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Hearing transcripts

22 January 2008 - Morning session

1 Tuesday, 22nd January 2008
2 (10.00 am)
3 (Jury present)
4 LORD JUSTICE SCOTT BAKER: Mr Burnett, I see there is some
5 very good news this morning in that Mr Hilliard has been
6 appointed a Queen's Counsel, and I am sure that we all
7 wish to give our congratulations to him.
8 MR BURNETT: It gives great pleasure to all of those who
9 know him and many who don't.
12 Questions from MR KEEN (continued)
13 MR KEEN: Thank you, sir. Good morning, Professor.
14 A. Good morning.
15 Q. I wonder if I could just pick up on one or two aspects
16 of the post-mortem process.
17 A. Yes.
18 Q. If we could begin with the instruction that was actually
19 given to Professor Lecomte in regard to this matter.
20 I think we can find it at [INQ0001652] which should come
21 up on the screen.
22 If we can focus, I think, on the bottom half of that
23 page, we can see that this is a direction from the
24 State Prosecutor in Paris, and as I understand the
25 instruction that's signed off by the State Prosecutor,


1 it refers, amongst other things, to the taking of
2 samples of blood and, if necessary, of the internal
3 organs in two identical batches.
4 A. Yes.
5 Q. I think you indicated in your evidence earlier why you
6 would want two identical batches.
7 A. Or why the French would normally collect two identical
8 batches.
9 Q. Indeed. Do we have two identical batches?
10 A. No. They are not identical.
11 Q. Yet, if we look at the foot of the page, I think
12 Professor Lecomte has said, "I carried out my assignment
13 in Paris on 31st August 1997 with technical assistance".
14 A. Correct.
15 Q. But in fact she didn't?
16 A. Not in the strict terms of the mandate given to her by
17 the State Prosecutor.
18 Q. Now, just moving on a little, it's perhaps a statement
19 of the obvious, but you do need a body for
20 a post mortem?
21 A. Yes. The reason why I hesitate is, of course, there is
22 some argument in some coroners' cases about what
23 a "body" is.
24 Q. It would be quite helpful to have a body if you are
25 going to have a post mortem?


1 A. Oh yes. The question is if you find -- I think one of
2 the classical examples is a fast jet that goes into the
3 sea off Skegness and they find a pair of lungs floating
4 in the water. Is that a body or not? Can a coroner
5 take jurisdiction?
6 Q. I take your point. There may be issues where there is
7 only a part of a cadavre.
8 A. Indeed. The other example I think in case law is
9 an Australian case where an arm was vomited up which was
10 found in the belly of a shark, and that was held not to
11 be a body.
12 Q. Thank you. If you have a body, presumably in the
13 context of a post mortem, it's also helpful to know the
14 identity of the body from which samples are going to be
15 taken?
16 A. It is, or at least, if not the identity of the body,
17 a process whereby the samples collected from the body
18 can be confidently, in the future, attributed to that
19 body; the situation that arises, for example, in most
20 disasters.
21 Q. So, even in the absence of a name, you would want some
22 consistency of identification, for example by number?
23 A. By number, yes.
24 Q. Is it fair to say that that's the classic means
25 employed?


1 A. Identifying somebody simply by name, particularly in
2 a multicultural society, is very dangerous.
3 Q. Thank you. I think we know that Professor Lecomte
4 reported performing an autopsy on 31st August 1997 on
5 a body which had been removed from the refridgerator or
6 refridgerator room at IML.
7 A. Yes.
8 Q. She recorded that this was a body of a male,
9 172 centimetres in height.
10 A. Yes.
11 Q. She reported that the body had been given a number by
12 IML.
13 A. Yes.
14 Q. Commander Mules, who attended the IML on 31st August and
15 was present, we understand, at the post-mortem
16 examination, reports that the body of the late
17 Henri Paul was never placed in the refridgerator unit at
18 IML.
19 A. I have been made aware of that inconsistency in the
20 evidence.
21 Q. He recorded that the height of the late Henri Paul was
22 167 centimetres.
23 A. Yes. I would defer very much to Professor Shepherd.
24 I have no doubt that he would be able to help the
25 inquest much more than I can on the technical


1 difficulties of measuring the height of a recently
2 deceased person.
3 Q. There are, from the very outset, quite material
4 inconsistencies between Professor Lecomte and
5 Commander Mules?
6 A. There are certainly consistencies, yes.
7 Q. Did you say "consistencies" or "inconsistencies"?
8 A. There are certainly inconsistencies.
9 Q. Thank you. Now, with regard to IML identification
10 numbers, I wonder if we could have up [INQ0041596].
11 You may have seen this before, Professor. It is an
12 English translation of the French statement which was
13 prepared and signed off by Commander Mules. I think he
14 is designed here as "Police Major Mules".
15 A. Yes.
16 Q. This is at 08.20 hours on 31st August 1997. If we look
17 to the first paragraph, he refers to an examination on
18 the body of Henri Paul, IML reference 2146.
19 A. Yes.
20 Q. I believe that during an interview with Paget some years
21 later, he indicated that he might have been in error
22 with regard to that number.
23 A. I think it's pretty clear he was.
24 Q. When you say that it's pretty clear he was --
25 A. I am sorry, that's for somebody else to decide. It's


1 for the tryers of fact to decide, not me. I apologise
2 for prejudging the issue.
3 Q. That's quite all right, Professor. I think the point
4 perhaps you are alluding to is that we do see other
5 records in which the number 2146 is not attributed to
6 Henri Paul.
7 A. Correct.
8 Q. Indeed we see other records with the number 2147 is
9 attributed to Henri Paul.
10 A. Yes, yes.
11 Q. I wonder if we could then look, just for a moment, at
12 a further reference. It's [INQ0041592]. This is also
13 a statement by Commander Mules at 06.45 hours on
14 31st August. He is referring here to the forensic
15 examination or observations on the body of
16 Dodi Al Fayed.
17 A. Yes.
18 Q. In the first paragraph there, he advises that Dodi was
19 registered at the IML under the reference 2147.
20 A. Yes.
21 Q. So there is a reference to the number 2147 in the
22 initial records of Commander Mules, but that's the
23 number that he stated Dodi Al Fayed's body had been
24 registered in at IML.
25 A. Yes.


1 Q. I think, as we saw in your evidence, later blood samples
2 are recorded under a number [2147].
3 A. Yes, correct.
4 Q. I wonder if we could look again for a moment at
5 a document that Mr Hilliard produced yesterday. It's
6 the original document from the French file which the
7 jury should have as "13A". Do you have that, Professor?
8 A. The one in the top right-hand corner with "[0789/1]"?
9 Q. It may be a "D" actually. It's not very well written,
10 is it?
11 A. Yes, indeed.
12 Q. I don't know if that can be put on the screen. The jury
13 were given this as a separate document yesterday, sir.
14 LORD JUSTICE SCOTT BAKER: Yes, it goes into the bundle and
15 they should have had overnight hard files to put this
16 in, but they don't seem to have been provided with those
17 yet.
18 MR KEEN: No doubt that can be dealt with.
19 Just looking at this document for a moment -- and
20 you were referred to it yesterday -- what we see here is
21 a record of samples, including five samples of blood
22 being taken from a body during the course of an autopsy
23 on 31st August 1997.
24 A. Yes.
25 Q. Under the reference to "Expert", we have "Dr Lecomte".


1 A. Yes.
2 Q. Then underneath, under reference to "Corps de", "Body
3 of", somebody has written in "X masculin" --
4 A. Yes.
5 Q. -- which I think you indicated yesterday would be
6 a reference where the identity of the body was unknown.
7 A. Yes.
8 Q. Then that has been scored out and the name "Paul"
9 inserted.
10 A. Yes.
11 Q. Do you know when "X masculin" was scored out in this
12 document and the name "Paul" inserted?
13 A. No, I do not.
14 Q. You may not be able to answer this, Professor, but is
15 the name "Paul" written in the same handwriting as the
16 IML number and the date, do you think.
17 A. Do I think? I cannot answer as an expert, so I look
18 to -- I was looking towards the Coroner to ask whether
19 or not I should proceed to answer the question.
20 Q. I think it's better that you don't because it must be
21 a matter for the jury at the end of the day if no expert
22 evidence is being brought to bear on that.
23 We see -- I think it's a name at the top, "Andreux",
24 isn't it?
25 A. Indeed.


1 Q. Do we know what that refers to?
2 A. I don't, I am afraid. I have heard various
3 speculations, but no more than that.
4 Q. I see. So assuming that this document was completed by
5 Professor Lecomte, we really need her to explain this
6 document, the IML number, and the changes that were made
7 to the document?
8 A. Yes.
9 Q. Could I then go on for a moment just to consider the
10 toxicology of Dr Ivan Ricordel?
11 A. Yes.
12 Q. We can see, if we look to appendix J, which is the first
13 sheet in the bundle the jury were given, a reference to
14 his toxicology on 1st September 1997.
15 A. Yes.
16 Q. I think we have to bear in mind, Professor, that
17 appendix J is the Metropolitan Police's interpretation
18 of the work done by Professor Lecomte and the
19 toxicologists and it's not a contemporaneous document of
20 any kind.
21 A. Not at all. It's a summary prepared during the
22 preparation of the Stevens Report.
23 Q. Thank you. If we can just take a contemporaneous
24 reference --
25 A. Yes.


1 Q. -- to Dr Ricordel's work. If we go to [INQ0004440].
2 A. Yes.
3 Q. I think we have there -- and you may have seen this
4 before, Professor.
5 A. I have.
6 Q. This is a document headed up "Identification and
7 description of the sample".
8 A. Yes.
9 Q. As I understand it, this is Dr Ricordel recording the
10 identification and description of the sample that was
11 submitted to him.
12 A. Yes, it's a translation, of course.
13 Q. Thank you. What he says he received is "... a
14 cylindrical flask made of transparent plastic material
15 sealed by a white screw cap containing a glass bottle".
16 A. Yes.
17 Q. That doesn't appear to correspond to the description of
18 the glass bottle with the sealed top that was eventually
19 photographed by Dr Pepin, does it?
20 A. In my view it is not inconsistent with that because the
21 glass bottle in which the sample was placed that we have
22 seen photographs of could well have been placed into the
23 cylindrical translucent or transparent plastic material
24 container, and that could have been the sample that
25 Professor Ricordel either picked up or was delivered to


1 him.
2 I would, by analogy, tell you about what happens
3 when a sample is taken from a living person for road
4 traffic purposes, for blood/alcohol in the UK. It is
5 put into a vial not at all like the vials which we have
6 seen here in various photographers, but one with
7 a rubber cap, and it is then placed into
8 a tamper-evident plastic container, having been
9 labelled, and the tamper-evident container is then
10 placed into an envelope.
11 So putting the glass vial in which the blood sample
12 is into a translucent or a transparent plastic cylinder
13 is not at all an unusual way to transport a blood
14 sample.
15 Q. I quite understand that, Professor, but what we have
16 seen in the photographs are glass bottles which are
17 sealed by a white screw cap --
18 A. Yes, indeed.
19 Q. -- and what Dr Ricordel is referring to here is, in
20 fact, a transparent plastic material sealed by a white
21 screw cap within which is contained a glass bottle.
22 A. The description is different, but he doesn't give a full
23 description of a glass bottle. He does not describe the
24 cap of the bottle. There is clearly a -- his
25 description may not be a full description. I could see


1 it is potentially possible that the description he is
2 giving is of a bottle which is not the same as the
3 bottle into which the samples analysed by Dr Pepin were
4 placed.
5 Q. If we go on, he says:
6 "This bottle was labelled as follows ..."
7 A. Yes.
8 Q. The IML number he gives here is "2147".
9 A. Yes.
10 Q. Then underneath, "31/8/97" and then the name "Lecomte".
11 A. Yes, and that doesn't correspond to the labelling of any
12 of the bottles received by Dr Pepin or we have seen
13 photographed.
14 Q. You have anticipated my next point, Professor. What
15 Dr Ricordel describes as the label on the sample he
16 analysed does not correspond to the labels that we have
17 seen placed on the last containers that were produced --
18 A. Yes, one could argue that --
19 Q. -- by Professor Lecomte?
20 A. Yes, one could argue that it is not a full description,
21 but equally, if that is a totally accurate description
22 of a complete description of what is written on the
23 label, then it is not identical to the labels on the
24 other bottles we have seen.
25 Q. Well, he does begin by saying "This bottle was labelled


1 as follows ...", so presumably he is intending to tell
2 us how it was labelled.
3 A. The short answer to that question is that I am not sure
4 that I could agree with you because people do sometimes
5 not behave in the most meticulous manner when the nature
6 of the case dictates that they ought to.
7 Q. But generally you would expect toxicologists recording
8 material of this kind to try and maintain a visible and
9 understandable chain of custody?
10 A. I would expect that they ought to.
11 Q. Right.
12 A. But we are working with a different system.
13 Q. When you say a "different system", it may be French, but
14 it's still supposed to work, isn't it?
15 A. It does work -- well, I could either answer with one
16 word, and the answer to that is "Yes, it ought to work"
17 or I could go into a long diatribe, quoting from a
18 variety of people, including Mr Mansfield --
19 Q. Could I take the single-word answer for the moment,
20 Professor?
21 A. Yes.
22 Q. I understand your desire to enter into a diatribe --
23 A. No, I don't.
24 Q. All right.
25 A. I just desire to help the jury.


1 Q. Thank you. Can I just move on a little to Dr Pepin's
2 analysis?
3 A. Yes.
4 Q. Whatever the provenance of the blood samples given to
5 Dr Pepin on 1st September and 4th September 1997 --
6 A. Yes.
7 Q. -- the results he reported for blood/alcohol were --
8 I was going to say "surprisingly consistent". I think
9 the words actually used by the experts are "unusually
10 consistent".
11 A. Yes, you would expect a bit more of a spread, very often
12 when you repeat samples, when you get samples from
13 different parts of the body and so on and so forth, but
14 the fact that there is a degree of consistency is
15 unusual, but it is certainly something that one can see
16 from time to time.
17 Q. It falls within the boundaries of possibility?
18 A. It falls well within the boundaries of possibility.
19 Q. Can I then make two points with regard to that and
20 consider these with you, Professor? First of all, on at
21 least one occasion it would appear that Dr Pepin
22 obtained a result for blood/alcohol analysis which he
23 then subjected to some form of recalculation or
24 calibration adjustment so that it came out at more or
25 less the same figure as the previous result.


1 A. Yes, I think that's a very fair comment. As I said
2 yesterday, when Mr Hilliard was asking me about it, we
3 certainly wouldn't do that in the UK. We would not
4 regard it as good practice in the UK. We would produce
5 the figures that were actually obtained, sometimes with
6 a deduction of 6 per cent, depending on the
7 circumstances, and we would also make available the
8 calibration curves and the quality assurance results if
9 a litigation package was required, for example if there
10 was -- in a road traffic case, and I keep referring to
11 those because those are probably the circumstances where
12 blood/alcohol analyses are done most frequently in life,
13 in the UK, for forensic purposes, the litigation package
14 would include the quality assurance details, the
15 calibration details and a whole variety of other
16 information that would enable a very critical appraisal
17 of the results to be made.
18 Q. Can you understand, Professor, why Dr Pepin would have
19 done this with one result and not with all of them?
20 A. No, I can't.
21 Q. By doing it with one result, he produced a figure that
22 was consistent with his earlier result --
23 A. Yes.
24 Q. -- which hadn't been, shall we call it politely,
25 recalibrated.


