16 May 2012


Posts in this blog sporadically highlight legal questions about parapsychology. 'From Beyond the Grave: The Legal Regulation of Mediumship' by Steve Greenfield, Guy Osborn Stephanie Roberts in (2012) 8(1) International Journal of Law in Context 97-114, comments that -
In recent years there has been an increased interest in mediumship. This has been part of a broader fascination with paranormal issues that has been fostered by new modes of dissemination and communication. This article focuses upon attempts made by the criminal law to regulate mediums, and, in particular, the disjunction between the ‘genuine medium’ and the ‘vulnerable consumer’. It charts historical approaches of the law and provides a critique of the current legal landscape, including the new regulatory framework under the Unfair Commercial Practice Regulations 2008, and the possibility of an action under the Fraud Act 2006. It concludes that the law has continually struggled to adequately deal with this phenomenon, and that the current regime is likely to prove similarly ineffective given the fundamental conceptual legal problem of proving what may be un-provable.
The authors conclude that -
The notion of what is covered by mediumship has expanded, and there is now a vast range of services on offer. As noted above, this ranges from a one-to-one consultation, through live shows, to a host of television programmes. These last groups, designed purely for entertainment, are the most regulated, primarily by OFCOM, yet it is the one-to-one readings where the consumer is most vulnerable and perhaps most problematic. This practice, of providing one-to-one readings, has been criticised for its lack of objective proof but, in addition, those who seek out such readings are enthused to believe. This is illustrated by the sceptic James Randi, who analysed the tape of a 'successful' reading provided to him by a well-known medium, Maureen Flynn. The client had professed himself happy with the outcome and accuracy of the medium's statements. After his highly critical analysis, Randi (1991, p. 58) noted: 'spectators are seldom able to recall what actually took place or was said to them, and even when correctly informed later will not be swayed in their firmly held convictions, no matter how hard the evidence'. Herein lies the problem: whatever the objective accuracy of the outcome, the consumer may believe it to be true. Interestingly, given this relational nexus, it is unlikely that, even if a right of direct redress for the consumer existed, such an action would be brought – the sitter has already bought in to the idea and would be unlikely to bring an action. 
Given this situation, it is unsurprising that legal regulation of the practice is so fraught with problems. Regulating the provision of services can be done in two distinct ways. In the first, services may only be provided by a trader whose qualifications, and status, is objectively verified. A good example of this would be the CORGI gas registration safety scheme. Second, and far more usual, protective legislation is directed at the quality of the services or products provided. Herein lies the problem with regulating mediums. To accept and derogate powers to a regulatory body is for the state to take a view that the practice exists, despite some psychological evidence to the contrary. Similarly, to address the problem through the quality of the service requires analysis of outcomes. Given the often common belief system enjoyed by reader and sitter, this is problematic. It is suggested that despite the welcome given by sceptics, and the fears of the spiritualist community, little is likely to happen and the impotence of the FMA will continue. Trading Standards Officers with limited resources will have to prioritise work, and seeking to prosecute 'the unknown' is unlikely to be prioritised, especially given the general problems with local government enforceability. If Trading Standards do have limited resources, they may be more inclined to persuade the police and Crown Prosecution Service to bring a prosecution under the Fraud Act rather than the regulations. If the police and CPS are reluctant to do this, given the difficulties of prosecution as discussed above, this may lead to an impasse if the police and CPS prefer Trading Standards to act under the regulations. Neither of these procedures appears to provide an easy solution to the problem of fraudulent mediums, but this situation may be made more difficult by both sides being unwilling to act under either scheme. 
It appears that, at least for now, there is little likelihood of any significant change, and the possibility of a major rise in prosecutions is remote. As we have charted above, the regulation of the area has been attempted via a number of different approaches, none of which has proved satisfactory. The Fraud Act is fraught with difficulties, given that the prosecution have to prove the fraud beyond all reasonable doubt. Even the consumer regulations, whilst potentially more useful for the vulnerable consumer given that the burden of proof is reversed, are problematic, as the likelihood of a consumer actually bringing an action is small, since they have already bought into the idea and believe or want to believe that what the medium is saying is true. What we have is an area that has been subject to much legal regulation, which has proved manifestly ineffective. It seems unlikely that adequate legislation can be framed to deal with what is unknown or unprovable.