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Discussion > 'Settled science' in the Courts?

At "http://www.nature.com/news/stop-needless-dispute-of-science-in-the-courts-1.19466" "Stop needless dispute of science in the courts" says David Neuberger in the current issue of Nature. Lord Neuberger is currently chairman of the UK Supreme Court. The idea is to have a set of briefs on scientific matters which would set out what is written in stone, and hence would not need to be established in evidence. This would save time and costs, and works well in science-heavy inter-company disputes, eg about patents.

Well, yes. It works where commercial parties agree between themselves what they accept and what they want to argue about. But what about other disputes - particularly on hot topics, like GM, vaccination, fluoridation and - er - 'climate change'? The more paranoid among us may see this as a preliminary to establishing 'settled science' on global warming which the Courts could use to control the awkward squad. 'Science briefs' accepted by the Courts would have much more authority than the ambiguous consensus of (an alleged) 97% of 'climate scientists. A continuation of the Carnwath/Sands agenda? (see https://www.supremecourt.uk/news/climate-change-and-the-rule-of-law.html ).

Mar 5, 2016 at 12:26 PM | Unregistered Commenterosseo

Lord Neuberger believes that untested evidence can be relied on to convict without a trial, because he finds it convincing, and his mates tell him he is right.

This is a novel approach to Justice. I think he is unfit to be a Judge, could he be sacked please on the basis of my opinion, without any further review of evidence? The public would welcome it.

Mar 5, 2016 at 1:22 PM | Unregistered Commentergolf charlie

He appears to be arguing from the stand point of saving court time and resources. If certain specious and specific arguments regularly crop up then I would have thought that competent experienced lawyers and judges would quickly recognise them as such, and that there would be a body of case law to reject such arguments. (Patents are, by definition, novel, so I don't see how this approach could even work in principle in that area if litigants can't agree some basics in advance.)

Arguing for certain scientific concepts to be beyond dispute, as defined by a bunch of somehow-selected 'experts' (Roy Meadow, anyone?), seems to me to be not only a denial of the principle of science, but also an abrogation of what open legal trials are about when there is genuine dispute.

Maybe I'm missing something, or he is perhaps really just unable to keep up with the pace of change of technology, not science?

Mar 5, 2016 at 2:06 PM | Unregistered Commentermichael hart

I have long thought that this idea would work well in political debates because politicians make statements of fact that can be proven right or wrong. However science is in such a terrible state that you can not rely on expert evidence you are given.

Mar 5, 2016 at 2:20 PM | Registered CommenterDung

michael hart, is he relying on Legal Precedent? If so, what? If he is trying to rewrite Law, I don't think he is going about it correctly with an article in 'Nature'

If he is arguing from the point of saving court time and costs, that would set a Legal Precedent. It would make most in the legal profession redundant, but some could retrain as executioners, as that would satisfy the Malthusian tendencies of the climate scientists.

At least if a court case case involving climate science reaches the UK Supreme Court, the public can be confident that the outcome is already settled. Climate Science has done a FIFA on UK Law.

Mar 5, 2016 at 11:57 PM | Unregistered Commentergolf charlie

If you bring a case, relying on a fact, you have to prove the fact - as more likely than not ("the balance of probability"), in civil cases. If it's a scientific fact, evidence of some kind is still required. Precedent applies to law, not facts. So if a fact is disputed, a judge's decision will depend on the evidence put before him or her, and there is no guarantee that this will be the same from case to case. If you are done for speeding, you may be able to get an expert who will say that the degree of accuracy of the radar gun is not such as to guarantee that you were actually exceeding the limit (as this is criminal, speeding has to be proved 'beyond reasonable doubt'). If the judge believes your expert, you will get off. But in future cases, the prosecutor may call a rival expert who may convince the judge that the first expert is wrong.
What judges are entitled to assume without evidence ("take judicial notice of") is very limited. "The courts will take judicial notice that rain falls from time to time". Otherwise, they can only accept what the parties agree on. That is why judges ask silly questions, like "Who are the Beatles?". Then one counsel will tell them, and this will be accepted, unless the other party disagrees (and if you disagree unreasonably, it won't count in your favour).
Lord Neuberger can't change the law by fiat. It's just an idea! It's not clear how it would be put into practice. Maybe he's floating it in Nature because he thinks it will appeal to scientists - or is looking for volunteers to write 'science briefs'. It's not clear to me how they'd become 'authoritative'. I think it would require legislation - so probably won't happen quickly. But something similar seems to have happened in USA (look at the Nature comments).

Mar 7, 2016 at 9:11 AM | Unregistered Commenterosseo

osseo, why has Lord Neuberger done it in Nature? Presumably so the Guardian/BBC and other climate science advocates can then quote "Lord Neuberger, writing in Nature, has said ............"

It is the way climate science has subverted science and politics, so why not Law aswell? Lawyers know that there is more money to be earned out of bad law than good law, so few will point out the deliberate mistakes.

Climate science wants to find everyone they choose, guilty. They would do better to find some evidence first, but that hasn't stopped them for 30 years.

