Goncalo, pictured above in contemplative mood gives ones of his frankest and best ever interviews and yet somehow a lot of what he says is ambiguous and could be interpreted in different ways. There was a lengthy argument on 3 As tonight, did he mean the British or Portuguese labs destroyed hair samples when conducting various tests on them, but does it matter, if the tests were inconclusive and the hair is no more, there could not have been very much hair to test. Do we want a continuing debate about who has shelved this case, given the clear indications the case is not of course shelved for the McCanns in UK where they can most certainly be brought to justice for their crimes. Almost like he wants to provoke continuing discussions and keep people wondering. He now alludes to the possibility of sex offending, which I have been alluding to for the last 12 months, refers to other options besides death in the apt, confirms PJ has read the texts messages but then goes on to say..later on when they became less interesting, so I am left wondering did he read the vital ones or just the less interesting ones? What is very clear he states he suspected the McCanns from the very first hour. Well indeed, just who were they trying to kid!
I can understand his point about the text messages, they happened the day before the apparent crime, when I would say it was still at its preparatory stage. This is not an issue of the judge needing to backdate consent for a tap at all. It is about him authorising the gathering of vital evidence. The PJ could hardly have applied to incercept Gerry McCanns text messages a full day before the crime was even reported to them. But I believe the answser to the Judge's obstruction here is that he knew British Police would have no difficulty accessing phone records and no difficulty in getting a British court to agree that evidence is admissible evidence against Gerry McCann when it comes to any criminal proceedings. Not once in this interview does Goncalo touch upon the issue of the case being dealt with in UK but in his book he confirms Portugal does not have jurisdiction to deal with the issue of fraud. Whether the McCanns were involved in her kidnapping, sexual abuse, fraud, or whether they were involved in her homicide and fraud, the fraud is a constant and means Portugal could not deal with this case. The simplest of reasons for that, is the fraud originated in the UK! The whole crime initiated in the UK. It is abundantly clear Gerry took four postcard sized pictures of Madeleine of two different images to ortugal with him and when the GNR requested passports and any photos those were handed over. Yet another fatal error from one who likes to think he is very clever. Not clever enough Mr McCann. The only problem both Portuguese and British Police have constantly faced is what, precisely, did you do with your little girl after your carried her down to the beach, where did she go, was she alive, was she sexually abused, was she dead? Those questions have to be answered. The Police can move no further until they do, and if Maddie is still alive, they will be using all means and yes probably including SAS etc to try and recover her. Then they will be charged. Gerry McCann has recently said he wants to co-operate with authorities. I honestly believe he would rather the Portuguese dealt with him and Kate because in certain respects there will be less admissible evidence against them. Is this why he needs to keep seeing his Portuguese lawyers and is this what Goncalo gently alludes to? Gerry McCann is one desperate man, but there is no escape for him, his wife, David Payne, Russell O'Brien and others. Jane Tanner you should remember what happened to Maxine Carr, she was a long way away when Huntley murdered but for lying and covering up, she got four years, think about it Jane, just think about it...you tell the truth and you may be a lot safer!
23 February 2009
Exclusive Interview with Former PJ Coordinator Gonçalo Amaral
"The political will does not exist; there is no political will to reopen at the moment, because if there was a political will it would mean that there was a political will before the process was closed, in order to continue the investigation. And when a process of this type is archived, with so many diligences to take care of, with so many facts that needed clarification, that’s because there was no will to continue the investigation and that was clear when we left the investigation on the 2nd of October ." Gonçalo Amaral in Vigo, October 2008
video to follow
A collaborative interview by Duarte Levy, Joana Morais, Astro and Mercedes
All Rights Reserved © Joana Morais 2009
Transcript & Translation
Duarte Levy: You have now seen that the Constitutional Court has authorised the use of phone taps in the [football corruption] “Golden Whistle” case. Do you think it would be possible to see the same happening in the McCann case, taking into account that the judge didn’t authorise access to the registers and taps that were carried out at that time?
Gonçalo Amaral: The issue is not the permission to access the phone taps. He didn’t authorize the access to information concerning the text messages. That is related to a bureaucratic matter. When those text messages took place, there was no phone surveillance. The understanding of that judge… to access that information, that data, there would have to be a duly authorised phone tap first, it’s a procedural matter. Some think it’s not like that, others have a different understanding, the Public Ministry did not appeal the decision of the Appeals Court, and therefore the case was tried and closed.
DL: Did the PJ ever read the contents of those text messages?
GA: Yes it did. Later on, when it was not very interesting anymore. What was at stake was the situation of the national service providers.
