The Legal Aspects of this Case

Madeleine Beth McCann went missing from PDL in Portugal on the 3rd May 2007, there are so many unanswered questions, please discuss

Re: The Legal Aspects of this Case

Postby tylersmum » Mon May 26, 2008 11:09 am

Salomon ES wrote:I'm not sure we're talking about the same thing... indeed I'm not sure some of us know what we're talking about.

Apologies if I missed something, but why are some quoting the European Convention on Human Rights to discuss what is an administrative feature of Portuguese criminal law?

Frankly... i wouldn't want to entertain a discussion on tangents... but just to try and clarify some points:

.

As a member of the Council of Europe ,not the EU, Portugal signed the European Convention of Human Rights and Fundamental Freedoms .It was signed on September 22 1976 ,ratified on November 9 1978 and went into to force the same day.
Your laws now follow the ECHR and if there is any differences your Constitutional Court are obliged to interpret any law in accordance with ECHR
tylersmum
Mafia Boss
 
Posts: 2590
Joined: Thu Jan 24, 2008 11:55 am

Re: The Legal Aspects of this Case

Postby bohhee » Mon May 26, 2008 11:18 am

Pear
Lose hands... sheesh. I definitely should reread myself


what does that mean?
bohhee
First Time Offender
 
Posts: 675
Joined: Wed Jan 23, 2008 6:34 pm

Re: The Legal Aspects of this Case

Postby pear » Mon May 26, 2008 11:23 am

bohhee wrote:
Pear
Lose hands... sheesh. I definitely should reread myself


what does that mean?


Rereading myself in your quote (what I should have done in the first place), I realised that I wrote "lose hands" instead of "lose ends". That's all :D
pear
Hardened Criminal
 
Posts: 1536
Joined: Wed Jan 09, 2008 10:24 pm

Re: The Legal Aspects of this Case

Postby Salomon ES » Mon May 26, 2008 11:27 am

tylersmum wrote:
Salomon ES wrote:I'm not sure we're talking about the same thing... indeed I'm not sure some of us know what we're talking about.

Apologies if I missed something, but why are some quoting the European Convention on Human Rights to discuss what is an administrative feature of Portuguese criminal law?

Frankly... i wouldn't want to entertain a discussion on tangents... but just to try and clarify some points:

.

As a member of the Council of Europe ,not the EU, Portugal signed the European Convention of Human Rights and Fundamental Freedoms .It was signed on September 22 1976 ,ratified on November 9 1978 and went into to force the same day.
Your laws now follow the ECHR and if there is any differences your Constitutional Court are obliged to interpret any law in accordance with ECHR


Tylersmum I'm very familiar with the convention and have been for many years. But I don't think that whithin the scope of the investigation into Madeleine's disappearance anyone suggested that the portuguese criminal code and particularly the obligations of the arguido were incompatible with the ECHR or with the Constitution of the Portuguese Republic.

Let's not get carried away with things that frankly at this stage are nowhere near being of any relevance to the case as it currently stands.
Salomon ES
New In Town
 
Posts: 87
Joined: Fri Apr 04, 2008 7:53 am

Re: The Legal Aspects of this Case

Postby Stevens » Mon May 26, 2008 11:50 am

I disagree as Stevens seems to have misunderstood the entire purpose of the EAW.
It is not necessary for the requesting country to prove a prima facie case before an extradition is granted.

It is right to say that detail forming the requesting state's prima facie case is not required as part of the warrant and certificate, but this means only that the evidential basis of that state's case does not need to be disclosed. Along with other required information, details of the conduct alleged to have constituted the offence which is the basis of the warrant must be disclosed (EA 2003 S2(4)(C)). In addition, details of the alleged conduct must contain sufficient information to allow the courts in the UK to properly consider it. If insufficient detail is provided, the warrant is invalid (Brussels-v-Armas [2005] UKHL 67).

As long as the same law exists in both countries then an extradittion must suceed
It doesn't matter if a British court would not convict on the evidence as the case is being tried by a Portuguese court.


There could never be an issue over whether the law is the same in the requested and the requesting state, logic dictates if that were the case extradition hearings would be massively protracted affairs with the minutia of different laws being considered. The requirement is essentially that the alleged conduct for non framework list offences must constitute an offence in England and that the offence disclosed in the requesting state carries a potential punishment of twelve months or more detention (EA 2003 S64(3)).


I also disagree that if a child is left alone and accidently dies that it would not be an offence in this country.It is an offence to expose a child to danger and as supervised children are not in the habit of killing themselves if an unsupervised child dies it would be a valid assumption that the fact the child was unsupervised contributed to the childs death.
It depends on the circumstances of the case.


This is completely wrong. The offence created by S1 CYPA 1933, relevant to the issue under discussion, is that of leaving a child in a situation where that child is likely to come to physical harm. The assumption proposed would never be made, the objective test is whether or not the circumstances in which the child was left were likely to result in harm. This test is completely different to the assumption that the child was less likely to come to harm if supervised. A child may be just as likely to be injured in a slip accident supervised or unsupervised.

It must also be noted that the crime is exposing the child to danger not the crime expreienced the results of that danger.So it would be an offence to leave a child alone in a flat with an open fire even if the child did not burn themselves.
In the case of the McCanns it could be argued that the open door was the exposure to danger even if none of the children actually opened it to wander.


