McCanns v Amaral: That October 2010 Court of Appeal decision in full

by **Tony Bennett** 29.04.15 10:35

THE UN-BANNING OF DR GONCALO AMARAL’S BOOK: ‘THE TRUTH ABOUT A LIE’

THE HUGELY SIGNIFICANT DECISION OF THE PORTUGUESE COURT OF APPEAL ON 20 OCTOBER 2010

This momentous decision of the Portuguese Appeal Court on 20 October 2010 allowed Dr Goncalo Amaral’s book, ‘The Truth About a Lie’, to go back on sale, after a lower Portuguese Court had banned it. The Portuguese lower court had banned it an an ex parte hearing in September 2009. Ex parte means that the hearing took place without Goncalo Amaral or his lawyers being informed about it. Indeed, in Chapter 6 of 'The English Gag' by Dr Amaral, he explained how he was sitting in a local restaurant sipping his morning coffee when the restauranteur ran to his table shouting: 'Goncalo! Your book's just been banned! I heard it on the radio just now!"

As can be seen in the extracts below, taken from a 20-page unanimous judgment, the court, quite rightly, had in mind the rights to free speech and freedom of expression of citizens throughout all countries covered by the European Convention on Human Rights. It also had in mind the rights of the McCanns to ‘protection of their reputation’.

It came down firmly on the side of free speech. The court allowed Dr Amaral’s book to be sold in Portugal once again.

As can be seen below, Dr Amaral’s book is freely on sale in at least 28 countries on three continents. It has sold at least hundreds of thousands of copies. A documentary film of the book was first transmitted in Portugal on 13 April 2009 and was watched by a record 2.2 million people.

Although the English-speaking countries have a formidable reputation for freedom of speech and expression the world over, Britain’s oppressive and outdated libel laws have deterred Dr Amaral’s publishers from publishing his book in English.

There are English translations of his book on the internet, however, and the Portuguese Appeal Court even, helpfully, published a link to that translation in their judgment (see below).

The translation below originated with four Portuguese-speaking citizens who give their time voluntarily to translating material related to the disappearance of Madeleine McCann. Some of the words of the translation have since been changed to clarify certain words for an English readership.

Finally, it is noteworthy that when the book was banned in September 2009 and the banning confirmed at appeal hearings in January and February 2010, there was blanket front-page coverage of the decision in the British mainstream press.

When the very important decisions of the highest courts in the land (the Appeal and Suprem Coutrs) were published in 2010 and 2011, there was barely one line about those decisions in any of the TV or print media here.

Now that, once again, a lower court has decided against Dr Amaral, once again we see blanket front-page coverage of the decision.

With that short introduction in mind, here are the main parts of the judgment.

DECISION OF THE COURT OF APPEAL IN LISBON

In the case of:

The applicants:                   Kate Marie Healy McCann
                                                   Gerald Patrick McCann
                                                   Madeleine Beth McCann
                                                   Sean Michael McCann, and
                                                   Amelie Eve McCann

Against the defendants: Goncalo de Sousa Amaral
                                                   Guerra e Paz
                                                   Valentim de Carvalho of Filmes, Audioivisas, SA,
                                                  and
                                                   Televisao Independente

Claim Number 60000/09.8 TVLSB-A. L 1

Injunction Proceedings - Appeal of the Defendants

B. The publication of ‘The Truth About A Lie’

On 24 July 2008, the defendant Dr Goncalo Amaral first published his book, through publishers Guerra e Paz.

In that book, Dr Amaral put forward the following hypothesis:

That the child Madeleine McCann died in the Ocean Club apartment G5A in Vila da Luz, on the evening of 3 May 2007
That the McCanns and their friends fabricated an abduction
That Dr Kate Healy and Dr Gerald McCann are suspected of involvement in the concealment of their daughter’s body
That the death nay have been the outcome of a tragic accident
That there are indications of neglect of the care and safety of the children.

Dr Amaral’s book was published in four editions by the end of July, a further nine by the end of August, and another 12 by end of September. Each edition was of around 10,000 copies. [Thus, in all, around 250,000 copies were printed]. At the time of our decision, the book had been sold out at practically all points of sale.

When the book was published, Dr Amaral gave an interviews to the newspaper Correia da Manha, published on 24 July 2008. In that interview, he explained his analysis of the case. He also gave interviews later to all other media that asked him for an interview, each time defending the book’s thesis.

C. The publication of Dr Amaral’s book in 28 countries and all over the internet

At the beginning of May 2009, Dr Amaral published his book in France, this time under the title: ‘Maddie, L’Enquete interdite: Les revelations du commissaire portugais charge de l’enquete [The revelations of the Portuguese co-ordinator of the investigation].

