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21 January 2008 - Afternoon session

4 (2.05 pm)
5 (Jury present)
6 MR HILLIARD: Professor, just before we broke off, we were
7 looking at how much somebody might have to have to drink
8 to get themselves to a level in excess of twice the
9 limit that's allowed in this country.
10 A. Yes.
11 Q. We know in this case about two Ricards at the time I was
12 telling you.
13 A. Yes.
14 Q. And you were talking, before we broke off, about -- you
15 mentioned something in the order of three more Ricards.
16 A. Yes.
17 Q. All right. I just want to be clear. Is that if all the
18 drinking is in a period pretty shortly before death in
19 this case?
20 A. Long enough to allow distribution of alcohol from the
21 gut into the bloodstream to be completed. The answer to
22 that question in that case would be "yes".
23 Q. So do you remember I was giving you the times earlier?
24 We know that the crash was at about 23 minutes or so
25 past midnight --


1 A. Yes.
2 Q. -- and I was giving you times according to the film when
3 Mr Henri Paul was in the bar. So 7 minutes past 10 to
4 25 minute past 10; quarter to 11 to 7 minutes past 11.
5 Is it possible by reference to those, as it were,
6 between 22.07 and 22.23 -- when within that period would
7 one have had to have had the extra three Ricards?
8 A. Well, it probably would have been more than three
9 Ricards if it was in that period, making allowance for
10 metabolism and assuming that the total of five is
11 a figure that can be relied on.
12 Q. So even if it was in that period, what would it have to
13 be? How many Ricards extra to the two?
14 A. If I could use a calculator --
15 Q. I will ask you in a minute about -- if we look at
16 drinking over the course of the evening. If you need to
17 use a calculator for this, then ...
18 A. It would probably be half to one more Ricard. Well,
19 I am sorry, that is actually putting it -- you would
20 probably have eliminated the equivalent of the alcohol
21 equivalent to half or one Ricard over the period of time
22 between drinking in the bar and the time of death, so
23 that would have to be added onto the five that I had
24 mentioned as a possibility. You would be talking around
25 six -- somewhere between five to seven Ricards in total,


1 if all of the drinking was done after he came back on
2 duty at around 10 o'clock.
3 Q. Just assume, would you, only for the purposes of this
4 question, but just to give us an idea -- suppose for the
5 sake of argument that aside from the two Ricards,
6 assume, if you would, that after 10 o'clock that's it --
7 A. Yes.
8 Q. -- all right, but imagine or assume, if you would, that
9 there had been drinking between about 7.30 in the
10 evening and shortly before 10 o'clock in the evening.
11 A. Yes.
12 Q. Can you help the jury with what sort of amount of
13 alcohol might have to be consumed in that period,
14 followed by the two Ricards, to have a level in excess
15 of twice the limit in this country? Do you understand?
16 A. I do.
17 Q. Yes.
18 A. I am just ... (Pause). I get a total figure of around
19 eight Ricards starting at about 7 o'clock. So if one
20 removes the two from the time at which he was known to
21 be drinking, that would leave a total of around six.
22 I say around six Ricards. Again I emphasise the
23 imprecision in such calculations.
24 Q. All right. So one possibility for someone of his
25 height, weight and so on, to get to this level would be


1 in the order of six Ricards between 7.30 and shortly
2 before 10, and then the two we know about.
3 A. Yes.
4 Q. Can you just help us with this: what's the equivalent,
5 for example, in wine or beer to six Ricards in that
6 period? That may be more readily understandable.
7 I don't know.
8 A. Ricard has an alcohol concentration by volume of around
9 45 per cent. Wine is typically 13 per cent. You are
10 multiplying the volume of Ricards that have to be taken
11 by around three and the volume of beer that would have
12 to be taken compared to 50 millilitres of servings of
13 Ricards by about ten. So that would be a lot of beer.
14 Q. How much wine?
15 A. How much wine? Bear with me a moment. (Pause). Around
16 1.2 litres of wine.
17 Q. From 7.30 or so until 10 --
18 A. Yes.
19 Q. -- followed by two Ricards?
20 A. No, that's taking the total -- that's not counting --
21 that's including the two Ricards. So we would have
22 to -- you are talking around -- if you said a litre of
23 wine, that might be the sort of figure that would be
24 a rough estimate of the amount of wine that he might
25 have drunk between going off duty and coming back on


1 duty. Again I emphasise the imprecision of these
2 calculations.
3 Q. I know you have just provided some academic papers --
4 A. Yes.
5 Q. -- and they have just come at 2 o'clock and I have not
6 had time to take them in. Do they deal with the
7 uncertainty there is in this area?
8 A. They do. It's basically a gentleman called
9 Rod Gullberg, who, although he is a serving police
10 officer with the Washington State Patrol, the equivalent
11 of Washington State Police in the USA, he is also
12 a statistician -- his papers are always gilded with
13 mathematics, but he presented some data which suggested
14 that in terms of calculating from a blood/alcohol
15 concentration the amount of alcohol that a person might
16 have consumed, you have to add plus or minus 25 per cent
17 to the result to get a 95 per cent chance that the
18 result is in that range.
19 So if you have an estimate of -- somebody has
20 consumed 100 grammes of alcohol, then the range would be
21 75 to 150 grammes of alcohol and there would be
22 a 95 per cent chance that that amount of alcohol was the
23 amount actually consumed. That is to say a 1 in 20
24 chance that it would have been greater or less than that
25 amount of alcohol.


1 I personally think that that may be a rather tight
2 estimate of the imprecision of the assay. It could well
3 be more than that, and again I would emphasise that that
4 is dealing with the living and we are dealing with
5 calculations relating to the dead.
6 LORD JUSTICE SCOTT BAKER: A litre of wine at 13 per cent
7 alcohol is equivalent to how much in terms of beer?
8 A. Right. If we say that beer is typically about a third
9 of the alcoholic strength of wine, you would say about
10 three litres of beer, sir. So if you have
11 3,000 millilitres, divided by 568 millilitres, the
12 amount in a bottle of beer, you are talking about five
13 and a third pints of beer.
15 MR HILLIARD: But all those figures, is this right, we have
16 to look at with the degree of imprecision that you have
17 told us about?
18 A. Or more.
19 Q. Or more; it could be less --
20 A. Because we are dealing with a dead person, not a live
21 person.
22 Q. It could be less and equally it could be more to get to
23 these figures?
24 A. Correct.
25 Q. All right. Now, however any individual, if they get to


1 that level, arrive at it, so however much they have to
2 drink to get to a level of that kind, I just want to ask
3 you now a little bit, please, about degrees of tolerance
4 to alcohol.
5 A. Yes.
6 Q. It may be that we all think we know from our own
7 experience, but will you tell me if this is founded in
8 scientific fact, that different people react differently
9 to the same amount of alcohol?
10 A. Yes --
11 Q. Some people we may have seen, it has no effect at all;
12 others it has a marked one.
13 A. Okay, no apparent affect. If you said "no apparent
14 effect", I would agree with you, and apparent on cursory
15 examination.
16 Basically there are a number of factors which
17 determine how we each respond to a different amount of
18 alcohol. I have already mentioned that people of
19 different sizes get different blood/alcohol
20 concentrations from drinking the same amount of alcohol.
21 Essentially if you take two 70-kilogram males, one of
22 whom is fat and one of whom is very muscular, the fat
23 gentleman will get a higher blood/alcohol concentration
24 after drinking the same amount of alcohol than will the
25 muscular gentleman because there is more water in the


1 muscular gentleman's body for the alcohol to dissolve
2 in.
3 So you can get different blood/alcohol
4 concentrations for a variety of reasons. I have only
5 mentioned one of them, when people of different sizes
6 drink the same amount of alcohol. And there is
7 a different between the sexes but that's not relevant
8 here. Women who consume the same amount of alcohol as
9 men tend to get very significantly higher blood/alcohol
10 concentrations than the man because they tend to be
11 smaller and they tend to have less water in their body
12 per kilogram body weight than the men do.
13 That aside, if you drink to a degree so that two
14 individuals or a number of individuals get the same
15 concentration of alcohol in their blood, then they too
16 will have different responses to that identical
17 concentration of alcohol. There will be intrinsic
18 differences between individuals in their sensitivity to
19 alcohol and there will be differences induced by their
20 experience of consuming alcohol.
21 With most drugs that act on the mind or on the
22 brain, you get a degree of tolerance arising. If you
23 take any substance on a regular basis that alters the
24 mind, you will acquire tolerance to it. Most of us will
25 have seen the advertisements on television with the


1 nicotine receptors in the brain going wild, having been
2 induced by using tobacco and then demanding more
3 nicotine when the person stops smoking. That's
4 a reasonable representation of one of the mechanisms by
5 which tolerance develops. If you carry on using
6 a substance, the brain will develop more receptors, the
7 mechanism by which that substance exerts its effect, and
8 if you have the same amount of the substance in your
9 body as you have developed tolerance, you will get less
10 effect for it.
11 When you stop drinking on a regular basis, then your
12 tolerance will recover. The degree of tolerance can
13 vary quite significantly between individuals. I have
14 had conversations which might have been limited in
15 vocabulary and intellectual content with people whose
16 blood/alcohol concentrations was well over
17 300 milligrams of alcohol per 100 millilitres of blood
18 and I have seen young people dead at concentrations of
19 alcohol very, very much lower than that, not much more
20 than 100 milligrams of alcohol per 100 milligrams of
21 blood, with no other cause for their death being found
22 at post-mortem examination. So there is an enormous
23 variation in the way in which we tolerate alcohol.
24 Nonetheless, once your blood/alcohol concentration
25 gets much above 50 milligrams of alcohol per


1 100 milligrams of blood, there will be impairment in
2 your abilities that you need to safely control a motor
3 car, such as reaction time, such as the ability to
4 assess appropriately risk, the ability to assess speed
5 and direction, and there a variety of other parameters.
6 Q. On the last point, just take out the question of any
7 other alcohol, but two Ricards at the time that they
8 were consumed, would those, in your view, have had
9 an effect on, as it were, driving ability, reaction time
10 and so on, at 20 past midnight or so?
11 A. I would not willingly get into a car with somebody who
12 had drunk two Ricards, so the answer to that question is
13 "yes".
14 Q. Particularly here, I think you are aware of evidence
15 about the behaviour of Henri Paul after he came back to
16 the Ritz Hotel.
17 A. Yes.
18 Q. In particular, I think you have seen CCTV film that
19 shows him parking his car --
20 A. Yes.
21 Q. -- at the hotel. I think you are aware of him walking
22 around, going upstairs, bending down and balancing to
23 tie his shoelaces and so on.
24 A. Yes.
25 Q. Nobody says that they noticed anything unusual in the


1 way he was performing those actions.
2 A. Yes.
3 Q. What I want to know is this: can that sit in
4 an individual, in your view, with the individual having
5 a blood/alcohol level in the order of or in excess of
6 twice the limit that's permitted in this country?
7 A. I believe it can, but many individuals who were not
8 tolerant to the effects of alcohol as a result of the
9 regular consumption of alcohol might well, for example,
10 fumble or slip when tying shoelaces.
11 Q. Do I understand it really comes back to the two things
12 you were talking about: individual reactions, in any
13 event, to alcohol and questions of tolerance?
14 A. Yes, and I would make the point that there is a big
15 difference between having your ability to drive safely
16 impaired and being drunk.
17 Q. Right. I want to come to a different topic now, please,
18 Professor. It's the question of carboxyhaemoglobin.
19 A. Yes.
20 Q. If you have the little summary sheet that we have at the
21 front of the bundle, I will come to the detail of it,
22 but for the purpose of going through the figures, we
23 are talking, aren't we, about the quantity of
24 carbon monoxide in blood?
25 A. Yes.