There is an offence of exposing a child under twelve to risk of burning and this is described in S11 CYPA 1933. This moves towards the Portuguese offence where the objective test is "reasonable precautions", but an offence is committed only if a child suffers serious injury or death. An offence may be committed under S1 by leaving a child alone in a flat with an open fire, but this would depend on the likelihood of that child sustaining injury.
Stevens
New In Town
 
Posts: 7
Joined: Tue Apr 22, 2008 11:36 am

Re: The Legal Aspects of this Case

Postby tylersmum » Mon May 26, 2008 1:57 pm

Stevens wrote:I disagree as Stevens seems to have misunderstood the entire purpose of the EAW.
It is not necessary for the requesting country to prove a prima facie case before an extradition is granted.

It is right to say that detail forming the requesting state's prima facie case is not required as part of the warrant and certificate, but this means only that the evidential basis of that state's case does not need to be disclosed. Along with other required information, details of the conduct alleged to have constituted the offence which is the basis of the warrant must be disclosed (EA 2003 S2(4)(C)). In addition, details of the alleged conduct must contain sufficient information to allow the courts in the UK to properly consider it. If insufficient detail is provided, the warrant is invalid (Brussels-v-Armas [2005] UKHL 67).

As long as the same law exists in both countries then an extradittion must suceed
It doesn't matter if a British court would not convict on the evidence as the case is being tried by a Portuguese court.


There could never be an issue over whether the law is the same in the requested and the requesting state, logic dictates if that were the case extradition hearings would be massively protracted affairs with the minutia of different laws being considered. The requirement is essentially that the alleged conduct for non framework list offences must constitute an offence in England and that the offence disclosed in the requesting state carries a potential punishment of twelve months or more detention (EA 2003 S64(3)).


I also disagree that if a child is left alone and accidently dies that it would not be an offence in this country.It is an offence to expose a child to danger and as supervised children are not in the habit of killing themselves if an unsupervised child dies it would be a valid assumption that the fact the child was unsupervised contributed to the childs death.
It depends on the circumstances of the case.


This is completely wrong. The offence created by S1 CYPA 1933, relevant to the issue under discussion, is that of leaving a child in a situation where that child is likely to come to physical harm. The assumption proposed would never be made, the objective test is whether or not the circumstances in which the child was left were likely to result in harm. This test is completely different to the assumption that the child was less likely to come to harm if supervised. A child may be just as likely to be injured in a slip accident supervised or unsupervised.

It must also be noted that the crime is exposing the child to danger not the crime expreienced the results of that danger.So it would be an offence to leave a child alone in a flat with an open fire even if the child did not burn themselves.
In the case of the McCanns it could be argued that the open door was the exposure to danger even if none of the children actually opened it to wander.


There is an offence of exposing a child under twelve to risk of burning and this is described in S11 CYPA 1933. This moves towards the Portuguese offence where the objective test is "reasonable precautions", but an offence is committed only if a child suffers serious injury or death. An offence may be committed under S1 by leaving a child alone in a flat with an open fire, but this would depend on the likelihood of that child sustaining injury.


If you expose a child to danger the offence has been committed the child does not have to experience the results of that danger in order for there to be an offence.
If a child was exposed to a danger and suffered no harm that is merely lucky for the child .Law does not run on luck.The following is from the Ayrshire Child Protection website
www.south-ayrshire.gov.uk/childprotecti ... gency2.asp - 45k
There needs to be evidence of real likelihood of suffering or likely injury to health. It is a vital and essential part of childhood and growing up that children are left unattended. There needs to be considerable caution before any consideration of applying a label of child abuse to such situations. Factors that would be relevant include the age of the child, the time of day or night, the existence of obvious hazards and the persistence or frequency.

A two year old left alone every night in a house at 11:00pm with a blazing log fire is a form of child abuse. A 12 year old left alone once in a house at 7:00pm with safe heating is not necessarily abuse. Court of Session judgements have accepted the "reasonableness" of 11 year olds being left alone in a house with instructions to make their own meal.

Itis therefore clear that leaving 3 children under 4 alone in an unlocked apartment is exposing them to danger
tylersmum
Mafia Boss
 
Posts: 2590
Joined: Thu Jan 24, 2008 11:55 am

Re: The Legal Aspects of this Case

Postby Stevens » Mon May 26, 2008 3:49 pm

To "Tylersmum"

It is difficult to respond when you say, "There needs to be evidence of real likelihood of suffering or likely injury to health," then follow this up with the bald statement, "It is therefore clear that leaving 3 children under 4 alone in an unlocked apartment is exposing them to danger." It should be clear to you that the two statements are contradictory and that the former reflects precisely the content of my submission on the objective test for S1 offences earlier today. For the avoidance of doubt, if an offence was committed in the scenario proposed in the latter statement, it would not be exposing children to danger, but abandoning children in a manner likely to cause them unnecessary suffering or injury to health. (Exposing implies the presence of a responsible person over 16)

In order to establish if an offence was committed it would be necessary to consider the proximity of the responsible person, the length of time the children were left alone, the circumstances in which they were left, and most importantly, evidence of the real likelihood the children would come to harm.

After considering the evidence an offence under S1 might be disclosed, but, as you took the trouble to explain, a prima facie case is no longer considered part of the EAW procedure and one of the tests for a non framework list extradition offence is that the conduct would constitute an offence in England. I can think of no rule of statutory interpretation which would allow for "would" being construed as "might".
Stevens
New In Town
 
Posts: 7
Joined: Tue Apr 22, 2008 11:36 am

Re: The Legal Aspects of this Case

Postby tylersmum » Mon May 26, 2008 4:21 pm

Stevens wrote:To "Tylersmum"

It is difficult to respond when you say, "There needs to be evidence of real likelihood of suffering or likely injury to health," then follow this up with the bald statement, "It is therefore clear that leaving 3 children under 4 alone in an unlocked apartment is exposing them to danger." It should be clear to you that the two statements are contradictory and that the former reflects precisely the content of my submission on the objective test for S1 offences earlier today. For the avoidance of doubt, if an offence was committed in the scenario proposed in the latter statement, it would not be exposing children to danger, but abandoning children in a manner likely to cause them unnecessary suffering or injury to health. (Exposing implies the presence of a responsible person over 16)

In order to establish if an offence was committed it would be necessary to consider the proximity of the responsible person, the length of time the children were left alone, the circumstances in which they were left, and most importantly, evidence of the real likelihood the children would come to harm.

