I thought it might be insightful at the juncture to re-publish an extract from the chapter I wrote the book ‘Silenced Witnesses – The Parent’s Story’ last year, which also quotes from an article ‘The Cruelty of JABS’ which briefly appeared on Brian Deer’s website. It is interesting to watch how Deer deals with these issues: the barrage of invective against parents, notably Jackie Fletcher of JABS and myself; the eccentric terms in which he defends the Davis brothers, one of whom doubled as boss of the Lancet and non-executive director MMR defendants GSK and the other of whom presided over the secret hearing to remove funding from the MMR case (“The ruling elite remains surprisingly small”); and the farcical claim that the pharmaceutical companies would have preferred the case to have come to trial (as if, incidentally, he had inside knowledge).
Of course we were justified in raising these issues which were modestly reported in the media. Plainly the conflicts existed irrespective of whether they were recognised. It might have helped matters if Judge Davis had said immediately that he did not know of his brother’s GSK directorship – if this was the case – rather than the two ambiguous statements he issued to the press, while following this the bungled Office of Judicial Complaints investigation failed to establish whether he was aware of the Lancet editor, Richard Horton’s denunciation of Andrew Wakefield in the main national news in the days immediately preceding the MMR hearing over which he presided.
The year 2007 was inevitably dominated by the build up to the GMC hearing which began amid the inevitable jeers and catcalls of media primed not only by Brian Deer, but the pharma lobby organisations Sense About Science and Science Media Centre. In May I stumbled on a surprising matter. Checking through my notes for 2004 I discovered that the High Court judge who had upheld the decision of the Legal Service commission to withdraw funding from the MMR litigation, Sir Nigel Davis, was the brother of Sir Crispin Davis, publisher of the Lancet who I had earlier identified as having become a non-executive director of Glaxo SmithKline in 2003. Challenged about this by journalists, Sir Nigel released two statements to the press:
"In 2003, Mr Justice Davis's brother was appointed as a non-executive director of Glaxo SmithKline, a company which was formed as a result of a merger with SmithKline Beecham . At the date of the hearing before Davis J (February 2004), the possibility of any conflict of interest arising from his brother's position did not occur to him. If he was wrong, any possible remedy must be sought in the court of appeal."
"In 2003, Mr Justice Davis's brother was appointed as a non-executive director of GSK. At the date of the hearing before Mr Justice Davis (February 2004), the possibility of any conflict of interest arising from his brother's position was not raised with him and did not occur to him. If he was wrong, any possible remedy must be sought in the court of appeal."
(Private Eye and Scottish press)
Significantly or not, the day after the judge’s statement, John Reid, who Secretary for Health at the time of these events announced his forthcoming retirement from cabinet politics.
The two Judge Davis statements refer only to the Glaxo SmithKline connection, not the Lancet. Remarkably, the conjunction had been commented upon in the Sunday Times (January 11, 2004) just before the events of February 2004 in article about Crispin Davis:
“Family get-togethers could become galling for Davis if he ever slips up, such is the incredible success he and his brothers have achieved. One of them, Ian, is managing director of McKinsey, the management consultancy, another, James, is a partner at the top law firm Freshfields, while a third, Nigel, is a High Court judge.
“Davis’s only other City job is as a non-executive board member at Glaxo Smith Kline, a position he secured last year.”
Brian Deer was beside himself with anger about this matter posting on his website a tirade ‘The cruelty of JABS‘ :
"Take, for example, their latest campaign: the denigration of a High Court judge. Mr John Stone of JABS, who I've previously characterised as being, in my view, "the doyen of petty complainers", notes that Sir Crispin Davis, chief executive of publishing and information giant Reed Elsevier (which owns the Lancet), and, since July 2003 a non-executive director of drug company GSK, was the brother of Sir Nigel Davis, the presiding judge in a High Court judicial review, in February 2004, related to MMR.
The ruling elite remains surprisingly small. But for Mr Stone this discovery is orgasmic: he's been insinuating conspiracy for years. Promptly, Jackie and Co issued a JABS press release, impressively dated "London, England, 13 May 2007". It was evidently hold-the-front-page stuff...
"JABS, again, seeks to suggest a connection between the lawsuit failure and Crispin Davis. How that works, god only knows. The mind of Mr Stone is mysterious. But, if Crispin Davis had any interest or influence - which I'm sure he didn't - it would have been to encourage the funding to continue, and to allow the MMR cases to go to trial. Although JABS has persistently suggested that somehow only they were distressed by the scheduled hearing's abandonment, the truth is that the drug companies were anxious to see the cases heard in London: preferring the usual wisdom of an English judge to the frequent insanity of American juries."
The MMR families will no doubt be surprised that the drug companies would have preferred the litigation to continue, since they had patently done everything in their power to stop it. Others may be surprised at Deer’s indifference to potential conflicts on one side, while going over-board about alleged conflicts on the other.
The Office for Judicial Complaints took 5 months to investigate matter, and refer it findings to the Lord Chancellor, Jack Straw, and the Lord Chief Justice, Lord Phillips. The OJC caseworker, Henry Hochfelder, finally responded:
“When investigating any judicial complaint, it is established practice to give the Judge in question the opportunity to respond. I have, accordingly, sought Mr Justice Davis’s comments on the allegation that he was subject to a conflict of interest. He has provided a detailed response. Of his brother’s non-executive directorship with Smith Kline Beecham, he states categorically that he was not aware of this at the time of the hearing in February 2004; furthermore, that he had never, at any time, discussed the MMR litigation with his brother. Of the connection with Reed Elsevier, Mr Justice Davis acknowledges that he had been aware of his brother’s position, confirms that he had considered whether it was appropriate to declare this, and explains why he decided that there was no reason to do so. His main reasons were that the article in question had actually appeared in the 6th March 2004 issue, namely, after the date of the hearing; and that ‘The Lancet’ had published several articles on the MMR vaccination reflecting a cross-section of views.”
So, there are three key points hanging over from this enquiry. First of all, Sir Nigel had been somewhat less than categorical about his ignorance of his brother’s GSK directorship when the issue had come to light in May. Secondly, while the Lancet furore did not enter the pages of the Lancet itself until 6 March 2004 - after the hearing and not very publicly - it had been the main news for four days the weekend ahead of the hearing (20-23 February 2004), with the publication of Deer’s article, with numerous public statements from the Lancet’s editor Richard Horton, the Secretary of State for Health John Reid, the Chief Medical Officer Sir Liam Donaldson, and the Prime Minister Tony Blair. Thirdly, these discrepancies were never brought to the attention of the Lord Chancellor and Lord Chief Justice in coming to their decision....
John Stone, based in London, is a Contributing Editor to Age of Autism.