1 Q. We can see that one of the samples said to have been
2 taken from Henri Paul on 31st August 1997 was looked at
3 by Dr Pepin.
4 A. Yes.
5 Q. It's the third one down on the front page.
6 A. Yes.
7 Q. A test that he performed showed that there was alcohol,
8 but it wasn't a test that quantified it; is that right?
9 A. Yes.
10 Q. So it's described as qualitative presence of ethyl
11 alcohol, but no quantitative or no amount test done;
12 correct?
13 A. Yes. That was, as I say, when he was looking for
14 volatile substances.
15 Q. We can see that there are apparently three results, do
16 you see, of levels of -- 20.7 per cent, 21 per cent and
17 21.4 per cent.
18 A. Yes.
19 Q. Do you see that?
20 A. Yes.
21 Q. Then if you turn over the page, we have seen this one in
22 a report, but this is a sample said to have been taken
23 in the presence of the judge by Dr Campana, handed
24 straight to Dr Pepin for analysis. You can see the
25 level there that's reported, 12.8 per cent, but it looks


1 as if there were a series of tests showing 12.6 and
2 12 per cent.
3 A. Yes.
4 Q. I just want to know this: suppose again for the purposes
5 of the question that you were deliberately interfering
6 and manipulating a blood/alcohol result -- all right?
7 A. Yes.
8 Q. -- and reporting wholly dishonestly and unscrupulously
9 the results -- all right?
10 A. Yes.
11 Q. -- but at the same time reporting the presence or
12 absence of other substances in the same sample. If you
13 or any other expert were reviewing findings that had
14 been produced in that way, if somebody was increasing
15 the alcohol but reported the results as including carbon
16 monoxide levels of 20 per cent or 12 per cent, would
17 those be levels that would, as it were, immediately
18 attract your attention or not?
19 A. I think they would. Certainly the 20 per cent would.
20 The level of 12 per cent -- well, first of all, it would
21 be very rare to measure it in a case like this in any
22 British laboratory unless one was specifically asked to
23 look for it, for example, as a result of the vehicle
24 examiner's examination of the vehicle; and secondly, the
25 alcohol -- the carboxyhaemoglobin of 12.8 is a level


1 which is higher than that which you would normally see,
2 even in a smoker, but it's conceivable that it could
3 arise as a result of smoking.
4 Q. If you are interfering with results, but you are
5 reporting 20 and 12 per cent carbon monoxide --
6 A. Yes.
7 Q. -- that's something that would cause you to look at the
8 results very carefully, is it?
9 A. It would indeed. The sort of way in which it could be
10 done, if one wanted to do that, is that if one had, for
11 example, a blood sample with a relatively high
12 concentration of alcohol in it from a person who had
13 died as a result of suicide or accident with a high
14 carboxyhaemoglobin concentration in your blood, you
15 might use that blood to spike the blood of the person
16 whose alcohol concentration you wanted to raise.
17 Q. Right.
18 A. That I think, in this day and age, would be something
19 that, if anybody wanted to do that, they would have some
20 trepidation in doing because of the possibility of DNA
21 analysis of the blood sample.
22 Q. Now, suppose someone has died from carbon monoxide
23 poisoning, just to give us some outer limits, what sort
24 of percentage in blood, as it were, is consistent with
25 death?


1 A. Yes, typically the cut-off is around 50 per cent. If
2 you see a carboxyhaemoglobin percentage of around
3 50 per cent and there is no other cause of death
4 demonstrated, you can accept that carbon monoxide is
5 likely to have caused the death.
6 In young people, who are otherwise fit and who are
7 not intoxicated with other drugs, much higher
8 concentrations; 70 or 80 per cent, are not uncommon in,
9 for example, suicide with carbon monoxide in a motor
10 vehicle.
11 Q. Then I am looking, Professor, at your paragraph 72 and
12 onwards. Can you just explain to us how
13 carboxyhaemoglobin is formed.
14 A. Yes.
15 Q. Pretty briefly, if you will, because --
16 A. Yes, of course. Basically carbon monoxide is what
17 happens when any carbon-based fuel, whether it be petrol
18 or coal or wood, is incompletely burnt. On complete
19 burning it produces carbon dioxide; on incomplete
20 burning, amongst other things, it produces carbon
21 monoxide.
22 Carbon monoxide is toxic, and it is toxic
23 principally because it combines with the red pigment in
24 blood, haemoglobin, which carries oxygen from the lungs
25 to the tissue, and it binds to haemoglobin, forming


1 carboxyhaemoglobin, much more tightly than does oxygen
2 itself. Therefore it impedes the transport or
3 interferes with the efficient transport of oxygen from
4 the lungs to the tissues of the body that need it.
5 Q. It's found in tobacco smoke; correct?
6 A. Yes.
7 Q. Then if you turn to your paragraph 79, you just deal
8 with the question of possible levels that might be found
9 in individuals in relatively ordinary circumstances.
10 A. Yes.
11 Q. Can you help us about those?
12 A. Most of us who live in cities and towns might have
13 a carboxyhaemoglobin concentration of 2 to 4 per cent.
14 There will be some variation in that, depending on
15 whether we cooked with gas and things like that.
16 Somebody who smokes typically has a higher carbon
17 monoxide concentration in their blood and in their
18 breath, and people may have encountered the screening
19 tests that general practitioners do where they will
20 measure carbon monoxide concentration in breath. It's
21 much higher in a smoker than in a non-smoker, if
22 a smoker has smoked a cigarette or a pipe within
23 a reasonable length of time before blowing into the
24 machine.
25 I would be prepared to accept that some smokers


1 would have a carboxyhaemoglobin proportion in their
2 blood of the order of 12 per cent or more. That is
3 unusually high. You might find it in, for example,
4 a cigar smoker or somebody who smokes a lot of roll-ups
5 without a filter.
6 Q. I don't know, but how precise about that is it possible
7 to be? Is there a degree of tolerance, just as we heard
8 that there was in the alcohol calculations?
9 A. There does seem to be a degree of tolerance that the --
10 when it's chronically exposed to carbon monoxide, the
11 haemoglobin mechanisms develop that mean that you -- if
12 you have a carboxyhaemoglobin of 12 per cent, you are
13 not walking around with a permanent headache as people
14 who are acutely exposed to carbon monoxide and have
15 a concentration of 12 per cent might well be.
16 Q. Now, we know that Mr Paul was a smoker. We have seen
17 film of him going out the front of the hotel and
18 smoking, and indeed Dr Pepin found nicotine, didn't he?
19 A. He did. He found nicotine and the nicotine metabolite,
20 cotinine, when he was doing general screening tests on
21 the samples submitted to him.
22 Q. Now, can you help us, please? Here the level reported
23 from the femoral blood, be it vein or artery,
24 12.8 per cent; 20 per cent plus in the other blood; all
25 right?


1 A. Yes.
2 Q. Variously described as being cardiac blood or chest
3 cavity blood.
4 A. Yes.
5 Q. If you had a level of 20 per cent and your blood/alcohol
6 was in excess of twice the limit in this country, in
7 your view, if you add those two together in life, would
8 the effects be readily noticeable?
9 A. I believe that if you had somebody with
10 a carboxyhaemoglobin of 20 per cent and a blood/alcohol
11 concentration of around 174 milligrams of alcohol per
12 100 milligrams of blood, there would be clear and
13 obvious impairment on casual observation.
14 Q. Just for completeness's sake, if a 20 per cent level of
15 carbon monoxide and no alcohol, would an individual
16 again show signs or --
17 A. Rather than signs -- they might well be flushed, but
18 rather than signs they might well have complaints to
19 make, and the principal complaint is typically a very
20 unpleasant headache.
21 Q. Right. I am looking at a long passage in your report.
22 It's your paragraph 84 and onwards. We don't need all
23 of that, but first of all, we were talking earlier about
24 the femoral blood, whether it be from a vein or artery,
25 and we said that in the context of the carbon monoxide


1 levels, that might conceivably be of significance.
2 A. Yes.
3 Q. Now can you just explain for us -- if you can just break
4 it down -- why that might be?
5 A. Well, if you have got a situation which is a fairly
6 static sort of situation where the carboxyhaemoglobin
7 concentration has reached a plateau in blood and the
8 person has died, you only get relatively minor
9 differences in concentration in the carboxyhaemoglobin,
10 no matter where in the body you take it from.
11 Q. Wherever you sample from, ordinarily it would be roughly
12 the same in each --
13 A. Again to agree to within the 5 per cent or so; perhaps
14 10 per cent in an exceptional case, but not very much.
15 If there is a dynamic situation where it is rapidly
16 changing -- where one sometimes sees this is when
17 a person is rescued from a fire and the fire officers,
18 the firemen, try to give artificial respiration and they
19 tend to do it -- big guys, usually, some ladies, but
20 mainly big men -- they give them a lot of oxygen and
21 they are very vigorous with their attempts at
22 cardio-pulmonary resuscitation, and you can get some
23 sort of a circulation established and carbon monoxide
24 can be removed from the red blood cells by the high
25 concentrations of oxygen which the fire officers managed


