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McCanns v. Bennett - Court Report*

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Tony Bennett arrives at the Royal Courts of Justice, 05 February 2013
Tony Bennett arrives at the Royal Courts of Justice, 05 February 2013

 

Court report of the McCanns v. Bennett hearing held on the 5th and 6th February 2013

COURT REPORT 5th and 6th February: McCanns v Bennett, 19 February 2013
 
COURT REPORT 5th and 6th February: McCanns v Bennett Jill Havern Forum

Posted by Sharon Lawrence on Tue 19 Feb at 11:35 am

This report was compiled by two individuals who attended both days of the trial and did great work in recording as much as they could of the proceedings. We are very grateful to them for their efforts. They wish to remain anonymous.

This is nothing like a transcript. It is in effect a summary. But we think all the main points made during the trial have been covered.

Tony has seen this report and has lightly edited, adding a few comments from his recollection. He has also added, for clarification, one of the documents he referred to during the proceedings.

This first report only covers ther first 45 minutes or so of the proceedings. I will add more, as fast as the proof-reading editing process will allow.

-----------------------

COURT NO. 14

THE ROYAL COURTS OF JUSTICE
THE STRAND
LONDON

5 & 6 FEBRUARY 2013

Case of McCanns v Bennett
Case No. HQ 09 D 05196

Before His Honour Mr Justice Michael Tugendhat

Complied anonymously by two ordinary people dedicated to promoting the truth about current issues.

DAY ONE

5th February 2013 - ROYAL COURTS OF JUSTICE

DRS GERALD AND KATE MCCANN V TONY BENNNETT

Key:

P = Prosecution (Adrienne Page QC)

J = Judge

CR = Carter-Ruck

McC's = McCanns

MG = Michael Gunnill

MF = Madeleine Foundation

JH = Jill Havern Forum

TB = Tony Bennett

MBM = Madeleine McCann

IM = Ms Isabel Martorell


Start: 10.30am

P: My Lord, you will be aware of the history of the case and the representation here today - but I will go through it anyway. I represent Mr and Mrs McCann...behind me is my colleague Mr Jacob Dean...Mr Tony Bennett is representing himself and has with him as a McKenzie Friend Ms Sharon Lawrence. The application is that the Defendant be committed for breach of Undertakings made on 25th November 2009 in a Tomlin order made by Master Leslie on that date. Before I proceed any further, there are three matters which Mr Bennett has raised by a recent letter and on which he wishes to make application on the opening of this case. As I understand it, he wants to make application first that these proceedings are an abuse of the process of the court, secondly that these proceedings are adjourned, and thirdly, should the matter be allowed to proceed, to allow Ms Enid O'Dowd as a witness.

J: Yes.

TB: Counsel has set out correctly the three matters I wish to raise at the outset. My first application is that these proceedings be struck out as an abuse of process.

J: I shall refer to Paragraph 52 of the Civil Procedure Rules.

P: The Defendant is relying on Volume 1, page 236, namely the Practice Direction under Order 52, Section 5

J: This sets out three bases for the Court to strike out an application:

1. That the Claimants disclose no reasonable grounds of action,

2. That it is likely to obstruct existing proceedings, and

3. A failure to comply with the law.
TB: I apply under the first of those headings, my Lord

J: That it discloses no reasonable grounds of action, in effect a contempt of court.

TB: That is so, my Lord. On the 25th November 2009 I agreed to 16 separate undertakings, only four of which are in dispute in these proceedings. One of those undertakings was that I ceased selling a book, called '60 reasons'. My Lord, there is evidence which I shall present to suggest that a Mr Michael Gunnill (MG) got one book by entrapment but that was the one and only alleged breach of that particular undertaking.

The three other 3 undertakings which I am alleged to have breached and which are in dispute are:-
1. Not to suggest that Madeleine McCann died in her appt.

2. Not to suggest that the McCanns lied about what happened, and

3. Not to suggest that they covered this up and hid her body.
The source of those three allegations is in a book published July 2008 by the former head of the Portuguese Police investigation, Dr Gonçalo Amaral, titled in Portuguese A Verdada da Mentira, or in English, "The truth about a lie". My Lord, the premise of the book is in the title, namely that he was giving the truth about the lie that the McC’s said that Madeleine was abducted, when she was not.

