by Jon E. Lewis
22) One also has to consider the inherent difficulties with the plot thesis. On any view, a staged crash would have had to be arranged at less than two hours’ notice. As conceived, it would have been an extremely risky operation for the assassins, especially if it was not calculated to kill. The two vehicles supposedly involved in the plot could so easily have been involved in the collision. Additionally, everything that occurred was likely to be seen, especially in view of the considerable paparazzi interest. There were many potential witnesses who gave evidence of the various vehicles they saw in addition to the Mercedes (albeit, as it turned out, confused and conflicting). Had the deceased occupants of the car survived, or Trevor Rees not lost his memory as a result of a serious head injury, the prospects of clear evidence of anything untoward being available through the occupants of the car were strong.
23) I take full account of the fact that the assessment of witnesses is the province of the jury. But I also bear in mind that the decision on what verdicts to leave must be taken in the light of all the evidence and that it must not be fudged. I confess that I was strongly tempted to leave this verdict so that the jury could pronounce upon the matter; but I have decided that for me to do so would be unlawful. It became apparent that this was not a viable option when I asked myself what evidence I could identify to the jury on which they could safely conclude this was a staged accident. I have concluded that, on the evidence taken at its highest, a jury properly directed could not properly be sure that this was a staged crash. In those circumstances, it is my clear legal duty to withdraw the verdict.
24) That is not to say that I shall not sum up to the jury the evidence elicited in relation to the conspiracy allegations. I propose to direct them to consider all the verdicts I leave, in the proper order. Then, if they are unable to reach one of those verdicts, they should return an open verdict. If, on the evidence, the jury were to conclude that there may be something in the staged accident thesis that conclusion might, for example, impact on whether they considered that the crash was, on balance of probability, an accident.
Unlawful Killing: Driving of the Paparazzi
25) Should the verdict of unlawful killing be left to the jury on the basis of the driving of the following vehicles? I shall refer to these as the paparazzi, because the only identified following vehicles are paparazzi and, with the exception of the motorcycle considered above, there has been no submission that the driver of any chasing vehicle was trying to do anything other than get photographs. In relation to these vehicles, I need to consider two possible legal footings for the verdict: gross negligence manslaughter and unlawful act manslaughter. It does not matter that there are now statutory road traffic offences in this country to deal with conduct of this kind; the ordinary law of manslaughter must still be applied for the purposes of these inquests.
Gross Negligence Manslaughter
[...]
27) In this regard, I should remind myself that gross negligence manslaughter requires something more than even a very bad error. It requires very serious misconduct amounting to disregard of a serious risk to life. See: R v. Misra and Srivastava [2005] 1 Cr App R 21. Before leaving this verdict to the jury on this basis, I would have to conclude that the jury could properly form the view that one or more specific paparazzi drove in a criminally negligent fashion which contributed to the crash, or that the actions of a group of paparazzi combined to cause the crash and that they were part of a joint enterprise.
28) The features of the evidence which could support such a conclusion are as follows. First, there is evidence that individual paparazzi drove or rode very close to the Mercedes, thereby limiting its freedom of movement and restricting Henri Paul’s options at the critical time. M. Hackett recalled at least 2–3 motorcycles riding close to the Mercedes in the Alexandre III tunnel (11/10/07, p. 6). He was scared when he saw them. M. Partouche recalled a “compact group” of vehicles, including motorcycles “just behind” the Mercedes (24/10/07, p. 8). M. Gooroovadoo remembered one motorcycle following “very closely” (12/3/08, p. 83, p. 101).
29) Secondly, there is evidence that the paparazzi continually accelerated to follow the Mercedes, while it must have been plain that Henri Paul intended to outrun them. Also, M. Lucard gave evidence that Henri Paul, at the rear of the Ritz, told the paparazzi there not to try to follow him, because they would not keep up. There is evidence that a number of paparazzi vehicles followed the Mercedes to the Place de la Concorde and that a number were still behind it in the Alexandre III tunnel and on the approach to the Alma tunnel. Speed was plainly an important factor in the causes of the crash and also in the deaths.
30) Thirdly, it is necessary to take account of the scene. This was a challenging urban road environment at night. As the driver approaches the Alma underpass, there is a turn to the left which causes many drivers to go off their line. There is a slip road from the right, described by one witness as the most dangerous junction in Paris. There is a significant incline down. The wall and pillars in the tunnel present particular hazards, as the road traffic experts accepted. Because of the darkness, visibility would have been limited.
31) In view of all those features, I consider that the driving of certain paparazzi could be regarded by the jury as criminally negligent. This is a borderline case in Galbraith terms, but the verdict should be left to the jury. On one view of the evidence, the conduct could be fairly characterised as participating in a race through the centre of Paris at twice the speed limit. Some statements of the paparazzi themselves could lead to this conclusion. In addition, the cross-examination of M. Darmon provided some support for a conclusion that, after the crash, the paparazzi continued to seek the best picture without regard to helping the injured. This could be relied upon by the jury as indicative of their state of mind before the crash.
Unlawful Act Manslaughter
[...]
