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 , 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 , 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 , 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 , 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 , 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  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” , 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."
in: Processo 201/07.0 GALGS - Volume XVII - pages 4639-4645 (Public Prosecutor's Archiving Dispatch)
The Archiving of the Madeleine McCann Process: One Year On - Part I
The Archiving of the Madeleine McCann Process: One Year On - Part II
The Archiving of the Madeleine McCann Process: One Year On - Part III
The Archiving of the Madeleine McCann Process: One Year On - Part IV
The Archiving of the Madeleine McCann Process: One Year On - Part V
The Archiving of the Madeleine McCann Process: One Year On - Part VI
The Archiving of the Madeleine McCann Process: One Year On - Part VII
The Archiving of the Madeleine McCann Process: One Year On - Part VIII
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