1 A. Agreed. But what one can be sure of is that these are
2 blood/alcohol and other body fluid/alcohol results which
3 are far higher, putting it at it's most conservative --
4 far higher than one would want any driver to have.
5 Q. That's assuming that we can accept the reliability of
6 the toxicology and the pathology, Professor.
7 A. Of the attribution of the sample, yes.
8 Q. Indeed so. That brings me to the second point with
9 regard to Dr Pepin, which is transposition of results.
10 A. Yes.
11 Q. I think first of all, if we look at the notes that the
12 jury were given yesterday, at page 75, we have a summary
13 note from Dr Pepin. We can see how close the two
14 results he gives are, 1.74 and 1.75.
15 A. Yes.
16 Q. I think, if we look to the top right-hand corner, that
17 document is dated 9th September 1997.
18 A. Yes.
19 Q. Thank you. Now, if we then go to Dr Pepin's report
20 itself, rather than just this one page. If we have
21 [INQ0004450] first of all on the screen, do we see that
22 this is the front page of the toxicological report
23 produced by Dr Pepin?
24 A. Agreed.
25 Q. I think if we go to [INQ0004451], towards the bottom of


1 the page, we have a heading "Mission", which, amongst
2 other things, is to carry out an analysis to reveal the
3 presence of any toxins as well as that of any medicinal
4 products --
5 A. Yes.
6 Q. -- in the samples that he has been given. If we go on
7 to [INQ0004467] in this document, at the top of the page
8 there bears to be a report of the detection and
9 quantitative analysis of ethanol, giving
10 an ethanol/blood or alcohol/blood figure of 1.74 grammes
11 per litre.
12 A. Yes.
13 Q. We can then see that reported in the conclusion at
14 [INQ0004478] at the top of the page. Do you see that?
15 A. Yes.
16 Q. So we have to ask ourselves, Professor, about the blood
17 test performed on 4th September 1997 to obtain this
18 result.
19 A. Yes.
20 Q. When we do that, are you aware of what Dr Pepin
21 eventually explained in his Paget interview? I think
22 you may have been there, actually.
23 A. I think I was.
24 Q. He said what he had actually done here was used the
25 result he had obtained on 31st August and transposed it


1 to the reported results for 4th September.
2 A. Yes.
3 Q. So although, on the face of this report, it might bear
4 to be a report of a further analysis, what Dr Pepin has
5 done is simply take the figure that he got on an earlier
6 date and transpose it -- I think that's perhaps the
7 polite term -- into the report.
8 A. Yes, I think there could be some problems with looking
9 at that. If one, for example, scrolls down on this
10 screen, I think it gives us the carboxyhaemoglobin
11 result, which is 20.7, which of course is the result
12 obtained on the sample purported to have been collected
13 from the haemothorax.
14 Q. Indeed. That's how we are able to pick up on what's
15 actually happened here, isn't it?
16 A. Yes.
17 Q. So with a little detective work, we can see what
18 happened behind the scenes, as it were?
19 A. Yes.
20 Q. Can I move on from the blood/alcohol analysis and just
21 look for a moment longer at the carboxyhaemoglobin?
22 A. Indeed.
23 Q. You touched upon this yesterday, of course. Mr Hilliard
24 suggested to you a proposition that if you were going to
25 use blood to spike samples, then you would not use blood


1 with an unusually high carboxyhaemoglobin content.
2 A. No, you wouldn't if you knew it was high, and of course
3 one wouldn't want to do it anyway. You are posing
4 a hypothetical, I hope, to any reputable toxicologist.
5 Q. I think it was Mr Hilliard's hypothesis, but you make
6 the point that I was going to come to. It's only after
7 the analysis that you have perhaps realised that you
8 have introduced another element such as this unusual
9 carboxyhaemoglobin result?
10 A. Taking this as a hypothesis, yes, I agree.
11 Q. Indeed, is it your recollection that it was only after
12 the French Inquiry was closed and the documentation from
13 the French toxicology was available to, I think amongst
14 others, Professor Vanezis --
15 A. Yes.
16 Q. -- that the significance or relevance of the
17 carboxyhaemoglobin readings was actually noticed and
18 reported upon?
19 A. Indeed. As I have said, it's quite exceptional to do
20 a carboxyhaemoglobin on someone who has died in a road
21 traffic crash. The usual circumstances, as I explained
22 yesterday, would be if there was any suggestion that
23 there was a defect with the motor vehicle which might
24 have led to the person becoming intoxicated with carbon
25 monoxide and this being a cause of the crash.


1 Q. What is sometimes commonly referred to as "carbon
2 monoxide poisoning"?
3 A. Indeed.
4 Q. And something that's attributed, for example, to faulty
5 boilers or faulty heaters?
6 A. Yes. This time of year one does tend to, unfortunately
7 even now, in the UK, encounter people who have come into
8 hospital or who are found dead at home as a result of
9 faulty boilers which have not been serviced and have
10 resulted in carbon monoxide poisoning within the home.
11 That is also a problem in France, and it explains
12 why, on one of the forms which was used in this inquiry
13 by the French, there is a request for alcohol and carbon
14 monoxide as a routine request; a form from the old days
15 when this was much more common.
16 Q. Now, we know, going back through Dr Pepin's records,
17 that in regard to blood samples that were submitted to
18 him, he did three tests for carboxyhaemoglobin, two on
19 4th September and one on 9th September 1997.
20 A. Yes, I believe that's right.
21 Q. And he reported -- and I don't think this is
22 controversial -- three levels: 20.7 per cent,
23 21 per cent and 21.4 per cent.
24 A. Yes.
25 Q. So in fact the 20.7 per cent that's been reported is the


1 lowest of the three figures.
2 A. Yes, yes.
3 Q. Although there is an obvious consistency in the results
4 of the three tests, is there not?
5 A. Yes, that's right.
6 Q. Where you have a report of carboxyhaemoglobin in excess
7 of 20 per cent, that would generally be classified as
8 toxic; in other words, if correct, it would indicate
9 someone was suffering from a degree of carbon monoxide
10 poisoning.
11 A. That would be the case in the vast majority of
12 circumstances. Chronic exposure to carbon monoxide that
13 produces that sort of concentration is going to be
14 associated with -- certainly with symptoms, by which
15 I mean something of which the patient complains, and the
16 usual thing is a headache and sometimes symptoms which
17 are described as being like a flu-like illness.
18 LORD JUSTICE SCOTT BAKER: Do people sometimes kill
19 themselves deliberately by subjecting their bodies to
20 the exhausts of motor cars?
21 A. Yes, yes, sir. These days there can be problems doing
22 that because of catalytic converters, but if the car is
23 run in a garage, then you -- as the atmosphere in the
24 garage becomes vitiated and reduced in oxygen, then the
25 catalytic converter ceases to work efficiently and the


1 carbon monoxide level in the garage dies, leading to
2 death.
3 Equally, if the car is outside and the usual thing
4 with a vacuum cleaner hose or washing machine hose and
5 duct tape is done and the contents of the exhaust are
6 directed into the vehicle, the vehicle is started from
7 cold, the catalytic converter won't work and you can die
8 from that point of view.
9 A problem can arise in that if the vehicle is hot,
10 the engine is hot, and the person ducts the exhaust
11 fumes into the vehicle -- for example if they drive to
12 somewhere where there is nice scenery, where they have
13 been happy, and then they do the thing with duct tape
14 and the exhaust hose, you can actually get a death in
15 the vehicle with quite low concentrations of carbon
16 monoxide, and effectively they have died of asphyxiation
17 because the exhaust fumes are so low in oxygen.
18 LORD JUSTICE SCOTT BAKER: Can we rule out exhaust fumes as
19 being the cause of the high carbon monoxide level in
20 this case?
21 A. My understanding is that when the body of
22 Mr Dodi Al Fayed was subject to an analysis of carbon
23 monoxide, there was no carbon monoxide or no substantial
24 concentration of carbon monoxide found in the vehicle.
25 MR KEEN: Could I come in on that, Professor? Is it the


1 case that, in fact, in the case of Dodi Al Fayed the
2 carboxyhaemoglobin was in what was termed the normal
3 range of 0 to 3 per cent?
4 A. Yes. Yes. As far as the Princess of Wales was
5 concerned, there was no blood/gas analysis, as
6 I understand from the medical dossier, when she was
7 taken to hospital in Paris. I have not seen any details
8 as to whether or not Mr Trevor Rees-Jones had
9 a blood/gas analysis done, and sometimes a modern
10 blood/gas machine, the sort that would be available in
11 a major teaching hospital ten years ago, will actually
12 give you a carbon monoxide result.
13 I am not aware that he had a blood/gas result when
14 he was taken into hospital for his resuscitation.
15 I cannot say whether or not the inquiry would have
16 disclosed that, but no doubt there are people in court
17 who could find that data if -- well, let me say this,
18 sir: I have never seen a medical dossier on
19 Mr Trevor Rees-Jones.
20 LORD JUSTICE SCOTT BAKER: No, but it comes back to my
21 original question: can you rule out the exhaust gases as
22 the cause?
23 A. Mr Dodi Al Fayed died very rapidly, as I understand it,
24 and if there had been a high concentration of carbon
25 monoxide in the vehicle, I would have expected him to


1 have had a high concentration of carboxyhaemoglobin in
2 his blood.
3 MR KEEN: Thank you.
4 I think in fact it is noted elsewhere, Professor,
5 that the reason no further tests were carried out on
6 Diana, Princess of Wales, is because the results of the
7 test on Dodi were regarded as fairly conclusive, in
8 fact.
9 A. I think there is all sorts of reasons, and the fact that
10 she probably had her blood replaced several times over
11 and she had been given a lot of oxygen would mean that
12 the interpretation of a measurement of carbon monoxide,
13 carboxyhaemoglobin in her blood, would have been
14 virtually impossible.
15 Q. Thank you.
16 LORD JUSTICE SCOTT BAKER: A red herring, members of the
17 jury, but I thought it might have been something that
18 might have been going through your minds so I wanted to
19 deal with it.
20 MR KEEN: Thank you, sir.
21 Could we have up the agreement of all the experts on
22 this point at [INQ0035090]? It's item 19.3 in the
23 agreed report.
24 A. Yes.
25 Q. I think if we take it from there:


1 "Effects of carbon monoxide and carbon monoxide with
2 alcohol ..."
3 What you state there, Professor, is:
4 "We are agreed that an individual with
5 a carboxyhaemoglobin concentration of 20.7 per cent
6 would be obviously unwell, whether or not any alcohol
7 was also present in his blood. If alcohol was also
8 present in blood, the obvious adverse effects of carbon
9 monoxide would be made worse."
10 A. Yes.
11 Q. And the symptoms of carbon monoxide are, is it fair to
12 say, severe headaches, dizziness, nausea, confusion and
13 often muscle weakness?
14 A. Correct. I should emphasise that it's a non-specific
15 presentation, and you can get people with a faulty
16 boiler in a house coming back and complaining of that
17 over and over again and it's missed. In clinical
18 practice, it is a non-specific diagnosis, and the only
19 way to diagnose it is to actually measure the carbon
20 monoxide carboxyhaemoglobin concentration in blood or
21 carbon monoxide in breath.
22 Q. Now, Professor, you have seen, have you not, the
23 contemporaneous CCTV footage of Henri Paul arriving
24 at the Ritz Hotel at about 10 o'clock in the evening,
25 and his behaviour there and his departure just after


1 midnight at the Rue Cambon exit?
2 A. Yes.
3 Q. You have seen him park his car when he arrived?
4 A. Yes.
5 Q. You have seen him go in, shake hands with people?
6 A. Yes.
7 Q. Smile?
8 A. Yes.
9 Q. Laugh?
10 A. Yes.
11 Q. Converse at length?
12 A. Yes.
13 Q. Go upstairs, downstairs, tie his shoelaces?
14 A. Yes.
15 Q. At no stage, would you agree, does he exhibit any
16 symptom of carbon monoxide poisoning?
17 A. I have to be pedantic, sir. A "symptom" is something
18 that you complain of. A "sign" is what you observe. He
19 has not complained of any symptoms of carbon monoxide
20 poisoning, to the best of my knowledge. He does not
21 show the signs that I would expect of someone with
22 a splitting headache who is feeling sick.
23 LORD JUSTICE SCOTT BAKER: In other words what you saw was
24 wholly inconsistent with a carbon monoxide level of
25 20.7 per cent?