Dr Amaral also gave countless interviews to several media in France, including the one that was published by Le Parisien newspaper in both its paper and online editions. In those interviews, Dr Amaral continued to promote his hypothesis on the case. The book’s French edition was, and continues to be, systematically and prolifically promoted on the internet, for example on the following websites: [a long list of websites follows] .

Between the date when the Portuguese edition was published [24 July 2008] and the date of the book’s French edition [May 2009], Televisao Independente (TVI) broadcast a TV programme produced by Valentim de Carvalho for the company Filmes, Audiovisuais, SA [FASA], who hold the copyright of the documentary.

The first transmission of that programme was on 13 April 2009, the second on 12 May 2009. This programme was essentially based on the contents of Dr Amaral’s book: ‘Maddie: The Truth About A Lie’. In that documentary, Dr Amaral appears and continues to advance his theory (a) that Madeleine is no longer alive (b) that her death occurred within their Ocean Club apartment, and (c) that her parents, the McCanns, concealed their daughter’s body.

At least 2,200,000 people viewed the first screening of this programme.

At the end of April 2009, a DVD of the programme was made, with the following title and subtitle: ‘Maddie - The Truth About A Lie: A powerful documentary based on the best-seller ‘The Truth About A Lie’ by Goncalo Amaral. Already, 75,000 copies of this DVD have been distributed for sale. The DVD is published on FASA’s website.

D. A profile of Dr Goncalo Amaral: the man

Biographies of the defendant, Dr Goncalo Amaral, began to appear on the internet. These biographies of him portrayed him as an honest, well-organised, clubbable man who was also interested in political issues.

His C.V. showed that he had studied engineering, then graduated in law and criminology, and had been an officer and then inspector in the Judiciary Police for 27 years. He is aware of the significance and scope involved in the archiving of a report into an investigation. He is also aware of who has power over an investigation: that is, who has power to open or re-open an investigation and, if so, under what circumstances. Dr Amaral is also aware of the definition of defamation and slander. He has experience of what it means to have been removed from a criminal investigation. He is, then, an adult with ample professional experience.

SNIPPED

Dr Amaral was the Coordinating Inspector of the ‘Maddie case’ investigations from 3 May 2007. In this capacity he acted under the auspices of Inquiry No. 201/07/0 GALGS of the Lagos regional office of the Ministry of Justice - until 2 October 2007, when he was withdrawn from the case. He formally retired from the police service on 2 October 2007. By the time he was withdrawn from acting as the head of the Maddie investigation, Dr Amaral knew that his investigators had formulated their opinion that Madeleine McCann had died in the apartment, that a simulation of abduction had occurred, and that her parents were suspected of concealing her body.

E. The contents of the Maddie investigation file are made available to the world on the internet

All the actions within the investigation that Dr Amaral reports in his book are documented within the investigation file. Not only that, but the investigation documents were also made available in electronic format, not only to the national media, but to international media. These media proceeded to divulge the contents of the reports and statements from the investigation file. This publication of the electronic reports naturally enabled knowledge of the facts of the investigation to be circulated. Public comments were made and soon there was universal discussion of the contents of the investigation file. Any individual in the world can have access to these facts and to the documents of the investigation which enabled the facts of the investigation to be verified. All of this was only a click on the mouse away.

The friends of the McCanns did not make themselves available in Portugal to attend a reconstruction [of the events of 3 May 2007]. This is all documented on pages 4,636 to 4,638 of Volume XII of the ‘Investigation Processos’ files, complied by the Prosecutor’s office.

Dr Amaral’s book was published, through other editors, in several countries, as well as in France, as we referred to above.

F. The various translations of Dr Amaral’s book

The publications occurred as follows:

In Spain, September 2008, titled ‘Maddie - La verdad de la mentira’
This was distributed in the Spanish/Castilian language in Spanish-speaking Latin American countries
In Denmark, in November 200, titled ‘Maddie - Sandheden on Lognem’.
This Danish edition was then published in the Nordic countries of Norway and Sweden
In Italy, December 2008, titled ‘Maddie - La Verita della Menzonga’.
That edition was distributed in Italian-speaking countries all over the world
In Holland, April 2009, titled ‘Maddie - De Waarheide Achter de Leugen’.
That was distributed in Dutch-speaking countries throughout the world
In Germany, in June 2009, with the tile: ‘Maddie - De Wahrheit uber die Luge’
This was also distributed in German-speaking countries, including Austria and Switzerland.
There is also an English version circulating on the internet, on the web site www.gerrymccannsblogs.co.uk/PJ/TRANSLATIONS.htm , where a Portuguese version can also be found.