J: Keep close to the process - and what this is about...

TB: The argument is that this book by Dr Gonçalo Amaral is on sale in Portugal despite the McCanns trying to ban it...they did succeed for alimited period...but it is still on sale today. The two top courts in Portugal [the Portuguese Court of Appeal and the Portuguese Supreme Court] ruled that this book should be able to be bought and circulated.

J: You're going off the point...why is it an abuse of the process of the court?

TB: The reason I stand before you in person today is that in practical terms I am the only person in the world not able to publish my opinion about what may have happened to Madeleine McCann.

J: I don't understand why it is an abuse of the Court? You gave those undertakings...

TB: I alone am not allowed to repeat any of these allegations.

J: We have been through all of this during the previous hearings, and what I explained to you is that, like any other litigant, if you make an Undertaking to the court which you subsequently regret then the proper course is to go back to the Court and asked to be discharged from that Undertaking and in the meantime you obey and comply with the Undertaking.

TB: I wish to come to the Undertakings later and the circumstances under which they were obtained...

J: We have been through this before...an Undertaking is the same as a court order and has to be obeyed. The course that has to be taken is to apply to vary or discharge those Undertakings and the law has made provision for this and like anyone else you are free to make an application to Court to vary or discharge the Undertakings you gave.

TB: I understand what your Lordship is saying. May I now proceed to my second application?

J: Do you want to say anything further on this, Ms Page?

P: No.

TB: My second application is that these proceedings should be adjourned for the simple reason that in these proceedings there is clearly an inequality of arms, I would suggest a gross inequality of arms - so unequal that, in fact, this is not a fair trial under Articles 6(1) and 6(3) of the European Convention on Human Rights.

It is therefore not safe to proceed if I cannot afford to be properly legally represented. I have endeavoured as you are aware my Lord from previous proceedings to obtain Legal Aid, but for the simple reason that my savings exceed £8,000, the Legal Services Commission has stated that they cannot grant Legal Aid.

In the Steel v Morris case [in the European Court of Human Rights] a Parliamentary Committee recommended that the Minister for Justice should be willing to grant Legal Aid in defamation cases in exceptional circumstances, even though Legal Aid is not normally awarded in defamation cases. There is only one way forward that I can suggest to your Lordship and that is, if your Lordship feels this appropriate, that he should approach the Minister and ask him if he would, because of the exceptional nature of this case, overrule the Legal Services Commission which to date has refused to assist me. I have therefore had to conduct these complex proceedings on my own as I cannot afford to match the Claimants' resources...

J: Have you anything to say, Ms Page?

P: My clients have always wished Mr Bennett to have legal representation...and we have given him help with names of solicitors' firms to approach etc., however, there are already financial rules governing who may get Legal Aid. There are routes open to a defendant and there has in fact already been an approach to the Ministry of Justice by Mr Bennett and by his MP, who wrote on his behalf. The Minister, Mr Djanogly, replied to the MP on 17th May 2012 and referred Mr Bennett back to the Legal Services Commission...and Mr Bennett has approached them again and they remain of the opinion that Mr Bennett does not meet with the financial criteria...they have the authority and the power to dispense public money but they have decided Mr Bennett is able to afford his own legal representation.

This is the 2nd application for an adjournment. You will recall that the hearing listed for the 9th and 10th May 2012, following the first hearing on February the 8th was adjourned because two weeks before the May hearing was due, Mr Bennett announced that he was making a renewed attempt to seek legal representation by way of the Legal Aid scheme. He had been told that he did not meet the financial criteria. The hearing in May was adjourned and he was given by the Court another opportunity by this route through Court and his MP to see if he could rectify the matter and he failed...There is no reason in anything that Mr Bennett has said or in his submissions today to suppose that anything would make a difference, including the appointment of myself, notwithstanding that he may not receive public funding. There is no reason to suppose that an adjournment will make any difference. If we keep to the issues in the case today very tightly on what we submit is the only issue in this case [i.e. only look at whether Mr Bennett has breached his Undertakings and nothing else], then there is no reason to suppose that Mr Bennett can't deal with that.

