Hearing transcripts

20 March 2008 - Afternoon session

23 (2.00 pm)
24 MR CROXFORD: May I begin with your Edward Albee example.
25 Martha and George have just got into the car.

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1 The problem with Martha and George just getting in
2 the car to row is of itself that would not necessarily
3 and indeed is very unlikely to satisfy the requirements
4 of the Act because of the course of conduct that is
5 required.
6 So, taking the characters from Mr Albee's play, may
7 I take the assumption that their course of life is one
8 in which George constantly harasses Martha, or the other
9 way round, but in this particular example it is George
10 harassing Martha.
11 It will become important in a moment or two to
12 consider how he harasses her before they ever get in the
13 car, but I am going to make the assumption that there he
14 been a course of conduct which can properly be described
15 as harassment prior to getting in the car, which course
16 of conduct is then renewed or continued in the car.
17 One of the obvious difficulties of the example or
18 analogy is of course that there is a causative link
19 between the harassment and the death and one has to give
20 some thought to how that would work on your example.
21 It will work certainly in this and no doubt in
22 a number of other different ways.
23 If I can go to another play now, it is a bit like
24 Gaslight. You will remember, as I recall, it was
25 producing and playing upon the fear of the young woman

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1 by the changes in the gas mantle suggesting there was
2 someone present in the house.
3 Suppose George is harassing Martha by suggesting
4 that she is of weak and feeble disposition, and he were
5 to continue this verbal and potentially physical
6 harassment in the car by deciding that because she is
7 weak and feeble, she is easily scared and he closed his
8 eyes while he is driving, "Look at me, I have my eyes
9 closed, Martha, while I am driving you". If that were
10 his course of conduct, it would be sufficient for
11 the basis of an unlawful manslaughter.
12 The difficulty, with the greatest of respect, trying
13 to get away from theatre and back into the real world of
14 the law, the difficulties are the ones that I have
15 identified. There must be a course of conduct and it
16 must be that cause of conduct which plays a causative
17 role.
18 Provided those are satisfied, there is no difficulty
19 in principle at all. My Lord, it is not surprising that
20 there is no difficulty in principle at all because, and
21 this occurs whether one is looking at course of conduct
22 or gross negligence manslaughter, as you very well
23 better than I, with respect, manslaughter is a very
24 broad church. It is a very broad offence which
25 encompasses all sorts and types and gradations of

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1 behaviour which should attract the obloquy of
2 condemnation by the law, and it matters not that in
3 certain circumstances, some people may say that that is
4 less to be criticised than others that if it satisfies
5 the test set out of unlawful conduct which is dangerous
6 and inadvertently causes death, et cetera.
7 So, my Lord, your example to me, yes, it does work.
8 May I move on in my speaking note.
9 LORD JUSTICE SCOTT BAKER: So the position would be that
10 unlawful harassment would be enough in itself, provided
11 there was causation with the death, regardless of
12 whether the conduct fell into the very serious category
13 of gross negligence.
14 MR CROXFORD: Let me come back immediately to Martha and
15 George for a moment. No, it would not necessarily.
16 In Virginia Woolf, my recollection in fact that
17 the nature of the harassment moved from the wife to the
18 husband, did it not, perhaps that is a sexist remark
19 that I ought not to make, but it was essentially verbal
20 and it may very well be, my Lord, that is what George
21 was doing whilst driving the car was simply verbally to
22 be abusing his wife rather than speaking on a mobile
23 telephone by way of what he might have been doing
24 otherwise lawfully, if he was merely verbally abusing
25 his wife but otherwise concentrating upon driving

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1 the car to an acceptable standard such that his conduct
2 could not properly be characterised as being of itself
3 dangerous and that is one of the essential elements as
4 your Lordship appreciates, well, in those circumstances,
5 harassment, whilst it would be an offence under the Act
6 would not be enough for manslaughter.
7 One has to look at the nature and the quality of
8 the manslaughter, which is precisely what we do here.
9 May I move on to paragraph 3? It is not very far
10 but I will take it very quickly, if I may.
11 What in the first part here sounds impertinent,
12 I apologise if it does, it is not intended to be
13 impertinent. It may be that you, sir, or others may not
14 like -- it is not a very a very apt word but it is
15 the best I could think of overnight; may not care for is
16 the other way I would describe it -- is an unlawful
17 killing manslaughter based upon something other than
18 gross negligence in gross behaviour because one tends to
19 expect that very element of grossness and it may be
20 something that we are looking at here is not properly to
21 be so condemned. That is no answer to the legal
22 principle at all, but in fact we would say this is
23 an a fortiori case. For whilst the 1977 Act was borne
24 in large measure out of providing a measure of
25 protection against stalkers, stalkers are but one

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1 example of the same sort of behaviour as one sees here
2 from paparazzi, on one view.
3 And it is an a fortiori case therefore to say that
4 to rely upon harassment in the circumstances of this
5 statute, this unlawful conduct where the statute which
6 prohibits such conduct is very apt to describe precisely
7 this type of behaviour, in our respectful submission,
8 means that we are fair square within the provision.
9 I next, in paragraphs 3 and 4 draw your attention to
10 two of the underlying and essential and underlying
11 features of the nature of the unlawful act; that is,
12 the course of conduct. Sir, you will remember -- I will
13 take it shortly if I may -- two or more incidents to
14 give rise to the course of conduct and we identify in my
15 sub-paragraph 4 from my speaking note -- and I know you
16 have it well in mind so I am not going to it unless you
17 ask me to -- the course of conduct from Le Bourget up to
18 Paris, first time to the Ritz, first time to
19 the Rue Arsene Houssaye and the altercation outside, off
20 to Chez Benoit, not making it. Arrival at the Ritz with
21 the paparazzi conduct outside in the peristyle.
22 Then, all of that before the last fateful journey;
23 all is part of what the jury properly could conclude is
24 a course of conduct which is to be described as
25 harassment. That is merely continued. I do not say

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1 "merely" to belittle the effect, but merely continued on
2 the last journey from the back door of Ritz.
3 Now, the analogy which Mr Burnett has relied upon
4 and which, with respect, I do not doubt you too have in
5 mind, is the position in respect of careless driving,
6 that is an imperfect analogy for these reasons.
7 Careless driving is a negligent way of conducting
8 a lawful activity and negligence is merely a feature of
9 that particular conduct. Compare and contrast:
10 the particular position in manslaughter by gross
11 negligence, because lawful conduct, driving the motor
12 car, can nonetheless -- and I will come and deal with it
13 presently on Andrews -- give rise to gross negligence
14 manslaughter liability.
15 LORD JUSTICE SCOTT BAKER: So you say that the harassment
16 has to be viewed in the context of what had happened
17 since Le Bourget Airport?
18 MR CROXFORD: No. With respect, sir, it is all too easy to
19 fall into the trap of the attraction of that question.
20 I say that what the jury will have to do with your
21 direction is to see whether there was a course of
22 conduct --
23 LORD JUSTICE SCOTT BAKER: By whom?
24 MR CROXFORD: By persons attendant upon the deceased,
25 including in particular here the paparazzi.

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1 LORD JUSTICE SCOTT BAKER: But which paparazzi? Surely
2 harassment is an offence which is directed normally at
3 an individual.
4 MR CROXFORD: Correct.
5 LORD JUSTICE SCOTT BAKER: Don't you have to identify
6 the individual who you are saying is guilty of the
7 harassment and identify also any other conduct by
8 anybody else to which he could reasonably be said to be
9 a party.
10 MR CROXFORD: You are of course right, but one does not have
11 to do it for each of them at all stages; one merely has
12 to have two incidents joining in. If one takes, for
13 example, Mr Odekerken, who is there at Le Bourget and
14 was there at the end at the Alma Tunnel both on the
15 evidence, it may be the jury would conclude not in very
16 close proximity to the Mercedes at the time it crashed.
17 LORD JUSTICE SCOTT BAKER: Would I have to identify, surely
18 I would, the individual members of the paparazzi who
19 were, you say, guilty of harassment so that the conduct
20 of any others could be dissociated from that aspect of
21 the case?
22 MR CROXFORD: Absolutely and you have no difficulties, with
23 respect. You have Rat and Darmon who are there at every
24 particular stage. They are picked up -- you will
25 remember the description, was it Mr Dourneau, he gave

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1 a very particular description of Mr Darmon's motorbike
2 and got it right.
3 Mr Rat, Mr Darmon you will remember I asked him some
4 questions about --
5 LORD JUSTICE SCOTT BAKER: He was not the photographer, of
6 course, he was the rider. But you say that makes no
7 difference?
8 MR CROXFORD: No difference at all.
9 LORD JUSTICE SCOTT BAKER: Joint enterprise?
10 MR CROXFORD: At that stage, they are doing the same thing
11 because one is riding with the other. Mr Rat is the one
12 involved in an altercation at the Rue Arsene Houssaye.
13 LORD JUSTICE SCOTT BAKER: Rat, Darmon and who else?
14 MR CROXFORD: Odekerken, who is there right from the outset.
15 Now, if one then says: okay, don't trouble for
16 moment about Le Bourget, for the purposes of harassment,
17 it only has to be a course of conduct on at least two
18 occasions. Benhamou, there at Rue Arsene Houssaye, part
19 of the following team going Chez Benoit, back to
20 the Ritz, there outside the Ritz taking photographs,
21 there following them from the back of Ritz.
22 Arnal and Martinez: there present during the day,
23 not as I recall down at Le Bourget but otherwise present
24 during the day and certainly present as part of that
25 pack at the time --

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1 LORD JUSTICE SCOTT BAKER: Rat, Darmon, Odekerken, Benhamou
2 and?
3 MR CROXFORD: Arnal and Martinez.
4 LORD JUSTICE SCOTT BAKER: Anybody else?
5 MR CROXFORD: At the moment, I am happy to rest with those.
6 LORD JUSTICE SCOTT BAKER: Well, it is not so much a matter
7 of being happy to rest because if you are right, I have
8 to direct the jury clearly about who is in it and who is
9 not in it.
10 MR CROXFORD: Let me put it in a more helpful way, if I may.
11 You fire the question at me quiet rightly, I try to
12 assist, because I have no case to advance, by
13 identifying those whom I am sure that you could identify
14 to the jury. If there are others, when I have sat down,
15 I will pass a note to Mr Burnett.
16 Those certainly.
17 LORD JUSTICE SCOTT BAKER: Yes.
18 MR CROXFORD: And you know from our detailed submissions in
19 respect of the paparazzi and you will have -- it was not
20 immediately apparent as I recall from my laboured
21 cross-examination why I was asking questions which
22 excluded certain paparazzi from being at the scene of
23 the crash but you know from our submissions that we do
24 say Rat and Darmon, Arnal and Martinez were there at
25 the time of the crash at the Alma Tunnel and undoubtedly

