Update – Portuguese Justice – Graham Mitchell.
The Portuguese have a proverb – ‘Águas quietas são profundas’ – ‘Still waters run deep’; nowhere is this more apt than in their judicial system. Whilst it might appear to the uninitiated that nothing has been happening in the case of Graham Mitchell, Briton, acquitted of all charges, handed back his passport after a year in prison and told to go on his way back to England – it has been. Like the shopkeeper who only opens at midnight to avoid being pestered by pesky customers, the judiciary have continued to examine the case, quietly, untroubled by inconveniences like the ‘accused’ piping up in his defence.
Last night I finally received an English version, by an authorised translator, of the paperwork behind Graham Mitchell’s recent arrest and incarceration as a Category ‘A’ prisoner in Wandsworth prison. I had been unwilling to comment on the various ‘unofficial’ translations of the record of subsequent proceedings in the Supreme Judicial Council after Graham was acquitted. I had been intending to put this version on the site this morning, but having reflected overnight on the extraordinary situation whereby neither the Crown Prosecution Service, nor the Portuguese Authorities, nor even our lauded ‘investigative’ main stream media had managed to produce such a item for the benefit of Graham and his legal team, in order that they may properly defend him on this nonsensical ‘first degree murder’ charge, I have settled for providing a copy for Graham and the team at Fair Trials International – and the rest of the media scrum can damn well pay for their own copy.
So, an update, based on selected excerpts.
A good two years after Graham was acquitted of all charges brought against him, at a time when he was still working in the same job he had held before that fateful fishing trip to Portugal, still living in the same small network of streets, still had the same girlfriend, co-incidentally the sister of his fellow accused, Warren Tozer, still in touch with the Tozer family, still in touch with the Foreign and Commonwealth Office, in other words, still very easily contactable – an application was made to the Supreme Judicial Council to reopen the case. This was a demand that the verdict be declared ‘null’ on a technicality.
Nobody bothered to tell Graham or Warren.
The judge in the original trial had concluded that Graham and Warren were innocent of all charges and sent them back to England – however, in her summing up she had forgotten to explicitly say on what grounds she had disbelieved the evidence of the two security guards ‘C’ and ‘D’. This is the ‘notorious error’ referred to in this passage:
There is a “notorious mistake in the appreciation of evidence” (item c) of number 2 of article 410 of the Penal Process Code), which is demonstrated by the text of the decision, when the Panel [of Judges] does not consider a fact to be proved, despite saying, in the grounding, that it was witnessed by two witnesses and omitting the reasons why it doubted them.
On these grounds, the verdict of the trial judge was overturned, nullified – et voila! It was as though the original trial had never taken place. Graham and Warren were returned to the status they had ‘enjoyed’ during their 54 week incarceration in Faro prison. Arguidos awaiting trial. Indeed, it was ordered that they be returned to prison to await a new trial.
Portuguese justice is nothing if not fair (sic) – the two arguidos immediately filed an appeal against this decision – quite extraordinary considering that neither of them knew a damn thing about it! Who appeared on their behalf? Some version of a ‘duty solicitor’? Who instructed them? More to the point, knowing the Portuguese legal system, who paid them? No point in asking the arguidos this question – they weren’t there and knew nothing whatsoever about this legal wrangle. Nobody had bothered to tell them. It is difficult to see how Graham (singular, since Warren Tozer still hasn’t been traced) could possibly be said to have been ‘adequately represented’ during this court case, they had not had the slightest opportunity to discuss it with their legal advisers.
The Arguidos have presented a reply, concluding that: a) the scholarly ruling that is being appealed does not suffer from a notorious mistake in the appreciation of evidence, because it has not been proved that the arguidos pushed the complainant, nor was it proved why the complainant’s fall took place, and it was even less proved that the fall occurred due to the intervention of a third party and that said third party was the Arguidos; b) the scholarly ruling under appeal does not suffer from a manifest and insurmountable contradiction in the grounding of the decision, because it was based on evidence that was produced during the trial audience; c) the scholarly ruling under appeal did correctly interpret the fundamental principle of “in dubio pro reo”; d) the scholarly ruling under appeal did not violate the disposition of article 374, number 2 of the Penal Process Code.
Perhaps it is just an English convention that the accused should have the right to be present during a trial? Or even that when they ‘present a reply’ in absentia they should actually know that they are doing so? Maybe even be consulted? Unbelievable.
The appeals were dismissed, as swiftly and silently as they were raised, Graham and Warren were ordered to be re-apprehended, and at this point the Portuguese authorities discovered a fly in their legal soup. The accused weren’t in the dock. Weren’t under the table. Weren’t in the court room at all. There could only be one possible explanation for this to the man charged with re-incarcerating them – they must have fled justice! So he listed them as fugitives.
