Madeleine: The McCanns are likely to be charged

Madeleine: The McCanns are likely to be charged

Have Kate and Gerry McCann any case to answer?

Legal opinion is united on the likelihood of the couple being charged. Criminal lawyers discuss the strength of the case against them

Frances Gibb, Legal Editor of The Times

Victims or villains? The personal views of lawyers this week are as split as those of the general public as to the likely culpability of the couple at the centre of case that is dominating the media.

In legal circles the consensus is that the chances of a successful prosecution being mounted against the McCanns turn almost entirely on the strength of the forensic evidence.

Trial by media is hazardous - not least because it puts at risk a fair trial. Professor Gary Slapper, Director of the Centre for Law, Open University, says: "I think a great iniquity against justice has been done by the confused status of information that has been leaked. A system, like Portugal's, of declining to put any item of police inquiry information whatsoever in the public domain while the case is being considered can be fair - but only if rigidly applied. As soon as there are leaks - as with conflicting information about the DNA in the hire car - you get the worst of both worlds: public evaluation of the case, based on speculations about alleged evidence".

Lawyers are not immune from that public evaluation though and on the basis of media leaks so far, legal opinion is polarised. One leading criminal solicitor, who did not wish to be named, says: "Public opinion does seem to be really turning against them. But in doing so people are overlooking some important issues and major defects in the case that they killed her and then concealed the body. I personally don't think the McCanns did kill Madeleine," he added, "but at present it's difficult to know from what we have heard what the strength of the case is".

What legal opinion seems united on, however, is the likelihood of the couple being charged. The solicitor adds: "The Portuguese police seem to have a real head of steam up - and they will look very silly, now, if charges are not brought".

So what is the strength of the DNA evidence that apparently forms the mainstay of the case being assembled against the couple? The same lawyer says: "My worry, if I was defending them, is that the Forensic Science Service in Birmingham that is conducting the tests is very good. These guys know what they are doing".

John Cooper, an experienced criminal barrister, agrees. "If - and we can only go on what has been reported, and making the assumption that it is accurate - a quantity of samples of hair were found in the boot of the car then that would be very powerful evidence and they may well have a case to answer".

The DNA experts would also be able to tell, he adds, whether the DNA had been "secondarily transferred" - in other words, it was there because it had been carried on another family member's clothes or had come directly from Madeleine's body.

The finding of a body would obviously be helpful to the prosecution, because from that, the cause of death could be detected and other forensic evidence adduced, he adds. "But many people are convicted of murder or manslaughter without a body ever being found. It is not essential".

Yet even if a prosecution proceeds, criminal lawyers are equally robust in their view - on present knowledge of what evidence exists - that the chances of a conviction are slender. Professor Slapper says: "I think that without some new and incontrovertibly incriminating evidence, culpability will be impossible to determine reliably. Justice was so badly compromised by the authorities at the outset - the late arrival of the police, the failure quickly to seal the area and to alert national and regional offices - that even the slickest subsequent actions cannot retrieve that ground".

The (unnamed) criminal solicitor adds: "When you step back, you see that the scenario being presented here is inherently unlikely. The scene of crime has been contaminated and the fact that there are inconsistencies between witnesses' accounts of timings is entirely normal - you get that in every case".

The defence case, he says, would focus on the passage of time involved, more than three weeks, before the car was hired and DNA could have been present. "This time gap allows for contamination".

Simon Myerson, QC, a criminal barrister in Leeds, says: "There are several important questions to be asked here by any defence team. The first is: if this child's body was in the immediate vicinity for 25 days, why did nobody find it? This is bizarre".

Secondly, he says, was the question of motivation. "I can follow the scenario that one or both killed the child by accident and then covers it up. But to hide a body, and then three weeks later, without showing a sign of it, and with the world's media tracking their every move, for the couple to get the body into a car and get rid of it, then drive back again ... all without anyone seeing it ... it just seems so improbable".

Then there was the question of the cleaning of the car, he adds. If the car was not cleaned, and a body had been in it even for a short while, there should have been considerable DNA recovered. "But if it was cleaned, where is the evidence of that cleaning and how was it done without anyone seeing?".

Finally, a defence lawyer would question why the Portuguese police had allowed the car to be put back together after inspection - so allowing for continuing contamination, he says.

John Cooper adds that the defence could also focus on the "tightly defined period" during which the killing of Madeleine could have occurred and focus on filling any gaps during that time with alibis. "Secondly, there is the question of getting rid of the body and the improbability of doing this without being seen. The defence is entitled to speculate, as the prosecution would do, as to the likelihood of a course of action".

Robert Brown, a criminal defence solicitor, says that he was not convinced by the suggestion that the child had been accidentally killed. "Accidents do happen, but they are pretty rare." Nor is he so far convinced by the DNA evidence. "To what extent could this have been transferred? Scientists say it is a one in a million match - but they often mean: to that person - or his or her close relative. Madeleine's sister could have very similar DNA".

In his view, the suggestion that the couple, while "very much in the public eye", kept a body hidden, then disposed of it while "creating an enormous campaign as a diversionary tactic" did not ring true, he said. "You'd keep your head down and creep off to the woods rather than attract world-wide attention".

And finally what would a judge think? David Pannick, QC, a leading lawyer who sits as a recorder in the Crown Court, sums up the doubts of defence lawyers - at this early stage at least. "On the evidence so far made public, they [the McCanns] have no case to answer. In the English legal system," he adds, "we proceed on the basis of evidence, not speculation".

So do the Portuguese. But the speculation won't stop. The (unnamed) criminal solicitor says: "I think that they are innocent. But they are going to have to prove it".

Hat-Tip to Charon QC for providing this link.