1 A. I think it renders the probability that he has
2 a carboxyhaemoglobin concentration of that order of
3 magnitude, sir, very, very unlikely. "Wholly
4 inconsistent" implies being sure and there is no such
5 thing as absolute certainty in medicine.
6 LORD JUSTICE SCOTT BAKER: I stand corrected. Thank you.
7 MR KEEN: Thank you, Professor.
8 Now, in fact, you did attempt at various stages --
9 and may I say I imply no criticism here -- to address
10 this carboxyhaemoglobin result.
11 A. Yes, I did. I did a number of things and I would say
12 still that this is the one thing which worries me most
13 about this investigation. I still have not -- as
14 I think I used a phrase -- I have not managed to achieve
15 an intellectual resolution which totally satisfies me.
16 Q. We will come to that in a moment, Professor. At the
17 beginning of the report on 17th July 2006, if we have
18 that -- it is [INQ0001799] at paragraph 17 -- I think at
19 the time you wrote this, in fairness, Dr Pepin had
20 advanced a hypothesis based upon inhalation in the
21 vehicle from the discharge of the airbags, a theory that
22 Mr Hilliard then sought to explore with you yesterday.
23 At this stage you were saying, firstly, under
24 reference to carboxyhaemoglobin, "I do not think there
25 is a problem with the analysis. The problem is with the


1 interpretation".
2 A. Yes.
3 Q. I think, in fairness, you have departed from that.
4 A. I have departed from that. Basically, the Corning 270
5 blood/gas machine or CO-oximeter is a good piece of kit
6 and it was a good piece of kit in clinical practice and
7 you very rarely ran into problems with it, but it is not
8 designed for doing post-mortem analyses. That may be
9 the nub of the problem.
10 I would have been a lot happier if, rather than
11 confirming the results of the analyses with the Corning
12 instrument with another technique, which is basically
13 a spectrophotometric technique -- if a completely
14 different analytical technique had been used, namely --
15 well, one which is fairly obvious is called -- it's
16 molecular. It's basically a gas chromatography
17 technique where you measure the carbon monoxide actually
18 released from the blood.
19 Q. Rather than pursuing what was not done, we can notice
20 that it wasn't one test. There were three tests which,
21 as you agree --
22 A. Ah, two of the tests were on an identical piece of
23 equipment. One was on a different instrument which had
24 formally belonged to ToxLab, but which had been passed
25 on to another laboratory in the same building and was


1 used to confirm the analysis.
2 Q. And it did?
3 A. It produced a result which was identical, but if you
4 want to confirm an analytical result with a test which
5 essentially has to be a screening test because the
6 equipment isn't designed to work with post-mortem
7 material, then you should ideally use a test which is
8 based on a completely different physical principle.
9 Q. Thank you. What you were seeking to address at
10 paragraph 17 was essentially the theory advanced by
11 Dr Pepin when this matter was raised with him --
12 A. Yes.
13 Q. -- which was that inhalation from the airbag and from
14 the pre-tensioners on the seat-belts could have produced
15 carbon monoxide.
16 A. Yes.
17 Q. I think it is now generally agreed that there are
18 a series of problems with that.
19 A. Yes.
20 Q. First of all, Henri Paul's aorta tore on impact.
21 A. Yes.
22 Q. Secondly it appears his chest collapsed on impact.
23 A. Yes, so he wouldn't have been taking a breath in. If
24 anything, breath would have been pushed out of him as he
25 goes forward. I considered the possibility that as he


1 rebounds from the airbag, elastic recoil of his chest
2 might have led to air being drawn into the lungs, but he
3 had several fractured ribs so that is certainly less
4 likely to have happened.
5 Q. Also in fairness to Mercedes Benz, their airbags
6 actually produce negligible quantities of carbon
7 monoxide.
8 A. That is absolutely correct and I think that's true of
9 most airbags these days. The problems are not with
10 carbon monoxide, it's -- well, it's not a problem. You
11 don't get much carbon monoxide from modern airbags, full
12 stop.
13 Q. Thank you. If we move on to your next report, which was
14 your memo of 6th December 2006.
15 A. Yes.
16 Q. I think we can see this at [INQ0001782], so that you can
17 identify it. I think that is your memo, isn't it?
18 A. Yes.
19 Q. If we go on to [INQ0001790], halfway down the page you
20 say:
21 "The dynamics of the crash ...", and so on.
22 I will not go through the detail of it, but by now
23 you are saying:
24 "Consequently I do not believe that a single
25 inhalation, even directly from the gases present from


1 a fully inflated airbag, could have accounted for an
2 increase in the carboxyhaemoglobin."
3 A. Correct.
4 Q. Then if we have up the agreed report of the experts, at
5 [INQ0035091]. At item 19.5, "Explanation for the carbon
6 monoxide in the blood sample analysed" is the heading,
7 and the agreed statement now is:
8 "In itself, the blood carboxyhaemoglobin
9 concentration of 20.7 per cent is biologically
10 inexplicable."
11 A. Correct.
12 Q. So although Mr Hilliard canvassed this theory with you
13 in evidence, you and the other experts had already
14 dismissed it as a reasoned explanation for the
15 carboxyhaemoglobin?
16 A. Yes.
17 Q. Indeed, I think if we go on to [INQ0035093] in the
18 agreed statement, at the top of the page there is
19 a heading, "Flaws in the toxicology tests carried out by
20 Dr Pepin". In the second paragraph there, you are
21 agreed and say:
22 "With respect to section 34.3, subsection (c) [you
23 may take it that that is a reference back to the airbag
24 theory], we are all agreed that the explanation offered
25 by Dr Pepin and Professor Lecomte, together, for


1 carboxyhaemoglobin concentrations in the blood samples
2 is implausible and can be discounted."
3 A. Yes, so one is left with either analytical error or
4 a mystery.
5 Q. Let us go a little further with the mystery, Professor,
6 because, of course, in samples from 4th September 1997,
7 there were carboxyhaemoglobin concentrations slightly in
8 excess of 12 per cent reported.
9 A. Yes.
10 Q. You mentioned smokers. It may seem a small point. You
11 suggested that perhaps 1 in 20 smokers could have that
12 concentration of carboxyhaemoglobin.
13 A. Yes.
14 Q. I think Professor Oliver has suggested, based on
15 a reported study, that it would be nearer 1 in 200, and
16 that in the reported study only two smokers out of 187
17 had a carboxyhaemoglobin of more than 9 per cent, the
18 highest being 12 per cent.
19 A. Yes, I think it depends very much on the population of
20 smokers that one is dealing with. If it is a population
21 of smokers who are using filter cigarettes, then they
22 will have lower carbon monoxide concentrations than
23 a population of smokers from a country where the use of
24 unfiltered cigarettes and possibly other smoke tobacco
25 products, in cylindrical form, is more common than it is


1 in the UK.
2 I know the study that Professor Oliver is referring
3 to. I think it's published in the British Heart
4 Journal. I accept the results of that on the British
5 population. There are other data which suggest 1 in 20
6 might well be an appropriate figure in a smoker for
7 having a carboxyhaemoglobin concentration of 10 per cent
8 or greater in their blood.
9 As I said yesterday, in clinical practice, when one
10 does a blood sample for carbon monoxide, for other
11 purposes, on somebody who is a smoker, one very rarely
12 sees concentrations which are anywhere near 10 per cent.
13 Q. Thank you. What I want to concentrate on, Professor, is
14 perhaps a more subtle issue, which is the finding of
15 plus 20 per cent in one set of blood samples and the
16 finding of 12 per cent in another.
17 A. Yes.
18 Q. I think we can find this point addressed again in the
19 experts' agreed report at [INQ0035091], item 21.
20 A. Agreed.
21 Q. You say there:
22 "We are agreed that if the haemothorax and femoral
23 blood samples both came from Henri Paul, then we cannot
24 postulate a plausible biological explanation for the
25 discrepancy in the reported carboxyhaemoglobin


1 concentrations between these two samples."
2 A. Agreed.
3 Q. "However, one explanation is that the two blood samples
4 did not come from the same source."
5 A. That I would accept as a possible explanation which
6 could be addressed by various means.
7 Q. Can I move on?
8 LORD JUSTICE SCOTT BAKER: But even then it's very odd
9 because they are both -- one is high at 12.8 per cent
10 and the other is astonishingly high at 20 per cent.
11 A. Yes, sir. As I said, one is faced with either the --
12 there is an analytical problem or there is a mystery,
13 and as I have said -- this must be the third or fourth
14 time I have said it -- I am not able to intellectually
15 resolve the problem that this presents.
16 MR KEEN: What we need, Professor, is to discover from
17 Professor Lecomte and from Dr Pepin, if we can, the true
18 provenance of the blood samples that are reported in the
19 toxicology and the chain of custody in respect of those.
20 A. I would say that the person who could be most helpful
21 would be Professor Lecomte.
22 Q. Thank you. So all roads lead to Rome?
23 A. I am ...
24 Q. Professor Lecomte is the key to so many of the mysteries
25 that you have alluded to?


1 A. And Commandant Mules and anyone else who was there at
2 the time, and I don't know if it was just
3 Professor Lecomte, Commandant Mules and the deceased
4 technician.
5 Q. Can I move on to deal with a number of other issues?
6 First of all, Acamprosate or Aotal.
7 A. Yes.
8 Q. We know that the late Henri Paul had been prescribed the
9 drug Acamprosate.
10 A. Yes.
11 Q. We also know, or at least it's been reported to you,
12 Professor, and to others, that an empty wrapper for
13 Acamprosate was found in the waste bin of his office in
14 the Ritz Hotel.
15 A. Yes.
16 Q. I don't ask you to comment on how often the waste bins
17 in the Ritz Hotel are emptied, but one imagines that
18 it's done on a reasonably regular basis in such
19 an establishment?
20 A. I would have thought so, yes.
21 Q. If we then go back to the experts' agreed report, at
22 [INQ0035090], item 19.1, we have a heading, "Aotal
23 (Acamprosate) in haemothorax blood".
24 A. Yes.
25 Q. You say and all the other experts say:


1 "We are agreed that if Henri Paul had been taking
2 Acamprosate in the prescribed dose up to the time of his
3 death and the samples analysed by Dr Pepin had been
4 correctly ascribed to Henri Paul, then Acamprosate would
5 have been detected in the sample of haemothorax blood."
6 A. Yes.
7 Q. So there are two points there: was he taking Acamprosate
8 up to the time of his death?
9 A. Yes.
10 Q. Alternatively, had the samples analysed by Dr Pepin been
11 correctly ascribed to Henri Paul?
12 A. Yes.
13 Q. What we can say about the first is that an empty
14 Acamprosate wrapper was in his waste bin at the time of
15 his death.
16 A. Yes.
17 Q. There is really nothing more to say about the fact that,
18 although it should have been detected in the sample of
19 blood, it wasn't detected in the sample analysed by
20 Dr Pepin.
21 A. It should have been detected if he was taking it up to
22 the time of his death. If he had not been taking it for
23 several days, then it would not have been detected.
24 Q. It might suggest that you would have to leave the waste
25 bins in the Ritz Hotel for an awful long time.


1 A. That would be one possible hypothesis. I could suggest
2 that there are other hypotheses as, for example, he
3 found it in his drawer and put it straight into the bin.
4 Q. Why put it in your drawer empty if you have a bin?
5 A. All I can say is that myself, taking a number of
6 medicinal preparations on a regular basis,
7 I occasionally come across empty packages in a drawer
8 and they just go into the bin, and they might have been
9 there for days or weeks. I don't think it's -- if those
10 two hypotheses, that he was actually taking it on the
11 day, finished it and puts it in the bin, and the
12 alternative hypotheses that he finds it, having used it
13 and emptied it and popped it in a drawer, rather than in
14 a bin, I don't think that there is -- it's not for me to
15 decide, but I would just say that they are two competing
16 hypotheses that need to be taken into account.
17 Q. I think we can leave the jury to consider those two
18 competing hypotheses. Thank you, Professor.
19 Can I come on to what you refer to as another
20 puzzle?
21 A. Yes.
22 Q. If we look at your initial report at paragraph 12. It's
23 [INQ0001798].
24 A. Yes.
25 Q. This is the drug Albendazole. With Acamprosate we have


1 dealt with a drug that was prescribed to Henri Paul and
2 which he was taking, subject to your hypotheses, and
3 which was not found in the analysis, but should have
4 been. Here we are dealing with a drug which is
5 a prescription drug.
6 A. Yes.
7 Q. It is prescribed, I think, for dealing with intestinial
8 worms.
9 A. Yes.
10 Q. Which he was not prescribed, but the presence of which
11 was found in the samples analysed by Dr Pepin?
12 A. Can I say that an investigation has failed to disclose
13 the prescriber? It doesn't necessarily say that he
14 wasn't prescribed it.
15 Q. With respect, I think an investigation was made of those
16 pharmacies which did supply prescribed drugs to
17 Henri Paul.
18 A. Yes, and there is no record of a prescription for
19 Zentel, Albendazole --
20 Q. We also know that when Henri Paul was seeking
21 a prescription, he would go to his doctor and close
22 friend, Dr Melo?
23 A. Yes.
24 Q. Although she prescribed other drugs, she certainly had
25 not prescribed this?


1 A. Correct. What I could say is this: that finding small
2 worms crawling out of one's rear end can be rather
3 embarrassing and one might not want to share that with
4 a female doctor.
5 Q. With respect, Professor, I think that is indulging in
6 speculation of the extreme, isn't it?
7 A. No, I wouldn't agree.
8 Q. You don't agree?
9 A. I wouldn't agree. All I would say is that people are
10 funny about their bodies and sometimes some things
11 happen, and the symptoms of intestinal worms can be
12 embarrassing and you might not want to share it with
13 a doctor who is on the borderline between being
14 a professional person who one consults as a friend.
15 Q. With respect, Professor, at post mortem the body
16 examined was not found to be suffering from intestinal
17 worms, was it?
18 A. Well, clearly the drug worked.
19 Q. With respect, Professor, what you have is a situation
20 where, for what is a serious condition, you have
21 a prescription drug.
22 A. Yes.
23 Q. Henri Paul has no prescription for that drug?
24 A. No prescription has been found for that drug, but
25 I agree with everything you have said about the


1 investigations that have been done.
2 Q. And there is no suggestion from anyone that he was
3 suffering from such a condition?
4 A. No.
5 Q. It's not a condition that you would expect someone in
6 his situation to be suffering from?
7 A. Okay. I go on to talk about the fact that there is
8 a child's preparation of paracetamol found in the flat,
9 so clearly there had been some association with
10 children, and if you are involved --
11 Q. You do know that had ceased more than two years earlier?
12 A. Indeed. What can I say?
13 Q. Can I raise with you what you said yesterday?
14 A. Yes.
15 Q. Because you said that, in conversation with Dr Deveaux,
16 there had been a suggestion that you might get this
17 without a prescription.
18 A. If a pharmacist knew you, you might well be able to get
19 a Liste II drug including Albendazole from the
20 pharmacist --
21 Q. Can I come to what was actually said before you go
22 further, Professor?
23 A. Of course.
24 Q. Let us have [INQ0007342] on the screen so we can see
25 what Dr Deveaux said. It's at paragraphs 7 and 8,


1 particularly paragraph 8:
2 "Dr Deveaux then pointed out that it was not
3 necessary to have a prescription for veterinary
4 preparations of a drug and, because veterinary
5 preparations are cheaper than those intended for humans,
6 many patients would buy a veterinary preparation of
7 a drug in Liste I or Liste II and simply administer
8 it to themselves by tripling the dose that would
9 be appropriate for a dog. Obviously, for some drugs
10 sold ... the pharmacist would exert discretion."
11 So what seems to be proposed here is that
12 Henri Paul, embarrassed by his intestinial worms, buys
13 dog pills from a vet and takes them in a triple dose.
14 A. No, he buys them from the pharmacist. I think it may be
15 helpful if I remind people about -- getting medicines in
16 France is different to England. The pharmacists have
17 basically got a virtual monopoly of selling medicinal
18 preparations, and the way we can go into Superdrug, for
19 example, which doesn't normally have a pharmacist in
20 residence, and buy a whole variety of medicinal
21 preparations which are licensed for general sale doesn't
22 apply in France. You would have to go to a pharmacist
23 to get that.
24 So there is a culture much more of, if you have
25 a headache, going to a pharmacist in France and buying


1 a preparation for treating your headache rather than, as
2 we might do, wandering round to a supermarket and buying
3 some paracetamol or some other medicinal preparation.
4 Q. As far as you know, Professor, did Henri Paul have
5 a dog?
6 A. To the best of my knowledge, he did not.
7 Q. The point is that this drug was detected in the samples
8 analysed by Dr Pepin.
9 A. Yes, and I think the material you have just taken me to
10 and taken the jury to on the screen is a reflection of
11 discussions between myself and Dr Marc Deveaux, who,
12 like most toxicologists in France, is a pharmacist,
13 about how this prescription-only medicine, this Liste II
14 medicine in French terms, might have been obtained
15 without a legitimate prescription from a pharmacist.
16 Q. The alternative thesis is that the samples analysed were
17 not those of Henri Paul?
18 A. I would agree. That is an alternative hypothesis to
19 consider.
20 Q. Thank you.
21 LORD JUSTICE SCOTT BAKER: Presumably the person going into
22 the chemist and asking for Albendazole -- let us assume
23 for the moment it is Henri Paul -- would have to know
24 what drug he wanted to deal with the condition that he
25 had?


