such a law in a modern democratic society, then any reform will probably be ill-conceived.

Here the report get this fundamental point right and, for this reason alone, regard will have to made to this report in any serious discussion about libel reform.

Second, the report is practical. It identifies ten areas of libel law which require reform, explains why this is so in each case, and then makes a simple and sensible recommendation.

The ten areas are set out at the executive summary here, with the recommendations.

Third, the report has an empirical basis, and it contains sixteen case summaries where libel has been recently used in a way which would concern any layperson. These cases are listed up to and including the British Chiropractic Association's misconceived claim against Simon Singh.

Some of these cases were new to me, and - quite apart from the recommendations - the report will become an essential reference tool for informed debate about libel reform.

The accumulation of actual examples substantiate the general concern that there is something wrong. Here the report complements the great work being done at Sense About Science in collating instances of libel chill in the scientific community.

As a Geek myself, I have always wanted libel reform to proceed as far as possible from a solid factual basis, rather than being led by abstract, high-level complaints.

Fourth, the report and its launch represent a broadening of the coalition for libel reform. Senior lawyers, both in private practice and in-house at newspapers and publishers, are now fully engaged. At the launch yesterday, a partner of Carter-Ruck even accepted that there had to be some change. Also attending yesterday were MPs Evan Harris and Denis MacShane: the informed involvement of parliamentarians will be critical for any legislative change.

Lastly, the report is incredibly well-written and succinct. It is not a surprise that one of the co-authors is an Orwell scholar, for the report is a perfect example of hard thinking expressed in elegant and precise prose. The report deserves to be read in its own right, as an example of pressure group activity at its best.

However, the report is only a step towards effective libel reform.

By itself it changes nothing.

Law can only be changed by influencing the legislature, or the case-by-case development of the law by the courts. It will not be enough to read and admire the report: it should be sent to every MP, senior civil servant, and judge.

Each political party should now address the report and, if possible, make a manifesto commitment to make parliamentary time - and civil service resources - available for libel reform, which should proceed on a all-party basis.

It is now undeniable that libel law needs drastic reform.

For me, this is because it dangerously elevates a private right to reputation above the need for fully-informed debates on matters of public importance, such as public health and public safety.

There are those who perhaps think that libel law itself should be abolished and that the tort of malicious falsehood should be widened instead; after all, if an area of law needs reforming in at least ten areas, then it may be that the law itself is beyond repair. I think this view has great force, though I doubt it is practical politics.

In any case, the welcome publication of Free Speech Is Not For Sale means the terms of the debate are now sharper and far better-informed; it is a necessary step towards change; but it will be for us all to now make that change happen.

Friday, 6 November 2009

BCA v Singh: Court of Appeal Permission To Appeal - Text and Commentary

In a quick break from my Sabbatical, I set out below the full official text of the Court of Appeal decision granting Simon Singh permission to appeal the ruling on meaning made by the High Court.

[Update: the judgment is now online here.]

The decision was made by Sir John Laws, a highly regarded Lord Justice of Appeal with a formidable intellectual reputation.

The judgment is in italics. I also set out in brackets my comments on each paragraph of the judgment. These comments are only my views, and others may have different views.

(The Sabbatical, by the way, is because of a potential non-fiction book on Bad Law - watch this space...)


[2009] EWCA Civ 1154

British Chiropractic Association (Respondent) v Simon Singh (Appellant)


1. This is a renewed application for permission to appeal against the rulings of Eady J made on 7 May 2009 upon two preliminary issues in a libel action. Permission was refused on consideration of the papers by Keene LJ on 21 July 2009. The proceedings relate to two sentences in an article written by the appellant, the defendant in the action, and published in the Guardian on 19 April 2008. The appellant is a writer, journalist and television producer in the fields of science, maths and medicine. The respondent, claimant in the proceedings, is a professional or trade association representing some 1,350 chiropractors. The respondent runs an annual event called “Chiropractic Awareness Week”. The article complained of was a response to Chiropractic Awareness Week 2008. It was in the Guardian’s Saturday Comment & Debate section under the heading “Beware the spinal trap” and a subheading “Some practitioners claim it is a cure-all but research suggests chiropractic therapy can be lethal”. It was also published in the online edition of the Guardian.