DL: During the first phase of the inquiry, after the disappearance of Madeleine, the PJ offered the McCanns a mobile phone with a Portuguese chip that the McCanns never used. On the other hand, they used two phone numbers that were supplied to them by Portuguese friends. Were those phones under surveillance?
GA: That phone that was offered to them, was the one that was tapped, right? That phone was for them to receive calls, this was during those diligences that were related with possible extortions, from the Dutch and the Spanish and it was to find out, for them to give that number when necessary, when they were asked for a contact number and a way to listen into the conversation with the possible abductor asking for money. It’s a perfectly normal procedure. As for the other phones that they may have used, I do not know about that.
DL: In the case, during the first weeks, in some reports, in some cases similar to this one, with the same resemblances, often the parents are advised not to publicise the case, based on the principle that this publicity can place the child’s life at risk. Were the two first press conferences that were held by the McCanns carried out with the agreement, the authorization from the PJ?
GA: No. The same happened in this case. They were advised not to publicise and to be careful with the press. And the person who did that right away wasn’t even from the PJ, but a member of the English social services, who had been working in that area for 25 years, working with endangered children, with abuse situations, who was on vacation in the area, in Praia da Luz, who on the very morning of the 4th [of May] contacts the couple and alerts them to that. But she is thrown out of the house, we can say.
DL: At which point in time did you consider the McCanns to be suspects?
GA: Let’s see: In terms of suspicion, from the very first hour. The procedures in this type of case are to find out who the persons are, who the missing person is, in this case the missing child, and to find out all the antecedents. And now the first question that is asked from the English authorities, from the British police forces, is that one. Who were the parents, that group of people, and who was the child, was she the target of abuse, was she not. Then, it evolves, it’s a formal procedure, its general for all cases and when the first statements are made, that’s the day when we start to suspect that something is wrong. Things evolved, they were suspects until we reached the work of the English dogs and then the suspicions ultimately became indicia [evidence].
DL: During that whole phase, and until you were removed from the field, the English policemen that were in Praia da Luz, how was the cooperation with them? Was there actually cooperation?
GA: Yes. The cooperation was very tight, very intense; there are no doubts about that.
DL: So which part of the English authorities originated that blockade?
GA: That is certainly, and it was, coming from the top of the English hierarchy.
DL: The English policemen were invited to sign a confidentiality document. At the PJ, is that a normal procedure?
GA: No. And it’s not normal with the English police, either. It is normal in cases with the secret services, and that document is signed right at the beginning. Now with normal police, doing criminal investigation, that doesn’t happen.
DL: Concerning participations from outside of this case, it is normal for the ambassador, this has happened before in the Algarve, unfortunately, other cases involving British citizens. Is it normal for the ambassador to travel there?
GA: No. Neither in British cases nor non-British cases, they don’t have that responsibility. What is normal is for the information to be relayed by the consulate, that is what happens and only then the ambassador may come. And now we think that the ambassador came right away because of those initial suspicions and the first requests that were made which indicated that we suspected the couple, and he intervened in a manner that is not normal. He should have stayed in Lisbon, at the police’s National Directory, speaking with the National Director and not on location. And him leaving Portimão then led to a communiqué that the PJ somehow was “committed” to the abduction theory.
DL: Concerning other individuals that were connected with this case, the appearance of Brian Kennedy, namely during the meeting that he held with Murat, did the PJ ever find out about the purpose of that meeting?
GA: I was not in the investigation anymore during that phase, I had already left, but I know that this gentleman has gone as far as meeting people from the PJ after I left, which is not correct. Even more so because that gentleman brought certain Spanish detectives with him. That behaviour from the PJ’s senior officials in not the most acceptable one.
DL: Concerning not only this case, or other cases, how seriously could the events of the Madeleine case affect future cases?
