What Courts Get Wrong:
An Analysis by People With No Legal Training

Foreword

I have been asked, on several occasions, whether I am qualified to comment on court judgments. I am not. I hold a doctorate in drainage easements. I have read several legal thrillers. I have also read, in full, the judgments I discuss in this analysis, which is more than I can say for some of the judges who wrote them, who I believe may have been distracted.

I offer this analysis not as a lawyer but as a person who is right. I have found, in my experience, that being right is more important than being qualified. Courts have, to date, disagreed with this view. I note their disagreement and I maintain my position.

— Duncan Chell, Senior Fellow, Hate Matters

Summary of findings

Courts have, on multiple occasions, reached conclusions inconsistent with the position of Hate Matters. This analysis examines the reasons for this pattern. Our conclusions are as follows:

1. Courts have been influenced by expert evidence from people with qualifications in the relevant fields. We consider this a methodological weakness.
2. Courts have applied legal principles in a manner that does not reflect the common-sense view of ordinary people. We define "ordinary people" as people who agree with us.
3. Courts have, in several cases, noted that Hate Matters' submissions were "not supported by evidence". We address this criticism below.
4. Courts have not yet ruled in our favour on any matter in which we have been involved. We note this as a run of bad luck and consider it likely to change.

On the question of evidence

Courts have repeatedly expressed a preference for what they call "evidence". By this they mean peer-reviewed research, expert testimony from credentialled specialists, and documented empirical data. We note this preference. We do not share it.

Our analysis is grounded in a different evidentiary tradition, which we describe as common-sense observation. Our sources for this analysis include:

• A strong feeling held by the author since approximately 2019
• The views of several people in the author's social circle, canvassed informally
• A Radio 4 programme, heard partially, in which someone made a point the author considered relevant
• The general tenor of comment sections on several websites, reviewed selectively
• The fact that everyone knows¹

We note that courts have not found these sources persuasive. We note that this is the courts' loss.

Specific errors identified

Error 1: Reliance on expert testimony. Courts have given weight to the evidence of biologists, clinicians, legal academics, and social scientists. These individuals have formal training in their fields. We note this training has led them, consistently, to conclusions that differ from ours. We attribute this to a narrowing effect produced by specialisation. People who know a lot about one thing, in our experience, tend to know less about what is obvious.²

Error 2: Application of the wrong legal test. In several cases, courts have applied legal tests that do not produce the outcome we would prefer. We consider this an error. We acknowledge that we are not able to specify which legal test should have been applied, as we do not know what the other legal tests are. We are confident one of them would have worked.³

Error 3: Failing to consider common sense. Common sense is not a legal test. Courts have confirmed this, repeatedly, when we have submitted it as one. We consider this a gap in the law and we have written to several MPs about it. One has responded.

Recommendations

We recommend that courts, in future cases engaging with matters relevant to Hate Matters' work:

1. Give greater weight to submissions from non-experts, particularly those who feel strongly
2. Apply a common-sense test in addition to or in place of applicable legal principles
3. Note that the majority of ordinary people agree with us, even though those people have not given evidence and cannot be named
4. Reconsider their previous decisions, which were wrong, and issue revised judgments reflecting the correct outcome

We acknowledge that courts are not obliged to follow these recommendations. We note this with resigned clarity. We will be submitting this analysis to the next proceeding in which we are involved. We remain, on balance, hopeful.