Tel: Harlow (01279) 635789                              HARLOW
e-mail: ajsbennett@btinternet.com                       Essex CM17 0DJ

Carter-Ruck                                                      Monday 16 August 2010
Solicitors
6 St. Andrew Street
LONDON
EC4A  3AE

Your ref:  Stevie Loughrey

AT/IH/SVL//13837.5

Dear Sirs

re: Your clients Dr Gerald and Dr Kate McCann - Your letter of 3 August 2010, received 9 August

This letter follows my e-mail to you dated 10 August.

I reply to your letter paragraph by paragraph as follows:

Para 1. Noted.

Para 2. Also noted.

Para 3. I find it of interest how your clients’ secrecy about how their libel actions and letters are funded, along with other matters that they keep very secret, contrasts with their world-wide and very public appeal for everyone on the planet to look for Madeleine and to give to your clients’ appeal fund. 

Para 4. Our letter to the Home Secretary was sent on 12 March this year and appeared on our website soon afterwards. It was therefore posted five months ago, during which time there has been no objection from your clients to that letter being on our site. Insofar as that letter recites various factual matters connected with the police investigation into Madeleine’s disappearance, it says no more than, for example, the evidence given by several Portuguese witnesses in the hearing in January this year of Mr Amaral’s appeal against the banning of his book ‘The Truth About A Lie’ the previous September, evidence which caused your client Dr Gerald McCann a considerable amount of discomfort, or so it appeared from his demeanour on television, the morning after all that evidence was reported in the British press under such headlines as:

a) Daily Mirror: “Brit police: Treat the McCanns as suspects: McCanns should be treated as suspects, Brit profiler told Portuguese police”

b) SKY NEWS: “McCanns Braced For More Cover-Up Claims”

…with several other newspapers covering the same issue in different ways, for example the Daily Star reported: “Amaral claims the then three-year-old died in an accident in her parents' holiday apartment while they dined with pals nearby. He alleges that her doctor parents then hid her body to conceal the tragedy”.

The Daily Express also reported as follows: “During the hearing yesterday Mr Amaral's lawyer Antonio Cabrita held up a report by Lee Rainbow, head of the UK National Policing Improvement Agency, who is an expert in building profiles of possible offenders.
Reading from the report Mr Cabrita said: “The family is a lead that should be followed”. Mr Cabrita told the court the report had formed part of the police investigation into Madeleine's disappearance but had never been made public before. Portuguese police made Kate and Gerry McCann formal suspects, or arguidos, in October 2007. The status was lifted in July 2008. Last night a spokesman for the NPIA said that it was common for them to advise officers to consider the possibility of family involvement in disappearance cases. Mr Amaral's book, ‘Maddie: The Truth Of The Lie’, alleges that Madeleine died in her family's holiday flat and her parents faked her abduction”.

So far as I am aware, your clients did not instruct you nor any other lawyer to sue any of these papers for libel. It would be frankly ludicrous if newspapers were allowed to report for example the evidence of those Portuguese police witnesses in Lisbon and we could not. Once again, if there is any specific part of the letter to the Home Secretary that you think libels your client we will give consideration to removing it. 

Para 5. If you look carefully at my letter of 21 July, I did not criticise, contrary to the claim in your letter, any possible ‘leaking’ of your letter to ‘muratfan’. I merely advised you that ‘muratfan’ was boasting that he had seen your letter; I did not criticise you, or him. Notwithstanding your comments, it is nonetheless of more than passing interest that on 4 August whilst I was away on holiday ‘muratfan’ posted up details of the letter you sent me the previous day which were surprisingly close to the mark. I continue to search for an explanation as to why ‘murtfan’ continually makes posts which do suggest a close connection of his with members of the McCann family. As I believe ‘muratfan’ to be Ian West, it was not surprising to learn that an Ian West was amongst those photographing guests at the Richard-Branson dinner at the Rooftop Restaurant, 99 Knightsbridge, to mark the 1000th day since Madeleine was reported missing.

Para 6.  This paragraph lacks particulars. The record of both myself and The Madeleine Foundation is that if errors or alleged libels are brought to our attention, we will remove them, as we have done on occasions in the past. On the subject of the ‘48 Questions’ video, I wrote this to you in my 21 July letter: “The YouTube video you refer to which went live on 13 July was removed by YouTube as you already know on 16 July. We have no plans to republish it on YouTube or elsewhere. Having said that, we do not accept that to reproduce what the Portuguese Police have themselves published as the official record of the questions they asked Dr Kate McCann can possibly be construed as ‘libellous’, especially since these have been in the public domain for almost two years and, so far as I am aware, your clients have made no challenge to date as to their authenticity. The BBC website carries exactly the same list of 48 questions that your client refused to answer; it can easily be found in its archive for 2008”. You elected not to respond to my comments and my  position remains that there is nothing libellous about the YouTube video we made and which as you know was removed by them on 16 July.

You claim that I have ‘recently been republishing articles/postings by others, many of which clearly allege that our clients are guilty of, or are to be suspected of, causing the death of their daughter Madeleine McCann’. You need to be specific. I do my best to stick to the terms of my undertakings whilst at the same time exercising my right to question what others say or claim. As my track record shows, I will remove any posting on our website or that I have made elsewhere if you would please name the articles or postings in question and explain in clear terms how your clients say they are libellous.

Para 7. Again, you refer to ‘this continuing clear breach’ of my undertakings to the court yet you do not give particulars. I refer to my comments above under Paragraph 6 of your letter.

