Hearing transcripts

20 March 2008 - Morning session

1 Thursday, 20th March 2008
2 (10.00 am)
3 Housekeeping
4 LORD JUSTICE SCOTT BAKER: Can we work out a timetable for
5 today?
6 Are the interested persons agreed amongst themselves
7 as to how they want to divide the time?
8 MR BURNETT: Sir, I am not sure that there is formal
9 agreement but everybody is aware of the fact that you
10 have to hear submissions today and there are certainly
11 four interested persons who are likely to want to make
12 fairly detailed submissions.
13 LORD JUSTICE SCOTT BAKER: Mr Mansfield's succinct
14 submissions do run to a large number of pages.
15 MR BURNETT: And 556 footnotes.
16 LORD JUSTICE SCOTT BAKER: Which I think really means that
17 all the territory is covered there. And there are some
18 issues that are quite difficult elsewhere that I would
19 like to spend some time exploring.
20 MR BURNETT: Yes.
21 Sir, I do not know how long Mr Mansfield feels he
22 would like, if he is to go first. Having read through
23 the various submissions, the issues that I apprehend you
24 might like to explore in some detail are those arising
25 from driving in particular.

1

1 LORD JUSTICE SCOTT BAKER: Yes.
2 MR BURNETT: Which are not issues that my learned friend
3 Mr Mansfield --
4 LORD JUSTICE SCOTT BAKER: Mr Mansfield's issues are in
5 the open domain. We know exactly what his case is and
6 we know what Mr Horwell's response is.
7 MR BURNETT: Yes. Sir, I am not sure which order you would
8 like to hear people. It may be logical to hear
9 Mr Mansfield first and the others who are making
10 positive submissions about particular verdicts that
11 should be left to the jury. I am not sure whether
12 Mr Tam will have a great deal to say today. I will
13 apprehend from his submissions that the answer to that
14 question is likely to be no.
15 Mr Horwell might have a fair bit to say to deal with
16 each of those submissions.
17 LORD JUSTICE SCOTT BAKER: What I am anxious to avoid is
18 that we don't use up a large chunk of the day on
19 Mr Mansfield's submissions and have inadequate time to
20 deal with the other matters.
21 MR BURNETT: Sir, if everyone were to aim initially to make
22 their submissions between half an hour and
23 three-quarters of an hour, allowing you time to explore
24 and intervene which will inevitably extend the period
25 a little, then there is every prospect that we can get

2

1 through these submissions today, given that people are
2 really leaving you, as we understand it, with headline
3 points rather than developing detailed submissions on
4 the evidence.
5 MR KEEN: I wonder, sir, if I might make one or two short
6 comments.
7 Clearly we have put in written submissions and it
8 would not be my intention to repeat what is in writing.
9 It would be most inappropriate.
10 LORD JUSTICE SCOTT BAKER: It is obviously not helpful to
11 repeat what is in writing, yes.
12 MR KEEN: I anticipate that there are issues that my learned
13 friend Mr Mansfield will want to cover that will take
14 a little time. Having said that, it respectfully
15 appears to me that my learned friend Mr Burnett should
16 begin because we have to understand what advice he is
17 going to give to you as coroner in order that we can
18 respond and comment on that. If Mr Burnett goes last,
19 I suspect that every single interested person here is
20 going to want a right of reply of some kind which will
21 be extremely time consuming and perhaps unnecessary --
22 LORD JUSTICE SCOTT BAKER: I think Mr Burnett has put in
23 a document which certainly covers I think various
24 points.
25 MR KEEN: As has everyone else, sir.

3

1 LORD JUSTICE SCOTT BAKER: Yes.
2 MR KEEN: I would not object to Mr Burnett having a right of
3 reply at the end but, in my respectful submission,
4 we need to know what finally he is going to direct and
5 recommend to you, sir, by way of verdict, directions and
6 questions for the jury --
7 LORD JUSTICE SCOTT BAKER: I think his position is pretty
8 clear at the moment but he obviously wants to know what
9 emerges from the submissions that come from you and from
10 Mr Croxford and Mr Horwell.
11 MR KEEN: I am left a little uncertain because he says
12 a major issue is driving, for example, and it would be
13 useful to know what that issue is seen to be in this
14 context. I simply make that observation.
15 LORD JUSTICE SCOTT BAKER: It seems to me it is pretty plain
16 that the Metropolitan Police are suggesting that
17 I should leave unlawful killing with regard to your
18 client.
19 Mr Croxford is suggesting that I should leave
20 unlawful killing with regard to the paparazzi and both
21 those contentions are disputed.
22 MR KEEN: Well, in a sense the Metropolitan Police do not
23 dispute the general contention that unlawful killing in
24 respect of the paparazzi should be left. I know they
25 don't invite you, sir, to include that as a verdict, but

4

1 it so happens that the content and commentary in their
2 written submission highlights the fact that
3 the paparazzi were partly to blame, so there is perhaps
4 a structural illogicality in their conclusions but
5 nevertheless they concede that the paparazzi are to be
6 blamed in part for the crash.
7 LORD JUSTICE SCOTT BAKER: Shall we hear Mr Mansfield first?
8 MR KEEN: That resolves the point, sir.
9 MR MANSFIELD: That is the first submission I have won
10 without saying a word.
11 May I say at the outset that I am not intending,
12 plainly, to read out the submissions but what I want to
13 do is to distil --
14 LORD JUSTICE SCOTT BAKER: It would probably take you all
15 day to do it.
16 MR MANSFIELD: It might do, and I am very conscious of that.
17 In the light of that, there are a couple of
18 housekeeping matters I would like to address first, if
19 you would permit me to.
20 One is that because we are, none of us, intending to
21 as it were repeat or rehearse what is in
22 the submissions, we would like the facility which is
23 normally afforded and normally carried out where there
24 are requests, which there are in this case, in relation
25 to the document itself that the media may have copies at

5

1 this stage but not for publication as a public document,
2 so that those who are interested in following and in
3 particular those who are not here but are doing it no
4 doubt from the website may know the context of the
5 points that are being distilled.
6 May I give you an example of one that has been
7 prepared? It is only intended to give numbered
8 companies with a watermark on each page with a number
9 and then each one will be registered as to which member
10 of the British press, no one else -- and I do not just
11 mean the press, the British media -- gets a copy and it
12 says, "Subject to court order, not to be reported or
13 published until after the jury verdict, copy no 1". So
14 it is essentially for ease of reference and it is
15 obviously what we would submit -- certainly I have done
16 it in many cases --
17 LORD JUSTICE SCOTT BAKER: If we go back in time, we did not
18 have written submissions at all, it was all oral and
19 this is really an extension of what is being said orally
20 in court.
21 MR MANSFIELD: I am really out of courtesy indicating --
22 LORD JUSTICE SCOTT BAKER: I personally cannot see any
23 problem about that. Any difficulty, Mr Burnett?
24 MR BURNETT: Sir, we see no difficulty. Others may wish to
25 do the same thing. But it does need to be made clear

6

1 that there is a Contempt of Court Act order in place if
2 any of this were published before the verdicts are
3 returned.
4 LORD JUSTICE SCOTT BAKER: And it would be a pretty serious
5 contempt of court if any of this was published before
6 the verdict.
7 MR MANSFIELD: I am much obliged.
8 The second matter is this. It has not been
9 clarified. I am concerned about it. It does not
10 possibly need to be remedied today if a remedy is
11 required.
12 We indicated to Mr Smith the problem: the last
13 occasion the jury were here, on 18th March, this week,
14 they came back in to court during the time that there
15 was a question over what was happening in
16 the Administrative Court.
17 LORD JUSTICE SCOTT BAKER: Yes.
18 MR MANSFIELD: I have the page, it is page 163. There is
19 a passage where you say this:
20 "Lord Justice Scott Baker: Just to deal with this,
21 Mr Mansfield, again so there is no doubt about it.
22 The legal representatives of Mohamed Al Fayed made clear
23 that there is no evidence to support an allegation that
24 (a) the Duke of Edinburgh played any part in the deaths
25 of Princess of Wales and Dodi Al Fayed and (b) that MI6

7

1 played any part likewise."
2 Then I ask to defer the matter.
3 The problem is -- because I have the transcript --
4 what had actually been said in court.
5 LORD JUSTICE SCOTT BAKER: I was putting to you the matter
6 that the Divisional Court was asking whether that could
7 be said in public and I raised the question that
8 the word "direct" was missing.
9 MR MANSFIELD: I understand that and I am grateful for that.
10 It gave us time to try and make the liaison.
11 The problem is, and I am not making any criticism of
12 your word, it is merely that when the jury came back,
13 those words were still on the screen and certainly at
14 least one person noticed. They were certainly on our
15 screens, unless it was not on their screens and Mr Smith
16 cannot assure me that that is the case. In other words,
17 that what we could read on our screens was on their
18 screens and it was noticed that they were reading what
19 was on their screens.
20 Now, I am very concerned about that, irrespective of
21 any decisions that you may make today in relation to
22 verdict that they will read what is actually not an
23 accurate -- and I appreciate it is meant to be just
24 a question -- reflection of what had been said and may
25 I defer the matter for the moment. I just raise it.

8

1 Because we have been trying to ascertain what has
2 happened. We appreciate it is not on the website and
3 it is not in the transcripts that they will be given.
4 The problem does not lie there. It lies in the fact
5 that it was on screen.
6 LORD JUSTICE SCOTT BAKER: Yes. I think the question is
7 whether you want me to say anything to the jury about it
8 at some point and if so, what.
9 MR MANSFIELD: I think in fact --
10 LORD JUSTICE SCOTT BAKER: Least said soonest mended is
11 often the rule in these circumstances.
12 MR MANSFIELD: I would always agree with that. For example,
13 when something is said in the press, you can probably
14 overlook it these days. On the other hand, when it is
15 part of an official transcript, it may have been of
16 interest to them to read what may have just been said
17 before they came back in. Then may I reserve
18 the position until a later stage.
19 LORD JUSTICE SCOTT BAKER: At the moment, they have on the
20 face of it no knowledge of (a) a judicial review
21 application and (b) an unsuccessful judicial review
22 application. But life being what it is and bearing in
23 mind that when the previous judicial review application
24 was made, the jury were concerned to know how it
25 affected their position because their families obviously

9

1 say: "What is all this about?", it is pretty obvious
2 that the likelihood is that it has come to their notice
3 in one way or another.
4 MR MANSFIELD: Well, in fact, the fact of a judicial review
5 application and its outcome was reported by the BBC at
6 10 o'clock. That is the one I saw. I do not know what
7 was said on the 6 o'clock news. So they will know that
8 there was an application that was unsuccessful.
9 LORD JUSTICE SCOTT BAKER: Except that they are invited not
10 to look at the news. But there is a measure of reality
11 that we have to look at.
12 MR MANSFIELD: I think as Mr Justice Igor Judge commented in
13 the court, they are hardly likely to have gone without
14 a newspaper for the last six months, although Mr Burnett
15 said it depends on the newspaper. I think in fact there
16 is a risk that some of them will have seen that and
17 although they may try and ignore it, it might have tied
18 in, since it was the same day, with something they may
19 have read on the screen.
20 So I raise it now.
21 LORD JUSTICE SCOTT BAKER: You can reserve your position.
22 MR MANSFIELD: May I be allowed to return to that later. If
23 necessary, it may be, as you point out, the less said
24 the better.
25 The final housekeeping matter is this: I hesitate to

