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4592 to 4649 Letter to the
Attorney General regarding
investigation details
17- Processo 17 Pages 4592 to
4649
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Processo Volume XVII - Pages
4592-4649
-------------------------- I - Introduction
Before actually entering the
appreciation of
the present
inquiry,
it is useful to take a summarised
look at the enormous dimension of
the
inquiry
which is constituted of 17 Volumes,
with a global processing of
approximately 4500 leafs, 9
appendixes that are integrated by 55
Volumes, in which 12000 leafs and
other relevant pieces were gathered,
analysed and treated; further 22
dossiers were constituted, with more
than 5000 leafs, concerning fanciful
or senseless news, yet organised out
of mere caution.
Therefore, this
inquiry,
which demonstrates the pertinent
commitment of the Polícia Judiciária
(PJ) in the resolution of the
disappearance of minor Madeleine
McCann, demanded from it
the
performance
or coordination of several
diligences as described in the
various files, namely: the
preservation of the location of the
fact (although it had already been
rummaged by numerous people as we
will discuss ahead); several
collections and examinations on the
existence of eventual traces; a
circumstantiated photographic
report; the installation, in the
first
24 hours,
of an extensive operational scheme,
including the participation of
several police and civil protection
forces, in a total of over 130
elements; the reinforcement, in the
next
24 hours,
of said operational scheme, with the
mobilisation
of over 300 members of police forces
and public entities; the
installation of control posts on
roads and on the Southern
terrestrial border with Spain; the
use of sniffer dog teams; the use of
exceptional
search and
rescue
teams (aerial, terrestrial and
maritime), alerts and diffusion all
over the country and abroad. As a
mere example, during the following
weeks and on a permanent basis, two
helicopters, four vessels and
several all-road vehicles, apart
from
private
airplanes
and boats, were employed; in the
same manner,
the
investigation
operations were coordinated with the
specific search operations, with
hundreds of diligences performed,
like the identification and the
formal and informal hearing of
citizens, door-to-door searches, in
the impressive number of 443, at the
residences and tourist resorts of
Vila da Luz and its surroundings,
the identification and search of
vehicles, and searches on the
terrain, in an area that started out
covering 15 Km2, and progressively
grew to 30Km2 (where special
attention was paid to locations like
wells, passages, tunnels, reservoirs
and lakes).
During the following days, more than
700 persons who might possess some
relevant
information
about the disappearance were
formally and informally questioned,
with the PJ using more than 100
officers from several departments of
Portimao, Faro and Lisbon, who
worked on a consecutive base of
24 hours
per day to accomplish the task.
All the locations where there could
be images that might be related to
the case (like, for example,
restaurants and petrol stations)
were equally consulted, and the
telephone lines of the permanent
services of the Portimao and Faro
departments were made available. A
mobile police post was installed in
Vila da Luz to collect
information.
Apart from the already mentioned
identifications and door-to-door
house searches, the listing, contact
and interview with known local
suspects with previous connections
to sexual criminality against
minors, was performed.
The PJ was especially careful to
promote regular meetings with the
missing child’s parents and also
designated a Liaison Officer for the
family, for permanent support and
relationship, with the active
following and cooperation of the
Royal British Consulate in Portimao.
Shortly after the beginning of
the investigation,
continuous relationships with the
Leicestershire Constabulary, which,
for the effect, sent several of its
officers to Portugal, with the PJ
equally sending officers to the
United Kingdom, were established,
and intense cooperation and
understanding was registered between
these entities, which were united in
the common purpose of searching for
the missing child, and for the
truth.
In the
inquiry,
it is clear that the PJ never
dismissed any
information
or credible elements that might lead
to the revelation of facts, with
over 2000 formal and informal
diligences carried out over the
months, and the PJ having explored,
nationally and internationally, all
of the
information
with a higher or lower degree of
credibility, with special relevance
for tens of supposed sightings or
trackings of the child, most of
which were widely reported by the
press.
As an example, cases of
international cooperation can be
mentioned, namely with Spain, the
Netherlands and the United Kingdom,
which led to the detention or
identification of persons that tried
to introduce misleading
information
about the hypothetical destiny or
tracking of the child.
In summary, it is notorious that the
PJ spared no efforts in the sense of
making exceptional technical, human
and financial means available to
find the child and to discover the
truth of facts, having been
completely accompanied in this
effort by the Leicestershire
Constabulary, the police force that
is located in the city of Leicester,
where most of the people in the
holiday group come from.
II - About the
Inquiry
A - General Analysis
In
the present
process, the disappearance of the
child of British nationality,
Madeleine Beth McCann, daughter of
Gerald Patrick McCann and Kate Marie
Healy, aged three on the date (about
to become four, as she was born on
the 12th of May 2003), was
investigated.
Concerning the time and the place,
the facts have taken place on the
3rd of May of 2007, within the time
span, according to testimonies,
between 9.05 p.m. and 10 p.m., at
the resort called “Ocean Club”,
located in Vila da Luz – Lagos,
where the child’s family, together
with a
group of seven
persons, - with whom they kept a
friendship that had started before
this trip and which was based on
professional relations and on other
leisure trips -, were enjoying a
holiday period, with the duration of
one week, having arrived in Portugal
on the 28th of April 2007, more
precisely at the Airport of Faro,
coming from the United Kingdom.