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1 in respect of them, there is a course of conduct which
2 can probably be described as harassment.
3 And if I may say so, on that basis, that would be
4 enough. It is more than enough and it is wholly
5 consistent with what we have put in our submissions to
6 you.
7 LORD JUSTICE SCOTT BAKER: So they are all in the chasing
8 pack?
9 MR CROXFORD: They are all part of the chasing pack. I am
10 not going develop it now unless you ask me to.
11 LORD JUSTICE SCOTT BAKER: And close enough to the Mercedes
12 to be harassing it?
13 MR CROXFORD: Certainly. Those are the two vehicles, the
14 black Fiat Uno of Arnal and Darmon's motorbike which on
15 the evidence the jury certainly, we would say should,
16 and properly I suppose I ought to go no further than say
17 could, properly conclude were there and part of
18 a harassing pack.
19 I am at 4, sub-paragraph 3. I know that does not
20 sound very far, but in fact it is quite a long way in.
21 I direct your attention there to Andrews v DPP.
22 I am in your hands as to whether you want to be taken
23 back to it.
24 LORD JUSTICE SCOTT BAKER: Not much.
25 MR CROXFORD: I anticipated that was the case. I am not

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1 going to take you back to it if, as I believe is the
2 case, the proposition that I put forward is correct,
3 that whilst it is right that mere negligence would not
4 be enough, it is clear from Andrews that if there is
5 gross negligence in the manoeuvring of a motor car, then
6 of course manslaughter can be laid as the charge and
7 someone can be properly convicted of that.
8 I had better say something about something that you
9 have mentioned during the course of the day. I have
10 given you the reference for it, sir, if you go to
11 page 583. Can you ignore the note A, that is my note
12 for my purposes. You will find later on there is a note
13 H which is to similar effect. But at page 583, it is in
14 a report which of that vintage does not have marginal
15 lettering.
16 I will just tell you, it is about halfway down:
17 "It is difficult to visualise a case of death caused
18 by reckless driving and the connotation of that term in
19 ordinary speech which would not justify a conviction for
20 manslaughter ... "
21 About halfway down, the fact that these are deaths
22 which arise out of motoring is neither here nor there,
23 what we are addressing is legal principle. Can I just
24 say this as well: you raised some questions with one of
25 my friends this morning about the probability that

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1 causing death by dangerous driving would now be
2 alleged -- I think it was to Mr Keen -- or would be
3 the most likely charge to be brought against a motorist
4 in certain circumstances.
5 My Lord, it may well be, but the position is
6 the fact that Parliament, not without having had to
7 struggle as you will well recall, with how to address
8 the issue of motor manslaughter, the fact that
9 Parliament has intervened to provide particular offences
10 deciding that the nature of the offence --
11 LORD JUSTICE SCOTT BAKER: I can see your point. Death by
12 dangerous driving was introduced because no jury would
13 convict of manslaughter but your point is this is an
14 inquest anyway, we are not looking at criminal offences
15 and it is unlawful killing. What might be charged if
16 this was a UK case is nothing to the point.
17 MR CROXFORD: Absolutely right. Of course, the UK point, as
18 I recall I was reminded over lunch, in the absence of
19 any evidence, the orthodox assumption of the English law
20 is the foreign law is the same, so territoriality --
21 LORD JUSTICE SCOTT BAKER: So assume we have the Protection
22 From Harassment (France) Act.
23 MR CROXFORD: We do. It is not much different to it being
24 an offence as it has long been, for centuries has been
25 an offence to kill one of Her Majesty's subjects

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1 anywhere in the world. It is no different in kind or
2 quality, in my submission, to that.
3 So, Parliament has intervened and may I remind you,
4 it is not because no jury would convict. I was in
5 Lawrence years ago and speeches came and judgment was
6 handed down on the same day as Cauldwell(?). You will
7 remember the difficulties for defining recklessness for
8 it being at all useful for a jury and in those
9 circumstances, Parliament has intervened. It does not
10 affect the principle here. Paragraph 6, I think I have
11 dealt with.
12 Paragraph 7 is your counsel's reliance upon
13 Douglas-Williams, the case of death in custody. If
14 I may, I am going to take this a little more slowly.
15 Paragraph 7.1, the mere fact that there are
16 different variants of manslaughter with different
17 constituent elements and different levels of fault and
18 we give examples, cannot justify effectively excising
19 one branch of manslaughter from this jury's issue of has
20 there been an unlawful killing?
21 That would be artificial and without any juridical
22 basis. There is no authority to support such an
23 approach.
24 Secondly, could I invite your attention to
25 Douglas-Williams in a little more detail? Tab 27 in

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1 the second volume of the authorities bundle.
2 I am going to go as far as to tease Mr Burnett to
3 suggest that far from this being an authority to suggest
4 that you should not leave both forms of unlawful killing
5 to the jury, it is quite clear that you would be fully
6 justified in doing so.
7 It is not helpful -- I apologise -- there is no
8 pagination. I have scratched mine on as I go through.
9 At least, I do not have pagination.
10 The judgment begins at page 2, if I can call it
11 that. At the top of page 3, we see what counsel for
12 the police were saying, Mr Wood, on behalf of the
13 police. Does my Lord have that?
14 LORD JUSTICE SCOTT BAKER: Yes.
15 MR CROXFORD: "The Coroner was in error in leaving unlawful
16 killing to the jury."
17 What actually had happened, if you turn back to
18 the bottom of page 2, was that the Coroner, right at
19 the foot, had left both different species of unlawful
20 killing, that is unlawful act and gross negligence
21 manslaughter to the jury.
22 Now, there was a complaint or submission by
23 the police that he should not have left either. That
24 was a matter of principle as to whether either satisfied
25 the Galbraith test. No one during the course of this

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1 case suggested that leaving those two verdicts of
2 themselves was wrong. Neither did anyone suggest that
3 leaving those two verdicts of themselves to the jury was
4 in the circumstances of that case undesirable or that
5 the jury would be overburdened or unable to cope.
6 The difference between them of course, at the foot
7 of page 2, was that they had different evidential
8 constituents and in particular, they had different
9 evidential thresholds, what evidence would justify
10 the conclusion of unlawful act manslaughter and what for
11 gross negligence.
12 Sir, in those circumstances, obviously the jury had
13 to grapple with the two different evidential thresholds
14 and as I have said, no one suggested that that was in
15 any way wrong or inappropriate.
16 The high watermark that Mr Burnett relies upon
17 begins at the fourth page of the judgment and in
18 particular he relies on a passage at the fifth. I draw
19 your attention to the fourth page, last paragraph,
20 beginning:
21 "A question that was considered ..."
22 LORD JUSTICE SCOTT BAKER: Yes.
23 MR CROXFORD: "... extent of the discretion of a coroner not
24 to leave to the jury what is on the evidence a possible
25 verdict."

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1 So, here we are looking at the combination between
2 Galbraith and the judicial exercise of discretion.
3 Now, over the page at page 5 is that passage just
4 over halfway down:
5 "The conclusion I come to ..."
6 Now, this was a note of explanation. Can I take it
7 from the third line for the moment:
8 "It appears from the circumstances ..."
9 LORD JUSTICE SCOTT BAKER: Yes.
10 MR CROXFORD: "... judgment of coroner, acting reasonably
11 and fairly ..."
12 Reasonableness is of course a Wednesbury test in
13 the exercise of discretion here:
14 "... reasonably and fairly, not in the interests of
15 justice a particular verdict should not be led, he need
16 not leave it."
17 And then the explanation of that:
18 " ... need not leave all possible verdicts just
19 because there is technically evidence to support them.
20 Sufficient leave those verdicts which realistically
21 reflect the thrust of the evidence as a whole."
22 If I pause there for a moment, in our submission, it
23 cannot sensibly be said that to leave unlawful killing
24 manslaughter would do anything other than reflect the
25 thrust of the evidence as a whole and to do so

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1 realistically. What Lord Woolf was addressing in this
2 Douglas-Williams case was the case which might possibly
3 on one view at the margins of the facts of the case be
4 open to be argued and left before the jury; the marginal
5 case.
6 LORD JUSTICE SCOTT BAKER: What does gross negligence
7 manslaughter add then on your submissions to unlawful
8 act manslaughter?
9 MR CROXFORD: They are different evidential thresholds.
10 LORD JUSTICE SCOTT BAKER: It seems to me that what
11 Lord Woolf is saying here is all of a piece with
12 the modern thinking that an inquest is an inquiry and
13 what it is desired to extract from the jury is what
14 happened, rather than what label you attach to it.
15 MR CROXFORD: That may be right, but with respect, you are
16 not going to extract from this jury the explanation as
17 to what happened unless you offer them the appropriate
18 form of label to fill in.
19 LORD JUSTICE SCOTT BAKER: The jury come back and they say:
20 we have been left with unlawful act manslaughter and
21 gross negligence manslaughter, could you please tell us
22 in what circumstances we could find the paparazzi guilty
23 of one but not the other?
24 MR CROXFORD: With respect, not difficult. The reason why
25 you should leave both is to ensure that if the jury are

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1 satisfied of either, then their verdict reflects that.
2 Let me explain.
3 LORD JUSTICE SCOTT BAKER: Well, we are not satisfied of
4 the unlawful act harassment manslaughter, now, how can
5 we find gross negligence manslaughter in those
6 circumstances?
7 MR CROXFORD: They may decide that what was going on was not
8 harassment by paparazzi or they may decide there is not
9 sufficient evidence to satisfy, on the criminal
10 standard, that sufficient test?
11 Can I put it the other way for a moment and then
12 I will come back to your way.
13 Gross negligence requires a very high threshold of
14 proof, not only on the criminal standard but of
15 the gross type of breach of duty. Something which is
16 way beyond simple mere negligence is going to be rightly
17 criticised as being a criminal offence.
18 It is a high threshold, as everyone recognises, and
19 I do not suggest it will be the case, but it is possible
20 for the sake of argument to see that the jury might say,
21 "we are not satisfied that the acts which we find amount
22 to gross negligence".
23 They may, and rightly, within that canon of
24 the broad church of manslaughter, however, say, "We are
25 satisfied that the course of conduct which was embarked

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1 upon by these men was harassment, the course of conduct
2 did of itself have a causative effect in respect of the
3 deaths and in those circumstances, whilst this may not
4 attract the ultimate moral obloquy in manslaughter
5 cases, gross negligence manslaughter, it nonetheless
6 ought to be described as manslaughter on the basis of
7 unlawful act and in those circumstances, produce
8 the verdict in this court of unlawful killing."
9 If you don't leave them the alternative to address
10 the breadth of manslaughter, you deprive the jury, with
11 the greatest of respect, of the opportunity of properly
12 explaining such conclusions as ultimately they come to.
13 LORD JUSTICE SCOTT BAKER: I am still having difficulty in
14 seeing in what circumstances the jury could convict of
15 gross negligence manslaughter not being satisfied about
16 unlawful act manslaughter.
17 MR CROXFORD: Probably they could not. But the other way
18 round does not work. They could be satisfied of
19 unlawful act harassment and certainly --
20 LORD JUSTICE SCOTT BAKER: What is the point of leaving
21 gross negligence manslaughter as well as unlawful act
22 manslaughter?
23 MR CROXFORD: Because it is, on one view, the appropriate
24 way in which to describe --
25 LORD JUSTICE SCOTT BAKER: This just illustrates

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1 the futility, if I may say so, of your argument, doesn't
2 it?
3 MR CROXFORD: You of course may say so and I ultimately will
4 have to bow to whatever conclusion you come to but if
5 the evidence justifies a jury concluding that there was
6 gross negligence in the management of one or more of
7 these motor vehicles such as to justify an unlawful
8 killing verdict on that basis, then that would be
9 a proper verdict for them to return and the inquests
10 will have served their purpose.
11 LORD JUSTICE SCOTT BAKER: You are saying let's suppose
12 the evidence is accepted by the jury that there is only
13 one motorcycle but it is riding in such a way as to
14 amount to gross negligence --
15 MR CROXFORD: It is not what I am saying at all. And with
16 respect, I took it in order to advance an argument.
17 I am not addressing the facts.
18 LORD JUSTICE SCOTT BAKER: No.
19 MR CROXFORD: If the jury were satisfied that there was even
20 a single motorcycle which was being ridden in such
21 a fashion as to amount to gross negligence, then they
22 would be justified in coming back and saying unlawful
23 killing on that basis.
24 LORD JUSTICE SCOTT BAKER: Regardless of any harassment or
25 anything that had happened before?

