McCann & Anor v Bennett [2013] EWHC 283 (QB)

“… so far as I am aware on the new Madeleine Foundation website there is no promotion of the “60 reasons” book whatsoever. We have made clear statements that it is no longer available for sale. I have myself on a few occasions directed people to websites where “60 reasons” is available to read on the internet. I emphasise once again that I have not in any way helped or encouraged these websites to reproduce the booklets… I am further willing to endeavour to contact any website that may have reproduced “60 reasons” (in all cases without my consent I may add) and ask them to remove it from their site forthwith. You refer in the same paragraph to “at least one copy of the booklet” being sold. On 13 January this year, a Mr. Mike Gunnill, a freelance photo journalist who is in contact with you, attempted to buy a booklet using the false name of Michael Sangerte, and purporting to live in “Reading, Berkshire”

“About The Madeleine Foundation The Madeleine Foundation was set up in January 2008 to try to ensure that the right lessons were learnt from Madeleine McCann’s disappearance. Madeleine – whatever happened to her – was a victim of child neglect, being left exposed to all manner of risks while her parents were wining and dining out of sight in a bar over 100 yards away. …. About this booklet This booklet has one simple aim: to enable the British public to learn something of the many reasons which suggest that Madeleine was not abducted, but, rather, that something else happened to her… It is necessary because the British press, perhaps cowered by the McCann’s having successfully sued some of them for over half a million pounds, has failed to explain and analyse the powerful evidence against the McCann’s which has emerged in the past 12 months. …. About the author – Tony Bennett Tony, 61, qualified as a social worker in 1975, and later as a solicitor in 1995. He has a track record of successful campaigning…. now Tony has turned his research skills to exposing the lack of evidence that Madeleine was abducted and, by contrast, the mountain of evidence that points in a different direction. ….”

“The Madeleine Foundation’s view on what really happened to Madeleine is precisely the same as the view held by the senior Portuguese detective, Mr Goncalo Amaral… the facts point not to Madeleine having been abducted but in an entirely different direction… Was she really abducted? Or did she die as a result of an accident, perhaps of over-sedation, or from another crime?”

“You may wish to recall that the McCann parents were and remain suspects in the reported disappearance of their daughter. … could you please let me know whether any proposed re-investigation will actively and diligently pursue the line of enquiry mentioned in the interim and final report of the Portuguese Police, to the effect that Madeleine may have died in the McCanns’ apartment and her body may have been hidden or disposed of, either by or with the certain knowledge of the parents? …the McCanns’ were two of three prime suspects in this case and …there is no evidence whatsoever to suggest that Madeleine McCann was abducted, but yet there is much evidence to the contrary …we are constantly being fed the abduction theory when we know too well that there is no evidence of the alleged abduction, a theory that was proven as virtually impossible by the Portuguese Police. Contrary to this, we have the thesis of the Portuguese Police which points to the death of Madeleine in her parent’s apartment, a theory which is supported by much evidence which can be found in the original police files, now made public and available on the internet. Please confirm that any new enquiry will focus on all possibilities including abduction and also the theory as reported in the interim and final statements of the Portuguese Police, which states that Madeleine may have died in the McCann’s apartment.”

“I believe only two basic scenarios are worth spending much time on: Maddie was taken by a child predator. Maddie died in the apartment and the parents are covering up a crime… Summary So, to recap, Madeleine McCann is 99% likely to be dead. My top suspects at this point, based on behaviour and what information can be validated, are the McCanns.”

“… all three cases involve sedatives and young, cute kids… it doesn’t feel very good to believe parents sell their children for sex and porn. But what’s more important? Children – or the comfort of our denial?”