At check-in, they were placed in
several apartments, all of them in
block G5, next to each other, which
was a demand, or, at least, a
suggestion of the entire group,
which was composed of the couple
Gerald McCann, Kate Marie Healy and
their children Sean, Amelie and
Madeleine, (apartment 5A), David
Anthony Payne, Fiona Elaine Payne,
their children Lilly Payne and
Scarlett Payne and mother-in-law
Dianne Webster (apartment 5H – first
floor), Russell James O’Brien, Jane
Michelle Tanner and their children
Ella O’Brien and Evie O’Brien
(apartment 5D) and Matthew Oldfield,
Rachael Mariamma Jean Mampilly and
their daughter Grace Oldfield
(apartment 5B), with
the apartment
that was occupied by the McCann
family being the one that was most
accessible and had the easiest
visibility from the outside.
The behaviour of the group’s members
until the day of the event was
shaped by the normality of a daily
routine, which, as far as the McCann
couple is concerned, consisted of
getting up at around 7.30 a.m. and
having breakfast in
the apartment;
at around 9/9.30 a.m. they left
the apartment
and left their children at the
crèche where they remained until
around 12.30 a.m. After lunch, at
around 1.30 p.m.,
the children
went to play by the pool and around
2.30 p.m. they left them at the
crèche again, where they stayed
until around 5 p.m., the time at
which
the children
went for high tea at the bar, which
was done in a group, independently
of age, in a recreational area next
to the “Tapas” restaurant; between 5
and 5.30 p.m., they returned to
the apartment,
where around 5.30 p.m. they bathed
the children,
that went to bed at 7.30 p.m.
From the 2nd day of their stay
onwards, the couple had dinner at
the “Tapas” Restaurant, with the
rest of the group, while all of the
children stayed asleep alone in
their apartments, with the
surveillance initially being made by
each couple, whose members took
turns in checking the children, and
as the days went by, each member who
went to check his children would
take the chance and check on the
rest of the children, with the
exception of the Payne couple, that
possessed their own technological
control system, through baby
listening monitors, an issue that we
will discuss in more detail further
ahead.
All of the group’s members including
the McCann couple were questioned
several times, at length and in
detail, in order to collect the
greatest possible number of relevant
details that could assist the
investigation in discovering the
truth of the facts.
From the analysis of the total of
depositions that were made, the
existence of important details that
were not fully understood and
integrated became evident; details
that would need to be tested and
tried on location, in order to
establish the apparent failures to
meet and lacks of synchrony, even
divergences, in a suitable
diligence, which was not possible to
perform despite the commitment that
was displayed by the Public Ministry
and by the PJ to fulfil that
purpose, as we will see in closer
detail, further ahead.
Considering the participated facts,
conjugated with the information that
was offered. namely by the
witnesses, and with the information
that was made available through the
development of the inquiry, the
investigation equated the
verification of several hypotheses:
abduction, for the purpose of sexual
exploration or others (i.e.
posterior adoption, child traffic,
organ traffic), without homicide;
abduction, followed by homicide with
(or without) concealment of a
cadaver, hypotheses that were
considered under the double sides of
the abduction (if it existed) having
occurred due to feelings of
vengeance of the abductor(s) towards
the parents (directed abduction) or
simply taking advantage of the
circumstance that the child was in a
situation of actual vulnerability
(opportunity abduction), accidental
death, with posterior concealment of
the cadaver and, underlying all of
these possibilities, abandonment,
substantiated as a crime under
article 138 of the Penal Code. The
possibility of theft, whose author
would have been disturbed by the
child Madeleine and who, in order to
prevent her from disturbing him,
neutralised her in a violent manner,
and, afterwards, took her with him,
dead or alive, in order to leave no
trace that could eventually lead to
his identification.
The systematisation and order that
were given to the Inquiry should
further be stressed, as it
facilitates an easy approach in its
consultation, despite its volume and
the complexity of some of the
issues; with attention to the
synthesis that was made and that is
visible namely in the index and in
the listing of the persons that
intervened in the process.
Therefore, we will follow, despite
some isolated diversions, the
division that was observed in the
Final Report that was made by the
Polícia Judiciária:
1 – General diligences to locate the
child, performed by the Polícia
Judiciária, the Polícia Marítima
[Maritime Police] and the G. N. R.,
and added to the inquiry’s main
body;
2 – The suspicions about Robert
Murat and his arguido status;
3 – Sniffer dog searches and the
consequent constitution as arguidos
of the British child’s parents,
Gerald McCann and Kate Healy.
Concerning the appendixes and their
contents, they will be analysed
within the 3 main issues into which
the investigation has been divided.
B - Detailed Analysis
[this section to be completed soon]
C - The suspicions about
Robert Murat and his constitution as
an arguido
Apart from the suspect being seen on
the location of the occurrence and
speaking about the event with the
persons that were around there,
namely journalists, his name was on
the list of interpreters, and he
made a commitment as such
(Commitment Act on page 1577).