1 A. Not necessarily, sir. My understanding and my own
2 personal experience in France is that often there is
3 what, in the UK, a British pharmacist would call
4 a counter-prescription. The problem is outlined to the
5 pharmacist -- usually in France the pharmacist; in the
6 UK probably a counter assistant, although the pharmacist
7 may become involved -- and the pharmacist comes to
8 a decision as to what is the best drug to sell the
9 patient.
10 If it's a Liste II drug and the pharmacist knows the
11 patient, my conversation with Dr Deveaux indicated that
12 the pharmacist might be prepared to bend the rules, and
13 one of the ways in which it could be to bend the rules
14 would be to say that the preparation was for
15 a veterinary purpose rather than for treating a human.
16 LORD JUSTICE SCOTT BAKER: And one would expect the
17 pharmacist to say, would one, that if it be the case,
18 "Well, this problem is beyond me. You had better go and
19 see your doctor"?
20 A. Absolutely. That is certainly what happens in the UK
21 and I know it happens in France as well.
22 MR KEEN: Alternatively, you could say, "Here they are for
23 the dog. If you want to take them yourself, triple the
24 dose"?
25 A. The way in which Dr Deveaux expressed it to me, I rather


1 formed the opinion that he had some personal experience
2 of this issue.
3 Q. You mean intestinal worms?
4 A. No, of ways to help a regular customer to obtain
5 a Liste II preparation, but I couldn't possibly say that
6 for sure, and -- that that is the case. In any case, if
7 it was, it would have been many, many years ago.
8 Q. Can we move on slightly to a further topic, Professor,
9 carbohydrate-deficient transferrin?
10 A. Yes.
11 Q. We can perhaps deal with it quite shortly if we refer to
12 the agreed report of experts at [INQ0035092].
13 A. Yes.
14 Q. If we look at item 30, the agreed statement of experts
15 under reference to "Carbohydrate-deficient transferrin
16 analysis" is this:
17 "With respect to the assay of the blood attributed
18 to Henri Paul for carbohydrate-deficient transferrin, we
19 are agreed that false positive results can be obtained
20 in post-mortem samples and, consequently, taken in
21 isolation, the CDT result in this case cannot be said to
22 be probative of recent heavy alcohol use by Henri Paul."
23 A. Yes, I think the recent literature would tend to support
24 that. The review by Professor Wayne Jones and
25 a colleague, Wayne Jones being a Welshman working at


1 Linkoping in Sweden, said that attempts to use tests of
2 this type in post-mortem material have been
3 "disappointing".
4 Q. Thank you. Towards the end of your
5 examination-in-chief, my learned friend, Mr Hilliard,
6 asked you certain questions about DNA.
7 A. Yes. I am not a DNA person.
8 Q. Be that as it may, I just want to touch upon the factual
9 background to that examination. I think you are aware
10 that, at some point, a Judge Bellancourt ordered a DNA
11 test of samples in the possession of Dr Pepin.
12 A. Yes.
13 Q. And a sample or samples were provided from Dr Pepin's
14 laboratory and subjected to DNA analysis?
15 A. Yes.
16 Q. Upon subsequent inquiry, Dr Pepin advised that he could
17 not say whether the samples provided had been the
18 subject of his alcohol or toxicology testing.
19 A. I think you would have to take me to that. You may well
20 be right.
21 Q. Well, I think it was in response to questions and
22 answers from the Paget team.
23 A. Yes.
24 Q. I think we can go there in the INQ or perhaps I can
25 quote it to you.


1 "Question: Using your documents, can you say now
2 whether the samples you gave to the gendarme ...", and
3 you can take it that those were for the DNA.
4 A. Yes.
5 Q. "... were taken from the vial which had been subject to
6 alcohol testing or the vial which was subject to
7 toxicology testing?
8 "Answer: I cannot answer."
9 A. Absolutely right. I remember him saying that.
10 Q. I think, in fact, you were there for the interview.
11 A. I was. I was.
12 Q. So that was those samples. Then the Paget team sought
13 to see if the blood samples taken on 4th September or
14 attributed to 4th September might be available for DNA
15 testing.
16 A. Yes.
17 Q. Now, it was then reported by Dr Pepin that none of the
18 samples he had tested from that date were available; do
19 you recall that?
20 A. As I recall, he said --
21 Q. He actually said they had been used up.
22 A. Yes. I think there is also some discussion about all of
23 the samples that he had had having been taken into the
24 possession of the French State.
25 Q. I think difficulties were now arising as to where


1 samples were coming from or where they were.
2 A. Yes.
3 Q. So what Paget did was to go back to IML --
4 A. Yes.
5 Q. -- and IML produced a blood sample which they said had
6 been taken by Dr Campana on 4th September.
7 A. Yes.
8 Q. But that sample had never been and never was subject to
9 toxicological testing for the presence of alcohol or
10 other substances, was it?
11 A. I have to say that I can't recall that. I know that
12 there was another sample taken up, but that particular
13 aspect of it I cannot remember being discussed.
14 I certainly wasn't there when the Paget team went back
15 to the Forensic Medicine Institute.
16 Q. I think the way they reported it was to say the blood
17 they had got had been retained at IML since 1997, albeit
18 not continuously in ideal conditions, which meant that
19 any toxicological testing of this blood would be
20 unreliable, but it could be used for DNA analysis. But
21 it had never left the laboratory and therefore never
22 been subject to toxicological analysis.
23 A. Yes, there was another point about the reliability of
24 the analyses, and that is that Dr Pepin described how he
25 persuaded the French -- the equivalent -- the


1 translation might well be the "French Society for
2 Forensic Toxicology" -- the president and various other
3 officers within the society to sign a letter saying
4 that, after seven years or so had elapsed, that further
5 toxicological analyses of the blood samples would not be
6 of assistance. I am not sure about that, I have to say.
7 I am sure that that letter was signed and produced, but
8 I am not sure about the validity of that comment.
9 Q. Professor, at first sight, it wouldn't appear very
10 difficult to identify a body, to take a blood sample
11 from the body, to check the blood/alcohol in the blood
12 sample and then to confirm, by DNA analysis, the
13 identity of the sample.
14 A. I agree in principle. There can always be problems with
15 the identification of the body if the only material for
16 the identification is portable documents on the body.
17 Q. Here we have got pathology, toxicology, expert after
18 expert, blood/alcohol analysis, other toxicology, two
19 sets of DNA analysis, and somehow we have managed to
20 achieve a situation in which the same sample has never
21 been tested for alcohol and subject to DNA analysis.
22 A. May never have been tested for alcohol and subject to
23 DNA analysis. With that caveat, I agree with what you
24 have said.
25 Q. You would have to be trying awfully hard to arrive at


1 that result after all this work, wouldn't you?
2 A. Again, it's -- I look to the jury. Conspiracy or
3 cock-up?
4 Q. Either way, would you see a man convicted for murder on
5 the basis of this?
6 A. It's not for me to go into balance of proof and things
7 like that, but I entirely agree with what you have said.
8 Murder is absolutely not something that one would want
9 anyone to be convicted of on the basis of this evidence
10 or any other crime allegedly where a -- the tryers of
11 fact have to be sure.
12 Q. Such as causing death by dangerous driving?
13 A. Well, you wouldn't with charged with that because you
14 are dead.
15 Q. Although, funnily enough, the Paget report postulates
16 that that's the charge they would have brought against
17 the late Henri Paul. I think you are aware of that.
18 A. Dangerous driving is different to driving whilst under
19 the influence of drugs or alcohol, or causing death by
20 dangerous driving while under the influence of drugs and
21 alcohol.
22 Q. Slightly technical, I think, Professor. Let us face it,
23 at the end of the day, would you want to see someone's
24 posthumous reputation murdered on the basis of this
25 evidence?


1 A. Again I have to look to the jury.
2 MR KEEN: Very well, Professor, I won't press you. I will
3 leave it to the jury.
4 Thank you, Professor.
5 MR CROXFORD: As good as my word, sir, no questions.
6 LORD JUSTICE SCOTT BAKER: Mr Macleod, we have reached
7 11.15. It may be that we would need to have a break
8 before you begin your cross-examination.
9 MR MACLEOD: Certainly, sir.
10 (11.15 am)
11 (A short break)
12 (11.30 am)
13 (Jury present)
14 Questions from MR MACLEOD
15 MR MACLEOD: Professor Forrest, I ask questions on behalf of
16 the Commissioner of Police for the Metropolis.
17 A. Yes.
18 Q. I think it's right to say that your initial involvement
19 with this case, as we can call it, was when you were
20 instructed to act as an independent toxicology
21 consultant to the Operation Paget investigation.
22 A. Correct.
23 Q. I think that your principal task, certainly initially in
24 that role, was to review the procedures and results that
25 were obtained as a result of the various analyses that


1 were undertaken from a toxicological perspective by the
2 French investigators?
3 A. Yes.
4 Q. I think it's correct, is it not, that in your first
5 reporting to the investigation, Operation Paget, you
6 were fully aware of the issues and inadequacies of the
7 pre-analytical issues which have been described in your
8 evidence relating to Professor Lecomte?
9 A. Absolutely. I think that with the exception of the
10 carboxyhaemoglobin, which is still a question, the
11 issues are really all pre-analytical. The analytical
12 issues -- the issues of the way in which the tests were
13 done at ToxLab strike me as being very small in
14 comparison to the pre-analytical issues which have been
15 gone into.
16 Q. Just touching on the carboxyhaemoglobin point for the
17 moment, one of the possibilities is, is it not, that the
18 readings that were obtained in relation to the
19 carboxyhaemoglobin may have been rogue readings as
20 a result of an analytical error or something of that
21 sort?
22 A. Yes. I think that is a very tenable hypothesis, given
23 the nature of the sample.
24 Q. You have been asked a lot of questions about the
25 pre-analytical issues relating to the first post mortem


1 conducted by Professor Lecomte.
2 A. Yes.
3 Q. But is it right to say that there was a second post
4 mortem or "autopsy", as it is known in France, conducted
5 by Dr Campana?
6 A. Yes. Essentially not a full post-mortem examination,
7 but the collection of a small amount of tissue from the
8 thigh and the exploration of Scarpa's Triangle on both
9 sides of the body.
10 Q. Importantly that investigation, where a blood sample was
11 obtained, was not troubled by the same pre-analytical
12 issues that related to the ones you have outlined by
13 Professor Lecomte?
14 A. Correct.
15 Q. Furthermore, that autopsy, the collection of blood in
16 particular, was carried out under the direct supervision
17 of Judge Stephan?
18 A. Yes.
19 Q. Dr Pepin and Dr Campana were present?
20 A. Yes.
21 Q. And three other officers of the judicial police?
22 A. Yes.
23 Q. And the procedures were photographed?
24 A. Yes.
25 Q. Are you satisfied that there were no significant


1 inadequacies in pre-analytical issues relating to that
2 investigation?
3 A. I think that's the way it should have been done from the
4 start.
5 Q. Now, I am going to go into that in more detail in
6 a moment, but I think it's right that you have looked at
7 the evidence in the round, taking all appropriate
8 matters into account, and have reported on whether or
9 not you consider that the blood/alcohol readings
10 obtained as a result of the various French
11 investigations can be relied upon by this jury.
12 A. Yes, I have.
13 Q. That was something that you touched upon in your very
14 first reporting on 17th July 2006?
15 A. Yes.
16 Q. Could I please have put on the screen [INQ0001797]?
17 This is the first page of your first reporting note.
18 One can see that, as has been pointed out, this was
19 your report to Operation Paget dealing with
20 pre-analytical issues. If we can start with
21 paragraph 2, and it would be probably just as easy if
22 I read this out:
23 "The pre-analytical issues are those relating to
24 everything before the samples were analysed, including:
25 conditions at the scene after death (this would include


1 any resuscitation attempts), conditions of transport and
2 storage of the body, autopsy and samples collection
3 technique, the containers in which the samples were
4 placed, chain of custody issues, their transport and
5 storage in the laboratory before analysis."
6 A. Yes.
7 Q. Then in the next paragraph:
8 "Where samples have been aliquoted for transport..."
9 What does "aliquoted" mean?
10 A. Literally it means divided into equal parts, but
11 basically, if a small portion of a sample is taken for
12 another test, and I had in mind the CDT test at that
13 point, then you have to look at chain of custody issues
14 all over again.
15 Q. Yes, and you express it in this way:
16 "Where samples have been aliquoted for transport to
17 another laboratory, obviously chain of custody, storage
18 and transportation issues have to be taken into
19 consideration all over again."
20 A. Yes.
21 Q. You make this statement in paragraph 4:
22 "There are clearly issues in relation with all of
23 these factors, but I believe one can be comfortably
24 satisfied, at the very least, that the samples that
25 ToxLab received and analysed can be attributed to


1 Henri Paul."
2 A. Yes.
3 Q. Do you adhere to that view today?
4 A. I adhere to that view. I would say that "comfortably
5 satisfied" is a different level of proof from "sure".
6 Q. Dealing with the analyses in paragraph 6:
7 "I have no reservation at all in stating that
8 Dr Pepin and his team at ToxLab ..."
9 Can I ask you this, at this moment in time: it's
10 right to say that Dr Pepin and his team at ToxLab were
11 independent; it was an independent laboratory,
12 an independent consultant from, for example,
13 Professor Ricordel?
14 A. Absolutely.
15 Q. And from the French judicial police?
16 A. It's not independent under the French judicial police in
17 that they do do a fair number of analyses for them and
18 for the French courts, on the direction of the French
19 courts, and that does represent a significant proportion
20 of their income.
21 Q. Indeed. There is that connection because, of course,
22 you have to be verified and an appropriately qualified
23 expert and put in that position before you are permitted
24 to participate in the inquisitorial judicial process in
25 France.


