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The full reasons McCanns v. Bennett was adjourned Mm11

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The full reasons McCanns v. Bennett was adjourned

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The full reasons McCanns v. Bennett was adjourned Empty The full reasons McCanns v. Bennett was adjourned

Post by Tony Bennett on 09.05.12 23:46

The two-day trial fixed for 9 and 10 May was adjourned at my request.

The reason was because of new information received about the overwhelming necessity in all civil and criminal cases for the two parties to have 'equality of arms'. This is especially so where a court case may lead to a defendant's imprisonment, or have other serious consequences for her/him. This necessity of 'equality of arms' is insisted on by the European Court of Human Rights. The U.K. agreed to be bound by its decisions by virtue of the Human Rughst Act 1998.

A discussion by a Parliamentary Committee back in 2006 on the Steel & Morris case, which I found on the internet in mid-April, was relevant. Steel and Morris were two students who were served a libel writ by McDonalds for circulating leaflets criticising the content of McDonald's burgers. They could not afford lawyers and could not get legal aid, as legal aid did not (and still does not) cover defamation/libel cases. So they defended themselves, in what became known as the 'McLibel trial'. The High Court eventually said they had libelled McDonalds and ordered them to pay £60,000 damages. Steel & Morris then took their case to the European Court of Human Rights at Strasbourg.

The next three paragraphs are from a summary by the Parliamentary Committee of the issues in the Steel & Morris case:

24. Steel and Morris v UK concerned the non-availability of legal aid in defamation actions. The applicants in this case were the defendants in a libel action by the McDonalds Corporation (the "McLibel" case) arising out of leaflets which they distributed outside McDonalds restaurants. They were refused legal aid, and represented themselves throughout the case, with occasional voluntary help from lawyers. The trial was the longest in English legal history (lasting for 313 days) and was preceded by 28 interim applications. McDonalds were awarded £60,000 in damages against the applicants for libel. At the time of the action, the Legal Aid Act 1988 precluded the grant of legal aid in libel actions.

25. The Court held that, given the length, scale and complexity of both the factual and legal issues involved in the hearing, neither the sporadic help provided to the applicants by volunteer lawyers nor the judicial assistance and latitude granted to them during the proceedings, was sufficient substitute for competent, expert and sustained legal representation. The disparity between the representation available to McDonalds, and that available to the applicants, could only lead to unfairness in such exceptionally complex proceedings. Therefore the denial of legal aid had meant the applicants could not present their case effectively to the court and had led to inequality of arms in violation of the right to a fair hearing under Article 6.1.

26. The Court also found that the absence of legal aid amounted to a disproportionate interference with freedom of expression rights under Article 10, pointing to the importance to a democratic society of even small and informal campaign groups disseminating information and fostering public debate, including in relation to the activities of powerful commercial concerns. It further held that the size of the awards of damages made against the applicants (although never enforced against them) were so substantial compared to the applicants' very modest means, that they gave rise to a disproportionate interference with Article 10 freedom of expression rights.



The absolute necessity for there to be 'equality of arms' between contestants in a court case was recently re-iterated in another European Court judgment dated 7 February 2012, and only released a few weeks ago, namely Alkan v. Turkey (Ref: 17725/07 if anyone wants to look it up - the full decision is on the internet).

The crucial paragraph in the whole decision was this one, paragraph 23:

23. The Court reiterates that the Convention is intended to guarantee practical and effective rights. This is particularly so of the right of access to court in view of the prominent place held in a democratic society by the right to a fair trial. It is central to the concept of a fair trial, in civil as in criminal proceedings, that a litigant is not denied the opportunity to present his or her case effectively before the court and that he or she is able to enjoy equality of arms with the opposing side (see Steel and Morris v. the United Kingdom,no. 68416/01, § 59, ECHR 2005-II).

Thus in the current case, McCanns v. Bennett, it is plain that unless legal aid is to be granted to me, this cannot be a fair trial. In court against me on 8 February were Adam Tudor (charging rate £1,200 per hour including VAT), and Isabel Hudson (charging rate £960 per hour including VAT) PLUS a barristet, James Dean, PLUS a legal assistant, PLUS a porter to wheel a huge bundle of files into court from Carter-Ruck's offices a quarter-of-a-mile away.

In addition, in the Parliamentary Committee referred to above, reference was made to official Ministerial Guidance to the Legal Services Commission (formerly the Legal Aid Board) which allowed legal aid to be given to defendants in three specified instances, at least one if not all three of which apply to this case. It appears that in refusing me legal aid on the sole ground that my savings were under £8,000, the Legal Services Commission may not have applied the rules correctly, therefore I have asked them to reconsider.