Mar 7, 2016 at 10:14 PM | Unregistered Commentergolf charlie

GC, I don't know why he chose 'Nature'. Maybe he has contacts with the Royal Society, who have been encouraging him?

It may have nothing to do with 'global warming'. However, I see from the comments on the 'Nature' website that something similar has been tried in USA. There is a link to a US Government site, that (according to the comment) has some legal authority. I wasn't clear which documents on the site had this privilege, but certainly some of it was about global warming, and some of it was highly tendentious.

In UK practice, an 'expert' has a duty to the Court, and is obliged to give a fair view and not to conceal anything that might damage the side that's paying him. I suppose that the same would apply, in principle, to a 'science brief'. It will be interesting to see if the idea progresses, and if so, how.

Mar 9, 2016 at 10:44 PM | Unregistered Commenterosseo

osseo, I think 'Nature' has a reputation for supporting the Green Blob, and have found it financially rewarding. The article can now be referenced, as though it was authoritative, despite the complete lack of scientific fact, or peer review. Job done. Simple. Cost effective too.

Has anyone giving 'Expert' advice in a UK Court, ever been held accountable for breaching any of the duties/obligations that you refer to, especially if their lack of honesty became clear before the case was concluded in Court?

It is an occasional feature of (US?) courtroom dramas, that a Judge orders someone in the Court to be arrested and charged. Does this have any Legal Precedence in UK Law?

Mar 10, 2016 at 1:19 PM | Unregistered Commentergolf charlie

A great way to save a *lot* of court time and money and legal expenses is to simply convict people based on what the progressives demand and have a consensus on, and not worry about pesky things like evidence, discovery, testimony or cross-examination.
And we can dispense, as a real savings, with public trials.
Summary judgments are very cost efficient.
And are widely supported by our progressive betters, so what is the hold up?

Mar 10, 2016 at 4:24 PM | Unregistered Commenterhunter

hunter, you are absolutely correct. The progressives in the Green Blob, must wonder why they used to be so critical of traditional lynch mobs, whereby guilt and sentencing were all predetermined by angry mobs, based on absolutely no evidence whatsoever. Similarities with climate scientists and their baying mobs of Hansens, are hard to fault.

Mar 10, 2016 at 5:46 PM | Unregistered Commentergolf charlie

As to courtroom justice, I can offer an example from the Middle Ages, some time after the Norman conquest, when all the cases were reported in Law French. From RE Megarry's 'Miscellany at Law" (from memory, I can't find the book immediately): it refers to a plaintiff who got cross and '.. jeter un brickbat vers le judge, que narrowly mist, and was immediatament hanged". But these days normally the worst that happens to experts is that the judge criticises them in his judgment for not being frank, and they don't get used again.

Mar 10, 2016 at 10:03 PM | Unregistered Commenterosseo

Osseo, une smackez de wrists, n'est pas?

So until an expert gets a smack from a judge, they are at liberty to carry on charging £100s per hour for telling known falsehoods?

This attitude is shown in the crash for cash fraud trials. The defendants assumed that if caught out, it was just part of a game.

Mar 10, 2016 at 10:49 PM | Unregistered Commentergolf charlie

Just heard on the radio that an expert on "Shaken Baby Syndrome" has had her wrists slapped. Whether any court rulings, jail sentences etc now need to be reviewed........

Mar 11, 2016 at 3:25 PM | Unregistered Commentergolf charlie

osseo /golf charlie
It might be more serious than that.

The hearing has been adjourned until next Monday, when the panel will consider whether Dr Squier's fitness to practise is impaired because of her misconduct.

http://www.bbc.com/news/uk-england-oxfordshire-35787095

Mar 11, 2016 at 10:18 PM | Unregistered CommenterSandyS

Thanks! I think this case is dead on point. Dr Squiers is accused of holding - and testifiying in support of - an opinion contrary to the majority medical opinion. That opinion is that three symptoms taken together - brain swelling, brain bleeding and retinal bleeding - are only found when there has been child abuse (the baby has been battered). Now the majority opinion is opinion only - you can't do controlled experiments comparing battered babies with unbattered babies who have had accidents. So in challenging what is only a majority opinion the doctor has put herself at risk - on behalf of parents who she presumably thinks may have been unjustly accused.

That's not to say that she has behaved properly. As an expert, she ought to have at least mentioned the existence of contrary opinion. But it does indicate the trouble you can get into by espousing minority views. So it makes you think...

Mar 12, 2016 at 12:12 PM | Unregistered Commenterosseo

SandyS & Osseo

Yes, all agreed. I can only imagine how emotionally charged a case becomes, once a child is dead, and Shaken Baby Syndrome is suspected and diagnosed. Some people became 'experts' very quickly. Perhaps diagnosis does rely just on ticking 3 boxes on a Post Mortem form, I don't know.

In many professional fields, once the misdiagnosis is made, it takes a bit of bravery to review the evidence, and propose an alternative cause.

Mar 12, 2016 at 1:31 PM | Unregistered Commentergolf charlie