After considering the evidence an offence under S1 might be disclosed, but, as you took the trouble to explain, a prima facie case is no longer considered part of the EAW procedure and one of the tests for a non framework list extradition offence is that the conduct would constitute an offence in England. I can think of no rule of statutory interpretation which would allow for "would" being construed as "might".

You appear to have misread Brussels v Armas here is a quote from the case;


In Cando Armas Lord Scott of Foscote had said: "52 The principle underlying these changes is that each member state is expected to accord due respect and recognition to the judicial decisions of other member states. Any inquiry by a member state into the merits of a proposed prosecution in another member state or into the soundness of a conviction in another member state becomes, therefore, inappropriate and unwarranted. It would be inconsistent with the principle of mutual respect and recognition of the judicial decisions in that member state."

The question whether there was a case to answer on the conduct alleged in the European arrest warrant was not one that could be examined in the requested state. That was contrary to the principle of mutual recognition on which the Framework Decision was founded."
As you can read we as the requested state cannot challenge whether or not the McCanns behaviour amounts to an offence

As to your claim that leaving children alone whilst the parents went to a bar would amount to abandonment not neglect you did not bother to read the link I provided if you did you would have read the definition of "abandonment " given in McGregor V A ,a persuasive precedent,and that definition follows the dictionary definition and therefore follows the literal rule of interpretation
tylersmum
Mafia Boss
 
Posts: 2590
Joined: Thu Jan 24, 2008 11:55 am

Re: The Legal Aspects of this Case

Postby tylersmum » Mon May 26, 2008 4:35 pm

Stevens,could you be so kind as to explain this;
(Exposing implies the presence of a responsible person over 16)

It makes no sense to me
tylersmum
Mafia Boss
 
Posts: 2590
Joined: Thu Jan 24, 2008 11:55 am

Re: The Legal Aspects of this Case

Postby Stevens » Mon May 26, 2008 9:35 pm

To "Tylersmum"
The paragraph you copied and pasted from the judgement in Belgium-v-Armas confirms only that it is not the role of the UK courts to consider whether the alleged conduct constitutes an offence in the requesting state (Belgium), or indeed if there is a case to answer there. This does not mean the requested state (the UK) does not consider if the alleged conduct would constitute an extradition offence within its jurisdictional borders, to suggest such a thing would mean S64(3)(c) of the 2003 Act was somehow to be ignored; this is not even with the powers of the Law Lords.

The Relevance of Armas, as detailed in my first submission today and as relevant to this discussion, is dealt with at paras. 27and 28. If you take the trouble to read them you will hopefully understand the issue of what must be contained within a warrant, and the consequences of failures to provide the information requested.

I did read the local government website you directed me to. The Sheriff's opinion, while interesting, would not form even a persuasive precedent within the English courts. In fact, I am quite sure the opinion is wrong as far as English law is concerned. I suggest you look at Halsbury (Hailsham Edn), Vol 17 pp 745-747, para1520 for the necessary clarification.

Finally on this issue, I would ask you to consider again how you would interpret a statute containing the words "would constitute an offence" to construe "may constitute an offence". You may find my previous reference to Norris helpful.

Aside from the specific issue of dual criminality, and having read all of this topic, you may find Armas useful in your argument against the suspect couple in this case being forced to participate in a reconstruction; from para. 54:

These features of the Framework Decision explain, I think, the inclusion in the 2003 Act of the requirement that if an arrest warrant is issued for the purpose of prosecuting the person named in the warrant, the arrest warrant must so state (see section 2(3)(b)). Extradition for the purpose of interrogation with a view to obtaining evidence for a prosecution, whether of the extradited individual or of anyone else, is not a legitimate purpose of an arrest warrant.

No doubt there will be another rained off bank holiday when we can exchange views again.
Stevens
New In Town
 
Posts: 7
Joined: Tue Apr 22, 2008 11:36 am

Re: The Legal Aspects of this Case

Postby tylersmum » Mon May 26, 2008 10:14 pm

Stevens wrote:To "Tylersmum"
The paragraph you copied and pasted from the judgement in Belgium-v-Armas confirms only that it is not the role of the UK courts to consider whether the alleged conduct constitutes an offence in the requesting state (Belgium), or indeed if there is a case to answer there. This does not mean the requested state (the UK) does not consider if the alleged conduct would constitute an extradition offence within its jurisdictional borders, to suggest such a thing would mean S64(3)(c) of the 2003 Act was somehow to be ignored; this is not even with the powers of the Law Lords.

The Relevance of Armas, as detailed in my first submission today and as relevant to this discussion, is dealt with at paras. 27and 28. If you take the trouble to read them you will hopefully understand the issue of what must be contained within a warrant, and the consequences of failures to provide the information requested.

I did read the local government website you directed me to. The Sheriff's opinion, while interesting, would not form even a persuasive precedent within the English courts. In fact, I am quite sure the opinion is wrong as far as English law is concerned. I suggest you look at Halsbury (Hailsham Edn), Vol 17 pp 745-747, para1520 for the necessary clarification.

Finally on this issue, I would ask you to consider again how you would interpret a statute containing the words "would constitute an offence" to construe "may constitute an offence". You may find my previous reference to Norris helpful.

