Pages

Wednesday, 30 June 2010

Welcome to Doggie Policing

"Why do dogs lick themselves? Because they can."

When it comes to photography in public places, and stop-and-search generally, the police appear to be simply out of control.

For example, see this incredibly depressing news story.

The police seem to be able to do just want they want, and stop who they want.

And nothing, in turn, can stop them.


Why do they do this?

Because they can.


There is no realistic check on exercises of police power, or even sheer exercises of power with no actual basis in police law.

It is almost impossible to bring a civil action against the police; prosecutions are exceptional and rarely successful; the independent complaints regime has little if any credibility; and even public criticism will be met with the threat of a libel claim.

And so, without any practical limits, the police can just do what they want.

Welcome to Doggie Policing.



COMMENTS MODERATION

No purely anonymous comments will be published; always use a name for ease of reference by other commenters.

Monday, 28 June 2010

Towards the Lord Lester Libel Bill

Lord Lester has published a libel reform Bill.

This is a significant event in the movement towards libel reform; however, one must be careful not to overstate its importance.

It is undoubtedly significant because this is the first moment various proposals of the libel reform campaign have been translated into the precise legal drafting of a Bill.

(A note on jargon: a Bill is the name for a piece of primary legislation as it passes through parliament; once passed it becomes an Act; also note Bills have clauses, whilst Acts have sections.)


By securing a second reading debate on in the House of Lords on 9 July 2010, Lord Lester has ensured that libel reform will be the subject of a proper parliamentary debate and a formal government response.

And because the Bill covers a number of aspects of libel law (other than costs), the debate and the government response are both potentially wide-ranging.

This can only be good news for libel reform.


But.

There is a serious but.


The debate on 9 July 2010 could well be the end of the story, at least for another fifteen to eighteen months.

The Coalition government has not committed itself to any parliamentary time for libel reform in the current legislative session, a session which could last until November 2011; similarly the Ministry of Justice has not committed any departmental resources to putting a Bill through parliament.

Lord Lester's Bill is a private member's Bill; so unless the government provides time and resources to supporting its progress through parliament, then the Bill is likely to just be a Fail.

However, if the Bill which does go forward from the debate on 9 July 2010 is not actually a good Bill then it may be that such a Fail is not really a problem, and the libel reform campaign should look forward to the 2011-2012 session.


So a great deal rides on what happens on 9 July 2010: what the Bill looks like, and what the government's response will be.

As with the internet-based interest which was shown in the passage of the Digital Economy Bill, and indeed also in the British Chiropractic Association v Simon Singh case, it will be important for those who are seeking libel reform to keep an informed watch on the Bill and the debate.


For the passage of the Bill, the key website to bookmark is here.

(The Bill is available both in HTML and pdf.)


This Blog will also shortly commence a critical series of blogposts looking at key parts of the Bill, and these blogposts will lead up to the debate on 9 July 2010.



COMMENTS MODERATION

No purely anonymous comments will be published; always use a name for ease of reference by other commenters.

Thursday, 24 June 2010

The Stunning Mark Lewis Libel Claim

In an astonshing news development today, it was reported that solicitor Mark Lewis is suing the Metropolitan Police, the Press Complaints Commission and the PCC chair Baroness Buscombe for libel.

To many who followed the Simon Singh case, Mr Lewis is better known as the defence solicitor for Peter Wilmshurst.

However, Mr Lewis also placed evidence before a parliamentary committee last year in respect of the Met Police's awareness of phone tapping by tabloid journalists. This libel case follows on from that.

I have not yet formed a view on the merits of this remarkable libel claim.

It may well be that the claim is misconceived. It is certainly a high-risk strategy by Mr Lewis.

So to enable others to form their own view and in no way endorsing any of the allegations made by Mr Lewis, I re-publish in full the Particulars of Claim (with added links and the timings of a video).

Followers of this website will know that my publication of this court document is only for the purpose of promoting the public understanding of law. It should not be inferred that any statement published below has any defamatory meaning. (In any case, this publication is covered by privilege.)

I intend to also publish the defences in due course. I am also happy to publish any statements by the defendants or any other appropriate person.




IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION

B E T W E E N

MARK LEWIS

Claimant

- and –

(1) COMMISSIONER FOR THE METROPOLITAN POLICE SERVICE

(2) BARONESS BUSCOMBE

(3) PRESS COMPLAINTS COMMISSION

Defendants

___________________________

PARTICULARS OF CLAIM
___________________________


1. The Claimant is a solicitor.

2. The First Defendant is responsible for the Metropolitan Police Service (“MPS”).

3. The Second Defendant is employed as the Chairman of the Third Defendant.

4. The Third Defendant is a regulatory body for British newspapers and magazines.

5. At all material times the Second Defendant was acting in the course of her employment with the Third Defendant.

6. The Claimant acted as solicitor to Gordon Taylor and Joanne Armstrong, the Professional Footballers’ Association’s (“PFA”) Chief Executive and Legal Advisor and one other person (whose name remains confidential) in an action against News Group Newspapers (“NGN”) in regard to the hacking of mobile telephone messages by employees and/or agents of the News of the World (a newspaper owned by NGN).

7. In 2006 the MPS launched an investigation into the activities of Glenn Mulcaire, a private detective retained by the News of the World, and Clive Goodman, who was employed as the News of the World’s Royal Correspondent. The investigation discovered that Mr Mulcaire had improperly obtained the pin number required to access messages left on Mr Taylor’s mobile telephone voicemail. Mr Mulcaire used this pin number in order to retrieve voicemail messages left for Mr Taylor, thus breaching not only Mr Taylor’s confidence but also the confidence of the numerous persons who left messages for him, including Ms Armstrong.

8. On 26 November 2006 both Mr Mulcaire and Mr Goodman pleaded guilty to conspiracy to intercept communications, contrary to section 1(1) of the Criminal Law Act 1977. The interceptions were of messages left for three members of the Royal Household.

9. Mr Mulcaire also pleaded guilty to five additional counts concerning the unlawful interception of the communications of figures with no connection with the Royal Household (and therefore having no connection with Mr Goodman’s work as a royal correspondent): Max Clifford, Skylet Andrew, Gordon Taylor, Simon Hughes MP and Elle Macpherson. Mr Goodman was not charged with these five offences. They related to interceptions carried out for a person or persons unknown at the News of the World.

10. In 2007 the Third Defendant conducted an investigation into the Mulcaire/Goodman scandal. It published a report entitled: PCC Report on Subterfuge and Newsgathering. During its investigation it posed a number of questions to Colin Myler, who had replaced Andy Coulson following his resignation as the News of the World’s editor, and Les Hinton, the Chief Executive of News International (the News of the World’s ultimate owner). At paragraph 6.3 the report concluded that:

No evidence has emerged either from the legal proceedings or the Commission’s questions to Mr Myler and Mr Hinton of a conspiracy at the newspaper going beyond Messrs Goodman and Mulcaire to subvert the law and the PCC’s Code of Practice. There is no evidence to challenge Mr Myler’s assertion that: Goodman had deceived his employer in order to obtain cash to pay Mulcaire; that he had concealed the identity of the source of information on royal stories; and that no-one else at the News of the World knew that Messrs Goodman and Mulcaire were tapping phone messages for stories.


11. On 6 March 2007 Mr Hinton gave evidence to the Culture, Media and Sport Parliamentary Select Committee (“the Select Committee”). He reported that Mr Myler had told the Third Defendant 12 days earlier that Mr Goodman’s telephone hacking was “aberrational”, “a rogue exception”.

12. On 18 November 2008 the Select Committee commenced an investigation into press standards, privacy and libel. It investigated the News of the World’s involvement in the Mulcaire/Goodman telephone hacking scandal.

13. On 8 July 2009 The Guardian published an article by Nick Davies: Trail of hacking and deceit under nose of Tory PR chief. This concerned allegations that Mr Mulcaire’s actions had not been “aberrational” but that telephone hacking had been widely used by the News of the World in order illicitly to secure information. This article was followed up by one published on 9 July 2009: Revealed: Murdoch’s £1m bill for hiding dirty tricks. This stated that the PCC had been misled when it had been told by News International that Mr Mulcaire’s activities were “aberrational”.

14. As a consequence of the allegations made in The Guardian, on 9 July 2009 the Third Defendant commenced an investigation as to whether it had been misled in 2007. This investigation was independent from that being conducted by the Select Committee.

15. On 2 September 2009 the Claimant gave evidence to the Select Committee. He reported that whilst conducting Mr Taylor’s claim he had attended court in order to make an application for the disclosure of documents from the MPS. Whilst outside court he had a conversation with Detective Sergeant Mark Maberly, who was attending on behalf of the MPS. The Claimant’s evidence to the Select Committee was that:

DS Mark Maberly said to me: “You are not having everything but we will give you enough on Taylor to hang them.” Those were his words: “to hang them”. . . He also mentioned the number of people whose phones had been hacked. Whether that was an aside . . . but they said that there was evidence about, or they had found there were something like 6,000 people who were involved. It was not clear to me whether that was 6,000 phones which had been hacked or 6,000 people including the people who had left messages.


