rendered criminal because they form a course of conduct and are performed in a particular way, that cannot form the basis of unlawful act manslaughter. If two paparazzi drove in exactly the same way on the final journey, why should one be guilty of manslaughter and the other not guilty, simply because the first took photographs with greater zeal earlier in the day?
[…]
Unlawful Killing: Driving of the Mercedes
41) This verdict should only be left to the jury if they could properly find that Henri Paul’s driving was grossly negligent (in the sense considered above) and caused the crash. In the course of argument the question arose whether, if unlawful killing by gross negligence were left on the part of the paparazzi, it logically should also be left in respect of Henri Paul. To put it simply, as I have already indicated, the jury could conclude that Henri Paul and a number of paparazzi were engaged in a race through central Paris. Each could have broken off the chase at any time. It seems to me that, although there may be differences when the jury comes to consider questions of culpability, when one considers whether the verdict should be left at all there is, in truth, no great difference. I understood Mr Croxford to accept that on behalf of the Ritz. The essential features of the driving of Henri Paul that go to the question of his culpability are as follows.
42) First, M. Paul undoubtedly drove at around twice the speed limit on a busy urban road. There is evidence that he did so as a result of a deliberate decision to outrun the paparazzi. He could have slowed down at any time, without risking anything worse than some photographs being taken. By driving at this speed, he knowingly impaired his ability to react to situations in the road, such as the presence of the Fiat Uno ahead. The presence of the paparazzi behind could be regarded as an aggravating factor. It may be thought more dangerous to drive fast when one knows that other vehicles will be driven close behind. The jury could conclude that he was racing. I am quite unable to accept the submission of Mr Keen QC that speed was not a causative factor in the crash.
43) Secondly, there is evidence on which the jury could conclude that Henri Paul had consumed alcohol up to twice the UK drink driving limit. There were real flaws in the chain of custody of samples and the recording of results by the French pathologists and toxicologists. Furthermore, the results of tests for carboxyhaemoglobin were difficult for anyone to explain. On the other hand, only one of the four experts called to give evidence thought the test results for alcohol were probably unreliable (as to the other three, see: (i) 22/1/08, p.54 (Forrest “comfortably satisfied” as to reliability); (ii) 30/1/08, p.158 (Vanezis had “nagging doubts” but preferred not to answer questions about probability); (iii) 31/1/08, p.41 (Oliver thought that the combination of toxicology findings was “strongly indicative” that the samples came from Henri Paul)). After they gave their evidence, further evidence was called which could be regarded as establishing that the sample tested for carboxyhaemoglobin was matched with Henri Paul by DNA profiling (see 6/3/08, p.124–9). It will be for the jury to consider all that evidence in the round, and in the context of witness evidence about Henri Paul’s demeanour at the Ritz and about his medical history. In any event, the toxicological evidence has to be considered in the context of the whole of the evidence concerning his consumption of alcohol.
44) If the jury formed the view that Henri Paul had drunk something like that amount of alcohol, they could certainly decide that he had behaved negligently in choosing to drive a car. Given the speed of events on the approach to the Alma underpass, it is open to the jury to find that Henri Paul’s reactions were impaired and that this contributed to his loss of control of the car.
45) Thirdly, as with the paparazzi, the jury is entitled to take account of the features of the road environment which presented additional hazards (see above).
46) Overall, while one has to distinguish the supposed negligence of the paparazzi and the supposed negligence of Henri Paul, there would be something unrealistic about my determining that one could be viewed as criminal while the other could not be so viewed. All these drivers were facing the same road conditions. All were free agents and had the choice to slow down, without any real adverse consequence.
47) For all these reasons, I have decided that this verdict should also be left to the jury.
[…]
The Jury’s Verdict:
7 April 2008—Verdict of the jury
(4.25 p.m.)
(Jury present)
VERDICTS
[#]
LORD JUSTICE SCOTT BAKER: I would ask that nobody leaves the court until the reading of both inquisitions is complete, please.
SECRETARY TO THE INQUEST: Would the jury foreman please rise? Madam Foreman, in the matter of the death of Mr Emad El-Din Mohamed Abdel Moneim Al Fayed, have you reached a verdict on which a majority of the nine of you have agreed?
THE JURY FOREMAN: We have.
SECRETARY TO THE INQUEST: Could you give us the verdict and indicate the number of jurors assenting to the verdict?
THE JURY FOREMAN: The verdict is unlawful killing, grossly negligent driving of the following vehicles and of the Mercedes.
SECRETARY TO THE INQUEST: Thank you. Could you now read the rest of the narrative on the inquisition, indicating as appropriate the—
LORD JUSTICE SCOTT BAKER: How many agreed and how many dissented?
THE JURY FOREMAN: Nine, sir. The deceased is Emad El-Din Mohamed Abdel Moneim Al Fayed. The injury causing death: multiple injuries, including severe impact injury to the chest and the transaction of the aorta. Dodi Al Fayed died in the Alma Underpass in Paris at around 12.22 a.m. on 31st August 1997 as a result of a motor crash. The crash was caused or contributed to by the speed and manner of driving of the Mercedes, the speed and manner of driving of the following vehicles, the impairment of the judgment of the driver of the Mercedes through alcohol. There are nine of those who agree on those conclusions. In addition, the death of the deceased was caused or contributed to by the fact that the deceased was not wearing a seat belt, the fact that the Mercedes struck the pillar in the Alma Tunnel rather than colliding with something else, and we are unanimous on those, sir.
SECRETARY TO THE INQUEST: Is that the conclusion of your narrative verdict?
THE JURY FOREMAN: It is.
SECRETARY TO THE INQUEST: In the matter of Diana, Princess of Wales, have you reached a verdict on which at least nine of you have agreed?
THE JURY FOREMAN: We have.
SECRETARY TO THE INQUEST: Could you give us the verdict, indicating the number of jurors that have dissented to that?
THE JURY FOREMAN: The verdict is unlawful killing, grossly negligent driving of the following vehicles and of the Mercedes, and that is nine of us, sir.
SECRETARY TO THE INQUEST: Could you please read the rest of the narrative of your inquisition, indicating, where appropriate, the number of jurors who have assented to the verdict?
THE JURY FOREMAN: The deceased is Diana, Princess of Wales. The cause of death is chest injury, laceration within the left pulmonary vein and the immediate adjacent portion of the left atrium of the heart. Diana, Princess of Wales, died La Pitie-Salpetriere Hospital in Paris at around 4.00 a.m. on 31st August 1997 as a result of a motor crash which occurred in the Alma Underpass in Paris on 31st August 1997 at around 12.22 a.m. The crash was caused or contributed to by the speed and manner of driving of the Mercedes, the speed and manner of driving of the following vehicles, the impairment of the judgment of the driver of the Mercedes through alcohol. Nine of us are agreed on those points, sir. In addition, the death of the deceased was caused or contributed to by the fact that the deceased was not wearing a seat belt, the fact that the Mercedes struck the pillar in the Alma Tunnel, rather than colliding with something else, and we are unanimously agreed on that.
SECRETARY TO THE INQUEST: Have the assenting jurors signed both inquisition forms?
THE JURY FOREMAN: They have.
SECRETARY TO THE INQUEST: Could you pass the forms to the usher? You may be seated.
LORD JUSTICE SCOTT BAKER: Thank you very much.