1 A. Yes, and indeed it comes up from time to time when an
2 English expert criticises the French system and wants to
3 go and give evidence in a French court and finds that it
4 can be rather difficult for him or her to do that.
5 Q. But other than that qualification, they are
6 an independent scientific research laboratory?
7 A. Yes, I think the way to look at them would be, say, the
8 equivalent of LGC Forensics or Manlove Associates or one
9 of the other providers of forensic science services in
10 the UK which are independent of the Government.
11 Perhaps LGC is not the best example because the name
12 is "Laboratory of the Government Chemist". If one was
13 to take, say -- and I quote it merely as an example --
14 Manlove Associates, a totally independent firm providing
15 forensic services for the courts would be a good example
16 of an analogy in England of ToxLab in France.
17 Q. Whereas perhaps the role played by Professor Ricordel
18 would be a different one?
19 A. He is more involved in -- how shall I put it -- more
20 married to the system.
21 Q. He is closer to the police investigation --
22 A. I think physically and organisationally.
23 LORD JUSTICE SCOTT BAKER: Just before you leave this topic,
24 Professor Forrest, you used the expression "comfortably
25 satisfied" a few moments ago about the samples that went


1 to ToxLab being those of Henri Paul. You added that
2 that was not the same level of proof as "sure".
3 A. Yes.
4 LORD JUSTICE SCOTT BAKER: Now, "comfortably satisfied" is
5 not, I think, an expression known to English law and
6 I am just anxious to know what you mean by it.
7 A. I took it from sports law cases, sir. It's better than
8 a "balance of probability", but not as good as "sure",
9 not as good as the criminal level.
11 MR MACLEOD: Picking up where we left off, dealing with the
12 analyses at paragraph 7:
13 "I have no reservation at all in stating that
14 Dr Pepin and his team at ToxLab carried out analyses of
15 the samples attributed to Henri Paul with the highest
16 degree of professional competence using what was then
17 state of the art equipment. The number of laboratories
18 that could have done the work to the same degree of
19 competence in the UK was then and is now a small
20 handful."
21 A. Correct.
22 Q. Then dropping down to the analysis of blood/alcohol, you
23 made this comment:
24 "The consistency of the agreement between the
25 analyses is such that one can be confident that any


1 contribution to the result from post-mortem
2 redistribution of the samples or from post-mortem
3 alcohol production is minimal."
4 A. Correct.
5 Q. "One can be confident that Henri Paul's blood/alcohol
6 concentration at the time of his death was around
7 175mg/100ml. This can only have arisen from the
8 consumption of alcohol."
9 A. Yes.
10 Q. Do you adhere to that view today?
11 A. I do.
12 Q. Then I think at paragraph 12, if we can drop down there,
13 you deal with the significance of the finding of
14 Dolprane, or "Doliprane" is the French trade name, which
15 is the children's medicine that was discovered. I will
16 return to that, but I just flag that up for the moment.
17 A. Yes.
18 Q. Over the page, at paragraph 16, you deal with some drugs
19 which I again will be dealing with perhaps later in
20 passing, namely Imodium, Gaopathyl, Detoxalgine and the
21 like, but I will deal with those as a separate topic.
22 A. Yes.
23 Q. Turning over the page to paragraph 19, you deal with the
24 carbohydrate-deficient transferrin tests and its
25 significance. Before I read this paragraph to you,


1 I think you have already stated your view that this is
2 a test which has utility --
3 A. Yes.
4 Q. -- but cannot be taken in isolation.
5 A. It certainly can't, particularly with a post-mortem
6 sample.
7 Q. But taking all factors into account -- and I will deal
8 with this in a moment in your evidence -- I would like
9 to read what you said in paragraph 19:
10 "The CDT test provides strong, but not absolutely
11 compelling evidence that Henri Paul was a chronic user
12 of excessive amounts of alcohol. As a chronic alcohol
13 user he may well not have shown gross evidence of
14 intoxication on the CCTV recordings."
15 A. Correct.
16 Q. Do you adhere to that with the caveat that I have given
17 today?
18 A. I do.
19 Q. Can I then, next, please, turn to [INQ0001782], which is
20 the front page of your next reporting --
21 A. Yes.
22 Q. -- of 6th December 2006. We can see from that that it's
23 dealing again with toxicological issues in relation to
24 the investigation that was conducted by Metropolitan
25 Police Officers. Could we turn to the relevant


1 conclusions, please, at [INQ0001792]? There, I think,
2 you deal at paragraph 3 with alcohol.
3 A. Yes.
4 Q. Again I think we can do no better than deal with these
5 two paragraphs:
6 "It is well known that after death, concentrations
7 of alcohol can rise in body fluids and, particularly in
8 a body which has been significantly disrupted,
9 concentrations can rise relatively rapidly. In this
10 case, given the consistency of the alcohol results and
11 the absence of the indication of the presence of any
12 volatile products of putrefaction in the gas
13 chromatographic tracings, I am confident that the
14 alcohol results are reasonably representative of the
15 alcohol concentration likely to have been present in the
16 driver's blood at the time of death."
17 Dealing with the next paragraph:
18 "I have reviewed the close circuit television
19 evidence which shows the driver parking his Mini with
20 what might be described as a degree of elan after he was
21 summoned back to duty and of him being able to tie his
22 shoelace. It is my opinion that a person who regularly
23 consumes large amounts of alcohol could carry out such
24 activities without there being clear and obvious signs
25 of intoxication. The concentration of alcohol present


1 in his blood at the time of his death would,
2 unequivocally, have adversely affected his ability to
3 safely control a motor vehicle."
4 A. Agreed.
5 Q. Again, do I take it that is something you adhere to
6 today?
7 A. I do.
8 Q. Turning to [INQ0001794], and it's the second paragraph
9 down beginning "In short ..." You conclude this section
10 by saying:
11 "In short, I am confident that the scientific
12 evidence generated by the French scientific
13 investigators gives strong support to the hypothesis
14 that the deceased driver had a concentration of alcohol
15 present in his blood, at the time of his death, which
16 would have significantly impaired his ability to safely
17 control a motor vehicle and gives moderately strong
18 support to the hypothesis that he was a regular consumer
19 of excessive amounts of alcohol in at least the week or
20 so leading up to the crash."
21 A. Agreed.
22 Q. Again, is that something that you adhere to today?
23 A. I do.
24 Q. Dealing with the pre-analytical issues and indeed some
25 questions of necessity relating to toxicological


1 analysis, I would like to give you six propositions
2 which I hope, when boiled down, may assist the jury in
3 understanding what is required to be able to be
4 satisfied that the toxicological results were reliable.
5 A. Yes.
6 Q. Now, these are very basic propositions, but I will give
7 you six. First, you need to be satisfied from whom the
8 sample was taken?
9 A. Absolutely.
10 Q. Secondly, you need to know what was put in the jar or
11 container?
12 A. Yes. There is only one reason why I hesitate, and that
13 is sometimes there is also a preservative added to the
14 jar or container. But the answer to that question, as
15 you put it to me, is yes.
16 Q. Where there is preservative, you would want to know
17 that?
18 A. Yes, it's embarrassing if you find -- the issue relates
19 to the fact that in the past the French used methylate
20 as a preservative. That could have had some issues with
21 the analysis, but that was excluded by some of the work
22 Dr Pepin did, and he stated that again it was archaic
23 forms in the French system that referred to the use of
24 methylate, which contains mercury, as a preservative.
25 So that was one of the issues that came up in the


1 investigation and was then discounted at a later date.
2 Q. So we have the first two propositions: from whom was the
3 sample taken and what is the sample that's put into the
4 container and whether it's with or without preservative.
5 Three: was that sample conveyed and submitted to
6 analysis in proper conditions?
7 A. Correct.
8 Q. Fourth: was that sample the sample that was analysed
9 which gives rise to the relevant result?
10 A. Yes.
11 Q. Fifth: what is the result?
12 A. Yes.
13 Q. Finally: was the result achieved by appropriate
14 analysis?
15 A. Yes, and there is another step, and that is the
16 interpretation of the results.
17 Q. Indeed, and I will deal with that separately, if I may.
18 A. Right.
19 Q. In terms of building blocks, essential building blocks,
20 if you are satisfied, in relation to those six
21 propositions, that you can answer those in the
22 affirmative, that's a pretty reliable basis to rely on
23 the result achieved?
24 A. Yes.
25 Q. In broad terms, applying those six propositions to, for


1 example, Dr Campana's analysis, the collection of blood
2 samples that were taken at that autopsy --
3 A. Yes.
4 Q. -- are you satisfied that Henri Paul was, in broad
5 terms, in the region of twice the legal UK limit for
6 driving?
7 A. Yes, I believe that is a hypothesis that the evidence
8 strongly supports.
9 Q. Now, I would like to deal with the interpretation aspect
10 next, if I could.
11 A. Yes.
12 Q. I would like to start, please, with coming full circle
13 to your latest report, paragraph 20. I don't ask for it
14 to be put on the screen because it has already been put
15 up once, but I will read it, the relevant parts of it.
16 It reads as follows:
17 "In any case, the interpretation of toxicological
18 analyses of samples collected after death require great
19 care in their interpretation."
20 A. Yes.
21 Q. "It is not correct to take the nihilistic view that such
22 data cannot be interpreted ..."
23 A. Yes.
24 Q. "... but as with all laboratory data related to analysis
25 on samples obtained from human subjects, the data


1 generated by the analyses has to be interpreted in
2 context ..."
3 A. Yes.
4 Q. "... that is to say [and I leave out a little
5 passage] ... where samples have been collected from the
6 deceased with as much information about the deceased,
7 the events leading up to death and the way in which the
8 samples were collected."
9 A. That's right.
10 Q. Does it follow from that, Professor, that toxicological
11 analysis is an evidential tool available to the jury,
12 but it needs to be assessed in the broader evidential
13 context?
14 A. That I totally agree with.
15 Q. In these inquests, one of the questions for the jury is
16 whether Henri Paul's driving on the night was impaired
17 or adversely affected by the consumption of alcohol
18 and/or the combination of alcohol and any drugs found in
19 his system.
20 A. Correct.
21 Q. Is it important, therefore, not to look at the
22 toxicological findings in isolation?
23 A. I couldn't agree more.
24 Q. But to see if, on the balance of the evidence, there is
25 any potential correlation between the factual evidence


1 and the toxicological results?
2 A. I agree with that, with the comment that clearly there
3 are matters of law involved which the learned Coroner
4 will direct the jury to.
5 Q. Indeed. But essentially the task -- and it's
6 an important task -- to get a proper understanding of
7 the true position is to see if there is any correlation,
8 and if so, to what degree, between the factual matrix
9 and the scientific results?
10 A. Yes.
11 Q. In this case, would you agree that the sensible starting
12 point is that Henri Paul was known to have had two
13 drinks at the Ritz before leaving to drive that car
14 between 10.06 when the bar bill was opened and 11.11
15 when the bar bill was shut?
16 A. Yes.
17 Q. So far as the percentage of alcohol in Ricard or pastis
18 is concerned, it's 45 per cent. So that the jury can
19 understand by a comparator, how would that relate, for
20 example, to whiskey?
21 A. Whiskey in the UK is typically 40 per cent by volume;
22 vodka is about 37.5 by volume. You can get overproof
23 rums -- it's probably the commonest overproof drink --
24 and some overproof vodkas. If you take whiskey as the
25 comparator, whiskey is 40 per cent by volume in the vast


1 majority of cases.
2 Q. So typically Ricard would be more alcoholic than
3 whiskey?
4 A. Correct.
5 Q. So the question that the jury have to grapple with in
6 this case, would you agree, is not a question of whether
7 Henri Paul had been drinking; the real question is how
8 much he had been drinking?
9 A. Agreed.
10 Q. I would like really first to discuss with you,
11 Professor, the behaviour and habit of Henri Paul on the
12 evidence that is available and his potential degree of
13 tolerance to alcohol.
14 A. Yes.
15 Q. First of all, we have dealt with the CCTV evidence and
16 there is no obvious sign of apparent intoxication.
17 A. Agreed.
18 Q. Were you aware that evidence has been obtained, however,
19 from a Monsieur Claude Garrec, Henri Paul's closest
20 friend of many years, as to his habits, behaviour and
21 tolerance to alcohol?
22 A. I am aware of that evidence, but not in detail.
23 Q. Monsieur Garrec describes Henri Paul as convivial.
24 A. Yes.
25 Q. "En vivant", to use his word.


1 A. Yes.
2 Q. He says this in his evidence, from his long association
3 with Henri Paul:
4 "Henri Paul didn't show signs of drinking even when
5 he had been, for example four Ricards and a few beers."
6 A. I may have heard that before, but I am not sure of the
7 source where I have heard it.
8 Q. Certainly the jury will be hearing from this witness
9 next week, we hope.
10 Secondly he states that:
11 "On occasion Henri Paul would drink and drive after
12 fete ...", in France, so where he has been out for
13 a festival or a village fete, "... after having drunken
14 alcohol, but without mishap and without any apparent or
15 noticeable effect on his driving ability."
16 I think you would stress the word "apparent"?
17 A. Yes, yes. When you have had a few drinks, you can very
18 often drive a route that you know well without any
19 adverse problem developing or being apparent. But if
20 something unexpected happens, some unusual combination
21 of events takes place, that is when the driver who has
22 been drinking may well come to grief.
23 Q. Indeed. So the mishap may occur, eventually,
24 an accident waiting to happen?
25 A. Yes. To put it shortly, on Christmas Eve, if somebody


1 has more than a couple of drinks at work and drives
2 home, nothing may happen, but if they hit a patch of ice
3 which they would normally recover from without a problem
4 or a dog runs into the road, then they may well not be
5 able to recover from that situation with the ability
6 that they normally would.
7 Q. Or if you suddenly come across a car emerging from
8 a junction to your right and you see it late or react
9 slowly?
10 A. Correct.
11 Q. Now, dealing with the statement which Claude Garrec has
12 provided as to Henri Paul's ability to cope with alcohol
13 and his behaviour when drinking, would you agree that if
14 that evidence is correct, that it shows that Henri Paul
15 had a degree of tolerance to alcohol?
16 A. Yes.
17 Q. Secondly, would you agree that it demonstrates that
18 alcohol consumption of itself would not have deterred
19 him from driving?
20 A. It certainly is consistent with that.
21 Q. Were you aware that Monsieur Garrec said in particular,
22 when asked about this occasion, whether, if Henri Paul
23 had had alcohol before driving the vehicle, would that
24 have deterred him from driving at the request of
25 Dodi Al Fayed -- he said:


1 "Even if he had been drinking, he would not have
2 refused if asked to do so by Dodi Al Fayed, and that
3 would have been a matter of pride for him, given his
4 relationship with his employer and Monsieur
5 Dodi Al Fayed."
6 A. I don't recall having heard that in exactly those terms.
7 I certainly haven't read the statement.
8 Q. But certainly Henri Paul's ability to -- and I think
9 this is an expression that is sometimes used -- control
10 his secondary social characteristics may be enhanced if
11 he was a consumer of regular amounts of alcohol?
12 A. I have to say that I am not quite sure what that
13 question means, sir.
14 LORD JUSTICE SCOTT BAKER: Well, I was puzzled as well.
15 MR MACLEOD: In relation to the ability to drive to
16 an untrained eye or the ability to converse, walk, the
17 type of list of activities which Mr Keen cited at one
18 stage, going up and downstairs, matters of that sort, if
19 you have a degree of tolerance and a high degree of
20 tolerance to alcohol, you can perform those functions,
21 even when you have consumed significant quantities?
22 A. Yes. I think another term that the psychologists use,
23 rather than "secondary social characteristics", is
24 "overlearned behaviour"; something that we do
25 repetitively over and over again on many occasions and