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1 MR CROXFORD: Correct, if that is the way --
2 LORD JUSTICE SCOTT BAKER: But that does not really reflect
3 what this case is about, does it?
4 MR CROXFORD: With respect, I am seeking, unsuccessfully at
5 the moment, to demonstrate to you that by leaving both
6 forms of manslaughter --
7 LORD JUSTICE SCOTT BAKER: I know what you are trying to do.
8 I can see. I am just suggesting that this does not
9 really reflect the reality of the situation.
10 MR CROXFORD: Well, with respect it does, I would say.
11 If the driving is of such a character, it is so bad
12 that it can be properly described as gross negligence,
13 the jury should have the opportunity of saying we have
14 concluded that the driving was so bad.
15 LORD JUSTICE SCOTT BAKER: I see what you are saying and
16 I shall be greatly helped by the submissions in
17 particular from the Metropolitan Police on this point
18 because I think this is an area where they have
19 particular experience.
20 MR CROXFORD: They may do, but I do not think they have
21 advanced any so far, notwithstanding the opportunity.
22 I am going to complete what I have to say, if I may,
23 on this. If they don't feel it is a gross negligence
24 case, it would be wrong in principle for you to deprive
25 them of the opportunity of addressing the unlawful act.

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1 Could I invite you not to put Douglas-Williams away for
2 a moment, I wanted to show you something else.
3 LORD JUSTICE SCOTT BAKER: Yes.
4 MR CROXFORD: It would be wrong of you to deprive them of
5 the opportunity to address that point, particularly
6 since, on another view of the evidence -- mainstream,
7 not peripheral -- the conduct which the jury have heard
8 so much about over these last few months was indeed
9 harassment. And if you take the course of withdrawing
10 one, you deprive them of 50 per cent of their
11 opportunity.
12 What I wanted to go on and show you is what happened
13 in Douglas-Williams. It is at the foot of page 11,
14 the one that says, "Withdrawal of Neglect".
15 You can see that the debate here was whether it was
16 right or wrong to withdraw neglect and Lord Woolf on the
17 facts concluded that there was no evidence to justify
18 leaving the verdict of neglect and so the Coroner in
19 that case was right to do so.
20 Now, I have passed over the passage that
21 Mr Mansfield drew your attention to at page 7,
22 the different bases of manslaughter which were left to
23 the jury. And this therefore is a paradigm example of
24 how, there being alternative bases for manslaughter to
25 have been carried out, the jury were rightly left with

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1 the opportunity of deciding which, if either, was
2 the basis upon which their conclusions, their verdicts
3 should be reached.
4 Assuming there is some form of explanation from this
5 jury, that would apply equally here.
6 Lastly, can I draw your attention to this? Would
7 you go to the penultimate page which is page 12?
8 LORD JUSTICE SCOTT BAKER: Yes.
9 MR CROXFORD: I apologise I missed this when scanning
10 Douglas-Williams, as I assume others had done also.
11 Do you have the passage beginning, "The future..."
12 LORD JUSTICE SCOTT BAKER: Yes.
13 MR CROXFORD: Can I ask you to read that? (Pause).
14 LORD JUSTICE SCOTT BAKER: Yes.
15 MR CROXFORD: Expressly agreed to by Lord Justice Hobhouse
16 in the last line on that page and Lord Justice Thorpe
17 just agreed with the judgment and the observation there.
18 I was saying before lunch, not trying to be rude
19 about the hope that we would get from you a ruling and
20 we will know what it is that is going to be left: that
21 of course would be very much within the approach which
22 the Court of Appeal here endorsed as one which should be
23 adopted in the future, including, as you see there, not
24 only producing the material in writing before
25 the commencement of the summing-up, but so that it can

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1 be done beforehand and can be considered by any lawyers
2 attending the inquest.
3 So, we would say that that is a useful statement for
4 that principle.
5 Just before leaving Douglas-Williams and this
6 suggestion that in some way it would be overburdening
7 the jury to leave them with these alternative bases,
8 the other authority that my learned friend Mr Burnett
9 relies upon, you will recall, is R v Bennett and some
10 observations of Lord Justice Waller. I am quite content
11 to take this from my learned friend's skeleton.
12 LORD JUSTICE SCOTT BAKER: Well, have I read that.
13 MR CROXFORD: May I simply remind you that what Lord Justice
14 Waller was looking at there was whether it was safe to
15 leave a verdict to a jury or, conversely, whether it
16 would have been perverse or unsafe for a jury to have
17 reached a particular verdict that was left to them.
18 No arguments have been advanced, nor can they be
19 advanced in this case, that it would be unsafe to leave
20 a verdict of unlawful act killing manslaughter to
21 the jury. It clearly would be safe so to do and
22 equally, it would not be perverse or unsafe on the
23 evidence the jury have heard if they returned a verdict
24 of unlawful killing based upon unlawful act
25 manslaughter.

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1 So insofar as what my Lord Lord Justice Waller has
2 to say in Bennett is material and it clearly is,
3 we would again say that supports leaving both verdicts
4 before the jury in order that they have that proper
5 opportunity to reflect the findings of fact that they
6 make.
7 Gross negligence manslaughter: Adomako, high
8 threshold of default, I have touched on that already.
9 I do not intend to advance that in any more detail
10 unless you ask me to. Pound to a penny you won't, so
11 I am going to go to paragraph 9.
12 Reliance on Misra: one has to be careful about
13 Misra. I do not know if you have had the opportunity to
14 look at it recently.
15 It is found, as far as I can find it anyway, in
16 the bundle of authorities put in by the Metropolitan
17 Police. It is the very last tab there, tab 11 --
18 LORD JUSTICE SCOTT BAKER: Yes.
19 MR CROXFORD: This is a contradistinction point that I am
20 going to draw attention to.
21 It is important, but obvious, once attention is
22 drawn to it, not to conclude the grossness of the
23 negligence which is to be found for the purposes of the
24 gross negligence unlawful killing with the grossness of
25 the risk.

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1 All that is required is that there be a risk of
2 causing death. No jury would have to consider how gross
3 or obvious or great was such a risk. They merely have
4 to be satisfied that if there was negligence, there was
5 the risk of causing death. And then, they have to
6 consider whether the negligence proven was of the gross
7 type. And we have given you the references. I will
8 give them to you now. Paragraph 25 is where there is
9 that passage from the summing-up of Mr Justice Langley.
10 Unless you ask me to, I am not going to read it to you.
11 Then, the discussion of this topic begins, sensibly --
12 one could go through the whole of this but it begins at
13 paragraph 58 on page 346.
14 It goes through to paragraph 64.
15 LORD JUSTICE SCOTT BAKER: I do have some difficulty with
16 this overall in relation to the number of paparazzi who
17 are involved and it seems to me that in order to
18 establish gross negligence you cannot add up pieces of
19 negligence, if you like to put it that way, between A, B
20 and C and D and if you put all of that together, it is
21 gross.
22 MR CROXFORD: I think I do not disagree with that.
23 LORD JUSTICE SCOTT BAKER: It seems to me that, well,
24 imagine that you are the prosecutor opening this case of
25 gross negligence manslaughter to the jury against say,

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1 Mr Rat and Mr Darmon. How do you put the case to
2 the jury?
3 MR CROXFORD: Can I begin first of all by drawing your
4 attention to paragraph 11 in the speaking note and then
5 I will answer orally.
6 The way in which you put it is that Mr Darmon and
7 Mr Rat drove from the back of the Ritz and in
8 particular, through the Alexandre III tunnel, out along
9 Cours Albert 1er into that Alma Tunnel in a fashion
10 which was grossly negligent.
11 Let's see what they did first of all. It is
12 important only to see what they did. What the others
13 were doing in respect of those two, I will come to in
14 a moment, if I may. But in respect of them, if I take
15 your point first of all, I will take it because it is
16 a good forensic ploy, to take your point. It will be
17 a good one for this purpose (ploy).
18 They drove at an excessive speed. They drove at an
19 excessive speed in circumstances where they were on
20 a public road and subject to all the other vagaries of
21 that road.
22 LORD JUSTICE SCOTT BAKER: Pause there. There is
23 a co-defendant in this criminal case and that is
24 Mr Henri Paul. Is your argument, therefore, "And,
25 members of the jury, the Second Defendant is just as

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1 guilty of gross negligence because of the speed at which
2 he was driving which is at least as fast as Rat and
3 Darmon".
4 MR CROXFORD: Forgive me. I just have to turn up my note
5 that I made this morning to answer that question.
6 LORD JUSTICE SCOTT BAKER: It should be quite a simple
7 question to answer, if there is an answer to it.
8 MR CROXFORD: It is a simple question to answer but I want
9 to get the answer right.
10 LORD JUSTICE SCOTT BAKER: Or that you don't want to shop
11 Mr Keen's client.
12 MR CROXFORD: I am not going to be drawn on whether I have
13 make reservations about that.
14 The answer is this: first of all the caveat and
15 it is a caveat which I am happy to say I have learned
16 during the course of the inquest from being upbraided
17 from time to time from various quarters. I represent
18 an interested person, I do not have a case to advance,
19 and I advance no case --
20 LORD JUSTICE SCOTT BAKER: Of course you haven't --
21 MR CROXFORD: I am going to answer your question, forgive
22 me, but it is with the greatest of respect absolutely
23 central that I begin my response to your question by
24 making it clear that I don't advance any case.
25 My obligation in answering your questions is clear,

