The Matthews’ legal case had slowly progressed since 1999, and in 2006 a private prosecution reached court, seven years after Mike’s death.
I had not been involved directly in the case or its issues since I returned from Everest in 2001. I had been asked to be a witness, but although there was some circumstantial evidence, I didn’t believe that it was compelling enough to bring a guilty verdict against any of the defendants. Climbing Everest was, is, and will always be, inherently dangerous, and irrespective of how much client climbers are willing to pay there can never be any guarantee that others will be responsible for their safety. Ultimately, every climber on Everest needs to be experienced enough to be responsible for their own safety.
The four defendants in the case were Jon Tinker, Henry Todd, Mike Smith and Alpine Mountaineering Limited, which was the new name of OTT, which was already in liquidation, having previously reached an out of court settlement with the Matthews family. A number of OTT’s clients were due to be called as witnesses, including Dave Rodney, John Crellin and Katja Staartjes. That Dave and John were involved didn’t overly surprise me.
John appeared to be the weakest member of the OTT team in 1999 and it was always unlikely that he was going to reach the summit. He also simply didn’t seem to fit in with the rest of the team and he never seemed to have formed a close relationship with the team leaders. I met him on the walk-out after the expedition and I very much got the impression that he felt he had wasted the money he had paid to attempt to climb Everest.
Dave also didn’t get on with Jon Tinker or Nick, and whenever I saw him on the mountain I always got the impression that he felt that he was an individual who thought he was a bit special, rather than a member of a team. This was reflected at the South Col where Dave was insistent that he only got Poisk oxygen, rather than take whatever he was given (which other team members accepted), which resulted in an argument between him and Nick.
The allegations against the accused were:
• There was a lack of safety briefings, Sherpa support for Mike, and a lack of radios.
• The oxygen cylinders were faulty.
• Mike Smith failed to stay in contact with Mike, didn’t short-rope him, and failed to ensure that Mike didn’t become lost between the end of the fixed ropes and the Balcony.
The allegations also stated that ‘Todd is perhaps the most criminally negligent of all.’
To be fair, Henry Todd had not intentionally supplied oxygen bottles in 1999 which were not fit for purpose. He made his money from supplying useable oxygen and it was in his interests for the systems to work. That said, not having a Plan B was in my view questionable, and the decision to distribute the oxygen over the mountain before telling teams that there was a major issue was reprehensible.
There was no doubt that Henry’s colourful and indeed criminal past was not going to do him any favours. He had been jailed for two years for theft and fraud, followed by thirteen years for being one of the two big players in, at the time, Britain’s biggest ever drugs bust. He had been banned from entering Nepal by the Nepalese Ministry of Tourism for two years when in 2000 he had a fight with an American reporter at Base Camp, and a magazine article calling him the ‘Toddfather’ did nothing to enhance his reputation.
There was also a strange allegation being made by Thomas Sjögren, who with his wife Tina had formed their own expedition in 1999. In their evidence they said that as soon as the storm cleared after we had reached the summit on 13 May, Henry had climbed up the mountain as far as the South Col, which was unusual as Henry rarely went above Camp 2. Reports from Base Camp suggested that Henry had gone as high as 8,200 metres and when he returned down the mountain he told Thomas Sjögren that there was no point in his expedition attempting to reach the summit, because there was waist-deep snow above the South Col. Henry also threatened to close the Icefall (remove the ladders which formed the bridges across the crevasses). Thomas and Tina ignored Henry’s advice and found no evidence of the snow being too deep as they made a successful climb to the summit.
I left Henry at Camp 2 on 15 May 1999 and I had departed from Base Camp by the time he descended and had his conversation with Thomas. In my diary at the time I expressed sympathy for the climbers on Henry’s Lhotse permit because I had heard that prior to my departure from Base Camp on 17 May Henry had called off their expedition, which seemed very bizarre. They were not paying as much as the clients on Everest, but climbing Lhotse was still relatively expensive and given that there were almost two weeks left before their permit ran out, I couldn’t understand at all why Henry had ‘pulled the plug’ on his clients.
It is not overly surprising that all the witnesses for the prosecution had previously had their own issues with OTT or Henry Todd.
Climbing on Everest by its very nature is dangerous. In my view every climber who attempts the mountain must have enough experience to look after themselves in bad weather. Whilst it might be possible to guide climbers with less experience at lower levels on the mountain in most weather conditions, it is simply not possible to guide in bad weather high on the mountain. Guides are human and vulnerable, as we found in 1996 when three of the five climbers who died on the Nepalese side of the mountain were qualified mountain guides.