He says nothing about what he was doing in the period before 7.30pm on 3 May 2007

At 12h30 they started lunch, the meal having lasted an hour until 13h30. After that time they made their way to the resort play area, the deponent left by the front door and the rest of the family by the rear door that, once again, he shut and locked from the inside. As to the front door, he does not know exactly if he locked it.

----- That they stayed in the play area for approximately an hour until 14h30/14h35. After that they left the twins next to the creche at the TAPAS, they signed the register and the three (deponent, KATE and MADELEINE) made their way to the creche at the main reception, where they arrived at 14h50 and delivered MADELEINE, not being able to say precisely who signed the register.

----- The deponent and KATE returned to the OCEAN CLUB by the short-cut and at the secondary reception they asked the lady employee if there was a vacant tennis court they could reserve. They were told there was a vacancy between 14h30 to 15h30. As it was already 15h00, they began to play immediately. At 15h30, the tennis instructor arrived, who instructed each of them until 16h30.

----- They stayed in that place, talking, until 16h45 at which time the twins went to the meal area. At 17h00, as usual, MADELEINE arrived accompanied by the teachers and the other children. After her arrival, MADELEINE ate, [the meal] having ended at 17h30.

------ After 17h30 they went to the apartment, the deponent having entered by the main door, which he did not lock while he was inside the residence. KATE and the children entered by the rear door, after this had been opened from the inside by the deponent.

------ That they bathed the children, the deponent having left at 18h00 for a tennis game only for men, at which were: DAN, tennis instructor; JULIAN, with whom he had played tennis several times; and CURTIS, with whom he had also played.

------ During the afternoon of that day the rest of the group members, including the children, were at the beach, [they] having returned at 18h30, the time at which he saw DAVID PAYNE next to the tennis court. DAVID went to visit KATE and the children and returned close to 19h00, trying to convince the deponent to continue to play tennis, to which [entreaty] he did not accede as he had already been playing for about an hour and had to go back to his wife. Nevertheless, RUSSELL, DAVID and MATTHEW stayed to play.

----- At 19H00, he made his way to the apartment, finding KATE and the children playing on the sofa. About 10 to 15 minutes later, they took the children to the bedroom and they all sat on MADELEINE'S bed to read a story.

She also says nothing in this statement about events prior to about 7.30pm on 3 May.

The lesson ended an hour later, at around 4h30. Gerry continued playing tennis with a guest called JULIAN who belonged to his tennis group, while she went for a jog along the beach, for around half an hour. During that period she saw the rest of the group, children and grown-ups; she was disappointed as nobody had told her that they were going to the beach and Madeleine surely would have loved to have gone with them. She cannot confirm whether she went to the apartment between the tennis game and the jog.

When she finished jogging, at around 5h20/5h30, she went to the TAPAS area. Gerry was there, as well as the twins and Madeleine who were having dinner at separate tables. Madeleine had been taken to the area by the nannies. Her parents were required to sign the register when the meal was over, at around 5h30. During the meal Kate asked Madeleine if she was sad because the other children in the group had gone to the beach without her; she replied that she wasn’t, but was rather tired. She asked Kate to carry her back to the apartment. Kate agreed, and Gerry led the twins back to the apartment, as well. Tiredness was due to the intense daily activities, not to any sickness.

They arrived at the apartment at around 5h40, earlier than usual, because Madeleine was tired, their other friends were at the beach and Gerry had an all-male tennis game at 6h00. At the apartment they both bathed the children, and close to 6h00, Gerry went to the tennis courts, right after the children had finished their bath. They entered the apartment by the main door, with the key. She does not know if it was locked, and presumes it was Gerry who opened it. At lunch-time they also entered through the same door.

After the children’s bath, already alone, she put pyjamas and nappies on the twins, and gave them each a glass of milk and biscuits. Before bathing the children and because it was early, they had thought of taking them to the recreation area, but then decided against this because of tiredness.

While the children were eating and looking at some books, Kate had a shower which lasted around 5 minutes. After showering, at around 6h30/6h40pm and while she was getting dry, she heard somebody knocking at the balcony door. She wrapped herself in a towel and went to see who was at the balcony door. This door was closed but not locked as Gerry had left through this door. She saw that it was David Payne, because he called out and had opened the door slightly. David’s visit was to help her to take the children to the recreation area. When David returned from the beach he was with Gerry at the tennis courts, and it was Gerry who asked him to help Kate with taking the children to the recreation area, which had been arranged but did not take place. David was at the apartment for around 30 seconds, he didn’t even actually enter the flat, he remained at the balcony door. According to her he then left for the tennis courts where Gerry was. The time was around 6h30-6h40.

After David left, Kate dressed and sat with the children, Madeleine on her lap. She was wearing a top, she doesn’t remember what colour it was, a green long-sleeved t-shirt, blue denim trousers, sports shoes and white socks.

She read a story to the children in the living room, on the sofa in front of the balcony door, identified on the diagram with the letter D. At 7h00,  Gerry arrived and entered through the balcony door. He sat on the sofa identified with letter E. She doesn’t know if the story was finished, but thinks she was still sitting on the sofa.

1485 (Leicestershire Police): "Alright, what I now want you to concentrate on David is the important day really, Thursday the third of May. I want you to try and put yourself back in to that, it may help you if you think of the time when the alarm was raised, that may well bring you back to the beginning of the day and try and remember as much as you can, the time you got up, I know that you said on the first interviews that you couldn’t remember an awful lot but try as best you can to remember from say midday onwards.”

