by Jon E. Lewis
Introduction
1) I propose to leave the following verdicts to the jury:-
1) Unlawful killing (grossly negligent driving of the paparazzi);
2) Unlawful killing (grossly negligent driving of the Mercedes);
3) Unlawful killing (grossly negligent driving of the paparazzi and grossly negligent driving of the Mercedes);
4) Accidental death;
5) Open verdict.
These are my reasons. I have received written and oral submissions from Interested Persons and from Counsel to the Inquests. My reasons are necessarily in relatively summary form because of the limited time available and the need to prepare the summing-up. I shall not, therefore, deal with all the points made in over 450 pages of written submissions.
2) The inquests into the deaths of Diana, Princess of Wales, and Dodi Al Fayed heard evidence over a period of 5 ½ months. They have covered a wide range of topics. At the heart of the evidence has been detailed consideration of the circumstances of the crash in the Alma Tunnel in Paris just after midnight on 31 August 1997. We have heard from dozens of witnesses who saw some part of the journey of the Mercedes from the rear of the Ritz Hotel to the scene of the crash. Some have given oral evidence, others have had their evidence read under rule 37 of the Coroners Rules as uncontroversial. Yet more has been introduced as hearsay evidence when it has not been possible to secure the attendance of a witness. The circumstances of the crash have also been considered in detail by a range of experts, whose opinions have been explained to the jury. There was considerable agreement between those experts. Similarly, we have heard an enormous quantity of evidence that goes, in one way or another, to conspiracy theories that have abounded since the crash. [...]
4) There is some common ground on the verdicts which should be left. All are agreed that the verdicts accidental death and open verdict should be left to the jury. All are agreed that, whatever “short-form” verdict is returned by the jury, it can and should be supplemented by a short, non-judgmental narrative conclusion. The debate has focussed on the following questions:
i) Should unlawful killing be left to the jury on the basis that the crash was deliberately staged, with the intention of killing, harming or scaring? Deliberately causing the crash with the intention of killing the occupants of the car or causing them serious injury would support a verdict of unlawful killing by murder. Deliberately causing the crash with a view to scaring the occupants of the car would support a verdict of unlawful killing on the basis of unlawful act manslaughter. Mr Al Fayed submits that such a verdict should be left to the jury, whereas the Metropolitan Police submit that it should not.
ii) Should unlawful killing be left to the jury on the basis of gross negligence manslaughter by the driving of following paparazzi? The Ritz Hotel submits that it should, while the Metropolitan Police disagree. There is a subsidiary issue. The Ritz contends that this verdict should be left both on the basis of gross negligence manslaughter and on the basis of unlawful act manslaughter; the latter founded on a hypothetical offence under the Protection from Harassment Act 1997.
iii) Should unlawful killing be left to the jury on the basis of gross negligence manslaughter by the driver of the Mercedes (Henri Paul)? The Metropolitan Police say that this verdict should be left, while the family of Henri Paul argue that it should not.
[...]
Unlawful Killing: Staged Accident
12) For some years, Mr Al Fayed has expressed the firm belief that his son and the Princess of Wales were murdered in furtherance of a conspiracy to kill them or do them serious harm. This “broad and overarching allegation” was elaborated in written submissions before the inquest began. Mr Al Fayed believes that the conspiracy was orchestrated by the Duke of Edinburgh and executed by the Secret Intelligence Service on his orders. In the light of the evidence, Mr Mansfield QC has, quite properly, accepted that there is no direct evidence that the Duke played any part in the deaths and has accepted that there is no direct evidence of any involvement of the SIS. Mr Mansfield now submits that the jury should consider an alternative scenario, which he terms the “troublesome priest thesis”: a plan by unknown individuals (perhaps rogue SIS operatives) to stage the crash in order to serve the perceived interests or wishes of the Royal Family or “the Establishment”, as he and Mr Al Fayed term it. He also now submits that the aim of the plot may have been to scare the Princess. That submission may rest in part on a realistic acceptance that there could have been no certainty that the Princess and Mr Al Fayed would die or be seriously harmed. The lethal forces that resulted in the deaths of Diana, Dodi and Henri Paul resulted from the high speed of the Mercedes (about 65 mph at the moment of the collision) and the fact that it impacted with the corner of a pillar. Had the Mercedes hit the side of the pillar or gone out of control and hit the wall on the other side of its carriageway, it would probably have been deflected and the outcome may well have been different. Additionally, the occupants were not wearing seat belts. The expert evidence was that wearing a seat belt would either have prevented or at the very least diminished the prospect of a fatal injury.
