Posts Tagged ‘Mrs Justice Hogg’

Madeleine Beth McCann alive or dead?

January 17, 2010

Liars claim Amaral a liar

Gerry and Kate McCann claim that Madeleine is alive, whereas Gonçalo Amaral claims that Madeleine died on 3 May 2007 in Apartment 5A. In my view, Mrs Justice Hogg erred in law by stating in her judgment below: “there being no evidence to the contrary, it is presumed Madeleine is alive”. This appears to be a rather convenient way to dispose of the case. Whilst I would not presume to claim that the Court does not have jurisdiction to hear the case, I do contend that the McCanns were wrong to invoke The Child Abduction and Custody Act 1985, simply because there is no evidence that Madeleine was abducted.

If it is valid to presume Madeleine is alive, surely it is equally valid to presume that Madeleine is dead?

IN THE MATTER OF MADELEINE BETH MCCANN

Judgment of Mrs Justice Hogg at the High Court, Family Division, RCJ, London,
7th July 2008, in open court

Madeleine went missing on 3 May 2007 just a few days before her 4th birthday, while she was holidaying with her family in the Algarve in Portugal.

On 17 May 2007 Madeleine’s parents invoked the jurisdiction of this Court under the Inherent Jurisdiction of the Court, and The Child Abduction and Custody Act, and the Hague Convention. They sought various orders and directions aimed at ascertaining the whereabouts and recovery of Madeleine. I became involved with the proceedings shortly afterwards.

On 2 April 2008 Madeleine became a Ward of this Court, and since that date has remained a Ward.

At all times jurisdiction was assumed by the Court because, there being no evidence to the contrary, it is presumed Madeleine is alive.

She is a British Citizen, and like her parents habitually resident here.

The current application was made on 2 April 2008 by the parents seeking disclosure of information and documents from the Chief Constable of Leicestershire to assist them and their own investigations in their search for Madeleine. Such are the complexities of the issues involved other interested parties were invited and joined to the application, and directions given for the hearing today.

The parties have reached an accommodation whereby the Chief Constable will provide to Madeleine’s parents contact details of members of the public who had themselves contacted the parents or their solicitors, and which on receipt were immediately passed to the Chief Constable, together with a brief resume of the information given.

The parents do not wish to pursue other aspects of the application, and save for the draft consent order being approved by this Court wish to withdraw their application and seek leave to do so.

I have no criticism of the parents in making this application. They have behaved responsibly and reasonably throughout.

I have considered the documents provided to this Court by the various parties, and have concluded that the agreement reached by the parties is entirely appropriate, and that the parents should be permitted to withdraw the balance of their application.

I will make the Order by Consent as sought. In particular paragraph 1 of the Order made on the 22 May 2007 shall be varied with the words:

“The terms of this paragraph shall not apply to the Chief Constable of Leicestershire or any other United Kingdom law enforcement agency. And for the avoidance of doubt all the evidence submitted to the Court and the Case Summaries and Skeleton Arguments remain confidential to the Court save that the Chief Constable may use his discretion to disclose his evidence, case summary and skeleton arguments filed in this Court and the Orders of 22 May 2007, 2 April 2008 and this Order. Any other documents and their contents are not to be disclosed to any person or published save in accordance with Orders already made by the Court or further Order of the Court”.

It may be noted that neither of the Parents is present today. I let it be known last week that providing their legal team was fully instructed neither parent need be present, and I would not criticise or bear any ill-feeling towards them if they chose to stay away. It was my decision as they have suffered enough, and I wished to ease their burden.

I know the police authorities and other official law enforcement agencies in this country, in Portugal and elsewhere have striven and will continue to strive to trace Madeleine.

I urge anyone who has any information however small or tenuous to come forward now so that further enquiries can be made.

There is, of course, as least one person who knows what has happened to Madeleine, and where she may be found.

I ponder about that person: whether that person has a heart and can understand what it must be like for Madeleine to have been torn and secreted from her parents and siblings whom she loves and felt secure with, and whom no doubt misses and grieves for. Whether that person has a conscience or any feeling of guilt, remorse or even cares about the hurt which has been caused to an innocent little girl: whether that person has a faith and belief, and what explanation or justification that person will give to God.

I entreat that person whoever and wherever you may be to show mercy and compassion, and come forward now to tell us where Madeleine is to be found.

I hope and pray that Madeleine will be found very soon alive and well.

I confirm the Wardship and Madeleine will remain a Ward of Court until further Order of the Court. The case will be reserved to myself subject to my availability.
http://madeleinemccann.org/main/2008/1761/in-the-matter-of-madeleine-beth-mccann/

Death in absentia

“In law, death in absentia is the status of a person who has been declared presumed dead when the person disappears but no identifiable remains can be located or recovered”.

