(Wakefield) A Massive Abuse of Process August 6th - August 15th by J

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An Ongoing Account of the General Medical Council Prosecution for

Professional Misconduct Against Dr Wakefield, Professor Simon Murch

and Professor

By J

A Massive Abuse of Process

August 6th – 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

Wakefield, Professor Simon Murch and Professor -. On

Wednesday 15th after long administrative discussions between counsel, which

was followedup 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

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 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 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 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 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 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 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 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 has been

briefed to believe wholeheartedly in the tall tales of 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 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 -, he acknowledged clearly that it could be seen as a

matter of opinion and not a reflection on Dr Wakefield’s honesty.

The Bogy Man

From the beginning of the hearing, Sir 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’.

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 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.

Missed witnesses

On August 9th the prosecution called 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 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.

The Amnesiac Witness

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

, 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 happily chatted with Miss 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 Wakefield, he suffered

acute amnesia.

Dr Lloyd 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 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 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

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 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 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 asked earnestly, ‘No, not at all’,

responded Dr Lloyd . ‘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 decided to have a chat with him about

his work and other things of interest. In this, Dr Lloyd , acquitted

himself well. Did he know what ‘regressive autism’ was, asked Miss .

‘Yes’, replied Lloyd , 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 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 balked at this

revelation, and it took her a good quarter of an hour to discipline Dr

Lloyd 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 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 thought was possible.

As Dr Lloyd 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.

Guantanamo Law

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.

First Abuse of Process

The GMC has taken over the complaint made against Dr Wakefield by a single

lay complainant - 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 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. 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.

Second Abuse of Process

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 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 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 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.

* * *

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

* * *

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’.

* * *

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.

* * *

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.

* * *

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.

* * *

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.

* * *

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.

* * *

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.

* * *

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.

* * *

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.

* * *

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.

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Anyone wanting to read about the reality of the damage caused by Pertussis

vaccine should read on 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.

Through the late Eighties into the early Nineties, J. worked

as an investigator for lawyers in criminal and civil cases and with many

defendants in criminal and civil trials - with and without lawyers. In the

late 1980s he co-founded Hackney Community Defence Association (HCDA), an

anti-racist group which worked on the defence of people assaulted, fitted

up and wrongfully arrested by the police in north east London. In 1990, he

began investigating and writing about the ‘health fraud’ movement and the

vested interests of science and medicine. His fifth book in 1993 - Dirty

Medicine: Science, big business and the assault on natural healthcare, was

described by Bird, author of 'The Secret Life of Plants', as " a

masterpiece of investigative journalism and attentive scholarship,

elegantly written " . Since then he has published further titles including

‘The Brave New World of Zero Risk: Covert strategies in British science

policy’ and ‘HRT: Licensed to kill and maim’. For the past five years he

has also been one of the legal advisors on the BBC 1 drama series ‘Judge

Deed’.

More on J. at www.slingshotpublications.com

--------------------------------------------------------

Sheri Nakken, R.N., MA, Hahnemannian Homeopath

Vaccination Information & Choice Network, Nevada City CA & Wales UK

Vaccines - http://www.wellwithin1.com/vaccine.htm