The Full Story
A young man 18 years of age was found dead in a sealed car on 29th July 1997, ten years later the formal Inquest into his death took place in England before a Coroner’s jury. During the intervening period two police investigations had taken place and many statements had been taken, however much of this evidence was not shown to the jury because as the Coroner made plain “the function of his court was to establish: WHO, WHERE, WHEN, and HOW, the death occurred” and that was the limit of his remit.
The principal people involved in this tragic event could not be compelled to attend the court hearing and so did not appear.
Notwithstanding the limited information produced to the jury they were able to provide the following written verdict.
On the 29th of July 1997 Andrew John Lewin died in a Peugeot 106 car parked in the grounds of the El Madronal Club near Puerto Banus, Spain.
Andrew had been out socializing over the course of the evening and had consumed alcohol. Before leaving the Exotis Club at approximately 8.15 am Andrew was slumped over the bar in an unresponsive state and needed the assistance of several others to help him to the car. Andrew was driven back to the El Madronal Club where the car was parked at approximately 8.40 am and was left in the car with the doors unlocked.
It cannot be determined if the car was parked in the shade or not however at 1 pm when he was found the car was in full sun.
The windows were shut, and it was the hottest day of the month with temperatures outside were more than 30’ C.
It is felt that in all probability had Andrew not remained in the car in such high temperatures, he would not have died”.
Medical Experts final opinions given to the Inquest can be summarised as follows:
Dr Nat Cary: (PATHOLOGIST) Heatstroke was the cause of death.
Dr Forrest: (TOXICOLOGIST) While the blood alcohol level was recorded at 200 Mg/dl due to technical/heat circumstances the appropriate level of alcohol at Death could be lower at 150mg/dl
This verdict does not make plain the real story leading up to the tragedy, however, the evidence gathered during the police investigations is available and it confirms that Courtney Julius Kayne is the person responsible for placing an unconscious friend in his vehicle, driving it some 20 minutes to its final location at a tennis club, where he then abandoned him in a sealed car and where that friend subsequently died of heatstroke.
The jury were not made aware that the vehicle was parked about 7 metres in front of the room that Courtney Kayne shared with another friend and who was asleep therein, and who could have rendered assistance if asked, or the fact that the vehicle was also within 30 metres of the club tennis courts where a competition was in progress.
SO, WHAT HAPPENED
Courtney Kayne and a friend Andrew Goonatilake went to Spain on 17th July 1997 to stay at a tennis club called “El Madronal Country Club” near Porto Banus, they shared a room below the tennis viewing stand.
They were joined by Andrew Lewin on 24th of July, it became the custom of all three to stay out until the early hours in various night clubs.
On the of 28th of July, Courtney Kayne, Andrew Goonatilake, and Andrew Lewin visited the home of Marilyn Galsworthy and Vanessa Shepperd and stayed about 2 hours until about 1600 hours.
Both ladies provided statements which confirmed that
“Andrew was very tired and in need of a rest and didn’t want to go out that night” (MG)
“Spanish night life too much—keen to have a quite night” (VS)
Before Andrew Lewin’s arrival in Spain Courtney Kayne and Andrew Goonatilake has become friends with two Dutch girls Kim Schouten and Bregie Van Baaren.
Later that day and in the early hours of the 29th of July, Courtney Kayne, Andrew Goonatilake, and Andrew Lewin met these two girls in the Comedia Club at about 0100 hours and stayed there until late.
Andrew Lewin was the odd man out and fell asleep on a stool (RVB) (AG) (CK)
They all then returned to The Tennis Club and chatted,
“Andrew did not appear drunk” (AG) (BVB)
“I was dropped off at the Tennis Club at about 0530. We all stood talking for about 20 minutes, Courtney Kayne was going to run the girl’s home and asked Andrew Lewin to go with him” (AG)
The girls arrived back at their drop off point just as dawn was breaking which was about 0630 hours. During that journey Andrew Lewin sat next to R Van Baaren who stated
“I do not recall him drunk, he remained sensible and conversational” (RVB)
Kim Schouten stated, “we didn’t notice any signs of Andrew being very drunk or not feeling unwell because we had a good talk and he made lots of jokes as usual” (KS)
The journey time from the girls drop off point to the Exotis Club is about 30 minutes (CK) so the arrival time at that location would be about 0700 hours.
The club closed at 0800 hours.