16. The Claimant’s evidence was published and attributed to him by name as follows:

16.1. it was broadcast live via Parliament’s website where a video recording and transcript of the relevant evidence was also published one or two days after the evidence was given. This material continues to be published on this website [From 16:44];

16.2. it was reported upon by The Guardian in an article entitled PCC finds no evidence that it was misled in phone hacking inquiry. The article was first published on 9 November 2009 and has continuously been published on The Guardian website since; and

16.3. it was published by the Third Defendant on 7 November 2009 in paragraph 11.1 of the PCC report on phone message tapping allegations (see paragraph 19 below), which has been published on the Third Defendant’s website since that date.

17. The Claimant’s evidence became widely known to journalists and to those who were interested in the telephone hacking controversy.

18. Immediately prior to the Claimant’s evidence to the Select Committee, Assistant Commissioner John Yates and Detective Chief Superintendent Philip Williams gave evidence to it in regard to the MPS investigation into telephone hacking by Mulcaire and Goodman. The Select Committee made it clear that it believed that the investigation had not been properly conducted by the MPS because it had failed to investigate the extent of the News of the World’s involvement in telephone hacking.

19. On 7 November 2009 the Third Defendant published the conclusions which it had reached as a result of the investigation which it had commenced on 9 July 2009: PCC report on phone message tapping allegations. At paragraph 13.2 it concluded that no evidence had emerged since its 2007 report which indicated that the practice of telephone tapping was engaged in by anyone other than Mulcaire and Goodman or that News of the World executives knew about those activities.

20. The PCC report on phone message tapping allegations was publicly derided:

20.1. Adam Price, a Plaid Cymru MP and member of the Select Committee stated: "I think it would be depressing if this PCC report was perceived by the public as a closing of the ranks within the industry."; "I think the Guardian really was right to publish its story, was right to raise these questions. And I think it would be a shame if this report was in any way, shape or form interpreted as a slap across the wrists of the Guardian, which I think was raising legitimate questions."; and that the Select Committee’s forthcoming report "would be able to give a fuller picture of the context of this story".

20.2. Labour MP Paul Farrelly, a member of the Select Committee, described the PCC report as a "whitewash" and stated that "We (which in context meant the Select Committee) are seriously concerned about the effectiveness of the PCC and self-regulation in the industry," He also said. "Any whitewash thrown over these events by the regulator will only heighten concerns that will be explored in our report."

20.3. The above statements received substantial publicity in The Guardian, which also criticised the PCC report on phone message tapping allegations and the Third Defendant.


(I) PUBLICATION BY THE FIRST DEFENDANT

21. On 30 September 2009 Tim Toulmin, a director of the PCC, emailed DI Maberly (who had been promoted since the conversation with the Claimant had taken place). Mr Toulmin stated that whilst the Claimant had indicated to the Select Committee that DI Maberly had told him that “6,000 people were involved in the practice” of “phone message tapping at the News of the World”, John Yates and Andy Hayman (who had given evidence to the Committee on behalf of the MPS) had indicated that “only a handful of people were involved.” Mr Toulmin asked for an indication of the scale of the interceptions.

22. Emma Harraway of the MPS’ Directorate of Legal Services took instructions from DI Maberly. On 9 November 2009 she replied by letter on behalf of the First Defendant that DI Maberly had been “wrongly quoted” by the Claimant. She stated that the correct position was set out in the evidence of Assistant Commissioner John Yates and DCS Philip Williams given to the Select Committee.

23. On 11 November 2009 Mr Toulmin responded to Ms Harraway by email, asking if the correct position was that: “the suggestion that DI Mark Maberly claimed 6000 people were involved in the unlawful practice is wrong.” Ms Harraway responded by email at 16.10. This email included the following words which defamed the Claimant:

Your understanding is correct that DI Maberly has been wrongly quoted, and that you should rely on what Assistant Commissioner Yates and DCS Williams told the Select Committee.

24. In their natural and ordinary meaning or in their innuendo meaning the words complained of meant and were understood to mean that:

The Claimant lied to the Parliamentary Select Committee about what he had been told by Detective Inspector Maberly.


Particular of innuendo

25. The context in which the words complained of were published was provided by those communications set out in paragraphs 21 and 22 above. Given that it had been stated in the correspondence that the MPS case was that there had been a handful of interceptions, the only explanation for the Claimant’s allegation that he had been told by the MPS that 6,000 persons had been involved in phone hacking was that he had invented that figure.


(II) PUBLICATIONS BY THE SECOND AND THIRD DEFENDANTS

Primary Publications

(1) The statement

26. On the 15 November 2009 the Second Defendant, acting in her capacity as the Chairman of the Third Defendant, issued a statement to the Society of Editors Annual Conference at the Radisson Blu Hotel, Stansted (“the conference/the statement”). It was published directly by the Second and Third Defendants in the following ways:

26.1. written copies were distributed at the conference;

26.2. it was published orally by the Second Defendant at the conference. The audience included journalists who were reporting upon rather than participating in the conference;

26.3. it was published on the Third Defendant’s website from that date forward; and

26.4. it is to be inferred that the Third Defendant also published it directly to newspapers, magazines and broadcasters as part of a press release or by other means (as was the case with the Second Defendant’s speech to the conference).

27. The statement contained the following words defamatory of the Claimant:

I would like to use this opportunity to say something on a subject that I know has been of great interest to some in the media and politics.

Last week, the PCC published a report following allegations we were misled by the News of the World during an inquiry we conducted in 2007 into how the phone message hacking situation involving Glenn Mulcaire and Clive Goodman could have arisen.

Having reviewed all of the information available, we concluded that we were not materially misled.

While most people seemed to understand our reasons, one or two were less sure. I have chosen not to debate those matters in public, because our report speaks for itself.

But new evidence has come to light.

Those of you who are familiar with the case will recall the significance that was attached to the apparent evidence of a then Detective Sergeant from the Metropolitan Police called Mark Maberly. It was he who was alleged to have said that around 6,000 people had had their phone messages hacked or intercepted.

The allegation was made in oral evidence to the Select Committee on Culture, Media and Sport, and has also been published in the press. It was repeated just last Monday in some coverage questioning our report.

Since the publication of our report last Monday, the PCC has heard from Detective Inspector (as he now is) Maberly through lawyers for the Metropolitan Police.

This letter says that Mr Maberly has in fact been wrongly quoted on the 6,000 figure. The reliable evidence, we were told in an e-mail confirming the contents of the letter, is that given by Assistant Commissioner John Yates to the Select Committee, who referred to only a “handful” of people being potential victims.

In light of this, I am doing two things.

First, I am of course putting this new evidence to my colleagues in the Press Complaints Commission, because they will want to update our report to take account of this development.

Second, I have just spoken to the Chairman of the Select Committee on Culture, Media and Sport, John Whittingdale, to draw this to his attention. Any suggestion that a Parliamentary Inquiry has been misled is of course an extremely serious matter.



28. Furthermore, after reading the statement the Second Defendant answered questions from journalists. She was asked by Chris Tryhorn, a reporter acting on behalf of Media Guardian, whether the letter from the MPS “had effectively withdrawn Maberly’s evidence”. She replied:

Maberly has been wrongly quoted in saying that 6,000 people were involved. He didn’t say it. He is said to have said it.


29. A substantial number of those persons who read or listened to the words complained of would have known that the Claimant was the person referred to as having given evidence to the effect that 6,000 persons were involved in telephone hacking. Paragraphs 16 to 16.3 above are repeated.

30. In their natural and ordinary meaning the words set out in paragraph 27 above meant and were intended to mean that:

The Claimant lied to the Parliamentary Select Committee about what he had been told by Detective Inspector Maberly.


31. In their natural and ordinary meaning the words set out in paragraphs 27 and 28 (i.e. the slander, the reading out of the statement followed by the Second Defendant’s answer to the Mr Tryhorn’s question) meant and were intended to mean that:

The Claimant lied to the Parliamentary Select Committee about what he had been told by Detective Inspector Maberly.


32. The words complained of were calculated to cause harm to the Claimant in his profession as a solicitor. A solicitor cannot properly practise unless he is a fit and proper person. In litigation, it is crucial that a solicitor’s statement of truth is accepted at face value.


Republications

33. The Second and Third Defendants knew and intended that the statement and any words added orally at the conference would be republished in the media:

33.1. The issue of telephone hacking by the News of the World was a matter of huge public interest.

33.2. The Second and Third Defendants intended to undermine the recent criticisms of the Third Defendant (and by implication the Second Defendant) by publishing the defamatory words set out above. The criticisms which they were seeking to undermine are outlined in paragraphs 20 to 20.3 above.

34. Alternatively it was reasonably foreseeable that the statement would be republished in the media.


(1) The Society of Editors website

35. On or shortly after 15 November 2009 the Second and Third Defendants caused a copy of the statement to be published in full on the website of the Society of Editors, where it continues to be published. A video recording of the statement was also published on the same website from or shortly after 15 November 2009 to a date which is currently unknown.