GA: Well, in this case, like in all other cases, they affect the future [cases]. We have to learn from our mistakes and from the difficulties that we experienced. For example, in an earlier case, from 2004, the so-called “Joana case”, a disappearance as well, us investigators requested for the National Directory of the Police to intervene in a manner that would produce new regulations, new procedures for this type of inspection, to treat these disappearances. For example, there’s a very important issue. The disappearance in itself, when you go to a police station, or to the GNR or to the PJ, for missing persons, there is no specific competence for missing persons. There is no process for that. We have to investigate everything. The disappearance may or may not be related to a criminal situation and the issue may be whose competence is this? This has to be defined very quickly, we have been talking about that for a long time, over many cases and so far, nothing has been done about that. To define the competence from the outset. In all cases, the competence should be, at least in children’s cases, the PJ’s. Because many times what is at really the issue is that the disappearance has the parents’ intervention, in situations of divorce and there is a need and they take the children abroad, because it is the PJ that has the competence and the contacts on an international level, namely with Interpol, so the PJ dominates those channels for international cooperation, and from there, right away these cases should be the PJ’s competence, but that has not been defined. This leads to an initial intervention by the criminal police force that is informed of the disappearance. It’s always an intervention, almost always a disastrous intervention, because the more time goes by, the more pieces of evidence, opportunities to collect evidence are lost and only at a much later moment in time the PJ appears. When one thinks it’s an abduction, normally that’s what happens, it’s an abduction, it’s the PJ’s competence, nobody mentions a homicide or a voluntary disappearance, what is mentioned is abduction then it’s the PJ, and when we intervene it’s at a latter moment.
What happened in this case of Madeleine, we were called almost when the disappearance took place, only a few hours later, but still things went wrong. Why did they go wrong? Because there is a lack of said procedures concerning these situations. And this sensibility that many investigators have, to understand that an abduction is actually the theft of a person, but it cannot be handled like any theft. For example, all possibilities must be kept open, from a voluntary disappearance to, effectively, abduction, or homicide, or the death of the child. Therefore, it is necessary for the PJ to create this very quickly, I think they are doing that, I don’t think actually, I certain of it, there is already a commission that has been nominated to do that, to define those rules and those procedures for us to act. In my book I even mention it would be enough to follow the English, what the British authorities have concerning these situations. They have much more cases in situations of this type, don’t they? With the number of times that this happens in Portugal, maybe it doesn’t lead to, it hasn’t been that essential element that would lead the Police’s National Directory, or the Ministry of Justice to care for it, to feel the need for these new procedures. That’s where, that’s the manner in which it so often interferes. When there is a likelihood, the PJ acts. The PJ cannot be measured by one case. A PJ is measured through its entire history which is vast and includes many success cases, it is in fact one of the most successful police forces, on an international level, and also in this area of missing children, a very high success rate.
DL: In the Madeleine McCann case, who made the decision to send the analyses to Birmingham, to the FSS? In Portugal there is the National Institute [Forensic Medicine].
GA: This is the question. At that point in time, we were already feeling the pressure of the British media, we felt incompetent, that was what they said, and anything that we might do, would be questioned. It was a political decision by the PJ, but which was understandable at that point in time and it is still understandable now because it was a way of compromising, an attempt to compromise a British institution with the results that were to be found. If you ask me now if I would do the same today, I don’t think I would. Maybe there would be another laboratory, or at least, I wouldn’t have sent all the samples to that laboratory. But I can also tell you that at the IML, the Institute for Forensics Medicine, there was not the full capacity to carry out all of these tests, namely the low copy number analyses. Only in England, at this laboratory or at other laboratories outside of the country. We could have chosen another laboratory, but we opted for this one. It was a disaster. The decision was not disastrous; it was the tests that were disastrous to say the least.
DL: But do those samples still exist?
GA: No. They have all been destroyed. From the hair samples, it’s all been destroyed. There is a situation that is reported that is the following: there are several hairs, lots of hair is found in the car boot, in the car that was rented 23 days later, a comparison is made in terms of colour and colouration where they say yes indeed, these could be from the little girl, but then the laboratory says that they don’t manage, it doesn’t have any roots, they cannot define the DNA, they cannot define whether it’s from a living or a dead person, and when a team of Portuguese investigators go to the lab, accompanied by a Portuguese scientist, Dr. Francisco Corte Real, they ask for that hair, they went as far as holding that hair in their hands. And they had that hair, duly stored, that package with the hair, but then a report from the FSS appears in which they realize that they’d better keep them, and that later on they destroyed them in an attempt to define the DNA, or to discover whether it was from a living person or not, and they destroyed all of that hair. It’s a bit hard to understand how in order to define the DNA, or to carry out another test, such a quantity of hair has to be used, like there existed in Portugal as well, and then it wasn’t possible to perform analyses of other types, namely the possibility of sedatives that the little girl might have ingested or was forced to ingest.
DL: Among the English officers that participated in this case, there’s Stuart Prior, to what extent can we today, after you left the case, with everything that the press has already published from part of the Public Ministry’s process, to what extent can we say today that Stuart Prior cooperated in this case, or not?
