Thanks Marcos/Blacksmith

http://blacksmithbureau.blogspot.nl/



Tuesday, 4 September 2012
Thanks Marcos

We covered the archiving summary in considerable depth, not to argue a case about its meaning – the Lisbon appeal court has already done that definitively – but so that open-minded people with no knowledge of Portuguese law can get an idea of its critical importance in the libel case between the McCanns and Amaral. There is no evidence to demonstrate that Amaral’s claim that “the child died in the apartment and the parents simulated an abduction” is false.

What if?

But let’s lift off into fantasy for a moment and assume that somehow the judge accepts that Amaral's claim is, indeed, provably and utterly false. A triumph for the McCanns? You must be kidding.

In Portugal “It is up to the claimant to prove that what was said or written about him/her was false because in the event that the information published was at the time true, or that the client gave consent for this information to be released, or there was accidental publication, or a privileged person involved directly in the furtherance of the public’s interest had said or written the defamatory statement, then the claimant may have no case.”

So how are the parents going to climb this next hurdle – how will they show that Goncalo Amaral was not “a privileged person involved directly in the furtherance of the public’s interest"? Amaral investigated the case, with others, as a direct representative of the public interest. He chose to resign in order that he could bring his interpretation of the case to the public directly, something that he was forbidden to do while in PJ employ. It will, to say the least, be interesting to discover how the McCanns intend to challenge this status.
Higher

But now let’s take the stage two rocket into further fantasy and assume that Duarte has managed to convince the judge that Amaral didn’t have any such status but was just an average outsider repeating false rumours. Now we come to the last and best bit. Having fulfilled the first two requirements of Portuguese libel law the McCanns and their lawyers must fulfil the critical third and demonstrate that Amaral knew that what he was claiming was untrue.

Now that really is a tall order. Even Amaral’s greatest enemies have hesitated to claim that he didn’t believe in his “interpretation”, if only because the idea is simply laughable and cannot be made to fit in with the stubborn and unyielding consistency with which he has advanced his case over the last four years. But the McCanns will have to provide such proof.
Thanks Marcos


marcos

In the most delicious of ironies one of those enemies, the highly unstable Marcos Aragão Correia, has provided up-to-date case law on this requirement. A dedicated worker for the truth in Portugal, a good friend of ours whose explanations of Portuguese law we gratefully acknowledge, has drawn our attention to the judgement in the recent Amaral .v. Aragão Correia libel case.

The judge observed that Aragão Correia “fully believed Leonor Cipriano when she told him Goncalo Amaral had beaten her.” Aragão Correia’s belief in the veracity of her statement to him was enough, irrespective of whether Cipriano had actually told him the truth! In fact the judge stated she had not told him the truth and that Amaral had not taken part in any assault on Cipriano but because Aragão Correia had believed her he was going to acquit him of libel!

And the same goes for Goncalo Amaral – even if the PJ inspectors’ report of 2007 which set out the claims circulated by Amaral was a pack of lies from start to finish then as long as Amaral genuinely believed them he cannot be guilty of libel. So in the long run Aragão Correia may finally have got his way and made a historic contribution to the Madeleine McCann Affair. But not at all the one he wanted.

No one can ever be sure how a case will turn out and it is not impossible that Amaral will lose – but not on one individual’s misguided and shoddily reasoned whim, as was the case with prosecutor Menezes’ comments. That is why we've always wanted the case to come to court. If the McCanns win then the appeal court will ensure that the legal requirements outlined above have been met – and we will all gain from the information about the affair so provided. Otherwise the verdict will be overturned.

Best yet from Blacksmith. Excellent.

Another thumbs up from me

Yaaay! Thanks Annabel.

Yes, a very good articulate assumption. The McCanns are not claiming Amaral lied though, they are claiming his book hindered the search for Madeleine and affected the family's health.

Panda wrote:Yes, a very good articulate assumption. The McCanns are not claiming Amaral lied though, they are claiming his book hindered the search for Madeleine and affected the family's health.

I agree, a brilliant piece by Blacksmith

Kate and Gerry themselves hindered 'the search' in many ways, not least by Kate refusing to answer police questions.