Unbeknown to them, that is what they have been for 18 long years. Actually not quite 18 long years, for the statute of limitations runs out in early May, a few weeks time, for bringing criminal prosecutions in Portugal. Someone, somewhere, woke up. Had a look at the papers. ‘Have we found those Englishmen yet?’ ‘Hmmn, lets see, we gave them back their passports, ordered their clothes to be returned to them and told them to go back to England…*yawn*…maybe they are still at the same place in England…*yawn*…I’ll make out one of these European Arrest Warrants, ‘First Degree Murder’ that ought to do the trick…soon have this paperwork in order…*yawn*…
And that is how a Scotsman, quietly eating dinner with his children, found himself sharing his next meal with Al Qaeda suspects in Wandsworth jail – a mistake by the trial judge 18 years ago that no one bothered to tell him about.
The Portuguese are demanding the right to hold a trial, without Warren Tozer being there, bereft of the presence of the French girl who was also present, bereft, for all we know, of the presence of the two security guards, on the grounds that Graham Mitchell has technically been a ‘fugitive’ all these years, and that he has now been ‘captured’ 18 years after the event. The Portuguese press are cock a hoop that this dangerous fugitive from justice has been recaptured.
He cannot possibly defend himself under these circumstances.
The British have managed to pass into law a mechanism, the European Arrest Warrant, by which it is possible that he could indeed be forced to return to a country whose idea of interrogation of a suspect was to thrust a pistol into his mouth.
There is a faint glimmer of hope in all this – yesterday Julian Brazier asked a question in the House of Commons, the answer to which revealed that the Home Secretary is still ‘looking at’ the Scott Brazier report which examined whether the European Arrest Warrant system was fit for purpose.
Mr Julian Brazier (Canterbury) (Con): May I urge my right hon. Friend to grant a debate on the European arrest warrant? My constituent, Graham Mitchell, was acquitted 18 years ago of attempted murder in Portugal, after being held in prison for more than a year. The prosecutor fell asleep during the course of the trial and the assailant did not identify Mr Mitchell as his attacker. Eighteen years on, a new application has been made to take him to Portugal on a charge of murder, when the victim is alive and well and playing golf, I believe, in Germany.
22 Mar 2012 : Column 949
Sir George Young: I commend my hon. Friend for championing the cause of his constituent. The case has received some publicity recently. He will know that I cannot comment on an individual case. I gather that it has been adjourned until 28 March. My right hon. Friend the Home Secretary is looking at the Scott Baker report and hopes to make her conclusions available shortly. In the meantime, we are asking EU countries to observe the principle of proportionality in considering whether such an arrest warrant is appropriate.
Graham will be at Westminster Magistrates Court of Wednesday 28th March to find out whether ‘I was acquitted but then un-acquitted without my knowledge because the trial judge screwed up on a technicality’ is a good enough reason not to be sent back to Portugal to be imprisoned in Faro gaol awaiting a new trial…
You can e-mail the Home Secretary with your views on the European Arrest Warrant system – mayt@parliament.uk
h/t to @liarpoliticians for the video – many thanks.
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March 23, 2012 at 09:40 -
“The British have managed to pass into law a mechanism, the European Arrest Warrant, by which it is possible that he could indeed be forced to return to a country whose idea of interrogation of a suspect was to thrust a pistol into his mouth.”
And yet where are our politicians? Mostly, arguing that an admitted computer hacker and a businessman who may have made unwise connections shouldn’t be sent to the US because they might be made to wear orange clothes and shackles….
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March 23, 2012 at 09:40 -
Hi Anna – the link to homessecretary isn’t working. Can you put up the URL? Will go a-hunting myself to see if I can find something that lets my voice as a voter – dammit – be heard.
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March 23, 2012 at 09:46 -
Home Office enquiries
If your enquiry is regarding the Home Office then please write to:
Rt Hon Theresa May MP
Home Secretary
2 Marsham Street
London
SW1P 4DF -
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March 23, 2012 at 10:22 -
Quite so. Sometimes “process” gets in the way in legal matters. In many areas the courts become so obsessed with the “process” that they lose sight of the object of the whole matter. We see this often enough in the “Yuman Rights” cases which produce perverse results for Joe Public.
Yet here ironically we have exactly the opposite. The process in Portugal is not merely defectice, it is farcical – were it not to have such serious consequences. A not guilty verdict quoshed in the absence, as far as I can see, of representation from the accused andthe accused not even informed. That is no process at all. And on this basis, some years later, the boys in blue are despatched to render the Knock on The Door and the “suspect” is despatched to a British prison. Here there is no process at all. Some forms have been ticked and that is that.