THE EXOTIS CLUB
From the evidence Courtney Kayne and Andrew Lewin were at this location for about 1 hour, and during this time Andrew Lewin was asleep for at least 50% of the time.
Courtney Kayne then arranged for the unconscious Andrew Lewin to be placed in his car which he then drove for about 20 minutes to the tennis club where they both resided, arriving there at 0845 hours.
ARRIVAL AT THE TENNIS CLUB
Courtney Kayne in his various witness statements said that after arrival at the tennis club “he purposely parked the vehicle in the shade”, but he made no attempt to get Andrew Lewin from his car as he was very heavy, so he left him in the vehicle and went to bed, and when asked in a police interview on 24th Nov 1998 why he did not seek help he answered “there was no one there to help him, only Andrew Goonatilake who was asleep”.
The car Courtney Kayne had driven was parked on level/open ground and 7 metres in front of the very door to the room he shared with Andrew Goonatilake, as he entered the room to go to bed a simple tap or nudge for assistance by Courtney Kayne would have roused Andrew Goonatilake and Andrew Lewin could have been extracted from the vehicle.
The owner of the tennis club Marc Burca and Hillary Kindersley his house guest, among others, have confirmed in statements that a Tennis mix in was in progress at the club on the morning of the 29th of July and that these events started early.
The tennis courts were easily accessible via steps from Courtney Kayne’s accommodation and were less than 30 metres away, so assistance was also available from the players if requested.
The clubhouse was open, and the courts were in use so a visit to the clubhouse which was about 50 metres away would also have produced immediate assistance.
When Courtney Kayne stated he made no attempt to get Andrew Lewin from his car because he was very heavy, two points are relevant.
The evidence of Mr Nick Higham who was Courtney Kayne’s housemaster at his boarding school who stated.
“Courtney was a good sportsman and rugby player, he excelled at Judo, as a result of his sporting abilities I am sure he would be capable of lifting and carrying another human body”
and
At post-mortem, the pathologists record shows Andrew’s “height is 1.72m and weight is 75kg”.
The failure by Courtney Kayne to seek assistance in all the circumstances was callous and grossly negligent, and consequently Andrew Lewin died.
THE DISCOVERY OF THE BODY
The body of Andrew Lewin was discovered at about 12.45 by Marc Burca who then roused Courtney Kayne and Andrew Goonatilake from their beds, Andrew Goonatilake attended the vehicle first “and noticed the car was in full sun” and when he opened the door observed the extreme heat inside the car, which had no ventilation.
All three witnesses provided statements confirming the body was in the passenger seat, lying on its side, with the head on the driver’s seat.
The emergency services were called, and the police and ambulance attended, Andrew Lewin was pronounced deceased at the scene with death occurring some hours prior.
The attending ambulance was manned by Doctor Giraldez, he re-visited the scene with two U.K police officers and provided a statement in which he confirmed the position of the vehicle and noted.
“that on the day he attended the were no structures or tree’s that would have provided any shade”.
Two other statements provided to the UK police confirmed that no shade was available.
In all four people have confirmed in writing that no shade was available, contradicting Courtney Kayne’s comments in this regard.
To absolve himself of any blame in this death Courtney Kayne provided several written statements to the police and others, each claiming that at the Exotis Club he had personally witnessed Andrew Lewin consume what would have amounted to lethal amounts of alcohol.
To the Spanish police he stated that Andrew Lewin had been asleep from 0700 hours. He saw Andrew Lewin consume 20 tequilas, more beers, vodka and so on, but that he finished drinking at about 0730 hours.
When the club closed at 0800 hours Andrew Lewin was asleep and he asked some friends to help him get Andrew Lewin into his car.
Later to the UK Coroner’s Officer, he stated “Andy proceeded to drink heavily consuming large amounts of spirits” when the club shut at 0800 hours, he asked some friends to assist in getting a comatose Andrew Lewin into his car and drove to the Tennis club where we were living.
Later to the UK police on 26.11.79 he stated “Andy sat down and started drinking even more heavily than he had been, I saw him drink at least 15 Tequila Slammers which he mixed with other alcoholic drinks” when the club shut at 0800 hours, I got some of my friends to help me carry him to my car. I then drove to the Tennis Club arriving at 0845 hours.