On the 6th of May 2007 the PJ
received a fax from the
Leicestershire Constabulary (page
307) in which this police transmits
that a reporter from the Sunday
Mirror, Lori Campbell, had
communicated that certain behaviours
of the suspect compromised him,
namely by giving his name without
any information about himself, by
having conflicting relationships
with several people and being
worried when a photograph of him was
taken for that newspaper, which led
the English Police to request that
he was relieved of interpreter
duties.
The files further contain:
- On page 328 a report of an
external diligence tells that, on
the 4th of May 2007, the suspect
offered his assistance to the GNR to
help with anything that was needed,
namely as an interpreter;
- That on the 6th of May 2007 the
signatory of said report was
approached by several journalists
indicating the arguido with
suspicious behaviours, in the sense
of what was already explained
concerning the fax;
- On page 461 an anonymous
information, where a telephone call
from a woman who tries to
incriminate the suspect is reported,
although no facts were presented;
- On page 957 there is a report
about an external diligence that
resulted from a trip to the location
where, according to witness Jane
Tanner, she saw, a short time before
she knew that Madeleine had
disappeared, a man carrying a child
walking into the direction of the
suspect’s house, Casa Liliana;
- On page 960 the service
information according to which the
curiosity that the arguido showed in
the investigation was found strange.
In order to be able to be heard
about the suspicions that befell
him, Robert Murat was made an
arguido on the 14th of May 2007 [9],
having declared that he has already
served as an interpreter during
process actions, that he has a
daughter that was born in 2002 and
lives in England where he visits her
several times, having returned to
Portugal on the 1st of May 2007 and
that he rented a vehicle because his
mother uses the VW at the stand that
was put up in Luz to support
Madeleine’s family.
That on the 3rd of May 2007 he
didn’t leave home in the evening,
having heard a siren at around 10.30
p.m. or shortly afterwards, a fact
that he commented with his Mother,
but didn’t come outside to
investigate.
On Friday the 4th of May 2007 he was
alerted by his Mother to the
disappearance of a child in Praia da
Luz, according to news on “Sky
News”, having then walked to the
location of the disappearance, where
he was introduced to the child’s
parents, offering his assistance.
That afterwards, with a GNR officer
and a member of the resort staff,
they entered several apartments,
with the purpose of locating the
child. That before this occasion, he
didn’t know the inside of the “Ocean
Club”.
He further clarified, because he was
asked, that he was the main suspect
among the journalists, therefore
from that moment onwards he refused
speaking to them, including in that
refusal the mention of his full
name, or allowing to be
photographed.
He further clarified that he has
nothing to do with the child’s
disappearance, and knows nothing
about this case, explaining that he
asked an English policeman about the
manner in which the British police
was able to trace a person in a
given location and at a given time
and if the police could trace him at
home through his mobile phone, but
he did this to prove his innocence.
On the other hand, rather unpleasant
references were made to his
personality, as was the case of a
witness that has known him for many
years [10].
It should be further referred that
witnesses Rachel Mampilly, Russell
James O’Brien and Fiona Elaine Payne
mentioned that they saw arguido
Robert Murat at the “Ocean Club”
resort on the night that Madeleine
disappeared.
During the confrontation that took
place on the 11th of July 2007 [11],
these witnesses, just like the
arguido, maintained their previous
positions.
Nevertheless, the positions are
different regarding the witnesses
that were heard, because while
Sílvia Baptista [12] admits it is
very possible that a person with the
arguido’s characteristics was
helping to search for Madeleine on
the night of the disappearance,
other witnesses, Paul Wright, June
Wright, Barend Weijdon and GNR
officer José Baptista Roque [13],
among other officers, mentioned that
they didn’t see the arguido on
location that night.
Facing the suspicions that befell
the arguido, considering what he
seemed to transmit and the type of
occurrence that was under
investigation, whose real scope was
not, like now, delimitated, and in
order to confirm them or to set them
aside, taking into account that they
were indispensable for the
continuation of the investigation,
searches were made at the arguido’s
house as well as at his mother’s and
telephone interceptions were carried
out, both on the arguido and on
those with whom he directly or
indirectly interacted, namely with
whom he met on an almost daily basis
and with whom he kept telephone
contact.
Searches were also performed at the
location where he started to spend
the night at, the Quinta Salsalito,
which is a vast place of difficult
control, therefore the search on
this location might permit the
collection of elements that are
reputed to be of high interest for
the investigation, but those
searches had no effect whatsoever.
During the searches at Casa Liliana,
two rain water cisterns near the
pool were checked, the missing
minor’s trail was searched by the
GNR’s sniffer dog team, both inside
and outside the residence, searches
were equally performed inside three
vehicles that were parked there, and
the matching photographic report was
carried out by members of the CSS
(Crime Scene Sector), experts from
the Criminal Police Lab, but nothing
positive was attained.
From the forensics exams to Serghei
Malinka’s, Robert Murat’s and Jenny
Murat’s computers [14], it could be
concluded that the contents of the
examined drives produced nothing
that could compromise them as
participants in any illicit
activity, namely the one that was
being investigated in the process.