34) The argument of Mr Croxford QC is that the conduct of the paparazzi, from the arrival at Le Bourget airport, can properly be characterised as harassment. He submits that that conduct can then be regarded as the basis for an offence of manslaughter by an unlawful and dangerous act, as set out in DPP v. Newbury [1977] AC 500 at 506–7. The principal reason he urges me to leave a verdict on this basis is that a verdict of unlawful killing could be returned in relation to the paparazzi without the jury having to find a criminal degree of negligence in the way in which one or more of the paparazzi drove at or about the time of the crash.
35) There is certainly evidence that a number of the paparazzi followed Diana and Dodi for some hours that day. There is evidence that some pursued them by road. There is evidence that some of the paparazzi were involved in a stand-off with security staff outside Dodi’s apartment. Mr Horwell QC argued that this conduct could not be “harassment” for the purposes of the Act. He made reference to Tuppen v. Microsoft Corporation [2000] QBD, where Douglas Brown J. concluded that the Act was directed at conduct such as stalking, persistent anti-social conduct by neighbours and racial harassment. In the event, it is not necessary for me to determine whether the conduct of specific paparazzi could amount to harassment, because I have decided that the verdict should not be left on this basis for other reasons.
[...]
36) Mr Burnett QC submits that the conduct of the paparazzi (following people using vehicles and taking photographs) was not inherently unlawful. If it was criminal, that was by virtue of the manner of its execution (persistent and liable to distress). He says that this course of conduct is a fortiori Lord Atkin’s driving analogy. I accept his submissions. Where a series of acts, some not dangerous and all individually legal in themselves, are rendered criminal because they form a course of conduct and are performed in a particular way, that cannot form the basis of unlawful act manslaughter. If two paparazzi drove in exactly the same way on the final journey, why should one be guilty of manslaughter and the other not guilty, simply because the first took photographs with greater zeal earlier in the day?
[...]
Unlawful Killing: Driving of the Mercedes
41) This verdict should only be left to the jury if they could properly find that Henri Paul’s driving was grossly negligent (in the sense considered above) and caused the crash. In the course of argument the question arose whether, if unlawful killing by gross negligence were left on the part of the paparazzi, it logically should also be left in respect of Henri Paul. To put it simply, as I have already indicated, the jury could conclude that Henri Paul and a number of paparazzi were engaged in a race through central Paris. Each could have broken off the chase at any time. It seems to me that, although there may be differences when the jury comes to consider questions of culpability, when one considers whether the verdict should be left at all there is, in truth, no great difference. I understood Mr Croxford to accept that on behalf of the Ritz. The essential features of the driving of Henri Paul that go to the question of his culpability are as follows.
42) First, M. Paul undoubtedly drove at around twice the speed limit on a busy urban road. There is evidence that he did so as a result of a deliberate decision to outrun the paparazzi. He could have slowed down at any time, without risking anything worse than some photographs being taken. By driving at this speed, he knowingly impaired his ability to react to situations in the road, such as the presence of the Fiat Uno ahead. The presence of the paparazzi behind could be regarded as an aggravating factor. It may be thought more dangerous to drive fast when one knows that other vehicles will be driven close behind. The jury could conclude that he was racing. I am quite unable to accept the submission of Mr Keen QC that speed was not a causative factor in the crash.
43) Secondly, there is evidence on which the jury could conclude that Henri Paul had consumed alcohol up to twice the UK drink driving limit. There were real flaws in the chain of custody of samples and the recording of results by the French pathologists and toxicologists. Furthermore, the results of tests for carboxyhaemoglobin were difficult for anyone to explain. On the other hand, only one of the four experts called to give evidence thought the test results for alcohol were probably unreliable (as to the other three, see: (i) 22/1/08, p.54 (Forrest “comfortably satisfied” as to reliability); (ii) 30/1/08, p.158 (Vanezis had “nagging doubts” but preferred not to answer questions about probability); (iii) 31/1/08, p.41 (Oliver thought that the combination of toxicology findings was “strongly indicative” that the samples came from Henri Paul)). After they gave their evidence, further evidence was called which could be regarded as establishing that the sample tested for carboxyhaemoglobin was matched with Henri Paul by DNA profiling (see 6/3/08, p.124–9). It will be for the jury to consider all that evidence in the round, and in the context of witness evidence about Henri Paul’s demeanour at the Ritz and about his medical history. In any event, the toxicological evidence has to be considered in the context of the whole of the evidence concerning his consumption of alcohol.
44) If the jury formed the view that Henri Paul had drunk something like that amount of alcohol, they could certainly decide that he had behaved negligently in choosing to drive a car. Given the speed of events on the approach to the Alma underpass, it is open to the jury to find that Henri Paul’s reactions were impaired and that this contributed to his loss of control of the car.
45) Thirdly, as with the paparazzi, the jury is entitled to take account of the features of the road environment which presented additional hazards (see above).
46) Overall, while one has to distinguish the supposed negligence of the paparazzi and the supposed negligence of Henri Paul, there would be something unrealistic about my determining that one could be viewed as criminal while the other could not be so viewed. All these drivers were facing the same road conditions. All were free agents and had the choice to slow down, without any real adverse consequence.
