THURSDAY, 23 FEBRUARY 2012
A wolf by the ears
Would I lie to you?
Want to know why Gerry McCann went to Lisbon in January 2009? Just turn to these pages in McCann Files and you’ll find Gerry giving interview after interview explaining that he was there to see how to improve the “search for Maddie” with his criminal lawyers and to “see how we can work with the authorities to explore areas where other things can still be done that might make a difference”.
And there were lots of other comments as well, such as his desire to “build bridges” with the Portuguese, forget the past and start afresh.
The one thing he didn’t give us was his true reason for going to Lisbon. That’s because, yet again, Gerry McCann was lying through his teeth, as he does with monotonous regularity. Not forgetting, not being slightly misleading, but outright lying in the dictionary sense of the word.
His wife confesses to having an equal propensity to lie (Madeleine, P206), but in this case it seems we can accept her version on page 335 of the same book. Having spoken to Duarte on the phone at the end of November, she writes, “Gerry went to Lisbon to meet her” exactly six weeks later.
Watch what I do, not what I say
Welcome to the world of the McCanns’ Portuguese libel claims. Spin and lies are at the heart of them, as they have been since the very beginning; only now, three and a half years after the case was archived, can we see that gradually but inexorably the legal system has begun to catch up with the couple: spin has encountered the courts and the courts are winning.
It was in July 2008 that the case was shelved and the McCanns were released from their arguido status. On the face of it this was their moment of triumph. The UK press, chastened and confused by the failures in Portugal that had led to the Express libel awards, lapped up the dishonest versions of the archiving report provided by a sneering Clarence Mitchell—that the report had “mocked” its own police force for its incompetence and had exonerated the pair. The way was now clear for the parents to use this “acquittal” as the basis for proceeding not just against the fantasists of the Express and Star but against anyone who questioned their role in the disappearance of Madeleine McCann.
The ghost at the feast
Almost simultaneously Goncalo Amaral launched The Truth of the Lie in Europe, complete with the startling claim that the child had died in the apartment on May 3 and the parents had concealed the body. There was little mention of the book in the UK press and almost none describing its central claim: as the media lawyers no doubt pointed out, the book clearly defamed the McCanns and merely repeating the claim was equally defamatory. Amaral would have to prove the truth of his assertions and that was impossible since the investigation, as summarised in the archiving report, had found “no evidence of any crime” by the pair.
Amid the euphoria of the parents’ exoneration Amaral’s claims were initially of little significance and the couple were content to wait for the policeman to launch a UK edition of the book and then crush him in the courts. But the huge and continuing success of the work and the impact of its associated television programme proved to be too much for the pair and in April 2009, following further consultation with Duarte, they took the decision to sue.
Was it a rational decision? It was certainly an extremely difficult one: Amaral had deliberately set a trap which might lead the pair out of the protected comfort zone of spin and media domination and towards the courts, where spin and spokesmen alike counted for nothing and where failure to prove the truth of their claims might lead to unpredictable dangers as well as financial penalties. Yet silence and inaction would be tantamount to acceptance of Amaral’s devastating claims.
“I’ve always been considered quite a gentle person”, wrote Kate McCann, apparently with a straight face, “but these attacks [by Amaral] stirred up terrible emotions in me. It was as if my whole body was trying to scream but a tightly screwed-on lid was preventing the scream from escaping. Instead I was just howling internally.”
So it looks as if Kate McCann’s serious lack of emotional control which, as we know from the pages of Madeleine, had featured so largely in Portugal in 2007, influenced their decision to sue, despite the risks.
Lawyers always get paid
Nevertheless their lawyers, both Duarte in Portugal and Carter Ruck in the UK, put together a package that offered some prospects of success. There was no guarantee that a Portuguese court would accept the archiving summary as an absolute statement of innocence but there was a chance; the parents had always denied any involvement in the disappearance of the child; attacks on Amaral’s personality could demonstrate that he was motivated by money rather than principle; and, finally, the Tapas 7 could testify both that there was insufficient time for the parents to dispose of a body on May 3 and that their behaviour on the night was inconsistent with Amaral’s central claim.
In addition the critical burden of proof issue could be put off to the distant future by a preliminary attack on Amaral using the infinitely flexible language of human rights, rather than libel, law. That attack, when it came, astonished almost everybody by its malevolence (Duarte’s hallmark) and manifest vindictiveness (characteristic of the McCanns). It virtually removed Amaral’s own human rights and it didn’t do much for the image of Portuguese justice abroad but it had a logic of its own: it greatly increased the chances that Amaral would sue for peace before any full libel trial with its proof requirement ever came to court.