“Whilst I’m aware that that undertaking remains in place, nevertheless your clients, through their spokesmen, have conceded that the abduction is “only an assumption”, and not a fact, still less a universally acknowledged or forensically proven fact. It is just what their spokesmen said twice in the same interview, namely, just a “working hypothesis”

“Given these accurate statements by [Mr Mitchell] on behalf of your client, it is clearly open to others to work on alternative assumptions … There is an unfortunate history of parents covering up the death of a child (whether the child had died by negligence, neglect, accident or deliberate act, by claiming that their child has been abducted …)”

“… I have so far as I am aware, avoided, in line with my court undertaking, direct accusations that your clients have or are to be suspected of, causing the death of Madeleine or of disposing of her body, or that they have lied about what happened or have covered up what they have done. Signing that court undertaking was not, as you know, a vow of Trappist-like silence over the continuing mystery of what really happened to Madeleine McCann … The legal advice I received following your letters to me of 27 and 28 August 2009 was clear. Direct and false accusations unsupported by facts rendered themselves liable to be treated as libel. However, by the same token, the rights of all citizens of Council of Europe countries to free speech as enshrined in article 10 of the European Convention … entitled one to, for example, criticise others and to challenge claims made by others. The advice I received also included very specific advice that asking questions about claims by others did not and could not amount to libel. …”

“We wish to submit evidence to your Review which suggests that Madeleine’s parents … have not told the truth … about the disappearance of their daughter. This evidence also suggests that the McCann’s friends in Portugal … may also not have told the truth to the police about Madeleine’s disappearance. Moreover, the evidence we wish to present to you tends to suggest that Madeleine McCann may have died in her parents’ apartment howsoever that death may have been caused, and that others beside the McCanns and the “Tapas 7” have conspired to cover up the true circumstances of her death. We have 3 classes of evidence which we wish to submit to you these are as follows: 1. A comprehensive dossier of circumstantial evidence including new material not disclosed in the Portuguese Police files … which demonstrates, we say with clarity, that the McCanns and their friends did not tell the truth … [2] Evidence is provided to support the claim that the man who funded and directed the McCann’s private investigations, … is deeply implicated in intimidating relevant witnesses into silence … [3] Information of a first hand nature, received from a female insider within the McCann Team, whose information strongly tends to suggest that the entire McCann Team private investigation team was exercised in the creation of a huge smokescreen to cover up what really happened to Madeleine McCann, rather than being a genuine attempt to find Madeleine … What we need to know, in the clearest possible terms, please, is whether your team is prepared to review in full any evidence, forensic or circumstantial, that tends to show that Madeleine died in the McCann’s apartment … and her body then hidden … … Last year we published: “the Madeleine McCann case files: volume 1” which reproduces evidence from the case which tends to suggest that Madeleine McCann was not abducted …”

“Those of us who believe the evidence strongly suggestS that Madeleine McCann died in Apartment G5A have, I believe, a solemn duty to explain this to DCI Andy Redwood and his colleagues.”

“While it is the case that you confirmed you would cease to publish material which formed the subject of those complaints, you have subsequently gone on to publish a large volume of very similar material on your own website and elsewhere. Our clients have given you every opportunity to comply with the undertakings which you gave, and we have in the past gone to some length to explain to you why – contrary to your purported position – publications you have made or procured have constituted both actionable libels and placed you in contempt of court. However, despite our efforts to explain the position to you, and despite our clients giving you a number of opportunities to desist from this behaviour it is clear that you have no intention whatsoever of complying with your undertakings, and therefore our clients have resolved now to seek your committal for contempt of court. We must also make clear that while our clients reject as absurd the “theories” which you advance about Madeleine’s disappearance neither our clients nor we seek (and have never sought) to prevent you from raising those “concerns” with the appropriate authorities – whether it be the law enforcement agencies, elected representatives such as your Member of Parliament, Home Secretary or even (as you have also done) the Prime Minister … Our clients’ overriding purpose in bringing complaints against you has always been to prevent your dissemination of false and defamatory allegations about them which risk causing damage to the ongoing search for their daughter, in addition to unjustifiable damage to their reputation. For this reason, they did not (as they were clearly entitled to do) insist that you pay them libel damages after they complained to you in 2009, and were content to accept undertakings from you that you would desist from the behaviour complained of …”

“At the risk of triggering a writ for contempt of court for breaching a court undertaking given two years ago, I will comment on this speculation about when and how Madeleine died… In summary, looking at what evidence we have, Madeleine died in the flat … her body was removed before 3 May, this was not premeditated..”

