6

A Massive Abuse of Process

Monday August 6th – Wednesday August 15th

The last week of the GMC hearing leading up to Wednesday August 15th saw the virtual collapse of the badly presented GMC prosecution against Dr Andrew Wakefield, Professor Simon Murch and Professor Walker-Smith. On Wednesday 15th after long administrative discussions between counsel, which was followed up on Thursday August 23rd, the following appears to have been agreed: that the prosecution will continue the present leg of the hearings until 6th of September. There will then be a break for three weeks until September 26th when the hearing will recommence and continue until the prosecution has presented its case in full – estimated at some time in late October. The hearing would then shut down and the defence case will not be presented until the end of January 2008. No, that’s not a typo, January 2008.

The prosecution appear to be claiming that, as the first half of their prosecution over-ran, few of the expert witnesses were able to attend at their original pencilled-in dates. On the basis of this they have asked for the 3 week break between September 6th to 26th. To anyone who has been watching the case wend its tawdry way through the last month, this excuse will be easily recognised as the grown up legal equivalent of ‘the dog chewed my homework’, and it must be clear to almost everyone, including Brian Deer, that the prosecution has waded from the shallow end of the pool to the deep end, where it now realises that it is drowning.

At best the case has been mismanaged. At worst the prosecution has been involved in a considerable abuse of process. To my mind the prosecuting counsel, the GMC and Brian Deer should be given no quarter. However, I can see that the defence would not be happy gaining a stay of the prosecution on the grounds of delay, it would mean in effect that Dr Wakefield won on a technicality and didn’t actually clear his name.

The kind of delay which the GMC prosecution has subjected the three defendants to is clearly an ‘abuse of process’ and I discuss this legal concept at the end of this account of the ten days of the hearing August 6th – August 15th.

A Prosecution in Decline

Unfortunately I had to miss the 8th, 9th and 10th of the hearing. I have made a note in the text of the witnesses therefore missing from my account. Someone else did take notes which I had intended to write up, but when I came to read the notes they made little sense to me and confirmed my feeling that, unless you are there in the hearing, listening to the evidence with all its nuances, it is actually very difficult to understand what is happening.

This led me to consider the media and the way in which they have represented this case. On the whole Dr Wakefield has been badly served by the press and their coverage of the hearing has been pitiful. A crusading press has all but disappeared in Britain, and in the mud at the bottom of the gradually draining pond we are left with only the Brian Deers of the world who, instead of challenging powerful interests, not only speak for them but appear to campaign on their behalf.

Perhaps even more upsetting is the fact that in the name of public health, New Labour has been determinedly in the driving seat, defending the collective vaccine policy against the individuals claiming damaged from adverse reactions. That New Labour has been able to control and muzzle the media, lends a lie to the idea that British society is democratic. With such powerful media outlets, acting entirely on behalf of the government, it would not be too absurd to call the GMC hearing a ‘show trial’.

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I suppose I should have known as soon as I saw Dr Richard Horton on the list of prosecution witnesses, that he was a good guy who supported the defence case; the timing of Dr Horton’s appearance might also have confirmed this, after all, Miss Smith was just beginning to call her best witnesses for the defence.

It isn’t always easy to understand why we take a dislike to people, never having met them or spoken to them. If I didn’t actually dislike Horton, I suppose my feelings towards him were luke-warm. I had an idea that he had actually been persuaded by Brian Deer or at least was on good terms with him, or perhaps even frightened by him. This impression, and the sneaky suspicion that he was some kind of science nerd who verged on being a Quackbuster, persisted in my mind right up until I watched him giving evidence for the prosecution at the GMC. After his evidence, the only thing which I might have held against him, had I been inclined, was his very Englishness in appearing to want to please people.

Horton turned out to be tall and athletic looking. Wearing a casual but well-cut black suit, his whole demeanour exuded pleasantness and the kind of collegiate personability that the English are good at. He took the seat at the hearing recently vacated by Professor Zuckerman, and no one would have blamed him if he had repeated President Chavez’s words as he stood at the UN podium the day after Bush had addressed the gathering; putting his hand to his nose Chavez claimed ‘I can still smell burning’.

But Horton was, from the beginning, utterly cool. He exuded the kind of confident presence that only well educated Brits can. Of course it probably helped that Miss Smith was not in the slightest bit hostile to him; her questions flirting with him as if with a new lover. She slid through his evidence-in-chief as if she couldn’t have agreed more with everything he said in favour of the three defendants.

Miss Smith is, in some odd, camp way, turning into the heroine of the tableaux being unveiled at the GMC. Every witness she calls aids the defence; either they are so stricken with bile that they must make a bad impression on the Panel, or they are so much in favour of the defence that the Panel must go into camera scratching its collective head.

A glimmer of why she behaves in this manner was nicely revealed in Horton’s evidence which added to the very strong impression that Ms Smith has been briefed to believe wholeheartedly in the tall tales of Brian Deer. Consequently, before she had actually heard anyone attempt to present evidence, everything must have made a perverse sort of sense. Conversely, for those who fail to succumb to Deer logic, for those who are free from the rotting hand of pharmaceutical and government propaganda, Deer’s tales have always appeared threadbare. One can only conclude that Ms Smith now finds herself in something of a dilemma.

The point at which my ignorant dislike of Horton unravelled was when he described, how, on addressing Deer’s complaints against Wakefield, presented at the Lancet, he immediate said, ‘this has to be investigated’, and began to plan evidence gathering trips to the Royal Free to question Wakefield and his colleagues. According to Horton, Deer collapsed in the face of proper investigation and pleaded with him not to pursue this approach. Not long after this, Horton told the hearing, ‘I fell out with Mr Deer’.

According to Horton, his enquiry into Deer’s allegations left him sure that at least one of the most serious was completely fictitious. From that point onwards, in real life and in the hearing, Horton gave impeccable evidence for the defence. In fact he rose to a level of praise for Dr Wakefield the like of which I have only previously heard from parents.

When Horton moved to talking about the paper published in the Lancet, it became clear that he had the highest regard for the method which the ‘case series’ used and the way in which it was presented. If the prosecution was expecting him to say that the paper was full of poor science, they must have been surprised when he said the absolute opposite.

Horton said that the Lancet paper was an excellent example of a ‘case series’. That this was a standard and entirely reputable way of reporting on a possible new syndrome. He likened it to how the first cases of HIV/AIDS were reported in the early 80s and how the new variant CJD issue broke more recently. He said unequivocally that the science reported in the 1998 Lancet paper ‘still stands’ and that he 'wished, wished, wished' that the clock could be turned back and the paper be considered in the light it was first presented, without everything that followed.

Defence council spent a considerable time cross examining Horton about the declaration of ‘conflict of interest’ issue. Over the years this has become one of the most important issues associated with the Lancet paper. At the end of a long session, the worst that Horton could adduce was that Dr Wakefield was genuinely surprised that there was the need for him to reveal funding from the Legal Aid Board, which anyway hadn’t been used in this case-series, or at all at that point.

Horton was happy to say that Dr Wakefield had been honest throughout his dealings with the Lancet and that he had not declared any conflict of interest because he genuinely believed (and believes still) that there was no conflict to be declared. While Horton personally disagreed with Dr Wakefield’s interpretation of this, as did Professor Simon Murch and Professor Walker-Smith, he acknowledged clearly that it could be seen as a matter of opinion and not a reflection on Dr Wakefield’s honesty.