The Scots Law Student

The SLS : Life and trials of learning law in Scotland

Tag: evidence

On catgate and outrageousness

The Guardian is making very ominous sounds about Ken Clarke’s future career in the wake of “catgate” which, if true, is possibly the saddest political coup in history.

I suspect most people have heard about Catgate by now — one of Theresa May’s researchers has found a immigration case in which a cat was mentioned and has either cynically misrepresented it or catastrophically misunderstood it to the extent it was headlined in a Party conference speech as an outrageous “yuman rites” story.

Ken Clarke, echoing many of us in all walks of life who are a bit sick of our area of expertise being done very badly in public, pulled a face when May said that the central legal issue in the case was immigrants having a cat. That sounds like a ridiculous reason to let someone stay in Britain, right?

Spoiler: it totally is.

Outrageousness

The notable thing about outrageous stories is that they’re unexpected — that makes it stand out. You see it regularly in health reporting to the extent that if a new study reveals unexpected results it’s probably wrong. There’s a lot science doesn’t know yet but it wasn’t born yesterday either.

Your gut has a reasonable sense of how the world should (and nearly always does) work. If you see a car rolling uphill that stands out as not expected. This is why gravity hills are interesting:

If you gut says “that doesn’t sound right” it’s worth checking if it is. That’s what Ken Clarke did with Catgate, and it so happens that he was perfectly right. It turned out that the cat was mentioned in passing by a witness as an example of how he had cemented a family relationship with other humans.

Unexpected anecdotes are also an extremely poor way to make policy. We should not abolish the Human Rights Act because an aide at the Home Office found a story about a cat.

Frankly, it’s outrageous to think otherwise.

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Do you have any evidence for that?

Apparently mephedrone is deadly and we should ban it. Apparently I know that because one person possibly might have died of it. Way, way out in front of this is lightning, donkeys, your bath, driving and so on. Stalin famously insisted that all intelligence he was given was to be corroborated by at least one other, independent source. This is a great way to avoid misinformation tainting your decisions and, despite being a murderous despot, this was a fairly good idea.

I believe in evidence based policy making, it’s why I was so pleased that the Science and Technology Committee re-started their Evidence Checks. These are not checks that the thing being investigated works or not, just that the government policy is supported by evidence. It comes down to wanting to reasonably trust the state to spend their money on things that work.

The problem with banning something because it possibly, maybe killed one person is that you’re banning something based on purely anecdotal evidence. If you don’t want homoepathy on the NHS because there’s no reliable evidence for it, then why would you want drugs banned without similar evidentiary support? We’re not quite as crazy about drug offences as the USA but we’re not a million miles off, we need a better way to pick what substances we’re going to toss people in jail for than “I read about it in the Daily Mail.”

On a similar note, the EU has decided to require that producers of “superfoods” prove what they say they can do. This seems entirely reasonable – if you want to sell me white veal on the basis that it will make cancerous growths sprout legs and walk out of my body I don’t see why you shouldn’t have to prove that. The producers could don’t have to say it’s a superfood – they could always say “buy it just because it’s tasty.” Naturally the superfood producers think this is ridiculous and they shouldn’t have to be held to the same standard as drug companies, presumably because they cure illnesses in entirely different ways. It seems to be a case of food producers wanting to make the sort of claims that pharmaceuticals do without needing to put the work in first.

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If someone kills me I want someone to check why

I’m politically liberal, I believe in a small state and I believe in the right to autonomy. Therefore, you’d assume, I’d be one of those wondering “how could a bereaved mother [Kay Gilderdale] be put through the agony of a trial for attempted murder?”

In fact, I think one of the most vital things that the state should limit itself to doing is, when it finds one citizen attempting to end the life of another, to come along and ask in a comically plummy voice, “what’s going on here then?”

I was reading Gilderdale’s trial was horrific but necessary to retain a vital principle – Madeline Bunting in today’s Guardian and thought that she was really spot on. I have my own issues with assisted suicide but I think her observations are vitally important too, particularly in that it’s important not to subtly (or not) encourage people to end their own lives. I’d hope you wouldn’t tell a man on a bridge to jump, so you wouldn’t do it to an elderly relative either.