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1 to answer your questions honestly and to the best of my
2 ability, which I am now going to do.
3 LORD JUSTICE SCOTT BAKER: Yes.
4 MR CROXFORD: Now, if I, opening this case against defendant
5 Rat or Darmon have also to consider that co-defendant
6 Henri Paul, and if I make that criticism about excessive
7 speed on the public road and/or the vagaries, then
8 obviously I have to accept that that applies equally to
9 him as it does to any other road user in the
10 circumstances.
11 When I then go on to say in respect of the other
12 criticism which I make of Rat and Darmon, "And they did
13 this deliberately for the purposes of driving very, very
14 close to another vehicle on the road", for some
15 particular purpose that we know of here and driving at
16 that speed within centimetres of a vehicle of itself
17 then offers greater risk and if -- and the jury may come
18 to accept this or not -- the man on the pillion was
19 sitting there with his camera out trying to take
20 photographs snapping away with a flash, then that of
21 itself, the flash is likely to offer distraction to
22 the driver of the other vehicle, and indeed any other
23 vehicles around them.
24 That is the next point I am going to make in opening
25 my case against Mr Rat. If I do not have just Rat and

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1 the Mercedes but I have, as Mr Hackett said, four or
2 five motorcycles all in this swarm around the car, then,
3 much like the Red Arrows have to take extraordinary care
4 not to touch wingtips when flying in close formation,
5 the fact that Rat is driving in very close formation
6 with other vehicles at high speed of itself then
7 contributes to that gross negligence.
8 I will come back to the Henri Paul position:
9 a number, but not all of those criticisms can be made of
10 Henri Paul. I say not all: strictly speaking, I suppose
11 I might have to acknowledge that Henri Paul could have
12 stopped. I assume that notwithstanding it is a freeway,
13 he could simply have stopped and pulled over and that
14 would have brought an end to whatever danger there was
15 from the driving activity.
16 There are other reasons, presumably, why it did not
17 happen and now I move on to the important feature that
18 Mr Keen I am sure is hoping I am going to make plain.
19 If you were to leave unlawful killing gross negligence
20 against the paparazzi and conclude that the basis for
21 doing that, the evidential basis is one which applies
22 equally in respect of Henri Paul, the concomitant part
23 of your direction of course on summing-up will be that
24 they would not conclude that Henri Paul was guilty of
25 unlawful killing. That is the wrong word to use here

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1 but you know exactly what I mean.
2 They would not conclude that Henri Paul was a party
3 to an unlawful killing merely because of his presence.
4 They would have to consider whether, in all the
5 circumstances which in Henri Paul's case will include
6 the fact that he was the man being chased, along with
7 his passengers --
8 LORD JUSTICE SCOTT BAKER: Even if it be the case, knew that
9 he had had too much to drink.
10 MR CROXFORD: I acknowledge that if you are going to leave
11 it, you will leave it with those features but the jury
12 are going to have to consider in respect of Henri Paul
13 what, if any, was the gross negligence that they find
14 against him? Was it grossly negligent for a man in his
15 circumstances to do as he did and they will also have to
16 consider the causative element quite separately.
17 You already have that well in mind. I am not
18 suggesting it is one-way traffic but the jury are going
19 to have to consider, amongst other things, the evidence
20 that they have heard from Dr Searle which you have in
21 mind. You refer to that before the short adjournment.
22 Some of us have a rather simplistic approach to
23 drink driving and assume the mere fact that a driver has
24 drunk over the statutory limit means that he necessarily
25 represents a danger to other road users and that was

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1 the point you will remember that Dr Searle addressed.
2 It is not right. If a driver is driving a car in
3 good condition on a dual carriageway road in which
4 primarily, all he has to do is steer straight, then
5 without more, the fact of his condition being
6 intoxicated does not have a causative effect.
7 LORD JUSTICE SCOTT BAKER: What Searle said was the fact
8 that he was twice the limit was not in his view
9 a sufficient --
10 MR CROXFORD: You put it more accurately. It is the point
11 that I was searching to describe.
12 That of itself does not have a causative effect.
13 What the jury would have to find in respect of you
14 leaving Henri Paul within an unlawful killing potential
15 verdict and directing their attention that they are
16 entitled to take into account any intoxication is that
17 becomes an example, but it is no more than an example,
18 nonetheless, of the need to find a causative link.
19 It is not enough therefore simply to say, "He is driving
20 fast, he is intoxicated" --
21 LORD JUSTICE SCOTT BAKER: It is a matter that can be
22 deduced by inference.
23 MR CROXFORD: I do not disagree with that. I am getting in
24 the habit of this agreeing. It is very comfortable.
25 But nonetheless, it is something that they will have to

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1 look at quite discreetly.
2 LORD JUSTICE SCOTT BAKER: Yes.
3 MR CROXFORD: It is not a problem. It is something that
4 the jury would always have to do in a case that involves
5 gross negligence in a motor situation.
6 LORD JUSTICE SCOTT BAKER: How do you deal with the question
7 of there being a considerable number of paparazzi and
8 how do you, as it were, link the misdeeds of one with
9 the misdeeds of another?
10 MR CROXFORD: Is this the joint enterprise? Do you have in
11 mind what I think Mr Burnett calls joint enterprise?
12 LORD JUSTICE SCOTT BAKER: Yes.
13 MR CROXFORD: There are two ways of doing it, and they are
14 both obvious, with respect, when somebody points them
15 out, as I am about to.
16 The first is Mr Burnett's way: if there is joint
17 enterprise in the way that even I, as a sometime
18 criminal lawyer would understand, if there is truly
19 joint enterprise, then the linkage is straightforward.
20 If there is not -- and, sir, you will find it in
21 paragraph 13 of my speaking note -- that joint
22 enterprise in the orthodox criminal way, it does not
23 matter at all. Some of them may have been in on a joint
24 enterprise; others were not.
25 Assume, see 13.2, that each of the driver or riders

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1 was unknown to the other. Assume that we had two,
2 three, four, five complete strangers. That is
3 the paradigm example for the purposes of testing
4 the position.
5 If each of them chose to drive in those
6 circumstances too fast, too close on a public road at
7 night, et cetera, if each of them chose to do that in
8 circumstances where there were other motorbikes and
9 other cars doing precisely the same thing, each of them
10 independently -- no trouble to have joint enterprise --
11 can be found to have been party to an unlawful killing
12 based upon his own gross negligence manslaughter.
13 It is not necessary for these purposes. Indeed,
14 it is at this stage -- it may be helpful to identify
15 that it is not necessary, but it is not helpful overall
16 to assume that one has to find a linkage between these
17 people.
18 It is particularly unhelpful, if I may respectfully
19 say so, because to concentrate upon linkage between
20 the individuals, merely because they are paparazzi, does
21 little properly to address the evidence in the case. Of
22 course, there is some measure of cooperation between
23 paparazzi, but they were otherwise rivals in this
24 unpleasant affair and there is no expectation that they
25 should be cooperating with one another.

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1 But much more important than that, there is evidence
2 from which the jury could, and we say should, properly
3 conclude that there were people there who cannot be
4 identified at all. They cannot be identified from
5 amongst the cohort of paparazzi. Inspector Carpenter
6 has done sterling work to identify the paparazzi. The
7 French police arrested not all the usual suspects but
8 all those who they could identify and find.
9 All of those people -- all of them with the possible
10 exception of the man with a name like a fish,
11 Mr Salmon -- with the possible exception of Mr Salmon
12 have either been ruled in or ruled out and you know very
13 well that those that have been ruled in have to come
14 down to two. If it is only two, it is not helpful in
15 the scheme of things on the evidence necessarily to
16 concentrate upon joint enterprise.
17 Will you forgive me for just one moment?
18 LORD JUSTICE SCOTT BAKER: The LiveNote has crashed.
19 We will just break off for a moment or two.
20 (2.53 pm)
21 (A short break)
22 (3.00 pm)
23 MR CROXFORD: One more sentence, if I may, arising out of
24 the joint enterprise. I was saying there is no need to
25 have joint enterprise, there are these people riding in

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1 particular circumstances. Of course, that is a most
2 interesting proposition also in respect of the unlawful
3 act case. Because part of what they are doing, each as
4 an individual, is harassing by themselves but also
5 making up the chasing pack. They take advantage of
6 being in a group. No question of joint enterprise there
7 arises.
8 May I next, and I am going to move on but may I take
9 you back for a moment --
10 LORD JUSTICE SCOTT BAKER: I hope you are pretty near
11 the end, because you have had your ration of time.
12 MR CROXFORD: I understand that. But hopefully I have been
13 taking time because I have been answering questions.
14 Could we look at paragraph 12, because I want to
15 explain the note there because it will not mean anything
16 to you. What I have drawn attention to is pages 12 to
17 24 in our skeleton where we identify incidents of fact
18 on the evidence which the jury will be entitled to
19 conclude amount to in this case harassment. That is
20 what the "H" is intended to indicate. It is not every
21 paragraph there, but it is the overwhelming majority of
22 those.
23 Moving on, I acknowledge that -- just finally, I do
24 not want anyone to leave this room and in particular,
25 not you sir -- without thinking that you have had an

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1 answer about the co-defendant, as I prosecute this case,
2 if the criticisms that I make in respect of the
3 paparazzi in those pages, if to any material extent they
4 can be made against Henri Paul, then I acknowledge that
5 leaving the unlawful killing verdict against Henri Paul
6 will become inevitable. I do not shrink from that at
7 all.
8 Right. I would like to say just a couple of
9 sentences about paragraph 14, not to be gratuitously
10 rude, far from it. You have seen our supplementary
11 submissions on what the Metropolitan Police have said
12 but I do lay down this challenge through you, if I may.
13 You have indicated that you anticipate soon that you
14 are going to get some help from Mr Horwell. Can
15 I respectfully suggest you will not get any help at all
16 from Mr Horwell unless he does two things. The first of
17 them is to look at evidence which does not suit. That
18 is, avoid being selective, look also at the other
19 evidence in the case and secondly, face up to the fact
20 that the moment the Metropolitan Police submissions
21 descend to being submissions upon weight and that is all
22 they are at the moment, what weight can be attached to
23 this, that or the other evidence, that is obviously
24 a jury issue.
25 I am not going to read out 14, I do not need to, you

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1 have read ahead of me. I am going to be very brief, if
2 I may, in respect of the white Fiat.
3 The real position is that we know almost nothing
4 about the white Fiat. But there is material from which
5 the jury could conclude that the white Fiat driver drove
6 in a fashion which was grossly negligent, if and insofar
7 as he drove into the lane of or the side of or the path
8 of the Mercedes car.
9 I identify for your benefit pages 51 and following.
10 Especially paragraphs 52 and those others there, 59, 60,
11 page 61, 63, dealing with Dr Searle.
12 But much as one would like to say, "Take the white
13 Fiat out of the equation", in our respectful submission,
14 it is not obvious that one can, even though with know so
15 little about it.
16 May I say a little about narrative verdicts? I am
17 here going to agree with you again, if I may, at least
18 for forensic purposes. In fact, probably for more than
19 that and disagree with something that Mr Keen was
20 putting forward.
21 It is that question of what is the appropriate step,
22 sequence for the jury to take, where Mr Keen was
23 suggesting if they don't find unlawful killing beyond
24 a reasonable doubt, the next step is open verdict.
25 LORD JUSTICE SCOTT BAKER: Well, if you agree with me, I do