GA: Stuart Prior initially appears, he appears as number 2 or number 3 of the British police. The senior officer…, who had a meeting with us, and the first person to come to Portugal on a personal level is him, he always had lots of contacts and interest in the investigation. Stuart Prior appears during a phase, later in Portugal, first it was in England. I particularly wouldn’t like to be in his shoes, with the options that he made in terms of the investigation, and not only that, in his political knowledge. He is a good policeman, he cooperated vastly with us, but it was him who said that he had arrested people in England with much less. So he probably knew the value of these indicia that already existed, but as to whether he made good options, only he can answer those questions.
DL: Last question, at this moment in time, in order to reopen the process, what elements are needed, or what could reopen the process and to what extent do you think that there is a political will in Portugal to do it?
GA: Now a process of this kind that is archived like this and remains waiting for better evidence, it needs just that: new elements of evidence, which means, new data. There are situations in the process which in our opinion have not been taken into account, which have not even been read or became known to those who had the duty to know it. Namely that statement from the couple of English doctors who mention a vacation in Mallorca, those situations where there were gestures and words indicating the existence of a child molester within that group of people who were on vacation and not even that was taken into account, because they didn’t read it, they had no knowledge. I cannot believe that they read such statements and passed over them.
If eventually those persons would make a new statement, again, with other details, certainly there are details that they didn’t remember, the process might be reopened. But also other data, other situations that might lead to the reopening of the process, namely someone from within the group may come to talk about something, for example, the invention of the surveillance scheme; it would have to be reopened. There are situations, like the FSS’s work, if some report appears, which might exist, that in fact there were not only 15 alleles but more than 15 alleles from the little girl’s DNA profile, situations of this type have to lead to the reopening of the process.
The political will does not exist; there is no political will to reopen at the moment, because if there was a political will it would mean that there was a political will before the process was closed, in order to continue the investigation. And when a process of this type is archived, with so many diligences to take care of, with so many facts that needed clarification, that’s because there was no will to continue the investigation and that was clear when we left the investigation on the 2nd of October . That will was lacking, what was necessary was to archive the process, there was a strong will to archive the process. Now, it will be very difficult for the process to be reopened but every citizen has a word to say and there are ways to intervene with the Attorney General in a manner that the process is reopened
by Joana Morais
Law for Journalists Conference
Keynote address by the Attorney General
I thank the organisers of this conference for the invitation to speak to you today.
I am very pleased to have been able to accept because it gives me an opportunity to talk to you about my functions in relation to contempt of court and the responsibilities of the press in relation to the administration of justice. I know that for at least some in the media world my activities in this field have not been welcomed. I hope that what I say today will enable me to dispel some of the ideas I have seen suggested and for you to understand the concerns I have from time to time.
On the principles that apply in this field I doubt there will be much between us. The area of contempt brings together three very powerful and important rights: the freedom of the press; the defendant’s right to a fair trial and the right of the public to be informed and to have an effective and fair system of justice. But it is the application of these principles, the interaction between them, and the need to strike an appropriate balance, that makes this area so difficult. I am bound to say as well that how that balance is struck in the press does on occasion cause me a good deal of concern. I believe that I am not alone in that – some lawyers are concerned for example that these days we may see reporting about the background of the suspect at the time of the arrest that in previous years was usually only seen after a conviction. I hope to explain why it is important to continue to exercise a degree of restraint in the practice of responsible journalism which I know is the objective of all here today. .
Let me start by saying a little about each of the three rights I mentioned.
Freedom of the press
Lord Windlesham once said that periodic rows between governments and broadcasters were the genuine marks of a free society. I agree wholeheartedly. No-one wants to live in a country where the press meekly repeat the words put into their mouths by the government of the day. It is right that journalists take Ministers, and others in positions of power and leadership, to task about what they’ve done, and what they said they would do. This is vital. The press, on behalf of the public, have a key role in scrutinising government actions and inaction. They are able to place information and analysis before the public; assisting them in acquiring and sifting the information necessary for the public to hold the government to account in the ballot box. A democracy worthy of the name needs an informed electorate. You will take all these as truisms. A free and active media therefore is essential to democracy. We have a media of high quality; envied across the world for its professionalism and independence.
And the media make a positive contribution to the administration of justice. They do this by the fair reporting of the trial process, and by disseminating to the public information and critical analysis about the operation of the criminal justice system. And the press also provide valuable assistance in connection with investigations by prompting witnesses to come forward or, in the case of a “man-hunt” situation, helping the police to apprehend a suspect.