Indeed, the grounds for granting me legal aid became much stronger when Carter-Ruck wrote to me on 19 April telling me that their costs to date were 'well over £120,000'.

So I applied for an adjournment on 27 April.

Carter-Ruck agreed on 2 May.

The Court agreed the following day, 3 May.

I have in effect been given a limited window of time to see if I can be granted legal aid.

In addition, I have the support of my M.P., Robert Halfon, who has kindly agreed to take up the issue of the denial of legal aid to me, and the wholly disproportionate legal resources available to the McCanns in this case - contrary to numerous strong rulings by the European Court of Human Rights - directly with Minister for Justice, Ken Clarke.

++++

Finally, I'd like to publicly thank the member of this forum, from abroad, and who wishes to remain anonymous, who kindly, three weeks ago, drew my attention to the very important recent case of Alkan v. Turkey.

++++++++

POSTSCRIPT: The judgment in the UK Supreme Court in Hammerton v. Hammerton (2007) is also pertinent. In that case, a man was sent to prison for three months because he repeatedly broke the terms of a court order.

On appeal to the Supreme Court against his sentence, he won, and was released immediately.

In its judgment, the Court said:

In a case where a defendant has been deprived of his rights under Article 6, it would rarely if ever be necessary for the court to speculate as to whether representation would have made a difference. The procedural defects in the instant case were so serious that the interests of justice plainly required both the committal order and the consequential sentence of imprisonment to be to be set aside”.

____________________

Dr Martin Roberts: "The evidence is that these are the pjyamas Madeleine wore on holiday in Praia da Luz. They were photographed and the photo handed to a press agency, who released it on 8 May, as the search for Madeleine continued. The McCanns held up these same pyjamas at two press conferences on 5 & 7June 2007. How could Madeleine have been abducted?"

Amelie Mcann (aged 2): "Maddie's jammies!".  

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The full reasons McCanns v. Bennett was adjourned Empty Re: The full reasons McCanns v. Bennett was adjourned

Post by jd on 10.05.12 0:01

Thanks for the update Tony. In terms of legal representation this is the most one sided & heaviest legal representation in any case I have ever seen with mccanns/carter ruck, there should be no question of you getting legal aid. I personally cannot see them denying you this. Good news your MP is supporting you too, as we all do totally. Sometimes I find it hard to comprehend what the mccanns are doing to you is actually real, its totally disgusting and Maddie would be utterly ashamed of them
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Post by PeterMac on 10.05.12 8:13

@jd wrote: Sometimes I find it hard to comprehend what the mccanns are doing to you is actually real, its totally disgusting and Maddie would be utterly ashamed of them
Perhaps that is why she is refusing to go home !

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Post by aiyoyo on 10.05.12 11:46

@PeterMac wrote:
@jd wrote: Sometimes I find it hard to comprehend what the mccanns are doing to you is actually real, its totally disgusting and Maddie would be utterly ashamed of them
Perhaps that is why she is refusing to go home !

So too would be the twins. They would be so ashamed of what their parents did in more than one way.

Sadly they are brought up in a home where the adults have dark secrets, live a lie, put up a facade in front of them, and made them believe their sister was taken by monster.

If the mccanns were eventually to be truthful to them when they are old enough to understand and if they were to keep the family secret because blood is thicker than water, then IMO that is even worst because it becomes a heavier burden to them to have to live burdened with the lie of their parents throughout their life.



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Post by jmac on 11.05.12 16:59

I have been very worried about the cuts in legal aid and how more and more people are forced to represent themselves. When a person is up against people who can afford big lawyers, or they are up against big corporations or government agencies with limitless funds, there can be no `equality of arms`.

Thankfully the point has been made and won in the European Court. All the best to TB.
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Post by LadyJay on 12.05.12 1:51

Tony , i admire your fortitude and calmness,and how hard you are working on this upcoming situation. I am hoping that this case as a suitable conclusion for you and all concerned.
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Post by aiyoyo on 12.05.12 5:19

Does it mean that when the mccanns' fund runs dry they could also apply for legal aid if they want to sue people.

Or is legal aid available only for defend purposes I wonder?

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Post by aiyoyo on 12.05.12 5:20

@LadyJay wrote:Tony , i admire your fortitude and calmness,and how hard you are working on this upcoming situation. I am hoping that this case as a suitable conclusion for you and all concerned.

I will echo that.

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