Presumed Innocent Until Proven Guilty.

old baileyWhat does it mean?

Ei incumbit probatio qui dicit, non qui negat (Latin for which means the burden of proof rests on who asserts and not on who denies) and it’s a Latin legal term used to refer to the presumption of innocence, in the UK and many other countries.

It is also backed up by The Convention for the Protection of Human Rights and Fundamental Freedoms of the Council of Europe says (art. 6.2): “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law“. This convention has been adopted by treaty and is binding on all Council of Europe members. Currently (and in any foreseeable expansion of the EU) every country member of the European Union is also member to the Council of Europe, so this stands for EU members as a matter of course.

So what does it actually mean, well basically until proven in a court of law you are presumed Innocent and the onus is on the Crown/Prosecution to prove your guilt and not the other way around.  And a person’s guilt definitely can’t be established on twitter, some forum or blog.  To label a person as guilty of a heinous crime is unjustifiable and wrong especially when the evidence has not been tested in a Court of Law or there is inconclusive evidence.

A court of law is the only place where a person can be found guilty or innocent of a crime. Yes there are circumstances where we feel that someone may be responsible of a crime but we can not accuse them of being guilty unless it has been proven, beyond shadow of doubt, that they did in fact commit the crime.

The Convention for the Protection of Human Rights and Fundamental Freedoms of the Council of Europe,  also applies to offences committed in Portugal as they are part of the European Union, hence it also applied to the decision made by the Public Ministry when they made their decision to archive the case with regards to the disappearance of Madeleine McCann and whether the 3 arguidos, Robert Murat, Kate McCann and Gerry McCann committed a crime in respect to the disappearance of  the said minor. This ultimately means that Robert Murat, Kate McCann and Gerry McCann have the right to be presumed innocent until proven guilty, failure to adhere to this right is by law a breach of their human rights.

The summary decision by the Public Ministry was this:

In a final synthesis, based on facts, it seems to us that the following can be asserted:

– On the 3rd of May 2007, at around 10 p.m., at the Ocean Club, in Praia da Luz, Kate Healy – like her, her husband Gerald and their friends, while dining at the Tapas, did with a periodicity that has not been rigorously established – headed for apartment G5A, in order to check on her three children, who had been left there, asleep;

– She’d barely entered the apartment when she noticed that her daughter Kate [sic] had disappeared, not being in her bed nor in any other location inside the residence and that the bedroom’s window and shutters were open;

– Then, Kate Healy ran to the restaurant, immediately alerting Gerald McCann and the other friends;

– Following that alert, the entire apartment was searched and rummaged by an indeterminate number of people, thus resulting in the contamination of traces, with irreversible and undetermined damage in terms of the acquisition of evidence;

– Immediately, intense and extensive terrestrial, maritime and aerial searches were launched, which lasted for several days, involving hundreds of people and equipment and means, as sophisticated and advanced as presently available;

– Several hundred people were heard, formally and informally, whose hearing was anticipated as being of interest for the clarification of the matter, thousands of pieces of information and suggestions were analysed, and tens of sightings and locations that seemed plausible were checked. Telephone interceptions were performed and the traffic data from thousands of telephone conversations was analysed and crossed, and many thousands of diligences of the most diverse nature were developed;

– The obliging cooperation and commitment of Police forces from many countries, with a very special mention for the British police entities, was counted upon;

– Tests and analyses were performed in two of the most prestigious and credentialed institutions for this effect – the National Institute for Legal Medicine and the British lab Forensic Science Service -, whose final results did not positively value the collected residues, or corroborated the canine markings;

– Despite all of this, it was not possible to obtain any piece of evidence that would allow for a medium man, under the light of the criteria of logics, of normality and of the general rules of experience, to formulate any lucid, sensate, serious and honest conclusion about the circumstances under which the child was removed from the apartment (whether dead or alive, whether killed in a neglectful homicide or an intended homicide, whether the victim of a targeted abduction or an opportunistic abduction), nor even to produce a consistent prognosis about her destiny and inclusively – the most dramatic – to establish whether she is still alive or if she is dead, as seems more likely.

But therefore we do not possess any minimally solid and rigorous foundation in order to be able to state, with the safety that is requested, which was or were the exact and precise crime(s) that was or were practised on the person of the minor Madeleine McCann – apart from the supposed but dismissed crime of exposure or abandonment – or to hold anyone responsible over its authorship.

Finally, it should be underlined that this case, unfortunately, is not a police novel, an appropriate scenario for a “crime” that is tailored for the success of the investigative work of a Sherlock Holmes or a Hercule Poirot, guided by the illusion that the forces of law and justice always manage to re-establish the altered order, returning to society the peace and the tranquillity that were only accidentally disturbed.