00:01:48 PAYNE “Mm yeah, err on that particular day err me and Fiona had you know gone down to the beach, we err took the dinghies out err as usual we went, you know we had the kids, err we had lunch err in the apartment. Err that afternoon I wanted to go down err to the Ocean, err to the beach and err you know windsurf err Matt and Russell had gone down there, they were, had taken the catamaran out. So I went down there err while Fiona and Dianne were looking after the girls in our apartment. Err I was down err windsurfing, I must have been windsurfing for a couple of hours, err saw Matt and Russ out on err the catamaran and then after we finished there we you know we met on the beach, played with the girls on the beach and then we went to the err the restaurant which is on the err overlooking the beach and you know we had err the evening meal there. Err after we had the meal we got some ice cream and then err we decided that we were gonna go up and play tennis so I left err with err Russell, we left the, err the girls at the restaurant and we went up to the, err back up to the Ocean Club. Err I, as I say I’m not sure you know what happened to Matt and Russell at that particular moment but I remember then you know I went over to see err Gerry at the err you know tennis courts, just to see you know what was happening, and err decided that we’d, you know I’d come, come back to play tennis and err Gerry had asked me just to pop in and check everything was alright err with Kate or you know again I can’t remember the exact reason whether he was just making sure it was alright that he could stay there and you know more time but you know he’d asked me to pop in. So I walked back err from the tennis courts, err back to err you know Kate and Gerry’s apartment and the time you know looking at, you know we’ve looked obviously at photographs since then and you know the time that we’ve got that I was you know going to Kate’s about six thirty, err and I went into their apartment  through the patio doors. The three children were all you know dressed you know in their pyjamas, you know they looked immaculate, you know they were just like angels, they all looked so happy and well looked after and content and I said to Kate, you know it’s a bit early for the you know, for the three of them to be going to bed, she said ah they’ve had such a great time, they’re really tired and you know err so I say, you know I can’t remember exactly what, what you know the night attire, what the children were wearing but white was thepredominant err colour, but you know just to reinforce they were just so happy, you know seeing you know obviously Gerry wasn’t there but they were just all, just so at peace and you know they looked like a family who’d had such a fantastic time and err yeah then I left there, went and got my stuff, went back to the tennis courts and then err there was me, Matt and Russell and I think Gerry played a little, for a little while but he decided that he’d, he’d played enough tennis for that day and err was going back and so it left with me, Russell and err Matt and err Dan who was the, the you know the tennis coach from Mark Warner. Err so we played some tennis and you know we were having a good knock and then it was getting a bit late so err we, you know we left the tennis courts, went back to our respective partners to get ready to go out, you know it was, it was, you know certainly after half past seven that we’d, you know we’d left the courts, perhaps even a bit later than that. Err when I got back err I think because Fiona had done a lot of babysitting and left me playing tennis she said well I’m gonna go for a very quick run so she went for a run on the beach, you know, err got the kids ready, bathed, got them ready for err to go to bed but again you know as we’d got back late err from the tennis courts you know the whole time err for that evening was not, you know later. And then we just got ready to go and by the time Fi had got back from the run we’d all had showers, we were all ready to go and the girls were asleep and we were happy to leave the apartment, it was you know it was sort of gone quarter to nine. Err we walked down, the three of us, err you know to the Tapas area err we bumped into Matt, he was walking err back to the apartment and err you know he was, he was, you know semi-jokingly said oh I’ve come to check because you’ve taken so long and you know which actually transpired that they were quite err getting agitated because you know the time the table was booked at half past eight andyou know it was approaching nine o’clock and you know they thought it was, it wasn’t appropriate that we weren’t there you know as early as we should have been. So then Matt carried…err back, you know, to the apartment and we went to the table. Err when we sat, sat down I err sat next to Gerry and err youknow of course the next few minutes just started chatting to Gerry and you know I said to him you know this is you know has been one of the best days I’ve had in a long time you know and we were just chatting about what we’d done and he was reciprocating just saying you know what, what a fantastic day they’d had, what a fantastic week it was and you know just a general consensus was that you know it was just a fantastic time. Err again I was aware that err you know that other people were leaving the table, err I know that err the, err between Russell and Jane they were leaving the table err to look after Evie. It transpired that at some stage she’d been unwell and err Evie, sorry then Russ, so Russell was basically, was missing the part of the main course and then Jane went you know and ate hers and then disappeared off to take over so we all you know I think made the same joke that Jane said oh I’ve gone to relieve you know Russell and you know that’s, and then you know I remember the other people that night you know again it’s in part of the things that we discussed after but you know I was sort of aware as well that there was, rather than all just checking on their own they were just cross-checking as well but still you know very err frequently…”

For six months David James Smith has examined the evidence surrounding the disappearance of Madeleine McCann for The Sunday Times Magazine. In this, the most comprehensive - and authoritative - investigation yet, he addresses the key issues facing Gerry and Kate as they prepare for Christmas without their daughter

That week in Praia da Luz, the week the McCanns were made suspects in their own daughter's ‘death’, I was out there talking to them and to family and friends. I was at the home of the Anglican vicar Haynes Hubbard, sitting with him and his wife, Susan, while their own three children pottered around us. 

That evening, Thursday, May 3, at just after 8pm, by their account, Kate and Gerry McCann were having a glass of wine together in apartment 5A on the ground floor of Block 5 of the Waterside Village Gardens at the Ocean Club. Their three children were asleep in the front bedroom overlooking the car park and, beyond it, the street. Madeleine was in the single bed nearest the door. There was an empty bed against the opposite wall, beneath the window. Between the two beds were two travel cots containing the twins: Sean and Amelie. Gerry had bought the wine at the Baptista supermarket, 200 yards down the hill. They had lived and worked in New Zealand for a year and that particular bottle, Montana sauvignon blanc, was their favourite. It was the sixth day of their week’s holiday in the Algarve and they were reflecting on the enjoyable time they’d had, how surprisingly easy it had been with the children.