Aside from the specific issue of dual criminality, and having read all of this topic, you may find Armas useful in your argument against the suspect couple in this case being forced to participate in a reconstruction; from para. 54:

These features of the Framework Decision explain, I think, the inclusion in the 2003 Act of the requirement that if an arrest warrant is issued for the purpose of prosecuting the person named in the warrant, the arrest warrant must so state (see section 2(3)(b)). Extradition for the purpose of interrogation with a view to obtaining evidence for a prosecution, whether of the extradited individual or of anyone else, is not a legitimate purpose of an arrest warrant.

No doubt there will be another rained off bank holiday when we can exchange views again.

There would be little point in looking at vol 17 of Halsbury's for clarification of the meaning of abandonment as child neglect is covered in an earlier volume.
Under the literal rule of interpretation words in an Act or law take their usual meaning unless otherwise specified.The meaning of the word abandoned is as stated by the Sheriff Mr McGregor.The word abandoned can not be applied to a scenario where a person leaves their children intending to return quite quickly
tylersmum
Mafia Boss
 
Posts: 2590
Joined: Thu Jan 24, 2008 11:55 am

Re: The Legal Aspects of this Case

Postby tylersmum » Tue May 27, 2008 8:36 am

Stevens you said;
"I did read the local government website you directed me to. The Sheriff's opinion, while interesting, would not form even a persuasive precedent within the English courts. In fact, I am quite sure the opinion is wrong as far as English law is concerned. I suggest you look at Halsbury (Hailsham Edn), Vol 17 pp 745-747, para1520 for the necessary clarification"

I obviously haven't got a set of Halsbury's Laws in my possession as the cost over £6,000.in fact I don't know any one who has, but I can tell you that as Vol 15 covered Education and they run alphabetically vol 17 is certainly not relevant.
On the question of "abandonment" I found the following;
http://www.lawandparents.co.uk/child-abandonment.html - 26k
" Child abandonment is considered to be the leaving of a child on his or her own without any intention of returning to ensure their safety and well being. It is something that is considered to be among the most serious of offences a parent can commit in relation to their child"
It is clear that someone popping down the pub for a drink is not guilty of "abandonment"

Neglect on the other hand can be exposing the child to danger.In the case R v Church Edmund Davies defined defined dangerousness as "must be such as all sober and reasonable people would inevitably recognise must subject the other person to, at least, the risk of some harm resulting therefrom, albeit not serious harm"

It is clear that a sober and reasonable person would view leaving 3 children under 4 in an unlocked apartment as being dangerous and the fact that some people are saying it isn't is because they are prepared to ignore the truth in defence of the McCanns


Edited to add;
I have spoken to someone who does have set of Halsbury's Law and volume 17 is in two parts and covers subjects beginning with E such as Executors Explosives and Extradition not Child Neglect and pages 745-747 are in the Index so you seem to have the wrong book totally
Last edited by tylersmum on Tue May 27, 2008 6:42 pm, edited 1 time in total.
tylersmum
Mafia Boss
 
Posts: 2590
Joined: Thu Jan 24, 2008 11:55 am

Re: The Legal Aspects of this Case

Postby HawkEyes1 » Tue May 27, 2008 6:27 pm

Google translation from Portuguese into English of a key court document in the Criminal Section of the Court of Appeal of Evora, published on April 29, 2008, which appears not to have been found by any investigative journalists in the UK. It deals with interception of email, text messaging, and telephone calls and will affect evidence in the McCann Case:

http://www.dgsi.pt/jtre.nsf/c3fb530030ea1c61802568d9005cd5bb/1d0c394965dccdf780257448004a568e?OpenDocument


PRIOR AUTHORIZATION ORDER

Date of agree: 29/04/2008
Votes: UNANIMIDADE
Full Text: S

Half Procedure: CRIMINAL APPEALS
Decision: NOT PROVIDED

Summary:
1 - The short message service (SMS) and multimedia messaging service (MMS) are, respectively, in conveying information in small text messages, and messages with sound, image and video, either through the Internet, either through telephone.

2 - The data content, such as the content of the messages may be intercepted in real time, with due judicial authorisation and did not belong to ask operators of mobile network operating in Portugal the consignment on digital media (CD or dvd) the content of communications and messages sent and received between certain phones in a given period of the past, because that embodies a request on a reality that, from a legal perspective, can never have happened, on pain of possible incursion into liability crime (Article 192. ┬║ and 194. Penal Code), who has (have) done or allowed to consummate consumasse. Because these can only be achieved by placing prior technical means of interception and recording of the content of the messages in question, which always lack of evaluation of their legality by the investigating judge, either in terms of eligibility, either in terms of need , Appropriateness and proportionality.

3 - Indeed, the data content of communications or messages conveyed through telephone or between these devices and computers and vice versa, can only be legitimate and lawful interception of communications under ongoing, verified the requirements prevented in art . 187. Of the CPP.