13) As I said in my Reasons regarding the decision not to call the Duke of Edinburgh to give evidence, the question of whether this was a staged crash is different from the question of whether the Duke could have been involved. But because it is impossible for anyone to argue that particular individuals or agencies were involved, beyond what amounts to speculation, it is necessary to focus on the issue whether the circumstances of the crash point to a staged accident. In other words, would the evidence of the events on the evening of 30/31 August 1997 enable the jury to be sure that the crash was staged by somebody of whose identity there is no evidence? In my judgment it would not.
14) It is common ground between the reconstruction experts, and has not been disputed by anybody, that, either at the entrance to the Alma underpass or shortly into it, the Mercedes had a glancing collision with a white, slower moving Fiat Uno. The collision was between the right front corner of the Mercedes and the left rear corner of the Uno. There was a 17 cm overlap between the vehicles at the time of collision, and the point of impact was around the dividing line between the two lanes of the carriageway. Debris from the rear left light cluster of the Fiat was found at the scene, as was debris from the front right light cluster of the Mercedes. Additionally, the Fiat left a smear of paint on the Mercedes. There is some doubt about where precisely the collision took place, but of the fact that an impact took place between the Mercedes and the Fiat there is no doubt. The Mercedes clipped the slower moving Fiat as it went past. It would, in my view, be irrational for the jury to come to any conclusion other than that the presence of the Fiat was a potent contributory factor in the loss of control of the Mercedes and thus the crash and the deaths.
15) Mr Mansfield made clear in his oral submissions that the driver of the Fiat Uno, who has never been traced, was not involved in any plot. That is obviously right. The evidence to which he pointed as supporting a staged accident was different. He argued that there was evidence of a dark-coloured vehicle in front of the Mercedes in the left hand lane and evidence of a motorcycle behind it in that lane. As a result, he says that the Mercedes was “boxed in” and, on the evidence, collided with the dark vehicle. He also argues that there is evidence to support a conclusion that a bright light of some kind was deliberately flashed in the eyes of Henri Paul to disorientate him, and that this light may have been flashed by the motorcycle rider or from elsewhere. These are the physical features which he identifies as pointing to a plot.
16) As regards the “blocking vehicle” and the motorcycle, the difficulties with the argument are as follows.
a) Given the speed of the Mercedes, any vehicle ahead in its lane and observing the speed limit, or even driving close to the limit, would have impeded its progress and would have appeared to be blocking it. The witness who used the term “blocking” (Olivier Partouche) said in his first statement to French police that he thought the ca
r in front was being used to slow the Mercedes down to allow paparazzi to take photographs from behind. When asked specific questions in the French investigation, he said that he could not say whether or not the car in front was deliberately being driven slowly. In any event, he maintained that it did not perform any dangerous manoeuvre. See 24/10/07 at p. 10–11, 23–24 and 33–34. The evidence of his colleague, M. Gooroovadoo, was to similar effect (12/3/08, p. 93).