[There are two points of context here which are perhaps interesting: the mention of Chiropractic Awareness Week and the fact the article was published in the Comment & Debate section of The Guardian. Whilst these points will not affect the full appeal hearing, I think it noteworthy that they are mentioned in the judgment giving permission to appeal.]


2. The alleged defamatory words consist as I have indicated in two sentences in the article. They appear at the end of the third paragraph. To set the context, I will set out the whole of the third and fourth paragraph as follows:

“You might think that modern chiropractors restrict themselves to treating back problems, but in fact some 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. [There follow the two sentences complained of]. 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.”

That is the end of the sentences complained of. The next paragraph is in these terms:

“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.”


[Here, Laws LJ (as Lords Justices of Appeal are stylised) refers expressly to the follow-on paragraph in the original article, where Simon Singh sets out why he used the word bogus. This follow-on paragraph was of course not mentioned at all in the original High Court ruling. Again, it is interesting how Laws LJ is contextualising the "words complained of" (which is the legal term for the alleged libel).]


3. The meaning of the words complained of, which is attributed in the respondent’s pleading and upheld by the judge in the first ruling complained of, is as follows:

“…that the claimant:
(a) claims that chiropractic is effective in helping to treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, although it knows that there is absolutely no evidence to support its claims; and
(b) by making those claims, knowingly promotes bogus treatments;”

That is the pleaded meaning.


[Here Laws LJ goes back to the meaning of the words complained of which was actually put forward by the British Chiropractic Association. Interestingly, Laws LJ does not mention the gloss then put on that alleged meaning by the High Court, ie: "That is in my judgment the plainest allegation of dishonesty and indeed it accuses them of thoroughly disreputable conduct". Indeed, that part of the High Court's judgment is deftly not mentioned in this Court of Appeal judgment. What was missed by many rushing to support the BCA after the adverse ruling at the preliminary hearing was that the allegation of dishonesty against Simon Singh was not the BCA case as pleaded in court.]


4. The primary defence put forward by the appellant was one of fair comment. The second ruling by the judge was that the words complained of constituted or contained allegations of fact and were not, as the appellant contended, comment and therefore the defence did not run. The judge said this at paragraph 14 of his judgment:

“I therefore would uphold the claimant’s pleaded meanings. It will have become apparent by now that I also classify the defendant’s remarks as factual assertions rather than the mere expression of opinion. Miss Rogers reminded me, by reference to Hamilton v Clifford [2004] EWHC 1542 (QB), that one is not permitted to seek shelter behind a defence of fair comment when the defamatory sting is one of verifiable fact. Here the allegations are plainly verifiable and that is the subject of the defence of justification.”


[Fair Comment is a defence to libel which can be rebutted by alleging malice; however statements of fact need to be justified. Laws LJ is simply setting out here what the High Court dealt with this issue at the preliminary hearing.]


5. I propose to grant permission. There is no dispute but that the subject matter of the piece was of genuine public interest. There is, as I understand it, no question as to the good faith of the appellant, no suggestion that he was actuated by malice. But in that case the litigation proceeds presumably on the footing that the appellant wrote what he honestly believed on a matter of public interest and for the purpose of serving the public interest. Moreover, the meaning attributed by the judge to the words complained of imported a subjective state of mind, although the respondent is a corporate claimant. That may itself be a matter of difficulty, and is adverted to in Miss Page’s argument for the appellant. This view of meaning must presumably have fuelled the judge’s conclusion that he was faced with assertions of fact rather than comment.

[This is the key paragraph of the judgment.

Laws LJ makes a couple of highly interesting observations. First he states (rightly in my view) that the subject matter was of public interest. He then notes that there was no doubt as to the good faith of Simon Singh and that there was no allegation of malice. (This is notwithstanding the barmy press release put out afterwards by the BCA alleging malice: I will blog more on this allegation and the press release when I return from Sabbatical.)

Leading on from these two observations. Laws LJ then states that the "litigation proceeds presumably on the footing that the appellant wrote what he honestly believed on a matter of public interest and for the purpose of serving the public interest". In my opinion, this statement is an implicit rebuttal of the mention of dishonesty in the High Court's original ruling. It suggests to me that, given these two observations, it was not open to the High Court to state that the meaning of the words complained of was the plainest allegation of dishonesty. However, this is my view and others may disagree with me on this point.

