WIKIPEDIA IN THE COURTS (SO FAR): MUSIC, BREWERIES, CANALS, DOG WHISTLE POLITICS AND GETTING TO THE HEART OF THE MATTER: SOME QUESTIONS TO BE ASKED

I have had to apologise in the past for taking small parts of a judicial judgment and scrutinising them closely in relation to matters of procedure or evidence. This apology is particularly apposite in relation to the judgment in Oldham Metropolitan Borough Council & Ors v Makin & Ors [2017] EWHC 2543 (Ch).  The very important and profound issues this judgment raises has been discussed  expertly on other blogs.  In the judgment the judge referred to Wikipedia and relied on it to make a decision. This is not a unique occurrence. The use of Wikipedia in the courtroom has led to a lot of discussion in the USA in particular.  This case led me to look at other examples of judges relying on Wikipedia.

THE JUDGE’S REFERENCE TO WIKIPEDIA

As part of the judge’s consideration as to the appropriate funeral ceremony to the convicted murderer Ian Brady whether the fifth movement of Berlioz’s Symphonie Fantastique should be played at the funeral ceremony.

    1. As to the playing of the fifth movement of the Symphony during the cremation, I need only quote the description of that movement from Wikipedia for it to be seen how inappropriate it would be:-
“Fifth movement: “Songe d’une nuit du sabbat” (Dream of the Night of the Sabbath): In both the program notes, Berlioz wrote:
[The musician] sees himself at a witches’ sabbath, in the midst of a hideous gathering of shades, sorcerers and monsters of every kind who have come together for his funeral. Strange sounds, groans, outbursts of laughter; distant shouts which seem to be answered by more shouts. The beloved melody appears once more, but has now lost its noble and shy character; it is now no more than a vulgar dance tune, trivial and grotesque: it is she who is coming to the sabbath … Roar of delight at her arrival … She joins the diabolical orgy … The funeral knell tolls, burlesque parody of the Dies irae, the dance of the witches …”.
  1. I have no difficulty in understanding how legitimate offence would be caused to the families of the deceased’s victims once it became known that this movement had been played at his cremation. I decline to permit it. It was not suggested by Mr Makin that the deceased had requested any other music to be played or any other ceremony to be performed, and in those circumstances, I propose to direct that there be no music and no ceremony.

STUDENTS IN A BREWERY: WHEN YOU BUILD YOUR ACCOMMODATION ON TOP OF NATURAL SPRINGS

Wikipedia was used a reference by Mr Justice Coulson in Leeds Beckett University v Travelers Insurance Company Ltd (Rev 1) [2017] EWHC 558 (TCC). The judge was considering a claim by the university against its insurers.  Student accommodation had been built on a former brewery and, subsequently collapsed because of the number of natural springs.

    1. The brewery operated for about 100 years until 1983. Following closure, the buildings stood empty until the development project undertaken by the University in the early 1990’s. I note that the Wikipedia entry for Kirkstall Brewery says this of the development:
“The renovation project was a challenging one; the springs and water courses that provided the water used in the brewing process had to be diverted without damaging the unique ecosystem that is a recognised Site of Special Scientific Interest” [“SSSI”].

THE MANCHESTER SHIP CANAL

In  General Motors UK Ltd v The Manchester Ship Canal Company Ltd [2016] EWHC 2960 (Ch) His Honour Judge Behrens had to encapsulate the history of the Manchester Ship Canal, observing in a foot note that  “This section is taken practically verbatim from the Wikipedia article on the Manchester Ship Canal and is consistent with much of the other material provided in the bundle.”

  1. The Manchester Ship Canal is a 36-mile-long inland waterway linking Manchester to the Irish Sea. Starting at the Mersey Estuary near Liverpool, it generally follows the original routes of the rivers Mersey and Irwell through Cheshire and Lancashire. Five sets of locks lift vessels about 60 feet up to Manchester, where the Canal’s terminus was built.
  2. The rivers Mersey and Irwell were first made navigable in the early 18th century. By the late 19th century the Mersey and Irwell Navigation had fallen into disrepair and was often unusable. In addition, Manchester’s business community viewed the charges imposed by Liverpool’s docks and the railway companies as excessive. A ship canal was therefore proposed as a way of giving ocean-going vessels direct access to Manchester. The region was suffering from the effects of the Long Depression and for the Canal’s proponents, who argued that the scheme would boost competition and create jobs, the idea of a ship canal made sound economic sense. They initiated a public campaign to enlist support for the scheme, which was first presented to Parliament as a bill in 1882. Faced with stiff opposition from Liverpool, the Canal’s supporters were unable to gain the necessary Act of Parliament to allow the scheme to go ahead until 1885.
  3. Construction began in 1887; it took six years and cost £15 million (equivalent to about £1.65 billion in 2011). When the Canal opened in January 1894 it was the largest river navigation canal in the world, and enabled the newly created Port of Manchester to become Britain’s third busiest port despite the city being about 40 miles inland. Changes to shipping methods and the growth of containerisation during the 1970s and ’80s meant that many ships were now too big to use the Canal and traffic declined, resulting in the closure of the terminal docks at Salford. Although able to accommodate a range of vessels from coastal ships to inter-continental cargo liners, the Canal is not large enough for most modern vessels. By 2011 traffic had decreased from its peak in 1958 of 18 million long tons (20 million short tons) of freight each year to about 7 million long tons (7.8 million short tons).