10

1 add material but it is material that has arisen since
2 we submitted it. It is an evidential addendum. I am
3 not going to go through it. I may refer to it this
4 morning, I do not know whether you have a hard copy.
5 We have handed one in. There are hard copies for
6 everyone else if they need them and it only relates to
7 evidence that has arisen after our written submissions
8 went in on Friday.
9 LORD JUSTICE SCOTT BAKER: Yes.
10 MR MANSFIELD: So if you would be kind enough to add that
11 to --
12 LORD JUSTICE SCOTT BAKER: Where is it to go? I have an
13 index to submissions bundle with 11 dividers.
14 MR MANSFIELD: We have not created a divider for it. It is
15 to go at the rear of the submissions, that is, the
16 submissions on behalf of Mohamed Al Fayed.
17 MR BURNETT: Sir, can I deal with two matters before my
18 learned friend continues?
19 LORD JUSTICE SCOTT BAKER: Yes.
20 MR BURNETT: The first is this: I do not believe you have
21 made an order deferring publication of all that
22 transpires today.
23 LORD JUSTICE SCOTT BAKER: I thought I had. But it is
24 implied.
25 MR BURNETT: I think the order you made was in relation to

11

1 Mr Mansfield's written submissions so we need to make
2 that clear.
3 LORD JUSTICE SCOTT BAKER: I will make it for everything,
4 obviously.
5 MR BURNETT: The second thing is simply this: apropos of
6 this, which is withdrawing allegations that my learned
7 friend raised. At the end of the Divisional Court
8 hearing on Tuesday --
9 LORD JUSTICE SCOTT BAKER: Yes.
10 MR BURNETT: -- the court itself raised the question
11 whether, in the light of what had been said to it by my
12 learned friend Mr Beloff in connection with the state of
13 play regarding allegations around the Duke and SIS, it
14 would be appropriate for those facts to be made public
15 despite the order made in that court that generally,
16 the submissions of counsel should not be reported until
17 after the verdict. And it was in those circumstances
18 that messages were sent back here because you were still
19 sitting and hearing evidence.
20 We have to say that we had rather hoped you might
21 have finished the evidence a little sooner but
22 I understand that it took longer than originally
23 expected.
24 LORD JUSTICE SCOTT BAKER: Yes.
25 MR BURNETT: Sir, you will remember that in the course of

12

1 his submissions before you a week or two back, my
2 learned friend Mr Mansfield put in clear terms the way
3 in which he was able to invite you to consider calling
4 the Duke of Edinburgh. And sir, it will obviously be
5 a matter for you when you come to sum up to consider how
6 to reflect all of those issues in the summing-up. But
7 sir, we would certainly suggest that the position should
8 be maintained for the moment, namely that generally
9 the debate should not be recorded until after
10 the verdict.
11 LORD JUSTICE SCOTT BAKER: I did not think there was really
12 any doubt about that.
13 MR BURNETT: But that would not disable you from explaining
14 whatever the real position is in the summing-up.
15 LORD JUSTICE SCOTT BAKER: Thank you. Any problems?
16 MR MANSFIELD: No, except the next one.
17 Submissions by MR MANSFIELD
18 MR MANSFIELD: May I come now to the substance of what
19 I would wish to submit to you today and what I want to
20 do is to direct it in particular to the position that my
21 learned friend Mr Burnett indicated to us yesterday and
22 we have now received this morning in his written
23 submissions as to your position or likely position. In
24 particular, how that impacts upon what we have put
25 forward, namely the verdict of unlawful killing in

13

1 relation to the evidence on the basis -- well, there are
2 three, possibly just two, namely unlawful killing on the
3 basis of the definition of murder as it is normally
4 defined: "An intention to kill or cause serious bodily
5 harm", or secondly, manslaughter of the unlawful act
6 variety.
7 LORD JUSTICE SCOTT BAKER: Yes.
8 MR MANSFIELD: Those are the two main areas. And as
9 I understand it, the submission that is being made on
10 your behalf is that there is no evidence on those matter
11 to be placed before this jury and therefore those
12 potential verdicts should be withdrawn.
13 So, it is in relation to that. And may I just say
14 so that it is clear for any members of the media or
15 anyone else listening that we have been at pains --
16 it is all spelled out in the written submissions -- to
17 ensure a clear distinction is made between these
18 proceedings and all other forms of proceedings in this
19 country, that there are not parties, there are only
20 persons and all the other matters we set out, because
21 I think it is still not clearly understood exactly what
22 this is. Although in the first place, you made it very
23 clear that this was not going to be a slugging out,
24 I think was the word you used, as it were, match,
25 throughout the whole of this inquest and I hope in

14

1 a sense that it has not developed in that way.
2 Secondly, the most important thing is that it is an
3 organic process in which matters arise, fall away and in
4 which the interested persons do not have a case to
5 present but are here to ask questions in the hope that
6 this will contribute to the search for the truth.
7 Sir, I merely say that because it is still being
8 misunderstood. So it is in that context, spelled out
9 fully in our written submissions, that I would like to
10 focus on these verdicts and I would like, if I may --
11 unless there is no issue and I am not entirely clear in
12 view of an email yesterday -- indicate the way in which
13 I wish to approach it.
14 First of all, dealing with some matters of law, in
15 relation to these matters, namely first of all the scope
16 of verdicts -- of course, this will apply not just to
17 the ones I am focusing on but all verdicts: scope of
18 verdicts and then obviously the second matter, can I put
19 it this way? The evidential threshold that has to be
20 crossed in relation to particular verdicts if they are
21 to be left.
22 LORD JUSTICE SCOTT BAKER: Yes. Well, the evidential
23 threshold for unlawful killing is pretty high, the
24 criminal standard. The jury would have to be sure.
25 MR MANSFIELD: We have accepted that. I think you have had

15

1 joint submissions from the three --
2 LORD JUSTICE SCOTT BAKER: The law I think is clear that
3 what Lord Woolf said in the two cases has to be followed
4 and it is really akin to the criminal test. Unless I am
5 satisfied that there is evidence on which the jury could
6 be sure, it cannot be left.
7 MR MANSFIELD: The formulation that I have put is I think
8 not exceptional: is there evidence on which a reasonable
9 jury, properly directed, could be sure or satisfied to
10 a criminal standard that there was an unlawful killing?
11 LORD JUSTICE SCOTT BAKER: Yes.
12 MR MANSFIELD: I am going to come back to that. There are
13 other ways in which it is formulated which I will come
14 to in a moment which I would submit have particular
15 practical application to this case.
16 But may I just start with the first issue, that is
17 the nature of the inquest; in other words, putting it
18 simply, the Jamieson versus Middleton situation, putting
19 it in a nutshell.
20 I think we all accept it is pre 1998 and so
21 therefore the provisions of Human Rights legislation
22 don't impact in the same way and that therefore,
23 the label that is sometimes attached to inquests that
24 are carried out under an earlier regime, the Jamieson
25 regime, have to be considered.

16

1 We accept that and in the legal submissions which
2 we have put jointly, you will see that has been again
3 gone into in some detail but I am not going to rehearse
4 all the reasons. But what I would like to ask you to
5 consider at this stage is that even under a pre 1998
6 structure or regime relating to the cases that are based
7 on Jamieson, there is still scope for the questions and
8 also the issues that we would seek to raise.
9 Now, may I just trespass across for a moment to see
10 why this is relevant. What I want to develop this
11 morning a little bit is not everything obviously in
12 relation to the evidence but some important aspects of
13 the evidence as we say it impacts. In particular, if
14 you have our written submissions, you will see that it
15 has been structured in a particular way and the way that
16 it has been structured -- you can either do it from
17 the index or from the questions, the questions are on
18 page 144, the index is right at the back.
19 The structure reflects submissions that we have made
20 really from the outset, even in the pre-inquest hearings
21 that inevitably you would have to, or the jury would
22 have to, approach this case from the tunnel outwards,
23 factually.
24 In other words, on the question of causation and
25 the issues of the four questions: the "how" question

17

1 being perhaps the most controversial in all inquests,
2 not the "who", "when" and "where", but the "how"
3 question; in relation to the "how" question and the
4 causation, one would have to begin with the incident in
5 the tunnel itself.
6 LORD JUSTICE SCOTT BAKER: I am not so sure about that.
7 I think the logical way to begin with it is probably in
8 the Ritz Hotel. It may be that when one goes from
9 there, it becomes apparent that this cannot have been
10 a staged accident.
11 MR MANSFIELD: That is why I am going to spend, I am afraid,
12 a little time on this. Because we are saying -- and
13 I do not demur from that, in fact I would heavily
14 support that, because of the way we put it.
15 LORD JUSTICE SCOTT BAKER: The other point is that, with all
16 due respect, I cannot leave 41 questions to the jury
17 with respect to your case, if I can call it a case for
18 the moment, which I know is not accurate, and then
19 I have to think about all the other questions that
20 relate to everybody else.
21 The point is that there is a lot of authority for
22 saying that the jury must not be confused by being asked
23 question after question after question.
24 MR MANSFIELD: Well, we have attempted -- and I am not
25 dealing with all of the questions at the moment, I am

18

1 trying to focus for the moment on the logical approach
2 that would have to be adopted in any inquest if it is
3 looking at causation.
4 You go to the incident itself and then you work
5 backwards. However, if you look at page 144, the first
6 17 questions embrace precisely either your approach,
7 namely let's look at what happened in the hotel -- and
8 we do rely very heavily on what happened in the hotel
9 and at the rear and the front on that day.
10 It may be that there is not any issue that
11 the proper scope of the verdicts has to go beyond
12 the tunnel, has to go back up the expressway through
13 the place, up Cambon, through the hotel and back to an
14 earlier stage in the day.
15 The only reason for asking you in fact to look at
16 the way Hurst and some of the speeches deal with
17 the scope of a Jamieson inquest is to, as it were,
18 delineate the ambit of the questions that rightly arise
19 in relation to causation in this case.
20 I am not going to take time on it if there is no
21 dispute about that, but may I just in that context
22 therefore -- and it is the only case I ask you to just
23 refer to for the moment -- is the case of Hurst.
24 Now, there are a number of volumes of authorities.
25 We have provided two.