Facts, circumstances, and the “balance of probabilities”

“In most common law and civil code jurisdictions, it is usually necessary to obtain a court order directing the registrar to issue a death certificate in the absence of a physician’s certification that an identified individual has died. However, if there is circumstantial evidence that would lead a reasonable person to believe that the individual is deceased on the balance of probabilities, jurisdictions may agree to issue death certificates without any such order. For example, passengers and crew of the Titanic who were not rescued by the RMS Carpathia were declared legally dead soon after the Carpathia’s arrival at New York City. More recently, death certificates for those who perished in the September 11, 2001 attacks were issued by the State of New York within days of the tragedy. The same is usually true of soldiers missing after a major battle, especially if the enemy keeps an accurate record of its prisoners of war.

If there is not sufficient evidence that death has taken place, it may take somewhat longer, as simple absence does not necessarily prove death. The requirements for declaring an individual legally dead may vary depending on numerous details, including:

* The jurisdiction the individual lived in before death
* The jurisdiction where they are presumed to have died
* How the individual is thought to have died (murder, suicide, accident, etc.)
* the balance of probabilities that make it more likely than not that the individual is dead

Most countries have a set period of time (seven years in many common law jurisdictions) after which an individual is presumed to be dead if there is no evidence to the contrary. However, if the missing individual is the owner of a significant estate, the court may delay ordering a death certificate to be issued if there has been no real effort to locate the missing person. If the death is thought to have taken place in international waters or in a location without a centralized and reliable police force and/or vital statistics registration system, other laws may be in effect”.

Legal aspects of death in absentia

England and Wales

“In England and Wales, if it is believed that there should be an inquest the local coroner will file a report; this may be done to help a family receive a death certificate that will bring some closure. This will bring any suspicious circumstances into light. The coroner will then apply to the Secretary of State for Justice under the Coroners Act 1988 section 15, for an inquest with no body. The seven years rule will only apply in the High Court of Justice on the settlement of an estate. According to a spokesman for the Ministry of Justice, the number of requests received each year is fewer than 10 but very few of these are refused. Without a body an inquest relies mostly on evidence provided by the police, and whether the senior officers believe the missing person is legally dead”.
http://en.wikipedia.org/wiki/Death_in_absentia

Perhaps Gonçalo Amaral should consider seeking a court order declaring Madeleine is dead in absentia in Portugal? Or, someone maybe attempting this in England?

Photo: Hat-Tip http://mccanngallerytribute.blogspot.com/2010/01/evidence-supporting-abduction-of.html

Mrs Justice Hogg

July 11, 2008

Hat-Tip Albyn on the 3As forum

Biased judge failed to protect Madeleine’s interests

July 9, 2008

I had every reason to be concerned when I heard that the ambulance chasing International Family Law Group had contacted the McCanns in  Praia da Luz  to offer their services.

At the recent High Court hearing, Tim Scott, QC, instructed by the International Family Law Group, who represented the McCanns, played the retreat on his bugle eloquently as the McCann team got routed in the face of a pincer movement by Leicestershire Police and the Serious Organised Crime Agency.

The hearing can be read here.

Had the McCanns not capitulated, the McCanns, the court, the public, and the world’s media would have been told why the police do not give such information to suspects in an ongoing investigation. Leicestershire Police are involved in relation to a possible child’s death, child neglect and/or child abandonment, and fraud. SOCA is only interested in the fraud aspect. Neither the Leicestershire Police nor SOCA are interested in the McCanns abduction story.

I would have laughed Tim Scott, QC, out of court as soon as he mentioned “As the world knows, Madeleine was abducted from an apartment at a resort in Praia Da Luz in Portugal on 03 May 2007”. Had Mrs Justice Hogg not been biased, I would have stood up and asked “What child abduction?”. And asked, “Do you intend providing any proof of this?”. Had Mrs Justice Hogg not been biased, she would have stopped him in his tracks and told him to stick to the facts. There is no evidence of any child abduction in this case. And this is precisely why the McCanns were on a sticky wicket. The law enforcement agencies do have evidence that the McCanns lied about a fake break-in. Perhaps, Mrs Justice Hogg would have changed her opinion of the McCanns and what they claimed happened if the law enforcement agencies had provided the files for her scrutiny?