36. A substantial number of those persons who read or listened to the words complained of would have known that the Claimant was the person referred to as having given evidence to the effect that 6,000 persons were involved in telephone hacking:

36.1. Paragraphs 16 to 16.3 above are repeated.

36.2. In Police lawyers deny 6,000 people had phones hacked, an article written by Andrew Woodcock, the Press Association’s Chief Political Correspondent, which was published from 15 November 2009 onwards on the Society of Editors website, the Claimant was identified by name as the person who had given the evidence as to what DI Maberly had told him.

37. In their natural and ordinary meaning the words set out in paragraph 27 above meant and were intended to mean that:

The Claimant lied to the Parliamentary Select Committee about what he had been told by Detective Inspector Maberly.


38. The Second and Third Defendants caused an article with the headline Report by Alexandra Fletcher and Adam Thorn to be published on the website of the Society of Editors from 15 November 2009 or shortly afterwards, where it continues to be published. This report included the following words which defamed the Claimant:

The SOE Lecture 2009
Baroness Buscombe, Chairman of the Press Complaints Commission
Chaired by Nigel Pickover, President, Society of Editors
. . .
Read the full text of Baroness Buscombe's speech here (Word format)

Read Baroness Buscombe's statement on new evidence in the phone message hacking episode (Word format)

Report by Alexandra Fletcher and Adam Thorn

The chair of the Press Complaints Commission dealt a blow to allegations of widespread phone tapping by the News of the World on Sunday when she revealed a key witness was misquoted.

Addressing the annual conference of the Society of Editors, Baroness Buscombe revealed that then Detective Sergeant Mark Maberly’s evidence related to only a handful of potential victims – and not the 6,000 quoted in some news reports.

She said lawyers for the Metropolitan Police this week contacted the PCC with the new revelations, which have now been passed on to the John Whittingdale, chair of the Commons Select Committee on Culture, Media and Sport, which is investigating allegations that News of the World staff routinely hacked into text messages in pursuit of stories.

The allegation about Maberley saying there were thousands of possible victims ‘’was made in oral evidence to the Select Committee … and has also been published in the press,” the baroness said. This week’s letter from the Metropolitan Police lawyers “says that Mr Maberly has in fact been wrongly quoted on the 6,000 figure. The reliable evidence, we were told in an email confirming the contents of the letter, is that given by Assistant Commissioner John Yates to the Select Committee, who referred to only a ‘handful’ of people being potential victims.”

Buscombe said she would be putting this new evidence to her colleagues on the Press Complaints Commission, ‘’because they will want to update our report to take account of this development.’’ A recent PCC report concluded that the body had not been misled about the allegations.

She added that she had already told Whittingdale about the new evidence. “Any suggestion that a Parliamentary Inquiry has been misled is of course an extremely serious matter.”
. . .

Chris Tryhorn, a reporter from the Media Guardian, which first reported the phone tapping allegations, asked Buscombe whether the letter from the Metropolitan Police had effectively withdrawn Maberly’s evidence. Buscombe replied that Maberly: “has been wrongly quoted in saying that 6,000 people were involved. He didn’t say it. He is said to have said it.”



39. The particulars of reference set out at paragraphs 36 to 36.2 are repeated.

40. In their natural and ordinary meaning the words set out in paragraph 38 above meant and were intended to mean that:

The Claimant lied to the Parliamentary Select Committee about what he had been told by Detective Sergeant Maberly.


(2) The Independent

41. On 16 November 2009 the Second and Third Defendants caused a report of the statement to be published in the print edition of The Independent and from that day forward on its website. It contained the following words which defamed the Claimant:

Parliamentary inquiry misled on phone hacks

Detective denies saying messages to 6,000 people were intercepted

A parliamentary inquiry into phone hacking by tabloid journalists may have been seriously misled, it emerged yesterday when lawyers acting for a Scotland Yard detective denied that he had ever claimed that messages to 6,000 people had been intercepted.

The chairman of the Press Complaints Commission, Baroness Buscombe, said that she had been written to by the Metropolitan Police lawyers acting for Detective Inspector Mark Maberly, who, according to evidence given to the House of Commons Select Committee on Culture, Media and Sport, had said that 6,000 people were victims of a culture of phone hacking at the News of the World, Britain’s biggest-selling Sunday tabloid. Baroness Buscombe was told that DI Maberly had “been wrongly quoted”. The police lawyers told her that the “reliable evidence” given to the committee was from Assistant Commissioner John Yates, who had said that only a “handful” of people were targeted.

“I have just spoken to the Chairman of the Select Committee on Culture, Media and Sport, John Whittingdale, to draw this to his attention,” Baroness Buscombe was expected to tell the annual Society of Editors conference last night.

“Any suggestion that a Parliamentary Inquiry has been misled is an extremely serious matter.”


42. A substantial number of those persons who read or listened to the words complained of would have known that the Claimant was the person referred to as having given evidence to the effect that 6,000 persons were involved in telephone hacking. Paragraphs 16 to 16.3 above are repeated.

43. In their natural and ordinary meaning the words set out in paragraph 35 above meant and were intended to mean that:

The Claimant lied to the Parliamentary Select Committee about what he had been told by Detective Inspector Maberly.


(3) Press Gazette

44. On 16 November 2009 the Second and Third Defendants caused a copy of the statement and a report of it to be published on the Press Gazette website, where they are still being published.

45. The Press Gazette’s report contained the following words which defamed the Claimant:

Buscombe: Police lawyers deny 6,000 phones hacked

The Commons' inquiry looking into allegations of phone hacking by journalists may have been misled it emerged last night as Metropolitan Police lawyers acting for a senior officer on the force investigating reporters at the News of the World denied he had ever claimed 6,000 calls had been intercepted.

In a letter to the Press Complaints Commission, police lawyers said that evidence suggested only "a handful" of people were targeted rather than the thousands that were claimed in recent evidence given to the Commons’ Select Committee examining alleged phone-hacking.

PCC chairman, Baroness Buscombe, revealed the existence of the letter to delegates after her opening address to the Society of Editors conference, at Stansted, last night.

Baroness Buscombe said: "The PCC has heard from Detective Inspector - as he now is - Maberly through lawyers for the Metropolitan Police.

"This letter says that Mr Maberly has in fact been wrongly quoted on the 6,000 figure. The reliable evidence, we were told in an email confirming the contents of the letter, is that given by Assistant Commissioner John Yates to the Select Committee, who referred to only a 'handful' of people being potential victims."
Evidence of phone hacking first emerged in 2007, when former News of the World royal editor Clive Goodman and private investigator Glen Mulcaire were jailed for eavesdropping on royal aides and celebrities.

The News of the World then told a PCC inquiry that no one else at the paper was involved.

The inquiry's findings were reviewed earlier this year after reports in The Guardian suggested that the practice was more widespread at the Sunday tabloid than previously believed.

In a report published last week, the PCC said it had found no evidence that it was misled by the News of the World in the original inquiry.

The PCC report was then criticised by a number of MPs, calling it a "whitewash", and by Guardian editor Alan Rusbridger who said it was "worse than pointless".

Last night Buscombe said the commission would update its report in the light of the new information supplied to it about the evidence presented to the CMSC last month by solicitor Mark Lewis.

Lewis told the committee that he had been informed by Maberly that "they had found there were something like 6,000 people who were involved."

"It was not clear to me whether that was 6,000 phones which had been hacked, or 6,000 people including the people who had left messages."

Buscombe told delegates: "In light of this [lawyers' letter], I am doing two things.

"First, I am of course putting this new evidence to my colleagues on the Press Complaints Commission, because they will want to update our report to take account of this development.

"Second, I have just spoken to the chairman of the select committee on Culture, Media and Sport, John Whittingdale, to draw this to his attention. Any suggestion that a Parliamentary Inquiry has been misled is of course an extremely serious matter."



46. In their natural and ordinary meaning the words set out in the republication of the statement and in the words set out immediately above meant and were intended to mean that:

The Claimant lied to the Parliamentary Select Committee about what he had been told by Detective Inspector Maberly.


DAMAGE

47. The Claimant was motivated by a strong sense of public duty in giving evidence to the Select Committee. He believed that his evidence would contribute important information to its investigation into the telephone hacking affair. The fact that in return for performing a public duty he has been so seriously libelled by the Defendants, all whom hold very senior positions in society, has contributed very greatly to his sense of injustice.


First Defendant

48. The distress caused to the Claimant by the First Defendant’s publication was aggravated because:

48.1. DI Maberly falsely denied the Claimant’s account of their conversation.

48.2. During the Mulcaire/Goodman investigation the MPS had seen or had taken into its possession documents which indicated that the number of potential victims of phone hacking carried out by Mr Mulcaire on behalf of the News of the World was substantial, running into the thousands. At the very least this evidence made it clear that the number involved far exceeded a “handful” (which term had been intended to mean and did mean no more than five or ten).

48.3. It is to be inferred that before Emma Harraway published the words complained of, she consulted not just with DI Maberly but also with senior officers who had been responsible for the Goodman/Mulcaire investigation. Those officers knew, by reason of the material referred to in the preceding paragraph, that it was far more likely that DI Maberly had referred to thousands rather than a “handful” of persons as potential victims of telephone hacking.

48.4. By these deceptions the employees and/or officers of the MPS who were involved in passing the relevant information to the Third Defendant cynically and untruthfully set out to undermine criticisms that had been made of the MPS, most notably by the Select Committee, for failing properly to investigate the true extent of the News of the World’s telephone hacking activities. Paragraph 18 above is repeated.


