WEDNESDAY, 21 DECEMBER 2011
Some thoughts on the libel trial
We have heard from the Daily Express journalists today and there is little in their evidence that will come as a surprise. There are, however, issues that some people in Portugal, chiefly those surrounding Goncalo Amaral, might need to think about.
Not us, because we don’t claim that the McCanns disposed of their daughter’s body. Our position has been clear all along: that Gerry and Kate McCann are documented liars whose conduct has thrown a pall of defensive misinformation and confusion over the disappearance of their daughter and who have attempted by both fair means and foul to restrict the information about the case that reaches the British public.
McCanns make judge talk nonsense
As if on cue a typical example of that confusion occurred on Wednesday when Lord Leveson highlighted the fact that many of the wild Express stories came after September 7 when the pair were made arguidos.
He invited the journalist Pilditch to see the parallels with contempt of court in the UK context, that is, once a person is charged with an offence then all potentially prejudicial comment must cease. Once the pair had been made arguidos, he said to Mr Pilditch, then surely you should have thought it was now time to be silent or coldly factual about them.
But Lord Leveson had forgotten, for the moment, the McCanns’ courtroom redefinition of the word arguido. According to them, and contrary to most English definitions of the Portuguese term until now, it didn’t mean “suspect” at all! So if it didn’t mean suspect then it couldn’t possibly have any parallels with the English contempt of court question, and Lord Leveson’s point was inaccurate and meaningless.
That is what we mean by “a pall of defensive misinformation and confusion”, in this case under oath, and it confused and misled Lord Leveson.
But then his lordship speaks the truth
Mr Pilditch clearly believed, and still believes, that his information—not necessarily his reports—accurately reflected the thinking of “senior officers of the Portuguese police”, the so-called “Tal y Qual” question. He claimed, indeed, that the case papers (and, he later added, Amaral’s book and the Lisbon hearings) demonstrated that the PJ clearly had been thinking that way.
Counsel for all the celebrity victims, quite clearly recently briefed by solicitors for the McCanns, did not accept this, being very anxious to challenge Pilditch’s interpretation of the case files with three examples of his own.
It is Lord Leveson’s response to Sherborne’s point that is of significance. Leveson is neutral; there are no clouds surrounding him; he is not Judge Eady. So his comments are a good guide to how a fair-minded European judicial figure without deep knowledge of the affair responds to what he is told is the PJ case against Kate & Gerry McCann. He stressed these unarguable points.
· The PJ had provided no evidence at all to support any of the “tittle-tattle” about the McCanns’ supposed guilt that the journalists had reported.
· The journalists themselves now accepted that it was second-hand “tittle-tattle” and was not based on firm evidence.
· The case papers provided no evidence in support of the PJ claims, which the journalists clearly implied came from Amaral.
· From the legal point of view, therefore, all of it is fiction.
These are the views of a judge on what he had heard. There was no dissent from counsel for the newspapers or from the witnesses; the hearings were in public; we heard what the witnesses said and it is impossible to disagree with the judge’s conclusions.
The implications for Goncalo Amaral
It is no use people assuming that Leveson’s comments are irrelevant because he doesn’t know the case in detail or, worse, because of some paranoid fantasy that he is part of a McCann-protecting British establishment: these are agreed facts and the parents defence team will lead with them at the forthcoming libel trial. The onus is on S.Amaral to provide convincing evidence of his own in refutation.
Now S. Amaral has claimed that he was “about to” get convincing evidence implicating the pair when he was pulled from the case. We think that is the most dangerous route that he can possibly embark on, for it is exactly what the McCanns’ defence team expect, and want, him to do.
It is a counter-factual, an unprovable hypothesis. Moreover it fits in with the picture they wish to paint of someone who guesses first and looks for evidence afterwards and then makes excuses when none turns up. Just listen to it in your head: “you thought you would have got the evidence if you hadn’t been unfairly taken off the case at the instigation of the UK?”
Yes. “In the way you thought you would get evidence confirming the dog’s activities?”
No answer. “In the way you thought you would get evidence that her body had been buried and hidden?”
No answer. “In the way you thought you would get evidence for us today that Gordon Brown had got you removed?”