“16. In lengthy documents which he has submitted to the court the Defendant makes clear that the basis upon which he applies for a variation of the undertakings is that he contends that there is evidence, (which he claims is fresh evidence at least in part), which would satisfy the court that the three allegations which he wants to be free to make to the public at large are true, or alternatively, that they are honest opinion. He submits that there has been a material change in the law of honest comment as laid down by the Supreme Court in the case of Spiller v. Joseph [2010] UKSC 53; [2011] 1 AC 852. In support of his application to vary the undertakings he wishes to argue these points, and to put forward evidence to prove what he says is the truth of what he has published, and of what he wishes to publish.… 21. The discharge of an injunction, or of an undertaking, is not of itself a licence or judgment of the court that a publication, which was previously restrained by such injunction or undertaking, may lawfully be published. There would need to be determined, in one way or another, at least two issues before it could be said that the Defendant is to be entitled to make public the allegations he wishes to make. The first issue is whether he can overcome the preliminary obstacle which Mr Dean submits is presented by the principle that settlements are not to be reopened in circumstances such as those existing in this case. If the Defendant succeeds on that first issue, the second issue would be whether the Claimants have a good cause of action, whether in libel, or harassment (if they wish to revive the harassment claim), such as would entitle them to have re-imposed an injunction in terms similar to the undertakings which the Defendant gave. 22. It seemed to me that, as a matter of procedure, the appropriate course to follow in order for all these issues to be raised in an orderly fashion, and properly determined, is to treat the Defendant's application to vary the undertaking as an application to lift the stay of the proceedings which was ordered on 25 November 2009. 23. I express no view, one way or the other, as to whether the Defendant has any prospect of persuading the court to lift the stay. But if the court were minded to lift the stay, it would not follow that it would immediately permit a variation of the undertakings. One course that the court could follow would be to take it in stages, as the court might determine. If the court did lift the stay, the next step would be for the Claimants to serve Particulars of Claim. 24. There are detailed rules in the CPR governing the pleading and conduct of defamation actions, including provision for resolving issues in stages. These are important for the protection of both claimants and defendants. I see real dangers in the court attempting to resolve issues of truth and honest comment in the context of an application to vary an injunction, where the rules which govern pleadings and other interlocutory matters in defamation proceedings have no direct application. It would also be anomalous for issues of truth and honest opinion to be raised in an application to vary an undertaking at a time when the defamation proceedings in which those allegations would normally fall to be determined are ordered to be stayed. In effect the stay would be overridden, while formally remaining in place. 25. In my judgment it is in the interests of justice that this committal application, like all committal applications, be heard as soon as possible. It should not be adjourned pending the hearing of any application made or to be made by the Defendant…. 28. … It would be a matter for the court hearing the committal application, if it found that the Defendant had committed a breach of the undertaking, to decide at that point whether to proceed immediately to determine the penalty, or whether to adjourn, and if so, whether or not to hear the Defendant's application [to vary or discharge the Defendant’s undertaking] before determining the penalty.”

“13. It is necessary to have well in mind the nature of bulletin board communications, which are a relatively recent development. This is central to a proper consideration of all the matters now before the court. 14. This has been explained in the material before me and is, in any event, nowadays a matter of general knowledge. Particular characteristics which I should have in mind are that they are read by relatively few people, most of whom will share an interest in the subject-matter; they are rather like contributions to a casual conversation (the analogy sometimes being drawn with people chatting in a bar) which people simply note before moving on; they are often uninhibited, casual and ill thought out; those who participate know this and expect a certain amount of repartee or "give and take". .. 16. When considered in the context of defamation law, therefore, communications of this kind are much more akin to slanders (this cause of action being nowadays relatively rare) than to the usual, more permanent kind of communications found in libel actions. People do not often take a "thread" and go through it as a whole like a newspaper article. They tend to read the remarks, make their own contributions if they feel inclined, and think no more about it. 17. It is this analogy with slander which led me in my ruling of 12 May to refer to "mere vulgar abuse", which used to be discussed quite often in the heyday of slander actions. It is not so much a defence that is unique to slander as an aspect of interpreting the meaning of words. From the context of casual conversations, one can often tell that a remark is not to be taken literally or seriously and is rather to be construed merely as abuse. That is less common in the case of more permanent written communication, although it is by no means unknown. But in the case of a bulletin board thread it is often obvious to casual observers that people are just saying the first thing that comes into their heads and reacting in the heat of the moment. The remarks are often not intended, or to be taken, as serious. A number of examples will emerge in the course of my judgment.”