LATER THAT SAME DAY
Courtney Kayne and Andrew Goonatilake continued their holiday as though nothing much had happened - as the following evidence makes clear:
Clair Cathery
“On the day of the death they continued the same night-clubbing lifestyle, I remember meeting them in the Robin Hood pub “
Marilyn Galsworthy
“I was shocked that they continued the same drinking/night-clubbing that very evening”.
Vanessa Shepperd
“I thought it was inappropriate for them to continue in this manner”.
THE POST-MORTEM
The pathologist’s initial working assumption was based on Courtney Kayne’s evidence to the Spanish police concerning the alcohol amount that he claimed he had witnessed Andrew Lewin consume, the pathologist’s impression was that this would have amounted to a lethal alcohol intake.
When the results were returned on the samples sent to The National Institute of Toxicology the Institute certified a figure of ethanol at 200mg/dl and confirmed the complete absence of any other drugs.
The difference between the allegations made by Courtney Kayne and the certified results demonstrate the magnitude of misinformation Courtney Kayne had provided.
MATTERS OF INTEGRITY
Courtney Kayne had not just made some simple mistakes, he deliberately embarked on a series of lies to deflect blame away from his actions which were the cause of this death:
He told the Spanish police he had known Andrew Lewin since the age of six years and they were like brothers, whereas they first met at senior school.
He stated that it was Andrew Lewin who had instigated a club visit after the Dutch girls were taken home on the morning of the 29th of July, whereas the evidence is that it was Courtney Kayne who requested Andrew Lewin to keep him company on that journey.
He lied to the Spanish and UK police about the alleged alcohol intake he had personally witnessed Andrew Lewin consume.
He lied about the existence of shade for the vehicle in which Andrew Lewin died.
His excuse that Andrew Lewin was very heavy is an exaggeration.
His claim that no assistance was available is palpably untrue, it was available from multiple sources some within 8 metres, other potential help was within 30 metres.
His continuance of a nightclubbing lifestyle on the very day of Andrew Lewin’s death is despicable.
The story circulated by Courtney Kayne after the event, was that Andrew Lewin had drunk himself to death.
He also failed to appear as a witness at the Coroner’s court.
WHY NO PROSECUTION
Hertfordshire Police informed us the investigation was being carried out on behalf of the Coroner who had very limited funding available, we did not understand the significance of those comments at the time, but it probably explains their lack of interest and unprofessional approach to this incident more specifically detailed in the memorandum below.
No effort was made by Hertfordshire police to correlate the evidence of the three witnesses’ who extracted the body from the vehicle with the belated and ill-founded hypothesis of the Spanish pathologist concerning “Postural Asphyxia”.
They failed to correct or inform others including the Crown Medical Experts of a very basic error which formed the basis of this hypothesis.
It should be noted that the Transcript of the “Judicial Review” hearing of 24th May 2002 contains no reference or evidence as to the availability of assistance when the vehicle was parked, or other evidence concerning the complete absence of shade, that evidence was available, but apparently redacted.
The notes below were compiled by me as a memorandum to record the misrepresentations and obstruction I experienced from both Hertfordshire Police and the Crown Prosecution Service (CPS).
The Coroner’s Inquest into the death of my son Andrew Lewin was completed on 27th of July 2007 almost ten years to the day following his death.
This extraordinary delay has caused our family considerable anguish.
Just prior to the Inquest it became clear that the medical expert’s Dr Cary (Pathologist) and Dr Forrest (Toxicologist) who were both instructed by the Crown from the very beginning of this matter, had never been supplied with sufficient Police evidence or information upon which to form a balanced and considered opinion.
Witness statements were withheld from these Medical experts, this predictably led to misleading assumptions being made by them and had been the cause of confusion for many years.
By the date of the Inquest, Dr Cary had supplied seven reports and Dr Forrest four reports including those given at the hearing.
Prior to the Inquest, it was my solicitors who were eventually obliged to supply each of the Crown Medical Experts with a complete file of witness statements taken by Hertfordshire Police.
We had only obtained copies of these statements sometime after the second investigation by Detective Sergeant Airton had been completed.
Very few people gave evidence at the Inquest and the principal participants/witnesses to this tragedy namely Courtney Kayne, Marc Burca, and Andrew Goonatilake did not even attend the proceedings.
What follows is a summary of the events leading up to the death:
Andrew Lewin’s older brother had completed his education at Pangbourne College by the June 1995 and was moving on to University, so we decided that it was in Andrew’s best interest to leave Pangbourne College and live at home and attend a sixth form college in Cambridge.
