You can bet on the law - Dr Martin Roberts

EXCLUSIVE to mccannfiles.com

By Dr Martin Roberts
07 December 2011

YOU CAN BET ON THE LAW

The process of Civil Law in the U.K. has, it appears, taken on the aspect of a game of poker, played in that well known casino where the croupier attending the roulette wheel always has a finger free, ready to press the 'under the counter' control button, in a posture reminiscent of the McCanns' appearance at the Leveson inquiry, during which Gerry McCann's right hand, when not called upon to turn pages, was frequently occupied out of sight elsewhere.

Isabel Hudson, on behalf of Carter-Ruck Solicitors, has submitted a signed affidavit in respect of the McCanns' libel action against 'Madeleine Foundation' secretary Tony Bennett; a statement which, as an example of its kind, is of more than passing interest. Extracts from this document having been placed in the public domain, the following details are especially worthy of discussion.

Summary of Application

4. In 2009 the claimants brought a complaint in libel against the Defendant in relation to numerous allegations which he published that the claimants were guilty of, or are to be suspected of, causing the death of their daughter Madeleine McCann; and/or of disposing of her body; and/or lying about what had happened and/or of seeking to cover up what they had done.

So accusing, or even openly suspecting the McCanns of lying could be sufficient to provoke a 'complaint in libel.' What about simply drawing attention to their untruths?

Jon Corner, godparent to the McCanns' twins:
"Kate said the shutters of the room were smashed."

Brian Healy, Grandfather:
"Gerry told me when they went back the shutters to the room were broken, they were jemmied up and she was gone."

"There was no evidence of a break-in," said Mr Mitchell (The McCanns' spokesperson - Irish Independent, 25 October 2007).

If there's one thing worse than lying, Ms Hudson, it is lying under oath.

Kate McCann (to Lord Justice Leveson, referring to press claims of 'body fluids' found in the wheel well of a vehicle hired by the McCanns after Madeleine's alleged abduction): "There were no body fluids."

A Low Copy Number DNA Test on samples derived from this same hire car, at the locus indicated by the CSI dog deployed, was conducted by the FSS at their Birmingham laboratory and the results reported to Stuart Prior of Leicestershire Constabulary by John Lowe of the FSS:

"An incomplete DNA result was obtained from cellular material on the swab 3a. The swab contained very little information and showed low level indications of DNA from more than one person. However, all of the confirmed DNA components within this result match the corresponding components in the DNA profile of Madeline McCann. LCN DNA profiling is highly sensitive it is not possible to attribute this DNA profile to a particular body fluid." (italics mine)

The CSI dog in question is trained specifically to indicate the presence of human blood in the tiniest of amounts. Blood is unquestionably a 'body fluid.'

To categorically assert, under oath in this instance, that 'there were no body fluids,' is not merely to lie. It is an act of perjury.

5. As the Claimants have always maintained, these allegations are utterly false. In July 2008 the Portuguese Prosecutor confirmed there was no credible evidence to suggest that they were in any way implicated in the disappearance of their daughter or even that Madeleine McCann had come to serious harm. The claimants wish to make clear that it is their position also that there is no credible evidence to suggest that their daughter is dead or that she has come to any physical harm, and the search for Madeleine McCann is very much ongoing.

Even allowing for the possibility of stylistic vagaries in translation, the following passages from the final report dated 21.07.08, signed off by The Republic's Prosecutor (José de Magalhães e Menezes) and The Joint General Prosecutor (João Melchior Gomes), seem somehow not to convey quite the same message as that broadcast by Ms Hudson . The Portuguese account is non-commital rather than dismissive and, in effect, leaves all options open. It makes no specific reference to culpability (or lack of) on the part of Gerry or Kate McCann. Whilst there may have been 'no indications of the practice of any crime,' one should not lose sight of the fact that 'abduction' was, for a while, the principal crime under consideration, and with no evidence for that then Madeleine's disappearance remains to be explained. It is curious, to say the least, that the Portuguese speak of 'removal from the apartment' rather than 'abduction,' these actions not being one and the same necessarily. What’s more, their extrapolation as regards motive, while extending to homicide of one form or another, seems not to embrace the possibility that the child may have died as the result of an accident.

"...it was not possible to obtain any piece of evidence...to formulate any lucid, sensate, serious and honest conclusion about the circumstances under which the child was removed from the apartment (whether dead or alive, whether killed in a neglectful homicide or an intended homicide, whether the victim of a targeted abduction or an opportunistic abduction), nor even to produce a consistent prognosis about her destiny and inclusively – the most dramatic – to establish whether she is still alive or if she is dead, as seems more likely."

"The archiving of the Process concerning arguidos Gerald Patrick McCann and Kate Marie Healy, because there are no indications of the practice of any crime under the dispositions of article 277 number 1 of the Penal Process Code."

Furthermore, there is something in the McCanns' 'position' which hinges on how, exactly, one interprets the seemingly insignificant word 'also.' The key phrases once more.

For the Portuguese Prosecutor:
'No credible evidence to suggest that they were in any way implicated in the disappearance of their daughter or even that Madeleine McCann had come to serious harm.'

For the Claimants:
'It is their position also that there is no credible evidence to suggest that their daughter is dead or that she has come to any physical harm.'

What should we notice about these 'positions' therefore?