DIAGRAM OF THE HEART

In Thoratec Europe Ltd v AIS GmbH Aachen Innovative Solutions [2016] EWHC 2637 (Pat) Mr Justice Arnold was considering intellectual property issues in relation to devices to assist the operation of the human heart.

    1. The cardiac cycle. The cardiac cycle refers to the sequence of rhythmic contractions and relaxations of the heart by which it moves blood from one region of the heart to another, and from the heart to other destinations within the body, as outlined above. The cycle is illustrated in the following schematic diagram (from Wikipedia):

Picture 2

WIKIPEDIA USED IN CROSS-EXAMINATION

In Synthon B.V. v Teva Pharmaceutical Industries Ltd [2015] EWHC 1395 (Pat) pages from Wikipedia were used in cross-examination.  Mr Justice Birss observed:-

 

125. However after the Wu paper was put to him and a page from Wikipedia about HPLC, Prof Davis’ evidence became clearer. The Wu paper was an example of workers measuring bromotyrosine when they knew it was there. It contains two different sets of chromatography conditions to detect bromotyrosine depending on whether the sample in which the material is being measured (the analyte) is of one kind or another. This showed that even looking for the same thing in different analytes might require different conditions. I should record that Wu is plainly not common general knowledge.
  1. It was put to Prof Davis that the conditions shown as a typical example of HPLC conditions in Wikipedia are very similar to those in the patent. The Professor did not agree and I accept his evidence. First I am not prepared to place weight on a recent printout from Wikipedia on a contentious issue of this kind in any case. Second, the fact that both mention acetonitrile and water does not establish that the conditions in the patent would be chosen, without hindsight, by the skilled person. The conditions stated in the patent are sparse but they are not the same as the ones in Wikipedia. The example given in the latter is 5% acetonitrile in water with a linear gradient over time up to 95% acetonitrile whereas the former amounts to acetonitrile:water:acetic acid in a ratio 95:4:1 using an isocratic gradient (i.e. an unvarying ratio).

 

DOG WHISTLE POLITICS

In Erlam & Anor v Rahman & Anor [2015] EWHC 1215 (QB) Commissioner Richard Mawrey QC was considering the term “dog whistle politics”

    1. As will be seen, a feature of all these left/right disputes is the ubiquity of the phrase ‘dog-whistle politics’. The wise folk of the Oxford English Dictionary fight shy of defining this term but as good a definition as any may be found in Wikipedia:
Dog-whistle politics is political messaging employing coded language that appears to mean one thing to the general population but has an additional, different or more specific resonance for a targeted subgroup. The phrase is used only as a pejorative, because of the inherently deceptive nature of the practice and because the dog-whistle messages are frequently themselves distasteful, for example by empathising with racist or revolutionary attitudes. The analogy is to a dog whistle, whose high-frequency whistle is heard by dogs, but is inaudible to humans.
  1. The advantage of the cliché is that one may take a completely innocent, indeed anodyne, statement of a political opponent and claim that it contains a ‘coded’ message often, as Wikipedia remarks, of a racist nature. It is a cliché much employed by the media-political class but it must be remarked that, in real life, it is usually invoked to accuse political opponents of saying something which they had not said and had had no intention of saying. In short, the ‘code’ often exists only in the mind of the person crying ‘dog-whistle politics’ at his adversary.

IS THIS A PROBLEM?

In 2009 the Yale Journal of Law and Technology reported that

“Wikipedia has been cited in over four hundred American judicial opinions. Courts have taken judicial notice of Wikipedia content, based their reasoning on Wikipedia entries, and decided dispositive motions on the basis of Wikipedia content. The impermanent nature of Wikipedia entries and their questionable quality raises a number of unique concerns.”

The article, The Citation of Wikipedia in Judicial Opinions by Lee F Peoples, goes on to set out the key concerns and put forward Best Practices for Citing Wikipedia.

One issue is that the impermanent nature of Wikipedia means that parties can potentially alter the entries to suit their case.

In the cases cited above the references to Wikipedia were peripheral to the main issues in the case.  Wikipedia is now a first source of reference for large parts of the population.   The potential problems involved have not been fully ventilated or considered.

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