Our money or your life
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15 January 2014
The BSE inquiry had more than its fair of share of desperately sad moments in its 700 hours of hearings. But perhaps none quite so tragic as the testimony of the father of Clare Tomkins, who was then dying from the human form of mad cow disease (CJD), in describing the 18 months of hell that his daughter had endured.
Roger Tomkins spoke of his happy and recently engaged daughter being swiftly reduced to an emaciated wreck, howling "like a sick, injured animal". "Why did it happen to my daughter?" he asked of Lord Phillips, the judge who headed the inquiry (now Master of the Rolls). It was the question that the other families also wanted to know the answer to.
"I believe that there was an element of risk-taking, and my daughter and others were the result of that risk," Tomkins continued. "It may be a minimal risk, but it's happened, and the results are terrible and she's lived in hell for 18 months now." He was speaking during the opening days of the inquiry and Clare Tomkins was to die the following month.
"I have never heard such intensity of listening in a courtroom or in a court atmosphere," recalls David Body, head of clinical negligence at Sheffield-based Irwin Mitchell, who represents all 102 of the new-variant CJD families. "It was extremely difficult not to get involved in the emotion of it all," he says. "It was just terribly sad."
Speaking five months after the 16-volume report was published, the lawyer believes that the inquiry was "harrowing but essential". It lasted two and a half years, involved more than 600 witnesses and millions of documents, and has been estimated to have cost as much as £27m.
Body is still very much preoccupied with the case, which has taken up four years of his professional life. The Government announced a "no blame" compensation scheme following the report, and Body is currently finalising the compensation packages for victims and their families. He will not be drawn on when it will finally be resolved other than to say "soon".
The solicitor has a history of acting for the victims of CJD and their families. He represented 30 families who contracted the disease following treatment with a human growth hormone. It was the first CJD litigation in the world, and the families were awarded more than £6m.
Body strongly believes that the "damages-driven" litigation process was not an appropriate forum for the CJD families to explore the reasons for their tragedies. His clients were people "dying of the most impossibly grim disease", and they were more concerned with what went wrong than financial remuneration. "The amount you get in damages isn't going to bring back your son, daughter or husband," he says.
One function of an inquiry is to help victims of a disease like CJD come to terms with their bereavement. Body draws a parallel with the first ever public inquiry following the Aberfan disaster, in which a waste-tip slid and engulfed a school in South Wales.
"It isn't like dealing with a conventional piece of disaster litigation," he says, drawing a distinction with the Herald of Free Enterprise or Piper Alpha catastrophes, which were "enclosed, limited and focused disasters".
As the campaign for an inquiry gathered momentum, Body became involved in lobbying. So how does the role of campaigner sit with that of legal adviser? Body does not see any conflict and adds that campaigning is "what we do for a living".
But he is keen to point out that his clients were an articulate and motivated collection of people capable of looking after themselves. "Without any false modesty, I'd say my role as a campaigner was much less significant than that of my clients," he says. "They campaigned with a cohesion and an intensity which was remarkable." Ultimately, he adds, the outcome of the inquiry is "a testament to them".
It was hardly surprising that the initial calls for the inquiry at the end of the last Conservative Government's tenure fell on deaf ears, given its political sensitivity. The inquiry was announced within a few months of the new government coming into office and launched in February 1998.
According to Body, Lord Phillips was keen to impress upon participants that it was to be "very much an inquiry for the families". It was an invitation that the families took up enthusiastically.
Body recalls: "He was by then a Lord of Appeal, and it must have been a slightly out-of-the-ordinary experience to have offered from the floor a completely unreconstructed view of what he should be doing - in very frank terms."
How did the politicians - such as the agriculture ministers Douglas Hogg QC and John Gummer, who famously fed his daughter a beefburger at the height of the controversy - fare at the inquiry? According to Body, they were defending themselves "against a backdrop of collective responsibility" which made it difficult to make a judgement about their failings.
But he adds: "What most people felt was extraordinary was the extent to which they appeared to have a balance in their minds which was all about the commercial interest and the threat it posed to Government if it was thwarted."
It was the revelations about the workings of the Whitehall machine that took Body by surprise. He recalls the "extraordinary" evidence given by the former chief vet Keith Meldrum, who was asked whether his role was to consider public health. "He continuously finessed and finessed his answer, only to be confronted by Nicholas Phillips with his job spec, which included plainly the balance between commercial interest and public health."
Another memorable exchange involved Sir Kenneth Calman, chief medical officer at the time of the crisis, when he attempted to define the word "safe" in the context of reassurance given about the safety of beef products. "We had an extraordinary exposition about safety not meaning absolute safety, but being a relative concept," says Body.
As he points out, it is the kind of thinking that might be second nature to lawyers, but if the public sees an official declaring that beef is safe, it takes it at face value without an awareness of "this enormous subtext".
"Some of the comments of the civil servants made you feel that Yes Minister had been less comedy than documentary," Body says. "The ghost of Sir Humphrey Appleby stalked the corridors of the BSE inquiry - there was absolutely no doubt about that."
Lord Phillips accused the civil servants of having pursued a policy of sedation. Body says: "He's right - it's about the senior echelons of the civil services and a failure to understand the quality of scientific advice." According to Body, one of the legacies of the report is that it attempted to define for the future the way in which such scientific evidence should be relied upon. He is mindful of recent reports into leukaemia clusters associated with power lines and the risk of cancer from mobile phones which, he adds, "are not phrased in reassuring terms".
When the report finally appeared last year, some commentators accused it of being another Whitehall whitewash and for failing to point the finger. What was Body's own verdict? On a personal level, he was impressed by "a highly analytical examination about what Government had done and failed to do". However, he adds: "A lot of my clients were disappointed that it didn't identify individual culpability," he says. "Phillips concentrated on institutional failings, which I'm afraid is a habit of public inquiries."
Body adds that maybe the judge took the view that if he had criticised those ministers and officials who had since left Government or retired, it would have provided those now in power with a get-out clause. "Whereas if he criticised institutional matters and set out a clear agenda for the future about civil service reform, I think he felt it would be much more difficult for them to wriggle out of it," he concludes.
David Body, Irwin Mitchell