4

The Hearing Trundles On

July 17 to 20 and July 23 to 26

Legal cases, whether they be seen from the perspective of the prosecuting or defending counsel, are dependant upon narrative; the telling of a story. Unfortunately for Miss Smith, the GMC have provided her with an already threadbare narrative which because it is all she has, she proceeds to bang on about as if it were the dead parrot in the famous Monty Python sketch. Watching Miss Smith try to construct a believable story out of her information is heartbreaking for anyone who enjoys the legal process.

But what is even the best lawyer to do without a story? You could hum and haw your way through the whole production - making it up on the hoof so to speak - or you could take the strategy for which Miss Smith has opted.

This strategy involves hurling chunks of disconnected information at the defence in the hope that at the end of the hearing some damage will have resulted. Because her case contains few specifics and very little fact, each plank of Miss Smith’s prosecution is shaped in global terms.

In hearings of this kind, the nature of the defence is inevitably structured by the prosecution. So while it is clearly Miss Smith’s intention to filibuster her way through the case, the defence has to respond with a careful, exact and specifically detailed revision of the local facts. Because the prosecution is based on partial information and a threadbare story, the defence has to bring to light the facts which make the story whole.

They have done this with great dexterity in the first two weeks of the hearing. Defence counsel’s cross examination of the prosecution witnesses brought so far has been exemplary. They proceed quietly and with an erudite commitment to prizing out the truth. What is really exciting to watch is the way that defence counsel shape and place the bricks of their case with such smoothness that even the most professional of witnesses are unlikely to see the denouement.

Most of my experience of law is with criminal cases, where one is rarely dealing with complex arguments. The defendant knows not to say that he carried out the crime while the police have spent hours in the canteen checking their notes to ensure consensus about exactly what time the defendant went for a pee the day before the robbery. In the GMC case, however, the arguments are subtle and the whole craft of cross examination might be observed at its most intricate.

The Prosecution Case

On Tuesday 17 July, after a morning to discuss legal issues, particularly that of the confidential nature of children’s medical records, Miss Smith spent the afternoon giving a broad description of the prosecution case. She began with the words:

‘It boils down to simple allegations against a research project to do with a new syndrome’.

If other members of the public and the press were thinking that this broad description under a number of heads was the opening of the prosecution case, to be followed by witnesses, they were to be sadly disappointed.

On that Tuesday afternoon and for all day on Wednesday, Miss Smith presented almost every detail of the prosecution case. This presentation inevitably made one wonder why the GMC were bothering to call witnesses to the hearing, as Miss Smith appeared to have given much of the evidence herself.

At one point on Wednesday afternoon, during an analysis of the route by which the children were introduced to what the prosecution call ‘the research’, a problem associated with this style of presentation obviously occurred to the leading defence council. He stood, to ask why Miss Smith, while appearing to introduce the whole case in detail, had missed out large chunks of the narrative that did not support their case.

The idea of the defence asking the prosecution to include defence material in their opening remarks left me momentarily bewildered. And in fact Miss Smith slid easily from beneath the guillotine, explaining that it was not up to her to introduce facts which helped the defence case. The defence, she said, would have ample opportunity to bring these matters to the attention of the panel, during cross examination or during the presentation of the defence case.

When, defence council must have been thinking, would it be possible to correct this view that children had arrived at the ‘research’ in an unorthodox and unethical manner. If each child’s circumstances was not to be specifically presented as evidence, how was the defence to give a detailed map of each child’s route to the research?

In fact, although each child’s route to the Lancet case series is vital to the prosecution case, the children and parents have been left out of the hearing, obviously because they are all sympathetic to the defendants and furious about their prosecution. It is rather as if in a case of serious assault at the Old Bailey, the prosecution fail to bring the victim to give evidence because he insists that he was never assaulted.

When viewed from the perspective of the parents and children, the GMC hearing brings up other serious questions besides such things as research regulation and the power of pharmaceutical lobby groups. The hearing throws into our vision, the whole question of the individual’s right to choose medical interventions and the doctor and research workers’ right of freedom to prescribe and research in areas where policy is guided by corporations or governments.