No clearer breaches of “Human Rights” could be imaigained; the right to a fair trial, the right to be heard, the right not to be detained without reason. But the British Courts declare themselves powerless!
As I comented yestarday, since Magna Carta it has been the law that:“No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.”
Can we see a more flagrant breach of this principle? In favour a a foreign court with its cock eyed procedures?
Shame! Shame! Shame!
Here endeth the rant
G the M-
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March 23, 2012 at 10:28 -
Rant seconded…. a wee excerpt from my letter to Madam May,
The Portuguese legal system apparently thinks it is ok to appeal a trial without informing the defendants, have those defendants issue an appeal without their knowledge, have that unknown appeal rejected, not inform the defendants of that rejection, declare them fugitive without trying to find them in the UK, and then (coincidentally) suddenly find the paperwork and issue an EAW just before the statute of limitations runs out. They issued the EAW for murder when the victim is demonstrably still alive. And, because of the way the EAW system works, none of this matters because the UK legal system will not spend a single moment of its time worrying about any of this. They will simply process Mr Mitchell as though he were a box of widgets going through customs. Indeed I might ask why our police and courts be involved at all – why not simply have the Portuguese police come over and arrest and take away Mr Mitchell personally? That is how, practically speaking, the EAW system as it currently stands operates. And it would save money as well as be efficient!
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March 23, 2012 at 11:29 -
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March 23, 2012 at 12:43 -
Don’t understand this complaint. The problem in this case is that there has not been a proper “process”.
A proper process would
(i) not have allowed an application to re-open the case to be made so long after the event, on the basis of an alleged defect in reasoning which (if genuine) would have been apparent from the time of judgment; and
(ii) if it did allow such an applicaiton to be made, would have required the acquitted defendants to be notified and allowed them to be represnted if they wished.It’s a lack of proper process that was the problem here. More process should have got in the way, not less.
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March 23, 2012 at 13:33 -
Bang on right.
Which makes perfect sense of the proferred reason for not notifying the acquitted former argidos that (sic) “we couldn’t find them; they were ‘fugitives from justice’” (well OK, not quite a verbatim quote, but near enough!) as an excuse, borne from recognition of the feebleness of the case and an attempt to paper over the cracks to make the application work.
Graham will have this hanging over him far too long.
But I’m convinced the end result will be the right one.
Graham won’t be going anywhere near Portugal, at least under compulsion.
And if the statute of limitations is up in May, I reckon the warrant application will be lifted, too, leaving Graham free to travel in Europe.
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March 23, 2012 at 14:35 -
That is actually exactly my point!
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March 23, 2012 at 10:55 -
This is going to do wonders for tourism in Portugal….
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March 23, 2012 at 11:01 -
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March 23, 2012 at 11:39 -
Seems there’s been an attack on Double Jeopardy in recent months in the UK as well– no sense rehashing that one, or whether the verdict was fair either in trials #1 or #2. So long as the decision in the original trial was not procured by fraud or force upon the tribunal, the verdict should stand, and it is incumbent on the Portuguese authorities to show how the very process of the trial itself was tainted in order to overcome Double Jeopardy– a minor technicality called the Burden of Proof, which in this case, a criminal one, should be as high as the criminal case’s would be, i.e., no reasonable doubt about it. You cannot countenance, in any free society, any abridgement of due process which covers up the faults of an incompetent (in all senses) tribunal and can only redound to the detriment of a defendant who has had his day in Court and won. “The constable has blundered, and the accused is to go free”, in the words of an old saying.
Thomas More’s sentiments are apt in this case: (paraphrasing, hopefully not too far) “And all the trees [behind which the Devil could hide] having been lopped down, where wouldst thou hide, if the Devil turn upon thee? I should give the Devil the benefit of the Law, that I may have it when I need it.” It is disheartening that far too many people feel that a certain version of “justice” must be served though the heavens fall; rarely does it occur to them that that is how lynch mobs felt as well, or else, and this is more troubling, it DOES occur to them, but they are not troubled, since, of course, they are “right” and have the angels on their side and are willing to sacrifice the rights of anyone in the name of some “Greater Purpose.”
(And let’s not, whatever we do, conflate this case with that of Mr. Tappin: different issues as to the basis of jurisdiction and extradition.)To sum up: Criminal trials aren’t baseball– you don’t get three swings; a swing and a miss, you’re OUT. And it’s up to you to show the pitcher’s throwing a spitball.