From the interception of
communications, the telephone
contact record of arguido Robert
Murat, his mother Jennifer Murat,
witnesses Michaela Walazuch, Luís
António and Sergey Malinka; records
and maps of the telephone calls that
were made from public telephone
booths in Praia da Luz nothing flows
that could have any indicative use.
From the analysis that was performed
on every contact, from the 1st of
November 2006 until the 19th of July
2007, by Robert, Michaela, Sergey,
Jennifer and Luís António, results
that Robert and Malinka, only
contacted each other eight times
[15], that there were no relations
between Sergey and Luís António, nor
between him and Robert, nor between
either of them and the Murat
residence, between the 30th of April
and the 4th of May 2007 [16].
Searches were performed at the
residence, and the subsoil was
explored with a Geo-radar (GPR), -
which consists of a radar antenna
that transmits electromagnetic
energy in the shape of an impulse
within frequencies between 25 MHz
and 1 GHz. Those impulses are
partially reflected through
sub-superficial geological
structures, captured with a
receiving antenna and marked as a
time record of continuous
bi-directional path which is
presented as a pseudo-geological
record section – e these technical
searches neither found nor marked
anything of interest to the files
[17].
Searches were equally performed with
the use of sniffer dog support, with
the dog Eddie that detects cadaver
odour, and it was verified that the
dog signalled nothing [18]. The
examination of the targets’ vehicles
(arguido and people who interacted
with him), nothing was found.
Therefore, despite the suspicions
that befell the arguido, - partly
because they were induced, albeit
involuntarily, by himself, namely
the protagonism that he assumed both
with the group of friends, which the
McCann couple was part of, and with
the journalists, showing his great
curiosity in finding out what
diligences had been performed and
which were to be performed, and by
objective elements and the fact that
his residence is located in the
direction which, according to Jane,
was taken by the stranger who
carried the child in his arms – and
which therefore demanded his
constitution as an arguido. It is
nevertheless certain that through
the collected evidence, said
suspicions gradually emptied
themselves, until the point where
any connection of the arguido to the
child’s disappearance was set aside,
which is why, at the end, the
archiving of the process will be
determined.
[9] Notice on page 1169
[10] Questioning report on page 1288
[11] Confrontation report on pages
1957/1958
[12] Questioning report on page 1290
[13] Questioning report on pages
1338, 1328, 1330 and 1349
[14] Forensics – Appendix-1, Vol.
IV, V and VI
[15] Analyses report, annex 87
[16] Analyses report, annexes 82 to
86
[17] Search and Apprehension report
on page 2130-v
[18] Dog Inspection report, page
2131
D – Dog searches and
Constitution of Gerald McCann and
Kate Healy as arguidos
In an attempt to advance towards the
discovery of Madeleine’s
whereabouts, a Report was written by
Mark Harrison, National Counsellor
for searches at the level of all
police agencies in the United
Kingdom, concerning Missing Persons,
Abduction and Homicides, with his
role comprising the counselling in
relation to those people.
Thus a request for help in
counselling at the level of searches
was made, with part of that help
being made through the action of
dogs that are trained to detect
mortal victims (VRD), and dogs with
advanced training in tracing very
small samples of human remains,
bodily fluids and blood, in any
environment or terrain (EVRD).
From the searches with the dogs
[19], whose video recordings are
appended to the files, the following
resulted:
1 – The tracking dog named “Eddie”
(dog that signals cadaver odour)
“marked” (signalled) inside the
couple’s bedroom, in apartment 5A,
in an area next to the wardrobe (cf.
page 2054 and/or annex 88);
2 – That same dog “marked”, in the
same apartment, an area near the
living room window, which has direct
access to the street, behind the
sofa (cf. page 2054 and/or annex
88);
3 – Still inside the apartment, the
dog “marked” a garden area, in a
square corner, vertically to the
balcony (cf. page 2054 and/or annex
88);
4 – In the “Vista do Mar” villa, the
house that was rented by the McCanns
after leaving the Ocean’s Club, the
dog “marked” the area of a wardrobe
that contained inside the soft toy
that belonged to Madeleine McCann
(cf. page 2099 and/or annex 88);
5 – In the examination of the
clothes, which was carried out in a
pavilion in Lagos, this dog
signalled/”marked” pieces of
clothing that belong to Kate Healy
(cf. page 2101 and/or annex 88);
6 – This dog signalled the lower
outside area next to the driver’s
door of the Renault – 59-DA-27 –
that was rented by the McCanns (cf.
page 2187 and/or annex 88);
7 – Finally it “marked” the key/card
of that vehicle when it was hidden
under a fire prevention sand box
(cf. page 2187 and/or annex 88);
8 – The tracking dog named “Keela”
(dog that detects the presence of
human blood), “marked” an area in
the living room, in apartment 5A,
which had already been “marked” by
“Eddie” (cf. page 2054 and/or annex
88);
9 – After the tiles which this dog
had signalled during a first
inspection, and which are mentioned
under the previous item, were
removed, the dog signalled the same
area again (cf. page 2190 and/or
annex 88);
10 – It made another “marking” on
the lower part of the left hand side
curtain of the window that we have
been referring to (cf. page 2190
and/or annex 88);
11 – It “marked” the right lower
lateral part of the inside of the
boot of vehicle 59-DA-27 (cf. page
2187 and/or annex 88);
12 – Further concerning the vehicle,
“Keela” “marked” the storage
compartment, on the driver’s door,
which held the vehicle’s key/card
(cf. page 2187 and/or annex 88);
13 – This dog also marked the
key/card when the same was hidden
under the fire service sand box,
inside the parking lot.
