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... 
