The McCann-Express Legal Position
THIS is a neat round up on the McCann-Express legal position in today’s’ Guardian.
The Guardian has a lot of recent experience with libel cases having lost the famous Aitken case…then, a few years later, having the moral justification of seeing Jonathan Aitken, a former Conservative Minister, branded a liar and jailed for perjury.
Strangely, one of the newspapers involved this week, The Star, has also had a fairly topical high profile libel and later rebuff case. Jeffrey Archer won a libel case against it. He was awarded, again curiously, £500,000 and was later proved to have lied in court and was jailed for perjury.
The innocent Doctors McCann have not appeared in court and have not committed perjury.
Today’s article is highly recommended reading.
I hate to be seen to be a smart alex but we did tell you so, first and before anyone else thought of it…Team McCann’s lawyers may have seen it coming around the same time.
Explainer: The legal position
* Clare Dyer
* The Guardian,
* Thursday March 20 2008
This article appeared in the Guardian on Thursday March 20 2008 on p9 of the UK news section.
The quick capitulation by the Daily Express and Star and their Sunday equivalents to libel threats by Gerry and Kate McCann came from a recognition by the papers that their allegations were baseless and could not be defended in court.
The burden would have been on the newspapers to prove the lurid suggestions they reported - that the couple were responsible for the death of their child, or had sold her, or were part of a swingers’ group - which were floated in an attempt to move the story on when nothing much was happening.
The days of million-pound libel awards are gone and some libel lawyers reckoned the damages of £550,000 were over the odds. Nowadays, £250,000 is considered the ceiling for the most serious libels. But the sum is to compensate both McCanns, £275,000 each, and the papers would have faced massive costs on top if the case had gone to court. Carter-Ruck, the couple’s lawyers, were poised to take it forward under a no-win, no-fee agreement which would have allowed the firm to charge the losing side a large success fee on top of its normal fees.
David Hooper, a libel lawyer at Reynolds Porter Chamberlain, said: “There has not been a case like this since 1988 when the Sun had to pay £1m to Elton John, with a front page headline Sorry Elton, following a series of 17 homophobic articles about the singer.”
Since the Express and the Star could not prove the truth of the allegations, they have had to pay heavily for raising question marks about the McCanns’ innocence. Had they not settled so early, it could have been even worse: “Although the damages of £550,000 paid to the McCanns were less, arguably this was a much worse case - 100 articles prominently captioned with Madeleine’s name suggesting, as the Express and Star papers admitted, that the McCanns had caused their daughter’s death and then covered it up,” Hooper said.
Newspapers which agree quickly to make an “offer of amends” - to publish a correction and apology and pay damages - can expect a discount of up to 50% on the sum the libel is worth. But Carter-Ruck are thought to have argued that the Express newspapers were not entitled to a discount because the articles were published with malice - in the legal sense, knowing that the allegations were false, or with a reckless indifference to the truth.
… don’t say you were not told!. See: Telling it like it is
March 21st, 2008 at 11:22 am
Marie N
Good morning!
Why does the position of “not torturing them” demand “no investigation”??
There has to be a full investigation. I have never, ever denied that. I did critcise the PJ for not investigating the parents and friends thoroughly right at the start, for allowing the apartment to be cleaned and let out again without first doing the very thorough forensics which were carried out months later with British assistance. Ironically, according to all reports, the McCanns themselves wanted the police to bring in additional advice and support! The PJ seem to have been responding to the McCanns’ pressure when they asked for British help in terms of the dogs, full forensics and analyses at the FSS in Birmingham.
And you are absolutely right that the known facts are :
1. The parents left the children asleep in the apartment, out of ear shot, leaving them vulnerable.
2. The PJ think, or thought, they were responsible for her disappearance. (I suppose, to be strictly accurate, we can’t be absolutely certain what they think at the moment.)
3. There was a huge media campaign to keep Madeleine in the public eye. “Don’t you forget about me.” The fear that Madeleine would be forgotten seems to have been at the heart of their campaign and all their actions.
I think it’s important to remember that money started rolling in well before the McCanns set up the site or asked for anything. From the TV it was obvious that people here, maybe especially in Rothley, Glasgow and Merseyside, started almost from day one to have “events” like vigils, services etc. People seem to have started collecting at once, I suppose with a helpless feeling that that was all they could do. My impression was that the money rolled in and then the McCanns quickly called in a lawyer to put everything on a correct legal footing. You can’t just have large sums of money lying around in the buckets it was collected in. Then the big people gave huge donations. I think the fund thing took off without their initial instigation but then they went along with it, formalised it and now seriously want to keep it going. But I don’t think they are doing this to get money for themselves. In spite of the two mortgage payments which allowed them to stay on in Portugal a bit longer than GM wanted (he wanted to get back to work, according to reports), I believe the money is used for the search. The directors do have to pass everything. (I never agreed with the two mortgage payments. Not that they were illegal in any way, but I thought it was inappropriate.)