“Gerry had knocked up at the start of the 4.30pm tennis-drills session, but had decided not to exacerbate an injury to his Achilles tendon, so had dropped out and waited around by the courts until the children came back from the kids’ clubs at 5pm for tea. That had been one of the most enjoyable times of the holiday, all the children together for tea, then the adults playing with them afterwards.

Gerry was in his apartment at 7pm, had a glass of water, then a beer, while the children sat with Kate on the couch having stories with a snack. The children were clearly shattered - the last thing any of them needed was a sedative and, anyway, it was not something the McCanns ever did. They put them to bed after a last story. The twins were asleep virtually the moment they lay down, Madeleine not far behind them. They were first to the table at the restaurant at 8.35 and spent some minutes talking to a couple from Hertfordshire - two more tennis players - at the next table, who were eating with their young children. As they chatted, Gerry thought how lucky he was, his children asleep nearby, he and Kate free to come and enjoy some adult time at the restaurant and not have to sit with their children, as this couple were”.

In a Panorama programme transmitted on Monday 19 November (just three days after the McCanns, their friends, their lawyers and advisers met at Rothley Court Manor and just six days after Brian Kennedy and his lawyer Edward Smethurst and suspect Robert Murat and his lawyer Francisco Paragete met in secrecy at the Eveleighs’ villa in Burgos along with Mrs Murat), presenter Richard Bilton said the following, and I quote directly from a transcript of the documentary:

BILTON: “The week long holiday is coming to a close. Day 6: it's Thursday, May 3rd. We've produced this model of the Ocean Club to clearly show the key areas and where people were. The tennis courts and pool area, the Tapas Bar and here apartment 5A where by 5.30 in the evening the McCanns say the children have been picked up from, their kids' clubs, and they were all back together. At 6, Gerry McCann has his third tennis lesson of the day, so he leaves the flat. He says as a family they talked about bringing the children back out to play in the area by the courts. At 6.30 Gerry McCann asks a friend, David Payne, to pop in on Kate to see if the children are coming down. He goes to the flat, he says all is well, but the children are too tired and are already in their pyjamas. At 7, lesson over, Gerry McCann goes back to the apartment. He says he reads the children a story and all three are asleep by 7.30. The couple say they have a glass of wine before, and, at half past eight, they leave for the Tapas restaurant, it's on the complex about 70 metres away. They'd eaten here every night of their holiday with their friends. They can't see the front or the side of the apartment but they can see part of the back, though even that view is partially obscured by bushes”.

Regarding the episode where he spoke to David on the 3rd of May, he says that he was playing tennis at 18h30 when David appeared near the tennis court and asked him through the net if he was going to continue playing. The deponent said he didn’t know because Kate might be needing help to look after the three children, even more so because they intended to bring them to the recreation area after their showers. He thinks that David offered to check if Kate needed help, which he did, and returned minutes later. Concerning his previous statement, where he states that David returned half an hour later, at around 19h00, he says that he returned to the tennis court after half an hour, as this time frame refers to the second time he returned to the tennis court, after dressing up for the game.

Crucial new details of the day Madeleine McCann went missing can be revealed today.
According to sources, Gerry McCann asked one of their friends to check on Kate and the children while he had a tennis lesson.

Mr McCann spoke to David Payne shortly before 6.30pm while playing on the court at the Mark Warner Ocean Club resort in Praia da Luz.

[Picture: Concerned: Gerry asked a friend to check on Kate and the children]

The source said: "David Payne saw Madeleine at around 6.30pm.
"He popped in because Gerry wanted to make sure Kate was OK. Gerry was playing tennis and David said he was going past.

"I expect it was said [by Gerry] as: 'If you are heading back that way, stick your head in and see if Kate is all right'.

The exchange between Mr Payne and Mr McCann had fuelled Portuguese suspicions about Mrs McCann's frame of mind on the day Madeleine disappeared.

Detectives in Portugal suspect she killed Madeleine by accident and that Mr McCann helped her cover up the death - which is vehemently denied by the McCanns as a smear.

But Mr Payne's evidence now forms part of the Portuguese investigation.
It is part of new details of the day which can be revealed for the first time.

[Picture: Portuguese police have suggested Kate was struggling to cope with her three children]

A source close to the McCanns has revealed further details of events as they unfolded in the hours before Madeleine went missing from her family's holiday apartment on 3 May.

The source said Mrs McCann went jogging around Praia da Luz while Madeleine and twins Sean and Amelie played in the resort's children's club.

The McCanns then took the children for tea before Mr McCann went for an hour-long tennis lesson - starting at 6pm - with the resort's coach.

During that time, Mrs McCann was alone with the children in their two-bedroom apartment bar the crucial few minutes during which Mr Payne made his visit.

Mr Payne is understood to have told police he found Mrs McCann happily coping with her three children, including Madeleine.

Mr Payne, 41, is bound by Portuguese secrecy laws and cannot speak out about the events on that night.
But today he said: "Kate is a fantastic mum. She can cope. She is a very able person."
Mr Payne, who has known the couple for at least five years, added: " I have never witnessed anything untoward in all that time."

The source said there was now a fear Portuguese police may have misinterpreted Mr McCann's request as some indication his wife was struggling with the children and needed help.

But the source said Mr Payne, a senior research fellow in cardiovascular sciences, had "never given the impression this was a woman stressed out".

The source added: "The impression I get was Kate was having a lovely time with the children."
The evidence of Mr Payne, 41, and the McCanns' dining companions that night - dubbed the "Tapas Nine" - is vital in clearing the couple of any involvement in Madeleine's disappearance.