1 to achieve in the lungs. In those circumstances,
2 experience shows that if you take a blood sample from
3 the heart, you can get a lower carboxyhaemoglobin than
4 if you take it from a peripheral vessel, in particular
5 from the femoral vein as opposed to the femoral artery.
7 Q. Just pause. Just help us with the significance of the
8 difference between whether it's a femoral vein or
9 femoral artery.
10 A. I am going --
11 Q. You were going to come to that?
12 A. Yes, I was just going to explain that. If you have got
13 a dynamic situation where you have a high concentration
14 of carboxyhaemoglobin in blood being pumped through the
15 femoral artery into the leg, then before equilibrium is
16 reached, clearly the concentration of carboxyhaemoglobin
17 in the femoral blood will be lower than the
18 concentration in the artery going in.
19 That will be a dynamic situation. There is no
20 direct observational or experimental evidence on that in
21 humans, but you can --
22 Q. Forgive me. I just want to make sure I understand.
23 It's at that point -- which is going where, so we clear?
24 I really want it terribly simple, Professor --
25 A. The femoral vein -- look at the leg in isolation, and


1 the femoral vein is getting the oxygenated blood in
2 normal circumstances from the heart, being pumped
3 through the femoral artery, okay? If you take a blood
4 sample in normal circumstances from the femoral artery
5 and a blood sample from the femoral vein and you measure
6 the oxygen concentration in those two samples, the
7 oxygen concentration in the artery will be much higher
8 than in the vein because the vein contains blood from
9 which oxygen has been nearly all removed by the tissues
10 in the leg, the muscle tissue in particular.
11 If one has a dynamic situation where, for some
12 reason, the concentration of carbon monoxide in the
13 arterial system on the left side of the heart rises very
14 suddenly, but it has not reached a equilibrium with all
15 of the blood concentration and the rest of the body
16 being more or less equal, if you take the
17 carboxyhaemoglobin concentration in the femoral artery
18 as it is pumped into the leg and then compare that with
19 the carboxyhaemoglobin concentration in the femoral vein
20 as it comes out of the leg, before the tissues in the
21 leg become saturated with carbon monoxide, during the
22 process by which -- as they are reaching the level of
23 saturation, the concentration of carboxyhaemoglobin in
24 the artery will be greater than the concentration of
25 carboxyhaemoglobin in the leg, in the femoral vein of


1 the leg.
2 I don't know how long this would carry on for.
3 There is a whole variety of factors to take into
4 account. But in a dynamic situation, where if these
5 results are true results, you have a high concentration
6 of carboxyhaemoglobin and the blood being pumped into
7 the chest cavity from the aorta and a lower
8 concentration in the sample taken from Scarpa's
9 Triangle. If it's taken from the vein rather than the
10 artery, it might be more explicable that you are getting
11 a lower concentration.
12 LORD JUSTICE SCOTT BAKER: But at some point presumably
13 equilibrium would be reached?
14 A. Yes, sir, and I can't say exactly when that point would
15 be. Clearly this could be a very dynamic situation if
16 one is talking about events happening in the less than
17 a second between the collision starting, the airbag
18 deploying, well less than a second between the airbag
19 deploying and the time at which the trans-section of the
20 aorta was complete and no further blood would be moving
21 down into the lower part of the aorta and from there
22 into the femoral artery.
23 LORD JUSTICE SCOTT BAKER: Is this something that you have
24 experienced on any other occasion or is this really your
25 deduction as to how a rogue or apparently rogue reading


1 of 20 per cent can be explained?
2 A. It was one of the ways in which I explored how the
3 possibility of such a rogue reading could be obtained.
4 I have never seen this in practice. What I have seen is
5 where extensive resuscitation has been carried out by
6 fire officers, differences between the central blood, ie
7 from the heart area, and blood from the femoral vein,
8 with the blood from the heart area having a lower
9 carboxyhaemoglobin than blood from the femoral area.
10 MR HILLIARD: The significance might be this, is this right,
11 that you considered the possibility of whether, when the
12 airbag deployed, there might have been a release of
13 carbon monoxide; is that right?
14 A. Yes.
15 Q. And some inhalation by Mr Paul; correct?
16 A. Yes.
17 Q. So of carbon monoxide -- which you at least considered
18 in theory whether that could then have begun to
19 circulate around his body; is that what it comes to?
20 A. Correct, and there is a lot of difficulties with that
21 hypothesis.
22 Q. There are. The simplest one is probably this, isn't it,
23 that as you understood it, from the data that you were
24 given, the concentration of carbon monoxide likely to
25 have been present after deployment of the airbag


1 wouldn't have been particularly high, and as you
2 understood it, not sufficient to account for this?
3 A. Not sufficient. It wouldn't have been sufficiently high
4 even at equilibrium -- well, it might have been at
5 equilibrium, depending on the data one looks at -- and
6 certainly not if one had time to complete taking even
7 a single breath, which I have to say I think is
8 unlikely.
9 LORD JUSTICE SCOTT BAKER: If your speculation, I can really
10 put it no higher than that, is correct, this illustrates
11 a hazard related to airbags that nobody has previously
12 documented; is that right?
13 A. Exactly so.
14 MR HILLIARD: Your speculation -- the fact is you don't
15 think this is an explanation, do you?
16 A. I don't think it is a realistic explanation.
17 Q. It's something you considered and, for the reasons we
18 have gone through, you don't think it's an explanation
19 for what we have here, do you?
20 A. I don't.
21 Q. Right.
22 LORD JUSTICE SCOTT BAKER: Perhaps we can put it on one
23 side.
24 MR HILLIARD: Yes, we are going to do that. I am sorry it
25 has taken so long to put it to one side.


1 What you did consider -- we talked about it earlier,
2 do you remember, when I was asking you about the rib
3 fractures and bone marrow? If blood had come from the
4 chest cavity, you were telling us about the possibility
5 that that blood might have been contaminated in that
6 way.
7 A. Yes. I am not sure that "contaminated" is the right way
8 to put it, but it might well have contained material
9 that could interfere with the measurement of
10 carboxyhaemoglobin in blood by the methods used by
11 Dr Pepin, which were both photospectrometric methods,
12 which basically involve measuring the colour of the
13 blood very accurately at different wavelengths of light
14 and calculating the concentration of carboxyhaemoglobin
15 or the proportion of carboxyhaemoglobin relative to
16 ordinary haemoglobin from those wavelengths. Those
17 methods do have problems.
18 Q. I will put it terribly simply. They are measuring
19 colours on the spectrum; is that right?
20 A. Yes.
21 Q. If the blood isn't pure, if for example -- I can't think
22 of another word than "contaminated", so let us stick
23 with that for the moment. Imagine there is some
24 bone marrow in there from a rib fracture, that's the
25 kind of thing, is this right, you are saying may affect


1 the measurement that Dr Pepin conducts?
2 A. It could have.
3 Q. I think you are aware that in 2001, I think, in a report
4 prepared by experts on behalf of Mr Al Fayed, this
5 possibility was raised; correct?
6 A. Yes, yes.
7 Q. And they referred to -- I want to read this and you tell
8 us if you are familiar with it -- a study by somebody
9 called "Winneck", and gave the publication --
10 A. Yes, Robert Winneck. I think he comes from Luxembourg.
11 He is Francophone in any event.
12 Q. In that they say:
13 "... according to which the breakdown of blood could
14 cause the formation of pigments capable of interfering
15 with the measurement of carboxyhaemoglobin by shifting
16 [forgive the technical language for a moment] the
17 absorption peaks 1 to 2 nanometres ..."
18 Then they say:
19 "... which might distort the result by 20 to
20 30 per cent."
21 Is that the same kind of thing that you are talking
22 about?
23 A. That's exactly the same principle that I am talking
24 about. There may be other mechanisms as well, including
25 scattering of light by tiny particles of fatty material.


1 Q. Right. What I want to know is this: in your view -- we
2 have put aside the question of airbags and so on -- is
3 that the kind of thing that might account, in this case,
4 for the abnormally high -- the 20 per cent plus
5 carboxyhaemoglobin reading?
6 A. It's difficult to think of an alternative explanation,
7 and for me the carboxyhaemoglobin concentration
8 discrepancies are the aspect of this case I have had
9 most difficulty in achieving an intellectual resolution
10 over.
11 Q. Now I don't know if this is obvious or not, but the rib
12 fractures, and, for example, bone marrow from those,
13 could that have any effect at all on the blood from
14 Scarpa's Triangle?
15 A. It might have, but it would be likely to be less.
16 As I have said earlier, cavity blood is generally
17 not the best sample for toxicology. The ideal sample is
18 a femoral vein sample obtained in the way in which
19 I described. Dr Campana got about as close to doing
20 that as one could get, apart from the massaging that he
21 carried out.
22 Q. We understand about levels in smokers and so on. How
23 could the bone marrow from a rib fracture affect the
24 blood from Scarpa's Triangle?
25 A. If circulation continued, then fatty material could get


1 into the blood system and be pumped round to the femoral
2 triangle, but in this case that is very improbable
3 because of the trans-section of the aorta which would
4 have occurred half a second or so into the crash or
5 less.
6 Q. So for practical purposes, can we rule that out here?
7 A. Yes.
8 Q. Right. So the 12.8 per cent, as it were, unless it's
9 a different artefact in the measuring process, the only
10 explanation that's available for that is a smoker's
11 level; is that right?
12 A. It could be consistent with it being a smoker's level.
13 If the carboxyhaemoglobin in the chest cavity was valid,
14 there might have been some contribution from blood
15 pumping around from the chest -- from the lungs before
16 complete trans-section of the aorta took place,
17 particularly if the sample was arterial rather than
18 veinous. To be pedantic, I should say the sample taken
19 from Scarpa's Triangle was arterial rather than veinous.
20 LORD JUSTICE SCOTT BAKER: But even 12.8 per cent, does that
21 look a bit on the high side?
22 A. I would say that would be -- well, we smoke less as
23 a country than the French appear to, but if you took
24 a population of smokers and measured their
25 carboxyhaemoglobin, only a minority, 5 per cent or so,


1 would have carboxyhaemoglobin concentrations of that
2 order of magnitude, sir. It's not something that one
3 generally sees if one just -- in clinical practice, if
4 one gets a sample of blood and one serendipitously
5 generates a carbon monoxide or carboxyhaemoglobin
6 concentration while you are doing other analyses on it,
7 you don't normally see it that high, and if you did,
8 I would expect one of the technical staff to draw the
9 attention of one of the laboratory medical staff to it.
10 MR HILLIARD: I want to ask you next, please, Professor,
11 about the presence or absence of prescribed drugs.
12 A. Yes.
13 Q. Do you have the summary sheet there?
14 A. Page 2 of 2, appendix J, yes, I have.
15 Q. That's right. If we just look for these, just cast our
16 eye over them, can you see in the third section --
17 A. Yes.
18 Q. -- that Dr Pepin, in that blood sample, found
19 Fluoxetine, and then its breakdown product, those from
20 Prozac, we know, and then Tiapride; yes?
21 A. Yes, yes.
22 Q. Then you see in the stomach contents, at the bottom of
23 that page, again Fluoxetine and Norfluoxetine, and
24 that's a very low level of Tiapride.
25 A. It is.