Courtney Julius Kayne was also a student at Pangbourne.
When “A” levels had been completed in June 1997 Andrew received an invitation from a Pangbourne College friend named Andrew Goonatilake to stay with him and other ex-pupils at a tennis club near Puerto Banus in Spain.
This club was owned by a friend of the Goonatilake family named Marc Burca.
Andrew Lewin arrived in Spain on 24th of July 1997 to join Andrew Goonatilake and Courtney Kayne both of whom had arrived in Spain one week earlier.
At about 15.00 hours on 29th of July, I received a telephone call from Marc Burca informing me that Andrew had been discovered dead in a vehicle at his tennis club at 13.15 hours local time.
My wife and I arrived in Spain the following day in considerable distress.
Marc Burca informed us that while Andrew Goonatilake had gone to bed earlier that night, Courtney Kayne and Andrew Lewin had been out all night and that Courtney Kayne had witnessed Andrew Lewin consume vast amounts of alcohol at the Exotis Club which Courtney Kayne specified as being 20 tequilas shots and other alcoholic drinks plus beers.
Marc Burca maintained that “Andrew Lewin had simply drunk himself to death”.
Marc Burca insisted that we should not question Courtney Kayne or Andrew Goonatilake further as they too had suffered a trauma.
This at the time we accepted, as in any event my wife and I were also in shock ourselves, but we assumed that we would be able to see the Spanish police reports in due course which would confirm what had happened.
After visiting the tennis club, I started to feel uneasy about the story told to us by Marc Burca.
The vehicle Andrew had been found in was still in situ, and Marc Burca confirmed that it had not been moved in any way while awaiting further instructions from the Spanish police.
I observed that:
The car was parked on level ground only 7 metres from the ground floor room that Andrew Goonatilake and Courtney Kayne shared, and that it was in full sun.
It had been parked facing due west, and no shade could possibly have been available as the location was vegetation and construction free and totally exposed from an Eastern, Southern and South Western perspective.
Andrew Goonatilake informed me that he was asleep in bed when Courtney Kayne arrived home at 08.45 hours on the day that Andrew Lewin died; I was shown the small room they both occupied and noticed that Courtney Kayne would have had to climb over the bed of Andrew Goonatilake to reach the bed he used.
Members of staff informed me that a tennis tournament had been in progress when Courtney Kayne returned at 08.45 am, and the car was also only some 30 metres from the tennis courts which were all occupied by players.
The staff were amazed that assistance was not sought, as it was readily available.
I also observed that the flat roof of the accommodation was a spectator seating area and had direct access to the actual tennis courts via a stairway from the residence to the roof.
Andrew Goonatilake was able to tell me that all windows and doors of the vehicle were closed when Andrew Lewin was discovered and that the hazard warning lights on the vehicle had been activated and that it was, he, Marc Burca, and Courtney Kayne, who had removed Andrew Lewin from the vehicle.
I was also aware that Courtney Kayne had been a member of the school rugby team, and the combined cadet force, and was physically a strong person with no discernible mental impairment.
As a father of three boys, I know that they sometimes do silly things, however, I was becoming uncomfortable with the story told us by Marc Burca, his defensive attitude, and my own observations, and the information supplied to me by the staff of the tennis club had caused doubts to arise.
I could not understand why no effort was made to extract Andrew from the vehicle.
During our time in Spain, I tried to speak with Courtney Kayne on several occasions, but Marc Burca was always present and intervened, and it was plain to us that Courtney Kayne was unwilling to add anything further.
A post-mortem had already taken place, and though we did not know this at the time a considerable amount of forensic material had been sent to the National Institute of Toxicology in Seville for examination and testing.
We were informed that the Police reports would not be available for some weeks, so we concentrated on dealing with the Spanish formalities concerning the repatriation of Andrew’s body and gathering his possessions.
While we were attending Court, we did meet the Spanish pathologist who carried out the post-mortem, and through an interpreter he told us that in view of Kayne’s witness statement to the Spanish police, the cause of death was initially being recorded as “alcoholic poisoning”.
When we had returned to the UK an Inquest was opened and adjourned.
During the next months and in some desperation, we spent a considerable amount of time chasing the Coroner’s office for information about Andrew’s death but to no avail, as the Spanish documentation had failed to materialise.
Courtney Kayne never contacted us again to see how we were, or to provide any further information about Andrew’s death.