Second and Third Defendants

49. The distress caused to the Claimant by the publications brought about by the Second and Third Defendants was aggravated because:

49.1. Prior to making the statement, neither the Second nor the Third Defendant contacted the Claimant to inform him that DI Maberly had denied saying words to the effect set out in the Claimant’s evidence to the Select Committee.

49.2. The failure to contact the Claimant prior to publication was in breach of the Third Defendant’s own Code of Conduct regarding the obligation of the press not to “publish inaccurate, misleading or distorted information”. In its guidance to observing the code, the Third Defendant stresses that certain steps prior to publication are important in observing this rule, most particularly giving a “likely complainant . . . an adequate opportunity to respond”.

49.3. In not contacting the Claimant prior to publication the Second and Third Defendants have not only acted with gross unfairness but also hypocritically.

49.4. The Second and Third Defendants cynically chose to promulgate the self-serving statement issued by the MPS because it also served their self-interest in heading off criticism of the Third Defendant’s telephone hacking investigation. Paragraphs 20 to 20.3 above are repeated.

49.5. The Second and Third Defendants disregarded the obvious fact that the Claimant had no motive to fabricate the evidence which he gave to the Select Committee whereas it was likely (and was the case) that the First Defendant was motivated by a desire to undermine criticism of its failure properly to investigate the true extent of the News of the World’s phone hacking activities.

49.6. It was particularly spiteful to engage in the publicity stunt of publishing to the world at large the fact that the Second Defendant had written to the Chairman of the Select Committee in order to report that the Claimant had misled it.

50. In all the premises, the Defendants demonstrated a callous contempt for the Claimant’s dignity, reputation and feelings.

51. Unless restrained by this Honourable Court the Defendants will further publish or cause to be published the said or similar words defamatory of the Claimant.


AND the Claimant claims:

(1) Damages for libel, including aggravated damages;

(2) An injunction to restrain the Defendants, whether by themselves, their servants or agents or otherwise howsoever, from further publishing or causing or permitting the publication of the words complained of or of any similar words defamatory of the Claimant.

21 June 2010 WILLIAM BENNETT






COMMENTS MODERATION

No purely anonymous comments will be published; always use a name for ease of reference by other commenters.

I will also not publish comments which may lead to any legal risk.

Wednesday, 23 June 2010

The Triumph of Robert Dougans

I suppose one should have mixed feelings when a former trainee goes off and wins something which you never had any realistic prospect of winning oneself.

However, I am delighted that my friend and former trainee Robert Dougans won the extremely prestigious Assistant Solicitor of the Year award at last night's The Lawyer ceremony at the Grosvenor Hotel.

(An "Assistant Solicitor" - in general terms - is a lawyer who works at a law firm who is not a partner.)

Robert won this for his conduct of the Simon Singh appeal and for his extensive pro bono work, including in respect of the Dave Osler libel case (where he was able to convince Mr Justice Eady to strike out the claim as an abuse of process).

I met Robert when I was a litigation solicitor at Herbert Smith and I supervised him at that firm's pro bono project the Whitechapel Legal Advice Centre.

I always knew Robert was capable of greatness, and now it seems he is my greatest claim to fame.



Robert looking on at Simon outside Royal Courts of Justice, with Nick Cohen and Dr Evan Harris. Photo courtesy of Stephen Curry.




COMMENTS MODERATION

No purely anonymous comments will be published; always use a name for ease of reference by other commenters.

Monday, 21 June 2010

Did BCA v Singh really show that libel reform is needed?

When I heard someone say at last week's excellent Westminster Legal Policy Forum on Libel & privacy law - challenges for reform that, in effect, the British Chiropractic Association v Simon Singh case was an example of libel law working, I was astonished.

My immediate reaction was if that case was an example of libel law working, then I would hate to see an example of it failing.

However, the person who said that was Professor Gavin Phillipson, one of the most insightful and interesting academic lawyers writing on libel and privacy law.

Anything Professor Phillipson has to say on media law is worth considering carefully, and I thought his was a point of view worth sharing with the followers of this blog in particular.

However, I was anxious not to misrepresent his view and so, with his kind permission, I set out his comments in full below:

"The campaign for the reform of the law of libel has been a wonderful thing in forcing this issue onto the public debate.

"It is, however, certainly not the case that English libel law had become more draconian in recent years.

"On the contrary as Professor Mullis and others have pointed out, all the major changes in recent years have been in favour of the media: the development of Reynolds privilege from 1999 and its strengthening recently in Jameel; the introduction of the offer of amends procedure; and the ability of the Court of Appeal to control the award of damages by juries.

"What I think led to this campaign was developments elsewhere: the introduction of conditional fee awards, which allowed more people to sue; the rise of the internet, which hugely increased the scope for defamatory allegations to be read across the world, thus increasing the choice of possible fora for legal action; the practice of newspapers and NGOs maintaining vast online archives combined with the effect of English law’s archaic multiple publication rule, meant that such bodies faced liability for defamation that was essentially indefinite in time (this is because English law treats each time an article is download and read as a fresh publication, giving rise to fresh liability, meaning that in effect, there is no limitation period for libel).

"English law has not recently become more claimant-friendly, rather the reverse; but the rise of the internet and the globalisation of legal services has recently extended the practical effect of English libel law as a potential restriction on free speech.

"This in turn means that we should be very cautious before accepting that sweeping changes to the law of libel are needed.

"The Simon Singh case - one of the catalysts for the campaign – is illustrative. I am delighted that Simon won his appeal. But whether, as some claimed, his victory proved that more reform of the law is needed I am rather doubtful.

"One might well argue that it showed that the defence of fair comment in the substantive law of libel was sound in that it eventually produced the right result; but that reform is needed to the way that costs are charged and awarded."



Is he right on this?

Is the only reform which should follow on from BCA v Singh a reform to the way that costs are charged and awarded?


Professor Phillipson has generously said he will follow and engage with comments on this blogpost.


COMMENTS MODERATION

No purely anonymous comments will be published; always use a name for ease of reference by other commenters.

Flaming, venting, trolling, or needlessly insulting comments are unlikely to be published.

Sunday, 20 June 2010

BCA v Singh: A Plea For Evidence

I am writing a book about the libel claim brought against Simon Singh by the British Chiropractic Association.

I am quite lucky as a good deal of the evidence is in writing and readily available: judgments, court documents, blogposts, and emails.

I am also lucky in that most of the key participants, at least on Simon Singh's side, are friends or contacts, and so will be easy to interview.


However, there are a couple of gaps.


Were you at any of the support meetings? Did you go to the hearings? Do you have any other recollections or information which would be interesting or useful for an account of the case?

I would be delighted to hear from you.


I would also really like to hear from any members or officers of the British Chiropractic Association.

Here, I can offer strict confidentiality and/or prior approval of any quotes or attributions should I incorporate any information provided into the text.


Please email me at jackofkent @ gmail.com with any information or recollections, and I would also be most grateful if you could also forward this blogpost to anyone who may be able to help.

All contributions used will, of course, be appropriately acknowledged.



COMMENTS MODERATION

No purely anonymous comments will be published; always use a name for ease of reference by other commenters

Blogging on the death of Dr David Kelly

I have been asked whether I could cover the issues surrounding the lack of an inquest in respect of the tragic death of Dr David Kelly, including the withholding of the post-mortem files.

For some background, see here.

On one hand, this is tempting. A source-based and skeptical approach seems appropriate, especially in view of the range of conspiracy stories this death has attracted. It could also be helpful for someone to explain the applicable law.

On the other hand, do I really want to engage with those passionately committed to their conspiracy theories?

Are there serious questions outstanding about the death of Dr Kelly? Questions which require a calm, skeptical, reasoned, source-based, and legally-informed approach?

Or am I just one blogpost away from Nuttersville?

Please do let me know any thoughts.


COMMENTS MODERATION

No purely anonymous comments will be published; always use a name for ease of reference by other commenters.

Saturday, 19 June 2010

Does science really still have a problem with libel?

Are there really still problems being caused for scientists and science writers by the English law of libel?

On the face of it, that seems an odd question to be asked on this of all blogs.

But it is an entirely serious question, and it is not one which is intended to be unduly provocative.

Indeed, unless those of us who contend there is such a problem can answer this question in a calm, informed, reasoned, and ultimately persuasive manner, then our influence may be minimal in the upcoming debate on the legislative reform of libel.

The onus is on those of us who are urging reform to articulate and evidence the problem which requires a solution, and why the solution we propose addresses that problem.

Mere assertions of an adverse effect will not be enough.

And there is perhaps a danger that we are so accustomed to repeating the charge that libel should be kept out of science that we have lose sight of the nature of the problem.

Or it may be that we do not realise that if there was a problem, it may have already been solved by the Court of Appeal in British Chiropractic Association v Dr Singh.


The starting point for grasping the nature of any problem must be the spate of libel cases which involved science and medicine in the years running up to the Simon Singh case.

Simon was first threatened over his Guardian article on 28 May 2008 and the BCA's claim form was issued on 10 July 2008 (see here).