Now, it might have been in “better taste” or “more dignified” for them just to sit back and let the PJ get on with it, without organising a search themselves, but perhaps we can’t judge how they felt about the way the police search was being conducted, and they definitely wanted to feel they had done absolutely everything humanly possible to look for the girl. I think I can sympathise with that. They would feel that anyway, maybe, but even more so because their original decision to eat out of ear shot had left the child vulnerable. Maybe that is how they salve their conscience just a little. I believe it is quite likely that they love their children very much, despite that most unwise and tragic decision and despite whatever else happened that dreadful night.
As for the final outcome; I have absolutely no idea. But I do think, in case they are innocent, it is better not to “torture” them. That doesn’t stop an investigation.
I can’t agree with you 100% that the outcome might not be affected by all the speculation, although of course I hope you are correct. You may be. I think it would depend on the quality of the evidence and on how and where a trial took place, if there ever was one.
March 21st, 2008 at 10:50 am
42 Maria
I agree with your example. I myself am prudent, and keep many possibilities in mind.
There are too many inconsistencies for me to believe the whole truth has been told. But I don’t think the parents harmed their child on purpose, or that they were swingers, drug addicts or whatever. The only thing I know for sure is that their neglectful childcare created an opportunity for what happened, whatever. And I realise what a painful thought it must be for them. I also know for a fact that they called for the public for support and donations and kept “informing” the public through a PR, and via the media. The other fact which I know for sure is that the police in charge of the investigation think they have reasons to suspect them of not telling the whole truth.
All the rest is just hypothesis.
The question is : since it has been reported so much in the press, and so many questions stay unanswered, are we allowed to comment the press articles on this site (whose aim it is to do such things), is it wicked to talk about the case, to do it in a satirical way, and to imagine foul play?
There are several ways of presenting things ; for instance : the tortured, crucified parents, suffering blow after blow from the media, or the neglectful, money making, media manipulating, parents. The way things are presented has a direct influence on the way the whole case is handled. The first one says “don’t torture them, they have suffered enough. You are wicked”. The other one says” What is their agenda? What lies are they hiding? They can’t be left unaccountable”. One asks for no onvestigation, the other asks for a thorough investigation.
You wrote in your post:
1. I do usually point out when pure speculation is the basis of vilification.
2. I also tend to point out when known facts (but how many are there?!) could be interpreted in a way which does not automatically presume guilt on their part.
But, if we are to examin all the possibilities, we have to think of some in which the parents are involved. It certainly “vilifies” them, but as you also point out, it is “pure speculation”, and everybody knows it.
After all the sentimentality about the case which I read and heard everywhere, and which stifled the questions one might have about the case, I found this site very free. I am pleased some of the posters, even if they can be accused of lacking subtelty at times, are straightforward about their feelings.
Also, we have to realise the outcome of the investigation doesn’t depend on us. I don’t think a miscarriage of justice is to be afraid of, with the eyes of the state on the investigation, and the excellent lawyers at work.
I predict that in case the MCs would be found guilty of something, those who will have speculated here will be far less nasty and bloodthirsty than those who defended them as if they were angels and had had no responsibiity whatsoever in that horrid event.
March 21st, 2008 at 2:20 am
Have to go. See you later!
March 21st, 2008 at 2:17 am
53
lyn Says:
March 21st, 2008 at 1:56 am
—
Lyn,
Contrary to what most posters here feel, IMO the mother is being manipulated and controlled by the father. If, any of the two, had anything to do with the actual disappearance of the child, IMO it was not the mother. On the other hand, I am not convinced that they are guilty of other than leaving the kids alone and unsupervised.
March 21st, 2008 at 1:56 am
52 Daisy
Frightening I feel. I would be very worried indeed being linked to the McCanns. The whole saga is becoming out of control. No, I don’t think the Mccanns are behind the car fire, or anything else. Nor the M3. What has crossed my mind is-what have they got themselves into. Can they get out of it. Do the UK authorities know more than they are willing to say. Definitely, an agenda, and agree with you, in all this. Kate’s behavior is so odd. Is she a willing enabler in all this. Something to mull over, what do you reckon.
March 21st, 2008 at 1:47 am
51
lyn Says:
March 21st, 2008 at 1:42 am
Hi Lyn,
I agree with you that it is terror to maliciously destroy someones property, especially if apparently it is some sort of threat. I find it hard to believe myself, that the McCanns themselves could be behind this (or even M3 … IMO they are not smart enough) … but what if the culprit was at a higher level? As I have stated before, I think there is a much greater agenda in this case than just money-making, publicity seeking individuals.
March 21st, 2008 at 1:42 am
49 Daisy
Slander is one thing and making accusation is another I feel. [possible libel removed - dr] I feel the McCanns have sunk very low in suing and are showing their true colours. The tabloids
print what they want and always will do. But, for the chap to have his car torched, and the word “speak” put on the wreck, shows how low some people will sink. This becomes terror.
What next will happen.