However, during conversations with one of his peer group, one of them supplied us with the contact details of two Dutch girls who were with Andrew Lewin on the night he died in Spain. We spoke with them and they kindly wrote to tell us about that night.
They were with Andrew Lewin and Courtney Kayne until about 6.30 am and when they parted company, they said Andrew Lewin was not drunk; he was very tired but laughing and joking with them.
They also told us that the Exotis club stopped serving drinks promptly at 7.30 am.
They confirmed that it would have taken at least 30 minutes to reach the Exotis club from their home and where they had parted company, and on those facts, and if Courtney Kayne’s allegations were true, Andrew Lewin would have had to have consumed the alleged massive alcohol intake within a period of about half an hour.
With this information, and with the concerns which has already crossed my mind, I considered that the story related to us by Burca was improbable.
Following the Dutch girl’s letter to us and the doubts mentioned earlier, I suspected some form of cover-up was taking place in relation to our son’s death, so I formally reported the matter to Hertfordshire Police as a suspicious death; I did this by letter dated 6th January 1998.
On 4th February 1998 we had a meeting with Detective Superintendent Whinnett and Detective Sergeant Crawley both of Hertfordshire Police to discuss our concerns.
The only information available about the death at this time (other than the Dutch girls report) was the story told to us by Burca in Spain.
Other information would be contained within the Spanish documentation, but this had not yet become available. The British Consul in Marbella was unable to say when it would be released.
In desperation I wrote to the Prime Minister and requested his assistance in obtaining the Spanish documentation. This clearly had an impact upon the situation and his office confirmed that the papers would arrive at the Coroner’s office 16th February 1998, by way of explanation the Prime Minister’s office also stated that the Spanish Court had hitherto embargoed the file declaring it “secreto sumarial” which they said roughly translates as “restricting open publicity of proceedings”.
The Coroner ‘s office declined to make these papers available to us saying they had been passed to the police.
On 20th March 1998 we had our second meeting with the Police at our home they arrived with the Spanish file; but they refused to let us take a copy of the documents as they claimed they were the property of the Coroner.
This refusal came as a surprise to us, but at the time we assumed that the file contained other sensitive information pertinent to their investigation, however they were able to tell us that the toxicology reports were available, and the blood alcohol level had been confirmed at only 200 mg/dl.
What the police officers were keen for us to understand was that their investigation was to be carried out on behalf of the Coroner who had little funding available.
The significance of these comments was not apparent to us at the time, but as can be seen from their subsequent actions which are described below there was little real interest in carry out a proper investigation, which of course explains why the witness statements were never properly read, or cross referenced to exclude conjecture and speculation.
Most importantly what the Police did not tell us at this meeting, and what we were to discover only by accident many years later, was that they had in their possession at that time, a preliminary report by Dr Cary a Home Office Pathologist which stated:
“The finding of blood alcohol equivalent to 200 mg/dl is insufficient to account for death in a healthy individual and given that there is no apparent cause of death I am seriously concerned that this could be a homicide, the true cause of death having been overlooked”.
That report should at this stage, have placed the investigation in a special category, but those conducting it had already decided otherwise.
On reflection we concluded that as the Spanish file was now a matter of public record, we of all people, must be entitled to a copy of it, so we pursued the matter with the Coroner and the Police and were batted between them for months without success.
Our demands to see the Spanish file became ever more persistent and eventually we were supplied with a copy on the 28th of July 1998 more than 5 months after it had been received in the UK and one year after the death of our son.
Upon reading the file it became evident that the Toxicology Report had caused a dilemma for the Spanish Authorities who had relied on the statements made to them by Courtney Kayne about the excessive consumption of alcohol, evidentially this could not possibly have been the case.
The Spanish pathologist had needed time to revise his earlier opinion of the cause of death.
As an alternative to “alcohol poisoning” the Spanish pathologist hypothesised that “postural asphyxia” might be the cause of death.
Unfortunately, as we discovered many years later, he had come to this view by relying only on the Spanish Police files which incorporated incorrect comments from Spanish Officials concerning the position of the body when it was discovered.
A simple comparison with the original witness statements of the UK citizens who carried out that action would have corrected this misunderstanding, but the pathologist was not aware that these statements existed, and they were never even shown to him later when he was interviewed by the UK Police in 1998.
When the actual comparison was pointed out to Dr Cary (Crown Pathologist) many years later by my solicitors, he was able at the Inquest to clarify that heat stroke was the cause of death and that postural asphyxia was not a consideration.
