[Wakefield GMC Hearing August 6th – August 15] A Massive Abuse of Process by Martin Walker

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.

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’.

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.

From the beginning of the hearing, Sir David Hull’s name cropped up frequently; principally in relation to a letter which he sent to Professor Zuckerman, stating his concerns about Dr Wakefield’s work. Hull who was Chair of the JCVI between 1995 and 1999 and President of the British Paediatric Association between 1991 and 1994, was portrayed by the prosecution as the ‘wise man’ who had intervened.

Hull’s letter of concern, in turn, appeared to have concerned Zuckerman so much, that he immediately sent off a missive to the BMA, asking for their independent position on Dr Wakefield’s research, possible conflict of interest and invasive investigative procedures used for research purposes. The BMA replied with a well considered appraisal of the questions, saying nothing critical of the clinical methods which Dr Wakefield’s team had been employing. Nor did they appear concerned about the conflict of interest issue.

Despite his ‘concern’ in 1998, regarding issues important to the prosecution in 2007, Hull, like so many other witnesses before him, refused to be drawn into the case entirely as a creature of the prosecution.

Hull’s areas of critical interest in the case seemed to be in the same areas as Zuckerman’s, although he expressed his view with less vehemence. He was, he said, concerned that the record of MMR had been damaged. This he compared to the ‘inaccurate’ reports of damage resulting from use of the pertussis (whooping cough) vaccine in the 1970’s. In referring to this he reduced the real adverse reaction damage caused by petrussis to a chimorous ‘scare’.[1]

Hull was also worried about the involvement of the Legal Aid Board in the funding of research. He was troubled by the use of invasive procedures in the examination and diagnosis of children with autism, although he admitted that he himself had no experience of autistic children or the clinical and diagnostic work which was necessary; he thought that these matters should be left to clinicians.

It became clear half way through Hull’s evidence-in-chief that although he would have made a plausible prosecution witness he seemed disinclined to give Miss Smith what she wanted. His evidence was measured, discursive, sometimes humorous and clearly he felt far less determined than he might have been ten years ago when the engineered ‘scandal’ was at its height.

On August 9th the prosecution called Martin Else, Chief Executive of the Royal Free Hospital and a special trustee. The special trustees managed funds and endowments which came to the hospital, separate from the day to day running of the NHS Trust. It was to this group that the cheque from the Legal Aid Board was sent pending a decision being made about its use. The cheque had originally been forwarded to the Royal Free by Richard Barr, solicitor for the MMR claimants.

Else’s evidence was followed by that of Dr Mills, a GP, who volunteered himself to the GMC hearing in order to give evidence that referral of children to the Royal Free from outside the London area was not in the best interests of the children themselves. It did not become clear during this witnesses evidence, who had advised him to volunteer his evidence to the prosecution, although it is suspected that he is another witness who might have discussed his situation with Professor Salisbury.

I came back to the hearing just in time to see the prosecution reach new heights of absurdity on Monday August 13th , when they called Dr Lloyd Evans, a consultant in paediatric neuro disability, as a witness.

The witness did manage to remember his name and address, but little else about anything much, and almost nothing about his contact with Dr Wakefield at the Royal Free. Dr Evans happily chatted with Miss Smith about the generality of his work at the Royal Free and what he did in the London Borough of Camden. Had he been asked, no doubt he would have talked happily about his tastes in music and the sexual mores of his neighbours but asked specifically about any contact he had with Andrew Wakefield, he suffered acute amnesia.

Dr Lloyd Evans repeated the words ‘I can’t remember’, so many times, that half way through his evidence I got the feeling that I had strayed into a 1950s B Movie, entitled something like ‘The Man Who Forgot Who He Was’. Then it occurred to me that perhaps Miss Smith had called him to the wrong hearing and that he was actually some kind of exhibition witness in a University lecture she was giving on amnesia; thoughts of Miss Smith in a professorial gown, mortar board and pointer stick floated through my mind. On the other hand, observers with more vivid imaginations who had seen the Manchurian Candidate might have conjured up a scenario where Lloyd Evans had been hypnotised on the phone by one of the defence council, to respond with the words ‘I can’t remember’ whenever he heard the words ‘Dr Wakefield’.