There was by then cause for serious concern for how libel had been impacting on science for at least three or four years before the BCA's actions.


It appears Gillian McKeith was threatening her various libel claims from at least 2004 onwards (see here), though details of these claims are currently difficult to obtain. In particular, it is not clear what is the current status of her claim against The Sun.

Andrew Wakefield issued his claim against Brian Deer and Channel Four on 31 March 2005 (see here and here).

The claim was abandoned on 2 January 2007. As to the details of the case brought by Wakefield, do see Deer's excellent account here.

In 2007, a paper co-written by Professor Francisco Lacerda on the deficiencies of certain lie detection equipment was pulled from the International Journal of Speech, Language and the Law after a libel threat from the manufacturers (see here).

And in the summer of the same year, Matthias Rath launched his claim against Ben Goldacre and the Guardian (see here). Rath dropped his case in September 2008.

On 11 October 2007, the Society of Homeopaths sought to take down a blogpost by Andy Lewis questioning their approach to claims by homeopaths that they could treat malaria (see here).

On 21 December 2007, NMT Medical Inc issued its now notorious libel claim on Dr Peter Wilmshurst (see here). The case is still ongoing.

And then in 2008, in what (for me) was the most sinister of all the recent claims for libel in a science context, General Electric Healthcare issued a claim against the radiologist Henrik Thomsen.

(All key documents on this important case are hosted here by the excellent ProPublica website for public interest journalism. Anyone interested in medicine and the law should read the original documents and see the horror unfold for themselves.)

I intend to write further on this one extremely nasty example of libel abuse. The case was dropped in February 2010, but only after Thomsen's poacher-turned-gamekeeper defence lawyers Carter-Ruck threatened to countersue.

And also in 2008, there was the libel threat against David Colquhoun and the New Zealand Medical Journal by the New Zealand chiropractors (see the the splendid editorial here).


So when Simon received the libel threats from the BCA in May to July 2008, it was against a background of a few years' use and abuse of English libel law against scientists and science writers.


But the intention of those threatening a libel claim is rarely to actually bring one.

Instead, the intention of those who use libel threats as part of so-called "reputation management" is for the potentially adverse statements not to be published in the first place, or to be quickly taken down.

For the defendant to call the bluff of the claimant, as which occurred in almost all the above cases, is exceptional.

It is not thereby a surprise that most of the claimant lawyers in the cases mentioned are not actually from the top City law firms specialising in "reputation management".

They wouldn't have been so clumsy.


For me, the greatest concern for science and medicine from libel is not the famous headline cases.

Instead, it is the ongoing, deadening effect fear of libel has on science writing and publishing.

This became most apparent in the days after the adverse ruling of the High Court in the Simon Singh libel case.

Until then I had more-or-less focused on his case, though I was slowly becoming aware of other examples of how libel was operating in the context of science and medicine.

But at the support meeting for Simon which was organised at the Penderel's Oak on 18 May 2009, it was the attendance of countless working science journalists and editors which was the most revealing.

The real impact of libel on science seemed not to be about the rare cases where the defendant fought back.

Rather, the impact was a chronic "libel chill" - the everyday practice of not publishing, or not even writing, because of the anticipation of a libel case.


Of course, it is difficult to quantify the effect of such a "libel chill".

However, in February 2009 Sense About Science* placed evidence before the Culture, Media and Sport select committee on the extent of the adverse effect libel was having on everyday science writing.

I urge you to read it.


But does this evidence, when combined with the above examples of the use and abuse of libel, really substantiate the contention that there is a problem caused to science by libel?

And, if not, what evidence could substantiate such a contention?


These are difficult questions.

And a further difficult question is the extent to which there still needs to be a campaign to keep libel out of science in view of the Court of Appeal judgment in British Chiropractic Association v Dr Singh.

That judgment, to my mind, establishes that it is "fair comment" (or "honest opinion") to make statements about the value of evidence. Accordingly, for Simon to say "not a jot of evidence" was an expression of opinion, and he was entitled to say this, unless he was being malicious.

The panel of the Court of Appeal in that case (the Lord Chief Justice, the Master of the Rolls, and Lord Justice Sedley) was the strongest one conceivable and, unless overturned or limited in its scope by a future Court of Appeal or the new Supreme Court (both of which are unlikely, but theoretically possible), the Court of Appeal judgment is now binding on the High Court.

So libel law is now to be kept out of good faith disputes over evidence, whether in a scientific context or not.

That is a step forward.


It is also perhaps significant that since the claim against Simon, there has not yet been another publicly-known libel claim brought against a scientist or science writer.

That is another step forward.


However, neither the Court of Appeal judgment nor the role of the internet in countering misconceived libel claims will mean that "libel chill" has gone away for science or other evidence-based writers.

It is still straightforward to threaten or bring a libel claim pitched in terms other than in respect of the evaluation of evidence (for example: the BCA said Simon had accused them of dishonesty; General Electric Healthcare accused Thomsen of malice).

And the impact of the internet will always be contingent on bloggers and others volunteering to spend time and energy on cases which may or may not come to light.


So, in my opinion, libel chill still remains for scientists and science writers.


For me, the best way of removing libel chill would be for a statutory general public interest defence to be introduced into English libel law.

This defence would not be limited to scientists and science writers; nor - as is the case with the Reynolds defence, would it be a defence limited just to well-organized and "lawyered" newsrooms on a good day, with a fair wind, and with a sensible judge.


It would be a public interest defence which would go to the subject matter of the statement made without malice.

The new Lord Lester Bill, on which I intend to do a series of blogposts, seeks to introduce such a defence.

Would such a reform work work?

And are any of the other reforms in the Bill of any help?


The tests for me in answering these questions are:

- whether the proposed reform would have deterred or prevented any of the libel cases to which I refer to above; and

- whether the proposed reform will tend to remove the "libel chill" which currently affects so many scientists and science writers.

These are hard tests, and we should be rigorous in applying them.


Free discourse is crucial for progress in science, medicine, public health, and public safety.

No right to private reputation should hinder such discourse, unless malice or bad faith can be shown.

Lord Lester's Bill will have its second reading on 9 July 2010 - the essential website for following its progress is here.

In my view, everyone who followed Simon Singh's case, on this blog and elsewhere, should follow the progress of this Bill just as avidly.

But it should not be followed uncritically.

At every step, and with every amendment, we should ask whether the Bill will protect writers and publishers seeking to contribute on matters of public interest, including science and medicine.

And perhaps any legislative change will not only mean that the likes of Brian Deer and Ben Goldacre, Henrik Thomsen and Peter Wilmshurst, and of course Simon Singh, will never have to face the ordeal of a libel suit again; it will mean that "libel chill" in matters of public interest will be banished at last.



*Declaration of interest. I am delighted to have just been invited on to the advisory council of Sense About Science.


COMMENTS MODERATION

No purely anonymous comments will be published; always use a name for ease of reference by other commenters.

Friday, 18 June 2010

Ben Goldacre: The Doctor Will Sue You Now

As part of the writing of the book on the libel case brought against Simon Singh, I am looking at other cases where scientists and science writers have either been sued or threatened with being sued for libel.

One famous recent case was the claim brought against Ben Goldacre by Matthias Rath.

Below I re-print the chapter on Rath which Ben could not publish in the first edition of the book.

It is taken from here, HTML and all...



This is an extract from

BAD SCIENCE by Ben Goldacre

Published by Harper Perennial 2009.


You are free to copy it, paste it, bake it, reprint it, read it aloud, as long as you don’t change it – including this bit – so that people know that they can find more ideas for free at www.badscience.net


The Doctor Will Sue You Now


This chapter did not appear in the original edition of this book, because for fifteen months leading up to September 2008 the vitamin-pill entrepreneur Matthias Rath was suing me personally, and the Guardian, for libel. This strategy brought only mixed success. For all that nutritionists may fantasise in public that any critic is somehow a pawn of big pharma, in private they would do well to remember that, like many my age who work in the public sector, I don’t own a flat. The Guardian generously paid for the lawyers, and in September 2008 Rath dropped his case, which had cost in excess of £500,000 to defend. Rath has paid £220,000 already, and the rest will hopefully follow. Nobody will ever repay me for the endless meetings, the time off work, or the days spent poring over tables filled with endlessly cross-referenced court documents.


On this last point there is, however, one small consolation, and I will spell it out as a cautionary tale: I now know more about Matthias Rath than almost any other person alive. My notes, references and witness statements, boxed up in the room where I am sitting right now, make a pile as tall as the man himself, and what I will write here is only a tiny fraction of the fuller story that is waiting to be told about him. This chapter, I should also mention, is available free online for anyone who wishes to see it.


Matthias Rath takes us rudely outside the contained, almost academic distance of this book. For the most part we’ve been interested in the intellectual and cultural consequences of bad science, the made-up facts in national newspapers, dubious academic practices in universities, some foolish pill-peddling, and so on. But what happens if we take these sleights of hand, these pill-marketing techniques, and transplant them out of our decadent Western context into a situation where things really matter?


