Hi all, this article in today's Daily Mail is very interesting in explaining Portuguese law of homicide for us. Clearly they had evidence in September that she had killed Maddie but the debate was had she done it accidentally which would not allow them to remand her in custody or was there a degree of intention in her behaviour which would have meant that she could and should have been remanded. It is quite shocking to have it confirmed that both she and Gerry not only escaped a remand but were also allowed to go home - privileged treatment because of who they are. Clearly had they remanded them in custody the continuing investigation would have proceeded far more swiftly and simply and it is a great pity this was allowed to happen.
In UK law we only have two forms of homicide - either manslaughter or murder. In order to decide on the correct charge we look at the state of mind of the accused at the time of the killing. Only when it can clearly be established that the accused actually intended to cause either serious bodily harm or death will they be charged with murder. All other types of culpable homicide come under the broad heading of manslaughter although there are different types. Perhaps the lowest level in UK law is "gross negligence" manslaughter - this would be an appropriate charge where Kate and Gerry McCann repeatedly left a child just under 4, clearly capable of getting up and getting into great mischief alone for lengthy periods of time. As a result the child did get into great mischief, had some terrible accident and died. This is why establishing just how often they did check the children is so important to the police case. Clearly the longer the perriod of time that elapsed in between checks the greater the degree of criminal neglect and the more likely the McCanns would be charged with this offence. On the McCanns own admission they checked the children just twice all night - at 9.05 and then not again for a further 55 minutes. If Madeleine sustained a terrible accident during this period then I think the McCanns most certainly would be criminally liable. Perhaps we might contrast the case where a mum is at home with her child and goes and answers the door - the child has a terrible accident and dies. In those circumstances the law would not hold the mother to blame. Leaving children alone for periods of some hours each night with very infrequent checks is another matter entirely. I have posted this evening an article from the Guardian which sets out how decent parents behave to prevent any harm coming to their children - Jez Wilkins and his partner. As far as the law is concerned in this case - some people have such a close relationship to the deceased that they owed them a duty of care to protect them and they failed in the duty that they owed. Parents quite obviously owe their children this duty. It has been found in other situations - in R v Wacko - a lorry driver brought Chinese into the UK in the rear of his lorry. They died through lack of oxygen - he was held responsible. In R v Adomako an anaesthitist failed to intubate a patient for 6 minutes causing the death of the patient. It was held that not having the oxygen tube connected for this length of time and failing to note the patient going blue was so negligent that he was criminally liable and he went to prison for 3 years. In R v Stone and Dobinson a relative came to live with them. She was filty and did not eat and eventually died - they were also held responsible for her manslaughter if failing to ensure proper care for her. So it can be seen the law will not allow parents to absolve themselves of responsibility for the care of their children. There are more serious forms of manslaughter - in R v Woollin a father threw his baby with extreme force onto the kitchen worktop causing its death - it was held that his conduct was so reckless that it did amount to manslaughter but he did not intend to do this - he was angry and frustrated - not finding this man guilty of murder was a decision I struggled with but clearly it came very close. So it would seem that the accidental death crime in Portuguese law equates with our gross negligence manslaughter but at that stage they were not certain that this was how Madeleine died. Now I believe they have a much better idea and expect charges to be brought in the very near future. This is to be welcomed. It has never been a question of whether or not they were responsible for the death of Madeleine, more a question of precisely how.
I am shocked by Clarence Mitchell's comment "this is another attempt to make money out of the situation". Is this not precisely what his clients have been doing? He has an extraordinary knack of always saying the most tactless and unhelpful things on behalf of his clients which have steadily alienated more and more people against them.
Viv
Maddie: Portuguese police 'came within an inch of jailing Kate McCann'By REBECCA CAMBER - More by this author » Last updated at 20:23pm on 14th December 2007
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Suspect: Portuguese police reportedly came within an inch of jailing Kate McCannPolice came within an inch of jailing Kate McCann over her daughter's disappearance, a new book has sensationally claimed.
Detectives questioning the mother allegedly wanted to charge her with "homicide with eventual intent" - a crime that allows a suspect to be remanded in custody until their trial.
But the night before she was interrogated for the second day, the public prosecutor in the case advised the detective then in charge - Goncalo Amaral - that they did not have enough evidence, it was claimed.
The revelation comes as one of Portugal's top crime reporters states that if the McCanns were Portuguese they would be in jail by now.
Hernani Carvalho suggested that the couple, who are suspects in their daughter's disappearance, only escaped custody as they were given privileged treatment because they are British.
He said: "Many people are up in arms with the privileged treatment that was given to the McCann couple. If they were Portuguese they would have been in jail by now."
His comments follow the publication of a new book called A Culpa dos McCann - the guilt of the McCanns.
It claims that police were torn over whether to accuse her of "negligent homicide" - the equivalent of involuntary manslaughter - which does not allow police to remand a suspect in custody, or the more serious "homicide with eventual intent" - manslaughter.
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The author, Manuel Catarino, editorial chief of Portuguese daily newspaper, Correio da Manha said Kate was "one step away from prison" on the eve of her interrogation on September 7 when she was officially named as an arguido.
He wrote: "The coordinator of the investigation, Gonçalo Amaral, and the prosecutor Magalhães e Meneses, discussed the possibility of serving Kate up to the criminal instruction judge for him to apply for her to be remanded in custody.
"But both men were consumed by doubts on the telephone: they did not know whether it was a case of 'negligent homicide' which did not allow remanding in custody, or whether to accuse her of 'homicide with eventual intent', a more serious crime, enough to remand the suspect in custody while they await trial.
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Happy family: A young Madeleine with her parents, Kate and Gerry McCann
"The prosecutor, with little trust in the solidity of the arguments they had to convince the instruction judge, preferred to wait for better evidence."
Goncalo Amaral, who was later sacked as head of the inquiry, brought Kate McCann in for questioning after sniffer dogs detected specs of blood in their apartment and the scent of a corpse on Kate McCann and in the hire car they rented after Madeleine vanished.
Kate McCann denied any involvement in her daughter's disappearance, claiming that the stains were caused by a nose bleed and she said that any scent of death may have come from her work as a family doctor in Rothley, Leicestershire.
Madeleine has been missing since May 3No charges were ever brought against the couple who were allowed to leave Portugal days later.
Mr Catarino also claims that police and the McCanns had a heated row about whether to release photographs of Madeleine after she disappeared.
Police were said to fear that distributing the images may put her life in danger as any abductor would panic and kill her, but the McCanns insisted a publicity campaign was their best hope of finding their daughter.
But yesterday the McCanns' spokesman Clarence Mitchell dismissed any suggestion of a row and he hit out at the new book.
He said: "This appears to be another shameful attempt to make money out of the situation.
"I would refer any fair-minded person to the fact that neither Kate or Gerry have been charged with any offence and there is one good reason for that - there is no evidence because they are not involved in any shape or form in their daughter's abduction
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