Court reporting gives practical effect to the legal principle that, in the determination of his civil rights and obligations or of a criminal charge against him, an individual is entitled to a public hearing. In this sense the media are, in the words of the then Master of the Rolls, Sir John Donaldson, in 1988 “the eyes and ears of the public”. Or as more graphically put by Bentham “In the darkness of secrecy, sinister interest and evil shape have full swing….Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.” 
So the media have an important role, in the public interest, in relation to the administration of justice.
The value of this is recognised by the right to freedom of speech. Of course this exists for the benefit of all and can be exercised by all. But it has a particular resonance for the work of journalists.
This right is enshrined, as you don’t need me to tell you, in article 10 of the European Convention on Human Rights. This has been accorded particular importance by the
But freedom of speech - while of vital importance - is not always paramount. It is not a trump card. Like other freedoms, it may be subject to certain legitimate restrictions. There will be occasions when it must yield to competing public interests of various kinds – among them national security, the maintenance of public order, the restriction of obscene or offensive material, or the protection of the rights of others. Even in a democracy the boundaries of the right to free speech are often tested in relation to journalistic freedom.
The right to a fair trial
The second right I mentioned was the defendant’s right to a fair trial. Again you are all well aware of the centrality of this right to our system of justice. It is difficult to overstate its importance. It is the bedrock on which our system stands. It has long been a fundamental principle of our criminal law that “the court is under a duty to ensure the accused a fair trial”. This common law principle is mirrored in the provisions of article 6 of the Convention.
This right goes to the heart of the judicial process and the chief object of the courts. That is, to secure that justice is done in the case before them. To secure that on occasions it will be necessary to curtail the rights of others to be present in court or to be informed of the proceedings.
Right of society
That leads me to the third right I mentioned. The right of society to be both informed of court proceedings and to have an effective system of justice; to have crimes punished properly and fairly.
I have already referred to the role of journalists in relation to ensuring the necessary publicity and openness of court proceedings. But the corollary of that is the responsibility of journalists to ensure that their reporting of investigations or cases does not frustrate the public’s equal right to have crimes punished; to have the guilty brought to justice as well as the innocent acquitted. Cases where a journalist goes out to report a crime or investigation with this intent are rare. But unfortunately cases where this is the effect do occur. In those cases, the public is denied the right to an effective system of justice – something which in any decent society they are entitled to expect. It also denies the rights of the victims of crime to justice. Paradoxically, often it is the victims of crime on whose behalf journalists claim to be speaking when these problems arise.
It is crucial that a balance be struck between these rights. It is the law of contempt of court, including the Contempt of Court Act 1981, by which our legal system principally seeks to hold the ring between these rights. This is not the only mechanism of course. The Press Complaints Commission’s Code also has a role to play.
I don’t pretend that striking the correct balance is easy. And I am aware of the commercial context in which you are operating. We now live in a world of 24 hour media; with multiple competing outlets. Thanks to the web, news stories can travel the globe with the click of a button. And, fed by the huge media industry, the public’s desire to know as much as possible, as soon as possible has grown – including where there is any suggestion that criminal offences have been committed by a celebrity. The commercial pressure to secure the story rather than let a competitor do so must be intense.
But these difficulties and pressures notwithstanding it is vital that the balance is struck correctly. The law on contempt of court is not a mere technicality dreamt up by lawyers with no relevance to the real world. Where prejudicial reporting causes a judge to delay a trial this affects victims, witnesses, defendants and professionals in the criminal justice system and the court system itself, both in terms of delay and cost to the public purse. There is also a real human cost to witnesses such as victims of serious sexual or physical abuse including children when they are asked to give evidence for a second time caused by the need to move a trial or wait for a re-trial. In the worst instances a judge may conclude the publicity has been so prejudicial that no fair trial is possible. In such cases justice is denied to victims and the public.
Role of Attorney General
Let me turn to my role. As Attorney General my function in this area is to act in the public interest to ensure the fair administration of justice. Before looking at how I exercise this function it is important to be clear on a number of points.
First, when exercising this function I am not acting as a member of the Government. I am not taking a Government decision nor acting for it. I remain accountable to Parliament for the exercise of these functions. But my role in relation to contempt is not about the Government taking action against the media. It is vital that in exercising this function the Law Officers act, and are seen to be acting, with absolute adherence to the principle of independence and of fairness. Nothing could be more damaging to public confidence in the administration of justice than a suspicion that my powers in relation to it were exercised on political grounds. So what I do in this field is entirely a matter for me in the exercise of my public interest responsibilities. I do not discuss with ministerial colleagues whether a particular publication causes concern; nor whether to take any, and if so, what action. They bear no responsibility for what I do in this field. So I reject any suggestion, for example, that when I do take action it is the Government acting to suppress the media.