1 Q. We will come back to levels, but we can see the
2 references to these. If we go over to the second page,
3 we can see in the samples from the liver, kidneys,
4 spleen, lungs and pancreas that it's really the same,
5 isn't it?
6 A. Well, the --
7 Q. The second one looks as if it might be a bit different.
8 A. Yes, just bear with me a moment.
9 Q. Yes. (Pause).
10 A. Yes. (Pause). I am sorry.
11 Q. That is all right. If we go on. Hair?
12 A. Yes.
13 Q. If you are taking these substances, is this right,
14 that -- we can see that if you have enough hair sample,
15 it appears to be possible actually to see, as the hair
16 grows -- do a month-by-month analysis.
17 A. Yes.
18 Q. Do these substances work their way out through human
19 hair?
20 A. That's right. Basically your hair grows, if one is
21 blessed, at a rate of about a centimetre a month. What
22 one can do -- and there is a lot of questions about this
23 when you get down to the nitty-gritty -- what one can do
24 is to segment a reasonable sample of hair into
25 1-centimetre chunks and get an idea of the pattern of


1 drug usage of that individual over a period of several
2 months.
3 Q. Right. If we just carry on down, we then come to the
4 samples taken on 4th September.
5 A. Yes.
6 Q. Again the presence of Fluoxetine, Norfluoxetine and
7 Tiapride is reported; yes?
8 A. Yes.
9 Q. Then right at the bottom of the page, in the spinal
10 cord, again the three reported; is that right?
11 A. Er --
12 Q. Fluoxetine, Norfluoxetine and Tiapride.
13 A. Yes.
14 Q. Then the last section -- and this comes from page 87 in
15 our bundle, if we look at that -- we can see that hair
16 was looked at, presumably at different positions along
17 the hair, going from the right as we look at it on
18 page 87, towards the bottom.
19 A. Yes.
20 Q. A segment that represented end May, it says, to end
21 June.
22 A. Yes.
23 Q. The next portion, end June to end July; next portion,
24 end July to end August. So those were the sections that
25 were being looked at. Again, presumably, hair grows at


1 different rates. It's probably impossible, is it, to be
2 entirely precise about these things in terms of date?
3 A. Yes.
4 Q. But anyway those are the estimates.
5 A. Right.
6 Q. If we just look at these, there was evidence in May to
7 June of the taking of Prozac and Tiapride; is that
8 right?
9 A. Yes.
10 Q. End June to end July, again taking of Prozac and
11 Tiapride; is that right?
12 A. Yes, correct.
13 Q. Then, in addition to those two, for the end July to end
14 August 1997, something called "Zentel".
15 A. Zentel or Albendazole.
16 There is a point that I should make which has, in
17 other cases, led to difficulty in interpretation. That
18 is that if one looks at this diagram on page 87, this
19 table on page 87, if one takes, for example, cocaine,
20 one sees that there is the less than figure, 1, in all
21 three segments.
22 Q. Yes.
23 A. That should not be taken as meaning that there is any
24 cocaine at all in that sample. It simply means that if
25 any cocaine was present, it was at a concentration lower


1 than the limit of detection of the assay. People have,
2 in other circumstances, misinterpreted data presented in
3 this way. It is equivalent to saying that the result is
4 zero or not detected.
5 LORD JUSTICE SCOTT BAKER: That goes for all the "less than"
6 figures, does it?
7 A. It does, sir.
9 I am going now, Professor, to paragraph 91 of your
10 report.
11 A. Yes.
12 Q. You say this:
13 "Fluoxetine and it's major metabolite Norfluoxetine
14 were detected in amounts consistent with the current
15 therapeutic range for use of the drug."
16 A. Yes.
17 Q. You say:
18 "However, because the drug is eliminated quite
19 slowly from the body, it is certainly possible that the
20 results might have arisen as a result of the drug last
21 having been used a few days earlier."
22 A. Correct.
23 Q. Could it have been used more recently than that?
24 A. Oh yes. It could have been being taken up to the time
25 of death.


1 Q. And still produce these results?
2 A. Yes.
3 Q. All right.
4 A. But I would not like to say -- it certainly doesn't
5 reflect an overdose, but I wouldn't like to say what the
6 therapeutic dose was.
7 Q. Your paragraph 94, having said that it is commonly used
8 as an anti-depressant, you then deal with its effects.
9 Can you help us with those please?
10 A. Well, basically, it's a drug which, if you -- many of
11 the older anti-depressants had a quite marked sedative
12 effect. Fluoxetine isn't particularly a depressant
13 drug; it doesn't have a particular sedating effect.
14 What it can do is trigger euphoria or manic or agitated
15 behaviour.
16 A problem can arise, particularly when patients take
17 alcohol, in association with this side effect of
18 Fluoxetine, Prozac, which is a well-known side effect.
19 If you are agitated or you are slightly manic, feeling
20 very good about the world and running around in
21 ever-decreasing circles, doing lots and lots of things,
22 if you combine that with the disinhibiting effect of
23 alcohol, the result can be behaviour which is what one
24 might say is not optimal behaviour for the circumstance
25 in which one finds oneself, whether it's in a major


1 store with a credit card or whether it's driving a car.
2 Q. Right. You say that it's for that reason that patients
3 are advised in this country not to take it with alcohol.
4 A. Correct. It's not actually usually printed on the
5 label, but certainly people -- psychiatrists who
6 regularly prescribe Fluoxetine may have reservations
7 about using it in a patient who has a continuing
8 drinking problem.
9 Q. You go on to say in your report that it can produce
10 impaired concentration and patients are advised, or
11 should be, to be aware that it can have an adverse
12 effect on their ability to drive; is that right?
13 A. Correct. In general terms, if somebody was very
14 depressed and had been treated with Fluoxetine and their
15 depression had lifted, I would be happier driving with
16 them with their depression treated and them taking
17 Fluoxetine than I would be driving with them if they
18 were depressed, with them as the driver.
19 Q. So that's Fluoxetine and Norfluoxetine. Then Tiapride,
20 you say this:
21 "Tiapride was detected in concentrations consistent
22 with previous but not current use, with the
23 concentrations found being such that it would have been
24 unlikely to have been having any significant adverse or
25 therapeutic effect on Mr Paul at the time of his death."


1 A. Correct.
2 Q. You say that the results suggest that he was unlikely to
3 have been taking regular doses of that for at least two
4 or three days before his death.
5 A. Yes, and it could have been a long time before that that
6 he stopped taking it, or at least some time before that
7 that he stopped taking it.
8 Q. Right. Now one that showed up in the period that was
9 taken to represent end of July to end of August, the
10 last one on page 87, bottom left, was Zentel or
11 Albendazole. Can you help us about that, please? I am
12 looking at your paragraph 100.
13 A. Yes, Albendazole is a drug used for the treatment of
14 intestinal worms. It might be used for other parasitic
15 infections as well, but that is its principal use. It's
16 not available routinely in the UK, although it could be
17 prescribed on an exceptional basis. In both Britain and
18 France, it would be a prescription-only medicine.
19 In France it's a so-called "Liste II" medicine, and
20 it was explained -- well, most French toxicologists are
21 pharmacists by initial training, and when I visited
22 ToxLab with Mr Beer, the translator, I talked about this
23 at some length with Marc Deveaux, whose English is much
24 better than Dr Pepin, Marc Deveaux being the co-director
25 of -- or assistant director of the laboratory now,


1 although he wasn't at the time of the analyses.
2 What Marc Deveaux told me was that basically if
3 a pharmacist knows someone and they might well issue to
4 them a product which is on Liste II without a formal
5 medical prescription, some sort of subterfuge might be
6 used in order to get round the documentation by saying
7 it was intended for veterinary use, for example.
8 Marc Deveaux was not, when he talked to me,
9 particularly worried about the prospect that a Liste II
10 prescription medicine might have got into somebody's
11 blood without there being a medical prescription
12 documented as having been issued.
13 Q. Now, that was found in the hair?
14 A. Yes.
15 Q. But not anywhere else, was it?
16 A. Nowhere else. In any case, if he had been taking it at
17 the time of the crash, it wouldn't have had any adverse
18 effect or any significant interaction with any of the
19 other drugs he was taking.
20 Q. What I want to know is this: suppose he had been taking
21 it from some time from about end of July, for the sake
22 of argument, for a fortnight or something of that
23 sort --
24 A. Yes.
25 Q. -- if you had been doing that and as a result it had


1 shown up in your hair --
2 A. Yes.
3 Q. -- would it then -- suppose you had then stopped taking
4 it after about a fortnight into August, so it will be in
5 your hair, would it then necessarily show up in your
6 blood or your urine or anything else on 31st August?
7 A. No, I don't think it would, and in any case it wouldn't
8 be a drug that one would be particularly interested in
9 looking for.
10 Q. Right. So far as you are aware, did Dr Pepin do any
11 tests that would have found it if it had been there?
12 A. I think the same spectrum of tests that he did on hair,
13 applying those techniques in blood would have picked it
14 up if it had been there, and he does not report it being
15 there in anything other than the hair sample.
16 Q. So one possibility is use of it at an earlier period,
17 then that is then stopped for some reason and hence not
18 found --
19 A. Yes.
20 Q. That is one possible explanation.
21 A. Yes.
22 Q. Then lastly on this topic -- and we are very nearly at
23 the end -- we were talking about the empty packet of
24 Acamprosate that was found in his office.
25 A. Acamprosate or Aotal.