It is understood that none of their friends has been interviewed by Portuguese police since giving official witness statements back in May.

Portuguese newspapers claim police want to interrogate them again and that a judge has given the go-ahead.

 * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

If we now analyse the above statements and news reports, we see the following:

1) In their first statements to the Portuguese police, the McCanns and Dr David Payne say very little if anything about events in the afternoon and early evening of 3 May, certainly nothing about an apparent visit by Dr David Payne to your client Dr Kate McCann.

2) When your client Dr Gerald McCann speaks of Dr Payne visiting Dr Kate McCann, he speaks of Dr Payne leaving for the apartment at about 6.30pm and not returning until 7.00pm - half-an-hour later.

3) Dr Payne in his statement refers to a visit which clearly took some considerable time. He says he saw the children already dressed in their night gear, mostly white, ‘angelic-looking’, and is reported elsewhere as saying he saw them ‘being put to bed’.

4) By contrast your client Dr Kate McCann says she was showering whilst the three children were playing, heard a knock, slipped a towel round herself, answered the door, only kept the door ajar and did not allow Dr Payne in, and that the whole episode lasted a mere 30 seconds.

5) If we then go on to look at the accounts of your clients Dr Kate McCann and Dr Gerald McCann playing tennis, we have the following discrepancies:

She then says that after getting out of a shower at about 6.30pm/6.40pm, Dr David Payne knocked on the door, she put a towel around her and spoke to him for about 30 seconds.  She makes two important statements. She says he didn’t even enter the apartment, being left on the balcony. She also says: “David’s visit was to help her to take the children to the recreation area. When David returned from the beach he was with Gerry at the tennis courts, and it was Gerry who asked him to help Kate with taking the children to the recreation area”. Now, if Dr Gerald McCann is correct (see above) in saying that the couple had already decided to bath the children at 5.30pm and not take them down to the recreation area, why would he then, around half-an-hour later, send Dr Payne up on a fruitless visit to the apartment to persuade his wife and children to come down to the recreation area after all. With the greatest of respect and without wishing to commit libel in saying so, it seems totally inexplicable.

6) I now come to examine in more detail the contradictions relating to a visit Dr David Payne is said to have made to Dr Kate McCann at around 6.30/7.00pm on the night of 3 May:

1485 (Leicestershire Police): “How did that come into your conversation?”

Fiona Payne’s reply: “Because he was saying how angelic they all looked and he said to Kate when we all sat down at the Tapas table as well and he was sort of joking how they looked like perfect children, because they were all sat there, all clean in their pyjamas, having a story”.

1485 (Leicestershire Police) then asks: “Yeah. But when did he, specifically, when did he tell you?” Reply: “I think it was when we were getting the kids ready for bed and we were back in our apartment”.

7) I come now to item (G), an account written by David James Smith for ‘The Times’. It purports to give an accurate account of events in Praia da Luz and is headed indeed by the proud and confident boast: ‘…the most comprehensive - and authoritative - investigation yet…’  It was a boast that he could perhaps make with a certain amount of justification, given that he said it was based on several interviews with your client Dr Gerald McCann himself. So far as the tennis-playing is concerned, Smith writes: “Gerry had knocked up at the start of the 4.30pm tennis-drills session, but had decided not to exacerbate an injury to his Achilles tendon, so had dropped out and waited around by the courts until the children came back from the kids’ clubs at 5pm for tea”. Thus in this account Dr Gerald McCann wholly contradicts his wife who said: “The lesson ended an hour later, at around 4h30. Gerry continued playing tennis with a guest called Julian”.

8) Dr Gerald McCann in his account says that he returned to play tennis at 6.00pm and Dr Payne says that he continued to play at 7.00pm. That would seem unlikely if he had genuinely had an Achilles tendon injury which at 4.30pm prevented him from playing any more tennis. At this point it is pertinent to observe that according to their accounts, Dr Gerald McCann arrived at the tennis courts at 3.00pm and remained there throughout for four whole hours except, he says, for briefly visiting the crèche just before 5.30pm and bathing the children between then and 6.00pm.

9) From David Smith we now get an account of what happened at 7.00pm which varies significantly from the accounts given by Dr Gerald McCann and Dr Kate McCann about the reading of books to the children. Dr Gerald McCann tells David Smith: “We all sat on Madeleine’s bed reading stories”. Dr Kate McCann says: “I [not her husband] read stories to the children on the sofa”. But Smith’s account says: “Gerry was in his apartment at 7pm, had a glass of water, then a beer, while the children sat with Kate on the couch having stories with a snack”. 

One or two other points about this are worthy of note en passant. In Dr Kate McCann’s first statement (D above), she refers only to giving ‘milk and biscuits’ to the twins (not to Madeleine). She then decides to take a shower. The reference to ‘not being able to remember what coloured top Madeleine was wearing’ is curious to say the least when the McCanns produced, around three weeks after she was reported missing, and only after Dr Gerald McCann had returned to England for a couple of days at the end of May, the so-called ‘last photo’ of Madeleine, apparently taken at 2.29pm, when she was clearly wearing a pink dress or top. 

Finally, Dr Kate McCann says this: “After David left, Kate dressed and sat with the children, Madeleine on her lap. She was wearing a top, she doesn’t remember what colour it was, a green long-sleeved t-shirt, blue denim trousers, sports shoes and white socks”. David Payne either left when he arrived at about 6.30pm (Dr Kate McCann’s version) or half-an-hour later (Dr David Payne’s version). But Dr Gerald McCann says this: “That they bathed the children [between 17h30 and 18h00], the deponent having left at 18h00 for a tennis game only for men”. It seems very strange therefore that between half-an-hour to an hour after Madeleine was bathed, Dr Kate McCann says she is on her lap ‘wearing a top, she doesn’t remember what colour it was, a green long-sleeved t-shirt, blue denim trousers, sports shoes and white socks’. Moreover, the descriptions ‘green long-sleeved T-shirt’ and ‘blue denim trousers’ hardly accords with what Dr David Payne recollects seeing: three ‘angelic’ children dressed in white. 