Decision Full Text:
Agree, on a conference in the Criminal Section of the Court of Appeal of Evora


1. In the case of inquiry No /, pending Ministry of Public Services in the District ofÔǪ where investigates the disappearance of MM and the possible occurrence of crimes of kidnapping, murder, exposure or abandonment of minor and concealment of corpses, the Portuguese. Mr Public Prosecutor holder of the process of investigation, under invocation of the provisions of art. 15. Article 2 of Law No. 88/89 of September 11, 187. Article 1, alin. a) and 4, alin. a) and b), 252. ┬║-A and 269. thereof No. 1, alin. e) of the CPP, promoted, among other steps, if requested at 3 national mobile telephone operators (TMN, VODAFONE and OPTIMUS) to send in digital media (CD or DVD), the complete listings of telephone traffic for calls made and received in the period of time between the day April 28, 2007 until September 9, 2007, including location and mobile trace-back, as well as on roaming calls and SMS and MMS messages and their contents, the following telephone numbers:

(Here are 10 phone numbers)

::::::

-- No, not yet identified phone during that on 02 May 2007 sent 14 SMS messages written to GM and 4 other the day after the disappearance of MM

-- If requested from the mobile telephone operator TMN, sending in digital media (CD or DVD) of the complete listing of telephone traffic referring to calls made and received in the period of time between 20:00 M of the day 03 of May 2007 and 12.00 M of the day 04 of May, 2007, including location and mobile trace-back, as well as on roaming calls and SMS and MMS messages and their contents, the following phone numbers:

:::::::::::::

2. However, Mr Judge of Criminal Procedure, by its order of 24.09.2007, did not authorize the shipment on digital media (CD or DVD) of the contents of any message sent or received on SMS or MMS when it comes to all phone numbers above, for, in his view, this would mean taking note of the contents of the conversation or telephone communication has already made without there being any judicial ruling prior to authorization, and by inexistir legal support for the defendant (see fls. 12 of these file) .

3. Inconformado with so decided, the prosecutor brought this action under constant fls.1 to 7, drawing the motivation that made the following conclusions:

"1 - Our dissentimento refers to scholarly order of the Judge M. ┬░ of Criminal Procedure, fls. 2687 to 2689, in that they did not authorize "the consignment on digital media (CD or DVD) of the contents of any message sent or received and by SMS or MMS.

2 - There is no reason to distinguish, as the distinguished Judge M. ┬░, the two kinds of communications - content of SMS and MMS traffic and listings of telephone calls received regarding effected. Where the law does not distinguish, because no one is distinguished.

3 - The right to the reserve of their privacy does not run greater risk of being injured by access to the content of SMS or MMS than by knowledge of the precise circumstances of time, place, method and frequency of calls received and made.

4 - If the procedural law refers to the use of communications already made, it expressly for the permit, as follows linear and clearly the requirements of paragraph l of art. 189 of the CPPenal.

5 - To preserve the reserves of their privacy of the interlocutors of SMS or MMS in this case, obviating, through its judicial control, to any improper intrusion that intimacy, simply to Judge M. ┬░ make use of established in paragraph . Paragraph 3 of art. 179 of the CPPenal, subject to own and prior knowledge of their content the ability to use as evidence of SMS and MMS.

6 - By not allowing access to the content of SMS and MMS, the scholarly order infringed the provisions of arts. 179 ┬░, 187 ┬░ and 189 of the CPPenal.

Accordingly, repealing, noted in part, the scholarly order and ordering its replacement by another requesting the three national mobile telephone operators in the consignment digital media (CD or DVD) of the contents of any message sent or received and by SMS or MMS and their content in terms of all the phone numbers appearing on the fls. 2681 and 2682, in compliance with specified in paragraph 3 of art. 179 ┬░.. "

4. The appeal came to be accepted by order of 21.12.2007, following a complaint lodged in this ratio (see fls.15).

5. Mr Judge maintained the order, saying, in essence, the following:

"The taking of knowledge of the content of communications made by SMS or MMS's, because it is held communication through telephone, necessarily requires the prior judicial authorization and you will result from interception and held authorized by that order on the communication in course.

From my point of view and unless all due respect we can not make any equivalence between data traffic (eg, those on the lists of numbers dialed and received) and data content (those related to the content of communication, the exchanged words) for the purpose of treating the same way and that by the very nature of each other, is not it know that they, on X, the particular time, a communication between the numbers Z and K, in particular place (data traffic) and know what there is nothing, combined or discussed.

Absence any phone legitimately seized also does not seem legal to use the rules concerning the seizure of correspondence failing that, by that way, being relegated to the demands placed on the interception of communication in progress, what would happen if the carrier ordered that send, if technically feasible, the content of those communications made through the phone.

Finally, the argument 'stored in digital form' refers to communications made by any technical means other than the telephone, eg. e-mail, real-time computer network and so on., and it is not here, unless all due respect, any application. "

6. In this instance, the Portuguese. Mr Attorney General, in his scholarly fls.22 opinion of the 97, is the understanding that the appeal should be dismissed as manifestly unfounded.

7. It met the provisions of art. 417. Article 2 of CPP, was not made any response. Harvested legal visas and held the conference, it decides.

8. Question to consider.

Given the conclusions presented by the applicant's motivation, the issue is to decide only the question whether it is permissible to request the three national mobile telephone operators to refer to digital media (CD or DVD) the content of any message sent, or received by SMS or MMS and their content in terms of all the phone numbers appearing on the fls. 2681 and 2682, with reference to specified periods of time there.

For example:

First of all, interest reporting some lessons on issues relating to secrecy of telecommunications, what is at stake and advance the principles and relevant normação.

The concept of electronic communication is not provided for in the area of criminal law, but is defined in art. . 2 No. 1, alin. a) of Law No. 41/2004, from August 18, which regulates the processing of personal data and privacy in the electronic communications sector. Does this rule is that electronic communication "or sent any information exchanged between a finite number of shares using an electronic communications service accessible to the public." It is a very broad and comprehensive concept that the law itself considers worth only "for the purposes of this law."