I think calls that the Gilderdale trial was a mistake are entirely wrong. I think that we need to be careful to watch who we put on trial but if someone is connected with the suspicious, non-natural death of a human being (let’s hypothetically say my death) they should damn well have to explain what they were doing. People who try to end others’ lives are not the sort of people we need to keep out of court. I don’t like the idea of accepting things which let you kill people – I don’t think it ends well.

I think if you kill someone in self defence you should have to show that it was self defence, if you were provoked you should have to show that you were provoked. Self defence lets you get away with murder, we really need to be careful with that. I think if someone claims they killed someone to end their suffering they should equally have to show that they did it to end their suffering and regardless, because every single murder victim in history was going to die eventually anyway, if they were actually OK with living in suffering that should never ever be a defence.

The problem with all of homicide defences based on the victim’s conduct (self defence, battered wife syndrome, assisted suicide etc) is that it is very hard to get the victim’s side of things afterwards. It’s hard to say you didn’t hit your wife after your murder, for example, and it’s also hard to say you didn’t consent to your death. If someone wishes to escape responsibility on the basis that you wanted to die and they were only carrying out your wishes I would humbly want someone to check that out.

We don’t have a legal right to die, we have an absolute certainty to it. What we do have is a right to life. If someone dies, potentially in very violent circumstances, it is a big deal and we should accept that. There are many reason that a carer might kill their patient, or even a mother might kill her daughter which have nothing to do with dignity or choice or love or anything else that is good.

I would hate for my murderer to get off because I was sick. Don’t just take their word for it.

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Electrosensitivity claim hits a bump

Electrosensitivity is one of the newer injury complaints that’s been making the rounds worldwide. Generally it boils down to microwave or radio radiation triggering allergy type reactions and like all personal injury actions the aim is to remedy the damage. Unusually for personal injury cases if someone manages to win one of these it will change modern life.

There is such a case working its way through the courts in South Africa on this issue and the defence has possibly revealed the biggest card ever. The pursuers allege that they have been harmed by a radio tower owned by iBurst. iBurst say that this could not have happened, not just because of issues I’ll mention in a second, but because they’d turned the tower off a month and a half before the residents even got together to discuss their problems. I’m not a lawyer but I think that’s a pretty good defence. I really hope it won’t adversely affect their much more sensible planning based dispute with the mast’s operator.

I have no doubt that most of those complaining about electrosensitivity have suffered the effects they claim but I’ve always been sceptical that their electronic equipment is doing it to them. Electromagnetic radiation was ancient in Benjamin Franklin’s time.

The problem with electrosensitivity claims is that there’s just no solid evidence that the things that people complain about are actually capable of doing what they’re being accused of, even before considering if they are doing it. It’s either in the situation that cigarettes were in the 60s or homoeopathy is now and we might look back in the future and think we were silly for ever thinking it could have been the other way. Right now no one’s been able to show conclusive links.

We all know that radiation is bad for us, we know to avoid sitting in the sun too long, and to stay away from nuclear waste and the business end of X-Ray machines. It would follow that avoiding the microwave radiation in a mobile phone would be a critical survival tip too, right?

Not really, it all depends on whether or not mobile phones are harmful for us or not. It could well be like avoiding a house cat just because tigers and lions are dangerous. The effect radiation has on people comes down to power, like a lot of things in life, and to wavelength, like rather fewer things in life. If there’s not enough power in a signal at the right wavelength then the wave won’t do anything to you and I think that’s really where we are with WiFi and mobile phone, the most common complaints, electrosensitivity cases.