He is a qualified lawyer although not currently practising. The more complicated matters for him might well be further down the line on his application to lift the stay on the libel proceedings and discharge some of the Undertakings but that is not being heard today. Nothing Mr Bennett has said today leads one to suppose that anything in this case will rectify his position.

J: I can't now recall - is it correct that you have a legal qualification?

TB: I was admitted to the Roll of Solicitors in 1995, in May, on the 2nd of May 1995. I ceased to practise in 1999 after being offered a full-time job elsewhere. I have not practised law since then.

J: Is there anything else you want to say?

TB: Yes, my Lord, I wish to refer to the comments made by the Parliamentary Committee in 2006, I think it was, where they discussed the ruling of the European Court of Human Rights in that case...I am trying to find the report of the Committee in my Bundles but I can't locate where it is, I don't know if Counsel can assist?

P: It is this one in the Defendant's Bundle...

TB: No, I don't think that's the one I'm referring to...

P: It is in Bundle G1, at pages A361 to A364...

TB: Yes, thank you. My Lord, I refer in particular to paragraphs 29 to 34 of the report of the Parliamentary Committee.

 
[REPRODUCED HERE FOR INFORMATION]:

3 Cases reviewed by the Committee in this Parliament

Steel and Morris v. the United Kingdom,no. 68416/01, § 59, ECHR 2005-II).

STEEL AND MORRIS V UK CONSIDERED

24. Steel and Morris v UK concerned the non-availability of legal aid in defamation actions. The applicants in this case were the defendants in a libel action by the McDonalds Corporation (the "McLibel" case) arising out of leaflets which they distributed outside McDonalds restaurants. They were refused legal aid, and represented themselves throughout the case, with occasional voluntary help from lawyers. The trial was the longest in English legal history (lasting for 313 days) and was preceded by 28 interim applications. McDonalds were awarded £60,000 in damages against the applicants for libel. At the time of the action, the Legal Aid Act 1988 precluded the grant of legal aid in libel actions.

25. The Court held that, given the length, scale and complexity of both the factual and legal issues involved in the hearing, neither the sporadic help provided to the applicants by volunteer lawyers nor the judicial assistance and latitude granted to them during the proceedings, was sufficient substitute for competent, expert and sustained legal representation. The disparity between the representation available to McDonalds, and that available to the applicants, could only lead to unfairness in such exceptionally complex proceedings. Therefore the denial of legal aid had meant the applicants could not present their case effectively to the court and had led to inequality of arms in violation of the right to a fair hearing under Article 6.1.

26. The Court also found that the absence of legal aid amounted to a disproportionate interference with freedom of expression rights under Article 10, pointing to the importance to a democratic society of even small and informal campaign groups disseminating information and fostering public debate
, including in relation to the activities of powerful commercial concerns. It further held that the size of the awards of damages made against the applicants (although never enforced against them) were so substantial compared to the applicants' very modest means, that they gave rise to a disproportionate interference with Article 10 freedom of expression rights.

27. Since 2000, the Access to Justice Act 1999 has provided the statutory framework for civil legal aid. It retains the presumption that legal aid will not be granted in defamation proceedings, but allows the Lord Chancellor at his discretion, on the request of the Legal Services Commission, to grant legal aid in exceptional cases, including cases of defamation (section 6(8)).

28. We wrote to the Secretary of State for Constitutional Affairs on 20 October 2005, asking whether, in light of the decision in the case, consideration was being given to legislative amendment or to a remedial order to rectify the incompatibility in the case
; whether guidance would be revised in relation to the discretion to grant legal aid in defamation proceedings under the Access to Justice Act 1999; and what steps had been taken to bring the decision to the notice of the courts and the relevant decision-makers in the Legal Services Commission.

29. The Secretary of State in reply stated the Government's view that there was no need for any specific legislative amendments or remedial orders to implement the judgment, following the coming into force of new provisions regarding exceptional grant of legal aid in the Access to Justice Act 1999. This the Government considered to be adequate to ensure that Article 6.1 rights are protected. He pointed to revised exceptional funding guidance issued since the judgment. We are grateful to the Secretary of State for providing us with a copy of this guidance.

