Coming on top of the lifting of Carter-Ruck’s attempt to gag The Guardian on behalf of Trafigura, yesterday’s news that Simon Singh has now been granted leave to appeal Justice Eady’s perverse ruling on the meaning of the statements for which he’s being sued for libel by the British Chiropractic Association makes this a pretty good week all round.
Simon’s post-hearing statement has been published by Sense About Science and you can pick up a plethora of other coverage at a variety of sites including Index of Censorship, Lay Science. Heresy Corner, Nature News, Dr Aust’s Spleen and from Anjana Ajuha’s report in The Times.
Simon’s not out of the woods yet, by any means. Yesterday’s success earns him only the right to go back to the High Court and re-argue the meaning that Justice Eady placed on the remarks over which he’s being sued but its a step in the right direction and Appeal Court Justice Laws’ reported remarks on Eady’s original ruling suggest that things might just be heading the right direction.
While we wait for the next development, which could easily take another six months, I thought I’d ponder a bit of a ‘what if?’ question.
What if things go Simon’s way, again, when he next crosses sabres with Justice Eady, and the BCA’s libel action then proceeds to trial on the basis for which Simon has prepared his proposed defence, a defence that would, in effect, put Chiropractic’s claim to be founded on science and scientific evidence squarely on trial?
Or, to frame the question is another way, how much of the British Chiropractic Association’s plethora of evidence is actually admissible in court as scientific evidence?
Courts here, and in other countries across the world, regularly deal with scientific evidence, usually in conjunction with expert testimony, and that means, logically, that the legal system here, and in these other countries, must have some means of differentiating between scientific and non-scientific or pseudoscientific claims. If that were not the case then just about anything could be claimed to have a scientific basis or amount to scientific evidence, irrespective of the merits of such a claim and the whole system would just have to take pot luck as to whether a particular judge or jury member(s) might understand enough about the science to accurately sort the wheat from the woo.
But how, exactly?
Well, as scientific evidence is most often introduced into court with the support of expert testimony, it strikes me that perhaps the best place to find an answer to that question is to look at the procedural rules the deal with expert witness and, sure enough, it didn’t take long to find that, in common law jurisdictions, such as ours, the acknowledged gold standard for dealing with the admissibility, or otherwise, of scientific evidence and expert testimony relating to it, is to be found in the United States, where its called the Daubert Standard after the case of Daubert vs Merrell Dow Pharmaceuticals, which stands as the first of three pivotal US Supreme Court cases in which the standard was articulated.
Whether this standard applies in English Law is not entirely clear to me at the moment, although that’s because I haven’t had chance to look in detail at what oue own courts are up to. Nevertheless, in 2005, the House of Commons Science and Technology Committee recommended that a Forensic Science Advisory Council be created to regulate the use of forensic evidence in the UK and noted that:
The absence of an agreed protocol for the validation of scientific techniques prior to their being admitted in court is entirely unsatisfactory. Judges are not well-placed to determine scientific validity without input from scientists. We recommend that one of the first tasks of the Forensic Science Advisory Council be to develop a “gate-keeping” test for expert evidence. This should be done in partnership with judges, scientists and other key players in the criminal justice system, and should build on the US Daubert test.
That recommendation was accepted and, today, this council exists and works alongside the Forensic Science Regulator, whose primary focus seems to be the use of forensic evidence in criminal trials.
With that firmly in mind, its seem reasonable to the that the Daubert standard, or something very similar to it, is in use within our legal system and, that being the case, it would also not be unreasonable for Simon to argue that the tests set out in the Daubert Standard should be applied to any scientific evidence or expert testimony introduced into his ongoing libel case, including – of course – the British Chiropractic Association’s plethora of evidence.
So what is this standard?
Well, for starters, it specifies that the trial judge is the gatekeeper of any scientific evidence or expert testimony put before a court, which would mean Justice Eady having to rule on exactly which items from the BCA’s plethora can actually be put to the jury as scientific evidence, if this does go a jury trial, ensuring in the process that all such evidence proceeds from ‘scientific knowledge’
Next, in considering which evidence/testimony to admit, the trial judge has to consider both the relevance and reliability of the testimony/evidence. He cannot leave it to the jury to make this assessment as a question of weight.
Finally, any conclusions drawn from evidence will qualify as scientific knowledge if its proponent can demonstrate that it is the product of sound scientific methodology, i.e. derived from the scientific method.