19

1 LORD JUSTICE SCOTT BAKER: I am not certain if I have them
2 all here.
3 MR MANSFIELD: There is an index.
4 LORD JUSTICE SCOTT BAKER: It may be that they are in my
5 room. I think they are. Yes.
6 MR MANSFIELD: When it comes, it is divider 42 in the second
7 volume.
8 LORD JUSTICE SCOTT BAKER: Thank you.
9 MR MANSFIELD: May I just indicate that what I am intending
10 to derive from the speeches in the House of Lords in
11 relation to the case, I am not going to go into
12 the facts because again, each case is fact specific but
13 nevertheless, the observations made in the speech of
14 Baroness Hale and not demurred from others, in fact,
15 there is support in other speeches for what she says is
16 the scope.
17 LORD JUSTICE SCOTT BAKER: I think you refer to this in your
18 submissions.
19 MR MANSFIELD: We refer to it, we do.
20 But the particular passage which I would ask you to
21 bear in mind, because of what I want to submit today,
22 namely our submission primarily rests on the fact that
23 there is evidence from which a jury can infer that there
24 was an unlawful killing in either of the senses I have
25 already indicated.

20

1 LORD JUSTICE SCOTT BAKER: Yes.
2 MR MANSFIELD: And that derives, we say, from the structure
3 that we have put; in other words, leaving aside
4 everything that occurred before 30th/31st, leaving all
5 of that aside and looking at the immediate
6 circumstances, we say it is a perfectly proper approach
7 and was anticipated, as I say, by this particular speech
8 in relation to the way in which either Jamieson overlaps
9 or does not, the Middleton post Human Rights Act
10 situation.
11 Sir, do you have the bundle?
12 LORD JUSTICE SCOTT BAKER: No, it is being brought, but
13 I see exactly what you are getting at.
14 MR MANSFIELD: There is a paragraph which I could read.
15 LORD JUSTICE SCOTT BAKER: Yes, do. Which paragraph is it?
16 MR MANSFIELD: It is 22, addressing the "how" question.
17 "No one suggests --"
18 I think it is here now. Sir, this is the case of
19 Hurst. It is reported in 2007 2 Appeal Cases at
20 page 207 and it is paragraph 22.
21 LORD JUSTICE SCOTT BAKER: Yes.
22 MR MANSFIELD: And it is just this paragraph and a little of
23 the next one, but it is very short:
24 "No one suggests that this is an easy task, when
25 emotions and anxieties are so acutely aroused. But if

21

1 the Coroner had asked himself [that is in the Hurst
2 case] whether 'as many of the facts concerning the death
3 as the public interest requires' had indeed been
4 investigated in this case, he might well have reached
5 a different conclusion. The criminal trial had, of
6 course, dictated the verdict that Mr Hurst had been
7 unlawfully killed. But it had not revealed even as many
8 facts about the conduct of the police that night as
9 Mrs Hurst has now been able to discover. In particular,
10 there was the recorded view of Police Sergeant Mortimer,
11 who had good reason to judge, that Albert Reid was an
12 extremely dangerous man. There was the escalating
13 series of calls to the police as the evening wore on,
14 not all of which were referred to at the trial. There
15 were the reasons for the possession action against
16 Albert Reid, which had been heard and adjourned that
17 very day. All of this suggests that there was an acute
18 public interest, and not merely the private interest of
19 a grieving mother, in a full investigation of how it
20 came about that Troy Hurst met his death. This is so,
21 to my mind, irrespective of the Convention, but the
22 Convention values are also some guide to what facts it
23 is in the public interest to investigate. Although
24 the scope of the inquiry --"
25 And sir, it is fairly obvious that the authorities

22

1 make a distinction between the scope of the inquiry,
2 which may not be necessarily reflected in the scope of
3 the verdict, which he comes on to in a moment:
4 "... is for the Coroner to determine and his
5 decisions will rarely be subject to review, it is
6 difficult to imagine that any resumed inquest in this
7 case would not examine the conduct of the police and
8 the housing authority that fateful day if not before."
9 You will recall the issue was the extent to which
10 this individual, Mr Reid, could have been prevented from
11 the murder that he carried out had the warnings been
12 taken seriously or at least dealt with. Paragraph 23:
13 "There is nothing in Jamieson which precludes or is
14 inconsistent with such a conclusion. All that Jamieson
15 precludes is a verdict of 'unlawful killing caused or
16 contributed to by police neglect'. To be fully
17 compliant with article 2, some such verdict would have
18 to be available, as Middleton shows. But the
19 non-availability of such a verdict does not inexorably
20 lead to the conclusion that a resumed inquest would
21 serve no useful purpose."
22 Now, all of this is being said against
23 the background that is set out in the earlier paragraphs
24 and in particular, paragraph 21 on the previous page,
25 where it says:

23

1 "Jamieson was not directly concerned with the scope
2 of the inquiry at an inquest. This has always been
3 a matter for the Coroner to determine. The scope of the
4 inquiry is almost always going to be wider than
5 the verdict eventually reached ... To limit it to the
6 last link in the chain of causation would defeat
7 the purpose of holding inquests at all."
8 That is Sir Thomas Bingham:
9 "It is not only that the facts have to be fully
10 investigated in order to discover which of a variety of
11 verdicts is possible. The function of an inquest is to
12 investigate and, if possible, to answer four
13 questions... "
14 Which are well-known.
15 I do not read the rest but it is against that
16 background that a Jamieson style of, if I may put it
17 that way, inquest is entitled, plainly we say and
18 the other speeches which indicate a measure of agreement
19 in that regard are in fact Lord Rodger, paragraph 8 and
20 also Lord Mance and also Lord Brown in fact,
21 paragraph 34.
22 They have reservations but basically there is no
23 demurring that basic thrust of what a Jamieson inquest
24 may amount to.
25 Now, if therefore we are right about the scope of

24

1 the inquest itself, the question then is: having heard
2 the materials that relate to a chain of causation which
3 extends beyond the tunnel back up the expressway, as
4 I have already indicated, to the Ritz Hotel, then we say
5 the questions that we have set out on that particular
6 page, the first 17, all relate to that period.
7 They all relate to that date. And we say in fact,
8 I would adopt the approach that what happened before
9 we get even to the expressway and the Ritz is of
10 particular importance.
11 You will recall in your own opening you indicated
12 that the movements of Henri Paul or at least the actions
13 of Henri Paul in the hours that lead up to the
14 accident -- and I think you used the word -- are
15 "critical" for this jury to consider and we would submit
16 likewise. They are critical for the purposes of
17 shedding light on what happened in the tunnel and there
18 are a number of ways in which it may do that, of course.
19 So, may I move from the scope issue, which we say
20 those first 17 questions really are well within
21 the legitimate inquiry plus verdict in this case.
22 Then, to deal with the evidential threshold which
23 flows. Again, I am going to concentrate on just one or
24 two cases because they summarise the overall position in
25 the way that Hurst does in terms of the scope of

25

1 the inquiry and verdict.
2 Could I ask you to turn to the case of Cash, which
3 is also in the second volume and it is in divider 44:
4 this is one of many cases in which there is a review of
5 the authorities. This is a transcript and the date is
6 8th June last year before Mr Justice Keith in
7 the Administrative Court.
8 Once again, I am not going to go through the facts,
9 in order to save time, of that particular case but to
10 look at how the threshold is dealt with. That is at
11 paragraph 22 onwards. If I may run through -- I will do
12 it fairly quickly but we have here, I would submit, some
13 extremely important observations which apply to this
14 geographic and temporal area that I have defined in
15 the first place, in other words, the tunnel back through
16 to the Ritz.
17 The first part of it is the obligation on the
18 coroner to leave those verdicts and only those verdicts
19 which are properly open. Then there is reliance placed
20 and reference upon Galbraith.
21 Over the page, Galbraith is then set out. You are
22 very familiar with Galbraith and I do not intend to read
23 it out but what I do intend to do is just to remind and
24 I think it is educative just to remember what happened
25 in Galbraith because it is illustrative of exactly this

26

1 case in the sense that if the approach adopted by
2 Mr Burnett had been adopted in Galbraith, it would never
3 have gone to the jury.
4 We say what is happening here, the risk of what is
5 happening is an evaluation process which is doing
6 precisely that which has been prohibited by these
7 authorities, namely an usurpation of the jury's function
8 unless the evidence is either non-existent or so
9 inherently erroneous in the sense that it is incredible,
10 incapable of belief, unless it is in those categories,
11 then it is a matter for the jury.
12 Of course, this deals with the second limb and
13 particularly 2(b) and of course, it is in the context of
14 a criminal trial but this is the test that has been
15 relied on and is relied on in this very case, Cash.
16 It is this part of Galbraith --
17 LORD JUSTICE SCOTT BAKER: Where are we looking now?
18 MR MANSFIELD: Paragraph 22 of Cash, where the Galbraith
19 ruling is set out. I do not read it all out but
20 the part that is most important --
21 LORD JUSTICE SCOTT BAKER: Where does it begin.
22 MR MANSFIELD: Divider 44, paragraph 22, the second page of
23 paragraph 22.
24 LORD JUSTICE SCOTT BAKER: "There are two schools of
25 thought", is that it?

27

1 MR MANSFIELD: Just below that, "The answer the court
2 gave... "
3 Then it is 2(b):
4 "Where however the prosecution evidence is such that
5 its strength or weakness depends on the view to be taken
6 of a witness's reliability, or other matters which are
7 generally speaking within the province of the jury and
8 where on one possible view of the facts there is
9 evidence upon which a jury could properly come to
10 the conclusion that the defendant is guilty, then the
11 judge should allow the matter to be tried by the jury."
12 Sir, you will remember cases clearly where, at
13 the halfway stage, perhaps sometimes me but certainly
14 others --
15 LORD JUSTICE SCOTT BAKER: I am going to say, Mr Mansfield,
16 it must be rare that you are arguing this particular
17 side of this particular coin. It is usually the other
18 side.
19 MR MANSFIELD: Yes. I am intrigued by the possibility,
20 because I have normally lost and I have lost because --
21 and I understand why I have lost is the learned trial
22 judge will say to me: well, Mr Mansfield, that is one
23 possible view, there is another possible view. I will
24 then say: where there is equivocation, a jury can't
25 possibly be sure because there is another explanation,

28

1 and then the judge will say: that is a matter for
2 the jury.
3 So, that argument which, as I say, I have lost many
4 times, arises out of Galbraith for very good reason.
5 And if one looks just briefly at -- because someone just
6 passes it over and forgets what actually Galbraith was
7 dealing with, Galbraith is set out in the first volume
8 of authorities at divider 7.
9 I am only going to refer to the facts of this
10 because when Lord Lane applies that test to that case,
11 he deals with the evidence at page 1042. It is
12 divider 7, and it is in the Weekly Law Reports, 1 Weekly
13 Law Reports 1042.
14 This was an affray at a rowing club in Putney, or
15 possibly just a club, but certainly near the river in
16 Putney, where a number of people were concerned and
17 obviously there was a knifing and someone died. But
18 the position here is that the prosecution case is
19 summarised at G onwards, in other word was this
20 defendant present. This was the key point. Or was he,
21 as he was claiming, not present but downstairs in
22 the club? Really, what happens is of interest:
23 "There were two principal pieces of evidence called
24 by the prosecution which tended to disprove that
25 assertion [namely that he was downstairs] and to show