1 it gets almost hardwired into us. So even if we are
2 impaired or distracted or intoxicated, to a degree we
3 can carry out those functions.
4 Q. We know that the first blood sample that was tested by
5 Professor Ricordel gave a reading of 1.8. The
6 counter-analysis by Dr Pepin, when that was challenged,
7 was 1.74. But I think it's right that we also know that
8 the vitreous humour, when that was collected on the
9 autopsy of 31st August, when tested, gave a result of
10 1.73.
11 A. Yes.
12 Q. I would like to return later with you to the
13 significance of a test in vitreous humour as opposed to
14 that of blood because there are significant differences
15 I believe.
16 A. There are.
17 Q. But dealing initially with what we know about the
18 factual matrix, we also know, as a second factor, that
19 Henri Paul had, on the Saturday evening, an eventful
20 day, probably an exciting day, picking up the Princess
21 of Wales and Dodi Al Fayed from Le Bourget Airport,
22 including shaking off some paparazzi on the way back to
23 the Ritz.
24 A. Mm.
25 Q. We know, as a third factor, that he left work on


1 Saturday evening at about 7 pm, not expecting to return.
2 We know also that Claude Roulet telephoned Henri Paul at
3 his home address at 9.58 and received no reply. We also
4 know that telephone records and the examination of them
5 by police of Henri Paul's home telephone reveal no calls
6 being made between 7 and 10 from his home address.
7 A. Yes.
8 Q. Now, the question I would like to ask you is this: if
9 Henri Paul had been drinking convivially, either with
10 friends or indeed alone, not expecting to return to
11 work, perhaps recounting the events of the day, would
12 that have been a sufficient opportunity, that three-hour
13 period -- the CCTV footage shows him returning to the
14 hotel at 10.07 after a call at 10 o'clock to his mobile,
15 so a three-hour period -- if he had been drinking
16 convivially during that period, coupled with the two
17 Ricards he had at the Ritz Hotel, would that be
18 a consistent opportunity to consume sufficient alcohol
19 to give the type of reading that the French
20 investigation results delivered?
21 A. I believe it could. The only caveat I have is whether
22 or not he would have been really rather intoxicated when
23 he arrived back and the alcohol concentration would fall
24 over the next two hours such that he might have been --
25 if it was all -- if he had only had two more -- two


1 Ricards when he went back to the Ritz, the question in
2 my mind is whether it's possible or more rather than
3 less likely that he might have had more alcohol at that
4 time than has been recorded in the evidence that we have
5 heard. I think that's a possibility.
6 But the basic question you have asked of is it
7 consistent with the hypothesis that he drank convivially
8 a sufficient amount of alcohol to explain the results
9 obtained during the crash, after the crash, if those
10 samples can be attributed to him, then the answer to
11 that question is "yes".
12 Q. Another question I want to ask you is this: we have no
13 idea whether he consumed a meal during that period --
14 A. Yes.
15 Q. -- between 7 and 10. Is that an important factor to
16 take into account?
17 A. Yes, yes, it is. Basically if you consume a meal, then
18 your stomach empties its content more slowly into the
19 small bowel. What that does is it will inhibit also the
20 transfer of alcohol from the stomach to the small bowel,
21 and alcohol is largely, but not completely, absorbed
22 from the small bowel rather than the stomach. So, for
23 example, if you have a drink with a meal, then the
24 effect of the alcohol will be more drawn out because you
25 will absorb it more slowly.


1 If you want to go to extremes and an example from
2 fiction, which is actually good science, in the
3 Frederick Forsyth novel, "The Fourth Protocol", an agent
4 eats a large amount of butter before he goes out for
5 a drinking session with another agent who he knows is
6 going to be drinking and he himself wants to stay sober.
7 That is relatively good science because fat stops your
8 stomach emptying its content into the small bowel, and
9 though while he would eventually have absorbed most of
10 the alcohol he had consumed, it would be absorbed over
11 a much longer period of time. So with that scenario,
12 the person would not become acutely intoxicated.
13 Q. It depends, of course, what you were eating?
14 A. It does. If you have a pizza which is fairly fatty,
15 then that is going to slow the alcohol entering your
16 small bowel and hence absorbing than if you had, for
17 example, a piece of smoked salmon.
18 Q. Another example which the jury or those in this court
19 may be familiar with is some people drinking a pint of
20 milk before going out on a heavy drinking session.
21 A. Yes. You would be better of drinking full cream milk
22 rather than skimmed milk.
23 LORD JUSTICE SCOTT BAKER: No autopsy was done on the
24 stomach contents, was it?
25 A. They were certainly not examined under the microscope to


1 the best of my knowledge, sir. That is sometimes done.
2 There may well be an issue about stomach contents so --
3 when I am asked about Imodium.
4 MR MACLEOD: We have also heard evidence of Henri Paul's
5 behaviour on the day of the crash very recently from
6 a Mr Ben Murrell, who saw Monsieur Paul in the afternoon
7 when he drove to the Villa Windsor.
8 A. Yes.
9 Q. The evidence he gave was that Henri Paul behaved rather
10 oddly on that occasion --
11 A. Yes.
12 Q. -- and he pulled Mr Murrell quite close to him.
13 Mr Murrell said that Henri Paul had the smell of someone
14 who had had a lunch with wine, although he was quite
15 careful to say that he couldn't categorically say
16 whether he had been drinking or not, but that's the
17 smell that he associated with that occasion.
18 A. Yes.
19 Q. He said that he appeared excited and his behaviour was
20 out of character. Now, I want to ask you first of all
21 about if, during the afternoon -- this is the period
22 preceding the 7 to 10 period and preceding the drinking
23 at the Ritz Hotel -- if he had had, for example, wine
24 with lunch or alcohol with lunch, how would that fit
25 into the development of the situation?


1 A. Well, if he had had a couple of glasses, even fairly
2 large glasses of wine with lunch, it's more rather than
3 less likely that by 7 pm, when hypothetically he may
4 have started drinking again, the vast majority of the
5 alcohol there would have been eliminated.
6 Q. Do we come up against the same considerations about what
7 time he had eaten, what he had eaten, matters of that
8 sort?
9 A. Yes.
10 Q. The behaviour described by Ben Murrell -- I want to ask
11 you this question: you have described the potential
12 behaviour caused by someone who has been prescribed
13 Fluoxetine and alcohol.
14 A. Yes.
15 Q. Does that description of a person behaving oddly, rather
16 excited, out of character, potentially fit in with the
17 anticipated effects of Prozac and alcohol?
18 A. It does, but there are many other causes of behaviour
19 like that.
20 Q. Now, the next topic, Professor, I would like to deal
21 with is the connection between the prescribed drugs
22 which we know were in Henri Paul's system and his
23 alcohol consumption and whether any assistance can be
24 given to the jury as to whether it was Henri Paul's
25 blood that was likely to have been tested --


1 A. Yes.
2 Q. -- or someone else's blood.
3 Now, just dealing with, again, some of the factual
4 background which I think you have agreed is important,
5 Dr Melo prescribed drugs to Henri Paul -- and we will go
6 to them in a minute -- but first of all, is it right
7 that Dr Melo was, as you described it, a friend and
8 a doctor of medicine who prescribed drugs to Henri Paul?
9 A. That's certainly the impression I got from the reports
10 I have been shown.
11 Q. I think it's right that, from about 1995, when
12 Henri Paul split with his partner, Mme Pujol and their
13 young child, he had some personal anxieties arising from
14 that break-up --
15 A. Yes.
16 Q. -- we know from Claude Garrec that he found his work
17 stressful --
18 A. Yes.
19 Q. -- and it was likely that as a combination of those, he
20 approached Dr Melo for a prescription?
21 A. Yes.
22 Q. First of all, it's correct, isn't it, that Dr Melo's
23 evidence indicates that Henri Paul had been prescribed
24 this combination of medicines, Aotal and Tiapridal, by
25 a Parisian GP initially because he indicated to Dr Melo


1 that they agreed with him. Do you recall that?
2 A. Yes. Yes, I do.
3 Q. So this was not the first GP to have prescribed these
4 drugs to Henri Paul?
5 A. Yes.
6 Q. And may not have been the only GP?
7 A. Correct.
8 Q. Now, is it also right that, in addition to Aotal and
9 Tiapride, that Dr Melo prescribed Prozac and Noctamide
10 for insomnia?
11 A. Yes, the latter one being for insomnia and the former is
12 an anti-depressant presumably.
13 Q. Are you also aware that the local search of chemist
14 prescriptions referred to by Mr Keen revealed that
15 a medication called Stilnoct had been prescribed by
16 a pharmacist to Henri Paul and again that's for
17 insomnia?
18 A. Yes.
19 Q. Were you aware that Dr Melo, when asked about her
20 prescription of these drugs to Henri Paul, explained the
21 prescription in the following words, that he "suffered
22 depressive episodes"?
23 A. Yes.
24 Q. "... feelings of extreme isolation and solitude", which
25 led to drinking outside a social context sometimes -- or


1 I think her word is "mainly" -- at home and alone?
2 A. Yes.
3 Q. And that he had approached her because he was "worried
4 about the alcohol consumption and his dependency and
5 felt unable to manage the problem on his own"?
6 A. Yes.
7 Q. Now, in addition to the consumption of alcohol that we
8 have heard about, does that raise the additional
9 possibility that Henri Paul may have been drinking
10 privately when he was absent from the Ritz or in his
11 office or when he was alone, if he had a problem of this
12 sort?
13 A. I believe that is a proposition which could be supported
14 by the information with which you have just provided me.
15 Q. And dealing first with the prescription of Aotal, we
16 have heard that an empty packet was found in the
17 waste-paper basket on 9th September, ten days after the
18 crash.
19 A. Yes.
20 Q. So obviously the waste-paper basket hadn't been emptied
21 during that period of time, and I think you would agree
22 that on the available evidence there is no way of
23 telling when that packet was emptied?
24 A. I agree. I can recall discussions taking place in the
25 Paget office about that.


1 Q. Now, if he had been taking Aotal, you feel that the
2 tests conducted by the French investigation would have
3 revealed it?
4 A. I do, if he had been taking it up to the day of his
5 death. It may not have revealed it if he had stopped
6 taking it a few days earlier.
7 Q. Is it also right that Dr Melo, in her evidence,
8 indicated that Henri Paul would stop taking that
9 medication when he proposed to drink alcohol?
10 A. I am not sure that she specifically refers to Aotal.
11 I think it was more a general description of what he
12 would do; he would stop his medicines rather than
13 specifically referring to Aotal.
14 Q. Because Aotal is an inhibitor for alcohol, is that
15 right?
16 A. It's not an inhibitor. As I explained earlier, it's not
17 an inhibitor like Antabuse is, where if you take
18 Antabuse and you mix it with alcohol, you feel very
19 unwell. It's much more a drug which, once you have
20 achieved abstinence, it tends to reduce the desire to
21 continue to drink. As I have said, it has a very
22 limited use, but it does seem to suit some people.
23 Q. But whatever effect it had with Henri Paul, and he had
24 indicated that it agreed with him, so he obviously found
25 it satisfactory, if he had stopped taking it in the days


1 before, there would have been no assistance to him from
2 that drug which enabled him not to consume alcohol if he
3 had a problem?
4 A. I agree.
5 Q. Now, I would like to deal next, if I could, with how
6 these drugs which were found in the samples of
7 Henri Paul's blood correlate and what significance can
8 be attached to that, because, of course, there was more
9 than one separate toxicological analysis. Members of
10 the jury, it may be helpful if you look at the summary
11 of the toxicological results in your bundle which is on
12 the first page.
13 If we deal with the results. First of all,
14 Dr Pepin, from samples taken or reported to have been
15 taken on 31st August from Henri Paul, reported
16 toxicological results on 4th September from the sample 3
17 blood. I think it's right that Fluoxetine,
18 Norfluoxetine and Tiapride were each recorded in that
19 analysis.
20 A. Yes.
21 Q. I think it's also right that the samples taken by
22 Dr Campana on 4th September from the left femoral vein
23 were also subjected to a quite separate toxicological
24 test.
25 A. Correct.


1 Q. Again there is correspondence in the findings, namely
2 that Fluoxetine, Norfluoxetine, Tiapride were all found
3 in that second test.
4 A. Correct.
5 Q. Now, blood and other samples taken on both occasions
6 indicate the presence of the exact same combination of
7 drugs; is that right?
8 A. Yes.
9 Q. Is that an indicator that the likely samples came from
10 a person who was taking prescribed medicines that would
11 leave traces of Fluoxetine, Norfluoxetine and Tiapride
12 in their system?
13 A. Yes, it is.
14 Q. What can one deduce from the correlation between those
15 two results, the fact that those same combination of
16 drugs were found in each of the two tests?
17 A. One hypothesis which that would support is that they
18 come from the same person or the same body. Another
19 hypothesis -- what it doesn't exclude is the possibility
20 that one or other of the samples may have been spiked
21 with some other drug or drugs, but I think it reduces it
22 to a relatively low level of probability.
23 Q. Because if, for example, one accepts that there is no
24 pre-analytical issues with the blood taken from the left
25 femoral vein by Dr Campana, which was handed directly


1 Judge Stephan, handed directly to Dr Pepin, that was
2 then subjected immediately to forensic analysis --
3 A. Yes.
4 Q. -- if there are no problem with that sample, if it was
5 someone else's blood that Lecomte's collection related
6 to, that other person would have had to have been taking
7 the same prescribed drugs which would have left
8 Fluoxetine, Norfluoxetine and Tiapride in their system?
9 A. Correct. There is another point. You haven't taken me
10 to the findings in the liver, which I think are actually
11 quite helpful.
12 Q. I was going to deal with the hair, the spinal cord and
13 the liver. But so far as the liver is concerned, what
14 is the significance of the findings there?
15 A. The significance is that Dr Campana did not obtain liver
16 samples. They were, if one believes the documentation,
17 obtained at the first post-mortem examination and they
18 too contained Fluoxetine, Norfluoxetine and Tiapride.
19 Appendix J is slightly misleading on that, but there is
20 other documentation which I understand has been shown
21 which confirms that.
22 Q. In addition to the liver analysis, if one turns over the
23 page, at the bottom of the bundle, page 2, there is the
24 reports of sequential testing of spinal cord and hair
25 samples taken on 9th September by Professor Lecomte,


1 reportedly from Henri Paul.
2 A. Yes.
3 Q. Do the results of that testing indicate that both Prozac
4 and Tiapride had been taken for at least the three
5 months or so before the crash by Henri Paul if they were
6 from Henri Paul?
7 A. The hair samples indicate that, yes.
8 Q. If it was someone else's sample, they would have to have
9 been prescribed the same drugs as Henri Paul?
10 A. Yes.
11 Q. So there is a correlation between the two blood samples,
12 the liver sample and the hair sample?
13 A. Yes. I think there is also -- the spleen, the kidney,
14 the lungs and the pancreas also contained Fluoxetine,
15 Norfluoxetine and Tiapride.
16 Q. If we can return to what I promised I would return to,
17 which is namely the other drugs that were found and
18 I think we can deal with this in order. Albendazole?
19 A. Yes.
20 Q. Now, that's a preparation used to treat intestinal
21 worms?
22 A. Most commonly, yes.
23 Q. Often associated with young children in the household?
24 A. Children; keeping pets; living in a rural community.
25 Q. Is it right to say that if, for example, a child in the


1 household is, for example, suffering from an intestinal
2 infection of this sort and requires medication to treat
3 the problem, that the medication would need to be taken
4 by other members of the household and certainly would be
5 recommended to do so?
6 A. That's usually the case, certainly in the UK, that if
7 one of the children in the house has got pinworms or
8 something of that order, the rest of the household gets
9 the medicine. There can be issues for the doctor in
10 prescribing it because, if other members of the
11 household have to pay for their prescriptions, issues
12 can arise if the household doesn't have terribly much
13 money.
14 Q. Yes. So, for example, if a child in the household has
15 this problem, then the parents would take the same
16 medication?
17 A. Correct.
18 Q. We know that Henri Paul was very upset when he split
19 from Madame Pujol and her child.
20 A. Yes.
21 Q. But I think it's right that there was a children's
22 medicine found in Henri Paul's possession.
23 A. There was.
24 Q. I think we know that a young woman was asking after
25 Henri Paul after his death.