1 Q. As we said earlier, on the face of it, there is no
2 indication to, as it were, when that packet became empty
3 in the sense of when the last tablet or whatever it is,
4 capsule or whatever in there, was taken.
5 A. Yes.
6 Q. None of that, is this right, detected by Dr Pepin? No
7 Acamprosate found in any of the samples?
8 A. Correct, including hair. But I do make the point that
9 technically it might be not be the easiest drug to
10 detect in hair.
11 Q. Had he been taking it relatively close to the time of
12 his death, would you expect it to have been picked up in
13 the blood or the urine analyses?
14 A. Yes, I would.
15 Q. So if the samples are his, what does that mean about
16 when he must, as it were -- after when could he not have
17 taken any Acamprosate? Do you see what I mean?
18 A. The phrase I have used is "a few days". Certainly if he
19 had been taking it -- it's eliminated relatively slowly,
20 so if he had been taking it on the day of the crash or
21 even a couple of days before the crash, then it is more
22 rather than less likely it would have been detected.
23 After that it becomes progressively more and more
24 unlikely that if he had been taking it, it would have
25 been detected.


1 Q. So far as the hair is concerned, you say it may not be
2 the easiest to find.
3 A. Yes.
4 Q. Can you just -- likely to be found? Likely not to be
5 found?
6 A. First of all, I am not aware that anybody has ever
7 published any data on Acamprosate in here. Secondly
8 it's a drug which, with the techniques currently used
9 for looking for drugs in hair, might be a lot easier to
10 pick up than with the techniques that were used
11 ten years or eleven years ago for looking at drugs in
12 hair.
13 So I think that nowadays, if one was to say to one
14 of the laboratories doing specialising in hair analysis,
15 "Can you find Acamprosate in this person's hair?", or
16 the search, for example, "I want to know how well people
17 comply with the directions to take Acamprosate over
18 a period of time", one would be able to do it, but
19 ten years ago I think that on a speculative search for
20 any and all drugs that might be present in hair, even if
21 small amounts of Acamprosate was present in hair, you
22 may well not have detected it.
23 Q. Then if you turn, please, to page 78 of the bundle.
24 This is a report we can see bottom right. Two names,
25 Dr Veronique Dumestre Toulet and Dr Pepin again.


1 A. Yes.
2 Q. This is their report. If you turn to page 80, we can
3 see that the assignment at the bottom of the page was:
4 "To analyse the blood sample from the body of
5 Henri Paul taken ... on 4th September 1997 to determine
6 alcohol consumption habits ..."
7 Do you see that?
8 A. Yes.
9 Q. I am not going to attempt that there, but it was to
10 measure, is this right, something which I will call, for
11 shorthand, "CDT"?
12 A. Yes.
13 Q. Is this right -- I don't think we will probably need to
14 go into the reasons for it, but an increase in the
15 proportion of CDT in blood has been used as a marker for
16 problem drinking; is that right?
17 A. Correct.
18 Q. If we turn to page 82, middle of that page:
19 "If daily consumption of alcohol is approximately 50
20 to 80 grammes for at least one week, this is sufficient
21 to produce a higher result than normal."
22 A. Yes.
23 Q. "That quantity is equivalent to between four and a half
24 and six and a half glasses of wine or whiskey or any
25 other alcoholic beverage."


1 Yes?
2 A. Yes.
3 Q. The measurement here was a figure of 32, at the bottom
4 of that page; is that right?
5 A. Yes.
6 Q. If you turn over the page to page 83, it appears that
7 the critical threshold above which that level of 32 was
8 was 20; is that right?
9 A. Yes.
10 Q. It says here that the reading is abnormal if it's over
11 20 in men, "... indicative of either chronic alcoholic
12 intoxication or a rare genetic defect"; yes?
13 A. Yes.
14 Q. The conclusion:
15 "The rate ... measured in the blood sample taken
16 from Henri Paul's body ... is 32 ..."
17 A. Yes.
18 Q. "This is slightly higher than the critical threshold of
19 20 set in the literature. It's consistent with moderate
20 chronic alcoholism for at least a week."
21 A. Yes.
22 Q. That's what they say. I think your view was this -- is
23 this right -- that the conclusion was that that test
24 produced a result consistent with heavy drinking by
25 Mr Paul but the result, you say, couldn't be relied on


1 in isolation.
2 A. Correct. It has to be interpreted with caution.
3 Q. Briefly, if you would, the reason for that?
4 A. Okay. The CDT test is basically -- depends on what
5 happens to the protein, transferrin, in practice, in
6 normal circumstances in the body. This is a protein
7 which is synthesised in the liver, and we all know that
8 the liver can be adversely affected by consuming
9 alcohol.
10 The last stage, before transferrin is secreted from
11 the liver into the bloodstream, is that it gets
12 carbohydrate molecules stuck onto it in various
13 different places. If you have been a heavy drinker or
14 you have got this rare metabolic defect, then this
15 process does not proceed with normal efficiency and you
16 will push out, into your circulation, transferrin, which
17 is deficient in carbohydrate, hence the name of the
18 test, "carbohydrate-deficient transferrin".
19 If you are a heavy drinker, there is an increase in
20 the concentration of carbohydrate transferrin and the
21 proportion of carbohydrate transferrin as compared to
22 the normal amount of transferrin in blood.
23 This is a test which has got some use -- perhaps
24 it's going down a little bit as other tests are becoming
25 available -- but some use in clinical practice. When


1 a patient says to you, "I have stopped drinking, Doc",
2 and they blow a negative sample for alcohol in a breath
3 test at the clinic, you can take a blood sample off them
4 and look at this test and see if they have been drinking
5 significantly over the last week or so before they
6 turned up at the clinic, but they have just managed to
7 stop drinking on the day they attended the clinic to
8 provide a negative breath sample. This is a not
9 uncommon scenario in clinical practice in living
10 patients.
11 Now, the problem with taking a post-mortem sample is
12 this: that, after death, micro-organisms can start to
13 spread through the body as part of the process of
14 putrefaction and there can be other enzymes capable of
15 carrying out various actions released from the normal
16 sites in the body after death. This can result in the
17 stripping of carbohydrate from the transferrin molecule.
18 So it is at least possible, and has been described
19 in some papers, that if you have got a body where there
20 is a significant amount of post-mortem change taking
21 place, that the carbohydrate-deficient transferrin
22 concentration and ratio to normal transferrin can
23 apparently be increased in the body after death.
24 Again, nobody has been able to do the obvious
25 experiment, to the best of my knowledge, where you have


1 samples taken immediately before death and at post
2 mortem to look at this process.
3 The other problem is that this sample was sent by
4 post to the laboratory and I don't think it was
5 refridgerated in transit, and it's not a good idea to
6 send a sample for protein analyses, which is what this
7 is, in effect, to another laboratory at room
8 temperature. The ideal would be to send it in
9 a refridgerated package by guaranteed next-day delivery.
10 You would basically pack it up in the laboratory after
11 lunch, and then somebody would take it down to the
12 post-room in the hospital to get it off with guaranteed
13 next-day delivery to the reference laboratory, and you
14 would not do it on a Friday when it would sit in
15 a post-room over the weekend.
16 LORD JUSTICE SCOTT BAKER: Is your opinion that this
17 evidence has so many ifs and buts about it that it
18 really ought to be put on one side altogether or are you
19 saying that it has still some sort of probative value,
20 albeit with qualifications?
21 A. Sir, I believe it has got caveats, but you need to look
22 at it in conjunction with those caveats. Virtually
23 every test that we have discussed has to be taken with
24 caveats when you are looking at it in a dead body. This
25 is a test where there are certainly caveats and the


1 current scientific review literature takes a mixed view
2 on its utility.
3 MR HILLIARD: You say in your report "... a result
4 consistent with heavy drinking but the result cannot be
5 relied on in isolation". Suppose somebody has that
6 result, albeit from a sample taken after death, but has
7 been to see their doctor and says they have a problem
8 with drinking, is that what you mean when you say "Look
9 at the whole picture"?
10 A. You have to look at the whole picture, yes.
11 Q. Lastly -- and then we really will have finished and we
12 will have a break -- just as far as DNA analysis is
13 concerned --
14 A. Yes.
15 Q. -- I think you are aware, is this right, that from the
16 samples taken on 31st August, a blood sample and the
17 liver sample were analysed for DNA purposes and there
18 was a match with Henri Paul's mother; is that right?
19 A. I understand that.
20 Q. The right femoral blood taken on 4th September of 1997,
21 again that was analysed for DNA, I think, by
22 a laboratory, LGC; same result, matched with
23 Henri Paul's mother?
24 A. Yes.
25 Q. Then did you understand from Dr Pepin that samples had


1 gone to an expert instructed on behalf of Mr Al Fayed,
2 a Dr Mazancort in Marseilles?
3 A. Yes.
4 Q. Have you ever seen the results of those?
5 A. I was only told that there was a match and that was in
6 general conversation.
7 Q. But what it was, of what, you don't know?
8 A. That it was consistent with having been obtained from
9 Monsieur Paul.
10 Q. What I meant was what sample it was; you have not seen
11 the results?
12 A. I don't recall that, no.
13 Q. Lastly we mentioned this morning those original forms.
14 What I will suggest, perhaps, is if we put in each case
15 the -- I am told there will be enough in these bundles.
16 (Handed). It might be sensible to put that in the
17 treasury tag because they are quite near the beginning;
18 this one before page 13. I will pass the next one round
19 as well. While you have the treasury tag out, this one
20 to go before page 14, so you have the originals before
21 their typed copies. (Handed)
22 LORD JUSTICE SCOTT BAKER: So they are 12A and 13A?
23 MR HILLIARD: Yes. It might be sensible if we wrote that in
24 the bottom right-hand corner. We will just wait,
25 Professor, until everybody has those in place and have