Despite the acute discomfiture of the parents at the Lisbon injunction hearing when they encountered the painful realities of a Portuguese courtroom for the first time, January 2010 represented an apparent triumph for the couple as decisive as their “exoneration” eighteen months before: judgement was given in their favour and Amaral remained hog-tied and virtually helpless. Soon afterwards it emerged that Amaral’s wife had virtually collapsed under the pressure of their ordeal and was begging her husband to reach a settlement with the McCanns.
“In victory magnanimity...”, as a British statesman once wrote. But just as Kate McCann’s mental instability had featured in the decision to sue, now another quality of their personalities, their vengefulness, ensured that they would never reach out to Amaral in their moment of triumph but would pursue him to the end.
Amaral, to his great credit, simply carried on, helped by a small number of dedicated supporters and fund-raisers. Finally, in summer 2010 his persistence and determination were rewarded when the Portuguese court of appeal found in his favour and lifted some of the injunctive restraints. Despite the near silence that greeted Amaral’s success in the UK it was clear that a watershed had been reached.
The judgement, which was definitive, made it clear that whatever supporters, spokesmen or lawyers like Carter Ruck claimed outside the courts, the archiving report/AG statement was explicitly not a judicial finding of any kind but was one possible interpretation of the investigation data with no legal (i.e. conclusive) standing. It was exactly on a par with other possible non-judicial interpretations or opinions based on the same data, the judges said, in particular with that of Amaral as expressed in The Truth of the Lie. Thus the conclusion of the report, “that there was no evidence of the commission of any crime” by the pair was at once downgraded to the reason for their release from arguido status at that time, not to a finding of innocence.
Duarte had to tell the incredulous –and inevitably furious—pair that a large chunk of their “proof” of libel had been despatched at a stroke: the summary and A/G statement could not be used in the forthcoming libel trial in the way they had hoped and as Carter Ruck, in the UK, had already been attempting to use it.
It gets worse
In fact the situation was much worse than that for the true significance of “the onus of proof on the claimant” now began to emerge in ways that the pair had never anticipated. When attention had been drawn to other parts of the archiving report in the past, particularly the statement that the McCanns had “lost the chance to demonstrate their innocence”, whatever that might mean, they were dismissed as irrelevant—since when did suspects have to demonstrate their innocence?
And now, disturbingly and unexpectedly, there was an answer: soon, and in court. With the “exoneration” excluded Duarte could only argue that the archiving summary is a more convincing interpretation of the investigation than that that of Amaral—yet that interpretation asserts in black and white that they have failed to demonstrate their innocence as the libel court requires them to do!
In the world of fib’n’spin this might be dismissed: because they couldn’t demonstrate their innocence then doesn’t mean that they still can’t do so, just as the Leicester police view that “there is no clear evidence that eliminates them from involvement in Madeleine’s disappearance” while true in 2008 might not be true now. Dream on!The Portuguese Attorney-General confirmed as recently as 2011 that no significant evidence had appeared since 2008 to add to the case or justify a re-opening. A “demonstration of innocence” or “evidence that eliminates them from involvement” would, of course, be “significant evidence”. It hasn’t appeared.
What happened to the 7? What?
With this leg of the claim gone the testimony of the parents and their friends assumes much greater significance if there is to be any chance of the McCanns proving their case. But now, astonishingly, we know from the list of witnesses being called by the McCanns that none of the Tapas group are going to testify. And from the noises being made on behalf of the parents it looks increasingly as though they themselves won’t be called either. The reasons remain a mystery.
As we posted recently that list indicates that Duarte has now given up on proving that Amaral’s central claim is libellous. Yet how do they let go of the wolf’s ears without being savaged? Their hope seems to rest, as we said, on concentrating on an emotion based defence combined with personal (and no doubt loud) attacks on Amaral, a strategy that, as we have seen, has already been floated via the Mirror. While they won’t be able to prove their central claim they have a chance of convincing the court that the pair –and the famous search—have been harmed by Amaral’s “harassment”. Hm.
What about all the police and legal figures that the McCanns intend to call—might they provide new material to strengthen the pair’s claims? Answer NO. The Attorney-General’s statement that no new evidence has emerged once again applies and the days of libel court ambushes are over. The police and legal worthies can only give their personal opinion about the differing interpretations of the archived investigation, not new facts.
So what can we make of it all? We have to say that our relatively recent gloom about Amaral’s chances has lightened considerably: it appears that his views on what caused the shelving may not need to be aired in court. And never for a moment did we think that the Tapas group would fail to testify. It is impossible to avoid the feeling that after all these years the character flaws of the pair –the compulsive lying, the blind vengefulness, the manipulation of the press that seems to have damaged their own view of reality and the strange violence—now documented—of Kate McCann’s personality—are finally catching up with them in the only place that has ever mattered: the courtroom.
Posted by john blacksmith at 17:32