Of course there should be an appeal. You see, all the other parties there had representation. The one person who did not have any representation was Madeleine Beth McCann. Her interests were supposed to be looked after by Mrs Justice Hogg. She failed in that duty towards Madeleine. She leaned in favour of the McCanns, to the extent that she broke the law herself. The very people who are responsible for Madeleine’s disappearance, Mrs Justice Hogg heaped praise upon them. Sadly, Madeleine was let down again. First by her parents, and then by the person entrusted to care for her interests when she was made a ward of court, Mrs Justice Hogg.

Neither the McCanns nor Clarence Mitchell speak for Madeleine. The McCanns are only interested in saving their own skins. Clarence Mitchell only represents the McCanns because they are paying him to do so. He is grateful for the job because he was forced to resign from the government Media Monitoring Unit, when he was caught out by the PJ tipping the McCanns off about the electronic surveillance. In spite of Clarence Mitchell’s spin, claiming the court hearing as a victory over the 81 pieces of information supplied by the police, it was the other 11,000 pieces which would have proved the downfall of the McCanns had just some of them been produced in court. This is what frightened the McCanns off.

What needs to happen now is for Madeleine to get proper representation in court. Before an unbiased judge.

First published here.

IN THE MATTER OF MADELEINE BETH MCCANN

July 8, 2008
Court 20 Before MRS JUSTICE HOGG Monday, 7 July, 2008 At 10:30 AM IN OPEN COURT FD07P01121 McCann Applications/Summonses in Court as in Chambers IN THE MATTER OF MADELEINE BETH MCCANN

Mr Tim Scott, Q.C., International Family Law Group, acting for Gerry and Kate McCann: Madeleine McCann is a ward of Court. She had her 5th birthday on 12 May 2008. Gerry and Kate are not here as they are on holiday with their twins, Sean and Amelie. Who could deserve a holiday more after a period more traumatic than any family should have to cope with.

Mrs Justice Hogg: I did not expect to see them.

Mr Tim Scott continues: As the world knows, Madeleine was abducted from an apartment at a resort in Praia Da Luz in Portugal on 03 May 2007. No one has ever been arrested or charged in connection with her abduction. Her whereabouts are completely unknown. There is no proof that she is alive, but there is not a scrap of evidence that she is not. After the abduction Gerry and Kate McCann set in motion their own search with professional assistance. A Fund was set up to finance the search and many people, often those who could barely afford it, have given generously to that fund. Simultaneously a massive international police search was launched. Since the McCann family lives in Leicestershire, the Leicestershire Constabulary has been the lead force among UK law enforcement agencies. Gerry and Kate would like, through me, to acknowledge the enormous effort which has been devoted both by the Leicestershire Constabulary and by other law enforcement agencies to the search for Madeleine. They would also like to thank many individual officers for the kindness and concern which they have shown to the family throughout this terrible time. Proceedings were started in this Court by a summons dated 17 May 2007. The sole purpose of the proceedings has been to call upon the extensive powers of the High Court to require assistance to be given in the search for a missing child. It is of course quite routine in the Family Division for such Orders to be made. For example in an appropriate case (though not this one) an Order can be made against a mobile phone company to produce the call record of a phone. It was never the parents’ wish that the proceedings should become adversarial. On 22 May 2007 an Order was made by you in very wide terms requiring any person on whom the Order was served to disclose to the parents’ solicitors any information which might assist in identifying Madeleine’s whereabouts. The Order contained a clause entitling any person served with it to apply to discharge or vary it. Among the bodies on whom the Order was served was the Leicestershire Constabulary, who immediately expressed doubts as to whether the Order was intended to or could properly extend to them. In due course the parents’ solicitors issued a further application seeking clarification of this. On 02 April 2008 you gave directions which were intended to lead to a hearing at which this question would be resolved. This is that hearing. As the preparations for this hearing advanced, it became clear that the Leicestershire Constabulary and other law enforcement agencies, while personally sympathetic to the position of the McCann’s objected on principle to the disclosure of at least the great bulk of the information in their possession. They raised a number of legal arguments relating among other