Second, my role is not to act as a censor, nor as an arbiter of taste and decency. My personal views on such matters are irrelevant to the matters I must consider.
Third, it is no part of my function to consider whether to take action to protect the reputation or privacy of individuals, however famous. My actions recently in seeking to prevent the publication of the identities of the Premiership footballers accused of rape in a
I interject that the Government has recently commented on the policy issue of the anonymity of defendants in rape cases. This came up in the Sexual Offences Bill. The Government was not convinced that legislating now was the right course. But on Third Reading the Home Secretary made it clear that he hoped that the steps announced by others, including the Association of Chief Police Officers stiffening of their guidance, will make a difference. If it doesn’t, he was clear that the attitude of Parliament was such that legislative steps would be taken.
So, having said what my role does not entail, let me say what is does involve. In taking any decision in relation to the instigation of proceedings for contempt, I am acting to ensure that justice takes it proper course. My task is to identify where the public interest lies. This may mean doing what is necessary to prevent distortion of the trial process in criminal cases, by preventing publication of material that might prejudice a fair trial or commencing proceedings where the prejudicial publication has already occurred.
Let me give you a feel for the volume of cases I am talking about. This year over 70 new matters sufficiently serious to justify my office investigating them further have been referred to me. And this is not 70 reports or articles, some of these matters will concern more than one report, more than one outlet. I consider that a disturbingly high number. These come from all quarters – from the judge hearing the case, from the defence or
What kind of reporting can prejudice a trial?
What I would like to do is to give you some indication of what it is that causes me concern in relation to these reports. It’s not my intention to provide an exhaustive list of all situations in which reports may amount to a contempt. Apart from anything else, no such exhaustive list could be compiled. What is more in setting out these issues I am giving instances of what I believe the law is concerned about. It will, it is a truism to say, always be in the final analysis for the Courts to say what is contempt and what is not, even though I would expect them to have regard, at the least, to my views.
First, reporting that asserts or assumes, expressly or implicitly, the guilt of the defendant. This might be read in no more than a single headline or alternatively in a lengthy, detailed rehearsal of the evidence followed by prejudicial or biased commentary before or during the trial. Courts have warned that no matter how obvious the facts or how inexplicable the conduct of the defendant may appear, no assumptions can be made as to the course a trial may take or the defences that may be advanced. As has been noted, the law books are full of cases which appeared at one time open and shut but turned out to be anything but.
Second, reporting that asserts or assumes, expressly or implicitly, the outcome of a preliminary issue in the criminal proceedings to be determined by the jury, such as the fitness of a defendant to stand trial.
Both of these issues are of great concern to me in the trial of Ian Huntley and Maxine Carr. I do not want to say too much about this trial as it still on-going and I am still actively monitoring the reporting of it. At times some of the reporting of the investigation and trial has been quite frankly unacceptable. I am sure it is right to remind ourselves that the consequences of prejudicial reporting may not only be to the process of justice or to the legitimate interests of the defendants in a criminal trial but of the victims of crime too.
To return to examples of reports which are a cause of concern, I would identify thirdly those that contain information which may hamper or prejudice the police investigation, for example with regard to the gathering of evidence, or prejudice subsequent proceedings, such as the publication of a photograph, drawing or likeness of a suspect or defendant before it has become absolutely clear that identification is not and will not be an issue in the proceedings.
For example, if a suspect's photograph is published he might justifiably refuse to stand on an identification parade, which in turn may prejudice the police investigation and may weaken the prosecution case. Alternatively, even if the defendant does stand on a parade, there might still be a defence application that the identification evidence should be ruled inadmissible as the court could not be sure if the witness identified the defendant from a memory of the incident or a recollection of the photograph, article or television report. I have already mentioned my action in relation to the Premiership footballers’ rape allegation.
Another example would be information and/or images published as part of an appeal issued by the police, which are repeated after arrest and/or charge, where they can no longer be said to be of use in finding a wanted suspect. The repeated printing or showing of such images once the need for assistance has passed could lead to a risk of prejudice.
Fourth, reports which contain a detailed account of the circumstances leading to the criminal charge(s) in question. These may amount to a rehearsal of the evidence, the defence(s) that the Defendant may raise and the issues which the jury may have to decide. Juries should decide the guilt or innocence of a defendant on the evidence they see and hear in court and not on the basis of what they might have seen or read in the media.