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Just plain, old fashioned detective work

Part of the reasoning behind my love of typewriters stems from the fact that they can be used, so conclusively, as articles of evidence – this is bad for any criminal enterprises I might have planned but is wonderful from a sense of personality and uniqueness and that’s something I really quite like. The case that I think of most fondly is the Ian Frazier (The Atlantic November 1997) article “Typewriter Man” which included a wonderful anecdote about a single key:

Mrs. Tytell tapped her clear-lacquered fingernail on a key in the upper right-hand corner of the keyboard. The key had a plus sign on top and an equal sign below. “This key on this particular kind of typewriter was the deciding piece of evidence in a multi-million-dollar fraud case I worked on a few years ago,” she said. “A younger son of a wealthy man had been specifically excluded from inheriting some theaters the father had owned. An assignment document, typewritten and with the father’s signature, gave the theaters to the older sons instead. The younger son was twelve when his father died, and he always felt that his father wouldn’t have done that to him, because his father used to take him to these theaters all the time. The younger son grew up and became a lawyer and pursued this question, and finally he came to me with the assignment document, and I found that it was typed on an Underwood of this particular model and year. The assignment document had no plus or equal signs on it, but I was able to prove that the machine that had typed it also typed other documents that did have those signs, and that was the clincher. Underwood didn’t add that particular key to their keyboard until well after the document in question was supposed to have been signed. When I explained all this to the lawyer for the older brothers, he said, ‘So what?’ A few weeks later they settled out of court for a lot of money.”
The Atlantic

There are also stories from the days of the manual telegraph of individuals being identified by their “fist” – the subtle differences in how individual senders use their particular equipment but there is not much in terms of personality in the output from a typical printer. The nearest that happens today is that some laser printers leave some coloured dots on the paper that refer to the serial number of that printer – it’s useful for cases of fraud, ransom demands etc but there’s a huge issue of personal privacy for those times when the printer isn’t used to commit a crime but instead, say, is used to print off a primary school book report. That’s a whole different issue though. There is a method of looking up which computer posted particular methods by comparing the IP address of that particular poster with the records of the ISP that provided the internet connection – it’s the easiest method because the ISP generally possesses a real life name to bill their customers every month.

There’s a vast difference in my eyes between an expert with a loupe identifying the faint wear marks of a typewriter key on a stack of paper documents or a trained ear picking out the subtle differences in pace and pressure involved in using a telegraph key and an expert reading off a faint barcode printed between the lines on a page and cross referencing to a long chart of other codes. It’s also not nearly as interesting as a piece of sleuthing and that’s a sad change, although a much, much cheaper alternative to paying an expert with the technical skill to identify the faint, non scientific details that distinguish each typewriter and telegraph key to a legal standard of proof.

I thought the first sort of sleuthing has died out to be replaced entirely with the second kind – this sort of database and spreadsheet lookup. It’s more efficient but it’s not necessarily nicer, I quite like the old style of doing things.

That’s not necessarily the case – just as recently as early January 2009 there was a signed letter, reportedly written by the late Bob Hayes, which was read out by his sister which talked about his feelings, on 29 October 1999, which may have contributed to his death on 18 September 2002. The letter, which was photographed extensively, was not checked for its faint barcode or a property of the printer that printed it, but its typeface. The letter was typed in Calibri, a font which was invented in 2003 for its use as an internal Microsoft typeface which was then released to the world as part of Microsoft Office 2007, I think it’s a great font and I type a lot of my personal work in it. The problem is that there’s no way that Hayes could have typed out a letter in that style (Calibri) in 1999, it also couldn’t have been stored on disc and printed off on a copy of Microsoft Office 2007 because it was signed. How then could it come to have been printed in this typeface? For more details see Dallas News

Is it a forgery? I can’t say for sure based on the evidence I currently know of, but it’s quite a stretch to say that a blank page was signed and combined with a floppy disc or a CD and then printed off with the text of the letter when Microsoft released a program which contained the right font rather than someone else, who was still alive after 2002, used their new word processor’s default font on their new computer to type a letter and then signed it “Bob Hayes”. Occam’s razor says the simplest answer is usually right, is it in this case?

The letter in question - signed and typed

The letter in question - signed and typed

Jeni Barnett on MMR – is copyright law right for this case?

