Section 9

We have thanked JBLittlemore before and now we have to thank him again. He has helped us change our minds about something quite important about the case, and that is the perception people have that the case can be prosecuted in the UK.

We have stated that it could. We have said that it was legally possible but politically impossible.

We started the debate on this subject in a comment at 5 May 2018, 10:13:00 in our post “The help and the tennis – comments continue II”, in which we were quite clear about what we thought to be its importance: “We notify our readers that this comment may well be the most important thing that we’ve ever written about the Maddie case.”

Before we say what we have to say, we would like to very quickly address the political impossibility for the case to be prosecuted in the UK. Independent of what each one thinks is the Skripal case, it has been announced by the UK authorities that it was Russian agents who came to the UK and tried to kill a Russian citizen.

Those advocating that the Maddie case could be prosecuted in the UK without political repercussions are basically saying that the UK would accept for Russia to prosecute the Skripal case there. Would it? We don’t think so.

So, independent of the legal aspects that we are about to mention, the idea of the Maddie case being prosecuted in the UK is simply absurd.

But there’s a legal aspect we have overlooked. We have said that it was legally possible to prosecute the McCanns & others in the UK. It isn’t. By the UK law, it would be illegal.

And we have to thank JBlittlemore for helping clarify this, with this tweet:

“J B Littlemore‏ @JBLittlemore
Replying to @SadeElisha86 @1matthewwright1 @annienonymouss
This is also relevant. See the para 9. outlined in red (of the Offences Against the Person Act) PT retains primary rights but investigation & trial in UK is still possible if UK cits are in the cross hairs, as the Section 9 clarifies. #Mccann
https://pbs.twimg.com/media/Dn5c4vIXoAAUbP2.jpg
4:56 pm - 24 Sep 2018”

[The picture attached to the mail above says the following:

“Sections 9 and 10: Jurisdiction
Murder or manslaughter abroad. Section 9 gives the courts in England, Wales and Ireland extra-territorial jurisdiction over homicides committed by British subjects overseas. (Note however the restricted definition of "subject" under section 3 of the British Nationality Act 1948. Section 10 gives these courts jurisdiction over fatal acts committed by British subjects oversees where the death occurs in England, Wales or Ireland, and jurisdiction over fatal acts committed in England, Wales or Ireland by anyone, including aliens, where the death occurs abroad. (The word “criminally” in that section has been held to exclude fatal acts done by aliens overseas although the death occurs in England, Wales or Ireland, since such acts are not punishable under the criminal law.)
9. Where any murder or manslaughter shall be committed on land out of the United Kingdom, whether within the Queen's dominions or without, and whether the person killed were a subject of Her Majesty or not, every offence committed by any subject of Her Majesty in respect of any such case, whether the same shall amount to the offence of murder or of manslaughter… may be dealt with, inquired of, tried, determined, and punished… in England or Ireland: Provided, that nothing herein contained shall prevent any person from being tried in any place out of England or Ireland for any murder or manslaughter committed out of England or Ireland in the same manner as such person might have been tried before the passing of this Act. 10. Where any person being (criminally) stricken, poisoned. or otherwise hurt upon the sea, or at any place out of England or Ireland. shall die of such stroke. poisoning. or hurt in England or Ireland, or, being (criminally) stricken, poisoned, or otherwise hurt in any place in England or Ireland, shall die of such stroke, poisoning, or hurt upon the sea, or at any place out of England or Ireland, every offence committed in respect of any such case. whether the same shall amount to the offence of murder or of manslaughter, may be tried… in England.”]

******

It is true that section 9 does say that “trial in UK is still possible if UK cits are in the cross hairs” BUT it also says this: “that nothing herein contained shall prevent any person from being tried in any place out of England or Ireland”.

And that is why it will be illegal to prosecute the McCanns & others in the UK. Prosecuting them there prevents them from being tried in Portugal.

That’s what we have been dealing with in our arguido v questioned under caution debate.

To make things very clear, when people say that Kate refused to answer the 48 questions they are not understanding the differences between the Portuguese legal system and the British one in terms of personal guarantees.

Kate didn’t refuse. She opted not to answer. Imagine the reader is in a bifurcation and is warned that the best option is to go left, as going right may have consequences. The reader may refuse and go right, accepting all consequences that will arise from that decision. Completely different is to be asked which road one wants to take and one just opting for one. In the Portuguese system, it’s an option, no inference because of the choice made can be drawn by the prosecution.

Mr Amaral has explained this quite well in his book pgs 190 – 193 (our translation):

“In Portugal, all criminal investigation is carried out only in the context of a criminal proceeding, which has three phases: enquiry, instruction and prosecution. The investigation itself takes place in the enquiry phase by the agencies of the criminal police, which enjoy technical and tactical autonomy, under the direction and supervision of the Public Ministry. In the context of such proceedings there are procedural subjects, one of them is the arguido. The status of arguido was created in such a way as to grant to every suspect of the practice of a crime a set of rights and duties. One of the principles underlying our penal procedural system is that of non-self-incrimination, and it is not legal to allow a witness to provide elements that may incriminate him. That is, a witness cannot be allowed to continue to speak and make facts be known that indicate him or her in relation to a particular crime. The right to silence, as arguido, avoids this self-incrimination. It is true that the status of arguido carries nowadays a certain social stigma, and it is almost irrelevant to say that all people are presumed innocent until proven guilty, which can happen with a condemning sentence.”

We won’t venture trying to explain why this is, but the other day Moita Flores gave a reason which we believe to be logical: because of the disastrous history that confessions have played in human history it’s thought that every legal system should strive to prosecute without a confession in all circumstances, so it must construct a case based on the assumption that a confession is useless.