Fifth, statements and comments presented as or based upon assertions of fact in advance of the evidence and any legal submissions to be presented by Counsel for the parties to the proceedings. A statement in an article could have that effect.
Six, material which would be likely to be inadmissible in a criminal case but which may be retained in the memory of a potential jury member, such as the fact that a suspect or a person arrested and/or charged has a previous conviction. Often this is can give rise to the most serious prejudice. This category would include reports of the previous criminal activities of such a person, alleged or proven, especially if they have similarities with the charge in question.
The contempt action following the collapse of the first trial of the
Seven, reports containing details of other proceedings in which a defendant or witness is or has been involved. This can influence a juror’s view of the evidence on key issues in a trial as well as his view as to the credibility of the defendant or witness.
An example of this arose in the course of a rape trial in October 2001. The defendant was charged with two separate charges of rape, one of which went to trial that October. The jury had retired on Friday, but could not reach a verdict by the end of the day. The members were sent home until Monday.
Over the weekend, a local radio station broadcast a very short item indicating that the jury would shortly return its verdict in the case, and went on to indicate that the defendant had also been charged with a second rape, after a incident two years earlier. What the broadcaster did not make clear was that there were separate trials. Up until this point, the jury would have thought the defendant was only facing one allegation. They would not have been told during the course of the trial that the defendant faced a similar but completely separate allegation and there was every chance that this information could prejudice their view of the defendant’s character.
When the matter was brought to the judge’s attention on the Monday morning, he asked the jury whether members had heard any broadcasts about the case. One juror had, and when she was further questioned it was clear she believed the defendant had committed a rape before. Given the obvious prejudice, she was discharged from the jury. The judge allowed the case to continue and eventually the remaining jury members reached a 10-1 guilty verdict.
This is a good example of how a short, local broadcast could have had quite serious consequences. As it happens, after investigation I was satisfied that the radio station had made an inadvertent mistake and had not foreseen the possible consequences. As a result of strong assurances from the radio station concerned that they had taken positive steps to ensure this sort of mistake did not happen again, I decided that it was not in the public interest to commence contempt proceedings.
Eighth, reports containing comment or information about witnesses, which may undermine their integrity and the credibility of their evidence. The assessment of witnesses is an important the function of the jury and should be left to them.
And finally, I would like to mention reports which straightforwardly breach an order restricting what may be published. I consider such breaches occur too frequently. Over the past year, I have received a dozen complaints involving breaches or alleged breaches of reporting restriction orders.
Of course, the statutory restrictions which apply in relation to the anonymity of victims of particular types of offence are there not only to protect the privacy of individuals who have been victims, but also to reassure other victims that they can come forward safe in the knowledge that their identity will remain secret.
Let me tell you of a graphic example of a breach of a restriction of this sort. A man was watching television at home, with his wife, when a reporter on a
BBC regional television programme broadcast, in clear breach of the law, the name and age of a victim in an historic sex abuse case, details of his complaint and details of the evidence he had given. Specific reference was made to the fact that it had been suggested to the victim in cross-examination that he had made up the allegations in order to get compensation. The man watching the broadcast was the victim. He had never told his wife of what had happened to him many years before and she did not know that he was giving evidence in any such trial. The broadcast had a devastating effect on his life, revealing to his wife and children the secrets he had until then kept to himself. It not only put intolerable strains on his marriage but also threatened the completion of the trial as he hesitated over returning to complete in court his evidence now that his promised anonymity had been taken away. The BBC pleaded guilty and in December 2001 was fined £25,000. The journalist responsible was also fined.
Put simply, this was a case of human error. Despite her experience and training, the journalist forgot that a victim in this type of case is entitled to life-long anonymity. In addition, the broadcast was not checked by either the programme editor or producer and internal systems broke down.
That is an example. There are others. I can accept that breach can be without any deliberate intent to do so and that it is simply a mistake. I can also accept that steps are taken to “legal” such reporting. If the methods of checking whether court orders have been made is not working well, no doubt some discussion on that issue might be helpful. But at the end of the day I believe that the onus is on the media to be sure that no relevant order is in place, rather than for the courts. I would urge greater vigilance in this area.
In extreme cases, restrictions on what may be reported concerning court cases are necessary in order to protect an offender whose life would be at risk were his identity and whereabouts known. That was the case in the action against the publishers of the Manchester Evening News, for breach of the High Court injunction prohibiting the publication of information relating to the whereabouts of Robert Thompson and Jon Venables. Dame Elizabeth Butler-Sloss accepted that the breach was a “sad blunder” but said the consequences could have been serious.