29

1 that he was in the bar taking an active part in the
2 affray. The first was a witness called John Gilette.
3 He said that Darke had attacked Bindon and that at that
4 time there were three men with Darke. They all had
5 knives. He then described the three men. One
6 description plainly referred to Begbe, another to Bohm
7 and the third was an accurate description of the
8 applicant. These men were described by Gilette as
9 standing by the fight watching with knives out in
10 a threatening way. He had attended an identification
11 parade on February 19th 1979. On that parade
12 the applicant was standing. Gillette however said he
13 was not able to point out anyone on that parade whom he
14 recognised as having been in the club that night."
15 That is of interest because what it is saying is
16 that one of the witnesses failed to identify. Clearly
17 that is a defect but it is not so inherent that it
18 destroys but it weakens it considerably, that he has not
19 identified, so one is having to rely on a description --
20 we don't know what it was -- which may or may not be
21 accurate. The learned judge is saying there that it was
22 an accurate description of the applicant.
23 That is one point one but of course one does not
24 take it in individual compartments:
25 "The second piece of evidence was from a witness

30

1 called Cook. He was the doorman of the club and was a
2 very reluctant witness. Leave was eventually given to
3 treat him as hostile."
4 So there is the second difficulty:
5 "Cook described how the applicant, or a man who,
6 from the description given by Cook, was plainly and
7 admittedly the applicant, had signed Darke and Begbe
8 into the club at about 4.15 pm."
9 So, he is in the club. The question is obviously if
10 he provoked the affray:
11 "At 6.15 pm, he heard glass breaking and people
12 shouting in the bar, so he went upstairs. When he got
13 there, Dennis had told him that he had been stabbed and
14 pointed to a group of people standing by the jukebox.
15 This group was described by Cook as being 'John Darke's
16 party, the man with the beard, the fair-haired chap and
17 the bloke with the twisted nose'. The reference to
18 the fair-haired chap was plainly intended to be
19 a reference to the same person as had signed the other
20 two in at the door two hours previously, namely,
21 the applicant. In cross-examination he said that he
22 could have been mistaken in thinking that the fair
23 haired man with Darke by the jukebox was the same blond
24 man who signed them in."
25 So here, a hostile witness, so therefore what

31

1 evidence he actually gives plainly has to be treated
2 with caution. He is saying that he may be mistaken and
3 so forth.
4 So, these are deeply flawed identifications on a key
5 issue but it is not being, as it were, withdrawn on that
6 basis; in other words, inconsistences or deficiencies or
7 defects.
8 There is another piece which is added to those two,
9 a further witness called Stanton who gave evidence:
10 " ... when Darke was attacking Bindon, as Bindon lay
11 on the floor, a little guy went up to Darke and said,
12 'Stop it, John, you'll kill him'. This man was
13 described by Stanton in a way which would fit
14 the applicant. However, in cross-examination, Stanton
15 said the little guy was not the applicant."
16 Now, if the approach adopted, as I said, by those
17 who say there is no evidence because of matters like
18 that, because I want to look a little more carefully at
19 what the evidence is that relates to the tunnel and
20 before, then clearly the Galbraith example would never
21 have reached the jury in the first place; in other
22 words, one has to be incredibly careful to avoid
23 stepping into the jury's arena and it has to be either
24 no evidence at all or essentially completely destroyed
25 evidence which is not capable of belief.

32

1 We say neither of those criteria apply to this case.
2 May I just go back to Cash to, as it were, round
3 these points off, because there is a summary here.
4 Divider 44 in the second volume: having dealt with
5 or at least referred to Galbraith, there is then
6 the exhortation from Palmer which is well-known to you
7 at paragraph 23. I refer to it in other contexts as
8 the evaluation direction:
9 "In a difficult case, the Coroner is carrying out an
10 evaluation exercise. He is looking at the evidence
11 before him as a whole and saying to himself [and this is
12 the important paragraph], without deciding matters which
13 are the province of the jury, 'is this a case [another
14 formulation] where it would be safe for the jury to come
15 to the conclusion that there had been an unlawful
16 killing?'"
17 And many of the formulations essentially come down
18 to the same thing at the end. Then it goes on:
19 "If he reaches the conclusion that, because the
20 evidence is so inherently weak, vague or inconsistent
21 with other evidence, it would not be safe for a jury to
22 come to the verdict, then he has to withdraw
23 the issue... "
24 Then he deals with the Wednesbury principles. Then,
25 in paragraph 24, it is an important point being made

33

1 here. It had been made in earlier cases but now there
2 is clarification:
3 "It is possible to argue that Lord Woolf was saying
4 that the Galbraith test was not the appropriate test for
5 a coroner to apply when considering whether a verdict of
6 unlawful killing should be left to the jury. After all,
7 according to Galbraith, the question is not so much
8 whether it would be unsafe for the jury to convict, but
9 rather whether there was evidence on which the jury
10 could convict. But Lord Woolf made it clear in
11 [Douglas-Williams] ... that the Galbraith test was to
12 apply. At page 349A, he said that 'A coroner should
13 adopt the Galbraith approach in deciding whether to
14 leave a [particular] verdict '... He then returned to
15 the ambit of the limited discretion which the Coroner
16 enjoys in this area."
17 And there is then that passage which indicates
18 a slightly broader discretion which has then been
19 referred to in a number of cases, I do not read it out
20 but the conclusion in Cash at paragraph 24.
21 Lord Woolf was not saying in Douglas-Williams that
22 there may be circumstances in which a verdict of
23 unlawful killing should not be left to the jury, even if
24 such a verdict would be open to the jury to reach on the
25 application of the Galbraith test, if he had been saying

34

1 that, it would have been necessary to consider whether
2 that guidance should be refined in those cases where the
3 inquest is intended to be the mechanism by which the
4 obligation under article 2 was to be discharged. What
5 Lord Woolf was saying in Douglas-Williams is apparent
6 from the issues in that case, complaints about the way
7 in which the Coroner had left to the jury two different
8 species of unlawful killing: unlawful manslaughter and
9 gross negligence manslaughter, and his refusal to leave
10 a verdict of neglect to the jury.
11 Accordingly, Mr Justice Leveson, as he then was, in
12 Sharman -- that is the chair leg case where Harry
13 Stanley was shot by police officers -- Lord Woolf was
14 doing no more than saying that the Coroner should,
15 within the spectrum of different verdicts open to the
16 jury, decide which realistically reflected the thrust of
17 the evidence. I do not repeat the rest.
18 So, in other words, a discretion to withdraw
19 a legitimately open verdict only really arises where you
20 are dealing with alternatives that might arise out of
21 the same evidence, a jury might be confused if they are
22 having to face a number of technically available
23 verdicts. I do not think that that is going to arise in
24 the context of the arguments that I am putting today.
25 But what we do say is that the Galbraith test at the

35

1 end of the day is the proper test and if one goes back
2 to Galbraith itself, it has to be, we say, respected,
3 for what it was indicating was the province of the jury
4 and the province of the learned judge.
5 And in fact, one other matter in relation to this
6 aspect of the law, there are other formulations. May
7 I just ask you to look at one formulation that arises in
8 another bundle --
9 LORD JUSTICE SCOTT BAKER: Is this Lord Justice Waller?
10 MR MANSFIELD: I do not think it is. May I check? No,
11 it is Mr Justice Collins in a case of Anderson which is
12 the Roger Sylvester case of a man who was taken -- he
13 was suffering from various psychiatric problems -- to
14 a hospital in North London in Tottenham by police and
15 the real issues -- I can do it very shortly.
16 It is divider 8 in my learned friend Mr Horwell's
17 bundle. That is where you will find the actual report.
18 It is November 2004, before Mr Justice Collins,
19 26th November 2004, divider 8.
20 Again, I do not read out the facts to save time, but
21 I have briefly summarised them.
22 LORD JUSTICE SCOTT BAKER: Yes.
23 MR MANSFIELD: The same cases are being referred to by
24 Mr Justice Collins, namely Palmer and so forth, and
25 Galbraith. Paragraph 30 onwards. The key paragraph for

36

1 my purposes in terms of another formulation which helps
2 to distil the approach is paragraph 31.
3 LORD JUSTICE SCOTT BAKER: Yes.
4 MR MANSFIELD: "In considering ground 1, I must be careful
5 to remind myself of whether I would have reached
6 a verdict of unlawful killing is not relevant.
7 The question is whether there was material on
8 a reasonably possible view of the witnesses' evidence
9 upon which the jury could have decided that unlawful
10 killing was proved."
11 Now, may I adopt that as another formulation, that
12 if applied to this case, we would submit there is
13 evidence or material as it is called there, on
14 a reasonably possible view of the witnesses' evidence
15 and I will indicate which the witnesses are.
16 LORD JUSTICE SCOTT BAKER: Yes.
17 MR MANSFIELD: Then he goes on to say the sort of evidence
18 he has looked at and so on:
19 "I shall concentrate on the 20 minutes of restraint
20 while he was in the 136 room [that is the detention
21 room] in the hospital."
22 The important question is set out in 32 as it to
23 the facts in that case:
24 "The important question was whether there was
25 evidence from which the jury could properly decide that

37

1 Roger [that is Sylvester] had been deliberately held
2 prone face down for a sufficient time to reduce
3 the oxygen in the blood and thus to have contributed to
4 his cardiac arrest."
5 And then it is case-specific, so I do not go any
6 further.
7 That formulation is just saying the same thing in
8 a different way, but it does highlight the approach
9 we would say and it is also reflected in the original
10 Galbraith decision.
11 Sir may I then, in the context of all of that then
12 turn to the material, if I can use that word, or
13 the evidence in this case?
14 LORD JUSTICE SCOTT BAKER: Yes.
15 MR MANSFIELD: I am going to concentrate on the geographic
16 and temporal area that I have indicated, as it were:
17 the tunnel backwards and so on.
18 As far as the tunnel is concerned, we say in fact
19 what was seen by eye witnesses in this case is of
20 considerable importance. We say it is important because
21 if it is being said that pursuing vehicles do reach
22 the necessary threshold for unlawful killing/gross
23 negligence, then it is a very fine line between that, if
24 those vehicles do cross that threshold, in terms of
25 determining what the intention was.