Dr Ben Goldacre has received a legal challenge for a recording he put on his site. The recording was a 44 minute extract from Jeni Barnett’s 1pm to 4pm radio phone in chat show broadcast in January 2009 (as far as I know, it’s not clear when the broadcast in question actually took place – I think the 27th (last Friday of January) but I have heard other dates) by LBC, a London based commercial radio station owned by Global Audio. The recording, now available on a variety of sites around the Internet, is not the best listening; it’s very biased and does not constitute much in the way of medical advice.

This being said though, the issue that the publishers have taken umbrage to is not the content of the broadcast but is the fact that such a substantial chunk has been placed on Goldacre’s site (44 minutes is roughly one quarter of the 3 hour broadcast) and Goldacre has received a lawyer’s letter telling him to remove it or face legal action. This step of having the critical site ordered to remove the content is very unusual and what makes this situation so incredibly controversial – this is being regarded as censorship by solicitor. By challenging badscience.net on copyright grounds they have shifted the angle from the disagreement and negative criticism that Dr Goldacre has heaped upon Ms Barnett and onto an economic loss that they have suffered. The site itself is designed as a forum to critique poor logic and science in the media and the extract was originally posted as the soundtrack to a tongue in cheek game of “vaccination canard bingo” in which listeners were to count the number of urban myths about vaccines that were mentioned and he offered that anyone who could think of one that wasn’t mentioned would be given a signed copy of his book. To me that is clear satire and parody, although according to Jeni Barnett’s personal blog that is sarcasm and criticises “the Bad Scientist” for “making another person feel small” (I personally suggest that Ms Barnett is not acting like a professional broadcaster in this situation but that is another issue).

However, the copyright suit is based on a very reasonable point that requires explanation:

Why is the extract so very long?

Ben Goldacre has explained his reasoning himself and I think that quoting his words is the best way to convey it:

http://www.badscience.net/2009/02/legal-chill-from-lbc-973-over-jeni-barnetts-mmr-scaremongering/#more-862

But thirdly, there is a question of the basic tools you need to illustrate a point. The clip I posted was, to my mind, hideous and unremitting: it went on for so long.

In fact it was so long, so unrelenting, and so misinformed that I really couldn’t express to you how hideous it was. If I tried, without the audio, you might think I was exaggerating. You might think that I was biased, that I was misrepresenting Jeni’s demeanour and views in this broadcast, that LBC and their parent company Global Audio are living up to the standards of basic responsibility which we might reasonably hold them to, as they shepherd Jeni’s views and explanations into our cars and kitchens. You might think that I was quoting Jeni out of context, cherrypicking only the ridiculous moments from an otherwise sensible, proportionate and responsible piece of public rhetoric.”

Dr Goldacre claims to have posted the long extract as it was the only way to convey the content which he took issue to without claims of bias or selective editing – in other words fair use of the extract for purposes of review. I think that’s a very carefully thought out reason to put the 44.2 megabyte file on his site and would be accepted without question in an academic debate in which you live and die by the rule “you cite your sources or people can’t trust you” .

MMR

The MMR issue is widely reported and I do not think that I need to repeat that here – I would like to point out that the few remaining advocates of the MMR-autism link run private autism treatment clinics and, with respect, have a massive commercial incentive to claim that anything at all causes autism. There is a clear potential for a conflict of interest in their testimony. Every other research project has failed to repeat their results. This does not help the millions of parents of young children who are determined to take the right course of action for their charges if they are barraged with negative media coverage of what appears to be, and always was, a false result by a now discredited scientist.

I personally feel that MMR is safe and this is not just because I have received it and I am still healthy because that’s not proof. It is possible for some individuals to smoke and use sun beds without contracting cancer even though nearly everyone would say there’s a definite link – some people turn out to be resistant or even just lucky.  It’s impossible currently to work out who will and who won’t be affected in advance just as it is with who will catch measles in an outbreak. Instead I feel the MMR vaccine is safe because I have read studies saying so which are much larger in scale, better equipped and more methodical than the one that tells me it’s not. To use a legal analogy I feel that the studies which have held MMR to be innocent are more authoritative and hold higher precedential value than those that dissent (not to mention that there are many more of them).

