The Telegraph

31st July 2004

The day the music died

The death of Kirsty MacColl in a diving accident off the coast of México made shocking headlines around the world. Now, nearly four years later, her mother is fighting for the man whose boat crashed into her in what she says was an act of criminal recklessness to be brought to justice.

By Alix Kirsta

Twelve miles off the Yucatan peninsula, the island of Cozumel, part of the state of Quintana Roo, is known as México’s crown jewel. Its spectacular coral reef chain, the second largest in the world, forms the core of one of the most richly diverse ecosystems on the planet. It is ranked among the world’s top five diving destinations, attracting thousands of visitors annually. Among these was the English pop star and songwriter Kirsty MacColl, who, like many celebrities, enjoyed the island’s laidback atmosphere. In December 2000, after 18 months of uninterrupted work, Kirsty MacColl needed a break. Passionate about water sports, she chose Cozumel. This trip, her third, would be especially enjoyable since she planned to introduce her sons, Jamie, 15, and Louis, 13, to scuba diving.

On Sunday December 10, the evening before their departure, Kirsty MacColl’s mother, Jean Newlove, a choreographer and teacher, dropped by for supper. They had to make plans for Christmas, which the family would, as usual, spend with friends at MacColl’s house. ‘She made out a list of groceries for me to buy. There were mince pies to make, presents to wrap, the tree to put up,’ Newlove recalls. Later MacColl dropped her mother home. ‘We hugged goodbye. I said, “I love you,” as she walked away, and without looking back she called, “And I love you.”’ That was the last time Jean Newlove spoke to her daughter. On the night of Monday December 18, two days before MacColl was due to return, Newlove had just arrived home from the Old Vic and was making tea when the tele­phone rang. It was MacColl’s partner, the musi­cian James Knight, who had also gone on the trip to México. At first he was incapable of speech; after a long pause he choked out the words, ‘Jean, there’s been an accident. Kirsty is dead.’

Reports from Cozumel

The death of Kirsty MacColl at 41 made world headlines. She was at a peak in her career, following the release of an acclaimed new album, and tributes poured in from showbusiness col­leagues, friends and fans; obituaries stressed not only her unusually wideranging gifts as a singer and lyricist, but also her warm, unpretentious, outspoken nature, which made her a controversial and much loved figure in the music business.

At the time of the accident James Knight had been relaxing at their rented villa, so he was able to give Newlove little information. Numb with grief, she could only scour press and television reports for news of what had happened. No one from the British consulate, from the local police or from Méxican authorities in Cozumel or in London contacted her or anyone in the family with an explanation or offers of help. In what was reported as an ‘unavoidable’ and ‘freak’ accident, MacColl had been hit by a speedboat just as she, her sons and their divemaster, surfaced after exploring the famed Chankanaab Reef, about 300m offshore, an especially safe and popular site. She died instantly.

Although Jamie sustained minor head and rib injuries, both children and the divemaster had, apparently miraculously, survived. But the more details were released by the press — many of them conflicting or incomprehensible — the less Newlove was convinced by accounts of the tragedy. The Percalito, the powerful 31 ft motorboat that crashed into MacColl, belonged to a Méxican tycoon who, at the time, was on board with his family, including his baby granddaughter. According to some witnesses, the boat was travelling at high speed and had trespassed into the waters of the National Marine Park, a 67,133 acre site protected since 1996 by federal laws that permit access only to swimmers, divers and their support boats, and prohibits all other motor vessels. The speed limit in the exclusion zone is four knots.

The Percalito

According to local newspaper reports, the Percalito’s captain and owner, 67 year old Guillermo Gonzalez Nova, who owns one of México’s largest supermarket chains and hundreds of other stores and restaurants, had allegedly admitted to being at the helm when MacColl was hit. Local television coverage showed him being led away by police for questioning. However, hours later José Cen Yam, a 26 year old deckhand employed by Nova, claimed to have been the driver, although he had no licence to handle such a powerful craft as the Percalito. In his defence Cen Yam insisted he was driving at one knot and denied seeing divers or dive boats at or near the accident site, which he claimed was not Chankanaab Reef but further out to sea.