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1 not think I need to trouble you any further on that.
2 MR CROXFORD: If you will forgive me, I would like to say
3 this: the conclusory observation which has to be paraded
4 in front of you is important, the debate which you were
5 having instigated before Mr Keen was essentially
6 sterile. That is his fault.
7 But on your correct approach to all of this, if
8 the jury have concluded that they cannot be satisfied so
9 that they are sure of manslaughter, but might have been
10 satisfied to 51 per cent balance of probabilities, then
11 of course, approaching it in the way that you would say
12 and direct them on this, look at accident, they will
13 next reject accident because they are sure it was not an
14 accident, 51 per cent.
15 They will then have to look at open verdict. If
16 I may say so, with respect, that is unassailably
17 logical.
18 Narrative verdicts: we agree that complex
19 questionnaires are not desirable but they are not
20 necessary. I have touched on this already. We suggest
21 that there are half a dozen or so questions. They are
22 in our appendix which, in that form or something similar
23 to them, can be adopted and adapted properly to address
24 the issues in this case.
25 Paragraph 17 is important and I suspect you have

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1 read ahead of me. That is the principle. I thought
2 I had detected -- but I may well be wrong -- no
3 resistance to the idea that there must be some sort of
4 narrative to come from this jury so that we have an
5 understanding of what it is that they have concluded.
6 LORD JUSTICE SCOTT BAKER: It would be very disappointing if
7 they had been sitting here for six months and they could
8 not tell us anything at the end of it.
9 MR CROXFORD: Absolutely. I also put it round the other way
10 and it is in our closing submissions on this very point,
11 with this particular jury -- what I am about to say
12 sounds patronising but it is not intended to be -- the
13 attention which this jury has self-evidently been paying
14 to these inquest, in common with many other juries in my
15 experience, but this jury clearly have been on top of
16 this, keen to take part, keen to understand; it would be
17 wrong if they were deprived of the opportunity properly
18 and fully to deliver the result of their deliberations.
19 Quite wrong. I will say no more about it at the moment
20 if I may.
21 Sir, can I ask, while I have been prattling on here:
22 have you had the opportunity to cast your eye over
23 paragraph 18 of my speaking note? This is the one that
24 Mr Richard Keen has told me that I cribbed from
25 Mr Weekes, which is why it is so much better than

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1 the rest of it.
2 LORD JUSTICE SCOTT BAKER: Yes, I am aware of that.
3 MR CROXFORD: Can I ask you, is that in both senses or only
4 one, sir?
5 LORD JUSTICE SCOTT BAKER: You can interpret it how you
6 like.
7 MR CROXFORD: We have set out -- or Mr Weekes has set out
8 and I have cribbed -- the relevant passages in
9 the judgments and unless you ask me to, I am not going
10 to take you through them in detail because they provide
11 you with a more than adequate basis upon which to
12 conclude that narrative verdicts are not only permitted
13 but they are appropriate in a case such as this.
14 Well, at long last, I have reached article 2 of
15 the European Convention on Human Rights. As I say --
16 LORD JUSTICE SCOTT BAKER: I think you have used up your
17 team's time at the moment. I would rather hear
18 the others next and leave article 2 until the end.
19 MR CROXFORD: I daresay Mr de la Mare is relieved about
20 that. I doubt it, but there we are.
21 Apart from using up time, sir, is there anything
22 else you would usefully like me to try and deal with?
23 LORD JUSTICE SCOTT BAKER: I think you have covered
24 the territory, thank you.
25 Mr Horwell?

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1 Submissions from MR HORWELL
2 MR HORWELL: Can I spend I hope no more than five minutes on
3 the evidential points raised by Mr Mansfield this
4 morning and then turn to the law?
5 We all admire, of course, Mr Mansfield's stamina and
6 ingenuity but he is wrong, both as to the evidence and
7 the application of Galbraith. After five and a half
8 months it appears that we are down to four witnesses to
9 establish staged accident: Boura, L'Hostis, Partouche
10 and Gooroovadoo, and their evidence does not establish
11 a sinister mechanism for the crash. The evidence of
12 Partouche and Gooroovadoo shows that the Mercedes engine
13 roared -- and they are professional chauffeurs -- as
14 it was driven into the tunnel at speed and that it had
15 to change lanes to avoid a slower car.
16 Slower vehicles, vehicles travelling at the speed
17 limit, present a danger when the speed limit is exceeded
18 to the extent that is present in this case. And the car
19 in front of the Mercedes that Boura and L'Hostis saw is
20 very likely to have been the vehicle of Moufakkir and
21 Medjahdi, the argument that we have set out in our
22 reply.
23 Because Medjahdi said that there were no other
24 vehicles between him and the Mercedes and that is
25 compelling evidence, we would suggest, that they are one

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1 and the same vehicle.
2 The expert evidence is that the Mercedes did not
3 collide with any vehicle other than the Fiat Uno and
4 the motorcycle was not immediately behind the Mercedes;
5 the scenario that was suggested this morning. If it had
6 been immediately behind, as we heard from the experts,
7 it would have become involved in the accident. It came
8 along shortly afterwards. Our submission, as we have
9 set out and do not in any sense intend to repeat, is
10 that there is no evidential basis upon which this jury
11 could conclude that this was a malevolent blocking
12 vehicle intent on harm to the occupants of the Mercedes.
13 That would be a perverse verdict.
14 We heard reference this morning -- I know that we
15 have dealt with this in the argument -- but Mr Mansfield
16 persists in the point that Lucard has described three
17 motorcycles leaving Rue Cambon after the Mercedes.
18 Mr Mansfield pointed out that Lucard's first witness
19 statement included that detail and Mr Mansfield
20 submitted that the first witness statement is always
21 the best. Well, that may be, but Lucard's first witness
22 statement was not made until eight months after this
23 incident, on 27th April 1998.
24 The CCTV evidence shows that he is wrong. There
25 were not three motorcycles, there was one scooter in

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1 Rue Cambon, driven by Benhamou.
2 There is no evidence of a planned operation. There
3 is no evidence to identify anyone who might have been
4 involved. There is no credible evidence as to motive
5 and there is no evidence upon which a jury, properly
6 directed, could return a verdict of unlawful killing in
7 the conspiracy sense.
8 We are all keen to help Mr Mansfield win a Galbraith
9 argument, but not this one, is our submission.
10 Can I turn to the topic that is obviously causing
11 concern, because it is a difficult one. We appreciate
12 that, as I think does everyone else and the approach
13 that we have had hitherto is that this is very much
14 a borderline decision and we have suggested, as you
15 know, that Henri Paul falls one side of the line and
16 the paparazzi fall the other.
17 In terms of Henri Paul, we have his impairment.
18 There is plainly evidence before the jury for them to
19 conclude that he was impaired through alcohol. Speed,
20 a point that perhaps is easily forgotten. This was an
21 unfamiliar vehicle.
22 As for the paparazzi, an issue that you raised this
23 morning, we submit that his response is in fact an
24 aggravating feature and that their presence is not
25 a mitigating factor, because Henri Paul made

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1 the decision as to how to react.
2 LORD JUSTICE SCOTT BAKER: He had a free choice.
3 MR HORWELL: Yes. He could have stopped, he could have
4 driven at a normal speed and one has to take into
5 account what was at stake here. A few photographs.
6 LORD JUSTICE SCOTT BAKER: It is not as if Henri Paul's life
7 or being was under threat, or anybody else in
8 the vehicle.
9 MR HORWELL: No. What was at stake was the taking of a few
10 photographs of a car in a street in Paris.
11 LORD JUSTICE SCOTT BAKER: And the whole problem would have
12 gone away if the car had stopped and the photographs had
13 been taken.
14 MR HORWELL: Yes. His conscious decision was to
15 deliberately outrun the paparazzi. And that conscious
16 decision created a risk. And speed and impairment meant
17 that he was ill-equipped to avoid slower moving traffic.
18 And the jury would be entitled, we suggest, to infer
19 that it was his negligence that caused the deaths. And
20 the question then arises, which is often a difficult
21 one: was that negligence gross?
22 LORD JUSTICE SCOTT BAKER: You say his negligence caused
23 the deaths. It would not necessarily be the sole cause
24 of the deaths.
25 MR HORWELL: No, it does not have to be.

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1 LORD JUSTICE SCOTT BAKER: It would not be fatal to
2 a manslaughter allegation that it was not the sole
3 cause.
4 MR HORWELL: That is right.
5 The rule in murder, whether it is murder or
6 manslaughter, is more than minimal. And the jury,
7 we submit, would be entitled to decide that it was gross
8 negligence because of the speed, because of his
9 conscious decision to outrun the paparazzi, because of
10 his impairment and we do submit that the nature of the
11 road is a factor.
12 Your counsel have helpfully set out in the document
13 we received last night a number of examples of judges
14 stating how high the test is of gross negligence and
15 it is a helpful reminder. It is a very high test.
16 But what we would suggest is that although no one
17 would describe this as the strongest of cases, it is
18 capable of meeting that test and it is a verdict that,
19 if returned, would be a proper one.
20 Looking at the paparazzi in isolation for
21 the moment, as you know we have formed the view that
22 their activity was negligent, as plainly it must have
23 been, but that that negligence was not gross.
24 LORD JUSTICE SCOTT BAKER: I am bound to say that with all
25 due respect to Mr Croxford, I still have not really had

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1 a clear picture in my mind's eye as to what the high
2 watermark of the case against the paparazzi for gross
3 negligence is. I do not know if you are in a position
4 to formulate it?
5 MR HORWELL: We have accepted negligence on the basis that
6 there must be a breach of the duty of care that you owe
7 to other road users if you chase them, because you are
8 putting them under pressure.
9 And the reason why we have not formed the view that
10 the negligence was gross is for these reasons.
11 The precise actions of the paparazzi are far from clear.
12 Some witnesses describe bikes in very close attendance,
13 and some witnesses refer to the Mercedes effectively
14 being isolated on the road.
15 LORD JUSTICE SCOTT BAKER: It might be said then that for
16 these purposes, one has to take the case against
17 the paparazzi at its highest.
18 MR HORWELL: Yes, I would accept that.
19 LORD JUSTICE SCOTT BAKER: In other words, Mr Hackett, was
20 he one?
21 MR HORWELL: Yes.
22 LORD JUSTICE SCOTT BAKER: That is about it really,
23 the strongest. He said three or four and others have
24 said in a little group round. I think he said four or
25 five in his little diagram and then he reduced it to