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March 23, 2012 at 11:49 -
Well said!
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March 23, 2012 at 13:42 -
Yes, it was well said, and I hope my earlier comments were not misconstrued.
I wasn’t offering an opinion of how I think things ought to be; merely offering my understanding of how things *are* (without personal interpretation, or not intending to suggest personal interpretation …)
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March 23, 2012 at 13:37 -
Two things. If you paid for this translation you ought to get a refund. For example “notorious mistake” – the Portuguese term does not mean “notorious” it means “significant”. Furthermore “appreciation of evidence” should be translated as “examination of evidence”. This is a legal document it needs to be translated accurately, I wonder how many other errors there might be?
That said for more evidence on the truly appalling state of the Portuguese justice system try googling “Casa Pia” and “richardwebster” -
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March 23, 2012 at 13:55 -
Might I suggest also copying any emails to the Portuguese Embassy – mail@cglon.dgaccp.pt
Mentioning avoiding Portugal for holidays would be most unfair: I couldn’t possibly advise you do that… -
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March 23, 2012 at 14:16 -
Possibly a raw nerve, but if you come to require any contributions to your expenses in this Anna I will be only too happy to throw a few coins your way.
Keep up the good work.
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March 23, 2012 at 15:12 -
Can’t quite understand why your contributors, many obvioulsy legally trained, cannot see the real problem here. The law is an ass. It is imperfect because it was created independently in each country not to dispense justice but to protect first the rights of the monarchy and then the rights of the nobility. Legal rights for ordinary Joe Serf is a very, very late and partial development which is still evolving on the hoof , so to speak, and used by governments to avoid the rising of the mob as society’s needs change. The law can and would be changed instantly if it affected any of those in power (to suit themselves) but when it comes down to the injustices of peasants like us they simply don’t give a toss and poor Graham can rot in a Portugese cell. What we have here has nothing to do with justice but is the presumptuous arrogance of a piddling Portugese legal system having a tantrum to prove itself the European equal to the ‘mother of democracy’ . If the Greek government issued a European Arrest Warrant for the Director of the British Museum for theft of the ‘Elgin’ Marbles the British judiciary would see it as an attack on the principles of autonomous government and repudiate it instantly, but when the suffering concerns an ordinary pleb they hide behind a point of order and wring their hands like Pontious Pilate whilst one of their countrymen is crucified for no good reason. It is not the complexity of the law which is important it is the SPIRIT of the law which people uphold and EAWs have nothing to do with that. The longer you lot comply with the ‘point of procedure’ game the more you will play into the hands of a government bureaucracy which will do nothing. By the people, for the people? Do me a favour!
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March 23, 2012 at 21:34 -
I think part of the difficulty, here, is that there are two, separate, debates; the specific and narrow debate about the particular issues facing Graham and the wider debate about the EAW itself — and they have kind of been melded into one.
The wider debate about the merits or otherwise of the EAW as a concept is certainly an interesting one and, to be considered properly, I suspect, would need to be considered on a much wider base …
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March 24, 2012 at 20:35 -
My understanding is that, providing a country has similar laws to the UK, then Extradition can take place, providing a Treaty is in effect, which in this case it is.
But this doesn’t follow in this event. The Extradition is for first degree murder, but the defendant has already stood trial and been acquitted for that offence. This is not a case where, as under current and quite recent UK law, there has been a finding of ‘Not Guilty’ and further substantial evidence has subsequently materialised and a re-trial initiated. The defendants on trial in Portugal were acquitted because the Judge found insufficient evidence to convict. That she chose not to record the reasons for coming to that judgement, it seems to me, is of no consequence. This is not a mis-trial, it is just maladministration. Why don’t they ask her, if it is a simple matter of amending the record ? After all, it could be that the Judge considered that the two security guards had conspired together to concoct their evidence, a perfectly valid reason to ditch the Trial, I think.
Nevertheless, additional evidence has certainly not materialised, this is not a case of that sort and I cannot see how the Portuguese judicial system emulates ours in that respect and therefore must be outside the boundary of the Treaty. The legislation in issue is therefore not mirrored and thus the Extradition should fail on those grounds, in my humble opinion. I also think that, because in the UK there would not be sufficient grounds to re-arrest ( because to bring someone to trial in this situation would require significant additional evidence that was not available during the first trial ) his arrest and subsequent detention are also unlawful.
To muddy the already very murky waters, the subsequent appeal process that took place outside of the defendants knowledge ( and therefore illegitimate in English law ) is simply icing on the cake, as would be the grounds for the order to re-arrest.