1 a quick look at them and then we are done. (Pause)
2 The first one, do you remember we were talking about
3 "Andrieux" or "Andreux" at the top? We can see that
4 more clearly now, can't we?
5 A. Yes.
6 Q. Then we were talking, do you remember, about an "X" and
7 "male", or "masculin", crossed through, and then "Paul".
8 We can see that on this page.
9 A. We can.
10 Q. The figures are as we have said.
11 A. The term "visceres", which is translated as
12 "intestines", is probably better translated as
13 "viscera".
14 Q. Right. Then again the second sheet, second down, do you
15 see "corps de", "body of", it looks like "X masculin",
16 and then "Paul, Henri" in brackets afterwards.
17 A. Yes.
18 Q. Then the figures there we can see.
19 I am told -- and I may have got this wrong, I think
20 I read it in your report -- that Dr Mazancort -- I have
21 been passed a note, I am sure we can clarify it -- the
22 suggestion was that he was instructed by the French
23 judge and not Mr Al Fayed. I think you were told by
24 Dr Pepin -- maybe I have it wrong.
25 A. It would be in my report of my conversation with


1 Dr Pepin when Mr Beer was present as translator.
2 MR HILLIARD: All right. We will check that. Thank you
3 very much, Professor. That's all I want to ask you.
4 LORD JUSTICE SCOTT BAKER: We will break off then for
5 quarter of an hour now.
6 (3.30 pm)
7 (A short break)
8 (3.45 pm)
9 (Jury present)
10 LORD JUSTICE SCOTT BAKER: Mr Burnett, just before we
11 proceed, one of the witnesses listed for this coming
12 Thursday is Dr Lipsedge. Essentially his evidence
13 relates to the subject of memory following a head injury
14 and serious accident.
15 It appears to me that his evidence is likely to be
16 uncontroversial, although I have not had final
17 confirmation of that from everybody, and in those
18 circumstances I would be minded to have his evidence
19 read rather than bring him unnecessarily to court.
20 MR BURNETT: Sir, certainly. His statement is a very short
21 one, made almost ten years ago to the day, not far short
22 of it, and it's a matter I have already canvassed
23 informally with my learned friend, Mr Mansfield.
24 LORD JUSTICE SCOTT BAKER: Well, the usual criteria applies.
25 Anybody can raise objection. The statement is available


1 and I have indicated the substance of it.
2 MR HILLIARD: Can I put one thing right, Professor Forrest?
3 When I said Dr Mazancort and the DNA in Marseilles, that
4 he had been instructed on behalf of Mr Al Fayed, I was
5 wrong. That was by one of the French judges. So that's
6 my error.
7 A. Yes, I have the relevant paragraph and the report of my
8 meeting with Dr Pepin in 2006 before. I could read it
9 if that would be helpful.
10 MR HILLIARD: It is all right. I think I have just put it
11 right, yes.
12 LORD JUSTICE SCOTT BAKER: Mr Keen, I think Mr Mansfield is
13 leaving this witness to you; is that correct?
14 MR KEEN: That would appear to be so.
15 MR CROXFORD: So am I, sir.
16 MR KEEN: That is not necessarily the case.
17 Questions from MR KEEN
18 MR KEEN: Professor Forrest, good afternoon.
19 A. Sir.
20 Q. My name is Richard Keen, and I appear as counsel on
21 behalf of the parents of the late Henri Paul.
22 A. Yes.
23 Q. You began by giving us some detail of your
24 qualifications and background. You are an expert in the
25 field of toxicology.


1 A. Yes, I am.
2 Q. In addition to that, are you also, in fact, a coroner?
3 A. I am an assistant deputy coroner in the jurisdictions of
4 South Yorkshire West and what is effectively Hull.
5 Q. Thank you. There are a number of other experts who have
6 been instructed in this matter in relation to the fields
7 of toxicology and pathology, are there not?
8 A. There are.
9 Q. I would just like to remind you as to who they are and
10 to understand what discussions and other matters have
11 been dealt with by you experts together before you came
12 to give evidence. There is Dr Richard Shepherd.
13 A. Yes.
14 Q. I understand that he is a consultant forensic
15 pathologist and also a Home Office pathologist.
16 A. Correct.
17 Q. Would you acknowledge that he has expertise and
18 experience in the field of pathology?
19 A. It's not for me to acknowledge it, but I would regard
20 him as being an expert colleague.
21 Q. Professor Peter Vanezis, who is also a Home Office
22 pathologist; is that right?
23 A. Yes.
24 Q. And the professor of forensic medical sciences at Barts
25 and the London Hospital?


1 A. Yes.
2 Q. I think also the senior honorary civilian consultant in
3 forensic medicine to the armed forces?
4 A. I would have to accept your assurance that that is the
5 case.
6 Q. In addition, there is Professor Atholl Johnston, who is
7 a professor of clinical pharmacology.
8 A. Yes.
9 Q. Professor John Oliver, I understand, is the emeritus
10 professor of forensic toxicology at the University of
11 Glasgow.
12 A. Yes. I have known John Oliver for more years than
13 I care to remember and I would regard him as being
14 a good colleague.
15 Q. Professor Oliver obviously operates in the same field as
16 yourself, namely toxicology.
17 A. Yes.
18 Q. Professor Johnston is perhaps in a related field of
19 clinical pharmacology; is that right?
20 A. Yes.
21 Q. And Professor Vanezis, rather like Dr Shepherd, operates
22 in the area of pathology?
23 A. Correct.
24 Q. Do I understand that in the context of post-mortem
25 examination and analysis, these are, in a sense, related


1 disciplines in as much as one complements the other?
2 A. Yes. In a good system of working, the forensic
3 toxicologists and the forensic pathologists will work
4 very closely together.
5 Q. Thank you. Now, Professor, there was a meeting of
6 experts on 14th July 2007. Do you recall that?
7 A. Correct.
8 Q. As a consequence of that, there were many areas of
9 agreement arrived at between the experts that we have
10 just mentioned.
11 A. I would say more agreement than disagreement.
12 Q. Indeed. That resulted, I believe, in a joint report of
13 27th July 2007 which was submitted to the Coroner.
14 A. Indeed.
15 Q. I wonder if we could just have on the screen for
16 a moment [INQ0035089 - incorrect reference]. As we are going to go through
17 a large number of documents, I think we had better
18 clarify the position.
19 I certainly have, sir, "INQ0035089" as the number
20 for the first page of the meeting of experts' report and
21 I understand my learned friends have the same reference
22 number. I do not want to delay matters, but I feel that
23 the position ought to be clarified before we try and go
24 forward with the witness.


1 MR FOLEY: I have a different document reference.
2 MR KEEN: I do not understand how that can be the position,
3 sir. We are going to be going through a number of
4 documents that the jury will really have to have in
5 front of them if we are going to try and make reasonable
6 sense of and headway with this part of the evidence.
7 LORD JUSTICE SCOTT BAKER: We don't usually have a number
8 problem on the Lextranet.
9 MR KEEN: It certainly comes up on the original system with
10 the number I have just given, sir.
11 LORD JUSTICE SCOTT BAKER: If we try the next page, we might
12 get a second page.
13 MR KEEN: Certainly. We could go to [INQ0035093 - incorrect reference].
14 (Pause)
15 It may be that it's possible, simply, to use the
16 Lextranet system.
17 MR FOLEY: I can't put hard copies up.
18 MR KEEN: I can come back to it in a moment, Professor.
19 I think you would acknowledge that there was a joint
20 report signed off by yourself on 27th July 2007.
21 A. Yes.
22 Q. It was signed off by the other experts that we have
23 referred to?
24 A. Yes, that's correct.
25 Q. We will come back and look at the terms of that in


1 a moment.
2 Then you produced a report on 17th July 2006,
3 I believe.
4 A. Yes.
5 Q. If we can have that on the screen. It is [INQ0001797].
6 I think, if you look there, you can see that that is
7 headed up as "Appendix K, Operation Paget --
8 toxicological issues".
9 If we go to page 4 of 4, which will be [INQ0001800],
10 I think we can see that that bears your name and the
11 date of 17th July 2006.
12 A. Correct.
13 Q. Then just proceeding with the other materials you have
14 produced, you have produced what was termed
15 a "memorandum" on 6th December 2006. If we could have
16 that up. It's [INQ0001782]. Do you see this is also
17 headed up "Appendix K"?
18 A. Yes.
19 Q. Does that bear to be a memorandum prepared by yourself,
20 which amongst other things addresses the assessment of
21 carbon monoxide exposure?
22 A. Yes.
23 Q. We will come on to look at that in a moment. Then, over
24 the past weekend, you have produced a further report
25 dated 20th January 2008. Do you recall that?


1 A. Yes.
2 Q. I don't think we have an INQ number for it. It is
3 largely by reference to that final report that I think
4 Mr Hilliard has been examining you so far today; is that
5 right?
6 A. Yes.
7 Q. In fact I think the first page of the report has been
8 brought up.
9 A. Yes.
10 Q. Now in addition to those reports which you prepared and
11 the joint report that you signed, I take it that you
12 have also seen the reports to the Coroner made by the
13 other experts?
14 A. I can't confirm that I have necessarily seen every
15 report.
16 Q. Well, are you aware that there have been reports --
17 A. Oh yes.
18 Q. -- to the Coroner by Dr Shepherd, first of all?
19 A. Yes.
20 Q. Have you seen his reports to the Coroner?
21 A. I have seen his final report.
22 Q. Are you aware that there have also been joint reports of
23 Dr Shepherd and Professor Vanezis to the Coroner?
24 A. Yes, I am.
25 Q. Have you seen that?


1 A. I don't recall seeing that one.
2 Q. We will come to that in a moment. Are you aware that
3 there has also been a joint report of Professor Oliver,
4 Professor Johnston and Professor Vanezis which was
5 prepared in response to the Coroner's direction of
6 27th July 2007?
7 A. I am.
8 Q. Have you seen that?
9 A. I have.
10 Q. Thank you. I wonder if we could just move on for
11 a moment. If we could have on the screen a newspaper
12 report of 1st September 1997, which is the most
13 immediate record we have of a point I would like to
14 bring out with you. You may take it that this is
15 a report that has already been spoken to in the course
16 of evidence or at least its subject matter has.
17 It reports that on 1st September 1997, the public
18 prosecutor's office in Paris issued a statement that at
19 the time of the crash in the Alma Tunnel, the late
20 Henri Paul had a blood/alcohol reading of more than
21 three times the French legal limit of about
22 175 milligrams per 100 millilitres of blood. I think
23 you can see that reported at the foot of that page as
24 1.75 milligrams per litre.
25 A. Which -- it's clearly a confusion over the units used.