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1 three or four in evidence.
2 MR HORWELL: That is right, that is right. But it is
3 difficult to be clear as to precisely what was happening
4 as the Mercedes approached the Alma Tunnel which is
5 the critical factor that there may have been swarms of
6 paparazzi around the Mercedes at an earlier stage.
7 LORD JUSTICE SCOTT BAKER: Well, is this a second limb of no
8 case, or the first limb?
9 MR HORWELL: In terms of the paparazzi, we would suggest
10 it is second, in terms of the lack of evidence of
11 grossness but as I hope I have made clear, we do accept
12 that it is close to the line.
13 LORD JUSTICE SCOTT BAKER: Yes.
14 MR HORWELL: And that it is a difficult decision of
15 judgment. As you know, we make the point that surely
16 the paparazzi are entitled to assume that the driver was
17 sober and they are entitled to assume that the driver
18 was at least taking care not to drive recklessly.
19 LORD JUSTICE SCOTT BAKER: I think entitled to assume
20 the driver was sober; perhaps that is not quite
21 the right way of putting it. It would be that there is
22 no evidence to show that he was not sober.
23 MR HORWELL: They must have been entitled to work on the
24 basis that the driver was sober and that because the
25 driver was the driver of Dodi Al Fayed and Diana

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1 Princess of Wales that the driver at least had some
2 experience of driving celebrities of that nature.
3 LORD JUSTICE SCOTT BAKER: Yes.
4 MR HORWELL: One potential approach which we have not set
5 out in the argument in writing is a joint enterprise
6 between Henri Paul and the paparazzi which is a third
7 way of looking at this situation.
8 Obviously if a group of cars indulge in motor racing
9 on the highway, there is an element of joint enterprise,
10 plainly and the risk they collectively create is
11 something that one must consider. There could have been
12 a prosecution if Henri Paul had survived.
13 LORD JUSTICE SCOTT BAKER: How does that distinguish then
14 from a police chase? It would not be a joint enterprise
15 there --
16 MR HORWELL: Well, the police are acting lawfully.
17 The police are acting to stop crime, not to cause, and
18 that would be the difference, in my submission.
19 There have been cases where four or five cars on
20 a road, each of the drivers strangers to the other
21 indulge in motor racing, somebody is killed and each is
22 prosecuted and convicted.
23 LORD JUSTICE SCOTT BAKER: Yes, driver A is overtaken by
24 driver B and driver A decides to burn off driver B and
25 so they go up the motorway at 100.

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1 MR HORWELL: Yes, whether that joint approach is a manner of
2 pushing the paparazzi over the line, I am not sure.
3 I do not suggest that it does. We have looked at this
4 so far as two separate entities and those are the views
5 that we have formed.
6 The Harassment Act point is not easy. Harassment is
7 one of those criminal offences that everyone knows when
8 they see it but it is very difficult to define.
9 Parliament have not sought to define it with any clarity
10 at all.
11 What we have found helpful: there has been
12 insufficient time to research this point in detail but
13 sir at Archbold -- do you have it?
14 LORD JUSTICE SCOTT BAKER: I do not have mine here.
15 MR HORWELL: Can I pass one up. Sir, it is page 1919.
16 LORD JUSTICE SCOTT BAKER: Curiously enough I have been
17 involved in a couple of cases under the Harassment Act,
18 both in the civil context.
19 MR HORWELL: You have the advantage over me.
20 LORD JUSTICE SCOTT BAKER: 1919?
21 MR HORWELL: It is the top of the page, Tuppen.
22 "Douglas Brown J held that there being no definition
23 of harassment in the Act, it was legitimate to have
24 recourse to the proceedings in Parliament as an aid to
25 construction because of the wide potential and

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1 far-reaching meaning that might be attributed to
2 the word.
3 "Such reference made clear that the behaviour sought
4 to be controlled was conduct such as stalking,
5 antisocial behaviour by neighbours and racial
6 harassment. The conduct of oppressive litigation could
7 not however amount to harassment within the Act."
8 And the definition of course at page 1924 of
9 harassment --
10 LORD JUSTICE SCOTT BAKER: Yes.
11 MR HORWELL: References to harassing a person include
12 alarming the person or causing the person distress.
13 Now apart from the legal difficulty that your
14 counsel have set out in their argument, there must be
15 a very strong argument, we would have thought, for
16 saying that this was not harassment. It did not fall
17 within the definition debated within Parliament. And
18 these were photographers taking photographs of Diana
19 Princess of Wales in particular who had been in
20 the public eye for some 17 years by this time and was
21 more than used to having her photograph taken.
22 There is evidence that on occasions Dodi Al Fayed
23 did not find any discomfort from having his photograph
24 taken. And there is a plain inference that
25 the paparazzi taking photographs of celebrities and

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1 driving after them was relatively commonplace. I am not
2 suggesting that that excuses --
3 LORD JUSTICE SCOTT BAKER: So is stalking.
4 MR HORWELL: I am not suggesting that that excuses their
5 behaviour but does that behaviour really fall under
6 the intention of Parliament when creating this Act?
7 We submit that there must be reservations. It is
8 a complex Act that would require complex directions.
9 Our initial response to this suggestion was
10 instinctively to be against it. It does appear a little
11 artificial and after Mr Croxford's argument and his
12 literary references, we have a pathological dislike,
13 I must confess, of putting to this jury a case of
14 unlawful killing on the basis of this unlawful dangerous
15 act.
16 This is not a reason for suggesting that it is wrong
17 but it certainly never appeared to us and now that we
18 have had the opportunity of looking at it, we are
19 concerned about its artificiality and we are concerned
20 whether it meets the dangerous Act requirement. We are
21 concerned that it will complicate the task of the jury,
22 especially if they are considering gross negligence
23 manslaughter in relation to Henri Paul.
24 As we have set out in our written submission,
25 plainly it is our submission that if you leave unlawful

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1 killing paparazzi to the jury, you must leave Henri Paul
2 and we have not heard any argument of substance to
3 the contrary. It was his foot on the accelerator.
4 It was his hands on the steering wheel and he must take
5 the principal responsibility for what happened.
6 Those are our submissions, unless we can assist you
7 further.
8 LORD JUSTICE SCOTT BAKER: When I get to directing the jury
9 on accident, do you see any problem about inviting them
10 to produce a narrative verdict of those matters that
11 I conclude could properly be regarded as causes of
12 the accident and leave it to them to select which
13 ones -- I presume I think it would be on balance of
14 probabilities, wouldn't it -- they thought qualified?
15 MR HORWELL: Not at all. We support the submissions for
16 a narrative verdict.
17 LORD JUSTICE SCOTT BAKER: There are two aspects. There is
18 the causes of the decision and the real question is
19 cause of death. How the deceased came by their death
20 but one can divide it into causes of the collision and
21 causes of death.
22 As to causes of death, what would you say about
23 seat-belts? The evidence, as I recollect, suggests that
24 if the deceased had been wearing seat-belts, the chances
25 of survival would have been greater, but beyond that,

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1 it is impossible to say.
2 MR HORWELL: Mr Burnett helpfully reminds me, my
3 recollection was that one of the witnesses shall, and
4 I am reminded, it is Searle, went further, that
5 the wearing of seat-belts would have saved them.
6 Whether that requires a particular question to be
7 answered from the jury, we effectively have the answer
8 to it, of course.
9 LORD JUSTICE SCOTT BAKER: That is what I wondered, really.
10 We have an answer to it.
11 MR HORWELL: Yes. Obviously the purpose of these inquests
12 is to discover why the car went out of control and it is
13 a question to which there is a very real and obvious
14 answer so whether there is any utility in asking
15 the jury that question, at the moment --
16 LORD JUSTICE SCOTT BAKER: You are doubtful?
17 MR HORWELL: I am. Unless I can assist you further.
18 LORD JUSTICE SCOTT BAKER: Thank you.
19 Yes, Mr Burnett?
20 Submissions from MR BURNETT
21 MR BURNETT: Sir, you did not invite us to put in any
22 submissions at the same time as the interested persons
23 provided them for your consideration last Friday
24 afternoon and evening. But you did invite us to look at
25 those submissions and try to produce a shortish document

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1 to set out where we saw matters as lying.
2 That document was circulated yesterday evening.
3 I might say it would have been sooner had we not been
4 distracted by the judicial review that took up a certain
5 amount of our time on Tuesday and on Monday.
6 Now, sir, we have sought to set out a series of
7 legal propositions. And then additionally, to deal in
8 relatively short order with each of the main verdicts
9 and points of arguments that arise in the written
10 submissions of the interested persons and which have
11 been elaborated upon in the oral submissions today.
12 Sir, it would not help you or those listening as
13 time marches on if I were to go all the way through
14 these submissions and I hope I might be forgiven if
15 I desist from doing so. But what I might do, with your
16 leave, is simply to touch on one or two points and
17 provide some elaboration to the extent that you feel
18 it is helpful.
19 We set out -- and I am looking at pages 2 and 3 --
20 some general matters of law which are uncontroversial.
21 And then in paragraph 6 of these submissions, we seek to
22 isolate what it is that the jury is tasked to do by
23 reference to the appropriate coronial law and
24 the question as others have focused upon is how
25 the deceased came by their deaths.

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1 This is a question which is very easily articulated,
2 but it is one that has caused difficulty both in
3 definition and in application for many years as you are
4 well aware and others have adverted to it. The case in
5 which one finds the broadest review of the principles
6 underpinning coroner's inquests is ex parte Jamieson,
7 1995 Queens Bench 1 and at page 24 letter A, Sir Thomas
8 Bingham, then Master of the Rolls, sought to explain
9 what that term means in the relevant statutory
10 provisions. He said:
11 "How is to be understood as meaning by what means.
12 It is noteworthy that the task is not to ascertain how
13 the deceased died, which might raise general and
14 far-reaching issues but how the deceased came by his
15 death, a more limited question directed to the means by
16 which the deceased came by his death."
17 Sir, that case was decided at the end of 1994 at
18 a time before the Strasbourg court considering article 2
19 of the European Convention determined that that
20 provision had a procedural aspect in cases where it
21 might plausibly be suggested that the state has had
22 a hand or responsibility for a death.
23 So once the Human Rights Act came into force, and
24 the Convention had direct application, the question what
25 was meant by "how" in the relevant coroner's legislation

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1 had to be looked at again. That was done in the case of
2 Middleton which we cite, 20042 Appeal Cases 182 and all
3 that was required to bring the statute into conformity
4 with the Convention was a very slight adjustment which
5 one sees in the paragraphs we set out to the effect that
6 in cases in which article 2 is engaged, how should mean
7 by what means and in what circumstances:
8 The House of Lords achieved that result by applying
9 section 3 of the Human Rights Act. It follows, as
10 we shall see, that they could not achieve that result by
11 ordinary canons of interpretation.
12 The case of Hurst, to which much reference has been
13 made, came before the House of Lords at the beginning of
14 last year. It concerned a death which had occurred
15 before the implementation of the Human Rights Act; in
16 other words, it was in the same position as the deaths
17 with which you are concerned.
18 The simple facts which are important to understand
19 what the case is about is that the deceased had been
20 killed by a neighbour. That neighbour was prosecuted
21 and in due course, convicted of manslaughter.
22 The inquest was adjourned, as one would expect, and
23 a question arose after the prosecution was complete
24 whether the inquest should be resumed. It was
25 the concern of the family of the deceased that

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1 the authorities -- and in particular, the police -- were
2 well aware of a history between the deceased and his
3 neighbour and, to put it very shortly, had failed to act
4 upon all sorts of warnings to protect him.
5 The Coroner decided not to resume the inquest.
6 There was a judicial review and in due course, the Court
7 of Appeal held that despite the death having taken place
8 before the relevant date for the implementation of the
9 1998 Human Rights Act, the provisions of the Convention
10 were nonetheless applicable.
11 That was the point principally which went to
12 the House of Lords and the Court of Appeal was
13 overturned. I need say nothing more about that. But
14 there was a subsidiary argument that even though
15 the Convention had no application, the Coroner should
16 nonetheless have resumed the inquest to enable the
17 background of alleged state authority failing which
18 included police, local authorities, health authorities
19 within the orbit of complaint, to enable all of that to
20 be investigated.
21 One of the arguments that was placed in the way of
22 that particular proposition was that there was no point
23 in doing so because a Jamieson-type inquest, a pre Human
24 Rights inquest, was different from a Middleton-type
25 inquest, the post Human Rights Act inquest.

