Presumed guilty

Gerry and Kate McCann at a press conference. Photograph: Lee Sanders

I have often wondered which of the past 445 days has been the worst for Kate and Gerry McCann. In one way it is a crass consideration - as they have often said since their daughter disappeared, even at its very worst, the accusation and abuse levelled at them in the past 14 months is as nothing compared to the appalling moment, late on the evening of May 3 last year, when they realised that Madeleine's bed was empty. If your three-year-old vanishes and you know that, having left her alone, you were to some extent to blame, and you spend your waking hours forcing from your mind the most unthinkable of thoughts, I imagine every other consideration dramatically recedes.

And yet, in the sense that Madeleine is still missing, and a sizeable proportion of the public has come to believe her parents somehow know why, life has, if anything, only got worse for the McCanns. Was their darkest moment, I wonder, the press conference in Berlin in June when a reporter interrupted abruptly to ask for the first time if they had killed their daughter? Was it that long day in September when, after hours of relentless questioning, Kate and later Gerry were named official suspects in the case? Or did it come later last autumn when, after months of critical, then patently libellous, and in the end entirely outrageous headlines, the Daily Star published a front page story reading: "Maddie 'sold' by hard-up McCanns"? How, as a grieving parent, is it possible to respond to that?

On Monday, Mr and Mrs McCann were formally cleared of any involvement in Madeleine's disappearance, after the Portuguese attorney general, having reviewed the entire police investigation, ruled that there was no evidence to suggest that they, or Robert Murat, the local businessman also named a suspect, had committed any crime.

It should provide some small measure of justice and relief to what any fair-minded person must now conclude are a grotesquely maligned couple. But in truth I suspect these are the bleakest days of all for Kate and Gerry McCann. The Portuguese Policia Judiciaria (PJ) long ago ran out of ideas or enthusiasm for this investigation, and the case is now effectively closed. No one is now looking for Madeleine but her parents. How did the most ferociously discussed crime of modern times arrive at such a sorry and shaming point?

The "archiving" of the case has not necessarily been read this way in Portugal - some local headlines yesterday continued to assert that the ruling was "not a declaration of innocence" - but the attorney general's statement is a terrible indictment of the Portuguese investigators. To close an investigation into a missing child after a little more than a year with no idea where to go next is "appalling", child protection expert Mark Williams-Thomas told the Guardian this week, stressing that it would never be permitted to happen in this country. He urged the attorney general to have the entire case reviewed by an external force, perhaps from Germany or the US, but that is unlikely to happen.

The investigators, in truth, were at fault from the very beginning. Journalists, police officers and other experts who witnessed the early stages of the investigation were struck by how out of their depth the police seemed. Their failure to secure the crime scene, close the borders, take early witness statements and conform to other basic investigative good practice has been well reported. The most senior police officer, Goncalo Amaral, was abruptly removed from the case and demoted over his handling of it, while his office spent last summer leaking extremely prejudicial material about the McCanns to local media. (Amaral is currently facing perjury charges, which he denies, in relation to another missing child case, which might cast doubt on the credibility of his own tell-all book about the McCann investigation, released tomorrow.)

Now it seems that it was the Portuguese police's catastrophic misinterpretation of British DNA findings that led to them becoming so convinced of the couple's guilt and naming them arguidos. So much of this miserable story, in other words, could have been different had local investigators displayed a little more competence. Portugal is a comparatively small country with a relatively inexperienced police force, and clearly British forensic experts, in handing over highly technical findings, should have taken the utmost care that they were interpreted correctly. But there is no question that Kate and Gerry McCann were horribly failed by the investigation into Madeleine's disappearance.

To reach this conclusion is not patriotic prejudice. A few voices in Portugal are now willing to acknowledge as much. "Since the earliest days," Miguel Sousa Tavares wrote in the daily Expresso this week, "I had the impression that the PJ did not have the slightest thought-through strategy . . . And when the McCanns went home, sick and tired of being always on hand and seeing a police force that was only interested in incriminating them, the PJ didn't know what to do. Their old, lazy methods hadn't worked and it didn't know any other ones."

But as the McCanns' own investigators begin trawling through the police files - and who can now criticise them for appointing their own detectives? - in an attempt to rekindle long cold leads, it is not only the Portuguese police who should feel chastened this week.

It became a commonplace, after 1997, to speak in terms of a period of collective madness after the death of Princess Diana, an orgiastic sorrow that became almost a national guilty pleasure. The same judgment could equally be made of the period after the McCanns were named arguidos, when every dinner party and coffee queue and bus-stop chat in Britain seemed to become a gossip about whether they had "done it". Several newspapers and broadcasters simply suspended their own sense of natural justice and any legal caution to publish whatever they liked - much of it unsourced and the worst of it entirely libellous. (The McCanns won £550,000 in a libel settlement from one newspaper group but could have pursued many others if they had been so minded.)

But this was not some red-top witch-hunt; the chattering classes were very happy to offer their own insights. Writing in the London Review of Books, Booker prize-winner Anne Enright described her own feverish conversations with friends: how many sedatives would it take to kill a child? How much did doctors drink? How many dead bodies did a GP have to be with before they developed a "scent of death"? "In August," she wrote, "the sudden conviction that the McCanns 'did it' swept over our own family holiday in a particular hallelujah. Of course they had." She went on to analyse Gerry McCann's use of language, finding it not emotional enough to her taste.

And so, for the record, this is where we stand on the supposed evidence against Kate and Gerry McCann. There was never any DNA "proof" that Madeleine's body had been in the couple's hire car - that originated from a misinterpretation by the PJ of inconclusive findings by British forensics experts. The full report indicates it was the supposed "scent of death" found in the apartment that led directly to the couple's naming as arguidos, but forensics experts have always argued for caution in interpreting sniffer dogs' reactions. An American court case ruled this kind of evidence inadmissable last year after finding that three supposedly "specialist" dogs were incorrect between 62% and 78% of the time.

And what of all the unexplainables, the supposed contradictions in their friends and others' accounts, the suspicious incidents and odd sightings? The report refers to one witness who told police he had seen Gerry McCann in nearby Lagos telling someone on his mobile phone: "please don't hurt Madeleine". The police checked out his mobile phone records and discovered that Mr McCann had been nowhere near there.

The witness, in other words, was wrong. Sightings are often wrong. We have to conclude, without any credible evidence against them, that those who believed the McCanns guilty - police, media and other observers - were wrong. And that two bereaved parents have suffered the most terrible injustice. Whatever became of the presumption of innocence?