[NOTE: This is a complete list, in alphabetical order, of the countries in which Dr Amaral’s book has been published or distributed:

Andorra
Argentina
Austria
Belgium
Bolivia
Chile
Cuba
Denmark
Ecuador
France
Germany
Guatemala
Holland
Honduras
Italy
Luxemburg
Mexico
Nicaragua
Norway
Paraguay
Peru
San Marino
Spain
Surinam
Sweden
Switzerland
Uruguay
Venezuela]

G. The McCanns and their friends refuse to attend a reconstruction of the events the day their daughter was reported missing

In the report of the Ministry of Justice archiving the investigation into the disappearance of Madeleine McCann, we find these words:

“From the analysis of a set of the witness statements made during the investigation, it became obvious that there were important matters of fact that were not fully understood and analysed. These needed to be tested, examined and verified at the precise location of the actual events. That would have rendered it possible to establish the reason for the discrepancies, and even flat contradictions. The approved mechanism for such testing and analysis is to hold a reconstruction of the events of that night. However, despite the best efforts of both the Portuguese Judiciary Police and Attorney-General to hold such a reconstruction, it was not possible to carry this out [because of the lack of co-operation from the McCanns and their friends.

H. The findings of two British sniffer dogs

In that very same report, the results of tests performed by the sniffer dogs ‘Eddie’ (a dog that was specially trained to signal cadaver odour) and ‘Keela’ (specially trained to detect the presence of human blood) are mentioned.

‘Eddie’ marked (or signalled) cadaver odour at the following locations:

in the McCann couple’s bedroom in Apartment 5A (from where little Madeleine disappeared), in the area next to the wardrobe;
in an area next to the living room window that has direct access to a street below - behind a sofa
and in an area of the garden of the same apartment.

The dog ‘Eddie’ again marked the signal of cadaver odour at these additional locations:

at the ‘Vista do Mar’ villa, which was rented by the McCann couple after Madeleine’s disappearance, in the area of a wardrobe that contained a soft toy that had belonged to the little girl;
on clothing that belonged to one of the applicants in these proceedings, Kate Healy, Madeleine’s mother;
on the outside of the Renault Scenic vehicle with the registration plate number 59-DA-27, which was rented by the Mccann couple after the disappearance (next to the driver’s door), and
on that vehicle’s key/card.

The dog ‘Keela’ detected residues of human blood at these locations:

in the same living room of Apartment 5A, which had already been signalled by ‘Eddie’;
after the floor tiles that had been signalled in the first inspection had been removed, she again signalled the spot from where the floor tiles had been removed;
on the lower part of the window curtain that had already been signalled by ‘Eddie’ before, and
in the door storage compartment on the driver’s side of the vehicle, i.e. which contained the car key/card.

The dogs’ indications cannot be used as evidence in court, but in many previous cases, they have provided invaluable help in terms of the collection of evidence for Scotland Yard and the Federal Bureau of investigation, with positive results.

Later on, these indications were not corroborated by the British forensic laboratory that was selected for testing the blood samples by the investigation, but they were sufficient for the detectives to pull in the McCanns, the applicants, for questioning as suspects (‘arguidos’).

I. The Portuguese authorities bent over backwards to help the McCanns and their friends to attend a reconstruction - but they still refused

Having acquired this information [from the cadaver dogs], and cross-referencing the dogs’ alerts with other information available to the investigation , the Judiciary Police and the Ministry of Justice tried to perform a reconstruction [of the events of 3 May 2007, the day that Madeleine was reported missing]. They tried all manner of ways to achieve such a reconstruction, but due to the McCann couple and their friends not making themselves available, and not showing up, this valuable investigative tool could not be performed. Therefore the facts about the events of 3 May 2007 remain to be clarified.

Indeed, the final report of the Attorney-General’s Department conforms that despite the relevant national authorities taking all possible measures to enable them to travel to Portugal, the McCanns and their friends simply chose not to attend. Their motives for refusing are not known. They raised many objections to attending for the proposed reconstruction. Clarification of their reasons for objecting were clarified many times, and they were given opportunity after opportunity so far as the date of the reconstruction and the arrangements for them to travel to Portugal were concerned. [Because of their refusal to attend], the reconstruction could not be performed.

SNIPPED

J. Contradictions amongst the statements of the McCanns and their friends

The indications mentioned above were sufficient to make the McCanns suspects.