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1 It is extremely important to understand the comments
2 of Lady Hale and Lord Mance in that context, simply
3 whether the Coroner should despite no direct application
4 of article 2, have resumed the inquest.
5 Lord Mance and Lady Hale were in a minority in
6 suggesting that the Coroner should have resumed
7 the inquest and the reason they were in the minority was
8 because the majority, which on this comprised
9 Lord Brown, Lord Bingham, Lord Hope and Lord Rodger,
10 decided that there was no point because the scope of the
11 inquest could not range as far as the respondent
12 supported in this by Lady Hale suggested was
13 appropriate.
14 So, there was debate about whether the scope of
15 inquests under Jamieson and Middleton were the same and
16 the answer to that was no. There was no doubt
17 whatsoever that the product of inquests, namely
18 the verdicts and the appropriate conclusions of the jury
19 were different pre Human Rights Act and post Human
20 Rights Act.
21 Therefore, when considering what it is appropriate
22 to leave to this jury, we respectfully submit that the
23 guiding authority is Jamieson and that you should have
24 particular regard to the general conclusions that are
25 fully set out in the joint written submission of my

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1 learned friends and which are in any event familiar, and
2 in particular, one needs to bear in mind that whilst
3 a narrative verdict or questions that might elicit
4 the same points are not in any sense prohibited by
5 Jamieson, nonetheless the clear direction of the Court
6 of Appeal is that whatever the jury is invited to do, it
7 should be in short order, it should be factual --
8 LORD JUSTICE SCOTT BAKER: And simple.
9 MR BURNETT: -- simple and non-judgmental and in
10 particular, the prohibition in the statute against
11 expressing views other than the four statutory questions
12 is undoubtedly paramount.
13 Sir, it is for that reason that we have respectfully
14 submitted that the very lengthy questionnaire that my
15 learned friends Mr Mansfield and Miss Macdonald have
16 appended to their submissions would not, for all sorts
17 of reasons, be appropriate in a Jamieson-type inquest;
18 we would doubt, with respect, whether appropriate in any
19 type of inquest. But there does otherwise appear to be
20 nothing really between us and the balance of my learned
21 friends in submitting that it is both appropriate and
22 desirable, subject to the constraints of Jamieson, that
23 you seek to devise a route through which the jury can
24 express their findings of fact on the principal causes
25 of the crash.

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1 Whether that is done by a slightly extended
2 narrative verdict beyond the very anodyne two or three
3 sentences that Sir Thomas gave as an example, guided by
4 indications from you of the main factors that will be in
5 play or whether it is done directly by questions of
6 the sort put forward by my learned friend Mr Croxford is
7 perhaps of little consequence.
8 Now, sir, we deal with the correct approach to
9 verdicts in coroner's cases. And there seems, as it
10 appears to us, to be relatively little between any of
11 the parties on this. Each of us I think has drawn your
12 attention to the cases of ex parte Palmer and ex parte
13 Douglas-Williams.
14 My learned friend Mr Mansfield referred to a case
15 called Cash, a decision of Mr Justice Field, which was
16 given on 8th June 2007, albeit argued two or three
17 months before.
18 As you know sir, because this also has been referred
19 to, there was shortly after Mr Justice Field gave his
20 decision, a decision from the Court of Appeal in
21 the case of Bennett from which we cite in paragraph 12
22 of our submissions.
23 Although that decision came after the decision of
24 Mr Justice Field, by two or three weeks, the case had
25 been argued while Mr Justice Field was considering his

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1 judgment. And so it appears to us, with respect, that
2 the last word judicially on this --
3 LORD JUSTICE SCOTT BAKER: Lord Justice Waller.
4 MR BURNETT: -- matter is Lord Justice Waller in Bennett
5 and we have set out in paragraph 12 of our written note
6 the extract from I think it is paragraph 30 that other
7 have already drawn your attention to.
8 Sir, perhaps it is also worth my while emphasising,
9 without going back to the authority, that in Galbraith
10 itself, the Lord Chief Justice recognised that there
11 would be borderline cases which could safely be left to
12 the discretion of trial judges and that of course in
13 the context of a criminal case in which a trial judge
14 who sat patiently or not listening to the evidence and
15 cross-examination for days, weeks or months, but it
16 applies equally in the case of a coroner, whether one is
17 applying Galbraith in its strict sense or in
18 the slightly modified sense that one sees from
19 the decision of the Court of Appeal in Bennett.
20 We draw particular attention to the borderline cases
21 because, as it appears to us at least, the question
22 whether unlawful killing by gross negligence
23 manslaughter should be left to the jury in respect of
24 the paparazzi on the one hand, Henri Paul on the other,
25 neither or both, is a question which everyone has not

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1 found very straightforward. And the submissions that
2 have been made have been extremely helpful, we would
3 suggest, in trying to clarify your thinking.
4 Now, before coming to that, there are just one or
5 two other discrete points. It is common ground that
6 unlawful killing may be returned by a jury only if they
7 are satisfied to the criminal standard.
8 There was a debate between you and my learned friend
9 Mr Keen, and returned to but briefly by Mr Croxford,
10 about how one should leave the different verdicts,
11 the hierarchy and where open verdict may come into that.
12 That is a point that was dealt with in the case of
13 McCurbin that we cite in paragraph 13B of our outline
14 note which is at page 728C to D. The position with
15 authorities today is that almost everybody has produced
16 bundles and it means that none of us have all of them
17 but we have given the reference there and I am pretty
18 confident that McCurbin is in the bundles somewhere. If
19 not, we will give it to you. But essentially what Lord
20 Woolf said is leave unlawful killing first. If the jury
21 doesn't come to the conclusion that it is unlawful
22 killing, then it goes to accidental death if that is in
23 play --
24 LORD JUSTICE SCOTT BAKER: And open is the sweeper up?
25 MR BURNETT: Yes, but inevitably sir, as we submit in our

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1 note, and I am sure everybody would agree, in
2 considering especially accident, the jury has to have in
3 mind all of the circumstances and all of the evidence
4 that it is suggested might support unlawful killing, but
5 for one reason or the other either has not been left to
6 them or has been rejected by them having considered it.
7 LORD JUSTICE SCOTT BAKER: Well, all the evidence? What
8 about no evidence?
9 MR BURNETT: If there is literally no evidence --
10 LORD JUSTICE SCOTT BAKER: Mr Horwell's argument is that
11 there is no evidence in regard to the staged accident.
12 Your submission is there is some evidence that this is
13 a case that should or could not be left to the jury; is
14 that right?
15 MR BURNETT: Sir, that is how we put it. There is evidence
16 which we submit, as I will come to in a moment, really
17 carries the argument almost nowhere of, shall we say
18 a flash in the tunnel.
19 There is nothing, we would submit, from which one
20 could infer that that was a malevolently issued flash
21 and when we look at it, as I shall more broadly in
22 a moment, there is nothing that can properly lead to
23 a conclusion of unlawful killing/staged accident.
24 Nonetheless, all of the facts of the evidence need
25 to be summarised to the jury because they will be asking

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1 themselves questions in whatever order you leave them.
2 So, it may be better if I deal with that further when
3 I come to it.
4 LORD JUSTICE SCOTT BAKER: Yes.
5 MR BURNETT: Sir, we set out the law relating to gross
6 negligence manslaughter in some detail in our note
7 largely because it is an area that habitually causes
8 some difficulty. I shall not read --
9 LORD JUSTICE SCOTT BAKER: The underlying problem in
10 criminal cases is, "If, members of the jury, you think
11 this is so bad that you think the defendant should be
12 convicted, therefore find him guilty" and that is
13 the difficulty of squaring gross negligence with that,
14 it is circular.
15 MR BURNETT: The Court of Appeal relatively recently, it may
16 have been in Misra itself, explained very elegantly why
17 to suggest that the argument was circular is fallacious
18 and they did so so elegantly that at the moment I am
19 having difficulty in remembering quite how it was put.
20 But there is a serious point here in the way in
21 which gross negligence manslaughter is dealt with at
22 the Galbraith test.
23 It might be tempting to make a very straightforward
24 submission that if the jury were satisfied of a duty of
25 care and they were satisfied of a breach of that duty,

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1 and they were satisfied that there was a risk of death,
2 and they were satisfied or could be of causation, then
3 the matter must just be left to them. In other words,
4 for the judge at the half time stage, all he need do is
5 say, well, is there evidence of negligence and then
6 it is for the jury to decide whether it is gross
7 negligence or not.
8 That is simply not an approach that could possibly
9 be adopted because the judge himself has to form a view
10 about whether the negligence is gross enough or is
11 capable of being gross enough to found a conviction.
12 Again, speaking for ourselves, it is rather
13 difficult to think of Galbraith in its strict sense
14 where, in any case involving the question is it
15 negligence or gross negligence, there is going to be
16 a matter of degree in there somewhere. But, sir, there
17 are other points that need to be emphasised.
18 It is undoubtedly right that gross negligence
19 manslaughter can only run where there is a risk of
20 death. So, it is difficult from ordinary negligence in
21 the environment we are used to operating.
22 But if my learned friend Mr Croxford in his
23 submissions was seeking to suggest, and it may be that
24 I misunderstood him, that the jury has to consider is
25 there a risk of death and then answer that question, yes