The viewing of these videos, whose
contents is very impressive, becomes
essential to understand the dogs’
action and signalling, more than by
any words.
These dogs, which had already been
used on multiple occasions by the
Scotland Yard and by the FBI with
positive results, are evidence
collection means and do not serve as
evidence; any residue, even if
invisible to the naked eye, which is
collected using this type of dogs,
has to be subject to forensics
testing in a credentialed
laboratory.
Martin Grime, the dogs’ instructor
himself [20], mentions in his
report: “Whereas there may be no
retrievable evidence for court
purposes this may well assist
intelligence gathering in Major
Crime investigations”; or scientist
Dr John Lowe [21] who refers that
the FSS has no scientific support
about the use of the dogs as a
fundament for the collection of
biological residues and that
normally take the handler’s word for
certification, that asserts that the
dogs are more sensitive than any
chemical technique or other
techniques that are normally used by
crime scene sector experts.
In that sense, forensic examinations
were performed in the areas and on
the objects that were marked and
signalled by the blood dog,
especially in a credentialed British
lab (Forensic Science Service - cf.
Appendixes I and VII – FSS Final
Report), and also, some of them, at
the National Institute for Legal
Medicine (cf. Appendix I), whose
final results failed to corroborate
the canine markings, that is to say
that cellular material was
collected, which was nevertheless
not identified as belonging to a
specific person, and it was not even
possible to establish said
material’s quality (namely if it
could be blood or another type of
bodily fluid).
It should be stressed that the
option towards that Laboratory was
and remains obvious taking its
prestige, its independence and its
scientific reputation into account,
although on an initial approach
there seemed to be the possibility
of compatibility between MADELEINE’S
DNA profile and some of the
collected residues (of which those
that existed in the Renault Scenic
vehicle that was rented by the
McCann couple were in great
quantity), taking the contents of
the fax that is reproduced below
exactly as it appears in the files,
into account (pages 2620 and
following)
* * *
From: "Prior Stuart"
To: "Task Portugal"
Sent: 04 September 2007 10:14
Subject: FW: Op Task - in Confidence
_________
From: Lowe, Mr J R
Sent: 03 September 2007 15:01
To: stuart prior
Subject: Op Task - in Confidence
Stuart,
Firstly, here are the last three
results you are expecting
An incomplete DNA result was
obtained from cellular material on
the swab 3a. The swab contained very
little information and showed low
level indications of DNA from more
than one person. However, all of the
confirmed DNA components within this
result match the corresponding
components in the DNA profile of
Madeline McCann. LCN DNA profiling
is highly sensitive, it is not
possible to attribute this DNA
profile to a particular body fluid.
There is no evidence to support the
view that Madeline McCann
contributed DNA to the swab 3B
A complex LCN DNA result which
appeared to have originated from at
least three people was obtained from
cellular material recovered from the
luggage compartment section 286C
2007 CRL10 (2) area 2. Within the
DNA profile of Madeline McCann there
are 20 DNA components represented by
19 peaks on a chart. At one of the
areas of DNA we routinely examine
Madeline has inherited the same DNA
component from both parents; this
appears therefore as 1 peak rather
than 2, hence 19 rather than 20. Of
these 19 components 15 are present
within the result from this item;
there are 37 components in total.
There are 37 components because
there are at least 3 contributors;
but there could be up to five
contnbutors. In my opinion therefore
this result is too complex for
meaningful
interpretation/conclusion.
Why?...
Well, lets look at the question that
is being asked
"Is there DNA from Madeline on the
swab?"
It would be very simple to say "yes"
simply because of the number of
components within the result that
are also in her reference sample.
What we need to consider, as
scientists, is whether the match is
genuine and legitimate; because
Madeline has deposited DNA as a
result of being in the car or
whether Madeline merely appears to
match the result by chance. The
individual components in Madeline's
profile are not unique to her, it is
the specific combination of 19
components that makes her profile
unique above all others. Elements of
Madeline's profile are also present
within the the profiles of many of
the scientists here in Birmingham,
myself included. It's important to
stress that 50% of Madeline's
profile will be shared with each
parent. It is not possible, in a
mixture of more than two people, to
determine or evaluate which specific
DNA components pair with each other.
Namely, we cannot separate the
components out into 3 individual DNA
profiles.
Therefore, we cannot answer the
question: is the match genuine or is
a chance match.
The same applies to any result that
is quoted as being too complex for
meaningful inclusion/interpretation
What questions will we never be able
to answer with LCN DNA profiling?
When was the DNA deposited?
How was the DNA deposited?
What body fluid(s) does the DNA
originate from?
Was a crime committed?
These, along with all other results,
will be formalised in a final report
Please don't hesitate to contact me
if you require any further
assistance
kind regards
John
but whose compatibility, as can be
concluded from the above mentioned
final FSS report, was not confirmed
after the performance of lengthy and
complex tests.
