the darkness. It is theoretically possible that he could have made the three-minute walk to a call box, telephoned “the plotters” and walked back, but this is pure speculation, unsupported by any kind of evidence. That is the difficulty with this hypothesis. There is nothing from which the jury could properly infer that Henri Paul had passed on information about the plan to leave from the rear of the Ritz in a third car. The distinction between a legitimate inference and speculation or guesswork is important.
21) For this hypothesis of Henri Paul aiding the assassins to be accepted, the jury would also have to conclude that Henri Paul assured them that the Mercedes would be driven along the embankment road. In other words, Henri Paul must have told the assassins that he would drive the car and he must then have ensured that he would do so. Mr Mansfield does not say that this was a suicide mission, but that Henri Paul had been paid and duped into believing that he was giving information to allow others to arrange protection for the Princess. It is true that Henri Paul had money on him that has not been accounted for and also that in the months before the crash (it is to be noted before Diana and Dodi were even together) Henri Paul was in receipt of income from somewhere other than his Ritz wages. But it is again a matter of speculation, not proper inference, that the source of the money on the evening (about ?1,250 in French Francs) was someone interested in the movements of Dodi and Diana and interested in a sinister sense.
22) One also has to consider the inherent difficulties with the plot thesis. On any view, a staged crash would have had to be arranged at less than two hours’ notice. As conceived, it would have been an extremely risky operation for the assassins, especially if it was not calculated to kill. The two vehicles supposedly involved in the plot could so easily have been involved in the collision. Additionally, everything that occurred was likely to be seen, especially in view of the considerable paparazzi interest. There were many potential witnesses who gave evidence of the various vehicles they saw in addition to the Mercedes (albeit, as it turned out, confused and conflicting). Had the deceased occupants of the car survived, or Trevor Rees not lost his memory as a result of a serious head injury, the prospects of clear evidence of anything untoward being available through the occupants of the car were strong.
23) I take full account of the fact that the assessment of witnesses is the province of the jury. But I also bear in mind that the decision on what verdicts to leave must be taken in the light of all the evidence and that it must not be fudged. I confess that I was strongly tempted to leave this verdict so that the jury could pronounce upon the matter; but I have decided that for me to do so would be unlawful. It became apparent that this was not a viable option when I asked myself what evidence I could identify to the jury on which they could safely conclude this was a staged accident. I have concluded that, on the evidence taken at its highest, a jury properly directed could not properly be sure that this was a staged crash. In those circumstances, it is my clear legal duty to withdraw the verdict.
24) That is not to say that I shall not sum up to the jury the evidence elicited in relation to the conspiracy allegations. I propose to direct them to consider all the verdicts I leave, in the proper order. Then, if they are unable to reach one of those verdicts, they should return an open verdict. If, on the evidence, the jury were to conclude that there may be something in the staged accident thesis that conclusion might, for example, impact on whether they considered that the crash was, on balance of probability, an accident.
25) Should the verdict of unlawful killing be left to the jury on the basis of the driving of the following vehicles? I shall refer to these as the paparazzi, because the only identified following vehicles are paparazzi and, with the exception of the motorcycle considered above, there has been no submission that the driver of any chasing vehicle was trying to do anything other than get photographs. In relation to these vehicles, I need to consider two possible legal footings for the verdict: gross negligence manslaughter and unlawful act manslaughter. It does not matter that there are now statutory road traffic offences in this country to deal with conduct of this kind; the ordinary law of manslaughter must still be applied for the purposes of these inquests.
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27) In this regard, I should remind myself that gross negligence manslaughter requires something more than even a very bad error. It requires very serious misconduct amounting to disregard of a serious risk to life. See:
28) The features of the evidence which could support such a conclusion are as follows. First, there is evidence that individual paparazzi drove or rode very close to the Mercedes, thereby limiting its freedom of movement and restricting Henri Paul’s options at the critical time. M. Hackett recalled at least 2–3 motorcycles riding close to the Mercedes in the Alexandre III tunnel (11/10/07, p. 6). He was scared when he saw them. M. Partouche recalled a “compact group” of vehicles, including motorcycles “just behind” the Mercedes (24/10/07, p. 8). M. Gooroovadoo remembered one motorcycle following “very closely” (12/3/08, p. 83, p. 101).
29) Secondly, there is evidence that the paparazzi continually accelerated to follow the Mercedes, while it must have been plain that Henri Paul intended to outrun them. Also, M. Lucard gave evidence that Henri Paul, at the rear of the Ritz, told the paparazzi there not to try to follow him, because they would not keep up. There is evidence that a number of paparazzi vehicles followed the Mercedes to the Place de la Concorde and that a number were still behind it in the Alexandre III tunnel and on the approach to the Alma tunnel. Speed was plainly an important factor in the causes of the crash and also in the deaths.
30) Thirdly, it is necessary to take account of the scene. This was a challenging urban road environment at night. As the driver approaches the Alma underpass, there is a turn to the left which causes many drivers to go off their line. There is a slip road from the right, described by one witness as the most dangerous junction in Paris. There is a significant incline down. The wall and pillars in the tunnel present particular hazards, as the road traffic experts accepted. Because of the darkness, visibility would have been limited.
31) In view of all those features, I consider that the driving of certain paparazzi could be regarded by the jury as criminally negligent. This is a borderline case in Galbraith terms, but the verdict should be left to the jury. On one view of the evidence, the conduct could be fairly characterised as participating in a race through the centre of Paris at twice the speed limit. Some statements of the paparazzi themselves could lead to this conclusion. In addition, the cross-examination of M. Darmon provided some support for a conclusion that, after the crash, the paparazzi continued to seek the best picture without regard to helping the injured. This could be relied upon by the jury as indicative of their state of mind before the crash.
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34) The argument of Mr Croxford QC is that the conduct of the paparazzi, from the arrival at Le Bourget airport, can properly be characterised as harassment. He submits that that conduct can then be regarded as the basis for an offence of manslaughter by an unlawful and dangerous act, as set out in
35) There is certainly evidence that a number of the paparazzi followed Diana and Dodi for some hours that day. There is evidence that some pursued them by road. There is evidence that some of the paparazzi were involved in a stand-off with security staff outside Dodi’s apartment. Mr Horwell QC argued that this conduct could not be “harassment” for the purposes of the Act. He made reference to
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36) Mr Burnett QC submits that the conduct of the paparazzi (following people using vehicles and taking photographs) was not inherently unlawful. If it was criminal, that was by virtue of the manner of its execution (persistent and liable to distress). He says that this course of conduct is a fortiori Lord Atkin’s driving analogy. I accept his submissions. Where a series of acts, some not dangerous and all individually legal in themselves, are