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1 or no, park it and move on to the question of
2 the grossness of the negligence, we would respectfully
3 submit that that is wrong. The question of whether
4 the negligence is gross, so serious as to found criminal
5 liability, is inevitably tied up with the degree of
6 risk. Put simply, if the risk that you are running of
7 death is a very great one indeed, for example, if you
8 don't fix the door on an aeroplane properly and someone
9 falls out at 10,000 feet, it is most unlikely they would
10 survive.
11 The degree of negligence there that is found to be
12 gross may not in fact be very much, because of the risk
13 involved. That is the point made emphatically by
14 Lord Mackay in Adomako when he said this at page 187B:
15 "The essence of the matter which is supremely a jury
16 matter is whether, having regard to the risk of death
17 involved, the conduct of the defendant was so bad in all
18 the circumstances as to amount in their judgment to
19 a criminal act or omission."
20 So, it is having regard to the risk of death. It is
21 all in the pot together. That, we submit, is an
22 important point to bear in mind.
23 Sir, we set out extracts from the summing-ups in
24 Misra --
25 LORD JUSTICE SCOTT BAKER: In that regard, it was most

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1 unfortunate that the collision caused the deaths and
2 this was only as a result of the fact that the vehicle
3 hit the pillar.
4 MR BURNETT: Yes. Sir, it is a factor. It might be
5 thought, well, there is obviously a risk of death in any
6 car smash at 60 to 70 miles per hour. I suppose that
7 would be a very difficult proposition to deny.
8 LORD JUSTICE SCOTT BAKER: What you are really saying is you
9 cannot analyse the risk much further once you get to
10 a speeding vehicle.
11 MR BURNETT: Sir --
12 LORD JUSTICE SCOTT BAKER: There is likely to be a serious
13 collision, and that is it.
14 MR BURNETT: Sir, yes. That is the risk that anyone
15 involved in that chase or race that appears to have been
16 going on along the expressway was that one of the
17 vehicles involved would have run into problems. It
18 could have been a paparazzi vehicle just as much as the
19 vehicle Henri Paul was driving. It could just as easily
20 have been the Fiat Uno if the Mercedes had cracked up
21 its back.
22 LORD JUSTICE SCOTT BAKER: If you overtake on a blind corner
23 on 70 miles per hour, you may get away with it, because
24 there is nobody coming in the opposite direction but
25 that would not be an answer --

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1 MR BURNETT: And the risk there, if you did hit somebody,
2 would be a very serious one. So we cannot suggest here
3 that the risk of death --
4 LORD JUSTICE SCOTT BAKER: It is the risk that you are
5 looking at, rather than the materialisation of the risk.
6 MR BURNETT: Yes, it is. It is.
7 But nonetheless what was going on in Paris, put at
8 its highest, for bad driving, whoever's driving we are
9 looking at, gave rise to a risk of a crash, therefore
10 a risk that somebody might die but there was certainly
11 not a case in which there was an inevitability and we
12 have heard so much evidence that a whole series of
13 unfortunate, unlucky things came together which resulted
14 in death rather than anything else; especially hitting
15 the corner of the pillar rather than hitting it in any
16 other way.
17 So, we draw attention to that. We set out
18 the extracts from the various summing-ups and in
19 the time available to us overnight, I am afraid we did
20 not have a chance to copy up all those summing-ups but
21 if any of my friends are interested in seeing them in
22 extenso, I will happily have that done.
23 Sir, we also draw attention to a point that has now
24 been discussed with each of my learned friends, namely
25 the joint enterprise question, that undoubtedly does

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1 come in. Although I suppose it might be said that if
2 any individual driver were to join a pack of vehicles
3 that appeared to be racing on the highway, that might be
4 sufficient both individually and to found a suggestion
5 of joint enterprise for the type of reason that my
6 learned friend Mr Horwell was describing and you were
7 thinking of. It is, I suppose, entirely possible that
8 three people who know nothing of each other are lined up
9 at a set of traffic lights and then end up having
10 a race.
11 LORD JUSTICE SCOTT BAKER: That is not this case really, is
12 it?
13 MR BURNETT: It is not this case, but it is not a point
14 we respectfully submit can be overlooked completely.
15 It was a slight concern when reading the submissions
16 from the Ritz that everything was simply described as
17 "the chasing pack" as if one looked at the conduct of
18 the pack as opposed to the conduct of any individuals
19 within the pack.
20 LORD JUSTICE SCOTT BAKER: I do have this difficulty: you
21 are really looking at what happens before the accident
22 and all the paparazzi who arrive there after
23 the accident are nothing from the point of view of
24 manslaughter, unless they have actually participated in
25 the chase in some way.

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1 MR BURNETT: Indeed.
2 LORD JUSTICE SCOTT BAKER: And participated in the chase in
3 a way that points to gross negligence.
4 MR BURNETT: Yes. There are real difficulties as it seems
5 to us in trying to extract from the various different
6 accounts that eye witnesses have given of the journey,
7 shall we say along the expressway, leaving aside how
8 the position was in the Place de la Concorde, where
9 nothing dangerous appears to have been going on. It is
10 very difficult to extract from the evidence any clear
11 picture.
12 LORD JUSTICE SCOTT BAKER: Where is the high watermark of
13 gross negligence? That is the point I keep asking
14 myself and finding it difficult to really get a very
15 satisfactory answer to. It may be that that is
16 indicative.
17 MR BURNETT: Sir we sought -- and perhaps I would go to it
18 straightaway -- to identify in respect of the chasing
19 vehicles what might be suggested in respect of them
20 collectively or any of the individual riders or drivers.
21 First, that they caused Henri Paul to drive fast to
22 get away from them. That is the essence of it. He was
23 going much faster than he would have done without
24 wishing to get away from the paparazzi had he simply
25 been driving the couple back to Rue Arsene Houssaye.

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1 That is the main thing that it might be said
2 the paparazzi contributed to: the speed at which
3 the Mercedes was being driven.
4 Then, although the evidence of this is extremely
5 mixed and mixed up, we would suggest, it is possible
6 that the presence of vehicles nearby was a distraction
7 which led him to take action to avoid the Fiat Uno going
8 slowly along the expressway ahead of him rather later
9 than he otherwise might have done. It is a possibility,
10 no more than that.
11 And the third is that it is possible on some of the
12 evidence that they were close enough to him to have
13 literally boxed him in and closed down some of the
14 options that he might have had, albeit obviously one of
15 those options was always slowing down.
16 LORD JUSTICE SCOTT BAKER: The first thing a prudent driver
17 does in those circumstances is slow down.
18 MR BURNETT: Sir, that is undoubtedly right. But that
19 appears to us to be the high watermark of what might be
20 said against any individuals whom one confidently can
21 say were chasing in the sense that my learned friend
22 Mr Croxford has identified.
23 The essence of it really is that this group of
24 vehicles, including the Mercedes, was racing. This was
25 a situation in which, in the middle of Paris just after

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1 midnight in the dark, there was a race going on along
2 that freeway.
3 LORD JUSTICE SCOTT BAKER: But they were not trying to get
4 ahead of them. They were trying to keep up. There was
5 no benefit getting ahead of the Mercedes, because
6 the Mercedes may have gone somewhere else. You would
7 have to turn round and go after it.
8 MR BURNETT: Sir, it is extremely difficult to extract
9 anything very coherent about intention from the evidence
10 that has been heard. There is a distinction. It may
11 not be a very big one in the end if the view of anyone
12 looking at the evidence is that you had a group of
13 vehicles essentially racing, including Henri Paul.
14 But I suppose there may be a difference between, on
15 the one hand, Henri Paul wishing to drive at a normal
16 speed and being chased by the paparazzi and essentially
17 driving faster and faster and faster to get away from
18 them; there is a difference between that and Henri Paul
19 deciding at the outset well, I know these guys are going
20 to follow me and I am going to make sure they don't
21 catch up. So, off he goes and they are trying to catch
22 up.
23 There is a difference there and one does not really
24 have any clear evidence about what the position was.
25 But when it comes to questions of gross negligence

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1 manslaughter, for reasons that we have sought to set
2 out, it is extremely difficult to distinguish credibly
3 between leaving it for the chasing pack, as my learned
4 friend Mr Croxford would have it, and Henri Paul on the
5 other hand, and as I understood Mr Croxford's
6 submissions, whilst he was seeking to say, well, there
7 may be differences when one looks at the detail of what
8 individual drivers did, in other words, classic jury
9 questions in the event that the verdicts are left. As
10 a matter of principle, whether you leave them the two do
11 really stand or fall together.
12 LORD JUSTICE SCOTT BAKER: Well, do they really? Although
13 instinctively one perhaps would not want to leave
14 unlawful killing by Henri Paul alone, the problem is
15 that we do have a pretty clear picture of what happened
16 to the Mercedes.
17 MR BURNETT: Yes.
18 LORD JUSTICE SCOTT BAKER: And we don't have any clear
19 picture as to what happened to any of the individual
20 members of the paparazzi.
21 MR BURNETT: Perhaps I put it too loosely. What I should
22 emphasise is if you were persuaded to leave it for
23 the paparazzi, then our submission is that it is
24 extremely difficult to see on what basis you would not
25 leave it for Henri Paul as well. That is what I was

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1 seeking to suggest.
2 LORD JUSTICE SCOTT BAKER: Although the two should not
3 really be linked because you have to look at the test in
4 each case individually and see whether the evidence
5 against that individual is there.
6 MR BURNETT: Yes. There are differences. There are one or
7 two differences as my learned friend Mr Croxford
8 identified when looking at the paparazzi. There is
9 a very significant difference with Henri Paul if
10 the jury were satisfied that he had consumed suitable
11 amounts of alcohol and that impacted upon his judgment.
12 But looking at it first of all on the question
13 whether the paparazzi should be left, we, as you will
14 see from our submission, have frankly equivocated about
15 that, because we do see it as a borderline case given
16 the rather hair-raising directions that you would have
17 to give to the jury in a gross negligence manslaughter
18 case.
19 It is not simply good enough, we would respectfully
20 submit, to recite the rather tight legal language that
21 one sees in Lord Mackay's speech in the House of Lords.
22 One has to give it the flavour of all the directions
23 that we have put in front of you.
24 But if the jury were satisfied that a group of
25 paparazzi acting together were essentially trying to

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1 chase down a vehicle in the middle of Paris, can it be
2 said that they could not come to the conclusion that
3 that was gross negligence?
4 And whilst we have havered -- as everyone will see,
5 I have continued to do so -- our feeling is that it is
6 a borderline case. We use that language in our note.
7 LORD JUSTICE SCOTT BAKER: And you are still sitting firmly
8 on the fence?
9 MR BURNETT: Sir, there are cases which are borderline
10 cases. It is thus much better to recognise it and sit
11 on the fence than to artificially jump one side or
12 the other of it. It is one of the great luxuries of
13 being able to make submissions without a client and
14 without having to try to achieve any particular outcome.
15 It is a freedom which I wish I had more often but sir,
16 it may not help you enormously because to tell you that
17 it is a borderline case and we would be inclined just to
18 leave it simply makes your task more difficult but
19 we would submit that in the event that you were minded
20 or concluded that it should be left in respect of
21 the paparazzi, it does seem to us extremely difficult to
22 understand how it would not be left also in the case of
23 Henri Paul.