matters to the public interest in maintaining the confidentiality of police investigations. Both the Serious Organised Crimes Agency and the Attorney-General intervened in the proceedings in order to advance their own arguments on issues of public policy. It became clear that if today’s hearing proceeded on a fully contested basis a number of areas of law of great interest to lawyers would have had to be considered. However Gerry and Kate McCann are not lawyers and so far as they were concerned the legal proceedings were moving further and further from the only matter which concerns them: the search for Madeleine. The proceedings were in danger of becoming a distraction from rather than an aid to that single goal. Also there have been two recent developments which have greatly affected Gerry and Kate’s views on these proceedings. The first is that the Leicestershire Constabulary has now agreed to release an important, though limited, part of the information which they have been seeking; I shall come back to that. The second is that, as has been widely publicised, it is expected that Gerry and Kate’s status in Portugal as arguidos or suspects will be lifted soon. When that happens it is hoped and expected that a substantial further amount of information will be released. Since Gerry and Kate have always wanted to work with all law enforcement agencies on a cooperative basis, they decided to withdraw the application against the Leicestershire Constabulary. We therefore come to Court today to ask you to approve an Order which all parties consent to. The first part of the Order recites that the Chief Constable of Leicestershire has agreed to provide by today a document in accordance with Paragraph 50 of the Skeleton Argument which has been presented to the Court on his behalf. That Paragraph is at 34. It says that the Chief Constable is currently preparing a document which will provide the parents with the contact details of persons that have been forwarded to the investigation by the parents or those acting for them. This document will also contain a brief resume of the information that it is believed the person informed the parents or those acting for them that they wished to pass on to the investigation. I said earlier that this is an important but limited amount of the information which Gerry and Kate had hoped to obtain. I would like to explain why it is important. Although the Leicestershire Constabulary were quick to set up a major incident room and to provide a telephone number which anyone with information could call, there was a period of time before this became widely known. During that time Gerry and Kate’s solicitor, Ms Ann Thomas of The International Family Law Group, who sits in front of me, had already been retained. Her firm’s number was publicised and a large number of people called in. All of these callers were given the number which the Leicestershire Constabulary had set up for the purpose. The solicitors thought it right that the police should be receiving it. In fact with few exceptions the solicitors did not even retain any notes on what the callers were saying or even their contact details. So what the Chief Constable is now voluntarily providing is the contact details and a summary of the information provided by a substantial number of people who were among the first to try to help the investigation. It is because these were on the whole people who came forward to volunteer information in the period immediately after the abduction that it is likely that the information which they provided will be most helpful. So on that basis Gerry and Kate McCann are content to withdraw their application for any wider disclosure. Paragraph 4 of the Order provides that the documents in the case shall remain confidential to the Court. This of course is completely normal in wardship. An exception is made to enable the Chief Constable at his discretion to reveal the contents of his evidence and the legal arguments advanced on his behalf. The parents understand that the points of principle which have arisen are of wider interest to law enforcement agencies, and they would not want to restrict proper discussion of those matters which might have a beneficial purpose in future investigations. They are confident that the Chief Constable will exercise his discretion in a responsible way. The search for Madeleine continues. The fund which was established in May 2007 known as “Madeleine’s Fund – Leaving No Stone Unturned” remains closely involved in the search. It always has been and remains Gerry and Kate’s purpose to leave no stone unturned. This was why they asked for the assistance of this Court in the first place, and this is why, in the light of developing circumstances, they now withdraw their application. We hope that you will accept, and will feel able to say that they have behaved completely properly and responsibly at every stage.