30. We note that the revised guidance, though it refers to the Steel and Morris case as the "benchmark" by which the exceptional nature of a case is to be judged, retains a very high threshold for the grant of legal aid in defamation cases. Paragraph 13 of the guidance establishes that exceptional funding may be granted in three circumstances: where there is a significant wider public interest in the resolution of the case; where the case is of overwhelming importance to the client; or (the criterion relevant to compliance with Steel and Morris) where there are other exceptional circumstances such that without public funding for representation it would be "practically impossible" for the client to bring or defend the proceedings, or the lack of public funding would lead to "obvious unfairness" in the proceedings. The guidance goes on to note at para.14 that "the fact that the opponent is represented or has substantial resources does not necessarily make the proceedings unfair …there must be something exceptional about the client or the case such that for the client to proceed without public funding would be practically impossible or would lead to obvious unfairness."

31. It is certainly the case that the right to legal aid under Article 6.1 is dependent on a number of factors, including the importance of what is at stake for the applicant in the proceedings, the complexity of the law and procedure at issue in the case, and the applicant's capacity to represent his or her case effectively in court.

32. In our view the guidance would be of greater assistance if it provided more detail as to the effect of Steel and Morris. To advise that there must be "something exceptional" about the case which would mean that without legal aid the proceedings would be obviously unfair or practically impossible accurately states the principle in Steel and Morris, but does so in very general terms. In our view it would be more helpful if the guidance were to list those factors found in Steel and Morris to give rise to such a right to legal aid under Article 6, pointing out that the implications for the applicant of any award against them in the case; the length and complexity of the proceedings; and the disparity between the levels of legal assistance available to the parties to the case may, cumulatively, provide the exceptional circumstances which could lead to the "obvious unfairness" referred to in the guidance, and may therefore require an exceptional grant of legal aid.

33. In relation to the dissemination of the judgment, the Government points out that it has been reported in a number of reports and journals. Whilst we welcome this, we consider that, given the reliance on the judicial application of the current law in order to implement the judgment, and the general nature of the guidance referred to above, it would be appropriate to take more active measures of dissemination, including in particular its incorporation of the judgment in training for the Legal Services Commission.

34. It is notable that the revised guidance does not make any specific reference to defamation cases, and in particular does not refer to the particular freedom of expression concerns which may arise in defamation cases where legal aid is not granted. In Steel and Morris, the Court found that given the substantial burden on the applicants in proving the truth of the allegations they had published, without legal aid, a fair balance had not been struck between the protection of freedom of expression and McDonald's right to protect their reputation. The lack of procedural fairness and equality of arms between the parties therefore gave rise to a breach of Article 10. In our view the guidance should make reference to the need to ensure that denial of legal aid would not disproportionately interfere with Article 10, taking into account the Strasbourg jurisprudence and Steel and Morris in particular.

 
TB (cont.): The Ministry of Justice, as can be seen by this report, will always have the discretion to overturn a decision of the Legal Services Commission to refuse Legal Aid in a defamation case that has exceptional features.

J: But your MP has already written to the Ministry of Justice?

TB: Yes, but the Legal Services Commission has laid down eligibility criteria and they say that you must meet those, but if you look at paragraph 30 of the Committee's report on the Steel and Morris case they state that 'exceptional funding' may be granted in three circumstances:
(1) where there is a significant wider public interest

(2) where the case is of overwhelming importance to the client and

(3) where there are other exceptional circumstances such that without public funding it would be 'practically impossible for the client to bring or defend the proceedings'
...this suggests that the Ministry of Justice is able to overrule the Legal Services Commission...

J: I am not sure that this is going assist...You must appreciate the Court has to do its best to do justice to both parties - and in this case the Undertakings that you gave to the Court were back on the 25th of November 2009. This application was made as long ago as the 1st of December 2011 and what you are asking me to do is adjourn the case indefinitely because you can’t get publicly funded representation...so how is the Court ever to hear the case of the Claimants?

TB: I think it is straightforward, my Lord, in the reference to the Parliamentary Commission which met to discuss the Steel and Morris case - the current position of the British government is...

J: So someone that does have access to public representation can ignore the orders of the court?

TB: What the Parliamentary Commission said in their correspondence with Ministry of Justice over the Steel and Morris case was that in exceptional cases...such as this one, where I face the penalty if imprisonment... the Minister of Justice said that he had the power to overrule the Legal Services Commission.