To Jean Newlove the story didn’t add up. ‘Kirsty was an experienced diver. She had taken courses and would not go out without a dependable guide. Most of all, she would never have done anything reckless that might endanger the boys. It was surprising that this wealthy Méxican would allow his powerful, valuable boat to be driven by an inexperienced deckhand, especially with a small grandchild on board.’

Tragedy strikes

MacColl’s sons returned to London almost immediately afterwards, and over Christmas, although Jamie was unable to discuss the accident, Louis, Newlove’s youngest grandson, filled in more of the horrific details. ‘We were going to do two dives,’ Louis recalled. ‘On the first, about 2pm, we all went down together. There were wonderful things there. I came up to the surface first, Mummy was next to me. I said, “Wow!” She smiled and said, “Great!” Then she suddenly screamed, “Look out!” and tried to push us out of the way. The boat was already over us —I could see the propellers.’ Swimming fast in the direction in which his mother had pushed him, he noticed the sea becoming tinged with red. ‘I was swimming in Mummy’s blood. I heard Jamie shout, “Where’s Mummy?” I screamed that she’d been hit, and to swim the other way and not look back.’

As the boys were helped by Ivan Diaz, the divemaster, on to their boat, the Scuba Shack, they saw MacColl floating face down in the sea, the water turning a deeper crimson. After slam­ming through the group, the Percalito drove 300ft before stopping. A metal bar beneath a pro­peller, bent by tubing ripped from MacColl’s diving equipment, had impeded the propeller’s action. That was when the driver saw that he had hit something.

In a statement to local police several hours later, Jamie described graphically his mother’s body ‘with a huge cut... which almost split her in two’. It wasn’t an exaggeration. Two autopsy reports, the first carded out in México, the sec­ond by Dr Richard Shepherd of the forensic medicine team at St George’s Hospital Medical School in London, reveal that MacColl was sliced open from the back of the neck to her waist; her left leg and part of her chest were virtually severed. In his report Dr Shepherd observed that because of ‘a massive amount of missing tissue’ he wondered if she had previously undergone a mastectomy.

Jean Newlove, who last saw MacColl in her coffin and was struck by how beautiful and unscathed she looked, did not learn these horri­fying facts until this year, when she visited México for the first time to talk to witnesses. She is a cheerful, down to earth 81 year old with apparently limitless energy, despite a back injury and failing eyesight. As we talk in her West London flat, the only time she begins to cry is when describing her daughter’s injuries (and, later, her son’s nonfatal heart attack following the tragedy). Even then, she insists these are tears of anger, principally against Guillermo Gonzalez Nova, whose boat killed her daughter and destroyed the family’s happiness. He has not contacted her to offer condolences. ‘The full details of Kirsty’s injuries are too awful for me to describe. Apparently the paramedic threw up on arriving at the scene. But two boys have to live with those last memories of their mother for the rest of their lives.’

Career was on a roll

MacColl died when her career, after numerous setbacks, was on a roll, and her personal life never happier. Her father was the l950s folk legend Ewan MacColl, who died in 1989 (he left Jean, his second wife, after Kirsty’s birth for the American singer Peggy Seeger), and she saw her­self first as a songwriter, secondly as a singer. She wrote and recorded her first single, They Don’t Know, aged 17. The song eventually became a hit for Tracey Ullman. In 1981 MacColl made the charts with the rollicking There’s a Guy Works Down the Chip Shop Swears He’s Elvis. She refused to conform to the sweet or glamorous image of female pop stars, and her most memo­rable and bestloved songs — including Soho Square and the beautiful 1987 bit and perennial Christmas favourite Fairytale of New York, in which she accompanied Shane MacGowan and the Pogues — reflect a harsh, ironic and often dark take on life and relationships.