Previously to these indications, is
the circumstance that the Parents
were the last known persons who had
been with Madeleine, alive and
traced, a circumstance that in
itself made them subject to
investigation.
On the other hand, there was
information, which was not confirmed
afterwards, that the McCanns, while
focused on stating an abduction
theory, had contacted the British
media (Sky News), before calling the
police authorities.
Confronted with these elements,
namely the possibility of the
existence of a cadaver in the
apartment and in the vehicle that
was used by the parents, founded
suspicions of their involvement were
raised.
As they were summoned to depose
again, while there was no plausible
explanation for those situations and
as they were to be confronted with
the dogs’ findings and with the lab
information, which were susceptible
of rendering them responsible as
authors of crimes (at least, of
neglectful homicide and of
concealment of a cadaver), they
were, obligatorily and inexorably,
made arguidos, in strict obedience
to article 59 nr. 1 of the Penal
Process Code; thus the disposition
from nr. 4 of article 58 (presently
5) – its new redaction was not in
force yet, taking into account that
they were made arguidos on the 6th
of September 2009 – and on the other
hand they could benefit from arguido
status, with all the rights and
guarantees of defence that are
inherent to it, despite the stigma
that is associated with it, which is
techno-juridically misadjusted. In
effect, the constitution and
questioning as arguidos, while used
to confirm indications towards the
committing of crimes, are also used,
with equal strength and reason, to
infirm indications and to eliminate
suspects.
As judicially stressed in the
sentence dated 06.10.1990 by the
then Judge of the Police Court of
Lisbon. “The authority that directs
the inquiry is not free to postpone
the moment when a witness passes
into arguido status (…) if
diligences are being performed,
which are destined to prove her
imputation, that affect her
personally (…)”
Colectânea de Jurisprudência, 1990,
vol. IV. p.323 and following.
The constitution of Gerald and Kate
McCann as arguidos at that moment is
nothing more that the practical
fulfilment of the right to defence
of those arguidos, which is to say,
to ensure their concrete rights to
“co-determine or conform the
process’ final decision. Said rights
assume consistency and
effectiveness, according to the new
Code, right after the moment of
constitution as an arguido, and
therefore, still during the inquiry
and the instruction.” - Professor
Jorge de Figueiredo Dias, "Sobre os
sujeitos processuais no novo Código
de Processo Penal" Jornadas de
Processo Penal, CEJ, Livraria
Almedina, 1988, p 28.
Therefore, under the light of
interpretation of the elements that
constituted the process at that
date, there is no doubt whatsoever
concerning the legitimacy and
legality of their constitution as
arguidos, as it is also certain that
any investigation has its own
dynamics and the continuous flow of
elements into the files may alter
the situation, as it has, and no
judgment or presumption of guilt can
be extracted from such a process
act.
[19] Cf. digital drives contained in
Appendix III
[20] Page 2271
[21] Questioning file on page 3899
E – About the Interest of
the Reconstitution
Taking into account that there were
certain points in the arguidos’ and
witnesses’ statements that revealed,
apparently at least, contradiction
or that lacked physical
confirmation, it was decided to
carry out the “reconstitution of the
fact”, a diligence that is
consecrated in article 150 of the
Penal Process Code in the sense of
duly clarifying, on the very
location of the facts , the
following very important details,
among others:
1 – The physical, real and effective
proximity between Jane Tanner,
Gerald McCann and Jeremy Wilkins, at
the moment when the first person
walked by them, and which coincided
with the sighting of the supposed
suspect, carrying a child. It
results, in our perspective, strange
that neither Gerald McCann nor
Jeremy Wilkins saw her, or the
alleged abductor, despite the
exiguity of the space and the
peacefulness of the area;
2 – The situation concerning the
window to the bedroom where
Madeleine slept, together with the
twins, which was open, according to
Kate. It seemed then necessary to
clarify if there was a draught,
since movement of the curtains and
pressure under the bedroom door are
mentioned, which, eventually, could
be verified through the
reconstitution;
3 – The establishment of a timeline
and of a line of effective checking
on the minors that were left alone
in the apartments, given that, if it
is believed that such checking was
as tight as the witnesses and the
arguidos describe it, it would be,
at least, very difficult to reunite
conditions for the introduction of
an abductor in the residence and the
posterior exit of said abductor,
with the child, namely through a
window with scarce space. It is
added that the supposed abductor
could only pass, through that
window, holding the minor in a
different position (vertical) from
the one that witness JANE TANNER saw
(horizontal);
4 – What happened during the time
lapse between approximately 6.45/7
p.m. – the time at which MADELEINE
was seen for the last time, in her
apartment, by a different person
(David Payne) from her parents or
siblings – and the time at which the
disappearance is reported by Kate
Healy – at around 10 p.m.;
5 – The obvious and well-known
advantages of immediate appreciation
of evidence, or in other words, the
fulfilment of the principle of
contiguity of evidence in order to
form a conviction, as firm as
possible, about what was seen by
Jane Tanner and the other
interposers, and, eventually, to
dismiss once and for all any doubts
that may subsist concerning the
innocence of the missing [child’s]
parents.