J: What other efforts have you made to get legal representation, do we have any evidence of this anywhere?

TB: Yes, my Lord, I set this all out in the documents which are at A365 onwards in Bundle G1. My Lord, if I can just go back the Parliamentary Commission - if we look in particular at paragraph 30 on document A362...The final part of paragraph 30 there says that there must be something exceptional. The problem for me in these proceedings is that circumstances forced me to sign an unreasonable undertaking...

J: You can apply to the Court to be released from the Undertakings...in the meantime you have to obey the order.

TB: Can I just explain that in terms of my applying to vary the Undertakings I have the precisely the same problem as I had in the first place when signing them. The reason I signed them was that we have in this country grossly unfair libel laws where I was up against the most expensive libel lawyers and...

J: I can't see who is unfairly disadvantaged or not...a litigant-in-person may be the person who is unfairly disadvantaged. Or the litigant-in-person could be exploiting the situation, so I don't know who is unfairly disadvantaged...

TB: My Lord, Carter-Ruck have stated that they have already spent £288,503 on this case; they have Leading and Junior Counsel to assist them, this is the kind of expenditure that I could never hope to match...

J: I don't think they would have done that if you had been legally represented...

TB: My Lord. if I had, earlier, made application to be released from any of my Undertakings, this would, as you have ruled, have triggered the libel proceedings being re-instated and I could not have afford to be represented in those proceedings. The only reason that I have applied to be released from these Undertakings now is that I am making this application now to defend myself because the Claimants have made an application to imprison me. The reason I signed the undertakings...

J: You explained that to me before - your case on the undertakings...I'm not sitting to determine that today...today I am determining the Application to commit you for contempt of court...You have asked for a further adjournment. There will be no adjournment. You have asked in the past to make representation to the authorities that you should be publicly funded and those applications have not been successful.

The Claimants have a right to come to Court to hear their application and if I deny that I will be denying justice to the Claimants...the circumstances of this are somewhat unusual - but the issues that arise in the present application today are not issues of great complexity. It is the duty of the court to do justice to both parties. I am not goling to adjourn the matter...

TB: I will move on then to my third application. I have one witness, Ms Enid O'Dowd. She is a qualified accountant and professional auditor in Ireland and relevance of her evidence is that she has produced a report on the Claimants' fund-raising activity through the Find Madeleine Fund.

J: What has that got to do with your Undertaking and these proceedings?

TB: Many aspects of the way that Fund has been run are not in accordance with good accountancy practice and throw up major question marks about the use of public money...

J: You are asking me to hear things as if this were a libel action...what has Ms O'Dowd got to say that is relevant to the issues in this case?...

TB: My understanding was that at this hearing...whichever judge heard this...it would be looking at first of all the question of whether have breached the Undertakings and If so in what terms...but that this hearing would also be looking at the issue of whether or not there are prima facie grounds to vary the Undertakings and therefore whether or not the stay on the original Libel Claim should be lifted...

J: That was made to clear to you. I am not hearing both applications - I am hearing the application to commit. I'm not saying that she cannot give evidence on any other matter...but I am not giving her permission to give this evidence in these committal proceedings. However, I will say that I have taken the trouble to read it and I know what is in it.

TB: I apologise, my Lord. It is my fault and my misunderstanding

J: Ms O'Dowd has nothing to say about breaches of Undertaking?

TB: No, my Lord, I am sorry. It was my misunderstanding.

PAUSE

P: The way I was proposing to go forward was to summarise the Affidavit evidence in the committal proceedings - and I was going to invite your Lordship to read the Affidavits and take them as read.

J: Just a minute - Ms Page, you have reminded me of other matters I have in mind for the protection of Mr Bennett's interests and have focused my attention on matters which I will consider saying to Mr Bennett...

P: In paragraph 9 of our Skeleton Argument the position is that Mr Bennett can choose whether or not to rely on evidence of publication and the evidence of the Defendant should not be opened by the Application to the judge. The position since the submission of the Skelton Argument is that Mr Bennett has now put in a further submission of his own. I am not sure if Mr Bennett's submissions got into the bundle. They were made on the 30th of January 2013 and were sent to court as well. The Defendants' response to the Skeleton argument is in Bundle G2, page 855. Perhaps before your Lordship looks at it Mr Bennett should be asked whether he wishes to re-iterate his position as he has expressed himself previously - as to whether he may have had any change of heart - has my Lord found it?