In an ideal world this would be only a thought experiment. AIDS is the opposite of anecdote. Twenty-five million people have died from it already, three million in the last year alone, and 500,000 of those deaths were children. In South Africa it kills 300,000 people every year: that’s eight hundred people every day, or one every two minutes. This one country has 6.3 million people who are HIV positive, including 30 per cent of all pregnant women. There are 1.2 million AIDS orphans under the age of seventeen. Most chillingly of all, this disaster has appeared suddenly, and while we were watching: in 1990, just 1 per cent of adults in South Africa were HIV positive. Ten years later, the figure had risen to 25 per cent.


It’s hard to mount an emotional response to raw numbers, but on one thing I think we would agree. If you were to walk into a situation with that much death, misery and disease, you would be very careful to make sure that you knew what you were talking about. For the reasons you are about to read, I suspect that Matthias Rath missed the mark.


This man, we should be clear, is our responsibility. Born and raised in Germany, Rath was the head of Cardiovascular Research at the Linus Pauling Institute in Palo Alto in California, and even then he had a tendency towards grand gestures, publishing a paper in the Journal of Orthomolecular Medicine in 1992 titled “A Unified Theory of Human Cardiovascular Disease Leading the Way to the Abolition of this Disease as a Cause for Human Mortality”. The unified theory was high-dose vitamins.


He first developed a power base from sales in Europe, selling his pills with tactics that will be very familiar to you from the rest of this book, albeit slightly more aggressive. In the UK, his adverts claimed that “90 per cent of patients receiving chemotherapy for cancer die within months of starting treatment”, and suggested that three million lives could be saved if cancer patients stopped being treated by conventional medicine. The pharmaceutical industry was deliberately letting people die for financial gain, he explained. Cancer treatments were “poisonous compounds” with “not even one effective treatment”.


The decision to embark on treatment for cancer can be the most difficult that an individual or a family will ever take, representing a close balance between well-documented benefits and equally well-documented side-effects. Adverts like these might play especially strongly on your conscience if your mother has just lost all her hair to chemotherapy, for example, in the hope of staying alive just long enough to see your son speak.


There was some limited regulatory response in Europe, but it was generally as weak as that faced by the other characters in this book. The Advertising Standards Authority criticised one of his adverts in the UK, but that is essentially all they are able to do. Rath was ordered by a Berlin court to stop claiming that his vitamins could cure cancer, or face a €250,000 fine.


But sales were strong, and Matthias Rath still has many supporters in Europe, as you will shortly see. He walked into South Africa with all the acclaim, self-confidence and wealth he had amassed as a successful vitamin-pill entrepreneur in Europe and America, and began to take out full-page adverts in newspapers.


˜The answer to the AIDS epidemic is here,” he proclaimed. Anti-retroviral drugs were poisonous, and a conspiracy to kill patients and make money. “Stop AIDS Genocide by the Drugs Cartel said one headline. “Why should South Africans continue to be poisoned with AZT? There is a natural answer to AIDS.” The answer came in the form of vitamin pills. “Multivitamin treatment is more effective than any toxic AIDS drug. Multivitamins cut the risk of developing AIDS in half.”


Rath’s company ran clinics reflecting these ideas, and in 2005 he decided to run a trial of his vitamins in a township near Cape Town called Khayelitsha, giving his own formulation, VitaCell, to people with advanced AIDS. In 2008 this trial was declared illegal by the Cape High Court of South Africa. Although Rath says that none of his participants had been on anti-retroviral drugs, some relatives have given statements saying that they were, and were actively told to stop using them.


Tragically,Matthias Rath had taken these ideas to exactly the right place. Thabo Mbeki, the President of South Africa at the time, was well known as an “AIDS dissident”, and to international horror, while people died at the rate of one every two minutes in his country, he gave credence and support to the claims of a small band of campaigners who variously claim that AIDS does not exist, that it is not caused by HIV, that anti-retroviral medication does more harm than good, and so on.


At various times during the peak of the AIDS epidemic in South Africa their government argued that HIV is not the cause of AIDS, and that anti-retroviral drugs are not useful for patients. They refused to roll out proper treatment programmes, they refused to accept free donations of drugs, and they refused to accept grant money from the Global Fund to buy drugs. One study estimates that if the South African national government had used anti-retroviral drugs for prevention and treatment at the same rate as the Western Cape province (which defied national policy on the issue), around 171,000 new HIV infections and 343,000 deaths could have been prevented between 1999 and 2007. Another study estimates that between 2000 and 2005 there were 330,000 unnecessary deaths, 2.2 million person years lost, and 35,000 babies unnecessarily born with HIV because of the failure to implement a cheap and simple mother-to-child-transmission prevention program. Between one and three doses of an ARV drug can reduce transmission dramatically. The cost is negligible. It was not available.


Interestingly, Matthias Rath’s colleague and employee, a South African barrister named Anthony Brink, takes the credit for introducing Thabo Mbeki to many of these ideas. Brink stumbled on the “AIDS dissident” material in the mid-1990s, and after much surfing and reading, became convinced that it must be right. In 1999 he wrote an article about AZT in a Johannesburg newspaper titled “a medicine from hell”. This led to a public exchange with a leading virologist. Brink contacted Mbeki, sending him copies of the debate, and was welcomed as an expert.


This is a chilling testament to the danger of elevating cranks by engaging with them. In his initial letter of motivation for employment to Matthias Rath, Brink described himself as “South Africa’s leading AIDS dissident, best known for my whistle-blowing exposé of the toxicity and inefficacy of AIDS drugs, and for my political activism in this regard, which caused President Mbeki and Health Minister Dr Tshabalala-Msimang to repudiate the drugs in 1999″.


In 2000, the now infamous International AIDS Conference took place in Durban. Mbeki’s presidential advisory panel beforehand was packed with “AIDS dissidents”, including Peter Duesberg and David Rasnick. On the first day, Rasnick suggested that all HIV testing should be banned on principle, and that South Africa should stop screening supplies of blood for HIV. “If I had the power to outlaw the HIV antibody test,” he said, “I would do it across the board.” When African physicians gave testimony about the drastic change AIDS had caused in their clinics and hospitals, Rasnick said he had not seen “any evidence” of an AIDS catastrophe. The media were not allowed in, but one reporter from the Village Voice was present. Peter Duesberg, he said, “gave a presentation so removed from African medical reality that it left several local doctors shaking their heads”. It wasn’t AIDS that was killing babies and children, said the dissidents: it was the anti-retroviral medication.


President Mbeki sent a letter to world leaders comparing the struggle of the “AIDS dissidents” to the struggle against apartheid. The Washington Post described the reaction at the White House: “So stunned were some officials by the letter’s tone and timing during final preparations for July’s conference in Durban that at least two of them, according to diplomatic sources, felt obliged to check whether it was genuine. Hundreds of delegates walked out of Mbeki’s address to the conference in disgust, but many more described themselves as dazed and confused. Over 5,000 researchers and activists around the world signed up to the Durban Declaration, a document that specifically addressed and repudiated the claims and concerns–at least the more moderate ones–of the “AIDS dissidents”. Specifically, it addressed the charge that people were simply dying of poverty:


The evidence that AIDS is caused by HIV-1 or HIV-2 is clearcut, exhaustive and unambiguous… As with any other chronic infection, various co-factors play a role in determining the risk of disease. Persons who are malnourished, who already suffer other infections or who are older, tend to be more susceptible to the rapid development of AIDS following HIV infection. However, none of these factors weaken the scientific evidence that HIV is the sole cause of AIDS… Mother-to-child transmission can be reduced by half or more by short courses of antiviral drugs … What works best in one country may not be appropriate in another. But to tackle the disease, everyone must first understand that HIV is the enemy. Research, not myths, will lead to the development of more effective and cheaper treatments.


It did them no good. Until 2003 the South African government refused, as a matter of principle, to roll out proper antiretroviral medication programmes, and even then the process was half-hearted. This madness was only overturned after a massive campaign by grassroots organisations such as the Treatment Action Campaign, but even after the ANC cabinet voted to allow medication to be given, there was still resistance. In mid-2005, at least 85 per cent of HIV-positive people who needed anti-retroviral drugs were still refused them. That’s around a million people.


This resistance, of course, went deeper than just one man; much of it came from Mbeki’s Health Minister, Manto Tshabalala-Msimang. An ardent critic of medical drugs for HIV, she would cheerfully go on television to talk up their dangers, talk down their benefits, and became irritable and evasive when asked how many patients were receiving effective treatment. She declared in 2005 that she would not be “pressured” into meeting the target of three million patients on anti-retroviral medication, that people had ignored the importance of nutrition, and that she would continue to warn patients of the sideeffects of anti-retrovirals, saying: “We have been vindicated in this regard. We are what we eat.”


It’s an eerily familiar catchphrase. Tshabalala-Msimang has also gone on record to praise the work of Matthias Rath, and refused to investigate his activities. Most joyfully of all, she is a staunch advocate of the kind of weekend glossy-magazine-style nutritionism that will by now be very familiar to you. The remedies she advocates for AIDS are beetroot, garlic, lemons and African potatoes. A fairly typical quote, from the Health Minister in a country where eight hundred people die every day from AIDS, is this: “Raw garlic and a skin of the lemon–not only do they give you a beautiful face and skin but they also protect you from disease.” South Africa’s stand at the 2006 World AIDS Conference in Toronto was described by delegates as the “salad stall”. It consisted of some garlic, some beetroot, the African potato, and assorted other vegetables. Some boxes of anti-retroviral drugs were added later, but they were reportedly borrowed at the last minute from other conference delegates.