In this sense, the legal procedures
were followed, according to the
norms and conventions that are in
force, and the appearance of the
witnesses was requested, inviting
them to be present inclusively
appealing to solidarity with the
McCann couple, as it is certain that
since the beginning they adhered to
that process diligence.
Nevertheless, despite national
authorities assuming all measures to
render their trip to Portugal
viable, for unknown motives, after
the many doubts that they raised
about the necessity and opportunity
of their trip were clarified several
times, they chose not to attend,
which rendered the diligence
inviable.
We believe that the main damage was
caused to the McCann arguidos, who
lost the possibility to prove what
they have protested since they were
constituted arguidos: their
innocence towards the fateful event;
the investigation was also
disturbed, because said facts remain
unclarified.
F – Communications analysis
The process has been appended with
the daily maps of the mobile phones’
registry by registrar/owner, a map
of the intervals without
communications of the couple’s
equipment between the 4th and the
13th of May, and maps of the
localities where the antennas were
activated, as well as the report of
the analysis of the communications
that were registered by the antennas
that serve Praia da Luz, of the 3
service providers, made by the 9
members if the McCann family’s
group, concerning the days between
the 2nd and the 4th of May (calls
that were operated exclusively by
the fixed network are not
contemplated, because as they do not
use the GSM system of mobile
communications, those do not
activate the antennas (“B.T.S.”).
During that period they maintained a
communication traffic that can be
accepted as normal for someone who
is on holidays. Between the 4th and
the 17th of May, the antennas with
most traffic registered are the ones
that serve the localities of Luz,
Lagos, Portimao and others that are
situated between Praia da Luz and
Portimao; the daily activity of the
mobile phones of each one of the 9
persons in the group was analysed,
with every register since their
arrival until their departure being
treated, as well as about the time
intervals when Madeleine’s parents’
mobile phones were without any
contact between 00 hours of the 4th
and 00 hours of the 14th of May.
It was important to determine if
through the analysis of that data
other investigation hypotheses
appeared, leading to the discovery
of what happened on the night of the
3rd of May, at apartment 5A, of the
“Ocean’s Club of Praia da Luz”, but
this also remained unsuccessful.
The fulfilling of the Rogatory
Letters to the Justices of the
United Kingdom failed to add
anything relevant to what was
already in the Process.
G – Appreciation and Juridical Frame
From the analysis of the elements
that are part of the files, this
first conclusion emerges
immediately:
When the GNR officers arrived on
location, several people had already
touched the window and entered
Madeleine’s and her siblings’
bedroom, and later on, when the PJ
arrived at the apartment to collect
traces, the space had already been
rummaged through and contaminated
due to the entrance of all of those
people and to the fact that
everything had been touched, thus
rendering inviable, right away, the
collection of important elements for
the investigation.
In the drama of the moment, nobody –
parents, friends of the parents,
resort management and personnel –
was cold and lucid enough to
preserve the crime scene, preventing
that rummaging and the consequent
contamination of traces from
happening, while it is common
knowledge that it is any person’s
responsibility to preserve crime
scenes – apart from a legal demand:
article 171 number 2 of the Penal
Process Code – thus avoiding that
traces can be erased or altered,
therefore the collectable evidence
had already lost much of its
indicative value. Hence the lack of
evidential elements that were
collected during that initial phase,
so much so that the only latent
fingerprints that were collected,
with the number of elements that are
necessary to perform a positive
identification, were individualised
as belonging to the missing child’s
mother and to a GNR officer (pages
885 and 1520), thus immediately
rendering the collection of
important data for the investigation
inviable.
It was only when members of the
Polícia Judiciária arrived, at
around 0.10 a.m., following a
request for their presence, that
measures were taken to make the
collection of residues and the
preservation of the event’s location
possible.
It further results from the files
that, despite the fact that the
‘Ocean Club’ resort’s crèche offers
a complimentary dining out service
from 7.30 until 11.30 p.m., at an
additional cost, apart from another
babysitting service with no defined
schedule [22], the members of this
group of friends with children chose
to do their own checking on the
children during dinner. During a
first phase, each couple took turns
among them to check on their own
children, and as the days went by,
they started to ask one of the
members that got up, to listen
whether there was any noise in their
apartment, as Jane Tanner mentioned
during questioning on the 10th of
May 2007 [23], with the exception of
the David and Fiona Payne couple,
who possessed an intercom system to
watch over their children Lilly
Payne and Scarlett Payne.
It is extracted from the files that
the McCanns and their friends
checked to verify if all was well
with their children, as can be
concluded from what the members of
this group declared, and also
derives from the testimony of
Jerónimo Tomás Rodrigues Salceda, a
waiter at the Tapas [24], who stated
that he “noticed, because it was
evident, that some of the group’s
members sometimes went outside of
the restaurant to do something,
which by and by he realised was to
“check” on the children.
Nevertheless, he was always
convinced that those children were
in a space that belonged to the Luz
Ocean Club…”
Nevertheless, it can also be
concluded from the files that this
surveillance with the periodicity
that was mentioned above was not the
one that is alleged in the files,
which leaves unexplained why, on
that night, the procedures were
altered in the sense of reducing the
checking intervals.