J: No, one moment. I have the Bundle I read on 23rd January, page 505 in the Bundle to page 508 which includes a reading of this letter of the 30th of January – it is Mr Bennett's initial response to the Skeleton Argument...

P: It's also at Bundle G2, page 855, as a separate attachment.

J: What you propose to put in the Skeleton Argument is paragraph 12, in which you set out the rights of the Defendant in an Application of this kind and you might wish to remind Mr Bennett of those rights. There is no reason why I should not do that now.

What Ms Page has reminded me, is that a Defendant to a committal application is entitled, if he wishes, to give evidence - and if he does give evidence, then he must submit to any cross examination which the Claimant wishes to conduct. But a Defendant does not have to give evidence. It is like in a criminal trial. A Defendant is entitled to give evidence, but he does not have to. On the other hand, if he does not, then there is nothing to contradict the Claimants' case.

You have included in the Bundles a substantial amount of material...but it does not mean that you have to produce any evidence today - and if you do not - and the time for choosing is when the Claimants have put their evidence before the Court.

TB: My Lord, that I fully understand and that is quite plain.

J: It is up to you...I am simply saying that is open to you to do what you are going to do, namely to give evidence and then open yourself up to cross-examination. You can say now if you wish to.

TB: I will wish to give evidence in my own defence. I fully understand that that involves being cross-examined.

Never have I denied either sole or joint responsibility for publication of any of the 26 alleged breaches of my undertaking...I made that admission regarding publication to save time...there has never been any issue about either my joint or sole responsibility for those publications.

J: So the only issue is about what you did publish or is not in breach of your Undertakings.

P: In the light of that, and it is very helpful that Mr Bennett has done that, it is covered in the Skeleton Argument paragraph 13...I invited my Lord to explain to Mr Bennett what his position is now...it was only fair on him to do so.

I refer to Bundle G2, page 857.

The submission starts at p. 855 but at p. 857 there is a useful guide as to what his role was in connection with each individual item. I am going to whittle these alleged breaches down further.

If I can refer to the penultimate tab in Bundle G2...I refer to paragraph 5 with reference to paragraph 13 of the Skeleton Argument - where he admits to being the author - including where he has been replying to others that have made postings...including responsibility for reading out the list of 48 questions asked by the Portuguese Police.

There are two missing from numbers 21, 22 and 26 but it's clear that these two letters were written to Carter-Ruck and put on the Madeleine Foundation website.

On page 8 of the schedule there are two replies by Mr Bennett to Carter-Ruck so has not made observation on this...the letters sent to him personally...I will not take your Lordship through Nos. 22 and 26, that is, the 48 questions video of Mr Bennett reading out the questions.

J: I do not have a video of this but I have a transcript.

P: What I am proposing to do, since the witness statements are all about responsibility about publications, the first and second Affidavits of Ms Martorell – is to treat them as read. Then if Mr Bennett wishes to cross-examine Ms Martorell the Court may permit him to do so.

In relation to Mr Gunnill who is the gentlemen to whom the '60 Reasons' booklet was sold in 2010 he will be attending court from 2.00pm. What it now all boils down to is whether or not there was a breach of the Undertaking.

I will now take your Lordship to a further abbreviated selection from the list. First of all I begin with the first alleged breach since 2009. There were three stages of correspondence in which Carter-Ruck raised with him the claim that he had been breaching the Undertakings.

I am just confining myself to 13 only of the 26 alleged breaches and then fit them in and take them chronologically.

I am referring to these: Numbers 1, 4, 5, 7, 9, 12, 13, 14, 15,16, 20, 22 and 23.

Four of these are from 2010-2011 of which two were after the notification that an Application to commit was being prepared, and I was going to invite your Lordship to look at...that in addition to have bundle F from where the abbreviated items are filed and also to have Bundle E so as to get the sequence of events in terms of correspondence.

Bundle F contains the material alleged to be in breach.

