18 Dec 2007


Hi All,

I note that it is quiet on the Daily Express forum today other than the sudden appearance of "Arch Rationalist" and his /her repeated soundings off which display a hopeless lack of knowledge of criminal law and procedure. Even the name chosen displays a remarkably arrogant and over-inflated sense of self - just like Gerry McCann! It is also amusing that this arrogant character suddenly appears whilst the usual gruesome twosome on this forum "Rosiepops and Alroy" fall strangely silent. This is about as pathetic as all the other spin we are subjected to.

As someone with a proper legal education and having actually attended police station interviews in the UK I would like to comment on one of the opening posts made by "Arch Rationalist" below. I will put my own comments in inverted commas - I would not like to be confused with this character!


18.12.07, 1:09pm
Well, apart from their layers, that is.....I presume you agree with little concepts like Due Process?

"Due Process is not a phrase used in UK law. It is of course habitually used in American progammes like CSI that are repeatedly played on UK TV and unfortunately mean that certain viewers believe they have become "experts" having watched these programmes! There are some very marked and fundamental differences between UK and American criminal law and procedure!"

Not that is seems the PJ does; anyone note this from Sunday's "TImes" article?"...During Kate’s interviews with the PJ in September, just before she was declared an arguido, she was separated from her lawyer, and he was presented with a long list of factors pointing to her guilt, including entries from her entirely innocuous diary and a passage they believed she had marked in a Bible (which in fact had been given to her and marked by the original owner). The PJ also told the lawyer there was a 100% DNA match with Madeleine in the car and showed him a document that appeared to prove it. Possibly, this was the document showing Madeleine’s control sample of DNA.

"What generally happens in the UK is that a suspect is arrested by the police or called in to assist in enquiries along with their solicitor. Quite often the suspect is coerced to attend voluntarily with the threat they will be arrested if they do not. This is comparable to what happened with Kate and Gerry McCann. "

"As we know the police immediately suspected Kate and Gerry because there was no evidene of any abduction and the stories of the TAPAS were incoherent and inconsistent (see my posts K&G are liars) To any trained police officer this only means one thing -they are lying. "

"By August the police had evidence of the UK dogs. Kate and Gerry were getting very scared - Kate furiously washed CuddleCat (too late as the dogs had smelt it a few days before) and K&G were telling the police they wanted to go home. The police responded that in due course they would want to conduct further formal interviews with them and they agreed to stay. "

"When the police also had the forensic results back - a large quantity of hair with a 100% match to Maddie and too much to have come from transference, together with DNA with an 88% match to Maddie extracted from suppurating body fluids from a corpse in the tyrewell, they were immediately called back for the formal interview. This is hardly surprising as the police had clear evidence of a dead Maddie being in the back of the hire car. Hair does shed from a corpse at a greater rate than from a living person. "

"It is entirely standard procedure BEFORE any interview takes place for the solicitor to go and have a chat with the police to find out how damning the evidence is against the client. It would have been at this stage that the police showed him the list of evidence against her. If a criminal solicitor did not go and do this before the questioning commenced he would be guilty of extreme negligence towards his client. This is because he would not be able to warn the client what they face and whether or not to just admit the case against them. If the evidence is overwhelming this is the best advice a solicitor can give because it would go towards a successful plea in mitigation. Sentences are dramatically reduced for someone who has immediately co-operated with the police and demonstrated remorse for their conduct by admitting and apologising. Clearly the State can also be saved huge investigation costs and so the defendant deserves credit for this. The client does not of course have to accept this advice in which case the solicitor is likely to say well the evidence against you is very damaging but perhaps the best thing you can do is not get yourself in even deeper by trying to explain the inexplicable. In UK law once a suspect is arrested they have the right to remain silent and similarly in Portuguese law once a suspect is made an arguido they have a similar right. Kate's interview was split in two halves - the second one she was an arguido. At this stage the police were fully entitled to question her as a suspect rather than a witness and the questions were no doubt very accusatory and tough. She utilised her right to silence in relation to some of those questions. Solicitors ususally give their client the nod as to whether or not the particular question should be answered. "

"All solicitors have a duty to warn their clients in UK law that utlising this right can have disastrous consequences for them and indeed the police also have to warn them when giving the caution which is a must prior to questioning. They are clearly warned that any failure to answer questions or explain matters put to them can be taken as an inference of their guilt at trial. The right to silence was dramatically curtailed in UK law in the Criminal Justice and Public Order Act 1994. There was a lot of revolt against this but the scales really did need to be turned in favour of the victims of crime. Why should guilty people get away with it by remaining silent? Innocent people wrongly accused literally bubble over with explanations - they are so affronted and distressed. It is this failure to do so and hence recover their daughter who they so vehemently claim was "abducted" that has left us all in no doubt of their guilt. "