Mr James Lewis QC, for the Chief Constable of Leicestershire: We would like you to approve the Order. As the Court heard, any person served with the Order should disclose any information that would help to find Madeleine . We wish to make it clear that the primary aim is to ensure that no stone is left unturned. There must be a balance between the rights of Plaintiffs to have as much information as possible and the risk of compromising the continuing criminal investigation, damaging future international co-operation, and a potential breach of Portuguese law. The parents get information that emanates from them and there is no breach of Portuguese law. The Chief Constable asks the Court to make clear that previous Orders don’t apply. The case is not closed. The Chief Constable wishes to reiterate anyone with information should come forward to the police. The amount of information is 81 pieces of information out of 11,000 pieces of information on the computer system.

Representative of the Attorney General: The Attorney General intervened as Guardian of the public interest and has no further comment to make.

Mrs Justice Hogg: Madeleine went missing on 3 May 2007 just a few days before her 4th birthday, while she was holidaying with her family in the Algarve in Portugal. On 17 May 2007 Madeleine’s parents invoked the jurisdiction of this Court under the Inherent Jurisdiction of the Court, and The Child Abduction and Custody Act, and the Hague Convention. They sought various orders and directions aimed at ascertaining the whereabouts and recovery of Madeleine. I became involved with the proceedings shortly afterwards. On 2 April 2008 Madeleine became a Ward of this Court, and since that date has remained a Ward. At all times jurisdiction was assumed by the Court because, there being no evidence to the contrary, it is presumed Madeleine is alive. She is a British Citizen, and like her parents habitually resident here. The current application was made on 2 April 2008 by the parents seeking disclosure of information and documents from the Chief Constable of Leicestershire to assist them and their own investigations in their search for Madeleine. Such are the complexities of the issues involved other interested parties were invited and joined to the application, and directions given for the hearing today. The parties have reached an accommodation whereby the Chief Constable will provide to Madeleine’s parents contact details of members of the public who had themselves contacted the parents or their solicitors, and which on receipt were immediately passed to the Chief Constable, together with a brief resume of the information given. The parents do not wish to pursue other aspects of the application, and save for the draft consent order being approved by this Court wish to withdraw their application and seek leave to do so. I have no criticism of the parents in making this application. They have behaved responsibly and reasonably throughout. I have considered the documents provided to this Court by the various parties, and have concluded that the agreement reached by the parties is entirely appropriate, and that the parents should be permitted to withdraw the balance of their application. I will make the Order by Consent as sought. In particular paragraph 1 of the Order made on the 22 May 2007 shall be varied with the words: “The terms of this paragraph shall not apply to the Chief Constable of Leicestershire or any other United Kingdom law enforcement agency. And for the avoidance of doubt all the evidence submitted to the Court and the Case Summaries and Skeleton Arguments remain confidential to the Court save that the Chief Constable may use his discretion to disclose his evidence, case summary and skeleton arguments filed in this Court and the Orders of 22 May 2007, 2 April 2008 and this Order. Any other documents and their contents are not to be disclosed to any person or published save in accordance with Orders already made by the Court or further Order of the Court”. It may be noted that neither of the Parents is present today. I let it be known last week that providing their legal team was fully instructed neither parent need be present, and I would not criticise or bear any ill-feeling towards them if they chose to stay away. It was my decision as they have suffered enough, and I wished to ease their burden. I know the police authorities and other official law enforcement agencies in this country, in Portugal and elsewhere have striven and will continue to strive to trace Madeleine. I urge anyone who has any information however small or tenuous to come forward now so that further enquiries can be made. There is, of course, as least one person who knows what has happened to Madeleine, and where she may be found. I ponder about that person: whether that person has a heart and can understand what it must be like for Madeleine to have been torn and secreted from her parents and siblings whom she loves and felt secure with, and whom no doubt misses and grieves for. Whether that person has a conscience or any feeling of guilt, remorse or even cares about the hurt which has been caused to an innocent little girl: whether that person has a faith and belief, and what explanation or justification that person will give to God. I entreat that person whoever and wherever you may be to show mercy and compassion, and come forward now to tell us where Madeleine is to be found. I hope and pray that Madeleine will be found very soon alive and well. I confirm the Wardship and Madeleine will remain a Ward of Court until further Order of the Court. The case will be reserved to myself subject to my availability.

– Transcript ends –

Notes (i) Colour Coding for Sources: International Family Law Group (re Tim Scott address)

http://www.iflg.uk.com/documents/7_july_08_address.pdf

International Family Law Group (re Justice Hogg judgement)

http://www.iflg.uk.com/documents/Judgement0708.pdf

Hat-Tip to the 3As forum

Judge in Madeleine case should be sacked

July 7, 2008

Mrs Justice Hogg spoke out of turn at the High Court today during the application brought by the McCanns in an attempt to gain access to 11,000 police files on the disappearance of Madeleine. In the event, the McCanns lawyers would have suffered a defeat in court had the application continued. What the lawyers for the Leicestershire Police offered, was to allow the McCanns private investigators to see contact details and a summary from 81 police files, but not the files themselves, and the McCann lawyers accepted this by way of settlement of the case. In this sense it was a huge defeat for the McCanns.

However, by Mrs Justice Hogg making an inappropriate speech, she entered the political arena, and handed the McCanns a PR victory over the Portuguese. In the first place, Mrs Justice Hogg should not have referred to an alleged abduction and an alleged abductor, as though these were established facts in the Madeleine case. The only fact here is that it is the McCanns who claim that an abductor is responsible for Madeleine’s disappearance. The Portuguese police and PJ believe that it was the McCanns themselves who are responsible for Madeleine’s disappearance. As a result of their investigations, they made the McCanns official suspects. Secondly, Mrs Justice Hogg, as a judge, must steer clear of politics to keep the Judiciary independent.

She said: “There is, of course, one person who knows what has happened to Madeleine and where she may be found. I ponder about that person – whether that person has a heart and might understand what it must be like for Madeleine to have been taken and secreted from her parents and siblings and those she loved and felt secure with. I ponder whether that person has a conscience or any feeling of guilt or remorse or even cares about the hurt that has been caused to an innocent little girl, and whether that person has a faith or belief and what explanation or justification they might give to God. I entreat that person, whoever they may be, to show mercy and compassion and come forward now and tell us where Madeleine is to be found. I hope she will be found soon, alive and well“.

It is clear that Mrs Justice Hogg is too emotionally disturbed to be sitting on a bench. She has interfered with an ongoing judicial process in Portugal.