The Mammoth Book of Conspiracies (64 page)

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.

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.