Tuesday, 26 April 2016

An Expensive Funny Turn



Who Can Tell?
 
Let's begin by recalling what we wrote last year – that having been proven wrong in our belief that GA had probably won in Lisbon we were abandoning the idea that we could interpret Portuguese legal hearings for an English-speaking audience. Our knowledge of Portuguese law just isn't good enough, especially in its relationship to  "Anglo-Saxon" rather than Roman law.

It was in 2010 that, having seen  the Appeal Court decision on the original human rights stage  of the libel case and listened to our Portuguese friends, we wrote that we couldn't see how the McCanns could ever win a libel case against GA in Portugal, so unambiguous, and essentially constitutionally-based, was the judgement.  Such early confidence! A little knowledge really is dangerous.

Having seen the Lisbon judgement before the damages award we thought things were set fair, as we did when we read the first part of the judge's findings  – until we encountered one of those utterly baffling flights into the legally unpredictable that have made following the case for six years so tough. From the considered appraisal of the facts, the evidence and previous findings we  were suddenly swept into supra-national territory.

"In the European Court of Human Rights' jurisprudence, the principle of presumption of innocence imposes a standard of conduct for all agents, public servants and magistrates involved in the administration of criminal justice.

The presumption of innocence prohibits, according to these decisions, the premature expression of opinions or beliefs of guilt by the courts but also assumptions by public officers involved in procedures which might lead the public to suspect the responsibility of the suspects in the facts under investigation."

Eh?

"In the Allen vs UK case, https://www.google.co.uk/#q=ECHR+judgement+UK+v+allen&gws_rd=cr [it doesn't appear to have any relationship to the GA case but judges are judges]  the ECHR emphasized the importance of the presumption after the acquittal or dismissal of the criminal investigation, explaining that this principle prevents suspects or defendants in such cases being treated as if they were in fact responsible for the criminal offences of which they were accused and stressing that without this second level of protection – the level of full respect for acquittal or archiving – the presumption of innocence would remain illusory or merely ideal.

Likewise, the presumption of innocence requires that the absence of guilt that emanates from it is respected, after the acquittal or dismissal, in all legal proceedings of any kind and by any authority that comes into contact with these facts."

We have, ladies and gentlemen, the duty of reserve.What a brilliant rabbit to pull out of the hat – at least if you are in the entertainment, rather than judicial business – cite a case involving the ECHR's greatest enemy, the UK, to show the need for a "second level of protection", which the judge then proceeds to extend and generalise by citing the labyrinthine requirements of the purely Portuguese administrative PJ rules for public servants, including police officers!

It adds:

The duty of reserve is a functional requirement common to magistrates and organs of criminal police. As an example, in the case of the magistrates of the Public Ministry, the ordinary law postulates that this duty will remain after retirement, establishing the article 148-7 of the Statute that retired judges must respect the reserve required by their condition.

Judges. The example given is essentially about judges not pontificating about closed cases, using information that they had heard in court but had not necessarily been admitted as evidence.  Quite right too. So when was it extended by the ECHR to retired police officers?

"It is a duty that is essential to the preservation of public confidence in the institutions of the administration of justice. The duty of reserve protects the purposes of the criminal action, but also the physical and moral integrity, the freedom and the dignity of those concerned by that action."

"But, at least in our view," says the judge, a piece of abdication of responsibility or an acceptance that she is making it up as she goes along, as you wish:  

"...that same status cannot but mark the limits of the defendant's [GA's} freedom of expression when compared to the one detained by others. Having been in charge of that investigation as a member of the Judicial Police, the defendant Goncalo Amaral, although retired on July 1, 2008, did not enjoy, on the following July 24, in respect of the results of the criminal investigation released on the 21st of the same month and year, a large and full freedom of expression. This freedom was conditioned by the functions he had, functions that imposed him special duties that traverse the status of retirement, including the duty of reserve."

That finding, into which  the absurd phrase "large and full" [freedom of expression] has been smuggled, is the judge's interpretation and opinion, not a consequence of an ECHR judgement and it alone was due to cost GA his hundreds of thousands of euros.  She does not say how long would have to elapse before GA would be clear to open his mouth. On this day of the Hillsborough verdict it would be interesting to know whether it is ever safe for a policeman to do so.

And Sanity Returns - For Now

This month's judgement tackles this flight of fancy, the basis for the award, head on and in a complete consistency with the 2010 appeal court judgement.

"Nonetheless, it is understood, in the decision under appeal, that because the 1st appellant, Gonçalo Amaral, was, until October 2, 2007, the coordinator of the criminal investigation into the disappearance of Madeleine McCann, he was, after his retirement on the 1st of July, 2008, subject to the duties of secrecy and reserve that are imposed to the employees that serve the Polícia Judiciária."
 
And, under such terms, although the introductory note in the book invokes personal reasons, in a situation of conflict with the rights to a good name and reputation of the subjects of the appeal, the appellant [Gonçalo Amaral] could not benefit, faced with the results of the investigation, of a broad and full freedom of expression – and thus his conduct would be unlawful, under article 484 of the Civil Code."

And concludes: 

"In effect, and independently of the reasons invoked by the appellant for the publication, it is hardly understandable that an employee, even more a retired one, would have to keep said duties of secrecy and reserve, thus being limited in the exercise of his right to an opinion, concerning the interpretation of facts that were already made public by the judiciary authority, and widely debated (in fact, largely by initiative of the [McCanns]  themselves) in the national and international media."
 
[An unclear paragraph follows which we won't attempt to clarify: In the absence of its primordial presupposition it must therefore be concluded against the previous decision, due to the lack of precedence of any of the requests that have been formulated by the current subjects of the appeal [Kate and Gerry McCann] – while the re-appreciation of the matter of fact that had been secondarily requested remains impaired.and the conclusion is given.]

 "From the above mentioned, it is agreed, in accordance with both appeals, to revoke the appealed decision and, considering the action against them to be unfounded, to acquit the appealing plaintiffs of the totality of the requests. The costs, in both instances [courts] are to be paid by the appealed subjects [Kate and Gerry McCann]."

No forecasts. To our amateur understanding, however, an appeal by the McCanns would have attempt to   reinstate the judge's entire weirdo funny turn ("at least in our view", remember, which is as close to "I can't cope with this" as one can come) to succeed. And with it the relevant parts of the 2010 appeal judgement. That  seems overwhelmingly unlikely – but what do we know?