38

1 Was it merely careless or was there, as we suggest,
2 the evidence could provide in this case to be sure that
3 it was not just an accident. So that is the way we put
4 it.
5 And the key witnesses we mentioned, but I am going
6 to ask in view of the way Mr Burnett and others may put
7 it here, to concentrate on the four witnesses at
8 the heart of this matter. We mentioned them on page 15
9 and may I outline the four that I mean: they are the two
10 in a car travelling in the opposite direction who we say
11 had a ringside seat. They are Benoit Boura and
12 Gaelle L'Hostis. Those are the first two.
13 The other two are Mr Partouche and Mr Gooroovadoo.
14 Now, all of those names are set out on that page, 15, in
15 our written submissions at paragraphs 30 and 31.
16 The reason we have not selected those four, they
17 selected themselves in one sense and they were subject
18 to garde a vue. They were the four that the French
19 police took into detention straightaway in order to get
20 their accounts.
21 LORD JUSTICE SCOTT BAKER: What are you suggesting actually
22 happened?
23 MR MANSFIELD: I will put it in a nutshell. What actually
24 happened that they say they saw and they mapped out on
25 those diagrams that the jury have in their jury bundle

39

1 is that they come into the tunnel -- and
2 the descriptions they give, which need to be reflected,
3 it is not just saying it in this way but the actual
4 detail is important: they say they see the Mercedes --
5 of course at that stage they don't know it is the
6 Princess's Mercedes -- and it is very close to the 13th
7 pillar, although they did not count it.
8 LORD JUSTICE SCOTT BAKER: Yes.
9 MR MANSFIELD: They see the Mercedes and in front of the
10 Mercedes is a dark car. One of them gives the very
11 specific description, a Berlingo. And you remember
12 I produced a photograph of --
13 LORD JUSTICE SCOTT BAKER: So the killer is the driver of
14 the dark car?
15 MR MANSFIELD: No, I have not quite finished.
16 I am not compartmentalising plainly --
17 LORD JUSTICE SCOTT BAKER: No, but one has to rationalise
18 this from the point of view of explaining it to
19 the jury. So far, we have really been running on the
20 basis that there was a collision with a white Fiat Uno
21 and --
22 MR MANSFIELD: If I may say so, we have passed that period.
23 The evidence now that we are confronting with this jury
24 and of course yourself have to deal with with this jury,
25 we are not locked into some timeframe that may have

40

1 existed 10 months ago. The white Fiat hardly features
2 in these submissions.
3 LORD JUSTICE SCOTT BAKER: Just a little minor collision.
4 MR MANSFIELD: That is what the experts say, it is not what
5 I say.
6 LORD JUSTICE SCOTT BAKER: No collision at all?
7 MR MANSFIELD: A glancing blow. I am not dealing with the
8 white Fiat.
9 LORD JUSTICE SCOTT BAKER: The Fiat is there, it is in
10 the evidence, the jury have if and the evidence is
11 undisputed about it, that there was a 17-centimetre
12 overlap collision.
13 MR MANSFIELD: Yes, a 17-centimetre. We have attached to
14 the back the cross-examination that I did of two experts
15 putting this scenario to them.
16 LORD JUSTICE SCOTT BAKER: Was the Fiat involved in
17 the plot?
18 MR MANSFIELD: No. The scenario I have put and it is in
19 there and they have accepted it, that the Fiat Uno is
20 not the cause of any loss of control. I made that very
21 clear. So, I would ask you and I am not suggesting that
22 the Fiat Uno or its driver are guilty of possibly
23 anything and I do not think that Mr Burnett is advising
24 you that it is, so reading these written submissions,
25 you will have noticed that that is not a position -- and

41

1 it was not a position in fact, interestingly, that I was
2 putting, even then, that is last year, to the two
3 experts called on your behalf in relation to this. That
4 is Mr Read and so forth.
5 LORD JUSTICE SCOTT BAKER: The trouble is that conspiracy
6 theories are rather like the many headed Hydra. You
7 take one off and the next one pops up.
8 MR MANSFIELD: That is not fair, if I may say so. what we
9 are doing here is examining what happened in the tunnel
10 and one is not starting from any particular preconceived
11 notions and I am trying to approach this objectively as
12 to what the evidence suggests.
13 LORD JUSTICE SCOTT BAKER: Right. Unfair comment.
14 MR MANSFIELD: Yes, if I may say so. So one stands back for
15 the moment and looks at: these are the four witnesses
16 who are key. There is a dark vehicle in front and it is
17 described by one of these witnesses very specifically,
18 the words are changed but it is "blocking", "impeding",
19 or whatever, is the word being used, in front.
20 Then there is a motorcycle directly behind,
21 "tailgating" is the word that is used.
22 LORD JUSTICE SCOTT BAKER: Judge.
23 MR MANSFIELD: So the Mercedes at that point is sandwiched
24 between two vehicles and I am going to have to ask you
25 to look at what Mr Boura and L'Hostis say because what

42

1 they actually indicate and certainly one of them very
2 clearly is that the Mercedes actually came into contact
3 with the car in front from behind.
4 And then hit the 13th pillar and then went across
5 the road. So the question is -- and we would submit,
6 it is impossible to say that this was just an accident.
7 It may be, it may not be. And it is equally possible --
8 and I have not really gone beyond that for the moment --
9 that this was a deliberate set of circumstances
10 established by the driver of the dark car that then
11 accelerates away and has never been traced. That is
12 the cross-examination I put -- months ago or a long time
13 ago, weeks ago -- to Mr Mules. And it has been repeated
14 to another witness since that that driver and that
15 vehicle have never been established, followed by
16 a motorcycle which has also never been traced.
17 Now, these vehicles cannot have been paparazzi, for
18 a number of reasons which we have set out but I will
19 deal with them very carefully. The first reason is that
20 nobody suggests, least of all Mr Carpenter, that there
21 was a member of the paparazzi in a car who had managed
22 to accelerate away and get in front of the Mercedes at
23 any stage, and of course none of the paparazzi said they
24 did anyway. So that first car is not paparazzi.
25 The motorcycle we say is also not paparazzi because

43

1 the only motorcycle -- and you will know from
2 the summary we have had and it is in divider 29 in
3 the jury bundle that the only motorcycle that is
4 a contender for being close to the Mercedes at one or
5 the other time is of course the Rat/Darmon motorcycle,
6 which means two people.
7 Boura and L'Hostis, who gave their statements on the
8 night do not indicate -- in fact L'Hostis, indicates
9 that there is only one person on this motorcycle.
10 We say once again, although the paparazzi may well
11 have lied and Mr Darmon who at least gave evidence in
12 this instance, and I cross-examined Mr Darmon about
13 where he was in this incident, he claims he is nowhere
14 near. He claims he only sees the disappearing lights of
15 the car going into the tunnel when he is just emerging
16 Alexandre III tunnel on the expressway. That is what he
17 says.
18 Now, others have observations about that and I do
19 not take it any further, except that on the Galbraith
20 test, a jury has to begin the process of assessing
21 whether what happened in the tunnel which has been, as
22 I say, aptly described in graphic form on those maps
23 that both of them, that is these two witnesses, filled
24 in on the night and of course, their actual evidence in
25 relation to this is not only important in relation to

44

1 what they saw the vehicles doing in the tunnel, it is
2 also important in relation to what they say they saw
3 vis a vis a flash.
4 This cannot be dismissed. I appreciate there will
5 be observations made about Mr Levistre and another
6 witness. However, he is not in the Galbraith category
7 of being totally incredible. Well I see certain smiles
8 arising. But when Mr Levistre --
9 LORD JUSTICE SCOTT BAKER: I would be pretty reluctant if
10 I was a judge in a criminal case to leave a case to
11 the jury on the basis of Mr Levistre's evidence.
12 MR MANSFIELD: I accept that. You would be reluctant but
13 you might revise the reluctance in the light of what
14 other witnesses say they saw: in other words, that he
15 does not stand alone. I would remind you that when
16 Mr Levistre gave his evidence, nobody in this room
17 challenged what he said about seeing a flash and
18 the reason they did not is that he said that from
19 the beginning. In other words, his very first
20 statement --
21 LORD JUSTICE SCOTT BAKER: Yes, but his flash, even on
22 his evidence most favourable to you, came from
23 a motorcyclist in front of the Mercedes.
24 MR MANSFIELD: Yes.
25 LORD JUSTICE SCOTT BAKER: And then he saw two people on the

45

1 motorcycle that had been the result of the flash
2 disappearing out of the tunnel not carrying anything.
3 So what the flash would have been made with is unknown.
4 MR MANSFIELD: These matters happen in matters of seconds.
5 What a jury would be entitled to consider is clearly all
6 those questions but we say it is not a basis for saying
7 they cannot consider it at all because, for example, you
8 or anyone else has come to conclusions about whether
9 that can be sustained or not. The question is: is there
10 any corroboration for what Levistre says from the
11 beginning on the night he saw and he is another witness
12 who gives an early statement, unchallenged. If it was
13 going to be challenged, either by those who represent
14 you or anybody else, these are questions plainly in
15 a sense that should have been put to him on the basis
16 that he could not have seen it. There is not a single
17 question to Mr Levistre, on that basis.
18 So if it is now going to be said that none of these
19 questions were asked of Mr Levistre, but we are going to
20 ask you to dismiss it. So we would say care has to be
21 taken if that approach is to be adopted.
22 However, the two witnesses I am concentrating on at
23 the moment, Mr Boura and his partner, Gaelle L'Hostis,
24 one of them deals with the question of a flash and they
25 are not alone, because I have not even reached the other

46

1 witnesses who deal with this.
2 Sir, may I ask you -- and it is only in this context
3 and it is in a sense extremely important -- to look at
4 exactly what they did say.
5 LORD JUSTICE SCOTT BAKER: If you give me the reference.
6 I am very conscious of the time.
7 MR MANSFIELD: Yes, I am sorry. I will do it as quickly as
8 possible.
9 Boura gave evidence on 24th October and the evidence
10 that is relevant to this he gives on page 43 and 44
11 onwards. I will just read a part of that. He deals
12 with a question in relation to flashes or lights and so
13 on:
14 "Question: Can you describe what those flashes
15 seemed like?
16 "Answer: No, I could not say whether they were
17 coming from speed cameras."
18 Well, we know there were not any there:
19 "Or were they just flash lights?"
20 In other words, he is talking about something rather
21 more significant and distinct than a passing car or
22 the lights from the tunnel. Then he is asked to look at
23 a statement and he says when he looks at the French:
24 "Violent flashes."
25 And he says this:

47

1 "Answer: Having been a driver in the Army,
2 I thought right away they could have been speed camera
3 flashes."
4 That is precisely the wording that Levistre is using
5 to describe what he saw. In other words, it is
6 interesting that two witnesses dealing with the flash
7 consider that it might have been a radar flash when in
8 fact we are told there was not one in operation that
9 night, even though they might have them sporadically on
10 other nights.
11 Then he is asked when he saw them and he said:
12 "Answer: I saw the flashes before I got in
13 the tunnel and the crash when I was about a third of the
14 way into the tunnel."
15 That is what he said, on page 45.
16 May I read his description, because we would submit
17 his description of what he says has to be placed before
18 the jury and then the question is: is it really to be
19 said that this does not provide any evidence in relation
20 to a deliberate action? After the flashes, he then
21 hears sounds:
22 "Answer: ... the sound of a small impact.
23 "Question: Did you hear the screeching of tyres?
24 "Answer: Yes, that is what I heard. Then I saw
25 the car sliding."