Climbers who want to reach the summit of Everest must accept responsibility for their actions. That there were no Sherpas with Mike Matthews is somewhat questionable given that seven Sherpas from OTT summited that day, together with six OTT clients and guides, but this was not necessarily a sign of negligence, given that Sherpas are assigned to a number of tasks besides looking after other climbers, including fixing and clearing ropes.
Mike Matthews and Mike Smith summited at a time which should have given them plenty of time during daylight to make it safely down to the South Col.
Mike Smith was an experienced climber but he was also human. The weather had already started to deteriorate while he and Mike Matthews were still high on the mountain. Suggesting that Mike Smith should have short-roped Mike Matthews assumes that Mike Smith was in a far better physical state. I certainly would not have been able to short-rope anyone else when I was at the same point some three hours before the two Mikes – I felt shattered.
In my view, taking account of the available evidence, Mike Smith did all he could have done to look after Mike Matthews and given the deteriorating weather conditions, Mike Smith was very lucky to have survived.
In terms of the briefings – this is Everest. It is not a place for lessons in mountaineering. It doesn’t mean that climbers can’t be coached during the early phases of an expedition, but given that the OTT climbers had already been to the South Col before they returned there on 12 May, it is reasonable to assume that they knew what to expect and I certainly didn’t hear any complaints about there not having been any briefings. I had visited OTT many times during the expedition and been with them on the mountain and I never got the impression that the team members were anything other than well-informed. I had also been on the same mountain on at least two previous occasions with Jon Tinker and Nick Kekus and I had great professional respect for both of them.
The problems with oxygen in the end could not be hidden, although it would have been useful to be made aware of them as soon as Henry knew there was an issue. It was certainly a very questionable decision to distribute the oxygen cylinders all over the mountain before informing all of the teams that there was a problem. There did seem to be a high incidence of oxygen equipment failure – I had two cylinders which didn’t work during my summit climb, but there is no statistical evidence to show that the oxygen problems in the end were greater than normal – it wasn’t until changes were made to the breathing systems in the early 2000s that reliability significantly increased.
The most significant implication was that Mike Matthews’ death was in some way a result of him using a faulty oxygen system, but this was always going to be extremely difficult, if not impossible, to prove.
The climbing world eagerly awaited the verdict. The judge described Mike Matthews as, ‘an exceptional young man, a man of courage and determination’, a statement that those who had the privilege of knowing Mike would wholeheartedly agree with. The judge went on to say that he felt it was ‘hardly tolerable’ that a criminal charge had been brought against Michael Smith, who in attempting to stay with Mike Matthews had risked his own life.
Perhaps in view of the obvious issues with oxygen, the Matthews family might have felt that this was an area where their lawyers would make inroads against the defendants, but the judge said that the prosecution case depended on pure and wholly impermissible speculation.
The judge concluded by saying, ‘It is not the purpose of the criminal law to stifle the spirit of adventure, or inhibit personal ambition and endeavour; it would be most regrettable if the serious crime of manslaughter might be seen as a cloud, constantly hanging over those old enough to decide how they wish to live their lives.’
The judge then dismissed all charges against the defendants.
Perversely two books then appeared about ‘Operation Julie’, which was at the time still the UK’s biggest drugs bust, and resulted in Henry Todd, as one of the two big players in the drugs ring, receiving a thirteen-year prison sentence. It is not clear if the publishing of the books was a coincidence given that Operation Julie dated from the 1970s, or whether it was a result of the publicity surrounding the Matthews court case. It made little impact, however, on Henry Todd, who went back to supplying oxygen to Everest expeditions.
Of those who were there in 1999, the New Zealand summiteer Ray Brown died three years later at the age of fifty-one after a training run. That same year, two more climbers who were on Everest in 1996 also died. Euan Duncan died in a flying accident at the age of thirty-nine, after transferring to the Australian Air Force, and Göran Kropp was killed at the age of thirty-six while climbing in the US. In 2009 John Crellin, who had been a witness in the Mike Matthews case, died in a motorcycle accident while racing on the Isle of Man at the age of fifty-five.
Everest is dangerous, it requires commitment and men and women will always want to challenge themselves by climbing it. It should not be surprising that so many of those who climb on its slopes subsequently die at relatively young ages while challenging themselves in other ways.
Everest is not technically difficult, but its enormous size will always mean that climbing the mountain is a challenge that has significant risks. Even the most experienced high altitude guides have died on the mountain, which demonstrates that skill alone cannot eliminate the risks. But, as the world’s highest mountain, it will always be a summit which climbers will want to reach. It is an individual’s responsibility to gain the necessary experience before attempting the mountain, and if things do go wrong it is wrong to expect others to get a climber out of a bad situation – particularly when they are also fighting for their own lives.
Everest will always be a challenge – because it is there.