1 A. I believe that's the case, yes.
2 Q. Now, if Henri Paul had been associating -- we don't know
3 because he was a very private man -- with another woman
4 with a child who had a problem, is one possibility that
5 he could have taken this drug, Albendazole, because that
6 child may have been infected and he was one of the
7 closely associated persons with that child?
8 A. I agree that that is a hypothesis worthy of
9 consideration, but I don't know of any evidential basis
10 for it.
11 LORD JUSTICE SCOTT BAKER: That's the problem. There is no
12 evidence to support it.
13 MR MACLEOD: In relation to matters such as Detoxalgine --
14 A. Yes.
15 Q. -- is that a preparation that is used to detox after
16 heavy consumption of alcohol?
17 A. No, it's aspirin and vitamin C. It's not dissimilar to
18 the sort of things that seem to appear on pharmacists'
19 shelves around Christmas-time. It would not be
20 a detoxicant drug in the way that it's often loosely
21 referred to. It's much more something that you might
22 take after a hangover and frankly it's not going to be
23 much good.
24 Q. And Gaopathyl, is that for indigestion?
25 A. Yes, it is. It is not available in the UK under that


1 name.
2 Q. Imodium for diarrhoea?
3 A. Imodium is available and I think it's exactly the same
4 in France as in England. You can't always rely on a
5 proprietary medicine which has the name, let us say
6 Imodium in one country, as having the same components
7 when it is sold in a different market. But I believe
8 that it is the case that Imodium is the same throughout
9 most of Europe. It's a medicine which is taken for the
10 treatment of diarrhoea and it's an opioid-type drug, but
11 the point about it is that it doesn't get absorbed to
12 any significant extent from the gut, so it only exerts
13 its effect on the gut from within. It isn't absorbed
14 and exerts its effect by circulating throughout the rest
15 of the body.
16 Q. Does the combination of the finding of Albendazole in
17 the system, coupled with Gaopathyl and Imodium -- could
18 that be suggestive of the fact that Henri Paul may have
19 suffered from gastroenterological problems?
20 A. It could well be, but these are -- apart from the
21 Albendazole, these other drugs are homely medications
22 which might be found in many, many homes in the bathroom
23 cupboard.
24 Q. Is it right that excessive consumption of alcohol can
25 cause diarrhoea?


1 A. People who are habitual consumers of large amounts of
2 alcohol can have gut problems like that, yes, and many
3 other different sorts of problem.
4 Q. Moving on to slightly different topic, namely the
5 suggestion that the blood which was analysed may not
6 have come from the body of Henri Paul either on
7 31st August or 4th September --
8 A. Yes.
9 Q. -- I think it's right, first of all, to say that on
10 31st August, the date of Henri Paul's post mortem, that
11 was the only post mortem carried out according to the
12 records at IML on that day.
13 A. I understand that's the case.
14 Q. Secondly, I think you have had an opportunity of looking
15 at the post-mortem photographs.
16 A. Yes.
17 Q. Is it right to point out that Henri Paul's body is
18 clearly identified with two tags, one on the ankle and
19 one on the wrist, which record the number 2147?
20 A. I can recall seeing those photographs. I honestly can't
21 recall when they were taken.
22 Q. I can deal with it perhaps with Dr Shepherd.
23 A. Yes.
24 Q. So if the body was prominently marked in that way and if
25 it was the only post mortem --


1 A. Yes.
2 Q. -- being carried out that day, would you agree that on
3 the face of it, at least, there would be little scope
4 for a mix-up of Henri Paul's samples with another body's
5 samples?
6 A. If normal procedures were adhered to, yes.
7 Q. I would like to go next to the DNA testing that was
8 carried out.
9 A. Yes, and I would again emphasise that I am not an expert
10 in DNA testing. I know the basics, but I will certainly
11 tell you if you go beyond my knowledge area.
12 Q. I will try and keep it as a matter of record rather than
13 expert opinion. But so far as the DNA testing is
14 concerned, first of all, I think the French
15 investigators caused DNA testing to be carried out using
16 Henri Paul's mother as a comparator.
17 A. Yes.
18 Q. In relation to the blood that was collected on
19 31st August 1997, is it right, to your knowledge, that
20 the result of the French DNA testing of that blood gave
21 a positive match to that of Henri Paul's mother's DNA?
22 A. I am not sure that I would put it in those terms, but my
23 understanding is that it gave results that were
24 consistent with the donor -- or the person from whom the
25 blood sample was obtained -- could have had Henri Paul's


1 mother as his mother with a high degree of probability.
2 Q. Yes, I think the probability was 99.99 recurring
3 per cent.
4 A. I wouldn't wish to comment on the validity of that
5 assertion.
6 Q. In addition, a liver sample --
7 A. Yes.
8 Q. -- was also sent for DNA analysis. Now, the difference
9 between a liver sample and a blood sample in these
10 circumstances is, of course, that this was a liver
11 sample which was -- the only liver that was taken was
12 taken on 31st August --
13 A. Correct.
14 Q. -- said to be from Henri Paul.
15 A. Yes.
16 Q. Is it correct that when that liver sample, said to have
17 been taken from Henri Paul, was DNA'd by the French
18 authorities, it came out with the same result as the
19 blood?
20 A. I understand that is the case.
21 Q. And that, secondly, dealing with the blood that was
22 collected by Dr Campana on 4th September 1997, a sample
23 of that blood, taken by Operation Paget from the custody
24 of IML --
25 A. Yes.


1 Q. -- was sent to LGC Forensics which, as you have
2 described, is an independent forensic laboratory in the
3 UK --
4 A. Yes.
5 Q. -- for DNA testing, and they also confirmed that that
6 blood indicated that whoever it came from was likely to
7 be 99.99 per cent the son of Mrs Henri Paul?
8 A. I know in general terms that that test was carried out
9 and that sort of result was obtained, but I don't recall
10 that precise figure, and in any case I could not comment
11 on the validity of that figure.
12 Q. But essentially, when one is considering whether there
13 was another person's blood, liver on 31st August,
14 involved that was tested, or on 4th September, whether
15 the blood was someone else's blood, the DNA evidence, as
16 you understand it, indicates that it correlates to be
17 the blood and the liver of Henri Paul?
18 A. That the person who donated those samples was the son of
19 Henri Paul's mother.
20 Q. Indeed. Now, I come back to the vitreous humour.
21 A. Yes.
22 Q. If, as in the case of the liver, that sole collection on
23 31st August from vitreous humour did come from
24 Henri Paul, in just the same way that the liver was
25 DNA'd --


1 A. Yes.
2 Q. -- on that hypothetical basis, it showed, when analysed,
3 a reading of alcohol of 1.73.
4 A. Yes.
5 Q. Now, what is the advantage and importance of an alcohol
6 reading obtained from vitreous humour when compared with
7 one from blood?
8 A. Well, the advantage is that vitreous humour, within the
9 eyeball, is a relatively confined and isolated space,
10 and once the circulation ceases, it takes a bit of time
11 for the processes of putrefaction to reach the eyeball.
12 Consequently, if one has a case where there is
13 a possibility of post-mortem production of alcohol
14 because of the nature of the injuries to the case where
15 you have a disrupted body, and I would say particularly
16 where the abdominal cavity is disrupted, releasing
17 faecal material into the abdominal cavity which will
18 speed up the processes of putrefaction, particularly if
19 you have that sort of case, taking samples from all over
20 the body, including the vitreous humour, and then
21 analysing those samples -- and if you get a reasonable
22 degree of agreement in the alcohol results between those
23 samples, that gives you additional confidence that the
24 results are likely to reflect the state which was
25 present at the time of death in terms of alcohol.


1 It has become more common to take vitreous humour
2 over the last 15 years or so than it was in the past,
3 and it is a matrix which is quite useful for a whole
4 variety of tests in forensic toxicology. But alcohol is
5 probably still the top of the list for those tests.
6 Q. In short, is it correct to say that the sampling site
7 from which the vitreous humour is obtained is
8 a well-protected site from extraneous contamination?
9 A. Yes. It is relatively protected site from extraneous
10 contamination and, in particular, the processes of
11 putrefaction over the short term.
12 Q. Does it provide, perhaps, the most reliable guide to the
13 true level of blood/alcohol in a person's system?
14 A. I wouldn't -- I would agree with that, that statement,
15 with some reservations. It's certainly very, very
16 useful to have a vitreous humour sample and to analyse
17 it for alcohol in a case like this, and it does give one
18 a lot of confidence, assuming that the attribution of
19 the samples is correct, that the alcohol results are
20 results that can be relied on.
21 Q. Just two small further points. The first one is to deal
22 with the carbohydrate-deficient transferrin.
23 A. Yes.
24 Q. You have dealt with the utility and qualifications that
25 attach to the results.


1 A. Yes.
2 Q. But is it right that that test was undertaken in yet
3 another laboratory, independent laboratory --
4 A. It was.
5 Q. -- by Dr Dumestre Toulet in Bordeaux?
6 A. It was.
7 Q. And that the results of that were indicative of heavy
8 drinking for at least a week or so up to the crash?
9 A. They could be interpreted in that way, yes.
10 Q. Perhaps four and a half to six and a half glasses of
11 wine each day or ...?
12 A. I am not altogether happy about that aspect of the
13 interpretation, which I think has just been read off
14 a packet in a product insert leaflet. But it does
15 suggest that -- if that sample was taken from a person
16 in life, it would certainly suggest very strongly that
17 that person was a heavy drinker and had been drinking
18 heavily over the week or so before the sample was
19 obtained.
20 Q. Looking at the amount of blood/alcohol you think was
21 present, looking at all the evidence in the round, would
22 that correlate to approximately the same level of
23 drinking on a daily basis that would be required to
24 generate such a result?
25 A. It could be of that order of magnitude, yes.


1 Q. Now, the final matter is to do with document 13A in the
2 loosely bundled document which the jury have. First of
3 all I would like to ask you this question: you were
4 asked yesterday by Mr Richard Keen -- it was rather put
5 to you as a sort of fait accompli that the labels which
6 are to be found on Professor Lecomte's sampling on
7 31st August were put on after the post mortem, either
8 the next day or at some later stage.
9 A. Yes.
10 Q. Are you actually aware when these labels were affixed?
11 A. No, I am not.
12 Q. Secondly it was put to you, this document, 13A, with the
13 name at the top of the page, "Andreux".
14 A. Yes.
15 Q. It was left rather in the air as to the significance of
16 that.
17 A. Yes.
18 Q. I think the implication that was intended was that it
19 may be the blood samples or tissue samples of another
20 person separate from Henri Paul, who is deceased, who
21 had the name of "Andreux", and that may have explained
22 the appearance on the top of that pathology document.
23 A. That would be one possibility for that. I have no doubt
24 that there are other possible explanations.
25 Q. We know -- or perhaps not everybody knows -- but I think


1 it's right to say that you are aware that legal
2 proceedings have been taken by Mr Mohamed Al Fayed
3 against Dr Pepin and Professor Lecomte in France.
4 A. Yes, I am, and I know that Dr Pepin has been sometimes
5 rather guarded in -- let me put it this way: I met him
6 on two occasions, one in the presence of French police
7 officers and one with just myself, Marc Deveaux, his
8 co-director and a translator from the
9 Metropolitan Police. He was much more willing to talk
10 about issues on the second occasion than on the first
11 occasion.
12 Q. There are materials in the possession of Mr Al Fayed
13 relating to that, which are called the "Bellancourt
14 materials", relating to those legal proceedings and
15 indeed the succeeding judge which are not in the
16 possession of all the interested persons, but plainly
17 Professor Vanezis has seen these materials and I would
18 like to read a passage from Professor Vanezis' report
19 made on 27th July -- or "Report pursuant to the
20 direction of the Coroner made on 27th July", to see if
21 we can cast any light on the term "Andreux" on that
22 document, 13A.
23 A. Yes.
24 Q. It's to deal with the issue of when the containers were
25 labelled by Professor Lecomte or by any assistant acting


1 on her instructions or under her authority.
2 A. Yes.
3 Q. Now, we have not seen the source of Professor Vanezis'
4 remarks, but it's page 14 of his report, (x), and he
5 says this:
6 "It is not clear when the specimens were labelled,
7 immediately following removal from the body or at some
8 time later. However, Monsieur Andreux has stated that,
9 since the autopsy was performed at a weekend, the
10 adhesive labels could not be printed out because the
11 secretariat did not work at weekends."
12 We will see if there is any evidence later in these
13 inquests to support that.
14 A. Yes.
15 Q. So far as the reference to Andreux is concerned, is it
16 your understanding that Mr Andreux was an employee
17 working at IML, dealing with pathological matters?
18 A. I have some recollection, and I can't say where or when
19 I came across it, but it would have been in the Paget
20 office, that that is the case. But I can't go any
21 further than that. There may well be other people,
22 police officers involved in the investigation, for
23 example, who could cast more light on it than I can.
24 MR MACLEOD: Doubtless those who are instructing Mr Keen and
25 Professor Vanezis will cast light on the Andreux


1 mystery. Thank you very much.
2 A. I can't speak for them.
3 Further questions from MR HILLIARD
4 MR HILLIARD: If Mr Andreux does work in a laboratory, then,
5 on the face of it, that is an obvious explanation for
6 that name at least.
7 A. Agreed.
8 Q. Can you just help? Do you have the bundle, Professor?
9 A. Yes, I have.
10 Q. Page 8, just to see if we can look at the stomach
11 contents on this question of a meal or not, so far as
12 Henri Paul was concerned.
13 A. Yes, I have it.
14 Q. Professor Lecomte has recorded:
15 "The stomach has a lumen containing a light brown
16 liquid, approximately 20 ccs of aqueous substance
17 removed for toxicological examination."
18 I don't know what a "lumen" is. I am sure you do.
19 A. A "lumen" is a hollow cavity.
20 Q. If that represents the stomach contents, does that help
21 at all about any meal consumed earlier in the evening,
22 the nature of it? If it doesn't, say so.
23 A. I think that it's always very difficult to go from the
24 nature of the stomach content to the last meal. What
25 I think you can say is that he has not had a meal within