"The suggestion that an eminent Portuguese criminal defence lawyer could have been confused betwee actual results and a control sample is positively absurd and is yet another example of the extent to which certain people are prepared to go to ridicule Portuguese professionals in a pathetic attempt to exonerate the McCanns. I note also the comment the McCanns thought their own solicitor believed in their guilt. How could this poster know that?????? As I have explained clearly intelligent, educated solicitors will have to accept overwhelming police evidence and advise their client accordingly. Whether the client is minded to accept that advice is another matter! It is not difficult to imagine that Kate and Gerry McCann believe they are infallible and with sufficient lawyers and backing can outsmart the Portuguese authorities. I do not believe that they can. If the evidence is damning no lawyer can save a guilty client and I am glad that certainly in the UK and Portugal at least this is the case. What happens in the US is another matter - Oj and Jackson clearly did buy themselves out of trouble. I do not think it is any coincidence the McCanns have shown such interest in the US - here they see a possible way out!"

The McCanns feared even their own lawyer thought they were guilty. Kate was asked by the PJ to explain the dog alerts by her car. “You’re the police,” she said. “You tell me.” Kate asked the PJ: “Are you trying to destroy our family altogether?” Gerry was asked the same questions the next day but could not answer. (Sometime earlier a Leicestershire officer had said to him, just stick to what you know.) Why did the dogs only alert next to material belonging to the McCanns? The officer was brandishing the dog-handler’s report. And then: “Your daughter’s DNA, your daughter Madeleine McCann, how do you explain that?” “Show me that report,” Gerry asked. “No. This is the report that matters – with the dog.” Of course, they could not produce a DNA match because there wasn’t one. ..."Now, for what it's worth, removing a Lawyer from an interview is only permissible here, under the Police and Criminal Evidence Act, if the Lawyer is behaving in such a way that it's making the interview impossible. And the removal must be authorised by a Superintendent, and reported to the Law Society.It seems the rules are laxer in Portugal.....any officer in the UK doing what the PJ did would be subject to disciplinary action, and would have caused the case to be thrown out.

"Again I would pose the question - how on earth does "Arch Rationalist" know precisely what was being said in these interviews? He was either there or knows someone who was!! I find exact reporting of alleged comments made in this way on the DE forum by this individual quite extraordinary and I would say this individual is a very, very desperate and worried person. Finally, a lawyer can remove himself from an interview at any stage by saying to the police "can I have a private word with my client to take instructions on the matters you have just raised which you did not advise me of prior to the interview commencing". The procedure outlined for removing a lawyer outlined is extremely rare and as far as I know has only been used a couple of times when solicitors have actually sent an unqualified representative to the police station who was behaving in a hopelessly inappropriate and unprofessional manner. Raising this is a complete "red herring"."

• Posted by: Arch_rationalist





alsabella said...

The McCanns' first lawyer, which accompanied to the interrogations and which CONTINUES TO BE their attorney (I am assuming that if they really thought he believed them guilty they would change lawyers and they did not) is the Portuguese Bar Association's Human Rights Commission President.
If anything illegal or prejudicial to the McCanns human rights was going on, he would most certainly not allow it and immediately denounce it!
Rather than being taken aside, what I would bet happened was that he requested to speak, alone, with one of more detectives, to try to figure out the best way to go.
While this was happening, Kate was most certainly not being interviewed. It was probably during these moments that she did the sneeky (and I am not sure it is not illegal) texting to her buddies in the UK informing them of what was happening inside the police station.

felicity said...

Hi Alsabella

It is the duty of a solicitor to give honest and proper advice and I believe this is what their solicitor has done. There would be no point changing their solicitor because he would say just the same. They are experts at analysing the evidence. I am sure you are right he did exactly the same as UK solicitors and had a private word with the police so that he could properly advise and assist them. Also, as you say, I do not think Kate would have been doing anything unlawful by texting but it is odd behaviour to want to be putting information out like that! I have already posted about how odd it was that Philomena chose to provide false information on Sky News that Kate had been offered a deal. The amount of lies and misinformation they provide is quite bizarre!

Thanks again for your very helpful input - clearly the McCanns get themselves the best lawyers in both countries but I dont think that will save them! What happened to the legal action for defamation against a Portuguese paper that had the cheek to honesty report the police thought they were involved? About as much as all of Ludicrous threats to sue I suppose - absolutely nothing. Even in the US you cannot sue someone for speaking the truth much as it may seriously upsest and annoy you LOL

Luv Viv xxxx