In dealing with that last point, the standard lists a number of factors that the judge should take into account – and here’s where the fun really starts…
1. Empirical testing: the theory or technique must be falsifiable, refutable, and testable.
And if I’m interpreting that correctly, then large swathes of the CAM industry including ‘straight’ chiropractic, acupuncture, reflexology, anything which purports to be an ‘energy therapy’ and homeopathy are all fucked before they even clear the starting gate. Any claimed ‘theraputic’ technique or practice founded on vitalism fails to meet the Daubert Standard because vitalism is unfalsifiable.
So far as chiropractic goes, evidence relating to its use in ‘treating’ lower back pain and other spinal conditions, together with any conditions that might plausibly be argued to be mechanistically connected/related to the spine should, at least, pass this first test but for conditions such as colic, asthma, ear infections and bed-wetting, unless the BCA can produce a plausible, non-vitalstic hypothesis to explain how might spinal manipulation might affect any of these conditions, then none of the 15 piece of evidence submitted for these conditions will pass the test.
2. Subjected to peer review and publication.
Most of the ‘scientific’ papers do appear to have been published in peer reviewed journal, albeit specialist chiropractic journals of uncertain quality. That said, what this does potentially prevent is an attempt to sneak any as yet undisclosed, unpublished research in as the last minute.
3. Known or potential error rate
4. The existence and maintenance of standards and controls concerning its operation.
The terminology here is more or less that of forensic science, nevertheless we can build outwards from these factor to a more general principle that the quality of the research from which the evidence is derived is a relevant factor and, moreover, because clinical research has a gold standard of its own, the double-blinded randomly controlled clinic trial, we can also assert that that is the benchmark against which the quality of any research needs to be assessed in determining its admissibility as scientific evidence.
5. Degree to which the theory and technique is generally accepted by a relevant scientific community.
Here we do have an arguable point – would the relevant scientific community by that of medicine, generally, or could be it limited only to chiropractors?
If pushed on this point, the BCA would naturally try to argue the latter. My view is that any reasonable person would take the view that if the relevant scientific community is not the wide medical community then it at least that associated with the relevant specialism within medicine, which in this case is primarily paediatrics plus any other relevant condition specialists.
In the US, Rule 702 of the Federal Rules of Evidence includes three additional provisions relating to the Daubert Standard, which specify that a witness may only give evidence if:
1) the testimony is based upon sufficient facts or data
2) the testimony is the product of reliable principles and methods, and
3) the witness has applied the principles and methods reliably to the facts of the case.
In all, it strikes me that very little of the BCA’s plethora would be considered admissible as scientific evidence under the Daubert Standard and, with that in mind, that it would be entirely remiss of Simon’s legal team not advance the argument that, if the case does go to trial, that this standard should be applied to all scientific evidence and related expert testimony put to the court during the proceedings, not least because acceptance of that argument would set a critically important precedent in libel actions relating to scientific criticism.
Since setting typing fingers to keyboard on this article, Jack of Kent has reported an astonishing new development.
Flying entirely in the face of Appeal Court Justice Laws remark that the BCA had raised no questions about Simon’s good faith or motivations, the BCA have today issued a press release which claims that ‘the BCA was maliciously attacked by Dr. Singh in The Guardian newspaper’.
As Jack right points out this is not only a shocking and serious accusation, its also a defamatory one, for all that it smacks of a degree of desperation on the BCA’s part.
This may, as Jack suggests, be no more than an unfortunate slip of the keyboard that will be hastily retracted in due course – if not then its seems apparent that the BCA should urgently take head of Denis Healey’s famed first law of holes – when in one, stop digging.
Well, well – it seems that the BCA’s accusation of malice was just an unfortunate case of keyboard flatulence after all. As the Lay Scientist notes, their press release has now been amended to read:
However, this action is a simple claim based on the fact that the BCA was libelled by Dr. Singh in the Guardian newspaper.
If you’re anywhere in the vicinity of the BCA’s head office, their PR officer is the one hobbling around with a hugh fucking hole in their foot:
If Simon Singh now chooses to sue the BCA they will have to justify their allegation as a fact. They would not be able to do so…
…It may be that Simon refuses to counter sue and allows the BCA to happily continue with their case. That is entirely a matter for him.
But, in my view, the moment he chooses to do so will surely be when this case ends.
That really was a misconceived press release.