10) Turning now to the Panorama programme of 19 November 2007 (Item (I) above), which again was thoroughly researched, presenter Richard Bilton asserts: “At 6, Gerry McCann has his third tennis lesson of the day, so he leaves the flat. He says as a family they talked about bringing the children back out to play in the area by the courts”. This account first of all contradicts the David James Smith article which states that Dr Gerald McCann was unable to play any more tennis after 4.30pm on account of his Achilles tendon injury. Moreover, the claim that the couple talked about bringing the children out to play in the recreation area after 6.00pm is flatly contradicted by Dr Kate McCann’s account that the children were very tired at 5.30pm, and that the couple decided to bath them and get them ready for bed between 5.30pm and 6.00pm and had by that time ruled out the children going out to play any more. Richard Bilton’s account continues: “At 6.30 Gerry McCann asks a friend, David Payne, to pop in on Kate to see if the children are coming down”. Once again, this does not accord at all with Dr Kate McCann’s account that they had already decided to bath the children and get them ready for bed.

11) In Dr Gerald McCann’s ‘arguido’ statement of 7 September 2007, he states: “He says that he was playing tennis at 18h30 when David appeared near the tennis court and asked him through the net if he was going to continue playing. The deponent said he didn’t know because Kate might be needing help to look after the three children, even more so because they intended to bring them to the recreation area after their showers”. Clearly, then, although Dr Gerald McCann told David James Smith that he was unable to play tennis because of an Achilles tendon at 4.30pm, he was in fact playing a game of tennis at 6pm. We are now told, however, that the reason that Dr Gerald McCann sent Dr Payne up to his apartment was ‘because Kate might be needing help to look after three children’. Here he again claims: “We intended to bring [the children] to the recreation area after our showers”, despite Dr Kate McCann, back on 6 May, stating to the Portuguese police that the two of them were bathing the children between 5.30pm and 6.00pm, having already decided that the children were not going out any more. There is also that curious reference to bringing the children to the recreation area ‘after their showers’. Dr Gerald McCann does not mention having a shower at all. And Dr Kate McCann said she had just stepped out of the shower when Dr Payne came a-knocking at her front door.

12) If we now turn to Item (K), in what appears to be another article directly sourced from Clarence Mitchell, we learn: “The source said: ‘David Payne saw Madeleine at around 6.30pm. He popped in because Gerry wanted to make sure Kate was O.K. Gerry was playing tennis and David said he was going past. I expect it was said [by Gerry] as: ‘If you are heading back that way, stick your head in and see if Kate is all right’.”  So now the story has changed again; this time Dr Payne goes not to fetch Dr Kate McCann and the children down to the recreation area but instead: ‘To make sure that Kate is O.K.’ We may note that this article, quoting the source, says: “The McCanns then took the children for tea…” That is not consistent with the accounts of your clients who say, rather, that the children were already having tea in the creche when they joined them. We might also note a very important further contradiction. While Fiona Payne states that Dr David Payne returned to the apartment at 7.10pm, he himself maintains that he was playing tennis until nearly 8.00pm”.

 * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

It is manifest from the above that there are many contradictions in the various accounts, just concerning this one period of time. I might mention briefly another area about which your client Dr Kate McCann has been asked, namely why she was so adamant on visiting the apartment at 10.00pm on 3 May 2007 that Madeleine had been abducted. During the period your clients were ‘arguidos’, Dr Kate McCann consistently said that she could not answer that question whilst they were under arguido status, because of Portugal’s ‘strict judicial secrecy laws’. However, after their arguido status was lifted, they were asked again about this but your client has failed to answer the question: what made you so certain that Madeleine had been abducted? It is one of the central questions in the whole case, yet your client has not given us an answer, despite asking the world to help look for Madeleine. Your clients cannot be surprised if people speculate about why she keeps so silent on this crucial issue.

Whilst there are many areas of contradictions to explore, based on the various statements made by your clients and the rest of the ‘Tapas 9’ about events from 28 April to 3 May, I will, finally, and again merely for illustrative purposes, deal briefly with another set of contradictions and matters which have not been fully explained by your clients and their ‘Tapas 9’ friends.

You will be aware that one of them ripped off the cover of Madeleine’s ‘Activity Sticker Book’ to write down a ‘timeline’ of the evening’s events, followed by a second, slightly different timeline. It is understood that these were written down by Dr Russell O’Brien. Here is what they said:

Ripped out sticker book cover: Timeline 1

8:45 pm

Matt returns 9.00-9.05 - listened at all -  all shutters down

Jerry 9.10-9.15 in the room + all well ? did he check

9.20/5 - Ella Jane checked 5D sees stranger & child

9.30 - Russ. Ella Matt check all 3

9.35 - Matt check see twins

9.50 - Russ returns

9.55 - Kate realised Madeleine

10pm - Alarm raised

Ripped out sticker book cover: Timeline 2

8.45pm. all assembled at poolside for food

9.00pm. Matt Oldfield listens at all 3 windows 5A, B, D ALL shutters down

9:15pm Gerry McCann looks at room A ? Door open to bedroom

9:20pm Jane Tanner checks 5D - [sees stranger walking carrying a child]

9.30 Russell O'Brien in 5D. Poorly daughter
  l
9.55pm

10:00pm. Alarm raised after Kate

Gerald

It will be seen that both timelines are clear in saying that ‘all were assembled’ at 8.45pm, followed by Dr Matthew Oldfield going to do his check at 9.00/9.05pm and Dr Gerald McCann doing so at 9.10/9.15pm. There is an obvious question about why Dr Gerald McCann felt it necessary to check on his children almost immediately Dr Matthew Oldfield had returned saying that he had checked and that everything was fine. That has never been explained by your clients. 