Firstly, Exhibit IJH6 1 with 26 tabs.

Secondly, Exhibit IGH4, that is, Bundle E correspondence - just highlighting the point at which the breaches were first complained of - and for that purpose we will be starting at the breach which is found on the correspondence, page 97 of the first tab, namely the 5th of February 2010.

This was the sequence of events.

Item 1 was in February 2010...namely the sale of one '60 Reasons' booklet to Mr Gunnill. Mr Gunnill said this was prompted by the possibility of an article being published in the Sunday Express - there is one complaint of an alleged breach in relation to that sale - and that was very early on. The contents of that book we submit carries the highest meaning, mainly that book alleges the guilt and not merely suspicion of causing the death of Madeleine McCann and is one of the few of Mr Bennett's alleged breaches where we say that an allegation of actually causing death comes into it.

In summary, we say that what it conveys is absolutely and categorically suggesting that Madeleine McCann died in the holiday apartment in a way so grave and in such grave circumstances that it necessitated the parents to covertly hide the body – the booklet as a whole strongly suggests Madeleine McCann's death in the apartment and not merely just a cover-up. It suggests that the McCanns were hiding and disposing of the body covertly...it strongly suggests of a cause of death for which the parents were responsible and not merely just a cover-up of fabrication and a series of lies. It was an allegation of wicked behaviour...It suggested that the fact and cause of her death was something that the parents have gone to such desperate lengths to cover up - it even suggested British government involvement in the cover-up.

He purports to be agnostic in reports about what happened to Madeleine McCann but suggests that the parents had gone to such lengths in terms of a cover-up to even include the government.

Item 4 in the Bundle. Breach 4. I refer to correspondence in the Bundle, letters on the 5th of February 2010; there was a series of exchanges. These were about the sale of the '60 Reasons' booklet and in the 3rd paragraph down there is reference to the fact that he was directing enquiries to websites where it could be downloaded or purchased. There was also a complaint by the Claimants about an article on the Madeleine Foundation website by Barbara Nottage.

He alleged there had been entrapment of him to induce him to make the sale...

I go on to item 4. There, there are a number of versions of open letters to Teresa May. There is no complaint about Mr Bennett writing to the Home Secretary and to the Prime Minister, he is of course at liberty to do that. As far as the McCanns are concerned the complaint is about the publication to the world at large...and the same applies to the letter to D.I. Redwood.

The first of these letters, numbered 1 to 4, says...

[here P. reads out sections of the appropriate letters]

We say this is campaigning material and incitement...for Mrs May to heed the evidential points Mr Bennett wants to make about what happened about Madeleine McCann.

In Bundle E you will find the second letter of complaint by Carter-Ruck to Mr Bennett. It is in the second batch of correspondence in which they complain of breaches.

They record in the 2nd paragraph the Undertakings that were given and the Court order...The letter says that "It is clear on occasions that you have breached your undertakings".

There are also complaints about other documents which are in the longer list of complaints...

[P. now reads out portions from the letters].

If I now go to page 112 of the Bundle, Mr Bennett responded - his substantive response was dated the 19th of July. I will leave him to put his arguments to you, but here he says in answer to the complaint about his appearing in a video reading out the 48 questions that the video had already been taken down.

He posted up a reference to saying that Carter-Ruck have asked us to take this down – see bottom line, page 112 paragraph 4, "In the light of your letter", he says.

Then there is his next letter of the 21st of July, at page 115, it appears from that that he had taken legal advice...

Now look please at the top of page 118 – look at the last sentence where he says: "We are advised that there can be no ban on reasonable discussion of Dr Amaral's book"...

Then we look at his posting on the Jill Havern forum, this is where Mr Bennett says he was the author...Here is analysis of the case by I think a female criminal profiler [Pat Brown] - look at the first page of the document...someone has underlined page 103, tab 12 where it refers to the McCanns case.

[P. reads out the bits that have been underlined]

It was a posting on the Jill Havern forum...

TB: Which Bundles are you referring to please?

P: Bundles E and F.

J: There is a posting on the Jill Havern forum on the 4th of July and then Carter-Ruck write again on the 3rd of August.

P: Yes, Carter-Ruck write again to Mr Bennett on 3rd August. The letter says: "We note you are taking legal advice on our letter of 15th July".