47) For all these reasons, I have decided that this verdict should also be left to the jury.
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The Jury’s Verdict:
7 April 2008 – Verdict of the jury
(4.25 p.m.)
(Jury present)
VERDICTS
[#]
LORD JUSTICE SCOTT BAKER: I would ask that nobody leaves the court until the reading of both inquisitions is complete, please.
SECRETARY TO THE INQUEST: Would the jury foreman please rise? Madam Foreman, in the matter of the death of Mr Emad El-Din Mohamed Abdel Moneim Al Fayed, have you reached a verdict on which a majority of the nine of you have agreed?
THE JURY FOREMAN: We have.
SECRETARY TO THE INQUEST: Could you give us the verdict and indicate the number of jurors assenting to the verdict?
THE JURY FOREMAN: The verdict is unlawful killing, grossly negligent driving of the following vehicles and of the Mercedes.
SECRETARY TO THE INQUEST: Thank you. Could you now read the rest of the narrative on the inquisition, indicating as appropriate the—
LORD JUSTICE SCOTT BAKER: How many agreed and how many dissented?
THE JURY FOREMAN: Nine, sir. The deceased is Emad El-Din Mohamed Abdel Moneim Al Fayed. The injury causing death: multiple injuries, including severe impact injury to the chest and the transaction of the aorta. Dodi Al Fayed died in the Alma Underpass in Paris at around 12.22 a.m. on 31st August 1997 as a result of a motor crash. The crash was caused or contributed to by the speed and manner of driving of the Mercedes, the speed and manner of driving of the following vehicles, the impairment of the judgment of the driver of the Mercedes through alcohol. There are nine of those who agree on those conclusions. In addition, the death of the deceased was caused or contributed to by the fact that the deceased was not wearing a seat belt, the fact that the Mercedes struck the pillar in the Alma Tunnel rather than colliding with something else, and we are unanimous on those, sir.
SECRETARY TO THE INQUEST: Is that the conclusion of your narrative verdict?
THE JURY FOREMAN: It is.
SECRETARY TO THE INQUEST: In the matter of Diana, Princess of Wales, have you reached a verdict on which at least nine of you have agreed?
THE JURY FOREMAN: We have.
SECRETARY TO THE INQUEST: Could you give us the verdict, indicating the number of jurors that have dissented to that?
THE JURY FOREMAN: The verdict is unlawful killing, grossly negligent driving of the following vehicles and of the Mercedes, and that is nine of us, sir.
SECRETARY TO THE INQUEST: Could you please read the rest of the narrative of your inquisition, indicating, where appropriate, the number of jurors who have assented to the verdict?
THE JURY FOREMAN: The deceased is Diana, Princess of Wales. The cause of death is chest injury, laceration within the left pulmonary vein and the immediate adjacent portion of the left atrium of the heart. Diana, Princess of Wales, died La Pitié-Salpêtrière Hospital in Paris at around 4.00 a.m. on 31st August 1997 as a result of a motor crash which occurred in the Alma Underpass in Paris on 31st August 1997 at around 12.22 a.m. The crash was caused or contributed to by the speed and manner of driving of the Mercedes, the speed and manner of driving of the following vehicles, the impairment of the judgment of the driver of the Mercedes through alcohol. Nine of us are agreed on those points, sir. In addition, the death of the deceased was caused or contributed to by the fact that the deceased was not wearing a seat belt, the fact that the Mercedes struck the pillar in the Alma Tunnel, rather than colliding with something else, and we are unanimously agreed on that.
SECRETARY TO THE INQUEST: Have the assenting jurors signed both inquisition forms?
THE JURY FOREMAN: They have.
SECRETARY TO THE INQUEST: Could you pass the forms to the usher? You may be seated.
LORD JUSTICE SCOTT BAKER: Thank you very much.
PROJECT COAST
“Project Coast” was the code name for a top secret chemical and biological weapons (CBW) programme developed in 1981 by the South African apartheid regime for use against its enemies. While some of apartheid’s CB weapons were relatively innocuous – tear gas, for ex
ample – others were designed for the extermination of individuals, even whole groups. Coast numbered among its satanic armoury an infertility toxin to sterilize the black population of uppity townships and – shades of the CIA’s wackiest plans to whack Castro – poisons that could be concealed within chocolates. And cigarettes. Needless to say, Coast explicitly violated every international agreement you could shake a pipette at, chiefly the 1925 Geneva Convention and the 1972 Biological and Toxin Weapons Convention.
Ordered up in 1981 by Prime Minister P. W. Botha, Coast was headed by Wouter Basson, of whom it might be said that he honoured the Hippocratic Oath only in the breaching: he was also a medical doctor, Botha’s personal heart specialist, and a member of the 7th South African Medical Service’s Battalion. To maintain secrecy and make it difficult to link CBWs with the South African Defence Force, Coast operated through four front organizations: Delta G, Roodeplast Research Laboratories, Protechnik, Infladel. Coast’s annual budget was $10 million, which was strictly off the treasury’s books.