March 21st, 2008 at 1:38 am
Happy Easter to all …. it seems that when I’m awake and ready to debate, everybody else is zzzz ZZZZZ zzzzz ???
March 21st, 2008 at 1:35 am
I would like to know how many cars get blown up in PDL and how often? (if what has been reported is true?). It is IMO, a very significant event in the scheme of things. More importantly, who could have done it?
March 21st, 2008 at 1:33 am
47
lyn Says:
March 21st, 2008 at 1:19 am
–
G’day,
I don’t believe that because someone is in the public eye, for whatever reason, should give the papers/radio/tv the right to publish what they want. I think, they deserve to be sued and learn from it. But, will they?
March 21st, 2008 at 1:19 am
How many newspapers and magazines can actually prove that what they print is the truth - not many really. I do think it is up to the individual to work it out. Usually read and thought about and forgotten. Will say again, the McCanns asked for it. Get into the public eye and wham.
March 21st, 2008 at 1:07 am
Good night anyone who may be here!
March 21st, 2008 at 1:03 am
44
Ian Says:
March 21st, 2008 at 12:22 am
We know that its a fact she didn’t inform Tanner, Tanner has told us herself, she didn’t know until Kate had already been spreading it around.
Tell me, how do you explain this fact?
——————————————————-
I don’t. How do you?
Incidentally, since when did you accept that what “Tanner has told us herself” is something we can “know that it’s a fact”????? I thought you thought JT was a liar?
March 21st, 2008 at 12:22 am
42
Maria
Incidentally, the press have been very supportive of the McCanns, even the Express newspapers. You too - for some reason - constantly use your inane dribbling posts to harp on about their innocence.
They are NOT innocent of leaving their children alone and failing in their duty of care, if they were, then they couldn’t claim abduction..hmm rock and a hard place.
March 21st, 2008 at 12:17 am
42 Maria
Dear me! Such a lot of rambling!
Kate McCann did not check to see if Madeleine was with Tanner, her friend, who was in the next door apartment, instead she made a lot of noise - ensuring everyone knew that Madeleine ‘had been taken’. We know that its a fact she didn’t inform Tanner, Tanner has told us herself, she didn’t know until Kate had already been spreading it around.
Tell me, how do you explain this fact?
March 21st, 2008 at 12:09 am
Maria 42.
—————-
you are a pearl among swine.
March 20th, 2008 at 11:48 pm
agw
Thanks for your reply. Been out all day since I posted this morning.
Marie N
Thank you. I have only just read your reply; wasn’t ignoring it!
Please read imy post carefully. You say that I keep saying the McCanns are innocent. As I said this morning, I have no idea what happened to Madeleine.
Just a couple of points :
1. I do usually point out when pure speculation is the basis of vilification.
2. I also tend to point out when known facts (but how many are there?!) could be interpreted in a way which does not automatically presume guilt on their part.
As example of 1. is the suggestion, that the Mccanns are swingers. As far as I’m aware, there is absolutely no evidence to support this view. Another example is the suggestion that K and G are not Madeleine’s biological parents. Another is the speculation that they use drugs themselves or drugged their children.
An example of 2. is the fact that the McCanns don’t follow so-called “sightings” or dig ditches, dive lakes or knock on doors in the search for Madeleine. Many posters suggest this indicates guilt. I think there are other possible explanations. Another example in this category is the fact that they asked for a priest very soon after Madeleine disappeared. Many posters believe this might indicate that they confessed a crime, eg. killing their child and/or covering up her death. I think there may be other explanations for their wish to speak to a priest. Again, some posters feel that the fact that the McCanns left the children asleep in the apartment , out of ear shot, while they ate with their friends, shows that they are quite likely to be capable of killing one of the children. I personally don’t think the second thing follows from the first.
There are countless examples in both categories. The fact that I point them out does not indicate that I think I know what happened to Madeleine. It means that, for a number of reasons, I think it is essential to preserve the principle of “innocent until proved guilty”.
I hardly ever say anything about posts in which the writers merely say that they dislike the McCanns, find them cold, tasteless, vulgar, greedy. fame-seeking, or whatever. I may not react to the McCanns in the same way myself but these are purely personal opinions and , in any case, there are plenty of people who fit that description who are not child-killers.
As for your other points, that I clearly like posting on Anorak, that the thread would not exist without the people you mention and that it is good to doubt the way news is reported, I entirely agree! I always adopt a sceptical approach to the “news”. If I hadn’t doubted the way some sections of the press reported this case, I might not have suspected there was even a possibility of the McCanns being innocent.
I say again; I have no idea what happened to Madeleine.
Thanks for replying to my post.
March 20th, 2008 at 5:59 pm
Russian computer expert Sergei Malinka, who has been questioned by police as part of the Madeleine McCann investigation.
A CAR belonging to Russian computer expert Sergei Malinka, who has been questioned by police as part of the Madeleine McCann investigation, was destroyed in an explosion in the early hours of this morning (Thursday, March 20) in Praia da Luz.
http://portugalresident.com/portugalresident/showstory.asp?ID=25527