48

1 Then he goes into this description:
2 "Answer: I first heard the tyres and then
3 the impact. So I heard the screech of tyres and right
4 after it, a first impact. That was not a violent at
5 all."
6 And he is reading it from a statement:
7 "Answer: Thinking about it afterwards, I took that
8 for an impact between two vehicles, bumper to bumper not
9 involving metal ...
10 "Question: What did you see in the opposite lane?
11 "Answer: Well, a car that bumped into another and
12 then bumped into a pillar in the tunnel."
13 Is all of this to be discounted because if he is
14 right, then this crash has a major contribution being
15 made by the presence of these vehicles. And he talks
16 about a skidding movement, sliding in one direction
17 and --
18 LORD JUSTICE SCOTT BAKER: Mr Mansfield, this is all covered
19 in summary form and pretty broad detail too in your
20 written submissions.
21 MR MANSFIELD: Yes.
22 LORD JUSTICE SCOTT BAKER: You are really not entitled to
23 address the Coroner on the evidence. I appreciate you
24 will say that this is really attached to the legal
25 submission but I have it that you rely on Boura and on

49

1 Partouche and on Moufakkir. You don't refer to Anderson
2 in your submission.
3 MR MANSFIELD: No. I do not.
4 LORD JUSTICE SCOTT BAKER: I do not know if you are relying
5 on him or not?
6 MR MANSFIELD: I am not. I am not saying one way of the
7 other; I am neutral about Anderson. I have not
8 positively asserted him in relation to that because
9 there are serious question marks over whether he was
10 actually present in the light of what the French officer
11 had said.
12 So, trying to be realistic about it, I have left him
13 out of account. The jury may not. But I have
14 concentrated on those witnesses who cannot be left out
15 of account in my submission. And the features of what
16 they each say and I am sorry to have to take time --
17 I would not have taken any time at all, but if I am
18 facing a submission which is an evidential submission,
19 that there is no reasonably possible view that this
20 could have been, and a jury could find, that this was
21 a deliberate series of acts.
22 Of course, the reason why we go back down
23 the expressway is of course Partouche talks about
24 flashes. Partouche talks about blocking vehicles and
25 pursuing motorcycles and once again we say not

50

1 paparazzi. And then you go back further down
2 the expressway to Mr Hackett and he has done a diagram
3 with a semi-circle of motorcycles, you may recall, on
4 his plan.
5 Then you go back down the motorway and very recent
6 evidence is this, that you heard this week. It may not
7 perhaps have seemed significant when I asked
8 the questions about it and that is Mr Lucard at the rear
9 of the Ritz.
10 What is going to be said about this? He is
11 imagining it? No, I do not think so. Nobody suggested
12 that he was. He said it from the beginning that when he
13 was at the back and when the car took off, that is
14 the Mercedes, there were three motorcycles. One,
15 interestingly, can be identified and was identified by
16 him: Benhamou. And two others.
17 And the two others are not paparazzi, which means
18 that from the moment the Mercedes -- and we are only
19 dealing with minutes here from leaving the rear of the
20 Ritz to ending up in a crash in the tunnel, there are
21 therefore unidentified motorcycles for some reason
22 pursuing this Mercedes. There are more motorcycles at
23 the Hackett point, more motorcycles at the Partouche
24 point and motorcycles right through to Boura.
25 Now, we say this lays the foundation for a possible

51

1 view here that this was a deliberate set of
2 circumstances. We have used the word "staged accident"
3 just as a sort of shorthand version for describing that
4 series.
5 The fact is that those early witnesses -- Lucard was
6 not an early witness but in any event, the others were
7 all seen on the night. As you have pointed out many,
8 many times and everybody accepts, the first
9 recollections are normally -- there are exceptions --
10 the most accurate and if you have four witnesses talking
11 about flashes, if you have four witnesses talking about
12 the motorcycle and the blocking car and I am summarising
13 it for the moment, they put it in slightly different
14 ways and then you look at what Mr Levistre says, there
15 is just in the tunnel itself a very real possibility on
16 one possible view of the facts. That is how we put it.
17 I am not going to read out the other passages but
18 I would ask, before any decision is come to in
19 the tunnel, that you do re-evaluate what they actually
20 have told this jury because, in my submission, the jury
21 are going to have to be reminded in, we would submit,
22 a little detail about the most significant witnesses
23 because they are the most relevant witnesses to this
24 inquest and to the crash itself.
25 Sir, I do not know whether -- I have another section

52

1 to deal with, that is the Ritz section, which I have put
2 on the list --
3 LORD JUSTICE SCOTT BAKER: You have already used up an hour
4 and twenty minutes.
5 MR MANSFIELD: I did warn people. I said originally
6 we would try to divide it equally and I hope I have done
7 that. But it has been indicated to me that I can use
8 a little bit of time that others may have used. I do
9 not want to pin them to times but if I may, perhaps it
10 would be convenient to have a short break now and then
11 I will be another ten minutes.
12 (11.20 am)
13 (A short break )
14 (11.30 am)
15 MR MANSFIELD: Sir, the quickest way for me, if I may, to
16 summarise the second part of this, namely I have gone
17 back up the expressway past Hackett past Lucard, into
18 the hotel and the earlier part of the day, is to look at
19 page 144 of our submissions where we have set out under
20 the heading for convenience "Henri Paul", bearing in
21 mind how you put it in your opening, and that we have
22 put there 8 to 17 questions.
23 I would like to highlight what we say we have
24 endeavoured to do very carefully in the substance of
25 the text is to map out very carefully what Henri Paul

53

1 was up to, because we accept, as you put in opening, his
2 activities and movements are critical in relation to
3 what happened in the tunnel.
4 "Question number 8: where was Henri Paul between 7
5 and 10?"
6 Well, we can deal with that very quickly, no one
7 actually knows. The most recent evidence you have heard
8 this week, which is not referred to in the substance but
9 is in the addendum is that the question is even bigger
10 than it was originally because we say that M Roulet is
11 plainly unreliable in relation to the sighting in
12 the Bourgogne bar because the bar staff themselves say
13 Henri Paul was not there on that day and we now have his
14 mobile telephone records.
15 It seems most unlikely that he saw Henri Paul on
16 that evening, even for a few minutes when he is making
17 phone calls at almost the same time to his home address.
18 But the significance is that he is either at home
19 and not answering, which is unlikely, or he is not
20 there. And of course, the evidence that was read to you
21 of Morere supports that: a close friend who had rung him
22 during the day to invite him to dinner, no reply. He
23 had rung him again in the evening to see where he was,
24 no reply.
25 The overall significance, it is, we would say, most

54

1 unusual that he cannot be found at all when he cannot be
2 far away because the car is parked outside the bar.
3 LORD JUSTICE SCOTT BAKER: What are you inviting the jury to
4 conclude was happening?
5 MR MANSFIELD: What I would invite the jury to conclude was
6 happening may be, we have heard some evidence but it has
7 not gone any further, for example from Mr Posner, was
8 that he was during this period close to the hotel in
9 contact with somebody who provided him with a large sum
10 of money, because the large sum of money plainly does
11 not come from his activities at the hotel that day.
12 They are not tips arising from that day, so why does he
13 have the 1,200 francs? A question that has been asked
14 throughout.
15 Of course, no one sees him getting the money. It is
16 not taken out of any bank account. He has cash, a large
17 sum of cash and we say he has gone expecting not to come
18 back on duty but when we see him returning to the hotel,
19 he is in the same clothes --
20 LORD JUSTICE SCOTT BAKER: What has he been given the large
21 sum of money to do?
22 MR MANSFIELD: If I fill in the gaps, which we have here,
23 we submit there is a real possibility here that he was
24 in fact meeting people who wanted to know the movements
25 of Diana and Dodi and in fact, even on the Posner

55

1 account, the question of Diana and Dodi being in Paris
2 was discussed, although the detail is not clear. And
3 it is third hand anyway. So therefore we say there is
4 a significance and of course, I am not wanting to ask
5 the jury to, as it were, engage in wild speculation.
6 The fact is as with the circumstantial evidence that
7 is often placed before juries, and you have seen how
8 we would ask for a direction on circumstantial evidence
9 they would have to consider this, plus the presence of
10 cash on him later -- that is question 9 -- as to what
11 was he doing.
12 It may be impossible to answer what he was exactly
13 doing but that in itself raises a real problem here:
14 there is something unusual about this evening in
15 relation to Henri Paul. And we say of course that links
16 into question number 10: is this of significance, that
17 you cannot tell where he was or what he was doing but he
18 has a large sum of money, which is question number 11.
19 That is linked to number 12. You are very familiar with
20 that, I do not take it in any great detail, the seven
21 credits.
22 We say these are extremely important credits going
23 into his account. They are rounded figures, they are in
24 three different accounts, one of which was opened just
25 shortly before and during the period that is specified,

56

1 May, June, July and August of 1997. It is merely
2 a background indicator that Henri Paul plainly we say
3 had a source of income that actually arose on that night
4 we say, 7 to 10, when he has a large sum of cash upon
5 him.
6 Going further down the list, we get even more
7 crucial decisions which we say again you have
8 highlighted in your opening that the jury would have to
9 consider and of course question number 14, 15, 16 and 17
10 has been carefully analysed by us using Mr Carpenter's
11 excellent work, which we all appreciate, in relation to
12 the CCTV.
13 Because you will recall the CCTV in fact -- I see
14 him smiling there, it has been extremely useful --
15 the CCTV that was shown to Rees-Jones and Wingfield
16 plainly undermined what they had thought they had seen
17 and it was the only question that the jury have asked
18 that I recall during the whole of this inquest. It
19 related to Rees-Jones and it was: was he entitled to see
20 certain materials before he gave evidence. Because
21 it was perfectly clear that the account that he had been
22 giving of Henri Paul popping in and out of the
23 Imperial Suite was complete nonsense.
24 LORD JUSTICE SCOTT BAKER: So somebody out there you say is
25 wanting to kill Diana and Dodi, or just Diana or cause