What is certain is that since the start of the investigation [into the disappearance of Madeleine McCann], there were inconsistent an even contradictory situations concerning the witness statements; for example as regards:

the records of telephone calls that were made and received on mobile ’phones that belonged to the couple and to the group of friends that were on holiday with them
the movement of people right after the disappearance of the little girl was reported, and
concerning the state in which the bedroom from where the child had disappeared was found (was it a closed window, and open window or a partially open window) etc.

The mystery would deepen due to the alerts of the sniffer dogs that we mentioned above.

SNIPPED

K. The right to free speech and freedom of expression under the European Convention on Human Rights

We are dealing here with the exercise of the freedom of opinion or freedom of expression of a man whose professional expertise as been that of a criminal investigator for the past 26 years.

SNIPPED

L. The McCanns courted the media - so mustn’t be surprised if some people disagree with their version of events

Dealing with the applicants’ [McCanns’] concerns about the protection of their right to privacy - the right to privacy for their family life - we have verified for ourselves that the McCanns themselves have given numerous interviews to the media. This activity has given the media information that would have been most unlikely to have been publicised any other way. This includes for example the Channel 4 documentary, which had the full co-operation of the McCanns and was widely broadcast in the U.K. and later on in Portugal [we refer to Nos. 32-35 of our list of proven facts].

We have also paid attention to the fact that the McCanns have easy access to both national and international media. For example, they gave an interview to the North American talk show ‘Oprah’, hosted by the well-known Oprah Winfrey. This broadcast was transmitted in Portugal, by SUC, on the 4^th and again on the 9^th of May.

SNIPPED - quotations from Articles 80 and 81 of the Portuguese Civil Code

M. Dr Amaral’s book doesn’t violate the McCanns’ human rights

We have concluded that the McCanns have voluntarily limited their right to the protection of their private and family life, though certainly for the noble purpose of finding their daughter Madeleine’s whereabouts.

Because they voluntarily limited their right to privacy, they opened the doors for other people to give their opinions about the case, either in agreement with what they were saying, but possibly also in disagreement with their directions, always of course within the bounds of legitimate and constitutionally enshrined rights to freedom pf speech and thought.

We do not agree that the right of the book’s author, Dr Goncalo Amaral, can be limited by a right to the protection of privacy on which the McCanns voluntarily placed limitations.

In just the same way, so far as the McCanns’ right to their reputation and a good name is concerned, once they placed the case in the public domain and gave it worldwide notoriety, the McCanns opened all doors to all opinions, even those that are in opposition to them.

Besides that, our understanding is that the circulation of facts contained within the judicial enquiry, and that were in fact published on the initiative of the Republic’s Office of the Attorney-General, can in no way be seen as an interference with a the right to a good image and a good name of subjects in a criminal investigation.

SNIPPED

We also are unable to understand how it is possible for the rights of subjects of a criminal investigation can be affected by the contents of a book that describes the facts of an investigation. The book’s conclusions may well depart from the Ministry of Justice’s interpretation of those facts, but it is nevertheless an analysis solidly and logically built upon those facts.

N. The Court’s conclusions

We thus arrive at this conclusion. It seems important to stress the following:

The indicative facts that led to the McCanns being made formal suspects [arguidos] in the initial investigation were not deemed by the Ministry of Justice to be sufficient to lead to anyone being charged with any criminal offence. But those very same facts, seen through another prism and from another foundation, may well lead to a different conclusion from that reached by the Justice Ministry. The evidence that was deemed to be insufficient for a criminal prosecution can be understood in a different way, for example in an interpretation that can quite legitimately be published as a work of literature, so long as the said interpretation does not offend the fundamental rights of anyone involved. And as we have stated above, we have explained why the interpretation in Dr Amaral’s book does not offend the McCanns’ rights.

To sum up: The main purpose of the book at issue in these proceedings - ‘Maddie: The Truth About A Lie’ - which was written by the defendant, Dr Goncalo Amaral – is to defend his personal and professional integrity, as the author himself points out straightaway in his preface, and throughout the text.

The contents of the book do not violate any of the McCanns’ [the applicants’] fundamental rights.

The actions of its being written and published are justified under the constitutional rights which belong to all of us by virtue of the European Convention on Human Rights and by Articles 37 and 38 of the Portuguese Republic’s Constitution.

O. The Court’s judgment

Since that is the view we have taken on the matter, it follows that the decision made by the court [in September 2009 and confirmed by the court in February 2010 must be revoked.

The appeal by the defendant Goncalo Amaral in these proceedings is therefore allowed.

============

McCanns v Amaral: That October 2010 Court of Appeal decision in full