After marrying U2’s producer Steve Lillywhite in 1985, MacColl concentrated on bringing up their two sons, while collaborating with many artists including Bono, Billy Bragg, Morrissey, Johnny Marr, Keith Richards and David Byrne. The liner notes written by many of these for her 1995 album Galore attest to their admiration. Morrissey called her ‘a supreme original’, and Bono rates MacColl as ‘one in a long line of great English songwriters that includes Ray Davies, Paul Weller and Morrissey. The Noelle Coward [sic] of her generation’. According to Johnny Marr she had ‘the wit of Ray Davies and the harmonic invention of the Beach Boys, only cooler’. Divorced from Steve Lillywhite in 1995, MacColl fell deeply in love with the musician James Knight a year before the release in 2000 of Tropical Brainstorm, influenced by the Latin American rhythms she had come to love on visits to Cuba, Brazil and México. Two weeks before she died she had completed an eightpart BBC radio series about the music, culture and history of Cuba. According to Karen O’Brien, the author of a new biography of MacColl (Kirsty MacColl: The One and Only, published in September by André Deutsch), ‘The tragedy is that she was really beginning to reach her prime.’

Slap in the face

The goal of Jean Newlove’s trip to México in March, apart from visiting the spot where MacColl died and laying a wreath on the water, was to submit new evidence to the judicial authorities in the hope that criminal charges would be brought against the owner of the Percalito. Backed by her campaign group, Justice for Kirsty (JFK), whose many supporters include Bono, Billy Bragg and Tracey Ullman, Newlove’s three year quest for the truth behind her daughter’s death has gathered momentum, despite major obstacles such as financial difficulties and, until recently, a lack of help on the part of both British consular officials here and in México, and the Méxican authorities in London.

‘I was originally told, “It was an accident, the case has been dealt with and is closed.”’ Whether the case was properly handled is at issue. After being briefly under arrest, freed on $9,000 bail and eventually tried without a jury (not uncommon under Méxican law), José Cen Yam, the deckhand, was convicted in Cozumel’s local criminal court of ‘culpable homicide’. However, in March 2003, despite being sentenced to almost three years in prison, he was allowed to walk free after paying a fine of £61 in lieu of going to jail (amounting to one Méxican peso for each day of jail time). In addition he was ordered to pay £1,450 compensation to MacColl’s sons, a sum calculated on the basis of the minimum wage in the state of Quintana Roo.

For Jean Newlove it was the final slap in the face. ‘I was sickened, the boys dumbfounded. Is £61 really what the authorities consider my daughter’s life to be worth?’ The derisory sentence strengthened her resolve to fight for justice. When MacColl’s travel insurers, as well as private investigators and lawyers hired by Newlove, began digging into the facts of the case, they unearthed a catalogue of conflicting statements and unsubstantiated claims. After pursuing independent enquiries and studying all the existing documents, Newlove’s investigators and legal advisers concluded that, while MacColl’s death remains shrouded in mystery, its aftermath raises a number of questions. Was it a bungled investigation or a flawed judicial process — or both — that led to an apparent grave miscarriage of justice? At the heart of the case lies the question: was Cen Yam really driving the Percalito when MacColl was killed — or was he a fall guy, taking the rap to allow someone else to escape criminal charges?

Federal Prosecutor steps in

Although MacColl’s killing — classified as culpable homicide — was both investigated and tried by the local state prosecutor, the case is now closed, and, under state law, cannot be reviewed or reopened. However, a higher judicial authority, Cozumel’s federal prosecutor, Emilio Cortez Ramirez, is examining the new evidence and apparent irregularities in the previous prosecution before deciding whether or not to order a new trial. In the past two months key witnesses, including Guillermo Gonzalez Nova, have been subpoenaed to give evidence — for the first or the second time. How Kirsty MacColl died is beyond dispute. What remains unresolved is where she was killed (whether in or outside the protected maritime park), the speed of the Percalito when it struck her, and who under federal and maritime law carries ultimate responsibility.