Laws LJ then refers to the BCA being a corporation, and he makes the important point that it is difficult to prove a subjective state of mind when dealing with a corporation (rather than a natural person.]


6. It is arguable, and I will stress we are only here dealing with whether permission should be granted, that the judge has conflated the two issues:
(1) What is the meaning of the words?
(2) Read in that meaning, are they fact or comment?
It is also arguable that his apparent application of a test of verifiable fact, so that if that was what the words asserted they could only be defended by a plea of justification, is legally erroneous; certainly it raises issues as to the application of Article 10 of the European Convention on Human Rights.


[Laws LJ is emphasising that this "conflation" is only arguable. He is also raising the point that even if the words complained of were an allegation of fact it may still be possible that they can be met by a defence of fair comment.

What he also says, as a certainty and not as something merely arguable, is that this case raises issues in respect of Article 10 of the ECHR, which provides for a right to free expression under English law.]


7. The judge’s approach may moreover be said to impose an altogether disproportionate burden on the appellant, requiring him to prove for example that chiropractic treatments for the specified childhood conditions are bogus in the sense of the terms selected by the judge.

[Again, this is stated to be arguable, not a conclusion. However, the mention of "disproportionate" refers to Article 10 of the ECHR, where a person's right to free expression can only be interfered with on certain grounds and when proportionate to do so. Laws LJ again does not mention the "terms selected by the judge"; but the suggestion here is that it is arguable that forcing Simon Singh to fight the case on the basis of "That is in my judgment the plainest allegation of dishonesty and indeed it accuses them of thoroughly disreputable conduct" would infringe his rights under the Human Rights Act and the ECHR.]


8. There are other points in the grounds. I grant permission to appeal at large, because overall I consider it arguable that the result of the judge’s findings risk striking the Strasbourg balance between the right of reputation and the right of free expression too far in favour of the former and against the latter. I wish to stress that nothing I have said indicates any view as to the final result in this appeal; I have merely assembled the reasons why it seems to me that this case ought to go forward to a full appeal, when of course the matters in the litigation in the preliminary issues will be properly resolved.

[By granting permission at large, rather than just on the justification point alone, means that it is open to the Court of Appeal to hold that the words complained of were comment (and so can be defended as Fair Comment). The mention of Strasbourg is to the ECHR - and it is interesting that the granting of permission at large rests on these wide human rights grounds, and not on a technical point of libel law.]


9. As I indicated to Miss Page at the beginning of the hearing, I do feel constrained to add that the 47-page skeleton argument was so voluminous and discursive as to be of very modest assistance in determining this application. A substitute skeleton -- not, I suggest more than 20 pages in length -- should be prepared for the appeal, expressing the material points crisply and clearly and without repetition.

[This is perhaps a fair point; but given that permission to appeal had been refused twice before, one hopes that the twenty pages which could have been cut would have been the wrong ones; after all, often hears that 50% of advertising spend is wasted, but no one knows which 50%.]

____

Overall, the effect of this permission is to turn the litigation clock back to the start of the preliminary hearing. The Court of Appeal will deal with the parties' cases afresh and, in theory, could arrive at exactly the same decision as the High Court in May, that is that Simon Singh needs to prove dishonesty as a fact.

That said, the terms of the permission of appeal suggest that it may be unlikely that such an adverse ruling will be made again: the contextualisation of the words complained of, the issues raised by the BCA being a corporate claimant, the express mention of Article 10 and the need for proportionality - all these indicate that the Court of Appeal may perhaps take a more more balanced view of the question of meaning than the High Court. But this is not certain.

So there remains a hard and expensive journey ahead for Simon Singh. The appeal hearing will be in February; and any full trial will be at least later next year.

On the other hand, Simon Singh still has a year to decide whether to countersue the BCA for their defamation of him; and the BCA also appear to be under financial strain (hat tip Zeno). It may well be that this case will settle.

But with this excellent permission decision of the Court of Appeal, Simon Singh's position has gone from one where his chances of even getting permission on his third attempt were less than 50:50 to one where the BCA will be hoping to be able to repeat their success at the preliminary hearing before the Court of Appeal.

This permission decision is, in its way, as liberal as the preliminary ruling was illiberal; the focus now shifts to the full Court of Appeal hearing in February 2010.




The text of the Court of Appeal decision is Crown Copyright, and this should be stated should you wish to republish it elsewhere.


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