1 an hour or so of his death.
2 Q. All right. Now, I just want to look at three things
3 briefly with you. First of all, the question of
4 carboxyhaemoglobin; all right?
5 A. Yes.
6 Q. Then alcohol levels and then the question of who samples
7 are from; all right?
8 A. Yes.
9 Q. So far as levels of carboxyhaemoglobin are concerned,
10 you said, I think, that those levels were either
11 an analytical problem --
12 A. Yes.
13 Q. -- or a mystery.
14 A. Yes.
15 Q. I just want to know: does that apply with equal force to
16 each reading, 12.8 per cent carboxyhaemoglobin in the
17 sample taken on 4th September; 20.7 per cent in the
18 sample said to have been taken on 31st August? What
19 I just want to do is look at those. Is, in your view,
20 a possibility at least -- by which I mean a reasonable
21 one, rather than a ridiculous one -- but is
22 a possibility for the 12.8 per cent reading that
23 Mr Henri Paul was a smoker?
24 A. Yes, I believe that is certainly possible.
25 Q. So is it really the 20.7 per cent one that you chiefly


1 have in mind when you speak of a mystery or
2 an analytical problem?
3 A. That's the difficult one.
4 Q. So far as that is concerned, you have said in the report
5 that you did on 20th January this year:
6 "Nonetheless, taking all of the information into
7 account, I believe that it is more rather than less
8 likely that some interfering material in the chest
9 cavity blood may have accounted for this result."
10 You are talking there of the 20.7 per cent result?
11 A. Correct.
12 Q. Is that still your view, taking account of all the
13 information and in the light of your expertise?
14 MR KEEN: I wonder if, before the Professor answers that
15 question, my learned friend would clarify whether he is
16 just talking to the one test that produced the 20.7 or
17 is using that as a style that was used by him in-chief
18 to describe the three separate tests that produced the
19 20.7, the 21.4 and the 20, because two were done on
20 4th September on one machine and the third was done on
21 a separate machine, and it was the consistency of the
22 three that was raised and the term has been used
23 interchangeably.
24 MR HILLIARD: I certainly use that.
25 Professor, if there was interfering material, then,


1 in the chest cavity blood, would that be capable of
2 producing, as it were, the artefact that -- the result
3 on the two separate machines?
4 A. Well the analytical principle is basically the same, so
5 the answer to that question is "yes". But it would have
6 to be an unusual interferent.
7 Q. And the unusual interferent that you postulate is the
8 possibility of bone marrow, is this right, from --
9 A. Fatty material is one possible explanation. There is
10 other material that could well be present in the
11 thoracic cavity which could confound such an analysis.
12 Q. I am not quite sure if you had answered it, but is it
13 still your view that it's more rather than less likely
14 that some interfering material of that kind may have
15 accounted for the 20.7 result?
16 A. I postulate that as being a possible mechanism for the
17 discrepancy between the two carboxyhaemoglobin
18 measurements, given that they are samples taken from the
19 same body.
20 LORD JUSTICE SCOTT BAKER: Is that based on speculation,
21 that there was some possible interference in the chest
22 cavity or are there any scientific data to support that
23 this can happen?
24 A. We know that spectrophotometric methods for measuring
25 carbon monoxide or carboxyhaemoglobin in blood can have


1 problems when the sample is less than perfect. The
2 question is the nature of the imperfection, the nature
3 of the interfering substance. One obvious possibility
4 is the fatty material, fine particle material which
5 could have possibly interfered with the sample, but
6 I have to say, sir, that I am certainly not sure what
7 the interfering material might have been.
8 LORD JUSTICE SCOTT BAKER: What I am really after is whether
9 anybody has conducted any tests with interfering
10 material to show that you get rogue results when it's
11 known that the carboxyhaemoglobin level ought to have
12 been different.
13 A. The short answer to that question, sir, is that there is
14 a mass of scientific literature to the point. It is
15 somewhat variable, but you can get interference with the
16 spectrophotometric methods, particularly with the
17 instruments which were available ten years ago. The
18 modern spectrophotometric instruments are rather better.
19 MR HILLIARD: Was one of those studies the study by Winek
20 that was referred to in the 2001 report from experts
21 instructed on behalf of Mr Al Fayed that talked to the
22 possibility of a result being distorted in that way by
23 something up to 20 to 30 per cent?
24 A. Yes, there are others.
25 Q. All right.


1 A. Including one by me and a Japanese group. That was
2 actually more of the theoretical analysis of the problem
3 than actual experimentation.
4 Q. Then so far as alcohol levels are concerned, you said to
5 Mr Macleod that you were confident that at the time of
6 death, the alcohol level represented by the samples --
7 we will come to the question of who they come from in
8 a moment -- was in the order of 175 milligrams for every
9 100 millilitres of blood.
10 A. Yes.
11 Q. Do you arrive at that confidence -- what's that, because
12 of the equipment used? I just want to know if these are
13 the kind of things: the equipment used? The results
14 that you have seen and so on in the file?
15 A. Yes.
16 Q. What you know of Dr Pepin and his experience?
17 A. Yes.
18 Q. Is it that kind of thing?
19 A. That kind of thing. Also the tracings are not showing
20 extraneous peaks, which might reflect the production of
21 alcohol and other volatile substances after death, and
22 the internal consistency, which is, I agree, possibly
23 a double-edged sword between the samples.
24 Q. You have said to Mr Macleod that the results on the
25 vitreous humour gave a lot of confidence as to the


1 level; is that also a factor?
2 A. Yes. When I have got a case like this and the
3 pathologist has sent me a sample of vitreous humour,
4 I actually breathe a sigh of relief because I know that
5 analysing that will give me a considerable degree of
6 confidence in most cases about what the alcohol result
7 was actually at the time of death.
8 Q. Right. Then, lastly, the question as to who the samples
9 are from. We are going to hear next from Dr Shepherd,
10 and will you take it from me -- this may refresh your
11 memory, I don't know -- that he has the photographs of
12 the post-mortem examination on 31st August in his
13 possession --
14 A. Yes. I have seen them.
15 Q. -- which show Mr Henri Paul with the number 2147.
16 A. Yes, I know he has that bundle in his possession.
17 Q. So those are available. This is right, isn't it? We
18 also know that all the printed labels have the date of
19 the 31st August 1997?
20 A. Yes.
21 Q. That the number 2147 --
22 A. Yes.
23 Q. -- Dr Lecomte's name and the name "Paul, Henri" is on
24 them?
25 A. Yes.


1 Q. Have I, in addition, understood you correctly to be
2 saying that the results for the 31st August samples said
3 to have come from him on that date are internally
4 consistent?
5 A. Yes.
6 Q. In addition, this is right, isn't it, Mr Henri Paul
7 himself had been prescribed Prozac and Tiapride?
8 A. Yes.
9 Q. Are all those the sort of matters that you have taken
10 into account and that the jury should take into account
11 in considering the question of who those samples come
12 from?
13 A. Yes, and I would make the point that it's the jury, not
14 me, who is any sort of final arbiter.
15 Q. Of course. You have been referred to a passage in
16 a report in which you said that speaking for yourself --
17 and I understand the distinction you are making -- you
18 were comfortably satisfied that the samples were from
19 Henri Paul.
20 A. Yes.
21 Q. I just want to ask you about one aspect, please. Would
22 you turn to page 75 in the bundle?
23 A. Yes.
24 Q. That's the summary sheet. Just looking at the blood
25 sample, I just want to ask you about this. "31/8/97",


1 the blood sample said to have come from him on that
2 date.
3 A. Yes.
4 Q. Fluoxetine is measured; Norfluoxetine, you told us
5 that's the breakdown product of Fluoxetine or Prozac.
6 A. Yes.
7 Q. Then a level for Tiapride; do you see?
8 A. Yes, I do.
9 Q. Then if we just miss out the 4th September blood sample
10 and then go to the sample of urine said to have been
11 taken again on 31st August 1997 --
12 A. Yes.
13 Q. -- can you see that again there is a reading for
14 Tiapride there in the urine?
15 A. Yes.
16 Q. So Tiapride measured in the blood and urine said to have
17 come on 31st August 1997, but it's below the detection
18 level, do you see -- the stomach contents, the liver,
19 the kidney and so on?
20 A. Yes.
21 Q. Can you help us as to the explanation for that, that
22 there was, as it were, a measurable level in the blood
23 and the urine said to have come on 31st August, but not
24 in those other samples?
25 A. That may be simply a matter of the way in which the


1 technique -- the analyses were done. Dr Pepin doesn't
2 quote his lower limit of detection for stomach content
3 and the tissues. The level in blood and urine is very
4 low and I would guess that there would be technical
5 difficulties in trying to detect concentrations of even
6 that order of magnitude in the tissue samples.
7 Q. In considering whether a blood sample said to have been
8 taken on 31st August of 1997 and another said to have
9 been taken on 4th September 1997 -- in considering the
10 question of whether those may have come from the same
11 person, is the fact that if we just look at the levels
12 of Fluoxetine, 0.12 in each case --
13 A. Yes.
14 Q. -- Norfluoxetine, 0.18 in one case, 0.16 in another,
15 Tiapride, 0.0006 in one case, 0.0007 in another --
16 A. Yes.
17 Q. -- is the correspondence of those results of any
18 significance?
19 A. It is more than coincidental. It would certainly
20 support the hypothesis that those two blood samples have
21 come from the same individual at roughly the same time,
22 even -- well, no, I would stop my answer at that point.
23 Q. So as I say, you have been asked and indicated that you
24 were comfortably satisfied, notwithstanding all the
25 issues that you have drawn the jury's attention to,


1 about 31st August, but so far as 4th September is
2 concerned, the samples taken on that occasion from the
3 femoral area --
4 A. Yes.
5 Q. -- what you said was this: that that is how it should
6 have been done in the first place; is that right?
7 A. Absolutely, absolutely.
8 Q. In your view, was the way matters were dealt with on
9 4th September, as it were, significantly different in
10 terms of appropriateness and propriety -- "propriety" is
11 perhaps the wrong word -- but appropriateness than on
12 31st August?
13 A. The answer to that question is yes, but I would make the
14 point that Professor Lecomte was to some extent
15 constrained by the rather archaic instructions in place
16 in France at that time that says that blood samples have
17 to be obtained with a ladle from the heart.
18 Q. What's the significance of that? You have lost me.
19 A. Well, the French wouldn't normally, at that time, have
20 taken a femoral blood sample.
21 Q. You mean at the first examination?
22 A. At the first examination they would have gone for heart
23 blood, despite the literature since 1981 which basically
24 shows that heart blood isn't the best place to get blood
25 for toxicological analyses.


1 Q. Then as you have said on 4th September, according to the
2 judge, the sample is taken by Dr Campana, handed over to
3 Dr Pepin directly and he says he analysed it.
4 A. He drives it back to his laboratory in his Twingo, as it
5 says in the papers, and starts the analyses.
7 Thank you very much, Professor.
8 MR KEEN: I wonder, sir, if I might be permitted just to
9 raise one point with the witness. I know it's slightly
10 out of order. I do not want to challenge all the
11 evidence Mr Macleod gave to the witness, but arises out
12 of one proposition that was advanced and which my
13 learned friend, Mr Hilliard, has actually touched upon
14 and it will take just a moment.
16 MR KEEN: I am obliged.
17 Further questions from MR KEEN
18 MR KEEN: Professor, you said yesterday, under a reference
19 to figures -- it was actually a reference to cocaine, of
20 which there wasn't any -- you said this, that where
21 there was a "less than" sign, "It simply means that if
22 any cocaine was present, it was at a concentration lower
23 than the limit of detection of the assay. People have,
24 in other circumstances, misinterpreted data presented in
25 this way. It is equivalent to saying that the result is


1 zero or not detected".
2 A. Yes.
3 Q. You may recall Mr Macleod referred to the presence of
4 Tiapride in the liver --
5 A. Yes.
6 Q. -- and in particular the liver sample that was sent for
7 DNA. In fact, if we have on the screen Dr Pepin's
8 analysis -- it is [INQ0004471] -- and if we look at the
9 bottom half, do we see that again the notation indeed
10 for the liver and kidney and the spleen and the lungs
11 and the pancreas is again the "less than" sign, 0.05?
12 A. Yes. What he is basically saying is: if there is any
13 Tiapride in there, my assay is not sensitive enough to
14 detect it.
15 Q. So what he is actually saying, with regards to the
16 liver, is, as you said with regard to the cocaine: you
17 mustn't misinterpret that. That sign is equivalent to
18 saying that the result is zero or not detected?
19 A. It is equivalent to saying -- not detected is not the
20 same as zero. You can have something there at a level
21 below the limit at which your assay can detect it.
22 Q. Well your evidence yesterday was: it is equivalent to
23 saying that the result is zero or not detected.
24 A. Okay. I need to expand on that a little bit.
25 Q. Rather than expand, can we stick to "not detected"?


1 Does that notation indicate that it was not detected in
2 the liver?
3 A. If you write "not detected" and you write "less than"
4 the level he has chosen, which is less than
5 0.05 micrograms per gram of tissue, those two statements
6 are equivalent. It may be not detected because there is
7 genuinely nothing there or it may not be detected
8 because the concentration is 0.005 micrograms per gram.
9 Q. The point is that according to Dr Pepin's analysis and
10 standard, Tiapride was not detected in the liver sample.
11 A. Well, if it was present, it was at below the level of
12 detection, which you will note is -- his level of
13 detection for tissues is tenfold lower than the amount
14 which he was able to detect in blood.
15 Q. The point I simply want to clarify is that Dr Pepin was
16 reporting that Tiapride was not detected in the liver
17 rather than reporting that it was.
18 A. Correct, yes, absolutely.
19 MR KEEN: Thank you, Professor.
20 I am obliged, sir.
21 LORD JUSTICE SCOTT BAKER: Professor, if we cast aside
22 completely the samples taken on the 31st and relied
23 simply on the 4th, what would your conclusion be?
24 A. My conclusion -- the ultimate conclusion would be that
25 Mr Paul's ability to safely control the motor vehicle at


1 the time of his death was impaired as a result of the
2 consumption of alcohol.
3 LORD JUSTICE SCOTT BAKER: Thank you very much.
4 We will continue at 10 minutes past 2. Thank you
5 very much, Professor. That's all that we require of you
6 in the witness box. It may be that Mr Hilliard would be
7 keen for you to stay whilst Dr Shepherd gives his
8 evidence this afternoon, but perhaps you can sort that
9 out with him.
10 A. Yes. Thank you, sir.
11 (The witness withdrew)
13 (1.11 pm)
14 (The short adjournment)


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