In their original statements, used in evidence at Cen Yam’s trial, Cen Yam, Gonzalez Nova and two of his sons (all of whom were on board with Gonzalez Nova’s daughter in law and her 10 month old baby), claimed that they were coasting at a speed of one knot in open waters, far from Chankanaab Reef, outside the protected zone. This was contradicted by witnesses, including the captains of three nearby dive boats and MacColl’s sons, who claim to have seen the Percalito pounding over Chankanaab Reef at 18-20 knots, its bow high out of the water. Yet, during the original investigation, few of these witnesses were called to give formal statements. At Cen Yam’s trial in 2002 crucial evidence challenging Gonzalez Nova’s statement was not presented. However, if evidence is needed to discredit the version of events given by the Gonzalez Nova family and Cen Yam, then it lies in the carnage the boat left in its wake: MacColl’s mutilated body casts doubt on the claim that their boat was travelling at one knot. One knot equals one nautical mile per hour, and is approximately 1.7 feet per second: there­fore the 31ft Percalito would have taken more than 18 seconds to pass through MacColl’s group, merely nudging them aside, allowing the divers —and the skipper — ample time to avoid impact.

Instead, as Ivan Diaz, MacColl’s divemaster, tells me, when he surfaced he saw the Percaiito about a quarter of a mile away bearing down on them at great speed. Initially he assumed it would swerve. ‘It was coming straight towards us. I thought, Oh my God, these guys can’t see us, no question they’re going to hit us. I was very scared, waving and yelling, trying to get their attention, but no one appeared to be up front looking out. With all the noise from the engines and the speed, there was no way anyone could hear us.

Eye witness testimony

A gaunt, weather beaten native of Cozumel, 49 year old Diaz is one of the island’s most experienced diving instructors, having clocked up more than 10,000 hours underwater. Although the driver of his boat, the Scuba Shack, and another dive boat, the Nazareno, both tried to block the Percalito, it was going too fast. ‘I could feel the propellers sucking me under, but managed to push myself away from the side of the boat, helped by the waves, and pulled aside the eldest boy, Jamie. Then I heard a crack and a big clang as the propellers hit Kirsty’s tank. I first thought I’d lost my legs, then I saw blood on my flippers and realised I was intact, but Kirsty was dead.’

Diaz’s account has been confirmed in recent statements to the federal prosecutor by the driver of his own boat, and the captains of two nearby dive boats, the Nazareno and the Bongolis: their evidence presented to the state prosecutor contradicts claims by passengers on board the Percalito that the accident happened in open seas. No responsible divemaster would have taken MacColl’s two sons to the reefs there, which are 3,000ft underwater and notoriously unsafe for beginners, compared to the 150ft depth of Chankanaab. Gonzalez Nova asserts in his original sworn statement to the state prosecutor that his boat hit MacColl 400m from Chankanaab; and at the end of his statement he asserts that Red Cross staff arrived at the scene and took MacColl’s body to ‘the jetty... that was approximately 400m away’. However, Chankanaab is about 300m from the shore, and if MacColl was hit 400m further out, the distance to the jetty would have been 700m.

Who was at the controls?

Also in dispute are claims by Gonzalez Nova’s son Gustavo that ‘there was no sign whatsoever to indicate that people were diving.., neither was there a boat nearby, the nearest arriving about 10 minutes later’. Although Diaz’s boat had not put out warning marker buoys, it was flying its diveshop flag. Gonzalez Nova has had a holiday home in Cozumel for nearly 40 years, and every local recognises that this is a popular diving area. According to statements made to both the port captain and the state prosecutor by their captains and crews, the Scuba Shack and the Nazareno were approximately 165ft from the accident, and the Bongolis slightly further away; before hurrying to the aid of MacColl’s group moments later, their captains noticed, as did Ivan Diaz, that they couldn’t see who was at the controls.