57

1 them an injury --
2 MR MANSFIELD: Or, which is the manslaughter --
3 LORD JUSTICE SCOTT BAKER: -- teach them a lesson?
4 MR MANSFIELD: Yes.
5 LORD JUSTICE SCOTT BAKER: Frighten them?
6 MR MANSFIELD: Yes.
7 LORD JUSTICE SCOTT BAKER: Or whatever. And this
8 unidentified person out there, either himself or through
9 somebody else, gets hold of Henri Paul, says "Here is
10 12,560 francs, just tell me where they are going
11 tonight", and Henri Paul says, "Actually, they are going
12 to Rue Arsene Houssaye", "Well, would you mind going
13 through the tunnel instead of the way you would normally
14 go?".
15 MR MANSFIELD: It cannot work like that at that stage. He
16 would not have known that they were going back to
17 the Ritz. He would not have known then, in the 7 to 10
18 period, that he would be recalled to the Ritz. At that
19 stage, all he can be saying to them is yes, they are in
20 Paris and in fact, they are not staying at the Ritz,
21 they are staying at Arsene Houssaye and as far as
22 I know, they have gone out to dinner tonight.
23 The development that is important is that somebody,
24 Tendil, finally gets through to Henri Paul, when nobody
25 else can be, and he is back at the hotel within six

58

1 minutes. What happens after that, and I am going to
2 summarise it, and you have seen it on the CCTV and
3 it was the only reason that I requested that
4 Mr Carpenter's compilation CCTV of Henri Paul's
5 movements was shown to the jury, is you see Henri Paul
6 arriving back and yes, he may have been different to
7 the behaviour that he had earlier, but the one thing
8 that he does do is he controls the whole situation from
9 the moment he gets back, whether it is bodyguards in
10 the bar, going upstairs where the bodyguards are, going
11 out the back, going out the front, addressing
12 the paparazzi and so forth.
13 Now, the key decision here we say, and it is
14 exceptional, and the jury know this now, we have it time
15 and again, Henri Paul does not drive these -- not
16 intended to drive, should not be driving, he is
17 perfectly competent. I make no observation building
18 society that. We are not suggesting of course that he
19 was drunk or any of that. That is obviously for Mr Keen
20 to deal with. But we also support the fact that there
21 was no evidence to suggest that he was drunk in such
22 a fashion that his driving would be or was impaired. We
23 are not suggesting that alcohol played a part.
24 What we do say played a part is Henri Paul himself,
25 because the one thing he had to do exceptionally was to

59

1 drive the Mercedes. How does he do that? And what we
2 know now, very carefully we have gone through the CCTV.
3 The one person who did not tell him to drive was
4 Dodi. We know now there was no communication at any
5 stage between Dodi and Henri Paul and in fact the only
6 communication from Dodi to anyone comes at a stage which
7 is far too late. It is the 28 seconds and even that,
8 we say, does not indicate the nature and --
9 LORD JUSTICE SCOTT BAKER: So when does the accident stager,
10 if I can call him that, get Henri Paul to drive through
11 the tunnel?
12 MR MANSFIELD: Right, well that happens -- it is at half
13 past ten. He comes back at 5 past 10, roughly speaking.
14 He is in the bar and other places and he meets Rocher
15 coming down the stairs twice. In fact, it is the second
16 occasion and Mr Carpenter, and I accept this, indicates
17 that that is when he believes that Mr Rocher comes down
18 from the Imperial Suite and says to him in confidence,
19 "Third car out the back". He does not say which car,
20 he does not say who is to drive it. He is very specific
21 about that.
22 Henri Paul hangs on to that and we say what he
23 decides from that moment onwards is that he, Henri Paul
24 is going to drive that car. Within minutes of being
25 told at 10.30 that there is going to be a third car

60

1 leaving to go to Arsene Houssaye, he goes out to his
2 first visit to Place Vendome and what happens? He is
3 not addressing the paparazzi. He disappears for
4 the longest period of time offscreen. We don't know
5 exactly where he went. We asked questions about public
6 telephone boxes and we know there is one very close,
7 three minutes away.
8 If he is going to make contact with somebody in
9 order to indicate: "Actually, they are going to be
10 leaving from the rear, I know that, because I have just
11 been told it and I am going to do the driving", that is
12 when matters escalate and that is why it is so important
13 then to look at who decided which car would be used. It
14 certainly was not Dodi. Who decided that he would
15 drive? It certainly was not Dodi. And who organised
16 the decoy cars? It certainly was not Dodi. Who is
17 doing the organising, CCTV? It is Henri Paul. He does
18 all of it.
19 Interesting small bit of evidence this you had this
20 week, from Lucard again and he was asked, carefully:
21 when were you told that Henri Paul was going to do
22 the driving? He was told by Musa before midnight.
23 Which means once again it is before the 28 seconds,
24 which comes after midnight, when the bodyguards speak to
25 Dodi for the first time.

61

1 Therefore we say that is the final sealant on the
2 answers to this, as it were, package of questions that
3 we have put here. There is a clear indication that
4 the behaviour of Henri Paul, which obviously has to be
5 looked at for other reasons as well -- I appreciate that
6 and other allegations that are being made. But in
7 relation to who is controlling the scene, there is only
8 one person and in answer to your questions that you set
9 in opening, the critical questions in relation to any
10 plan is Henri Paul and driving, the answer to that is
11 Henri Paul has exceptionally taken the wheel of all
12 the events and the car itself.
13 Now, I recognise in a sense in developing all of
14 this, one is walking down a path that I do not have
15 to -- in this case, I am not a prosecutor. I do not
16 have to prove all these elements any more than raise
17 the question, which is what it is about. Since you ask
18 me, I have filled in the gaps as best I can.
19 LORD JUSTICE SCOTT BAKER: It is all just speculation, isn't
20 it?
21 MR MANSFIELD: Some of it is and some of it is speculation
22 which we would say is not wild. We have rooted it in
23 what we have now managed to establish and had not been
24 established, just for the benefit of the press or anyone
25 else who is listening, that it is sometimes said there

62

1 are no developments in this inquest.
2 One of the obvious ways in which this inquest under
3 your supervision has developed is exactly what
4 Henri Paul was doing during these hours, as opposed to
5 what the bodyguards were claiming to have happened in
6 various publications that they had put into the public
7 domain.
8 So, therefore, that is why the inference is -- there
9 is often a very thin margin of difference between an
10 inference that can be legitimately drawn and
11 speculation. Speculation has absolutely no basis in
12 evidence in my submission.
13 LORD JUSTICE SCOTT BAKER: It seems to me that we are pretty
14 near speculation on a lot of this.
15 MR MANSFIELD: We are, I accept that. But if you combine
16 the answers to all of those questions and I would not
17 ask them to be taken separately and analysed separately,
18 if you put them in combination, the circumstances, and
19 it is back to the circumstantial direction that juries
20 are often given, are you entitled to infer from
21 the circumstances of Henri Paul's activities between
22 the time he left the Ritz at 7 all the way through to
23 just past midnight, does that combination plus what
24 happened in the tunnel, leaving aside everything else
25 and I am not going into everything else that we have

63

1 put, does that not give rise to we say the possible view
2 that can be taken by a jury here, an inference can be
3 drawn, is that this was a planned operation.
4 We are not in a position on the basis of what I have
5 just gone through to say, oh, it was so and so who
6 actually did it. We don't know who was driving
7 the vehicles any more than the French police or
8 the English police. What we can say is the behaviour of
9 the vehicles combined with the behaviour of Henri Paul
10 himself gives rise to a very clear inference that this
11 was not --
12 LORD JUSTICE SCOTT BAKER: Not only do you not know who did
13 it, but it is very difficult on the evidence to see who
14 might have wanted to do it.
15 MR MANSFIELD: That is when I go straightaway --
16 LORD JUSTICE SCOTT BAKER: Back to the other territory?
17 MR MANSFIELD: Yes. I do tempt you to do it, but that is
18 where obviously it kicks in. There are plenty of people
19 who might have wanted it, for all sorts of reasons,
20 which we have spelled out largely.
21 It is not unusual in an inquest, which is not again
22 trying to prove who did it. We would not be allowed to
23 do that in any event and certainly a jury would not be
24 entitled to pass judgment on a group or even an
25 individual that may have done that.

64

1 So, at this juncture it is important to remember in
2 my submission, we are here raising the questions based
3 on the evidence from which a jury may infer that there
4 was an unlawful killing. How and why it should be done
5 are questions that may be for other authorities and
6 although they have been engaged here because of the
7 beliefs of Mohamed Al Fayed and others, and Diana
8 herself, and of course I have not trespassed into fears
9 and all the rest of it, and their relevance but I think
10 you see the basis on which I am addressing you in
11 relation to these two.
12 May I end -- and I thank others for the indulgence
13 to go a little beyond my time, I am afraid -- with just
14 this observation. It has been discussed by some of us
15 at the Bar. This has been a unique interest for obvious
16 reasons in many, many ways but one of the most unique
17 aspects, if that is possible to have a most unique --
18 LORD JUSTICE SCOTT BAKER: My English teacher used to say
19 it was not.
20 MR MANSFIELD: Startlingly unique -- I do not think any of
21 us can remember an inquest case either on review or at
22 first instance in which the real question is: has there
23 been an offence committed at all and if there has, what
24 is the offence?
25 Most of the deaths in custody, it is clear that

65

1 there has been a death caused by X, Y and Z and
2 the question is what was done in X, Y and Z's cases
3 amounts to unlawful killing or whatever.
4 Here one goes back a stage and in that sense, it
5 produces a very difficult factual matrix from which to
6 ask juries to draw inferences and that is why we say
7 this is a case in which this verdict, along with a range
8 of other ones, should be left because of the nature of
9 the case itself, never mind the evidence. So, sir, that
10 is how we put it.
11 LORD JUSTICE SCOTT BAKER: Thank you very much.
12 Mr Keen?
13 Submissions by MR KEEN
14 MR KEEN: Good morning, sir. In preparation for this there
15 has been an allocation of tasks as between myself,
16 Mr Weekes, Mr Croxford and Mr de la Mare. This has been
17 done in such a way that they have done all the hard work
18 and I consequently have very little to say.
19 I anticipate that in particular, my learned friend
20 Mr Croxford will, in fact, distribute his speaking note
21 in order to try and save some time.
22 LORD JUSTICE SCOTT BAKER: That will be helpful.
23 MR KEEN: And in that, there will be addressed on the basis
24 of matters already prepared by Mr Weekes and
25 Mr de la Mare certain questions about narrative

66

1 verdicts, the way in which questions can be left to
2 the jury having particular regard to Lord Bingham's
3 observations on that matter and belated issues.
4 Also, the Ritz will look at the matter of harassment
5 in the context of the conduct of the paparazzi. Having
6 given that introduction, I explained that I do not
7 therefore intend to address these matters with you, sir,
8 unless you wish me to do so.
9 LORD JUSTICE SCOTT BAKER: No.
10 MR KEEN: There are essentially three matters that I would
11 seek to touch on at this stage.
12 The first really concerns the question of whether or
13 not the crash could have been the consequence of
14 deliberate acts. And I touch upon this quite briefly
15 sir, but I do so properly, in my submission, because if
16 the crash was caused in part at least by certain
17 deliberate acts then the late Henri Paul would have been
18 a victim of unlawful killing, albeit this inquest is not
19 directly concerned with his death.
20 In approaching that matter briefly, I would perhaps
21 point out the obvious distinction between findings of
22 fact that could be made by a jury and inferences that
23 might be drawn from those facts. At this stage, I am
24 concerned only with findings of fact that could be made
25 by the jury.

