Dr Martin Robert: Libel to become unstuck

By Dr Martin Roberts - exclusive for mccannfiles
09 January 2010


LIBEL TO BECOME UNSTUCK


What price legal lunacy? Well, it's probably an outlay best estimated with reference to Carter-Ruck's fees menu, or the hourly charge-out rate of partner Adam Tudor.

Whatever the fiscal damage, there is unquestionably an element of lunacy (a large element in fact) attaching to next week's showdown at the 'not O.K.' corral in Lisbon.

First, a couple of relevant observations regarding libel: (i) Repeating another's libel, however unwittingly, is no less a libel for that. (ii) When Oscar Wilde went unwisely to court to challenge the Marquis of Queensbury's insinuation that he was homosexual, it was on the strength of words written for, and ultimately delivered to, Wilde himself, on the reverse of a calling card left for him at the Albermarle club ('To Oscar Wilde, posing as a somdomite.' [sic]). Although 'Bosie's bullying father may well have made his adverse opinion of the flamboyant Oscar even more well known among London society, he did not otherwise commit himself to print on the matter. Hence, although he may have slandered his adversary on any number of occasions, his libel was precisely targeted and thus limited in its published scope.

Goncalo Amaral's putatively libellous book (published), followed the official police report containing exactly the same data and interpretation (unpublished). On the basis of historical precedent however, publication for the benefit of a wider audience is, as we have just seen, not a necessary criterion in cases of libel. Thus, Goncalo Amaral's book, if held to be libellous, cannot be considered so independently of the assessment upon which it draws, but only on account of its repeating an earlier libel by whichever member(s) of the PJ signed off on the original report. And yet Goncalo Amaral is the only party now required to defend himself.

Stranger yet is the circumstance which has led to the forthcoming 'showdown'; one which prompts recollection of a personal anecdote from childhood.

During a verbal altercation with a rough character in the school playground, a school prefect with a perfect set of teeth was overheard to say, 'Go on, hit me then.' That this instruction was, shall we say, imprudent, can be decided on the basis of the event which took place immediately afterwards, and the rather expensive orthodontic treatment which followed that.

And what does this have to do with Kate and Gerry McCann?

Until their legal representatives secured the lifting of their arguido status and release of the process files, there can have been no act of libel entailed in Portuguese police procedures. No one at the time had taken it upon themselves to 'publish' accusations of any kind. But just like the impetuous prefect, the McCanns got exactly what they asked for. Public access to the police files came about largely because they had demanded it.

If, therefore, Goncalo Amaral's writing is libellous, then it constitutes a repeated libel, predicated upon comparable conclusions previously written and attested by Portuguese colleagues. But this set of primary conclusions cannot be construed as libellous either. The material was written to record an investigative process. This record was in turn 'published' at the instigation of the individuals discussed within it; individuals so oblivious of the 'sauce for the goose' epithet that they arrogantly supposed 'public access' to be a term applicable to themselves uniquely. If Goncalo Amaral, or anyone else, should choose to include such findings within a general discussion of the investigation in question, are we now to subscribe to the view that statements, once written, can be rendered libellous merely through their repetition by others?

Of course, Goncalo Amaral has made money from the sale of his book. So what? The McCanns have made money from the continued sale of T-shirts and other ephemera. Profits from the sale of a book cannot be interpreted as confirmation of libel. A book sale after all is transacted before the purchaser reads the contents (otherwise the book would not sell at all). Reference to Goncalo Amaral's commercial success as an author is completely and utterly irrelevant therefore. Sales/circulation figures could perhaps be taken to indicate the extent of any influence which might be ascribed to libellous remarks, but the precedent afforded by the Wilde case allows us to conclude that libel is absolute, not relative. Unjustified derogatory remarks are not rendered more or less libellous depending upon the number of persons who might read them.

So we await then the impending presentation at the theatre of legal lunacy, Carter-Ruck no doubt directing the production. One wonders exactly what proportion of FindMadeleine Fund resources will have been diverted in support of this particular pantomime, and whether it will be itemised in accounts for the end of the current financial year. In the same column as 'leaving no stone unturned' no doubt.

What concerns me is that the judge granted the ban based on the laws of the right of privacy of the McCanns. I think this is somewhat different than based on a finding of libel. The lawyers are playing a tricky game confusing the fact they are suing Amaral for libel with the fact the book may have been banned for other reasons.

I wouldn't be at all surprised if they withdraw from both the impending libel trial and injunction hearing. Clearly, the McCanns were unprepared for the courtroom revelations last week and probably hadn't expected things to go that far. Rather than give testimony in court, as promised, Gerry fled back to the UK followed next day by Kate. Up to now, discussion about issues such as the Gaspars' statements have been contained on the internet and, on the whole, the general public are unaware of much of the content in the Police Files. At a full libel trial, the McCanns would have to give evidence and be cross-examined in detail on matters that, to date, have remained ourt of the public domain. There is no way the McCanns are going to risk their necks and return to court - I think they will be slamming the door firmly shut on this Pandora's Box and stay well clear of courtrooms in the future.

Who is Dr Martin Roberts - I can't seem to find any web presence for him other than McCann files.

Anyone know?

ty

What the courtroom proceedings showed up last week was the complete shambles the PJ was/is from top to bottom.

You have officers deciding that the McCanns were guilty because of a alleged dream, (one that has been dismissed as a lie). Now if that happened in this country everyone, quite rightly would be up in arms and calling for the Police Officers to be sacked, why not in this case? This also was not in the files i believe.

You have the investigating officer writing a book whilst the investigation was still ongoing. Obviously he saw it as a cash cow for himself. If a officer did it here, he would be sacked.

You have the PJ Officers unable to understand the basics of Forensic Science, and what markers mean.

You have the officers involved not even bothering to look for a missing child because the thought the parents were involved.

That is the biggest tragedy to come out of this.