Alternative therapists like to suggest that their treatments and ideas have not been sufficiently researched. As you now know, this is often untrue, and in the case of the Health Minister’s favoured vegetables, research had indeed been done, with results that were far from promising. Interviewed on SABC about this, Tshabalala-Msimang gave the kind of responses you’d expect to hear at any North London dinner-party discussion of alternative therapies.


First she was asked about work from the University of Stellenbosch which suggested that her chosen plant, the African potato, might be actively dangerous for people on AIDS drugs. One study on African potato in HIV had to be terminated prematurely, because the patients who received the plant extract developed severe bone-marrow suppression and a drop in their CD4 cell count–which is a bad thing–after eight weeks. On top of this, when extract from the same vegetable was given to cats with Feline Immunodeficiency Virus, they succumbed to full-blown Feline AIDS faster than their non-treated controls. African potato does not look like a good bet.


Tshabalala-Msimang disagreed: the researchers should go back to the drawing board, and “investigate properly”. Why? Because HIV-positive people who used African potato had shown improvement, and they had said so themselves. If a person says he or she is feeling better, should this be disputed, she demanded to know, merely because it had not been proved scientifically? “When a person says she or he is feeling better, I must say ‘No, I don’t think you are feeling better’? I must rather go and do science on you’?” Asked whether there should be a scientific basis to her views, she replied: “Whose science?”


And there, perhaps, is a clue, if not exoneration. This is a continent that has been brutally exploited by the developed world, first by empire, and then by globalised capital. Conspiracy theories about AIDS and Western medicine are not entirely absurd in this context. The pharmaceutical industry has indeed been caught performing drug trials in Africa which would be impossible anywhere in the developed world. Many find it suspicious that black Africans seem to be the biggest victims of AIDS, and point to the biological warfare programmes set up by the apartheid governments; there have also been suspicions that the scientific discourse of HIV/AIDS might be a device, a Trojan horse for spreading even more exploitative Western political and economic agendas around a problem that is simply one of poverty.


And these are new countries, for which independence and self-rule are recent developments, which are struggling to find their commercial feet and true cultural identity after centuries of colonisation. Traditional medicine represents an important link with an autonomous past; besides which, anti-retroviral medications have been unnecessarily – offensively, absurdly – expensive, and until moves to challenge this became partially successful, many Africans were effectively denied access to medical treatment as a result.


It’s very easy for us to feel smug, and to forget that we all have our own strange cultural idiosyncrasies which prevent us from taking up sensible public-health programmes. For examples, we don’t even have to look as far as MMR. There is a good evidence base, for example, to show that needle-exchange programmes reduce the spread of HIV, but this strategy has been rejected time and again in favour of “Just say no.” Development charities funded by US Christian groups refuse to engage with birth control, and any suggestion of abortion, even in countries where being in control of your own fertility could mean the difference between success and failure in life, is met with a cold, pious stare. These impractical moral principles are so deeply entrenched that Pepfar, the US Presidential Emergency Plan for AIDS Relief, has insisted that every recipient of international aid money must sign a declaration expressly promising not to have any involvement with sex workers.


We mustn’t appear insensitive to the Christian value system, but it seems to me that engaging sex workers is almost the cornerstone of any effective AIDS policy: commercial sex is frequently the “vector of transmission”, and sex workers a very high-risk population; but there are also more subtle issues at stake. If you secure the legal rights of prostitutes to be free from violence and discrimination, you empower them to demand universal condom use, and that way you can prevent HIV from being spread into the whole community. This is where science meets culture. But perhaps even to your own friends and neighbours, in whatever suburban idyll has become your home, the moral principle of abstinence from sex and drugs is more important than people dying of AIDS; and perhaps, then, they are no less irrational than Thabo Mbeki.


So this was the situation into which the vitamin-pill entrepreneur Matthias Rath inserted himself, prominently and expensively, with the wealth he had amassed from Europe and America, exploiting anti-colonial anxieties with no sense of irony, although he was a white man offering pills made in a factory abroad. His adverts and clinics were a tremendous success. He began to tout individual patients as evidence of the benefits that could come from vitamin pills – although in reality some of his most famous success stories have died of AIDS. When asked about the deaths of Rath’s star patients, Health Minister Tshabalala-Msimang replied: “It doesn’t necessarily mean that if I am taking antibiotics and I die, that I died of antibiotics.”


She is not alone: South Africa’s politicians have consistently refused to step in, Rath claims the support of the government, and its most senior figures have refused to distance themselves from his operations or to criticise his activities. Tshabalala-Msimang has gone on the record to state that the Rath Foundation “are not undermining the government’s position. If anything, they are supporting it.”


In 2005, exasperated by government inaction, a group of 199 leading medical practitioners in South Africa signed an open letter to the health authorities of the Western Cape, pleading for action on the Rath Foundation. “Our patients are being inundated with propaganda encouraging them to stop life-saving medicine,” it said. “Many of us have had experiences with HIV infected patients who have had their health compromised by stopping their anti-retrovirals due to the activities of this Foundation.” Rath’s adverts continue unabated. He even claimed that his activities were endorsed by huge lists of sponsors and affiliates including the World Health Organization, UNICEF and UNAIDS. All have issued statements flatly denouncing his claims and activities. The man certainly has chutzpah.


His adverts are also rich with detailed scientific claims. It would be wrong of us to neglect the science in this story, so we should follow some through, specifically those which focused on a Harvard study in Tanzania. He described this research in full-page advertisements, some of which have appeared in the New York Times and the Herald Tribune. He refers to these paid adverts, I should mention, as if he had received flattering news coverage in the same papers. Anyway, this research showed that multivitamin supplements can be beneficial in a developing world population with AIDS: there’s no problem with that result, and there are plenty of reasons to think that vitamins might have some benefit for a sick and frequently malnourished population.


The researchers enrolled 1,078 HIV-positive pregnant women and randomly assigned them to have either a vitamin supplement or placebo. Notice once again, if you will, that this is another large, well-conducted, publicly funded trial of vitamins, conducted by mainstream scientists, contrary to the claims of nutritionists that such studies do not exist. The women were followed up for several years, and at the end of the study, 25 per cent of those on vitamins were severely ill or dead, compared with 31 per cent of those on placebo. There was also a statistically significant benefit in CD4 cell count (a measure of HIV activity) and viral loads. These results were in no sense dramatic – and they cannot be compared to the demonstrable life-saving benefits of anti-retrovirals – but they did show that improved diet, or cheap generic vitamin pills, could represent a simple and relatively inexpensive way to marginally delay the need to start HIV medication in some patients.


In the hands of Rath, this study became evidence that vitamin pills are superior to medication in the treatment of HIV/AIDS, that anti-retroviral therapies “severely damage all cells in the body–including white blood cells”, and worse, that they were “thereby not improving but rather worsening immune deficiencies and expanding the AIDS epidemic”. The researchers from the Harvard School of Public Health were so horrified that they put together a press release setting out their support for medication, and stating starkly, with unambiguous clarity, that Matthias Rath had misrepresented their findings.


To outsiders the story is baffling and terrifying. The United Nations has condemned Rath’s adverts as “wrong and misleading”. “This guy is killing people by luring them with unrecognised treatment without any scientific evidence,” said Eric Goemaere, head of Médecins sans Frontières SA, a man who pioneered anti-retroviral therapy in South Africa. Rath sued him.


It’s not just MSF who Rath has gone after: he has also brought time-consuming, expensive, stalled or failed cases against a professor of AIDS research, critics in the media and others.


But his most heinous campaign has been against the Treatment Action Campaign. For many years this has been the key organisation campaigning for access to anti-retroviral medication in South Africa, and it has been fighting a war on four fronts. Firstly, TAC campaigns against its own government, trying to compel it to roll out treatment programmes for the population. Secondly, it fights against the pharmaceutical industry, which claims that it needs to charge full price for its products in developing countries in order to pay for research and development of new drugs – although, as we shall see, out of its $550 billion global annual revenue, the pharmaceutical industry spends twice as much on promotion and admin as it does on research and development. Thirdly, it is a grassroots organisation, made up largely of black women from townships who do important prevention and treatment-literacy work on the ground, ensuring that people know what is available, and how to protect themselves. Lastly, it fights against people who promote the type of information peddled by Matthias Rath and his ilk.


Rath has taken it upon himself to launch a massive campaign against this group. He distributes advertising material against them, saying “Treatment Action Campaign medicines are killing you” and “Stop AIDS genocide by the drug cartel”, claiming–as you will guess by now–that there is an international conspiracy by pharmaceutical companies intent on prolonging the AIDS crisis in the interests of their own profits by giving medication that makes people worse. TAC must be a part of this, goes the reasoning, because it criticises Matthias Rath. Just like me writing on Patrick Holford or Gillian McKeith, TAC is perfectly in favour of good diet and nutrition. But in Rath’s promotional literature it is a front for the pharmaceutical industry, a “Trojan horse” and a “running dog”. TAC has made a full disclosure of its funding and activities, showing no such connection: Rath presented no evidence to the contrary, and has even lost a court case over the issue, but will not let it lie. In fact he presents the loss of this court case as if it was a victory.