b) The other witnesses who saw a vehicle in front of the Mercedes in its lane were the driver and passenger of a car in the opposite carriageway: Benoit Boura and Gaelle L’Hostis. They did not conclude that the car was being driven deliberately slowly or manoeuvring dangerously. They described the car as being in front of the Mercedes as it was going out of control, and then driving off. See 24/10/07 at p. 47–48, 63–64, 72–74, 83–84, 85–86. In that regard, their evidence should be seen in the context of the evidence of Mohamed Medjahdi and Souad Mouffakir [sic], who were in a car ahead of the Mercedes. See 6/11/07 at p.57ff; 12/3/08 at p. 108ff. They gave evidence that they were in the tunnel when they saw the Mercedes behind them out of control, and that there was no vehicle between their car and the Mercedes. They drove on. Their evidence would seem to suggest that their car was the closest in front of the Mercedes when it lost control in the tunnel. M. Boura and Mlle L’Hostis describe the car in front of the Mercedes as rather different from M. Medjahdi’s car, but their descriptions of the car are also inconsistent from each other. They say that there was a shorter distance between the Mercedes and the car in front than M. Medjahdi and Mlle Mouffakir [sic] say separated their car from the Mercedes, but judgment of distances in these circumstances can be very problematic.
c) The experts on road traffic reconstruction all agree that the Mercedes collided with the Uno (because of the debris at the scene) and all agree that the Mercedes lost control at around the time that collision occurred. There is some dispute about the extent to which that collision influenced the course of the Mercedes. However, Mr Mansfield suggests that a collision which M. Boura heard between the Mercedes and a car ahead of it, and described as sounding like “bumper-to-bumper” and not involving metal, was an impact between the Mercedes and the hypothetical “blocking vehicle”. Yet there is no debris from that collision and none of the experts has put forward a thesis which involves such a collision.
d) The presence of a motorcycle relatively close behind the Mercedes does not point to a plot. M. Partouche and M. Gooroovadoo, who saw the motorcycle behind, gave evidence about seeing camera flashes from a pillion passenger on the motorcycle (24/10/07 at p. 14 and 26; 12/3/08 at p. 77 and 83). This would be consistent with the motorcycle of Rat and Darmon, who were among the paparazzi closest to the Mercedes. Although Boura and L’Hostis recall only one person on the motorcycle, and that is not consistent with any known paparazzo believed to have been near the Mercedes, they could well be wrong. And even if they were right, it does not go to prove that the motorcycle was deliberately doing anything dangerous.
17) While various witnesses recall “bright lights”, the evidence is simply not sufficient for a jury to conclude that a light was flashed deliberately to disorientate Henri Paul. Mr Mansfield relies upon the evidence of: Boura; Partouche; Levistre; and Moufakkir. He does not rely upon the evidence of Brian Anderson, and for good reason. The following points need to be made.
a) On his approach to the tunnel in the opposite direction from the Mercedes, M. Boura saw flashes which he initially thought were like speed camera or radar flashes. On reflection, he thought that they were camera flashes (24/10/07, p. 44).
b) As mentioned above, M. Partouche also thought the flashes were from paparazzi cameras (24/10/07, p. 36–37).
c) Mr Mansfield relies upon one witness who gave evidence that, in general, paparazzi do not take pictures on the move. However, various eyewitnesses (including some paparazzi) have given evidence that they saw camera flashes on the journey in this particular case, not only close to the scene of the crash but also earlier when the Mercedes was in the Place de la Concorde.
d) Mlle Moufakkir gave evidence of seeing bright lights behind her (6/11/07, p. 74). However, she immediately acknowledged that those lights could have been the lights of the Mercedes as it swung around after Henri Paul had begun to lose control. Also, she only looked around to see the Mercedes after it was out of control, so her evidence is of limited value as to the cause of the loss of control. Her account about bright lights was not mentioned to the French police or in a television interview.
e) M. Levistre gave evidence about seeing a blinding flash as a motorcycle overtook the Mercedes. However, his evidence plainly falls into the category of “inherently weak evidence” (in Galbraith terms). He spoke about seeing the riders of the motorcycle dismounting and making mysterious signals to each other; a description which is not supported by any other witness. He gave inconsistent accounts about what he saw, and gave an account of his own speed and angle of vision which was difficult to accept. After giving evidence, he contacted the Inquests secretariat with a bizarre story involving bullet casings at the scene of the crash. In short, his evidence could not be a proper foundation for the jury to form any view.