The claim that he was pulled from the case under UK pressure makes the hole deeper. The McCanns will call witnesses, including Alipio Ribeiro, to show that S. Amaral’s removal from the case was in no way prompted by UK intrigues in support of the McCanns and S. Amaral will be totally unable to refute such evidence—because it is true.
Goncalo Amaral needs to understand that the UK interference claim will never be accepted judicially and that making it in February will be fatal. He should, even at this late stage, abandon it.
Yes, yes, we know, we’re only the little Bureau and are ignorant about Portugal blah-blah—but one can only speak as one sees: S. Amaral, whom we still support, has admitted before that he was shocked by the surprise violence of the McCanns’ successful assault on him; it might be wise to ensure that he is not shocked and surprised again.
Firstly, we think he is going to have to provide evidence explaining systematically and comprehensively what the grounds were that led the team of officers, of which he was a part, to focus on the parents. If it is convincing and backed up by other police officers then it will weigh with a Portuguese court.
Secondly, he will have to demonstrate why the absence of evidence incriminating the parents did not lead to the PJ immediately dropping its interest in them and looking elsewhere. Was it reasonable to persevere? Or was it irrational? What, exactly, was the view of the man in charge of the case, Alipio Ribeiro?
Thirdly there is the evidence of exactly what happened on the night of September 6 2007. S. Amaral has claimed to friends of ours that Kate McCann wanted to make admissions about the circumstances of the child’s disappearance. Her chronology of events that night, like the rest of her account of September 6, is not convincing and the latter includes both contemporaneous and current claims of police misbehaviour, including the so-called and much modified “deal” assertions. He has to provide, somehow, evidence of what the actual sequence of events at police headquarters was that evening.
Lastly, the prosecutors asserted in their final report that there was “no evidence” of the commission of any crime by the McCanns in the investigation case files; in the same report they noted that the investigation was incomplete by virtue of the McCanns and their friends failing to co-operate with the inquiry (on the question of reconstructing their movements and clarifying anomalies in their statements). At no point does the report state that their absence was merely marginal or unimportant.
Examining and drawing out the implications of these two statements in the report is likely to be of crucial significance. “No evidence of the commission of any crime” means explicitly and unarguably “no evidence of the commission of any crime in the files submitted to us of this incomplete investigation.”
At some stage Menezes and his colleague have to tell the court exactly how they reconcile this apparent contradiction and exactly what they meant when they wrote that the parents “lost the chance to demonstrate their innocence”.
Paolo Rebelo, who is likely to be called, should have to testify as to why he attempted so forcefully to get the friends back for the reconstruction. That he was doing so as late as April 2008 speaks of the importance that he, and his post-Amaral phase of the investigation, attached to their participation. Why did he then decide to curtail the investigation without such important evidence and without asking the prosecutors for further time?
It can be done
We believe that a properly marshalled defence by S.Amaral’s team covering these points can win him the case: the Portuguese appeal court judges have already accepted that the prosecutors’ report was an “interpretation” and that S. Amaral’s alternative interpretation was valid. But time has passed: now he has to show the flesh and bones of his interpretation.
He does not have to provide evidence proving the McCanns guilty of a crime involving their child, only that the investigation of which he was a part had good reasons for focusing on them, acted in good faith to establish the facts of the disappearance and had evidence to suggest that a “complete” rather than admittedly “incomplete” investigation would lead to different conclusions than those non-judicially expressed in the prosecutors’ report. Nor does admitting that he systematically leaked to two journalists invalidate in any way the direction the police inquiry under him and Ribeiro took. All that will assuredly lose it for him will be a reliance on matters that he cannot substantiate.
The McCann lawyers know the score
It is clear from Mr Sherborne’s questions today that, unlike Lord Leveson, whose knowledge of the case depends only on the newspapers and what he has heard in an inquiry of which the McCanns are only a part, and unlike also the family’s ignorant supporters, the McCann defence team knows what the parents’ vulnerabilities are and knows that its job is very much unfinished. The book Madeleine, when closely read, makes this even clearer. But while that has great significance for all of us in the future, it will not help S. Amaral in February: then he will have to present an evidence-based defence to the claims against him.
Posted by john blacksmith at 20:09