Miss Smith spent her time between Dr Lloyd Evan’s repetitions, desperately thinking of how she might phrase a question which would gain a positive response. However she phrased her questions though, the witness remained memoryless. Miss Smith persisted asking him in detail, even with the help of contemporary records, how he had found the three children, nos. 8, 6 and 7, each of whom he had apparently been asked by Dr Wakefield to asses. ‘Do you remember the children’ Miss Smith asked earnestly, ‘No, not at all’, responded Dr Lloyd Evans. ‘Did you assess them?’ she persisted, ‘I can’t remember’ he responded.

Having steered him through the rocks on matters of fact relating to the defendants work, and having elucidated nothing from him by way of fact about the case before her, Miss Smith decided to have a chat with him about his work and other things of interest. In this, Dr Lloyd Evans, acquitted himself well. Did he know what ‘regressive autism’ was, asked Miss Smith. ‘Yes’, replied Lloyd Evans, who went on to describe regressive autism and despite putting his own interpretation on it’s diagnosis and it’s prognosis, made real the very syndrome which Dr Wakefield had reported; although of course adding nothing about its gastroenterological aspects.

Suddenly Dr Lloyd Evans was speaking for himself, as if freed from hypnosis. In cases of regressive autism you would need to carry out many tests and investigations. Definitely you would need lumber puncture to test for biochemical and viral elements in fluids. Miss Smith balked at this revelation, and it took her a good quarter of an hour to discipline Dr Lloyd Evans and to get him, as they say, ‘singing from the same hymn sheet’. At the end of the day, however, all he would say in recompense for this further gift to the defence was, that in cases of more straightforward autism you didn’t need all those investigations.

Dr Lloyd Evan’s evidenceless and memory free evidence, left little fertile ground for defence cross examination and when the defence rested at 11.45, Miss Smith had to admit that she did not have another witness in waiting. At her most imperious, she joked that, as it was impossible to tell how long the defence would take in cross examination, she had been unable to bring her next witness. It is difficult to imagine what kind of cross-examination of the amnesiac witness Miss Smith thought was possible. As Dr Lloyd Evans was a specialist in neuro-disability, perhaps a question such as; ‘Could you tell me why you can’t remember anything?’ might have been appropriate.

In Britain and America the law is radically changing. The older pattern of set and dependable rules is being quietly eroded by a prosecution based legal system that is increasingly said to face greater and greater threats from law breakers, mainly ‘terrorists’, embedded but unseen in the community.

The area of law which is changing most is that of the ‘process’ by which law is enacted. The body of law related to process has grown up over hundreds of years, usually by virtue of common law. Until fairly recently, most of this law was quite specific. The contemporary anti-democratic changes have been so many that it is impossible to address them in this text but they include things like the diminishing of pre-emptory challenges to jurors and the right of judges to give non specific sentences, left to be determined by the prison authorities.

A simple idea of changing process can be seen in relation to the police and suspects. Prior to the 1930’s, police (representatives of the State) were not allowed to talk to suspects they had arrested before they were brought before an ‘independent’ magistrate or judge. Today the police organise the whole case against the suspect talking to them and interrogating them for long periods before they appear in court to be belatedly ‘examined’ by the magistrate.

In America, it is now common practice for suspects to be ‘detained’ i.e. held in custody without being arrested or charged with a specific offence. While politicians would like us to believe that this Guantanamo law is only reserved for serious terrorist suspects, this is far from the truth. The main body of law relating today to ‘abuse of process’, is meant to defend the ‘rights’ of the accused from arbitrary powers and oppression by his or her accusers.