67

1 My learned friend Mr Mansfield has already touched
2 upon what might be regarded as the most relevant
3 findings of fact that a jury could make. And they are
4 these: there was a blocking vehicle which may on one
5 view of the evidence have deliberately impeded
6 the Mercedes as it approached and entered
7 the Alma Tunnel; and there was on one view of the
8 evidence a violent or unusual flash which on the
9 evidence of the Metropolitan Police's own experts and
10 other experts could disorientate a driver.
11 Now, I do not put it any higher than that. There is
12 simply evidence available of those matters of fact. And
13 it is then a question of what inferences might be drawn
14 from those facts.
15 LORD JUSTICE SCOTT BAKER: The problems are, first of all,
16 that if you are hurtling into the tunnel at between 60
17 and 70, any vehicle in front of you is going to be
18 a blocking vehicle in one sense and the second is that
19 there were a lot of people with flash cameras around
20 that night.
21 MR KEEN: And if I could respond to both points, sir, you
22 qualify quite rightly your first observation with
23 the words "in one sense". And it is open to the jury to
24 adopt that sense of events but it is also open to
25 the jury to adopt an alternative sense of those events,

68

1 particularly in light of Mr Partouche's initial
2 observation that the dark vehicle appeared to be
3 deliberately blocking the Mercedes. So I merely say
4 there is evidence available.
5 On the matter of the light, there is a variety of
6 explanations that can be advanced. However, it is open
7 to the jury to accept the evidence of certain witnesses
8 that the light was violent and unusual and could not be
9 attributed to press photography.
10 I do not say that they should, sir. I merely say
11 that they could and that immediately raises a point that
12 you, sir, touched upon at the very outset of the hearing
13 this morning which is what has been referred to
14 generally as the Galbraith test because if of course we
15 are dealing with unlawful killing, we have to address
16 the criminal threshold of evidence: beyond reasonable
17 doubt. It be can be expressed in various ways.
18 LORD JUSTICE SCOTT BAKER: Yes.
19 MR KEEN: But that, in my respectful submission, is not an
20 end of the matter. I would put it this way: if the jury
21 could not, in addressing unlawful killing, come to
22 the conclusion that there was unlawful killing by reason
23 of these premeditated acts established beyond reasonable
24 doubt, they could nevertheless conclude that that was
25 the position upon a balance of probability. And that

69

1 would be directly relevant to their deliberations.
2 Because if the jury is presented with the verdict of
3 unlawful killing, and is not satisfied of that verdict
4 beyond reasonable doubt, but is satisfied of that
5 verdict on a balance of probability, it does not go on
6 to address the verdict of accident. Rather, it must
7 move to an open verdict.
8 LORD JUSTICE SCOTT BAKER: No, I think have you it the wrong
9 way round --
10 MR KEEN: Well, in my respectful submission --
11 LORD JUSTICE SCOTT BAKER: -- the position surely is that
12 if unlawful killing were left to the jury on the basis
13 that you are describing, and if the jury concluded that
14 they were not sure that that was the case, leaving aside
15 for the moment any other issues with regard to unlawful
16 killing by either your client or the paparazzi --
17 MR KEEN: Of course.
18 LORD JUSTICE SCOTT BAKER: -- the next stage would be for
19 the jurors to ask themselves that they were satisfied on
20 balance of probabilities that it was an accident. And
21 if they were satisfied on balance of probabilities that
22 it was an accident, that would be the verdict.
23 It seems to me, and I speak without the experience
24 of being a regular in coronial law, that the right
25 course is that the open verdict is left as the default.

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1 MR KEEN: With respect, sir, and I do not claim greater
2 experience in inquests than you --
3 LORD JUSTICE SCOTT BAKER: That is about one each then?
4 MR KEEN: It is about 85 per cent at the moment, rather than
5 of one each.
6 If I can make this point, and it is, it seems to me,
7 supported both by logic and authority, if the jury
8 address the verdict of unlawful killing and they
9 conclude that it is not established beyond reasonable
10 doubt in their minds that there was unlawful killing,
11 but nevertheless it is established on a balance of
12 probability that there was such a killing, then that
13 necessarily excludes the verdict of accident. Because
14 having concluded on the balance of probability that this
15 was an unlawful killing, they have logically and
16 inevitably concluded on a balance of probability that
17 it was not an accident.
18 LORD JUSTICE SCOTT BAKER: But they have to look at unlawful
19 killing against the standard of sureness and before they
20 can return that verdict, they would, all 11 of them,
21 have to be sure. So they conduct their deliberations.
22 They say: well, we are not sure between the 11 of us, we
23 are in varying states of mind short of sureness.
24 There is no question of asking the jury to reach
25 a verdict on which they are all agreed of being

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1 satisfied on the balance of probabilities that this was
2 unlawful killing.
3 MR KEEN: But with respect, sir, if the jury in their
4 deliberations -- just as if the Coroner in his
5 deliberations -- looked at the evidence and said, "Yes,
6 it is quite clear to us on a balance of probabilities
7 that there were a series of premeditated acts that led
8 to this crash but nevertheless we are not convinced
9 beyond reasonable doubt that that is the case" then they
10 could not return a verdict of unlawful killing. But
11 they could nevertheless, as a result of their
12 consideration of the evidence, clearly arrive at an open
13 verdict --
14 LORD JUSTICE SCOTT BAKER: They are not asked to look at
15 unlawful killing on the basis of any different standard
16 from the criminal standard. It is not as if it is
17 a "not proven" verdict in Scotland which may give rise,
18 I do not know, to different considerations.
19 MR KEEN: With respect, sir, if they begin with unlawful
20 killing and they decide that although the evidence is
21 available to them and although some of it is compelling,
22 it does not persuade them beyond reasonable doubt, but
23 it may nevertheless persuade them on a balance of
24 probability, then the inevitable consequence is not that
25 you go on to address the verdict of accident. That has

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1 been rendered redundant. You come on and conclude there
2 must be an open verdict.
3 I may say that that was the view expressed by
4 I think it was Mr Justice Hughes in the context of the
5 New Cross Fire case which is in the bundle of
6 authorities, I think the second bundle sir, at 35.
7 That is the application of George Francis and Her
8 Majesty's Deputy Coroner for Inner London South District
9 reported in 2005 from the Administrative Court. I do
10 not know if you have that, sir?
11 LORD JUSTICE SCOTT BAKER: Yes. I have.
12 MR KEEN: You may recollect that the New Cross case involved
13 a terrible fire at the home of a Mrs Ruddock during
14 a party that led to considerable loss of life. I do not
15 think it is necessary to go to the facts of the case but
16 I would just like to take you to the observations of
17 Mr Justice Hughes at paragraph 36. He observed:
18 "Those who sit regularly in courts of various kinds
19 which have to reach conclusions of fact are well used to
20 the difference between a finding on the balance of
21 probabilities -- that is to say that something is more
22 likely than not -- on the one hand, and on the other
23 a finding that something is proved so that
24 the fact-finder is sure. They are quite different. In
25 the present case, the Deputy Coroner was not obliged to

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1 set out his conclusion that the fire had, more likely
2 than not, been started deliberately. But I have no
3 doubt that it was helpful to all concerned that he did.
4 It is, however, quite impossible to contend that because
5 he did set out that finding it necessarily followed that
6 he must also have been sure that the fire was started
7 deliberately.
8 "Not being sure of unlawful killing, the Coroner
9 could not in law return such a verdict."
10 LORD JUSTICE SCOTT BAKER: That was not a jury case, was it?
11 MR KEEN: That is neither here nor there for this purpose,
12 sir. He said:
13 "He had next to consider the possible verdict of
14 accident. This is a verdict which is to be returned if
15 the Coroner's conclusion is that it is more likely than
16 not that the cause was an accident. Clearly the Coroner
17 could not so find. His view was that it was more likely
18 than not that it was deliberate and less likely than not
19 that it was an accident. In those circumstances, being
20 unable to reach a verdict of unlawful killing and also
21 unable to arrive at a verdict of accident, the only
22 verdict available to the Coroner, and the right verdict,
23 was the open verdict which he returned."
24 LORD JUSTICE SCOTT BAKER: I do not think there is any
25 dispute really about this. That is not saying that he

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1 should have considered open verdict before he look at
2 the question of accident.
3 MR KEEN: With respect, sir, it is making clear that even if
4 you did not consider that the Galbraith test,
5 the threshold of beyond reasonable doubt could be met in
6 this case, nevertheless, the indicia of predetermined
7 action should still be a matter is addressed by the jury
8 because they could conclude on a balance of probability
9 that there were certain predetermined or premeditated
10 acts causing the acts which would exclude the verdict of
11 accident.
12 LORD JUSTICE SCOTT BAKER: I would put it slightly
13 differently. I think the jury should be directed about
14 these matters but they should be directed about it
15 because it may be that that evidence is important from
16 their point of view in deciding whether or not it was an
17 accident. It is all part of the whole picture then.
18 MR KEEN: It may be two ways of approaching the same
19 conclusion. What I seek to underline, sir, is that
20 merely because the Galbraith test cannot be met --
21 LORD JUSTICE SCOTT BAKER: Well, I am with you on that.
22 What I am not with you on is elevating open verdict
23 above accident in the course of the deliberations from
24 the jury's point of view.
25 MR KEEN: Well, in my respectful submission, it should

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1 follow logically that if the jury are entitled to look
2 at evidence of these premeditated acts, if they do not
3 conclude that they do not establish beyond reasonable
4 doubt that there were such acts --
5 LORD JUSTICE SCOTT BAKER: I see where you are. It is
6 a short point and I will obviously have to hear what
7 counsel to the inquest have to say about it.
8 MR KEEN: Indeed. What I seek to emphasise then is that
9 merely because the Galbraith test is not met is not an
10 end of the matter at all. It is necessary to look at
11 the evidence of unlawful killing and although you are
12 not able to reach that verdict, you are not then to put
13 that evidence out of your mind because it plays a very
14 material role in your determination of whether there
15 could have been an accident.
16 LORD JUSTICE SCOTT BAKER: What do you say about
17 Mr Mansfield's submissions about your client's movements
18 that night? Is it appropriate to infer, or proper for
19 the jury to infer that he was in touch with
20 the murderers between 7 and 10?
21 MR KEEN: I have no basis for inviting you to infer that.
22 LORD JUSTICE SCOTT BAKER: And that he phoned them or met
23 them after half past 10?
24 MR KEEN: Again, we have the evidence of the telephone
25 communications.

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1 LORD JUSTICE SCOTT BAKER: Is your submission that there is
2 absolutely no evidence about this; it is all
3 speculation?
4 MR KEEN: I would not go that far, sir. There is clea