Jeni Barnett’s comments

Despite this there are still some seriously dubious statements made in the 44 minutes available on wikileaks including, and I feel this is the most horrifying single offence, reading out an unattributed email from an anonymous listener claiming that the MMR vaccine, as well as causing autism, contains cancer causing chemicals. This kind of comment should never be made on a public broadcast radio station by anyone whose name doesn’t start with “Professor” and has an incredible amount of valid and accepted research to back him up. Saying that children’s vaccines cause cancer is a sure fire way to terrify parents and this should have been as well received as Jonathan Ross and Russell Brand’s Radio 2 phonecall.

Apart from this she also shows undue bias towards callers who subscribe to alternative medicine (her first caller introduces herself as a young mother who looked into alternative medicine to keep her children safe but later admits that she is a homeopath and is therefore actually speaking as a businesswoman with the incentive against other forms of medicine that entails) and is dismissive of other opinions – I have included some of the transcript at the bottom of this post to show what I mean – and finally, when talking to a nurse, accuses her and the Government of scaring people in order to make money before apparently hanging up on the caller without allowing her a response.

The situation is already fairly murky due to a sketchy method of reporting in the UK press – for example, unsolicited quotes that were negative to MMR were sent to non-science section reporters in newspapers and, apparently deliberately, kept away from reporters who had the science background to look at the source critically. That is like sending skewed sports results to a business columnist so that they can report your angle and it reeks of unethical practice and quite a worrying trust shown by reporters.  Jeni Barnett’s comments will pour yet more oil on these troubled waters.

LBC’s reaction

The company who own the rights to the audio have an undeniable right to control (and profit from if they should wish) the distribution of their property and so they have sent a letter to Goldacre with a strongly worded request to remove the extract from his site. They ominously chose to “reserve [their] rights” in relation to him so it’s possible that, even though Goldacre has followed their instructions, there could still be a court appearance in his future. I think that is unlikely in all honesty but cannot be certain either way. While I’m prepared to call this a lawyer being careful to leave their client’s options open, the idea that he could be sued after complying with a letter just seems unfair – the copyright breach is closed now, surely? It wasn’t Goldacre who made the recording, he simply posted it on his site and he has since removed it. In more extreme cases, ones where there is a substantial loss incurred by the copyright holders which lasts after the party has complied with the letter, it makes sense to be able still go after them for the economic loss you have suffered. This is good in cases of libel, for example.

But this case does not fall under libel rules – there was no comment made by Goldacre which affects Jeni Barnett as a professional actress or radio presenter and she will not suffer an economic loss as a result of this blog post by Goldacre. She is, particularly, not a medical professional whose expert and professional reputation is hurt. He said she is misinformed; she accepted it in a blog post and called him a bad scientist in return. At this point I would advise Ms Barnett that a libel action, although within her rights, would appear petty and she would need to show that Goldacre has actually caused her some kind of loss (apart from saying she was wrong).

The extract in itself is from a single show and that should not cut into the radio station’s bottom line since individual shows (and especially not individual 44 minute sections) are not sold, only access to the back catalogue as a whole. For that reason I do not think there is much of a loss caused by this comment made by Goldacre.

Therefore that the letter still retains the right to procede with other action will probably not require that Dr Goldacre needs to start looking for representation – it is just a line in a threatening (as the client is paying for it to be) lawyer’s letter.

However Dr Goldacre is wise to remove the recording from his site simply because Global Audio is a half billion pound company and are simply much too big to stand up to when all you have is an opinion that someone is wrong. Goldacre should not stop thinking she is wrong but at the same time should not rely on that to convince a judge.

Copyright as a silencer?

But should he have to? Is this the right time to use, as Cory Doctrow put it, the “tank mine” that is copyright law if what they appear to really want is to hide the criticism of this particular broadcaster?  The difference in the two parties’ financial positions could only be more stark if Goldacre lived in a cardboard box, he’s an author. Copyright law was invisioned in a time when the only people capable of breaching a publisher’s copyright were equally massive publishing companies with their own mechancial press and the resources to send lawyers to defend their position.