The disappearance of Madeleine McCann is rather an implacable and intricate case of real life, which lies closer to the lucid narrative by Friedrich Duerrenmatt, – “The Pledge. Requiem for the police novel” – because reality and everyday life owe little or no obedience, most of the time, to logic.

Life’s events do not conform to stereotyped novel-like schemes, it is rather the case that its outcome is often the product of chance or conditioned by accidental and unpredictable factors, and therefore, hard to envision.

The investigators are well aware of the fact that their work is not exempt of imperfection; they have worked with an enormous error margin, and what they have achieved is very little in terms of conclusive results, especially concerning the fate of the unfortunate child. Nevertheless, they always knew that action was necessary and in reality they acted intensively and with commitment, even at the risk of erring.

Nevertheless, anyone who feels unsatisfied about the epilogue of the investigations, will have the possibility to react against it, having the possibility of eventually changing that epilogue, by prompting diligences based on new evidence, as long as that person has the legitimacy to request them and the requested diligences are serious, pertinent and consequent. They may do so in three ways: by requesting the reopening of the inquiry, under article 279, number 1 of the Penal Process Code; by appealing hierarchically against this dispatch under number 2 of article 278, or in another case, under number 2 of article 279 of the Penal Process Code, or by requesting the opening of the instruction under article 287, number 1, item b, of the Penal Process Code.

Finally, it should be noted that an archiving decision may be a fair decision, although of the possible justice, and, especially, to underline heavily that the archiving of the present files does not equal a definite and irreversible closing of the process. This process, as long as the prescription deadline for the possibly committed crimes does reach its term, and if new evidence that justifies it, appears, can always be reopened, officiously or through the request of an assistant, again ordinate to a final decision of accusation or non accusation.

Therefore, after all seen, analysed and duly pondered, with all that is left exposed, it is determined:

a) The archiving of the Process concerning arguido Robert James Queriol Eveleigh Murat, because there are no indications of the practise of any crime under the dispositions of article 277 number 1 of the Penal Process Code;

b) The archiving of the Process concerning arguidos Gerald Patrick McCann and Kate Marie Healy, because there are no indications of the practise of any crime under the dispositions of article 277 number 1 of the Penal Process Code.

Article 277 number 3 of the Penal Process Code is to be fulfilled.

Under article 214 number 1 item a) of the Penal Process Code, the coercion measures that have been imposed on the arguidos are declared extinct.

Portimão, 21.07.08
The Republic’s Prosecutor
(José de Magalhães e Menezes)
The Joint General Prosecutor
(João Melchior Gomes)

Irrespective of what is written in the archiving despatch the relevant part is the final summary where the Prosecutor states categorically that there are no indications of any crimes being committed by Kate and Gerry McCann.

Nobody is denying the inconsistencies, the discrepancies in their statements (I would be more concerned if their statements tallied 100%).  And I agree there are questions that still need to be asked, not just of the McCanns but also about the investigation itself and the officers that led that investigation. Putting all that aside, even though many of us disapprove of their child minding practices whilst on holiday, the Prosecutors said this in the archiving:

It seems evident to us and because the files contain enough elements for such, that the crime of exposure or abandonment according to article 138 of the Penal Code can be eliminated from that range:

“1 – Whoever places another person’s life in danger,

a) By exposing her in a location where she is subject to a situation from which she, on her own, cannot defend herself against; or

b) Abandoning her without defence, whenever the agent had the duty to guard her, to watch over her or to assist her;”

This legal type of crime is only fulfilled with intent, and this intent has to cover the creation of danger to the victim’s life, as well as the absence of a capacity to defend herself, on the victim’s behalf. In the case of the files and facing the elements that were collected it is evident that none of the arguidos Gerald or Kate acted with intent. The parents could not foresee that in the resort that they chose to spend a brief holiday, they could place the life of any of their children in danger, nor was that demanded from them: it was located in a peaceful area, where most of the residents are foreign citizens of the same nationality and without any known history of this type of criminality.

Reinforcing what was said is also the fact that despite leaving their daughter alone with her siblings in the apartment during more or less dilated moments, it is certain that in any case they checked on them. Without any pretension or compensatory effect, we must also recognise that the parents already expiate a heavy penalty – the disappearance of Madeleine – due to their lack of caution in the surveillance and protection of their children.

So the crux of the matter with regarding neglect, after considering whether neglect occurred or not it was decided that no charges would be laid against the McCann’s for neglect as the Prosecutor did not think that child neglect was committed with intent. Whether you think this was right or wrong, is irrelevant, the person who matters, the Prosecutor, thought that bringing charges of neglect against them was not an option.

And one more thing, it is, always has and always will be down to the Prosecution to prove a person’s guilt, it has never been down to those who stand accused to prove their innocence. And that applies to you, me, Joe Bloggs and the McCann family.

The McCann family do NOT have to prove their innocence to anyone.

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