Rather, telecommunications is a concept that no current law sets. The legal system uses it, for example, the text of paragraph 2 of art. 194. Penal Code, but not down. Unlike in the past laws, repealed today, setting up telecommunications. Thus, Law No. 91/97, August 1, which defined the basis that the general followed the establishment, management and operation of telecommunication networks, said in his art. 2. Thereof, that "by telecommunications means the transmission, reception or transmission of signals, representing symbols, writing, images, sounds or information of any nature by wire, for optical systems, for radio and other electromagnetic systems." However, this law was repealed, except for a small part of its articles, by point a) of art. 127. Of the Law No. 5 / 2004, February 10 (Law of Electronic Communications).

However, the latter law does not define telecommunications. Moreover, this being the degree of legal structural framework of this sector of activity, it is significant that he has not devote any definition of telecommunication, within the definitions listed in your art. 3. Thereof.

Having repealed a piece of legislation that incorporated the first of these definitions, has to do here is a choice of the legislature that, perhaps, chose not to be bound by a legal definition that could quickly become technically outdated. [1]

It should be recalled that in telecommunications services, it is distinguished three species or types of data or information: (i) the so-called data, on the network connection, (ii) the so-called traffic data, functional data necessary for the establishment of and a connection or communication generated by the use of the network (eg. location of the user, location of the recipient, duration of use, date and time, frequency) and (iii) the so-called data content, concerning the contents of the communication or the message [2].

Moreover, since the various telecommunications services used for the transmission of communications verbal or otherwise (written messages, data on packages), the elements inherent to the structure may still in a sequential composition in four times: (i) the stage prior to the statement, (ii) the establishment of communication, (iii) the stage of the communication itself, and (iv) the further communication. For the first time, are essentially on the data, while in the other, it is the consideration of traffic data and content.

The basic data are, in the perspective of users, the information needed to access the network, particularly through the linking individual and for use of their own service - interest here, in essence, the number and data through which the user has access the service.

These elements (such as identifying the user and its postal address) are provided to the operator of the service for the purpose of establishing the agreement (the contract) for connection to their network or assigned by this that (the number of access); data such as personnel who are, the holder on them should have the right to reserve, especially as regards the entry of such elements in public directories (ie, the schedules public telephone or other telecommunication services complementary). This reserve provides that the inclusion of such elements in the lists public should be voluntary.

This reserve on the numbers of post or access - to be right of users - prevents the public dissemination and the consequent possibility of public awareness of the number of access of a user, so, essentially, to avoid, of their own volition, some situations of interference that can occur in cases of harassment trade: constant repetition and disturbing, 'marketing' telephone, use of lists of direct advertising by companies and enterprises of polls.

The reservation on the basis of elements, wanted to, in essence, prevent the tranquility of their own interest against possible intrusions or greater by the public disclosure of such information, evidence perhaps, also, moreover, that should not be used, unless explicit authorization other than by the network operator, justifying the existence of such limits as to the disposal of the items for commercial purposes of telephone or other telecommunication services complementary.

Unlike of the basic (elements necessary to establish a basis for communication), which falls short before, preliminary and are instrumental in any communication, called elements of traffic (functional elements of communication), as the elements of such content, already has to do directly with the Commission, either on their identificabilidade, either on the content of the message itself or communication.

Elements or functional data (traffic) required or produced by the establishment of the link through which a communication concrete, with certain content, is operated or transmitted, are the origin, destination and route. These elements functionally necessary to the establishment and management of communication identify, or identifying the communication: when preserved, facilitating the identification of communications between the issuer and the recipient, date, time, the frequency of connections made

Thus vital elements already inherent in the communication, as they will identify in real time or after the event, users, the direct relationship between them over the network, the location, frequency, the date, time and duration of communication, should join the guarantees that are subject to use the service, especially all that respects the confidentiality of communications.

It makes sense that is the subject of secret information that lets you know who talked to whom and the circumstances in which time these conversations took place and the time it took and the frequency with which it happened.

Finally, the elements of content - data on the actual content of the message, the correspondence sent by the use of the network. Having to do with the content, the protection and guarantee against any intrusion, interception or deciphering the message by unauthorized person is a core element of users of the system - and is obliged to ensure the operators, so rigorous, using all technical means , The secrecy of communications services.

It can not fail to take into account that the confidentiality of correspondence and telecommunications raises security firm, entered, first in the constitutional text.

Indeed, according prevented in paragraphs 1 and 4 of art. 34. Thereof, the CRP, the home and the confidentiality of correspondence and other private means of communication are inviolable, and prohibited all the interference of public authorities in correspondence, telecommunications and other media, saved the cases provided by law in matters of criminal prosecution.

The prohibition of interference includes the freedom of sending and receiving correspondence and the prohibition of detention or seizure, as well as interference, which extends not only to public entities but also, and a fortiori, to private entities.

The restrictions are thus allowed only in criminal proceedings and are also subject to law (Article 18. Article 2 and 3) and can only be decided by a judge (Article 32. Article 4).

The matrix constitutional forms, in this thematic area, marked by the contingency of solutions to the ongoing conflict between the unstoppable technological progress and the values inherent in the human person that are always, like a right to speak and communication, corollary of the right to freedom individual.

The guarantee of confidentiality covers not only the content of the letter, but the traffic as such (species, time, duration, intensity of use).
.
Under the requirements of paragraph 4 of that art. 34. Thereof, the right to secrecy of telecommunications involves the ban on devassa of its content and its disclosure by those who have access to them, including the employees of telecommunications services, who runs a duty of professional secrecy, as a guarantee of the right to secrecy of the same telecommunications, which may not be infringed.

This item is all the more relevant constitutional as a matter of criminal prosecution for exceptions to the inviolability of telecommunications are not the rule, or rather, are counter-rule. Indeed, the ordinary law stands, even in matters of criminal procedure, the interference in telecommunications is only allowed in cases of the type of crime correspond to the legal catalogue of crimes whose seriousness and social relevance of social peace that allows interference (see Art. 187. of the CPP).