If you go down to the 4th paragraph of the letter, it was that: "...no complaint was made about you sending the letter...only that you published it on the internet...

[P. reads out an extract from the letter]

...Mr Bennett is being reminded again...he is told that he is not complying again with his Undertakings.

Now I refer to Bundle F, the item on 24th September 2010, that's item 5 in the material. It's headed 'News from Madeleine Foundation'. In this document Mr Bennett says he is the author of it...look at the 6th paragraph of it which is the last paragraph on the first page, where he says that the Madeleine Foundation has sent a donation of 600 euros to a legal defence fund for Dr Amaral...

[P. reads out part of the letter]

...and he says that there has been no toning dewn...

In October 2010 the Portuguese Appeal Court lifted the injunction on Dr Amaral's book.

Then on the 2nd of February 2011 [item 13 in the material] comes in a letter from Mr Bennett referring to a broadcast by Clarence Mitchell on the 6th of January 2011, see Bundle G1, page A81. There is an extract of his interview there on Radio Humberside and Clarence Mitchell is quoted from the transcript prepared by Mr Bennett. Mitchell says that "Kate and Gerry know their daughter well enough..." [P. continues to quote from the transcript].

This was, I will suggest, used by Mr Bennett to say since it's only a working hypothesis that Madeleine was abducted then other hypotheses can be advanced.

He says that he can advance the hypothesis that Madeleine died in the apartment - but that is not what you get out of this document – what Clarence Mitchell actually says is that she may have wandered out, or a premeditated operation took place – that is why Clarence Mitchell says the McCanns don't believe she wandered out of the apartment.

Then there was a posting on the Jill Havern forum of a short article by Wendy Murphy in which two names of other children and Madeleine McCann were given in the context of child sex abuse and the use of sedatives. The heading for this article was 'child porn' in bold in the preceding sentence...it said: 'When children die and parents are...

Then look at the 2nd page in bold...the paragraph at the top...there's a reference to Madeleine McCann.

[P. quotes from the paragraph].

Everything that follows from there is his campaigning.

I refer to item 14 in Bundle F, 16th of April 2011, where Mr Bennett announced the availability of the 50 FACTS leaflet...this links in with number 25 in a later tab, together with tab 14.

[P directs J to the leaflet Mr Bennett distributed on 31st Mmarch 2011 before his posting]

...but it's substantially the same and was posted on the Jill Havern forum and Mr Bennett says please copy this leaflet and distribute it – and then goes on to talk about the dogs and so on - but the message is clear enough, it is: 'Can you be sure that Madeleine was taken by a stranger?'. The message is this; once you have read this leaflet you will know – you jolly well should be concerned.

Then I move to the next tab, the 2nd of May.

It is Mr Bennett replying to a posting by someone called Garth...on the Jill Havern forum...Garth says that Mr Bennett is paranoid, and he reacts. Garth quotes from letter - and then, quoting from the reply from Mr Bennett, he says he is not reporting on the book...he is clearly campaigning.

[P then goes on to read more about Garth and the posting]

So this, then, is Mr Bennett posting his personal views. He says: "I have seen evidence" – see page 198.

Then you see the first reply by Mr Bennett where he goes into the dog's findings.

Then there is another reply by Mr Bennett to Garth where he says that Mahatma Ghandi was a fake, like lots of other things are fake in the Maddie case.

Then on page 200 there is a sign marking the break and then Garth again and then a reply by Mr Bennett, where he refers to hiding bodies...

[P continues to read from the thread started by Garth]

On the 12th of May the McCanns book is published which is neither here or there...

Then on the 14th of May, item 16, the next tab...this is another posting on the Jill Havern forum...Another similar thing, where Pauline has posted, and then Mr Bennett comments.

In his reply, she says she has just watched the McCanns interview on TV.

[P reads on from there]

Mr Bennett then replies to Pauline.

On the 18th of May Mr Bennett publishes his 'open letter to the Prime Minister' - item 7 of this bundle. It was published on the Madeleine Foundation website.

He says there is a need a full public enquiry into all aspects of the disappearance of Madeleine McCann.

To be continued...

With thanks to Nigel at McCann Files

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