A major part of the ‘abuse of process’ relates to temporal matters; how long a person is held without charge, how long a defendant must wait for the trial while being held in custody and how long trials themselves take. In turn these temporal or ‘delaying’ matters can be judged as more or less serious when publicity about cases, which might affect defendants, is also taken into account. Although ‘abuse of process’ mainly relates to criminal cases and courts, I have no doubt that it could be brought to bear on a professional regulatory process such as the GMC fitness to practice panel hearing.

Looking at Dr Wakefield as a defendant, rather than a research doctor, I would draw attention to a number of matters.

The GMC has taken over the complaint made against Dr Wakefield by a single lay complainant - Brian Deer. It is one of the most basic tenets of the British, and other juridical systems, that the accused should be able to face his or her accuser and question them about their motives, vested interests and of course whether they have worked with, been instructed by or aided in making the complaint by any other party. It is essential that the defendant has the right to divine the motive of the complainant and so make this motive known to the body which will decide on his or her guilt or innocence.

In not citing Brian Deer as the sole complainant and not bringing him forward as their principle prosecution witness, the GMC has deprived the defence of the opportunity to cross examine him on a large number of matters which reflect upon his motive for bringing the complaint.

Another matter which runs parallel to this is the fact that our judicial system makes clear the separation between the complainant, the body which is prosecuting and the ‘jury’ that body which determines guilt or innocence, whilst the process as a whole is meant to be separate from government and any political parties.

In this hearing, there is a continuous vein of sympathy between all the bodies involved in the process of the prosecution. Brian Deer in fact wrote up almost the whole of the prosecution in the Sunday Times and then, at the behest of the then Minister of Health who was quoted in that article, he became the chief and sole complainant to the GMC, and the GMC is now shielding him from being questioned by those he has complained against. We do not know whether he worked with any other organisation or received any funding from any interested organisations in formulating this complaint to the GMC. We do know that the GMC took the complaint from him and proceeded with it without calling him as a witness. We also know that this complaint is being heard by a Panel chosen by the GMC. In other words, the complaint, the prosecution and any judgement that is made, are all being pursued by bodies which appear to have a common identity of interest.

It is another basic tenet of British and other Europe juridical systems that any accused person should be brought to trial as quickly as possible, while obviously taking into account the organisation and administration of the prosecution case.

From the time of Brian Deer’s Sunday Times article in February 2004 and the instruction quoted in that article by the Minister of Health, that a complaint should be made to the GMC, almost three and a half years passed before the charges were ready to be put to the defendant in the present hearing, which began in July 2007.

During the time the accused doctors waited to answer the charges, a massive quantity of information appeared in newspapers, on Brian Deer’s website and in other media, most of which was insistent that Dr Wakefield, in particular, was guilty.

Having begun the hearing in July, the prosecution now intends to suspend the hearing until February 2008. It could be argued that having presented the prosecution case, this six month period is likely to consolidate the case in the minds of the Panel. Because there is no sub judicae rules which affect the publication of general and specific information about the charges brought against the doctors, it could be argued that the medical establishment, the government and the pharmaceutical companies, have now six months during which time they might publicly build on the prosecution case.

A clear example of this biased influence being voiced beyond the hearing, could be seen on Monday 20th August, when Channel 4 aired the second episode of Richard Dawkins programme, The Enemies of Reason. In this episode which should have been titled Friends of Ignorance, Dawkin’s pointed to the MMR controversy, in which he claimed an inoculation against disease has been suggested as a cause of autism, ‘without the slightest shred of proof’.

While it might just be possible to depend upon the panel not to be influenced by this free flow of information, it could, obviously have a considerable effect on the climate in which the hearings resume in January/February of 2008.

ABUSE OF PROCESS

In this box, I have brought together a number of simple unreferenced statements about ‘abuse of process’. I am not presenting this as legal research but as a simple aid to understanding how far away from proper legal and juridical conventions the GMC has moved.