On top of all that, there is the small matter of the Portuguese authorities breaching article 6 of the Human Rights Act 1998 – the right to a fair trial – on at least three counts that I can see.
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March 24, 2012 at 22:39 -
I have emailed Theresa May just now. This case is really WINDING ME UP!!
Everywhere I look the country I know and love is going to the dogs, be it financially, morally, legally or otherwise. Taxed for this and that and the other, no work for anyone, pensions being stolen or the goalposts to qualify to get one moved about. Corruption rife. Politicians stealing from us, or going on drunken rampages (Did anyone see that fool Eric Joyce on Newsnight last night?) Imbecile.
I HAVE HAD ENOUGH!!
To: The Rt. Hon. Theresa May MP:
Secretary of State for the Home Department.Dear Mrs. May:
May I take this opportunity to add my voice to the growing chorus of opprobium concerning the fate of Mr. Mitchell, a British subject, who finds himself currently accused of First Degree Murder in Portugal, in respect of a crime he was investigated and aquitted of eighteen (18) years ago.
Mr. Mitchell has, it would appear, lived in utter ignorance of the fact that the Portugese authorities, having sent him home, concluding that he had no case to answer have, subsequently, considered him and his co-accused, a Mr. Warren Tozer to be ‘Arguidos’ or ‘formal suspects’ for nearly the last two decades, a fact which Mr. Mitchell has stated was completely unknown to him.
Mr. Mitchell has been made the subject of a most discreditable European Arrest Warrant – especially discreditable because the alleged murder victim, Mr. Andre Jorling is alive and well at this moment – inconvenient for the Portugese authorities who, even given their obviously somewhat chaotic system of justice would surely require a corpse as a bare minimum requirement for such a charge to have any validity.
How can it be, given that Portugal and the United Kingdom are signatories to the European Convention on Human Rights can this state of affairs can exist? Article 6 of that Convention guarantees the right to a fair trial and numerous other rights. None of these rights, enshrined in law appear to apply to Mr. Mitchell, however. What about the small matter that: “…everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law” – to quote but a part of the relevant Article?
Mrs. May. This case is an utter travesty of ‘justice’. At present, a man stands to be sent to a country to face a trial for a matter about which he maintains he is innocent and for which he has already been acquitted. Of this latter fact there can be absolutely no doubt, because the conclusion of those proceedings were filmed by the BBC TV programme Panorama.
If he is extradited to face trial now, how can he possibly defend himself against a charge when those upon whom he might, reasonably, presume to rely upon as evidence of his innocence, such as his co-accused and, possibly, other witnesses, may now not now be found after such a long space of time? Surely, Mr. Mitchell is entitled to the legal presumption that he is innocent? Such a principle must, one would assume, apply even in a place like Portugal.
When one remembers what an awful mess the Portugese authorities made in the Madeleine McCann case, it is apparent why Mr. Mitchell would not wish to entrust his future liberty and freedom to such an inept system of investigation. He has already spent a considerable period – I believe a year – in prison in Portugal before his acquittal and has gone about his business for the last eighteen years in this country in blissful ignorance that the Portugese wanted to retry him because, it appears, the original trial judge did not deal with the case correctly in the first place and failed to explain in her summing up that she disbelieved the evidence the two principle prosecution witnesses.
Such an omission left the door open for a formal request to the Supreme Judicial Council in Portugal to reopen the case. Finally, after nearly two decades, and with the statute of limitations reaching its expiration date in Portugal, someone decided that it might be a good idea to issue a European Arrest Warrant for Mr. Mitchell.
It is even more astonishing that the only reason that anyone in this case, including Mr. Mitchell’s now somewhat bemused defence team knows anything about the substance behind this case is because an Internet blogger, using the name ‘Anna Raccoon’ – an acquaintance of Mr. Mitchell – managed to find out the necessary information from her sources in Portugal, so as to establish just exactly what has been going on all these years. An unbelievable state of affairs. Someone in Portugal decides that a British citizen needs arresting for some or other obscure reason and we in the United Kingdom just, well… go and arrest them! Simples!!
Mrs. May. I believe that the whole system of European Arrest Warrants is presently unworkable and discredits the Government, who are seen to be unable to protect their citizens properly. This case is a prime example of just how unsatisfactory matters are at present. If a man can be extradited from the United Kingdom on a charge of Murder when the victim is still alive then we really have ‘lost the plot’.
Please demonstrate that we in the United Kingdom still have a justice system and a Government to be proud of for once. Stick up for our citizens and do not let them be dragged off to foreign climes where there appears to be no justification for doing so, or any guarantee that their rights will be upheld if they are.
Yours faithfully, etc.
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