In effect, this group of friends was
enjoying a short holiday period,
therefore perfectly relaxed and it
would be normal that, having dinner,
inclusively with an entertainment
service available [25], they were
not very concerned with anything
that might happen to their children
during that dinner period.
It is so much so that Kate herself
mentions that on Thursday morning,
the 3rd, Madeleine questioned her
about the reason why they didn’t
come to her room, given the fact
that the twins had cried [26], as
was also mentioned by Gerald.
Pamela Fenn, who resides on the
residential block’s first floor,
above the apartment that was
occupied by the McCann family,
clarified that on the 1st of May
2007, two days before her
disappearance, at around 10.30 p.m.,
she heard a child crying, which from
the sound would be MADELEINE and
that she cried for an hour and
fifteen minutes, until her parents
arrived, at around 11.57 p.m.
This shows that the parents were not
persistently worried about their
children [and] that they didn’t
check on them like they afterwards
declared they did, rather neglecting
their duty to guard those same
children, although not in a
temerarious, or gross, manner.
If said guard duty had been
observed, in the possibility of this
being an abduction, as was
insistently mentioned and continues
to be mentioned and is admissible to
have happened, its occurrence might
eventually have been rendered
inviable.
It is further added that Kate, after
noticing that the bedroom’s window
and shutters were open and Madeleine
was missing, headed for the Tapas
Restaurant asking for help,
suggesting that an abduction had
taken place, it is incomprehensible,
or only comprehensible in a state of
panic, that she once again
abandoned, this time only the twins,
while the Tapas was close enough to
shout for help, - although Matthew
Oldfield refers [27] that from the
restaurant table there was very
tenuous visibility, taking into
account the distance at which they
were from the apartments, and vision
being hampered by a transparent
linoleum that covered the area where
the tables were located.
Finally, the fact that, despite all
that confusion and all that noise,
the twins continued to sleep, as
mentioned by GNR Officer José Maria
Baptista Roque, a member of the
patrol that was first to arrive at
the apartment “the children never
woke up, remaining in a ventral
decubitus position, not moving
during the search and afterwards”
[28], remains unexplained.
Nevertheless, a Team from the
Criminal Police Lab, on the 4th of
May 2007, eliminated the existence
of any product that could have been
ministered to the missing child, in
order to maintain her in a state of
unconsciousness, as well as the
presence of blood traces.
On the other hand, it also results
that none of the parents was inside
the apartment when Madeleine
disappeared and that their behaviour
until the moment of the
disappearance was perfectly normal,
not manifesting any kind of
preoccupation or any other similar
feeling, contrary to what happened
after that moment when the state of
panic was notorious.
While it is an unavoidable fact that
Madeleine disappeared from Apartment
5A of the ‘Ocean Club’, the manner
and circumstances under which this
happened are not – despite the
numerous diligences made in that
sense -, therefore the range of
crimes that were indicated and
referred to during the inquiry
remains untouched.
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.
The parents didn’t even represent
the realisation of the fact, they
trusted that everything would go
well, as it had gone on the previous
evenings, thus not equating, nor was
it demanded from them, the
possibility of the occurrence of an
abduction of any of the children
that were in their respective
apartments.
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.
Concerning the other indicated
crimes, they are no more than that
and despite our perception that, due
to its high degree of probability,
the occurrence of a homicide cannot
be discarded, such cannot be more
than a mere supposition, due to the
lack of sustaining elements in the
files.
The non involvement of the arguidos
parents of Madeleine in any penally
relevant action seems to result from
the objective circumstances of them
not being inside the apartment when
she disappeared, from the normal
behaviour that they adopted until
said disappearance and afterwards,
as can be amply concluded from the
witness statements, from the
telephone communications analysis
and also from the forensics’
conclusions, namely the Reports from
the FSS and from the National
Institute for Legal Medicine.
To this can be added that, in
reality, none of the indications
that led to their constitution as
arguidos was later confirmed or
consolidated. If not, let us see:
the information concerning a
previous alert of the media before
the polices was not confirmed, the
traces that were marked by the dogs
were not ratified in laboratory, and
the initial indications from the
above transcribed email, better
clarified at a later date, ended up
being revealed as innocuous.
Even if, hypothetically, one could
admit that Gerald and Kate McCann
might be responsible over the
child’s death, it would still have
to be explained how, where through,
when, with what means, with the help
of whom and where to they freed
themselves of her body within the
restricted time frame that would
have been available to them to do
so. Their daily routine, until the
3rd of May, had been circumscribed
to the narrow borders of the ‘Ocean
Club’ resort and to the beach that
lies next to it, unknowing the
surrounding terrain and, apart from
the English friends that were with
them on holiday there, they had no
known friends or contacts in
Portugal.
[22] Questioning File on pages 221
and 226
[23] Questioning File on pages 922
and 923
[24] Questioning File on page 236
[25] Witness NAJOUA CHEKAYA (page
798) mentioned that she was asked by
the Ocean Club to perform a “quiz”
at the Tapas restaurant twice a week
(Tuesdays and Sundays)
[26] Questioning File on page 59
[27] Questioning File on page 914
[28] Questioning File on page 3883
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 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 times, 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.
