Anything can happen at sea

Like the Titanic the super yacht Bayesian that sank off the coast of Sicily in a freak weather event on August 19 was virtually unsinkable. But it sank and seven passengers perished including the technology entrepreneur Mike Lynch, and his 18-year-old daughter Hannah. His wife Angela Bacares, who owned Bayesian, and the yacht’s skipper and his crew of two survived as did 11 other guests.

The skipper and his crew are under investigation in case there is sufficient evidence to charge them with manslaughter. But if Italian law is anything like English law on involuntary manslaughter by gross negligence, the evidence needs to show the skipper and his crew who owe a duty of care to their passengers acted or failed to act in breach of their duty and that their breach caused the deaths and, furthermore, that the breach was so flagrant it deserves to be punished as a criminal offence.

If there was a freak weather event – an act of God in old legal parlance – it is hard to see how a manslaughter charge could be made good. Proof of negligence requires the deaths to have been foreseeable and acts of God are not foreseeable unless glaring routine maritime precautions were ignored.

Bayesian was named after a statistical theory devised by a clergyman called Thomas Bayes in the 18th century that inspired Lynch’s pioneer software technology company Autonomy that was to prove his success and ultimately his downfall. It enables statistical inferences to be made that became more possible owing to powerful computers and new algorithms. I do not pretend to understand statistical theory, but it is tempting fate to name a boat after a theory of probabilities.

Sailors are a superstitious bunch – a yachtsman friend forbade me absolutely from whistling on board – and I am sure he would have balked at naming a yacht after a theory of probability. 

But the death of Mike Lynch was the culmination of many misfortunes. His troubles began when he sold Autonomy in 2011 to an American Silicon Valley company, Hewlett Packard, for $11.1 billion from which he made a personal profit of more than half a billion dollars.

Unfortunately for him the Americans found out that he had inflated its value and sued him in the UK courts for compensation for their loss. In the UK where the issuers of securities engage in fraudulent misstatements or dishonest omissions they are liable to pay compensation to anyone who suffers loss.

In a 713-page judgement in May 2022, after a 92-day trial, Mr Justice Hildyard found that Lynch had indeed engaged in fraud and his estate is going to have to pay once the judge determines how much. Lynch appealed the decision but there is no update on whether he has permission to appeal.

In the meantime, the US Department of Justice sought Lynch’s extradition to face criminal charges for the same fraud allegations – fraud is both a civil wrong and a criminal offence. He was extradited to California with his financial vice president, Stephen Chamberlain to be tried there virtually back to back. Extradition relations between the US and UK are unequal and unfair to British citizens and double jeopardy could not avail him as the proceedings in England were not criminal. 

It is interesting that no fraud criminal charges were brought in UK. The fact that he had been found to have engaged in fraud by a civil court in UK was neither here nor there in the criminal trial in the US, although it would have been politically difficult to extradite him if the English judge had found that he had not engaged in fraud. The standard of proof in a criminal trial is proof beyond reasonable doubt whereas in the civil court it is a balance of probabilities.

In the event Lynch and Chamberlain were tried in the US and both were acquitted of all 15 charges of fraud and promptly returned to the UK. Naturally they were relieved as they faced many years in prison in the US. Courageously they refused to engage in plea bargaining that few are able to resist. As Lynch was to tell the jury in the US the prosecution called a parade of witnesses he had never met who gave evidence about decisions and accounting practices in which he was not involved.

Conspiracy theorists will speculate about the deaths of Stephen Chamberlain and Mike Lynch a few days apart so soon after they were both acquitted in the US as a bit of a coincidence. But not as much of a coincidence as would have been the case if Mike Lynch had also been killed in a car accident. Once you factor in that Mike Lynch perished in a freak storm at sea there is no room for conspiracy theorists to ply their trade.

Anything can happen at sea. Many years ago I set off with two friends from the American Academy – Edward Spence and Kypros Kyprianou – to sail from Dhekelia to Larnaca in a sailing boat we had just bought from a British army officer. The wind in the summer in Larnaca bay is usually from the west which means you have to tack if you are sailing east to west. It was late afternoon as we tacked towards Larnaca. At the apex of the last tack before turning to head for home the wind dropped completely like it does in the doldrums. The boat was taking in water, and we had no oars. As we were within swimming distance to Larnaca I decided to abandon ship, and we swam ashore and salvaged the boat afterwards. The last thing that occurred to any of us when we set off was that we would have to abandon ship for lack of wind and swim ashore in the middle of the night.

Alper Ali Riza is a king’s counsel in the UK and a former part time judge