f) A large number of witnesses did not see any flashing light, despite being specifically questioned on the point. The Metropolitan Police have listed 17 such witnesses. Mr Mansfield points out that some (though not all) of these witnesses would not, or might not, have had a view of the Mercedes after it had actually entered the tunnel. However, some of the witnesses on whose evidence Mr Mansfield relies concerning bright lights (such as Partouche) did not have a view into the tunnel either.
g) The jury have been shown a video of vehicles entering and leaving the Alma tunnel. The headlamps of vehicles can appear as bright lights as they ascend the slope.
18) In any event, as Mr Mansfield concedes, one cannot look at the circumstances of the collision in isolation from the immediate preparations for the journey of the Mercedes. This is because the jury could only be sure that there was a plot if they were sure that the supposed plotters knew in advance where to stage the crash. In other words, they would have had to know in advance that the Princess and Dodi Al Fayed would be driven in a single car along the embankment road, and not in a convoy of two vehicles (as was usual) or on some different route. The most direct route to the apartment was not along the embankment road, although there was evidence that professional drivers would use it to avoid heavy traffic in the Champs Elysées. Only one source has been or can be suggested for the plotters’ knowledge of the decoy plan and route: Henri Paul.
19) Henri Paul’s movements cannot be accounted for between when he went off duty and left the Ritz at 7.00 p.m. and when he returned at 10.00 p.m. However, this period of time is of little relevance. M. Paul could not have imparted the information to the supposed plotters during that period. The incontrovertible evidence is that when he went off duty he was not expecting to return. Neither was it expected that Dodi and Diana would return to the Ritz. Their plan was to have dinner at a restaurant called Chez Benoit and then return to the apartment. It was as a result of the attentions of the paparazzi when they set off for the restaurant that Dodi diverted the convoy to the Ritz at the last moment. Henri Paul was then called back. He was first told of the plan to use a third car from the rear of the hotel at 10.30 p.m. The plan was conceived by Dodi Al Fayed, and communicated at that time by Thierry Rocher to Henri Paul. That is the evidence of M. Rocher, it is supported by CCTV evidence and it has been accepted by all Interested Persons.
20) Between that conversation with Rocher and the departure of the Mercedes from the rear of the Ritz, Henri Paul is visible on CCTV footage for all the time except 8½ minutes. Shortly after 10.30 p.m., he is seen to make one of his several walks out into Place Vendome and he cannot be located on the screen for those few minutes. However, Henri Paul could have been in the Place Vendome and outside the range of the cameras. Equally, he could have been within the range of
the cameras and indistinct because his movements could not be followed in the darkness. It is theoretically possible that he could have made the three-minute walk to a call box, telephoned “the plotters” and walked back, but this is pure speculation, unsupported by any kind of evidence. That is the difficulty with this hypothesis. There is nothing from which the jury could properly infer that Henri Paul had passed on information about the plan to leave from the rear of the Ritz in a third car. The distinction between a legitimate inference and speculation or guesswork is important.
21) For this hypothesis of Henri Paul aiding the assassins to be accepted, the jury would also have to conclude that Henri Paul assured them that the Mercedes would be driven along the embankment road. In other words, Henri Paul must have told the assassins that he would drive the car and he must then have ensured that he would do so. Mr Mansfield does not say that this was a suicide mission, but that Henri Paul had been paid and duped into believing that he was giving information to allow others to arrange protection for the Princess. It is true that Henri Paul had money on him that has not been accounted for and also that in the months before the crash (it is to be noted before Diana and Dodi were even together) Henri Paul was in receipt of income from somewhere other than his Ritz wages. But it is again a matter of speculation, not proper inference, that the source of the money on the evening (about £1,250 in French Francs) was someone interested in the movements of Dodi and Diana and interested in a sinister sense.