“As to vindication, it is probably fair to say that, however high the sum awarded, the purpose can hardly ever be fully achieved. At one end of the spectrum, there will be readers who choose to go on believing the allegations, perhaps out of cynicism about libel proceedings, or because some people are willing to believe anything which confirms their own pre-existing prejudices. At the other end, there will be those who did not take the allegations seriously because experience tells them to be wary of florid allegations circulating on the Internet, unsupported by evidence, from people who appear to have bees in their bonnets. In the centre ground, however, there will be readers for whom the allegations have raised at least a suspicion over a claimant's reputation which will only be removed by a convincing apology or finding of the court. It is to those people that the court's attempts at vindication must be primarily directed.”

" … We recognise that as a consequence of modern technology and communications systems any such stories will have the capacity to 'go viral' more widely and more quickly than ever before. Indeed, it is obvious that today, with the ready availability of the worldwide web and of social networking sites, the scale of this problem has been immeasurably enhanced, especially for libel claimants who are already, for whatever reason, in the public eye."

“150. In order to establish that someone is in contempt it is necessary to show that (i) that he knew of the terms of the order; (ii) that he acted (or failed to act) in a manner which involved a breach of the order; and (iii) that he knew of the facts which made his conduct a breach: Marketmaker Technology (Beijing) Co Ltd v Obair Group International Corporation & Ors [2009] EWHC 1445 (QB). There can be no doubt in the present case but that the judgment debtors have at all times been fully aware of the orders of this court. It is not and could not sensibly be suggested that the conduct of which complaint is made was casual or accidental or unintentional. However, the question arises whether it is, also, necessary to show that they acted knowing that what they were doing was a breach of, and intending to breach, any of the orders. … 155 … In my judgment the power of the court to ensure obedience to its orders for the benefit of those in whose favour they are made would be inappropriately curtailed if, in addition to having to show that a defendant had breached the order, it was also necessary to establish, and to the criminal standard, that he had done so in the belief that what he did was a breach of the order – particularly when a belief that it was not a breach may have rested on the slenderest of foundations or on convenient advice which was plainly wrong.”

“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law….”

“These proceedings serve as a timely reminder that we live in a society governed by the rule of law. This is the supreme principle. All members of society submit and subscribe to a system wherein the law is dominant. This system protects every member of the population. The efficacy of this system requires, and is guaranteed by, an independent judiciary. Non-discrimination, or equality of treatment, is one of the towering principles of the common law. Furthermore, it is a universally recognised value and is enshrined in the Human Rights Act 1998. It is easy to overlook that this principle is also of biblical pedigree and vintage,... Furthermore, this cornerstone principle was identified by Professor Dicey [in the Law of the Constitution, published in 1885] as one of the three core components of the rule of law. At its heart, it ensures that all citizens are equal before the law. As Lord Bingham has observed, this general principle is nowadays beyond question [The Rule of Law, p. 56]. In addition, by virtue of section 6 of the Human Rights Act 1998, the Court must avoid acting in a manner incompatible with any person's Convention rights, where engaged. Thirdly, the sanctions imposed by the criminal law on offenders are, presumptively, adequate and exhaustive. Allied to this is the rule that criminals are punished by due process of law, and not otherwise, in a society which treats anarchy as repugnant.”