The founder of TAC is a man called Zackie Achmat, and he is the closest thing I have to a hero. He is South African, and coloured, by the nomenclature of the apartheid system in which he grew up. At the age of fourteen he tried to burn down his school, and you might have done the same in similar circumstances. He has been arrested and imprisoned under South Africa’s violent, brutal white regime, with all that entailed. He is also gay, and HIV-positive, and he refused to take anti-retroviral medication until it was widely available to all on the public health system, even when he was dying of AIDS, even when he was personally implored to save himself by Nelson Mandela, a public supporter of anti-retroviral medication and Achmat’s work.


And now, at last, we come to the lowest point of this whole story, not merely for Matthias Rath’s movement, but for the alternative therapy movement around the world as a whole. In 2007, with a huge public flourish, to great media coverage, Rath’s former employee Anthony Brink filed a formal complaint against Zackie Achmat, the head of the TAC. Bizarrely, he filed this complaint with the International Criminal Court at The Hague, accusing Achmat of genocide for successfully campaigning to get access to HIV drugs for the people of South Africa.


It’s hard to explain just how influential the “AIDS dissidents” are in South Africa. Brink is a barrister, a man with important friends, and his accusations were reported in the national news media –and in some corners of the Western gay press–as a serious news story. I do not believe that any one of those journalists who reported on it can possibly have read Brink’s indictment to the end.


I have.


The first fifty-seven pages present familiar anti-medication and “AIDS-dissident” material. But then, on page fifty-eight, this “indictment” document suddenly deteriorates into something altogether more vicious and unhinged, as Brink sets out what he believes would be an appropriate punishment for Zackie. Because I do not wish to be accused of selective editing, I will now reproduce for you that entire section, unedited, so you can see and feel it for yourself.


APPROPRIATE CRIMINAL SANCTION


In view of the scale and gravity of Achmat’s crime and his direct personal criminal culpability for ‘the deaths of thousands of people’, to quote his own words, it is respectfully submitted that the International Criminal Court ought to impose on him the highest sentence provided by Article 77.1(b) of the Rome Statute, namely to permanent confinement in a small white steel and concrete cage, bright fluorescent light on all the time to keep an eye on him, his warders putting him out only to work every day in the prison garden to cultivate nutrient-rich vegetables, including when it’s raining. In order for him to repay his debt to society, with the ARVs he claims to take administered daily under close medical watch at the full prescribed dose, morning noon and night, without interruption, to prevent him faking that he’s being treatment compliant, pushed if necessary down his forced-open gullet with a finger, or, if he bites, kicks and screams too much, dripped into his arm after he’s been restrained on a gurney with cable ties around his ankles, wrists and neck, until he gives up the ghost on them, so as to eradicate this foulest, most loathsome, unscrupulous and malevolent blight on the human race, who has plagued and poisoned the people of South Africa, mostly black, mostly poor, for nearly a decade now, since the day he and his TAC first hit the scene.


Signed at Cape Town, South Africa, on 1 January 2007


Anthony Brink


image


The document was described by the Rath Foundation as “entirely valid and long overdue”.image


This story isn’t about Matthias Rath, or Anthony Brink, or Zackie Achmat, or even South Africa. It is about the culture of how ideas work, and how that can break down. Doctors criticise other doctors, academics criticise academics, politicians criticise politicians: that’s normal and healthy, it’s how ideas improve. Matthias Rath is an alternative therapist, made in Europe. He is every bit the same as the British operators that we have seen in this book. He is from their world.


Despite the extremes of this case, not one single alternative therapist or nutritionist, anywhere in the world, has stood up to criticise any single aspect of the activities of Matthias Rath and his colleagues. In fact, far from it: he continues to be fêted to this day. I have sat in true astonishment and watched leading figures of the UK’s alternative therapy movement applaud Matthias Rath at a public lecture (I have it on video, just in case there’s any doubt). Natural health organisations continue to defend Rath. Homeopaths’ mailouts continue to promote his work. The British Association of Nutritional Therapists has been invited to comment by bloggers, but declined. Most, when challenged, will dissemble.”Oh,” they say, “I don’t really know much about it.” Not one person will step forward and dissent.


The alternative therapy movement as a whole has demonstrated itself to be so dangerously, systemically incapable of critical self-appraisal that it cannot step up even in a case like that of Rath: in that count I include tens of thousands of practitioners, writers, administrators and more. This is how ideas go badly wrong. In the conclusion to this book, written before I was able to include this chapter, I will argue that the biggest dangers posed by the material we have covered are cultural and intellectual.


I may be mistaken.



This work is licenced under the Creative Commons Attribution-Non-Commercial-No Derivative Works License described here, you are free to copy it wherever you like as long as you keep it whole, and do please point people back here to badscience.net so that if they like it, they know where to find more for free.




COMMENTS MODERATION

No purely anonymous comments will be published; always use a name for ease of reference by other commenters.

Wednesday, 16 June 2010

Further thoughts on Gary McKinnon

I have changed my mind on the extradition of Gary McKinnon; let me explain why.

When I decided to write a series of blogposts on this well-known and controversial case, my primary intention was simply to explore the difference between a source-based approach and the version of the case familiar from mainstream media.

There was, to my mind, a complete mismatch between the media construct of the "Free Gary" campaign and the information one could obtain from a close reading of the judgments and from an accurate understanding of the applicable law.

I thought such an exploration would be best done by a blogger rather than a journalist, as a blogger can freely link to sources and take time to "get it right" in a way that a journalist under the constant crunch of deadlines would just not be able to do.

I also thought my background as a serious legal blogger with a strong liberal bias would mean that my exercise would not be seen as a hatchet job.

In my summary blogpost here (which links to the other blogposts), I was able to show that a source-based approach would indicate that any extradition of Mr McKinnon would not be either unjust or illegal.

There is nothing whatsoever in a source-based approach to substantiate the popular media version of this case being a miscarriage of justice in action.

In particular: the alleged offences are serious and were sustained over a lengthy period; the allegations went beyond unauthorised access to substantial file deletion and copying; there had been allegedly significant operational damage; the unauthorised access had been admitted and Mr McKinnon's legal team had indicated that he would also admit the damage; the US can evidence the damage; the US can thereby show a prima facie case; UFOs play no part in the litigation, and indeed Mr McKinnon's original case was that his political opinions should be taken so seriously that he should not be allowed to be extradited on those grounds; Mr McKinnon had wrongly rejected a highly advantageous plea bargain; the disparities in respect of the UK/US extradition arrangements were not relevant in this case; the CPS had provided detailed reasons as to why they would not (and probably cannot) prosecute Mr McKinnon in the UK; and, perhaps most importantly of all, the US has provided detailed assurances as to how Mr McKinnon's condition of Asperger's Syndrome will accommodated should he be extradited and has also stated that there is no principled opposition to Mr McKinnon applying to serve his sentence in the UK.

(For sources to all of these, follow the references at my summary blogpost.)


In short, there is a case to answer at the trial which would follow extradition.


But in my summary blogpost I urged that - even though a source-based approach showed it would be neither unjust nor illegal to extradite Mr McKinnon to answer the case against him - mercy should still be applied.

After all, eight years is an unacceptably long time for an extradition, especially as the facts were admitted and documented back in spring and summer 2002.

This plea for mercy shocked some of those who had followed my series; it was almost as if I had let them down.

But it was my liberal inclination asserting itself having dismantled the central elements of the "Free Gary" campaign. I do not want to see Mr McKinnon extradited and I feel desperately sympathetic for his predicament.

(For me, skepticism (a source-based approach combined with open, detailed, and critical reasoning) is what one employs to get to the facts, and liberalism is what one applies to the facts once you have got them. In this way one can try and avoid the usual progressive problem of sentimental wishful thinking.)


And what happened after my plea for mercy was perhaps instructive.

The Free Gary campaigners continued to troll and be confrontational (and indeed repeatedly abuse me on Twitter). They did not seem to care that I had come down on "their side". They seemed more concerned about defending their narrative as being "true".

On the other hand, others who followed my blog, especially the estimable Dr Brian Blood, sought to grasp my point about mercy and apply critical thinking to it.

And I can now say I have changed my mind.


The application of mercy in this case should go to sentencing not the extradition decision. That is the correct point for such mitigation to be considered.

This must be right, and I stand corrected.

I still want Mr McKinnon to be free of this extradition and this case. But I am now convinced that whatever my personal feelings about his predicament, and my general loathing for custodial sentences (unless they are to protect the public), my plea for mercy was procedurally premature.

I wish I could at a stroke release Mr McKinnon both from his situation and from the misconceived legal strategy he has followed. I rather hope the Home Secretary can find some plausible pretext.

But that is not enough to objectively set aside an extradition process which, on proper examination, has actually been neither unjust nor illegal.

I do so wish it was otherwise; but I am afraid - on reflection - it is not.




COMMENTS MODERATION

No purely anonymous comments will be published; always use a name for ease of reference by other commenters. Flaming and venting comments are also unlikely to be published.