It is inconceivable that Hertfordshire Police were unaware of this discrepancy, but they were content to let this basic error confuse the medical experts and legal process for many years.
We of course were not permitted by the UK Police to see any of these witness statements until many years later.
The Hertfordshire Police investigation proceeded very slowly with Superintendent Whinnett often away, “Out of Force” as he described it, but we were aware that they went to Spain in September 1998. Upon their return they visited me and told me that there was little to be learned from Spain, they had located the Exotis club and all the staff had long dispersed and could not be traced, and they had not been able to speak with the Dutch girls.
I had further telephone conversations with Mr Whinnett, but he made it plain that he was under operational constraints and would not disclose any further information to us.
We had many questions we wished to raise with the Officer’s, not least what had caused the death of our son and what further testing was to be undertaken on the post-mortem samples etc, but as we were not permitted to know the content or scope the investigation or see any of the statements taken, our reasonable expectations to be given non- contentious information was refused.
I informed Superintendent Whinnett that in the circumstances I now felt obliged to instruct an independent pathologist to prepare a report for the family on the cause of death.
Mr Whinnett asked me to refrain from that course of action as the Coroner had already commissioned a report from a certain Professor Forrest which would deal with the toxicological aspects of the case and would clarify many of the unanswered questions we may have. We decided to accede to his request for the time being.
Superintendent Whinnett retired from the Police service in late December 1998 and as no meaningful information had been disclosed to us, I wrote to Assistant Chief Constable Madison of Hertfordshire Police on 2nd February 1999 and asked him to conduct.
“A review of the papers, procedures, and investigation generally as I had compelling reasons to believe that not all of the pertinent facts had been examined”.
I received a letter of reply from Detective Superintendent Rayner saying that the CPS were to reach a decision on a file which the police has submitted to them, and this was due within the following week, and that he would contact me shortly thereafter to discuss my concerns.
This meeting took place at our home on 10th March 1999 and Mr Rayner said that the CPS would take no action on the file submitted to them.
We went on to ask him several detailed questions about the case, but he was unfamiliar with the file and provided no answers to us. Assistant Chief Constable Peter Madison later confirmed that Mr Rayner was never appointed to review the file.
Mr Rayner subsequently wrote to me telling me that he was unable to assist further and confirmed that if it was our wish to examine the Forensic samples and material sent to Seville by the Spanish Pathologist then we should obtain them ourselves from the Spanish Authorities, as Hertfordshire Constabulary had not been able to locate them.
At the time this comment was made we now know that these samples were still held by the Institute of Excellence at Seville and were available on demand, and they were only later certified for destruction 17 months later 19th July 2000 after the second investigation was underway.
By this time, I had personally raised the issue of obtaining these post-mortem samples from Spain with Hertfordshire Police on no less than six occasions.
My solicitors were to write four letters in similar terms and even the Crown’s own Medical Experts in their initial reports had already raised the same question with Hertfordshire Police about the importance of securing these samples.
In all this subject matter was persistently brought to the attention of Hertfordshire Police on no less that thirteen occasions, and they elected to do nothing about it.
If the U.K. medical experts had been given access to these post-mortem samples and witness statements, they would have arrived at the true cause of death much earlier, and the subsequent confusion, speculation, and delay would have been avoided.
It had also become noticeably clear by now that my request for a police review of what had gone before was to be ignored.
It was at this stage I felt we had no option but to engage Solicitors and through them to instruct a senior Home Office approved Forensic Pathologist (Dr Ian West) to prepare a report, so that my family could understand what had taken place, and how Andrew had died. My Solicitors requested disclosure of evidence to Dr West which would enable him to reach a conclusion.
Dr West had also specifically requested access to the toxicology samples and the Witness statements.
Superintendent Rayner then wrote to my Solicitors informing them that copies of documents relating to post-mortem reports, toxicology issues, and photographs, would not be permitted, but that Dr West could by arrangement examine them at Welwyn Garden City, the HQ of Hertfordshire Police.
Witness Statements however would not be made available.
This I was advised was very unusual, particularly as Dr West was a leading Home Office Pathologist and that these actions by the Police, amounted to obstruction as it would frustrate and inhibit Dr West, and mean that his report could not be compiled without the benefit of all the available information.
