Wednesday, 29 August 2012
“The McCanns have a good case for defamation as they have already been cleared by Portugal's Attorney General.” The Sunday Mirror, July 12 2009.
As we reminded people the other day the Portuguese prosecutors’ report stated that the McCanns had failed to demonstrate their innocence. And, as the Portuguese Attorney-General has pointed out recently, no evidence has emerged to modify the report’s findings and re-open the case.
But what did “failing to demonstrate their innocence” mean? How can anyone demonstrate their innocence? There is no provision for doing so by the judicial process in European democracies, since a criminal trial is exclusively concerned with determining guilt, not innocence. And, in any case, no judicial process had taken place.
So the prosecutors were not talking judicially. Then in what sense were they talking? They were talking in the context of investigation, the process which has to be completed before a trial, any criminal trial, can take place. And their investigation, even though it made clear that the couple were being released from their arguido status because of the absence of evidence against them, had been unable to exclude Kate & Gerry McCann as possible perpetrators of a crime against the child.
Of course you could argue – especially if you were determined to make excuses for the parents – that this is all nonsense, an absurdity and that nobody can “demonstrate innocence” in this way. But that is wrong: in the investigative phase, which is precisely what the prosecutors are summarising, they certainly can.
And the law recognises it. People who have irreproachable alibis demonstrate their innocence; people incapable of committing a specific crime by dint of their inability to have executed it – by physical disability or other lack of means – do that; people whose DNA does not match that of the perpetrator at the crime scene do so. And the reader can no doubt think of other examples: while Kate McCann was made a suspect, for instance, her mother was not, since she was physically too far away from the crime scene to have had any direct involvement.Such "demonstrable" innocence can form the basis of a wrongful arrest claim –something which, by the way, the McCanns and their spokesman said they would pursue but –what do you expect? – never did.
But then was this just a subjective, general opinion of the prosecutors that could be ignored or rebutted? No it was not. The prosecutors cited the facts on which their statement was founded, drawing attention to events on May 3 2007 which gave cause for concern and needed further investigation. One of these was the troubling problem of how it was possible for Jeremy Wilkins and Gerry McCann to have missed the mystery figure seen by Jane Tanner. Then there was the children’s bedroom window which Kate McCann claimed was so wide open at 10PM that a door slammed in the draught – yet none of the people who had passed the apartment, the last of them only twenty minutes or so before, had spotted an open window. Furthermore, although the group had provided “timelines” of their movements in writing, the investigators did not accept that they were truthful and accurate. Indeed, even in July 2008 the prosecutors still had no confirmed account of what the holiday group’s movements had been for the period between 6.45 and 10PM. And, lastly, the prosecutors had not accepted Jane Tanner’s sighting of what they called “the supposed abductor” as an accurate and complete account.
It was these critical problem areas – “among others”, as the prosecutors wrote – that prompted police and prosecution to appeal to the Tapas 7 to join the parents in a clarification and reconstruction exercise. As we know the Seven refused and so the prosecutors had to write the archiving report in 2008 without the assistance of the Nine and with the problems completely unresolved. As a result the McCanns “protestations of innocence” as the prosecutors called them, remained just that, protestations not demonstrations. Prosecutors cannot demonstrate innocence or guilt: only the evidence can do that. Since there was no evidence of a crime the prosecutors said so; since there was no evidence to demonstrate their innocence the prosecutors said that too.
Leicester police, the main UK arm of the investigation, said the same thing, although, unlike the Portuguese, they did not provide the evidence on which their statement was based. The assistant chief constable of that force used almost the same words as the Portuguese prosecutors: “while one or both of them may be innocent, there is no clear evidence that eliminates them from involvement in Madeleine’s disappearance.”
That remains their position today, although some of the parents’ less intelligent supporters have danced on the head of a pin to claim that the Leicester police statement was made in ignorance of the Portuguese findings and was therefore somehow rendered out of date by them. Nonsense. The assistant chief constable knew the findings: his officers were in Portugal discussing them at the same time as he made his statement.
But, as we’ve pointed out before, attempts to cherry pick and distort the archiving summary, whether by Carter Ruck attempting to intimidate website owners, by the parents and Clarence Mitchell providing false versions of it to the UK press, or by the dwindling band of McCann apologists convincing themselves that black is white, really no longer matter, any more than blog opinions of the Bureau matter. What matters are judicial conclusions.
Goncalo Amaral’s financial resources are much smaller than those of the McCanns, whose lifestyle, unlike Goncalo Amaral’s, has greatly ripened since the disappearance of their daughter – not many Leicester doctors without a private practice get to fly in private jets, do they? Everything has to be paid for in litigation – not just the attorney’s fees but everything, including the transcripts, the photocopies and the paperclips. So do the high costs of assembling research material that may help clarify matters to a court, such as the time-consuming trawl through the McCanns’ public statements to the UK audience which provides so many undeniable examples of their lies. So as a little gesture of solidarity the Bureau does that for free and makes sure that the evidence behind the opinions is made known to Goncalo's legal team. Every little helps.
Isabel Duarte may feel that the triple track evidence of prosecutors’ findings, Leicester police words and, last but not least, the McCanns’ myriad untruths since summer 2008, can somehow be countered in front of the libel court judges. Unfortunately for her it is irrefutable, which is why the parents won’t appear to refute it and why the numerous witnesses she has managed to assemble will steer well clear of the facts and will only testify to personal belief in the McCanns’ innocence.
But they won’t be able to “demonstrate” that innocence, will they?
Personally I don't think what anybody says in the court will make any difference to the likely outcome - everything has already been said. Their argument may have appealed to a neutral observer in 2007, but five years on it makes no sense.
They probably made a big mistake going for the injunction first (unless that was a necessary first legal step? I don't know). I think they'll be crazy to go ahead now personally.
That's probably not what Duarte is telling them though
You're in it now.
F J Leghorn
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@The Rooster wrote:Great Article Mr Blacksmith. I admire and applaud your efforts in providing professional services to Amaral's legal agents. I think having read your blog that the McCann's (sticks in my craw to write their name ahhhhh!!!) will be on a suicide mission if they see the litigation hearings through, which I think they will do (Narcisists). So on that basis I hope their efforts are rewarded with the worst possible result for them.
You're in it now.
As Blacksmith writes, it's unlikely to be about demonstrating their innocence and therefore arguing against Amaral's conclusions. It would be about character assassination. I fully expect them to go to town with claims about Amaral's personal life. That's what they've retained a local PR firm for IMO.
Regardless of the court's decision, I cannot see how it'll be good for them. Even when they got the temporary injunction in 2010, the revelations in court where quite damning for them. I think it'll be far worse this time. Once again, they've stuck themselves between a rock and a hard place.
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We simpletons potter about, venting feelings, emotions and impressions.
Which matter not.
You, on the other hand!
Somehow, I imagine you to be a Cambridge Don, a sort of Wilfried Thesiger, or TE Lawrence type like, in solitary digs, burnt-out pipe between the teeth; hammering away at a one digit type writer; the inksupply coming unstuck once every page, and having to be refilled by your walking back from the campfire to your tent at a distance. While the lions roar and the waterfall hisses in the dark.
Do not, do not EVER turn out to be a this-century yuppie minion, please!?
But you are far too collected for that.
And people may dream.