It has been well in sight, with the prohibition of speech interference, safeguarding the freedom to communicate and a ban on intervening in it.

Hence, in fact, reflecting the growing prominence and sequente protection in shaping those fundamental values such as the Penal Code has charged conduct violation, namely the right of citizens to the statement aside, the secrecy of communications.

Indeed, under the heading of crimes against reserve of privacy, or the devassa the privacy or the violation of correspondence and telecommunications, are typically illegal behavior - art. 192. ┬║ and 194. Of the PC.

Confidentiality of telecommunications is thus tend absolute, giving only the cases provided by law on criminal procedure, that is, as a means of acquiring evidence.

The security of the reserve of privacy results also ban the use of evidence obtained in violation of the secrecy of privacy.

For the prosecution to C.R.P. provides in art.32. Article No. 8, which "are void all evidence obtained through torture, coercion, harm the physical or moral integrity of the person, improper intrusion into private life, at home, in correspondence or in telecommunications" .

The art.126., Paragraph 3 of the Code of Criminal Procedure considers, in turn, that 'except as otherwise provided by law, are also void and can not be used, the evidence obtained by intrusion into privacy, with home, in correspondence or in telecommunications without the consent of its owner.

With technological progress, the inviolability of the media and private telecommunications secrecy increasingly linked with the data processing elements or by the side of users involved, in their dealings with telecommunications service providers.

Thus the art. . 4, paragraph 1 of Law No. 41/2004, from August 18, which transposes into national law Directive No. 2002/58/EC of the European Parliament and the Council of June 12 Concerning the processing of personal data and the protection of privacy in the electronic communications sector, states that "companies that offer networks and electronic communications services or to ensure the inviolability of communications and traffic data by means of public communication networks and electronic communications services accessible to the public "and is" forbidden to listen, the installation of listening, storage or other means of interception or surveillance of communications and related traffic data by third parties without the prior express consent of users, except in cases provided for by law "(2).

Paragraph 3 of Article stipulates, however, that "the provisions of this Article shall not prevent the legally authorized recordings of communications and the related traffic data, when carried out under lawful business practice, done for the proof of a transaction commercial or any other communication made under a contractual relationship since the data subject has been informed and given their consent. " And the No. 4 also authorizes the recordings of communications to and from public services to provide emergency situations of any kind.

In modern transmission systems, registration of personal data on the telephone traffic and billing is done by the corresponding operator of the service at the end of phase dynamics of the flow of dialogue or communication (see, if Portuguese, Articles 6 and 7 of Law No. 41/2004, August 18).

This registration is intended first and foremost to recover from the customer, but can serve for researchers to find items stored in databases on the authors of the communication, the time that was done, the place, the volume and duration of telephone traffic . In such cases, the communications are made, the data shows only the existence or the historical flow of dialogue, that is, the earlier phase dynamics.

The "traffic data" are now defined in art.2. Thereof, al. d) of Law No. 41/2004, from August 18, as "any data processed for the purpose of sending a communication through an electronic communications network or for the billing it", stating paragraph 2 the art.6. thereof, of this law some of the elements that are part of that concept.

While the data, connecting to the network, are preliminary and instrumental elements of any communication, which are subject to secrecy if the user has requested a confidentiality regime in the service of telecommunications, data traffic are already elements inherent in the communication , Allowing real-time or post identify users, the direct relationship between them over the network, the location, frequency, the date, time and duration.

Users are not only subscribers who have a contract with telecommunications services, as others that have electronic linkage with the number of subscribers.

Law No. 41/2004, still treats the location information that defines [art. . 2 No. 1, alin. e)] as "any data processed in an electronic communications network that indicate the geographical location of the terminal equipment of a subscriber or any user of an electronic communications service accessible to the public."

Knowledge of data revealing the so-called "mobile location" of the phone of a particular individual shows him on the physical journey that it did - or is doing - or reveals their mobility or stay in one place. In other words, the "mobile location" reveals, through the observation of its connection to the mobile telephone network, the location of the owner of a telephone set. Learn the location cell "has the same view evidence and the same effectiveness of a traditional surveillance by police officers on a particular individual, even though the latter may be more intrusive (to allow anyone to place collect more information, particularly concerning the privacy of the person under surveillance) that the so-called "mobile location."

The Attorney General's Office, in its opinion No. 21/2000 (DR, Series II, August 28) in completing 2. Rd, expressed his understanding that the investigation phase of the information, ".. . when attaching to traffic data or the data content, can only be provided to the judicial authorities, by telecommunications operators on the terms and the way in which the law of criminal procedure allows the interception of communications, depending on order or authorization of investigating judge (Articles 187. thereof, 190. ┬║ and 269. of paragraph 1, point c) of the Code of Criminal Procedure. "

Also Gomes Canotilho and Vital Moreira argue in annotation on art. 34. Of the CRP, which guarantee the right to confidentiality of correspondence and other means of private communication (Nos. 1 to 4) covers all kinds of correspondence from person to person (postal letters, printed), covering the same chances of orders that do not contain any written communication, and all telecommunications (telephone, telegram, fax, etc).

The guarantee of confidentiality covers not only the content of the letter, but the actual "traffic" as such (species, time, duration, intensity of use). Under the rules of art. 34. Thereof lies the so-called "electronic mail" because the insurance covers the correspondence certainly kept the matches via telecommunications.

The sending of electronic messages from person to person ( "email") meets the conditions of private correspondence. () Here the restrictions are allowed only in criminal proceedings (No. 4), and are also subject to law (art.18. Thereof - 2 and 3) and can only be decided by a judge. -- CF. Constitution of the Portuguese Republic Anotada, 2007, vol. I, pp. 544.

