Friday, 29 October 2010

Reflections on That Court Ruling

By honestbroker

Comments may be read or made here: Chaos Raptors.

Logically and reasonably, Portuguese judges outright refused to grant an injunction on grounds of libel – not because they considered that the book wasn’t libellous, but because they refused to make a judgment on the question before a long-scheduled court hearing to determine precisely the answer to that question. So the McCanns had to vary the grounds of their application, and the one finally accepted was an appeal to that conflict in the Portuguese constitution that guarantees the right of free speech and the part that protects citizens from malicious falsehood and slander. It was originally held, on the basis that the investigation had cleared the McCanns of all blame, while video and book implicate them in Madeleine’s disappearance, that the McCanns’ right to a good name should outweigh Amaral’s right to free speech. It was also (originally) held that advancing a thesis that Madeleine is dead might prejudice the search for the girl, as people will feel less motivated to search for a body than for a living person.

The ruling was always likely to be controversial, as reference to questions of libel are unmistakably present . The judgement that replaced and overturned it found that some prevailing condition must determine whether or not a particular pronouncement should be considered reasonable expression within bounds of free speech, and that condition had to be the presence or absence of a court ruling on whether or not a thing is libellous. There is, now, no court ruling on that question. Therefore (the appeal judges reasoned) Amaral’s right to free speech should prevail. The judges found, further, that as the McCanns have courted publicity, they must expect it, adverse as well as supportive. That is, perhaps, fair comment, though it is worth noting that the McCanns, in their interviews, have never been particularly critical of Amaral or the PJ, while Amaral, in his interviews (which will form a part of the libel trial) has been highly pejorative of the McCanns and their friends.

Still, the key point of controversy in this appeal court ruling is the finding that Amaral, in his book, has kept faithfully to what is in the official police files, or has departed from them only where he places his own interpretation on what is written. As I will illustrate, that is simply not true – and where Amaral does interpret what’s in the files, he frequently goes way beyond bounds of what can be considered (in respect of questions of libel) fair comment.

Inexplicably, Amaral makes reference to the drug calpol night. Nowhere in the file is Calpol night mentioned. And whilst it’s true (as Amaral says) that calpol night contains a sedative antihistamine, it came onto the market fully 4 months after the McCanns’ holiday.

So why does Amaral mention it?

Calpol is mentioned in the file. Both Gerry and Kate told the PJ frankly that they had it with them on that holiday, but didn’t use it. Amaral says that Kate’s father, Brian Healy, confirmed that the McCanns gave Madeleine Calpol as a sedative. Brian Healy did no such thing. A Sun reporter interviewing Mr Healy added words of his own, not Mr Healy’s, to help her Madeleine sleep, which gave birth to both a police file and forum myth. Calpol is straight paracetamol for children, nothing else. It has no sedative properties, but does have an excellent track record of safety in use with children. Yet Amaral makes reference in his book to a generation of parents in Britain hooked on their reliance of a dangerous drug for children.

Amaral’s foray into interpretation of the forensic results is disastrous for him. In chapter 18 of his book, bearing the misnomer of a title Preliminary results (there were no preliminary results!) he recites that Stuart Prior flew over to Faro to brief the PJ on the forensic results that would be soon forthcoming from the FSS in Birmingham. Amaral describes Prior as being disappointed with the results and adds that we (presumably Amaral) disagree with Stewart’s disappointment.

That is the launching pad of Amaral’s own interpretation of the results. He says, about Lowe’s email sent in advance of the main body of the report and dealing with analysis of material recovered from the boot of the car, that half the DNA identified from the car is from Gerry, indicating the presence of DNA from at least one of the McCanns’ offspring. Amaral, there, confuses Lowe’s reference to the control DNA profile of Madeleine, where he explains that the 20 markers of her profile appear as if 19 because two are shared equally between the DNA of Kate and Gerry and appear as one peak – nothing to do with material recovered from the boot.

Amaral notes that incomplete profiles from at least 3 people are present in material from the car, and also Lowe’s comment that markers from profiles of FSS workers are the same as those found in the sample from the car. But then he asks why so many more markers from Madeleine’s profile than from workers at the FSS are found in the sample from the boot. The answer is simple. DNA from four of Madeleine’s blood relatives, her siblings and her parents (all with very similar profiles to her) are likely to be in the mix of material recovered from the boot. Hence the fairly high correlation of markers from Madeleine’s control profile with markers in that mix. The gist of Lowe’s email is that, while it is technically possible that Madeleine’s DNA contributed to the mix of material from the boot, it is highly unlikely, and also that, even if it did, it would be impossible to determine how her DNA got there or whether that would be indicative of any crime committed against her.

Amaral also notes (accurately) that what is dealt with in detail in that first email is glossed over in the main body of the report that follows. But Amaral’ own interpretation of this is that the FSS cannot face up to the idea of Madeleine dead having been in the boot of that car. In short, he accuses the FSS of bottling it. The truth is much more mundane -- Lowe saw no point in repeating himself. So in the main body of his report, he says simply about findings from the car that there was nothing significant in them (true!)

Still, evidently Amaral’s powers of persuasion swayed Prior, because in that chapter of the book we are told that Amaral instructed a (presumably converted!) Prior to phone the FSS and give them a piece of his mind. During the course of this conversation, Prior is, apparently, overheard saying that in England, people have been arrested for less than the PJ had against the McCanns. Amaral recounts that that caused PJ officers to look at one another in astonishment because in Portugal, apparently, concealment of a cadaver and simulation of an abduction are not offenses for which people can be detained in custody. That’s what Amaral says. I assume that there is a record of this telephone call? Later on in the same chapter, Prior is cast in the role of villain as standing in the way of the McCanns being detained.

The examples I cite, here, are by no means comprehensive. Amaral says that Eddie reacted to the boot of the car. Grime, in the file, says that he did not deploy Eddie in the car. In common with all his PJ colleagues, Amaral misses that Eddie, like Keela, will react to blood lost by living people. In the book, Amaral hypothesises that the Smith family saw Gerry whisking the body of his dead daughter past their noses. In the final PJ report, written by Joao Carlos, it is explicitly stated that, at the time of the Smith sighting, Gerry was in the Tapas restaurant.

I don’t know whether Amaral intends putting his book or video back in the shops, or whether reputable retail outlets (anywhere around the world) would contemplate taking them. But if he does, and they do, they should [i]all[/i] heed the words of the Portuguese Attorney General, reported by the Algarve Resident, that the McCanns are entirely innocent of any crime. Particularly in the light of so much of what Amaral says in his book, and has said in interviews, that should leave Amaral with a sense of foreboding about the libel trial, and very wary about how he decides to use his new-found freedom.