Before turning to what I as Attorney General and you as journalists can do to ensure that the administration of justice is not prejudiced, I want to deal with three particular issues: first, what is called the “fade factor”; second, the time at which prejudicial material appears and thirdly, the issue of payments to witnesses.
The closer to the trial reports appear, the higher the risk of serious prejudice arising. Common sense tells us reports close to the trial date are more likely to stick in the mind of jurors. It would be unrealistic not to recognise that there has been an important shift of emphasis by the court in this field. Now the court will recognise, rather more than I believe it did some years ago, that the passage of time may dent the recollection of otherwise prejudicial reporting to the point where it no longer puts in jeopardy the fairness of the trial especially when combined with appropriate directions to the jury.
But recognition that there is a “fade factor” should not be taken to be a green light for publication of prejudicial reporting when the trial date is still some way off. There can be no hard and fast rules. Bear in mind that the risk of prejudice will depend on the nature and weight of the publication, the identity of the accused and the facts of the case. Sensational reporting of high profile cases, or of offences alleged against celebrities is likely to stay in the mind of potential jurors for much longer than more mundane events.
The time of the report
This leads to the second point I wanted to make. That is that simply because a report will appear before a person has been arrested or charged with the offence does not mean there can be no risk of prejudice. The Contempt of Court Act only provides for strict liability from that point. But prejudice can arise from publications before then. Responsible journalists and editors should have regard to the risk of prejudice and to the matters I have mentioned whenever reporting on criminal investigations, in particular high profile cases involving celebrities or sport stars where the interest, even at an early stage, is likely to be high and the risk of prejudice self-evident.
Payments to witnesses
Finally, I wanted to mention the issue of payment to witnesses. It is widely accepted that this particular practice is deeply damaging to the criminal process. This has been a problem in a number of high profile cases over recent years. In the Rosemary West trial 19 witnesses are believed to have received money for, or signed contracts with, the media. It was a major issue in the prosecution of Paul Gadd (Gary Glitter) in 1999. An individual, whose allegations formed the basis of that prosecution, was paid for stories in 1987, 1993 and 1997. The stories included allegations of sexual abuse. The newspaper then contacted the police and put them in touch with the individual. This led to the prosecution. Mr Gadd was acquitted. The judge said that the payment of money had been “highly reprehensible”. It was a significant factor, although not the only one, in the collapse of the recent prosecution relating to the supposed plot to kidnap the Beckham’s. Even the offer of payments can have a corrosive effect on the credibility of witnesses, as we saw in the case of witness Bromely in the Damilola Taylor trial.
As you know, the Government decided not to legislate for the time being on this issue in light of the strengthening of the
My comments should not be taken to be an exhaustive list of all instances where publication may amount to a contempt. But I hope what I have said will be of assistance to you in considering whether a publication is likely to be prejudicial and will given you an insight into the issues which are of concern to me as guardian of the public interest.
At the end of the day the responsibility is that of the media to comply with the law. That is so whatever guidance I do or do not seek to offer. I will continue to draw the media’s attention to potential pitfalls in particular cases by means of the continued use of Attorney General’s “Guidance to Editors” or where I think a warning is desirable. I have adopted this course in a number of cases, including some I mentioned today.
I seek to be open and accessible. The same goes for the departments I oversee. I urge the Crown Prosecution Service, for which I have Ministerial responsibility, to engage in two-way dialogue with the media. Often it is the
I am aware that there are practical issues faced by responsible journalists in seeking to report criminal cases without being in contempt – how is a journalist to know if a particular order has been made in a case? How is he to know if an issue (say identification) is still in issue or not? In part I seek to meet these concerns in the ways I have outlined. But I recognise in some cases more may be needed. I would welcome a constructive dialogue with journalists and newspapers as to how we can together best address these and other practical problems.
The Responsibilities of Journalists
Let me conclude. As I said earlier, journalists have a vital function in the administration of justice. This is supported by the right to freedom of speech. But with this function – and the power and influence it brings – come responsibilities. Journalists must bear in mind that the consequences of a prejudicial report can be high. These consequences are not dry abstractions only for lawyers to worry about. The consequences are felt by individuals, often those who are particularly vulnerable, such as victims, witnesses and defendants. And it is in the public interest that we have a fair, decent and effective system of justice.
Responsible journalism requires self-restraint. It requires vigilance to ensure the traps I have outlined are not walked-into. It requires proactive consideration of the risk of prejudice, including making contact with the court to ask if any relevant orders have been made and speaking to the