The situation that existed at this time was that:
(a) my family who still did not know the cause of death, was to be denied the right to have a report completed by an Independent Pathologist.
(b) was to be given no information about the investigation which had allegedly been completed.
(c) my complaint to Hertfordshire Police that the first investigation was flawed, and incomplete was to be simply ignored and not even examined.
On 14th May1999, I wrote to our MP Oliver Heald and asked him to intervene on our behalf and on 22nd June 1999 he copied to me a letter from David Calvert-Smith QC the Director of Public Prosecutions which stated “I have every reason to believe that the investigation carried out by Hertfordshire Police was thoroughly and professionally carried out “.
The comments made by the DPP were ridiculously inaccurate, when judged by the fact that the Hertfordshire Police found it necessary to embark on a second and more thorough investigation only one year later.
Between April and October 1999 letters were exchanged between my Solicitors and the Police regarding essential disclosure which was required by Dr West but to no avail.
By March 2000, all official activities had ceased so far as I could tell, and I decided to pursue my own enquiries in Spain. I was accompanied by my son Richard.
Naturally one of the first locations we visited was the Exotis club where we spoke to the owner and his wife.
They informed us that all the staff who were on duty on the night of Andrew’s death, are contactable even now. Indeed, the present manager and the owner’s son were also on duty that night and they confirmed that the UK police had visited in September 1998 and that no questions were asked of them.
It was their recollection that the officers only called in for a meal.
When I informed them of the allegation made by Courtney Kayne that my son had consumed 20 tequilas in their bar on the morning that he died, and within a short space of time they were concerned at this suggestion.
They promised to recover the VAT till sheet for that night and indeed provided it the very next day.
Unsurprisingly the record showed that only 9 such drinks had been served all night.
They confirmed that had they been asked for this information earlier they would have given it.
The owners provided me with a copy of the till printout and a map of the layout of the Exotis club.
We were also able to obtain photographic and video evidence of the important sites, together with official Meteorology reports covering the period in question, I also was able to find the location and telephone number of the Ambulance Service who attended the incident.
To the best of my knowledge these had never been sought by Superintendent Whinnett.
It came as a shock, and I was utterly dismayed to discover that senior Hertfordshire Police officers had misled me in such a manner, but I now had a much better understanding of Superintendent Whinnett’ s earlier reticence to speak with us about how matters were proceeding.
The new evidence I had obtained was passed to Hertfordshire Police, as by now they were aware that a formal complaint was about to be lodged, a second and more thorough investigation was commenced and conducted by Detective Sergeant Aiton in June 2000.
Detective Sergeant Aiton made a request to the Spanish Authorities for access to the post-mortem samples held in Spain and was provided with the Destruction Certificate dated 19th July 2000 - unfortunately, he was a few weeks too late.
He was informed that these samples are only retained for three years but had always previously been available on request.
After the second investigation had been completed, I received a letter from Hertfordshire Crown Prosecution Service dated 24th August 2001 which gave their reasons for again deciding not to prosecute Courtney Kayne.
In short, they said Courtney Kayne could only be prosecuted if heat could be proved to have contributed to Andrew’s death i.e., that postural asphyxia could be excluded before heat became an operative factor.
24th May 2002 I applied for a Judicial Review of the CPS decision not to prosecute, in the hope that more information would come out and be made available to my family.
I have demonstrated from my comments above that Hertfordshire Police were controlling the flow of information to my family, but even more concerning, it became clear later that they were even withholding information from the Crown Medical Experts.
I do not know what was in the file the police presented to the CPS, but after the hearing, the written Judgement makes it plain that important evidence was not presented to the Court, either that evidence was not provided to the CPS, alternatively it was, and they decided to withhold it.
In any event the CPS failed in their “duty of candour” to the court.
Some examples of this are.
At this hearing, the CPS continued to rely on the flawed suggestion of the Spanish Pathologist, that death may have been caused by postural asphyxia.
In these circumstances it is worth restating how this error came about.
The Spanish pathologist who did not speak English, had been forced to revise his original opinion as to the cause of death after the various toxicology test results became available and Courtney Kayne’s allegations were seen to be a serious exaggeration.
The witness statements of those who made the extraction from the vehicle showed the position of the body when the event was discovered, and these statements clearly demonstrate that the pathologist’s assumption relating to the position of the body when discovered was incorrect.
He referenced his new hypothesis by relying on the inaccurate notes of a Spanish official who was not on the scene when the body was extracted from the vehicle, and from those notes he suggested that postural asphyxia might be a cause.