1 Q. Indeed so. You may take it that Madame Coujard advised
2 us that this report would only have been made with the
3 concurrence of the public prosecutor.
4 A. Yes.
5 Q. We can take that off the screen.
6 Bearing in mind the date that we have just seen and
7 on the basis of the pathology, but more particularly the
8 toxicology which you have now reviewed, would you, in
9 your professional judgment, have approved the making of
10 such a statement on that date, namely
11 1st September 1997, by the French public prosecutor?
12 A. I think the answer to that question is obvious. I would
13 not.
14 Q. Thank you. Now, in approaching and considering your
15 evidence, Professor, I would like to begin by looking at
16 what is termed sometimes the "chain of custody".
17 A. Yes.
18 Q. It's a term that you will be familiar with, both in your
19 capacity as an expert and in your capacity as a coroner.
20 A. Yes, indeed.
21 Q. Very briefly, what we mean is how do we ensure that we
22 can trace a particular matter from a starting point to
23 its end point in a court or a coroner's inquest --
24 A. Yes, indeed.
25 Q. -- and be satisfied that what we began with is what we


1 are actually dealing with at the end of the day.
2 A. Absolutely.
3 Q. In paragraph 19 of your latest report, you say -- and
4 I think you took us to this earlier, but feel free to
5 refer back to it:
6 "It is a truism that the interpretation of
7 toxicological analyses depends on the provenance and
8 quality of the samples submitted for analysis."
9 A. Absolutely.
10 Q. These are what are sometimes termed, I think, the
11 pre-analytical issues?
12 A. That's right.
13 Q. I think in your first report of 17th July 2006, you
14 noted that there clearly were issues with regard to the
15 provenance and quality of the samples submitted for
16 toxicological analysis in the case with which we are
17 concerned.
18 A. Agreed.
19 Q. Just so we can perhaps put this into context, could we
20 look at the report of Professor Vanezis pursuant to the
21 Coroner's direction of 27th July 2007? I think page 9.
22 That reference is [INQ0051808]. I think if we look
23 about halfway down that page, we see a heading,
24 "Importance of chain of custody, identification and
25 record-keeping and avoidance of contamination".


1 The author there refers to the situation "... even
2 in relation to routine or ordinary autopsies and almost
3 invariably in special post mortems, the retention of
4 tissues and their chain of custody is critical for the
5 coroner's investigation. This statement is probably
6 self-evident".
7 A. I would not dissent from that at all.
8 Q. If we could look on a little further at the joint report
9 of Dr Shepherd and Professor Vanezis, which was signed
10 off by Dr Shepherd on 13th August 2007. I think that
11 should be at [INQ0035087 - incorrect reference]. (Pause). Again, it may be
12 that we can return to that rather than take up
13 unnecessary time, Professor, as there seems to be
14 a further problem.
15 If we can go on to tab 5, which is the joint report
16 that you signed off on 25th July at [INQ0035090]. We
17 seem to have the correct document.
18 While we look at it in general, at the foot of each
19 page this has been signed off by yourself and the other
20 experts and dated; is that right, Professor?
21 A. Yes.
22 Q. If we go to the top of the page to what is termed
23 items 11, 12 and 13, do we have a heading,
24 "Identification of the body of Henri Paul and the chain
25 of custody of the samples attributed as his"? Do you


1 see that?
2 A. Yes.
3 Q. The agreed text of the experts is:
4 "With respect to the 'list of allegations' submitted
5 to the court on behalf of the parents of Henri Paul we
6 are agreed that the identification procedures of his
7 body and the collection, labelling and overall chain of
8 custody of the samples attributed to Henri Paul would
9 not meet the standards applicable for post-mortem
10 examinations in the United Kingdom."
11 A. Yes, I would go further. I would say particularly for
12 forensic post mortems, but I am happy with that
13 statement as it stands. I would expect that any
14 pathologist would -- in the United Kingdom, England or
15 Scotland or Wales, would arrange for samples to be sent
16 to the laboratory with appropriate identification, such
17 that one could be sure or at worst very confident that
18 the samples came from the person from whom the samples
19 were supposed to have been collected and were collected
20 in the manner as labelled.
21 Q. That wasn't the case here, was it?
22 A. I agree.
23 Q. If we come on for a moment to the joint report of
24 Professor Oliver, Professor Johnston and
25 Professor Vanezis, at [INQ0051944].


1 I think we can see at the top that this, first of
2 all, narrates that it's the joint report of Professors
3 Oliver, Johnston and Vanezis, prepared in response to
4 the direction of the Coroner, made on 27th July 2007.
5 A. I have a blank screen, I am afraid. (Pause). Right.
6 Q. I think if we just look at the opening sentence, we can
7 just identify the report; is that right?
8 A. Yes.
9 Q. It's been highlighted for you. If we turn to page 13 of
10 that report, which is at [INQ0051956], and the bottom
11 half of the page is what I am going to refer to in
12 particular, so if that could be brought into focus, do
13 we see a heading "Additional observations"? Do you see
14 that, Professor?
15 A. Yes, I do.
16 Q. Have you seen this before?
17 A. It looks familiar, yes.
18 Q. These experts say:
19 "From the outset the investigation of the death of
20 Henri Paul has been surprisingly lacking in scientific
21 probity. The following points are of particular
22 concern:
23 "1. That, given this case was going to be the focus
24 of so much international attention, it is unbelievable
25 that proper and detailed chain of custody documentation


1 for the samples taken at post mortem through to the
2 presentation of evidence in court does not exist."
3 A. I have to say that I wouldn't accept the word
4 "unbelievable", but I certainly agree with the sentiment
5 that has been expressed there.
6 Q. We have to believe it because it happened. Would that
7 be fair, Professor?
8 A. Indeed.
9 Q. If we go to paragraph 2 --
10 A. Agreed.
11 Q. -- would you agree with the sentiment that "The number
12 of samples taken by Professor Lecomte at post mortem
13 differ from the number of samples received by the
14 toxicologist"?
15 A. Yes.
16 Q. At 3, that "The labelling of the blood samples was
17 incorrect and it is astonishing that the true anatomical
18 source of these blood samples was not revealed to
19 Professor Pepin until 2006 when interviewed by the Paget
20 team"?
21 A. Yes, and I can still Dr Pepin's face where he clearly --
22 the way his expression changed.
23 Q. This is when it was disclosed to him that what he
24 thought was cardiac blood was nothing of the sort?
25 A. Correct.


1 Q. In fact, on 31st August 1997, what Professor Lecomte
2 actually recorded as having taken, albeit it may be open
3 to doubt in the light of Dr Shepherd's more recent
4 findings, were five samples of haemothorax blood.
5 A. Yes.
6 Q. I wonder, then, if we can turn back for a moment to the
7 joint agreement of the experts which you signed off on
8 27th July and in particular go to [INQ0035091].
9 I apologise, sir, for moving between these documents,
10 but I think it better that should be on the screen for
11 the jury. It may be that at the end of the day a note
12 of the documents referred to can be taken and a full
13 bundle made available to the jury.
14 Looking at your joint agreement, this time under
15 referenced item 20, heading "Suitability of haemothorax
16 blood for toxicological analysis".
17 A. Yes.
18 Q. You state:
19 "We are agreed that haemothorax blood is not
20 suitable for quantitative toxicological analysis."
21 A. Agreed. The only thing that I would say is if you have
22 got nothing else, you just go ahead and do it and you
23 try and make the best of it and explain to whoever you
24 have to got to explain it to, whether it's a court or
25 whether it's somebody else trying to find out what


1 happened, the caveats which I have gone into
2 considerably -- I can't say "in-chief" because it's not
3 a trial, but when I was first asked to assist the
4 Coroner, to -- you have to flag up the health warnings,
5 to use an expression that I have done before.
6 I would never ever say that the best sample is
7 haemothorax blood. It is true that it is not suitable
8 for quantitative analyses. You can do quantitative
9 analyses on it, although I have flagged up the problems
10 that can happen with, for example, carboxyhaemoglobin.
11 The real result is in the interpretation of -- the
12 problem is in the interpretation of those analyses.
13 Q. What we have, Professor, is a situation where, on the
14 basis of a quantitative analysis or attempted analysis
15 of samples of haemothorax blood, which Professor Lecomte
16 attributed to post mortem on 31st August 1997, the
17 French public prosecutor publicly announces that the
18 late Henri Paul had a blood/alcohol level of
19 175 milligrams per 100 millilitres.
20 A. Yes. I cannot answer for the French prosecutor. The
21 nearest analogy I can come to is not authorised, but
22 leaks reported from laboratories carrying out analyses
23 in sports medicine, particularly on the continent, where
24 this type of thing can happen, and I think any
25 toxicologist would totally deprecate the premature


1 disclosure of results.
2 Q. It wasn't just the premature disclosure, was it,
3 Professor, because in fact the haemothorax blood was not
4 suitable for quantitative analysis --
5 A. That's clearly one of the reasons why premature
6 disclosure of results is inappropriate because the
7 person making the disclosure may not understand --
8 I will use the phrase again -- the health warnings that
9 ought to go with a result such as that which has been
10 disclosed.
11 LORD JUSTICE SCOTT BAKER: And it was wholly unfair to the
12 family of Henri Paul?
13 A. Sir, if we did that in this country, I think that any
14 coroner who countenanced that happening would be facing
15 a problem from the Ministry of Justice, very rightly.
16 MR KEEN: I didn't take you to the third of the three
17 newspaper reports of 1st and 2nd September 1997, but you
18 may recall the headline "Drunk as a pig", which was
19 drafted by reference to that report from the public
20 prosecutor.
21 A. I don't recall it, but I certainly accept that that was
22 the tenor of some of the reporting that was going on at
23 the time.
24 There is another point about the question about
25 coroners which was put to me, and that is that in