The distinction between communications traffic data, and its content is, today's irrelevant, since the Law 41/2004, of August 18, equates the traffic data to the data content for the purpose of ensuring the inviolability of communications. The assimilation of data content, which are the core of the most fundamental communication, and data traffic in order to protect the secrecy of telecommunications subject to obtaining such data to the system of interception and recording of conversations and telephone communications poured in art. 187. Of the Code of Criminal Procedure.
In terms of the criminal process art.269. Thereof No. 1, al. e) of the Code of Criminal Procedure states that during the investigation it is solely to the investigating judge to order or authorize the 'interception, recording or recording of conversations or communications, in accordance with Articles 187. ┬║ and 189. ".

The art.187. C.P.P. of the down the admissibility of the interception and recording of conversations or telephone communications, specifying the crimes for which it is possible to carry out bugging. The art.189. Thereof, of the same Code provides for the extension of the scheme provided for in Articles 187. ┬║ and 188. Of the talks or communications transmitted by any technical means other than the telephone, including e-mail or other forms of data transmission via telematics, even though it is stored in digital form, and the interception of communications between these.

In other words, it is only possible to intercept electronic communications not telephone the same conditions in which it allowed the conduct of telephone interceptions.

A communication, by its nature is a dynamic reality: vai on one side to another, between a transmitter and a receiver. By definition, while communication can not be saved. If anything, can be saved to register it.

This is the case, for example, with an e-mail. It is a communication networks while travelling in between the computer of origin and destination, but then when it comes to the latter, there is stored in the form of computer file, until it is eliminated.

The short message service (SMS) and multimedia messaging service (MMS) are, respectively, in conveying information in small text messages, and messages with sound, image and video, either through the Internet, either through telephone.

Thus, the data content, such as the content of the messages may be intercepted in real time, with due judicial authorisation and did not belong to ask operators of mobile network operating in Portugal the consignment on digital media (CD or dvd) the content of communications and messages sent and received between certain phones in a given period of the past because, as the Ambassador. Mr Prosecutor - General, embodies such a request on a reality that, from a legal perspective, can never have happened, on pain of possible incursion into criminal responsibility (Article 192. ┬║ and 194. Penal Code), who has (have) done or allowed to consummate consumasse.

It is not so much what the order of support of Mr. Judge defendant has said about the hypothetical possibility of such a technique have taken place because the technical possibility always exist, but the legal impossibility of the data content of the messages and communications or, if they existed, were subject to registration and recording. Because these can only be achieved by placing prior technical means of interception and recording of the content of the messages in question, which always lack of evaluation of their legality by the investigating judge, either in terms of eligibility, either in terms of need , Appropriateness and proportionality.

Nor can the content of messages sent or received possibly through the phones in hand, in the period from the day April 28, 2007 and September 9 of that year, have been subject to interception, registration and recording of any operator , Lacks legal basis, in part, reduced the claim by prosecutors at 1. Rd proceedings and contends that on appeal.

Indeed, the data content of communications or messages conveyed through telephone or between these devices and computers and vice versa, can only be legitimate and lawful interception of communications under ongoing, verified the requirements prevented in art. 187. Of the CPP.

So - without further lengthy considerations - it is said to be that the appeal must be dismissed.

9. Given the above, to judge rejected the appeal by the prosecutor, while maintaining a consequence, the order.

There are owed fees.

(Success by computer and read and reviewed by the rapporteur)

Evora, 2008.04.29
Fernando Ribeiro Cardoso

_____________________________

[1] - Sic, Pedro verdelho, the seizure of e-mail of Criminal Procedure, Journal of Public Prosecution, No. 100, pag.156.
[2] - Opinion No. 21/2000 of the Attorney General's Office, apud YVES POULLET and FRAN├çOISE WARRANT, "Nouveaux compl├®ments au service tel├®phonique et protection des donn├®s: ├á la recherche d'un cadre conceptuel ', in Droit de L' Informatique et des T├®l├®coms, 7├®me year, 1990/91, 1, pp. 19 and SS.
Last edited by HawkEyes1 on Tue May 27, 2008 6:39 pm, edited 2 times in total.
User avatar
HawkEyes1
On Parole
 
Posts: 1323
Joined: Wed Jan 23, 2008 10:45 pm

Re: The Legal Aspects of this Case

Postby lunalovegood » Tue May 27, 2008 6:30 pm

Surely, to leave unsedated toddlers in an unlocked apartment exposes them to the risk of wandering out into numerous dangers, ot lease, a concrete staircaase.
lunalovegood
New In Town
 
Posts: 78
Joined: Wed Dec 05, 2007 5:43 pm

Re: The Legal Aspects of this Case

Postby beggars'belief » Tue May 27, 2008 11:48 pm

lunalovegood wrote:Surely, to leave unsedated toddlers in an unlocked apartment exposes them to the risk of wandering out into numerous dangers, ot lease, a concrete staircaase.


Notwithstanding the erudition of our above friends, I think you may have put your finger straight onto the point at issue lunalovegood: if said child (?children) had NOT been sedated there could have been a risk. Perhaps that's how come it's claimed that McCs were acting within the bounds of reasonable parenting. As Doctors. So, what's the reasonable bounds of sedating ??

Perhaps I'm confused :?
"These people only do good ... and this is how the world repays them" MrGerry's Mum, TV news 4-5-07
beggars'belief
You're Nicked
 
Posts: 204
Joined: Sun Apr 13, 2008 9:19 am
Location: by the sceptic tank

PreviousNext

Return to Justice for Madeleine

Who is online

Users browsing this forum: No registered users and 29 guests
cron