Dr Matthew Oldfield says that “at around 8.45pm, he and his wife left their daughter asleep in the apartment and went to the ‘Tapas’ restaurant.
That the couple Kate and Gerry, Madeleine's parents were already at the restaurant. That they had arrived at the restaurant five minutes before them. The rest of the adults arrived at the restaurant around five minutes after the interviewee and his wife. That the last to arrive at the restaurant was the couple David and Fiona. That the latter arrived at the restaurant at around 21h00”.

According to that account, therefore, the ‘Tapas 9’ were not ‘assembled’ until 9.00pm. He goes on to say that at 9.05pm he left the restaurant with the express intention of checking on the children, saw the windows closed, and reported that all was well. Yet, we learn from him that “after this check, he returned to the restaurant, saying that all the children were asleep. However, Gerry, Madeleine's father, went to the area of the apartments to check for himself if the children were asleep...Five minutes later, Gerry came back to the group in the restaurant”. [It is generally agreed by the witnesses that Dr Gerald McCann was away from the table for 15-20 minutes, mostly talking to Jez Wilkins]. Dr Oldfield does not, indeed cannot, explain why Dr McCann goes to do a check. His claim of Dr McCann returning in 5 minutes is contradicted by Dr McCann himself, who says it took 15 minutes, and by Dr Kate McCann who says that he was away from the table for so long that they thought he must have returned to the apartment, not to check on the children, but to sneakily have a look at a football match on the TV. Dr McCann was later to admit that he did spend several minutes checking in the apartment and spent ‘an unusually long time’ on the loo.

Jane Tanner’s statement says that both she and Dr Russell O’Brien and Dr David Payne and his family arrived at 9.00pm, not 8.45pm - and Russell O’Brien’s statement confirmed this.    

If we then look at Dr Gerald McCann’s statement of 10 May, he says that Dr Matthew Oldfield did not tell him he had checked on the McCanns’ children - a clear conflict with Dr Oldfield’s statement. Dr McCann says: “At around 21h00, MATTHEW stood up from the table, saying that he was going to check on the children. Nevertheless, he did not say that he would go to check on the deponent’s children, and it was only after the disappearance of MADELEINE that he told him that at 21h00 the shutters of the children's bedroom window were closed. At 21H05, MATHEW returned, the time at which the deponent left the table to go check on his children”.

Dr Rachael Oldfield, however, in her statement of 4 May, is clear that Dr Matthew Oldfield did say he had checked on the children: “He had been to check the children's bedrooms, his own apartment where his daughter was sleeping but also that of the twins and Madeleine. He listened at both closed shutters and didn't hear any noise. He also checked to see if there was any noise in Russell O'Brien and Jane Tanner's apartment. He said that he hadn't heard any noise”. She elaborates still further on this in her statement of 10 May: “After about 4 minutes, MATTHEW returned to the table when they ordered the food, and said he had ‘listened’ to his daughter and to the O’BRIEN and MCCANN children, outside the front by putting his head [ear] against the shutters of the windows of their respective bedrooms and that everything was calm with the children”.

Dr Matthew Oldfield further muddied the waters by saying in his statement of 10 May that the main purpose of his departure from the restaurant was to chase up the Payne family, whom he said were late. Rachael Oldfield confirmed that in her statement of 4 May. He told the Portuguese police: “…David, Fiona and Dianne were still not present - and as he could see their apartment lights burning - he resolved to go to them, clarifying that he did not reach that apartment as those people were already on their way to the restaurant. He clarifies [further] that he met them near the living quarters, at the corner next to the main door of the McCann apartment. Benefiting from meeting them next to their apartment, he adds that, on his own initiative, he made a ‘listening check’ at the bedroom window of Madeleine McCann and the twins at 21h05”. According to this account, then, the full party did not assemble until 9.05pm, not 8.45pm.

Russell O’Brien in one of his statements supported that version: “So Matt, erm, around nine o’clock, give or take a few minutes, but around that sort of time, he got up and said ‘I’ll go and drag them out’.”

If we now turn to Dr David Payne’s statement of 4 May, he states: “Concerning yesterday evening, he, his wife and his mother-in-law arrived at the restaurant at around 8.55pm. According to what he remembers, when they arrived, all the members of the group were present, apart from the children, who were in bed”. That, of course,  contradicts Dr Matthew Oldfield’s account that the main purpose of his visit was to chase up the Paynes, catching up with them near his apartment, and then thought, only as an afterthought, that he would also check on the children. Dr Russell O’Brien’s statement also conflicts with Dr Oldfield. He says: “He remembers that Matthew Oldfield left the restaurant, around 21H00, having gone to the apartments to ensure that no noise was coming from within.