1 England and Wales, any special examination report to the
2 Coroner is privy to the Coroner and to no-one else. You
3 can't disclose it to anyone else. Some coroners even
4 get irritated if you automatically send a report to the
5 pathologist who has carried out the post-mortem
6 examination.
7 Q. Does that include yourself, Professor?
8 A. I have been criticised by a London coroner for sending
9 a toxicology result to the pathologist who carried out
10 the post-mortem examination from which the results were
11 obtained.
12 Q. Can I look for a moment at one of Dr Shepherd's reports?
13 This is his report of 1st December 2006. We can see the
14 front page, just to identify it, at [INQ0001870]. Have
15 you seen this report before, Professor?
16 A. If we could go onto other pages, I might have seen it in
17 a different format.
18 Q. If we go on to [INQ0001871] --
19 A. I believe I have seen it.
20 Q. Thank you. If we go on to [INQ0001875], under the
21 heading "Specimens", Dr Shepherd has made a number of
22 observations. If we begin with (vii) he observes that:
23 "The exact site of sampling of the blood specimens
24 taken on 31st August 1997 must be in doubt although it
25 appears most likely that all of the blood samples were


1 taken from the left haemothorax."
2 A. Correct.
3 Q. In fact there was a further revelation from Dr Shepherd
4 on 14th January 2008, was there not --
5 A. Yes.
6 Q. -- because Dr Shepherd was eventually provided with what
7 were alleged to be photographs of the post-mortem
8 examination of the late Henri Paul?
9 A. Yes.
10 Q. When he examined those photographs carefully and
11 critically, he identified the fact that before
12 Henri Paul was cut open on the chest to reveal the
13 haemothorax, there was a photograph of him lying on his
14 face.
15 A. Yes. Yes, I have seen that.
16 Q. In that photograph it was possible to identify two glass
17 bottles of what appeared to be blood --
18 A. Yes.
19 Q. -- which could not have been scooped from the
20 haemothorax, as Professor Lecomte suggested all the
21 samples were.
22 A. Because the chest had not been opened at that point.
23 Q. Exactly so. Now various suppositions have been advanced
24 as to the provenance of those two glass containers
25 containing what appears to be blood.


1 A. Yes.
2 Q. One is the idea that the blood was taken from the neck.
3 A. Yes. It is difficult to know why one would do that, but
4 it's a possibility.
5 Q. One is that it might have been removed from the body
6 using a syringe.
7 A. Yes. You can get samples at post mortem by external
8 puncture. As I have already intimated, it's not
9 uncommon, I was told, in France, for that to be done.
10 It also happens in the United States. Not every road
11 traffic victim in jurisdictions outside England and
12 Wales -- I should say fatal road traffic victims in
13 jurisdictions outside of England, Wales and Scotland --
14 automatically gets a post-mortem examination.
15 In some circumstances the toxicology is based on
16 external puncture, trying to get blood from often the
17 heart, maybe from the femoral artery, and the literature
18 has a number of references, both in conferences and in
19 papers, to the problems that can arise when you do this.
20 Q. One further possibility is that the two containers were
21 there from a previous autopsy.
22 A. Yes, agreed.
23 Q. But the point really is this, Professor: whichever
24 supposition you seek to adopt, and we could perhaps try
25 and generate others, what this illustrates, if nothing


1 else, is that unless those two blood samples belonged to
2 a different body --
3 A. Yes.
4 Q. -- Professor Lecomte did not give a true and accurate
5 account of the post mortem on 31st August, did she?
6 A. Agreed, and I understand that some of the photographs
7 show a collection of, I think, eight empty bottles -- or
8 is it seven bottles -- and then we get two which have
9 been filled with blood at a later stage before the body
10 is turned over. That, to me, suggests that unless there
11 is another body in the autopsy suite or those bottles
12 have been brought in, that that blood has come from
13 an inappropriate and undocumented site from M Paul's
14 body, but I accept that one certainly cannot be sure of
15 that on the basis of what you have said to me.
16 Q. If we ever actually want to know what was going on in
17 IML on 31st August 1997, we are going to have to find
18 out from Professor Lecomte what she was really doing on
19 that occasion, aren't we?
20 A. Or other people who were there who would be prepared to
21 give an account under oath.
22 Q. The other person who was there was Commander Mules?
23 A. Yes. There would presumably have been some technicians
24 present. Professor Lecomte describes doing the
25 procedure with technical assistance. I understand


1 from -- I believe I have read in the papers that one of
2 the technicians has died, at least one has died since,
3 so it clearly is not available to the court.
4 Q. I think the great misfortune is that the technician who
5 is supposed to have labelled the bottles is now
6 deceased.
7 A. Yes.
8 Q. Putting that aside, are you also aware that
9 Commander Mules, who was present at the autopsy, when
10 asked about his contemporaneous record, said that he had
11 made notes but had since destroyed them?
12 A. Yes.
13 Q. Have you ever encountered that before, Professor, that
14 you have a police officer present for such an autopsy,
15 that he takes contemporaneous notes, and then, in the
16 context of an inquiry, destroys them?
17 A. I have, but the officer has then been severely
18 criticised.
19 Q. That's hardly a surprise, is it?
20 A. Well, absolutely not. As I said, when I was first
21 assisting the Coroner, what every young doctor is told
22 is that, whether it's about clinical -- and certainly if
23 there is going to be a forensic interest in the case,
24 there is absolutely no substitute for a note that you
25 make, date, time and sign as soon as possible after the


1 incident has taken place. That goes into the notes, and
2 if you make any subsequent alteration to the notes, you
3 date, time and initial it and you make sure that the
4 original note that you have made is still legible.
5 Q. That's what the chain of custody is all about, isn't it?
6 A. Well, that's more documentation of an adverse clinical
7 event or indeed any clinical event when -- if you want
8 to look at case notes in a clinical context, when you
9 see a nicely handwritten note where those criteria are
10 being complied with, your heart lifts.
11 Q. Or, as in this case, it falls.
12 A. It sinks.
13 Q. Because even as we step into the realms of speculation,
14 we have Professor Lecomte giving an account of events
15 which on the face of it cannot be true?
16 A. Sir, you are pushing at an open door. There are clear
17 inconsistencies in Professor Lecomte's account which it
18 would be very useful to have explained.
19 Q. We have a Commander Mules, who is there, present, taking
20 contemporaneous notes, but which he has since destroyed.
21 A. Yes.
22 Q. Regrettably we have a laboratory assistant who is
23 attributed with the task of having placed labels on
24 bottles, but is now deceased.
25 A. Yes. There is an issue about bottle labelling and the


1 best --
2 Q. We are going to deal with that in some detail,
3 Professor, but I agree.
4 A. The point I was going to make is that ideally you should
5 put the label on after you have taken the blood samples,
6 not before, for very obvious reasons.
7 Q. Were you aware that in this case, because the person who
8 put the labels on didn't work at weekends, all samples
9 for the weekend were put together in what appears to
10 have been an ice-cream box and left for him to be
11 labelled on the Monday?
12 A. I wasn't.
13 Q. I think we have a photograph of the ice-cream box.
14 I assume it's an ice-cream box, but it may be some
15 technical receptacle that I am not familiar with, with
16 the word "Walls" on it. That is hardly consistent with
17 what you would expect in a post-mortem examination in
18 the United Kingdom, is it?
19 A. I think the mildest way to describe it is it's not
20 consistent with best practice.
21 Q. It's hardly consistent with second-best practice, is it,
22 Professor?
23 A. It is not at all consistent with good practice. If
24 a laboratory was being accredited in the United Kingdom
25 or a mortuary was being accredited in the United Kingdom


1 by the organisation that accredits, National Health
2 Service and other laboratories, including mortuary
3 practice, if that sort of thing was seen to be going on,
4 I doubt very much whether or not they would be
5 accredited.
6 Q. Could we look for a moment at (x) in Dr Shepherd's
7 report?
8 A. Yes.
9 Q. I think he says there:
10 "There appears to be a general lack of clarity about
11 sampling, labelling and documentation of the samples
12 taken on 31st August 1997. Professor Lecomte stated
13 that 'exhibiting is not an issue for the medical
14 examiner'. However, Major Mules records that it should
15 have been his job to seal the exhibits, but
16 Professor Lecomte didn't follow this protocol and
17 insisted on overall control herself."
18 A. Yes. I think there are a number of issues about that.
19 Sealing is, as I have mentioned, actually using a wax
20 seal with sealing wax in many cases.
21 Secondly, in the United Kingdom and certainly in
22 England and Wales, in a forensic post-mortem
23 examination, there will usually be a police scene of
24 crimes officer present and the pathologist will be
25 gowned up and the pathologist will pass the samples


1 perhaps to a mortuary technician or directly to the
2 scene of crimes officer, who will then document it with
3 the yellow labels or writing on the tamper-evident bags,
4 which the court may be familiar with.
5 Of course Dr Shepherd and Professor Vanezis could go
6 into that in more detail than I can. I have never done
7 it myself. I have been present on many occasions in
8 mortuaries when a forensic post mortem has been carried
9 out where that sort of thing has been done. That
10 protocol or a very similar protocol has been adopted.
11 LORD JUSTICE SCOTT BAKER: Mr Keen, when you reach
12 a convenient moment, we will have to break off for the
13 day.
14 MR KEEN: I am obliged, sir.
15 Just to try and round this up a little, Professor,
16 would it be fair to say that you would not want to be
17 tried for murder on the basis of Professor Lecomte's
18 evidence from this post-mortem?
19 A. I would not want to be tried for murder at all.
20 Q. That's a wise comment, Professor.
21 A. I would refrain from the comment that if I was, I would
22 be quite happy to be defended by you.
23 I agree with the sentiment that you have expressed.
24 MR KEEN: Thank you, Professor.
25 No further questions, sir, at this point.


1 LORD JUSTICE SCOTT BAKER: Can we just get some idea as to
2 how long this witness is likely to be? We have
3 allocated tomorrow for the conclusion of this witness
4 and Dr Shepherd.
5 MR KEEN: I would anticipate being a further hour with
6 Professor Forrest. As you know, sir, these estimates
7 are invariably very poor.
9 MR KEEN: So I apologise for that in advance, but that's my
10 estimate at the present time.
11 LORD JUSTICE SCOTT BAKER: Thank you, that is helpful, so we
12 should be on track for concluding them both tomorrow?
13 MR KEEN: Indeed.
14 LORD JUSTICE SCOTT BAKER: Members of the jury, 10 o'clock
15 tomorrow.
16 (4.30 pm)
17 (The Court adjourned until 10.00 am on
18 Tuesday, 22nd January 2008)


3 PROFESSOR FORREST (affirmed) ..................... 2
5 Questions from MR HILLIARD ................ 2
7 Questions from MR KEEN .................... 149

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