If the 'position' of the McCanns reflects that of the Portuguese absolutely, then there is no need for the submission to repeat it. All that need be said is: 'And that is the position of the McCanns also.' The fact that the McCanns' 'position' is represented as an extension to that of the Portuguese leads one to interpret 'also' as 'in addition' when, in point of fact, what is being put forward is merely an echo, and a partial one at that. The McCanns are represented as being in agreement with the conclusion that there is 'no credible evidence to suggest that their daughter is dead or that she has come to any physical harm.' They are not, however, explicitly described as concurring with the Portuguese assessment in that other crucial respect, i.e., there being a lack of 'credible evidence to suggest that they were in any way implicated in the disappearance of their daughter.' Why not?

Intriguingly, this situation represents a similar, albeit converse, omission from the logical jigsaw to that previously discussed in connection with Carter-Ruck's (ineffective) correspondence with a certain Web-host (see 'Missing Presumed...' - McCannfiles, 16 Nov.), wherein Messrs. Carter-Ruck do indeed state that their clients, the McCanns, had no involvement whatsoever in the disappearance of their daughter, alluding to an absence of proof ('no grain of proper evidence') that their clients were thus implicated. Perhaps Ms Hudson should have recalled that declaration to mind, for inclusion in her own affidavit. She did not. Nor is it so included. It is tempting to speculate that even lawyers as accomplished as Carter-Ruck would rather avoid drawing attention to the possible existence of 'improper evidence,' however 'grainy' that evidence might be.

Background

10. My firm first came to represent the claimants in relation to defamatory coverage published about them in the national press which falsely alleged that they were to be suspected of causing and/or conspiring to cover up their daughter's alleged death. In the spring of 2008 the claimants received prominent front-page apologies from a number of national newspapers which acknowledged that the Claimants were completely innocent of any involvement in their daughter's disappearance.

The negation of nested allegations is an explanatory device favoured by Ms Hudson it seems. The interim report from the Portuguese PJ, since released to the public, leaves the reader in absolutely no doubt that the McCanns were suspects in their daughter's disappearance. In hindsight therefore, not only were the allegations of the national press in line with the thinking of senior Portuguese officers involved in the investigation but, in suggesting that the McCanns were to be suspected of doing something (not accusing them of actually having done it), they would not have been making a false allegation at all. When all's said and done, 'suspicion' and 'accusation' are not the same thing. If they were, then the English lexicon could be shortened by three syllables at least. And if, as a society, we are to restrict the open discussion of 'suspicion,' a concept at least one remove from 'accusation,' or ban suspicion altogether, are we not moving dangerously close to the censorship of free speech - the sort of free speech Gerry McCann very recently told Lord Leveson & co. he was fully in favour of?

One of a handful of preliminary conclusions on the part of the Portuguese investigators appears to sum up the situation perfectly adequately:
"From all that has been exposed, it results from the file that:

"Kate McCann and Gerald McCann are involved in the concealment of the cadaver of their daughter, Madeleine McCann."

(in: Process 201/07.0GALGS, volume XVII, page 2601).
These same malicious newspapers went on to 'acknowledge' that 'the Claimants were completely innocent of any involvement in their daughter's disappearance.' (As we have already seen, an acknowledgement strangely absent from Ms Hudson's own claims on behalf of her clients, the McCanns). The Daily Star, for example, printed: "We now recognise...that Kate and Gerry are completely innocent of any involvement in their daughter's disappearance". Given that the Portuguese prosecutor was at pains to point out that the McCanns, in their failure to participate in the requisite reconstruction, forfeited the opportunity to exonerate themselves, it is puzzling that the UK press was suddenly in a position of absolute knowledge, recognising, accepting and acknowledging the McCanns' complete innocence all over the place. What did they and Carter-Ruck know that the Portuguese could not?

12. As I will explain below, the Claimants have sought, as far as possible, to 'turn the other cheek' in relation to commentators who continue falsely to allege that the Claimants caused and then concealed the alleged death of Madeleine McCann, mainly because their overriding priority continues to be the search for their daughter. However, when there have been instances where the Claimants have feared that the publication of defamatory allegations about them may threaten to hamper the search for their daughter (because if the public are led to believe that Madeleine is dead, they are unlikely to report any potential sightings or other leads to the authorities),they have taken action.

This statement could have served as a template for the contradictory 'evidence' submitted by the McCanns themselves at the Leveson inquiry. It says, in short, that the McCanns are by-and-large prepared to overlook 'false allegations' of Madeleine's 'alleged death' unless they fear that 'defamatory allegations about them may threaten to hamper the search for their daughter.' And how is that situation likely to arise? 'If the public are led to believe that Madeleine is dead, they are unlikely to report any potential sightings or other leads,' under which circumstance the McCanns 'take action.' So 'false allegations' of Madeleine's 'alleged death' are not so easily dismissed after all. And the McCanns not so forgiving either.

34. The posting reported on an upcoming hearing in the libel proceedings which the Claimants had brought against Goncalo Amaral, a discredited Portuguese police officer who had written a book which alleged that the Claimants' daughter had died in their apartment and that they had disposed of her body.

Since when was Goncalo Amaral 'a discredited Portuguese police officer?' Discredited by whom, the UK media? And on what grounds? That he was re-assigned at the instigation of the British political machine and took early retirement? It seems a touch ironic that a solicitor acting on behalf of a firm specialising in matters of libel should trot out a defamatory remark herself while engaged in making a case on behalf of her own clients. Carter-Ruck need to watch their 'P's and Q's,' the McCanns their backs.


http://www.mccannfiles.com/id232.html
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Related links:
Isabel Hudson's Affidavit https://jillhavern.forumotion.net/t3945-isabel-hudson-s-affidavit
Statement from Tony Bennett regarding 3 Libel actions https://jillhavern.forumotion.net/t3339p90-latest-on-the-3-libel-actions-alleged-contempt-of-court-x-1-and-alleged-libels-x-2#86222