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Abuse of process is a wrong committed during the course of litigation. It is a perversion of lawfully issued process and is different from malicious prosecution, which is a lawsuit started without any reasonable cause

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Abuse of process has been defined as ‘something so unfair and wrong that the court should not allow a prosecutor to proceed with what is in all other respect a regular proceeding’.

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The elements of a valid cause of action for abuse of process in most common law jurisdictions are as follows: it is the malicious and deliberate misuse or perversion of regularly issued court process (civil or criminal) not justified by the underlying legal action. "Process" in this context is used in the same sense as in "service of process," where "process" refers to an official summons or other notice issued from a court. The person who abuses process is interested only in accomplishing some improper purpose that is collateral to the proper object of the process and that offends justice, such as an unjustified arrest or an unfounded criminal prosecution.

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Where there has been a serious abuse or misuse of power by the investigators, the court may decide that there has been an abuse of process. This is to protect the integrity of the criminal justice system. The judge/magistrates must decide whether the abuse of power is so serious that it amounts to an affront to public conscience.

To establish abuse of process based on delay, the defendant will need to prove that, because of the delay, s/he will suffer such serious prejudice that a fair trial cannot be held.

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It may be an abuse of process if either: the prosecution have manipulated or misused the process of the court so as to deprive the defendant of a protection provided by law or to take unfair advantage of a technicality; or the defendant has been, or will be, prejudiced in the preparation or conduct of his defence by delay on the part of the prosecution.

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The European Court of Human Rights (ECHR) gives the defendant the right to be tried ‘within a reasonable time’. This right flows from the time that a person is formally charged or served with a summons. In HSE prosecutions, this will usually be the time when the summons is served. When a court considers whether there has been a breach of the right to a trial within a reasonable time, they will consider:

the length of the delay; the reason for the delay; whether the right was asserted (i.e. whether there were complaints about the delay);

whether there has been any prejudice to the defendant.

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The House of Lords has confirmed that the court has a general and inherent power to prevent abuse of process. This power includes a power to safeguard an accused person from oppression or prejudice.

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Both the Crown Courts and magistrates' courts have discretion to protect the process of the court from abuse. This includes protecting the accused person from oppression or prejudice.

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There are broadly 2 sets of circumstances in which a court has discretion to stay proceedings as an abuse of process.

The first set of circumstances are where it would be impossible to hold a fair trial. Where it would amount to a misuse of process to start or continue a prosecution because it offends the court's sense of justice and propriety to be asked to try a defendant in the circumstances of the particular case

Examples of the first set of circumstances will include non- disclosure, delay, inability to examine evidence, inability to call evidence, inability to question prosecution witnesses and adverse media publicity.

Examples of the second set of circumstances will include dereliction of duty by the prosecutor, improper substitution of a charge, disregard of extradition procedures, improper motive, oppressive investigative techniques, avoidance/manipulation of statutory time limits, prosecutorial misconduct and proceedings commenced or continued in breach of a promise not to prosecute.

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Article 6 (1) of the European Convention on Human Rights confers on any defendant the right to trial within a reasonable time. The House of Lords concluded in the 2001 reference that time ran for the purpose of this right from the earliest time when the defendant was officially alerted to the likelihood of criminal proceedings being taken against him, which would normally be when he was charged or served with a summons.

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The principles directly applicable to cases of delay pre charge/official notification are governed by the common law. In practical terms they mirror the tests set out by the House of Lords in the 2001 reference and can be summarised as follows;

In cases of delay there should be no stay unless the defendant shows on the balance of probability that, owing to the delay, he will suffer prejudice to the extent that no fair trial can be held.

[1] Anyone wanting to read about the reality of the damage caused by Pertussis vaccine should read Harrison Coulter’s brilliant book, written with Barbara Loe Fisher, A Shot in the Dark, and Helen’s Story by Rosemary Fox, the woman who, on the basis of her own vaccine damaged daughter, campaigned to bring the Vaccine Damage Payment Unit into being.