Anyone reading these notes which had been translated to English, would have seen how the pathologist arrived at that hypothesis, however, and more importantly, they would have observed that the basis for his assumption was fundamentally incorrect.
This glaring error must have been apparent to the CPS or Hertfordshire Police at an early stage in the investigations, but it was never properly addressed, consequently it was permitted to obscure the true position for many years, and that even continued to the Judicial Review hearing, as the Court clearly considered the pathologist’s hypothesis to be important and reliable evidence.
No evidence was provided to the Court concerning this error, or the multiple sources of assistance available to Courtney Kayne at the tennis club, some of which was within 8 metres and 30 metres of where he parked the sealed vehicle containing his unconscious friend.
No evidence was presented to the Court relating to the witness statements confirming the complete absence of shade, which contradicted Courtney Kayne’s statement that he “purposely parked in the shade”.
One from the Doctor who was manning the ambulance that first attended the scene confirmed no shade was available where Courtney Kayne had parked the vehicle, which supported my own observations.
The evidence presented by the CPS to the Court was certainly incomplete and possibly even redacted.
The Judges on the evidence that was produced concluded that there did exist a “duty of care” but that it came to an end when the vehicle was safely parked.
At this hearing, the Court decided that at the time of the decision in August 2001 not to prosecute the decision could not have been otherwise.
My application was dismissed with costs of about Twelve Thousand Pounds.
Examples concerning Hertfordshire Police behaviour:
(a) attempted to withhold the Spanish documentation from the family.
(b) mislead the family as to their activities during the first investigation.
(c) withheld important witness statements from all the Crowns Medical Experts, and the Spanish pathologist and presumably the CPS.
(d) refused to obtain the post-mortem samples.
(e) hindered and frustrated the family’s attempt to obtain an independent pathologist’s report relating to the cause of death.
(f) failed to correct the postural asphyxia theory which had been advanced because of the omissions at (c).
Following the Inquest hearing I wrote to the CPS and acquainted them with the new medical evidence arising from the Inquest and requested them to re-open the question of whether Courtney Kayne should now be prosecuted for “gross negligence manslaughter” but they have said they can see no reason to re-open the case.
I wrote them a subsequent letter under the Freedom of Information Act requesting details of what material had been considered by the CPS in coming to their latest decision not to re-open the case.
I was staggered to discover that they had not even bothered to examine this new medical evidence arising from the Inquest.
They just chose to remind me again that the Judge at the Judicial Review of 2002 had decided that the reasoning of the CPS in August 2001 was “faultless” and “the decision could not properly have been otherwise” .
The Crown Prosecution Service by now knew perfectly well that this earlier Judgement was based upon misinformation provided to the Court by themselves, concerning postural asphyxia being the cause of death, and it seems extremely irrational for them to still rely on these comments, having been made aware of the revised opinions of the Crown medical experts given in evidence at the Coroner’s Inquest.
There are no great evidential burdens of proof in this matter.
The new medical evidence now confirms that fact that Courtney Kayne’s admitted actions resulted in Andrew Lewin’s death.
Andrew had not voluntarily placed himself in this vehicle; it was Courtney Kayne who orchestrated this event while Andrew Lewin was in a helpless position.
It was gross negligence to fail to seek the assistance of others to remove Andrew Lewin from the vehicle in which he died when such assistance was so readily available; this failure demonstrated a callous disregard for Andrew Lewin’s safety and ultimately his life.
A particular penalty is not the issue from my perspective what is important is that such behaviour is recognised by society as being unacceptable in order that others might be protected in the future.
There has also been deliberate obfuscation and manipulation of the evidence, by Hertfordshire Police, and/or the Crown Prosecution Service which enabled them to reach a predetermined result, and it has frustrated justice.
The “duty of candour” both institutions owed to the Court and others has not been complied with.
The Judicial Review Court arrived at a decision limiting the “duty of care” which they say ended when the vehicle was safely parked, without being made aware of the many sources of assistance that were available within 8 metres and 30 metres of that location.
Despite having failed to clarify the true position to the Court, the CPS continues to quote the Judgement of 24th May 2002 as the definitive reasoning which justifies their refusal to prosecute.
This “duty of care” decision has now become a legal precedent and is a potential defence which other unscrupulous individuals may use to place members of the public at risk of great harm in the future.