As for Amaral's book 'affecting their health' ....was that before or after they ran their first, second and third marathons I wonder?

Quite right: In fact, not only have they hindered the "search", but they haven't actually engaged in it directly themselves.

I wonder why not.

The End Is Nigh wrote:Quite right: In fact, not only have they hindered the "search", but they haven't actually engaged in it directly themselves.

I wonder why not.

The only time the McCanns 'leave no stone unturned' is when it comes to fleecing the public and filling the coffers....... only then can we be assured of their utmost devotion and attention to detail.

As I say, if justice prevails, there is no way Amaral's book hindered the search which is why I find it strange that all these "sightings" engineered by you know who keep appearing. If it is to prove that Madeleine could still be alive , it is disproving the charge that Amarals book hindered the search. The family health issue is ludicrous and I think this time the McCanns were just outraged that Amaral made so much money from Madeleine's disappearance and were determined to stop him and make a lot of money in the process.

Panda wrote:Yes, a very good articulate assumption. The McCanns are not claiming Amaral lied though, they are claiming his book hindered the search for Madeleine and affected the family's health.

They are suing him for libel which by definition requires a claim that what he is saying is false. The search issue is simply their justification for pursuing the alleged libel (as distinct from protecting their reputation or money which doesn't quite sound so good). They can't actually sue him for hindering the search even if indeed his book had that effect.

Chris wrote:

Panda wrote:Yes, a very good articulate assumption. The McCanns are not claiming Amaral lied though, they are claiming his book hindered the search for Madeleine and affected the family's health.

They are suing him for libel which by definition requires a claim that what he is saying is false. The search issue is simply their justification for pursuing the alleged libel (as distinct from protecting their reputation or money which doesn't quite sound so good). They can't actually sue him for hindering the search even if indeed his book had that effect.

Morning Chris...... the suit states:- 1. Amaral's Book hindered the search for Madeleine. 2. It affected their health. 3. It affected the health of the twins. They initially included the health of Madeleine until someone pointed out she was a Ward of Court and they were not her Guardians so her name was hastily withdrawn. When Amaral appealed to the Court of Human Rights (not sure if that was the one) it was on the grounds that he had only followed the PJ Final Report and that was why the injunction was overturned, proving Amaral had not published a false statement . The McCanns to my mind have to prove the 3 claims they have made were true which obviously are not part of the PJ Final Report. I think they will have a hard job proving them.!!!!

Panda wrote:

Chris wrote:

Panda wrote:Yes, a very good articulate assumption. The McCanns are not claiming Amaral lied though, they are claiming his book hindered the search for Madeleine and affected the family's health.

They are suing him for libel which by definition requires a claim that what he is saying is false. The search issue is simply their justification for pursuing the alleged libel (as distinct from protecting their reputation or money which doesn't quite sound so good). They can't actually sue him for hindering the search even if indeed his book had that effect.

Morning Chris...... the suit states:- 1. Amaral's Book hindered the search for Madeleine. 2. It affected their health. 3. It affected the health of the twins. They initially included the health of Madeleine until someone pointed out she was a Ward of Court and they were not her Guardians so her name was hastily withdrawn. When Amaral appealed to the Court of Human Rights (not sure if that was the one) it was on the grounds that he had only followed the PJ Final Report and that was why the injunction was overturned, proving Amaral had not published a false statement . The McCanns to my mind have to prove the 3 claims they have made were true which obviously are not part of the PJ Final Report. I think they will have a hard job proving them.!!!!

Panda your points 1-3 are the claimed consequences of the alleged libel not the grounds for the case which is the alleged libel.

Are you a lawyer Chris?

Sorry chris, I'm not with you.The injunction was lifted because Amaral went to the Apellate court who confirmed that he

had not lied, his book and video were based on the PJ Final Report. The McCanns claims now are as I stated and to my mind the McCanns have to prove what they claim was a consequence of reading his book, in Portugese.!!!! Even if they produce Medical Certificates to say they were traumatised because they got the Book translated , how can they claim this same translated book traumatised their 4 yr old twins who could barely read at that age. We know the number of "sightings" has not hindered the sale of the book.