Thus, the arguido status guarantees no inferences will be drawn from silence as well as allowing for the accused to change whatever the previous version was. Basically, what the arguido has to say or not say is truly meaningless, the prosecution must be able to construct a case without the participation of the arguido.

In the UK, silence may have adverse inferences. Silence is not taken as indication of guilt. It could be that the person needs legal advice first, is a good reason.

However, any defence or alibi that isn’t raised immediately but presented later, adverse inferences can be drawn. The principle being that if a person had any defence, it should follow immediately when they are cautioned, otherwise they could be retro-fitting their alibi.

Career criminals will often remain silent. They take their chances on charges being dropped through lack of evidence. They don’t want to say anything that might help the police. They take their chance that they may be charged and then try and construct an alibi if that happens. Remaining silent is a good tactic if one is guilty but thinks the police have a weak case.

Note, only if the jury believe the case against a person has been established can they proceed to draw adverse inferences from their silence under caution.

This says it better than we can:

https://www.cps.gov.uk/legal-guidance/adverse-inferences

What is relevant to understand is that under any circumstances there are no adverse inferences from an arguido’s silence in Portugal. The arguido has the right “not to answer the questions asked by any entity about the facts he is charged with and about the contents of his statements concerning them” (point [alínea] e) Nº 1 e) of Artº 61.º of Law nº 59/98 of 25-08-1998). No caution whatsoever.

And because of this difference between the Portuguese and British systems, someone standing in a court in the UK hasn’t been guaranteed the same legal rights as someone in Portugal in the same circumstances.

Trying a case in the UK, invalidates the case being tried in Portugal, and so section 9, in its own words states that such a trial cannot take place. A question of legality.

But the reader may ask would the UK be concerned that McCanns would have had more rights if tried in Portugal?

The answer to that would be, what if the McCanns allowed prosecution to take place and on the first day of the trial, decide to argue the case as we just have and demand that the trial simply not take place because it’s open to legal challenge if not outright illegal?

Then the reader might say, maybe the McCanns can be “convinced” to say nothing, making it look like that it was their choice, refusing to cooperate with Portugal?

That possibility raises a very interesting question that as far as we know, for obvious reasons as we’ll see, has never been raised before: how valid is the right to not to be tried or punished twice (the non bis in idem principle) when 2 justice systems of 2 sovereign countries are involved.

This has never been raised because it required the joining up of factors that are not even seen in the joining of those required to make up a perfect storm: a crime happening by citizens of country X in country Y and country X wanting to disrespect, or even insult country Y.

The non bis in idem principle is a basic principle of law but is only valid within a single sovereign justice system. The question is then quite complex, is punishing the same crime in 2 different sovereign nations punishing the same crime twice?

The Eurojust Guidelines seems to think it’s not:

“There should be a preliminary presumption that, if possible, a prosecution should take place in the jurisdiction where the majority of the criminality occurred or where the majority of the loss was sustained. When reaching a decision, prosecutors should balance carefully and fairly all the factors both for and against commencing a prosecution in each jurisdiction where it is possible to do so.

There are a number of factors that should be considered and can affect the final decision. All these factors should be considered at the meeting of prosecutors from the relevant states affected by the criminality concerned. Making a decision will depend on the circumstances of each case and this guidance is intended to bring consistency to every decision-making process.”

Note, it all points to a single jurisdiction (which in the Maddie case would be Portugal) but the key verb above is “should” and not “has to”.

From the ECHR:

“Article 4 (Right not to be tried or punished twice) of Protocol No. 7 to the European Convention on Human Rights

“1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.

2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.

3. No derogation from this Article shall be made under Article 15 of the Convention.””

Again, “under the jurisdiction of the same State for an offence”.

In case the UK decides to humiliate Portugal by prosecuting the McCanns without previous agreement from the Portuguese, could the Portuguese prosecute at the same time, totally independently from the UK prosecution, as the European Investigation Order means Portugal can ask and not be refused, any evidence obtained by the UK,a signee of the EIO? We don’t see why not.

Plus, Portugal would have the advantage of having European law on its side (as per Eurojust Guidelines) and could call out the illegality of the trial in the UK as per section 9.

Then, it must be taken into consideration that Portugal, faced with the humiliation, might in retaliation simply show the world that the UK was holding an illegal trial according to their own law.

And considering the non bis in idem principle conflict we have just raised, isn’t that sufficient “herein” of section 9 to consider the UK trial outright illegal?

The fact that a prosecution in the UK would invalidate a prosecution in Portugal just based on the fact that no one should be tried twice for the same crime, falls in our opinion clearly in the “Provided, that nothing herein contained shall prevent any person from being tried in any place out of England or Ireland for any murder or manslaughter committed out of England or Ireland in the same manner as such person might have been tried before the passing of this Act.”

Noted that we are deep into extreme scenarios, the UK humiliating Portugal by prosecuting the McCanns in the UK and Portugal retaliating, but the advantage would be clearly on Portugal’s side of the court, pardon the pun, as the attention could be drawn to the possible illegality of the trial due to both the arguido v questioned under caution question and the non bis in idem principle.

Politically unacceptable for the UK to prosecute, per section 9, illegal and because of the European Investigation Order very, very risky.

It’s very clear why they want the McCanns questioned by the Met. The moment that happens, a gale force wind would blow across the UK such would be the sigh of relief by so many.

The case has to be prosecuted in Portugal and questioned by the Portuguese legal rules and supervision of the PJ if questioned in the UK.

It’s not a question of IF but of it HAS to be. In the same Portuguese courts that JBLittlemore seems to think is run by plumbers, electricians and lorry-drivers – with all due respect for these professions – who like to play judges from time to time and so what these courts decide can’t really be taken seriously:

It’s our interpretation of the legal position and not a legal opinion as we have no legal background, in any law much less on international law. As always, we welcome corrections.