 

Neither does Dianne Webster in her statement of 4 May mention being chased up by Dr Oldfield; she merely says: “We left the apartment at around 8.45pm accompanied by my son-in-law and her daughter, and  went to join the rest of the group at the ‘TAPAS’ restaurant”. Furthermore, on 10 May she changed the time of her arriving at the restaurant to 9.00pm, and in relation to meeting Dr Oldfield on the way, made a robust denial: “Asked specifically whether, on the journey to the restaurant, if they had passed either of the two individuals described in the preceding paragraph [Dr Oldfield or Dr McCann], she answered categorically not”. That in turn was completely contradicted by Fiona Payne in her Rogatory Interview where she asserts:

“Erm, on the way down, we went down the normal way, as I say, out onto the main road and round the corner. And just as we were approaching, erm, probably outside kind of the, Kate and Gerry’s gate, that sort of area, erm, we bumped into Matt who was heading back to chase us up, erm, and we had a joke, you know, we’re always late. He carried on up to check on Grace and we carried on down to the ‘Tapas’ Bar and when we got there everyone else, bar Matt, was sat at the table”.

The times of everyone’s arrival are contradictory. They were certainly not ‘assembled at 8.45pm’ as Dr Russell O’Brien’s notes on Madeleine’s ripped-out sticker book claim. Different reasons are given as to why Dr Matthew Oldfield left the table. It is not agreed if he met the Paynes en route or, if they did meet, where that was.  

In passing, there is obvious concern about the statements of Jane Tanner and Dr Russell O’Brien about their child Evie who, according to their statements, was sick on the evening of 3 May. We read in Jane Tanner’s  statement of 4 May, for example, that the couple left three-year-old Ella and one-year-old Evie on their own when they went down for dinner, despite ‘Evie ‘not feeling well, so did not go to her Kids Club’ that morning. Tanner then says that she “…bathed her children, read them a story and put them to bed. Evie was unwell and having trouble sleeping, so stayed with her father. She says she went to the restaurant on her own at about 8.30pm. She says that Dr Russell O’Brien ‘arrived at the restaurant at about 9.00pm, having got Evie to sleep.
She tells us that at around 9.15pm she ‘left, to go to her apartment to see whether her daughters were O.K’. She says that ‘After checking on her daughters, she returned to the restaurant’ then ‘15-20 minutes later’, her husband Russell and Matthew left to check on the children, when Dr Russell O’Brien is said to have ‘found Evie’ ‘restless and crying’. In Dr Russell O’Brien’s statement, he says that “he had to change all the sheets and his daughter's clothing as she had vomited”. If this is all a true account, one can only express astonishment that this couple were prepared to both go off and dine at the ‘Tapas’ restaurant knowing that their one-year-old baby was sick. If the baby, as reported, then woke up whilst they were both eating their tapas and drinking, and ‘had vomited’, the couple were very lucky indeed that nothing worse happened to Evie that night.

In his Rogatory Interview, Dr Russell O’Brien clarified these matters as follows: “ I thought it was probably about, you know, it was time we did a check and I also needed the toilet so rather than just go to the toilet, which was almost up to the portal, I got up and Matt, erm, said ‘Oh I’ll come and do a check as well. So me and Matt walked back to the, to the, erm, to the flats, erm, this would have been about, about kind of twenty-five past nine, Matt came to my apartment [at about 9.30pm]…I went straight to Apartment 5D, I could hear at the door that Evie was murmuring’, well ‘at the window’ rather than ‘the door’, I think… window’, yeah. I think it’s the opposite way round really, I went to the toilet to urinate, and I knew, I knew, because Evie was awake, I was staying anyway, so I went to the toilet to urinate and then checked on Evie and she had been sick’, so I think I actually went…yeah, I had a pee first because I was a little desperate. I started to clean her up and change her.

“Matt came into my apartment and asked if I needed any help. I said ‘No, go back and tell Jane that Evie is unwell…given the amount of stick that that I’ve had with the Portuguese press for not requesting any fresh sheets for Evie, I think I’d actually like to point out that the, that this wasn’t some third world apartment and it did actually have a washing machine…it says that we never requested any, we never requested any further sheets and if they were sick all over them then how could this be true. But there was a washing machine in the building…I told [Matt] to go back and tell Jane that Evie was unwell, I’d obviously cleaned her up and changed her…it was then that I would have had time then, it was then I started, I got her out, I gave her a quick wash in the bath, changed her, got the sheet off the cot, and at least, whether I started the washing machine then, but at least I put them in the washing machine and then sat down with Evie. But I want it [my statement] that there was a bloody washing machine in the apartment…I got the dirty linen and her clothes off and at least I think, there was a few bits of sick and I probably gave them a rinse off in the bath and then just shoved them in the washing machine, whether I started it then or did it later I’ve no idea…as a man I can use a washing machine, staggering though that may sound…”  

These are matters of child welfare and child safety that clearly also involve your clients as they too admitted leaving their children for significant periods six nights in a row (see the articles in the Independent on Sunday and Sunday Mirror by Lori Campbell on 5 August 2007). It would be wrong to prohibit discussion of such child welfare issues as clearly arose in this case, both on the very same evening, with one child left on her own with a three-year-old waking up crying, having vomited, and another, left alone with her two-year-old twins allegedly abducted, whilst the group was wining and dining about a minute-and-a-half’s walk away.    

Both the contradictions in the case and the lack of explanation from your clients about a number of matters naturally give rise to discussions on the internet and elsewhere, which are extensive. I have done my best to remain within the confines of the undertakings I gave to the court, but those undertakings, so I am advised and understand, do not inhibit me from making legitimate observations on the facts, as I have done above, nor from analysing them.

Another point your clients may need to bear in mind, in dealing with alleged libel of them on the internet, is that there are forums, blogs, YouTube videos, tapes and writings etc. where many people make very robust statements making allegations against your clients in very much more direct terms than anything I have written or distributed since 13 November 2009. It may be that if this matter ever went to court, a jury might well decide that my comments since 13 November 2009 have been reasonably restrained in comparison with comments made by many others which might with rather more justification be described as ‘libellous’. 

Yours faithfully

Anthony Bennett