Panda wrote:Sorry chris, I'm not with you.The injunction was lifted because Amaral went to the Apellate court who confirmed that he

had not lied, his book and video were based on the PJ Final Report. The McCanns claims now are as I stated and to my mind the McCanns have to prove what they claim was a consequence of reading his book, in Portugese.!!!! Even if they produce Medical Certificates to say they were traumatised because they got the Book translated , how can they claim this same translated book traumatised their 4 yr old twins who could barely read at that age. We know the number of "sightings" has not hindered the sale of the book.

The decision of the court of appeal in overturning the injunction is not binding on the judge hearing the full libel action. No doubt Amaral’s lawyer will rely on the reasons for that decision in his arguments but it is a separate even if related matter. The libel trial starts from square one. Issues like the hindering the search, illness etc are as I have said claimed consequences of the libel and relevant to justifying a claim for damages but not the reason for the action itself which is the alleged libel.

That's a useful summary, Chris .......... all that remains is for us to see if the Trial commences as currently scheduled.

We've heard nothing concrete about whether Healy & McCann have been successful in applying to participate remotely, so I guess that matter in itself could give grounds for further delay.

Chris wrote:

Panda wrote:Sorry chris, I'm not with you.The injunction was lifted because Amaral went to the Apellate court who confirmed that he

had not lied, his book and video were based on the PJ Final Report. The McCanns claims now are as I stated and to my mind the McCanns have to prove what they claim was a consequence of reading his book, in Portugese.!!!! Even if they produce Medical Certificates to say they were traumatised because they got the Book translated , how can they claim this same translated book traumatised their 4 yr old twins who could barely read at that age. We know the number of "sightings" has not hindered the sale of the book.

The decision of the court of appeal in overturning the injunction is not binding on the judge hearing the full libel action. No doubt Amaral’s lawyer will rely on the reasons for that decision in his arguments but it is a separate even if related matter. The libel trial starts from square one. Issues like the hindering the search, illness etc are as I have said claimed consequences of the libel and relevant to justifying a claim for damages but not the reason for the action itself which is the alleged libel.

I'm really at a loss to comprehend how the Mccanns
can prove that GA showed a reckless disregard for
the truth with an intent to cause malice. GA has
based the findings of his book firmly within the scope
and conclusions of the PJ investigation, and as a
professional police officer is entitled to convey other
alternative theories, as long as they are reasonable,
and derived from within the investigation. That was
his job, and I think that certain lawyers have ill advised
Team Mccann based on perceived consequences to a
libel claim that does not exist in fact.

The End Is Nigh wrote:That's a useful summary, Chris .......... all that remains is for us to see if the Trial commences as currently scheduled.

We've heard nothing concrete about whether Healy & McCann have been successful in applying to participate remotely, so I guess that matter in itself could give grounds for further delay.

TEiN I just have a feeling that the Mcs will be pulling something from their "lucky" Hat to have the case defared, imo the heat is on them at the mo, what with the review, the Tia case, also it isn't going to help them that we have just had two UK teachers holidaying in PT arrested for going off and leaving their 3 year old Daughter to go out on the lash......thats "unhelpful" just when the McCanns very important Court Case is due to start.........parents just do that sort of theng do they

I hope you don't think I'm being picky, but I suspect you've inadvertently left the word "bad" out of the last line of your Post

But surely all of the EXPRESS, DAILY MAIL and NEWS OF THE WORLD items, printed before they sued the papers, would have also hindered the search for Madeleine? Did they sue on these grounds?

LJC wrote:But surely all of the EXPRESS, DAILY MAIL and NEWS OF THE WORLD items, printed before they sued the papers, would have also hindered the search for Madeleine? Did they sue on these grounds?

Goodpoint LJC......I still don't think this is Libel "to publish a false statement which is damaging to a Persons reputation".

I think Smethurst and Gerry dreamed up this damages award which maybe Carter Ruck would not have recommended. The

McCanns had received so much money from the Press and thought E1 million would be a doddle. Since this case was lodged Kate has written 2 books and made a small fortune which rather refutes her claim that her health was damaged.