Thanks to the computing revolution individuals today, with only the money they earn through their own jobs, are capable of disseminating copyrighted material on a scale of readership which may exceed that achieved by nefarious publishers in the past but without the resources of a large company to mount a legal defence. This imbalance in the position of debaters is potentially damaging to the quality of debates they feel they can safely produce. The quality of debate someone can have with the words “I am not an expert, this is what I have observed* is limited when book writing, letters after their name wearing members of the scientific community receive legal threats when they criticise. This is a terrible precendent to be setting and has horrible ramifications in any situation but particularly so in the case of public health (if the ratio of immunised to non immunised people in a society drops below 83-96% herd immunity breaks down and that society starts to be at risk from measles epidemics and that threatens us all – parts of London, in particular, are already far past this point and may only be a matter of time).

Conclusion

Jeni Barnett has said on her blog that she wants a debate on the topic – she also says that “acting is all about honesty, if you can fake that you can fake anything” but I digress – and she appears to have got one.  I would have preferred, of course, that the debate had already taken place and was on that fateful radio show.

I believe strongly that people are allowed to have opinions but should never treat them as better than empirically established, peer reviewed facts. This seems obvious to me at least but very few people are really willing to have their strongly held beliefs overruled because they can’t back up their hunch with evidence, especially on the spur of the moment, and that is something that is simply part of human nature but it doesn’t make it anymore credible to use anecdotes and gut feeling against 10 and 20 year long clinical trials and to behave as if they are on equal footings.

As for Ms Barnett, I think it is acceptable to say she is a non-medically qualified person with a strong preference for alternative medicine but she is all that as well as having a microphone, a radio show and a powerful position in the heart in of London and for that she should be careful to stay to the facts and to report both sides of any discussion, regardless of her own bias, as soon as she gets behind her seat in the recording booth and to avoid unduly covering one point of view which will scare a sizeable portion of her listeners.

Ofcom does expect her to, after all.


* Emphasis made by Jeni Barnett on air – I took this emphasis to mean that this was her backing for her statements which made her dimissing, muting or talking over other people’s evidence that much more galling:

John: Afternoon Jeni. I’m not a medical expert, but I listen to the radio and I listen to LBC – I listen to your competitors quite a lot. Every single medical expert that you’ve ever had on LBC, always said MMRs are a good thing and all the evidence against them have been refuted.

JB: …yeah.

John: So?

JB: Does that make it right??

John: Well, yeah! I pretty much think it does, actually! Yeah!

JB: How come?

John: Well, you sound like… when you say ‘My four kids, this ladies’ four kids’ – you sound like one of those people who say ‘My Aunty Flo lived to be a hundred and ten and she smoked a hundred cigarettes a day’! There’s always going to be someone, but in general…

JB: Uh, but wasn’t Aunty Flo ALLOWED to do that?

NB: I completely agree with Dr Goldacre’s decision to post the audio, would his suggestion that Ms Barnett was out of order have had nearly the same weight in text form as it did when the listener could hear her, before telling people that fresh air and star jumps will keep their children safe, ask the microphone “what’s so wrong with childhood illness?” but it cannot be categorically stated enough that this is my personal opinion (which is why it’s not in the body text) as opposed to my legal one and I am not a judge.

Student Law Review

I dropped by my law school this week on the way to the library and picked up a copy of the current student law magazines while I was there.

The Student Law Review, published by Routledge Cavendish is a publication bordering on the “terrifyingly polished” and I find it to be a very interesting read that I try to pick up whenever I can.

I’ve done a quick and rough digest of the contents of this edition, and it’s a very, very long post so I’ve added it after the break. I will be back later to fact check but right now I’m just impressed at myself for getting this typed up. These are in no way the whole articles, or indeed perfect outlines of the articles themselves, I was more interested in putting out what the publication covers instead of violating the copyright on the articles themselves:

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