‘After they ran over us, I saw Cen Yam jump forwards from the back of the boat, to the controls. I couldn’t see who was at the wheel because the bow was so high out of the water,’ Diaz claims in a new statement to the federal prosecutor. Although apparently no one saw who was driving, Diaz stated in evidence presented to the state prosecutor that Gonzalez Nova’s two sons were in the front, nearest the controls; a boatman who was on the shore has also told the federal prosecutor that he saw the Percalito set off an hour or two before the accident: at the helm was a darkhaired man who appeared to be one of the family.

What happened in the next few hours, after MacColl’s body was brought back to the jetty of Playa Corona, is equally confusing. In a statement to the state prosecutor Ivan Diaz claimed that when he arrived at the dock he heard Gonzalez Nova tell police that he was at the helm when the accident occurred. When Diaz arrived at the local prosecutor’s office in the evening to give his statement, he heard the deckhand, Cen Yam, telling officials that he had been driving that afternoon. Incensed, Diaz attacked Cen Yam physically, accusing him of lying. Even if Cen Yam had been at the helm, his statement, recorded at the state prosecutor’s office shortly after MacColl’s death, reveals that he produced no official documents supporting his claim to be a qualified seaman; he was unable to give the definition of a knot, did not know the speed limit in the marine park, lacked basic arithmetic skills or knowledge of boats, engines, charts and instru­ments, and admitted being unable to distinguish between left and right. He described one of Gonzalez Nova’s sons leaning against the windshield partially obstructing the view, and said that while driving he had looked away to answer questions from people behind. The official who took Cen Yam’s statement noted that he was entitled to bail ‘since the crime of which he is accused is not considered serious’.

He is the Don - what more is there to say?

Many locals still prefer not to speak openly about MacColl’s accident, recognising the power that Gonzalez Nova and his family wield on the island, where they regularly spend holidays. Some witnesses have moved from the area, while others refuse to be identified, all of which suggests there is something rotten in the state of Quintana Roo, whose former governor is now in prison on drugs related charges. In a forthcoming BBC television documentary about Jean Newlove’s recent visit to México, Felipe Diaz Poot, the captain of the Nazareno, admits wrily there is nothing surprising about the way the case was mishandled. ‘We are poor people. He [Gonzalez Nova] is the Don - what more is there to say?’ he shrugs.

Ivan Diaz has moved 1,500 miles from Cozumel to another part of México. Unable to dive since the accident, he is now unemployed. When called to give his statement, he was, he claims, given a blank sheet of paper to sign, but refused. On the way out he passed Gonzalez Nova and his sons with their lawyers, who, he says, looked at him with contempt. Diaz endured three days of questioning before completing his statement.

Controladora Comercial Méxicana

Jean Newlove’s lawyers believe that the case was deliberately ‘fast tracked’ by the prosecutor and given no publicity in México in order to protect the area’s lucrative tourist industry. What is more likely is that the authorities are wary of tangling with Guillermo Gonzalez Nova, regarded as a pillar of Méxican society. Head of a long established retail empire, he is credited with contributing hugely to México’s recent economic upturn. Now 71, Gonzalez Nova is the chairman of the holding company Controladora Comercial Méxicana (CCM), which is the second largest retail operator in México after the WalMart chain.

The largely family owned business began as a small textile shop founded in México City in 1930, by Gonzalez Nova’s Spanishborn father, Antonino Gonzalez Abascal, and his eldest son, Carlos. In 1962 the family opened the first Comercial Méxicana supermarket. Today CCM, which has a 50 per cent stake in the Méxican version of the American warehouse club Costco, owns more than 170 stores, including mega hyperinarkets, discount warehouse clubs, supermarkets, chocolate factories and pharmacies. In addition the company owns a chain of 55 family restaurants around México. CCM, which was floated on the US Stock Exchange in the late l990s, reported an increased net income of 15 per cent in the first quarter of 2004; revenue from food retailing alone came to $3.1 billion in 2002. While Gonzalez Nova’s personal fortune is unknown, he is ranked among México’s top seven richest men.

Violating the Méxican people's rights

Since 2002 CCM, through its partnership with Costco, has been at the centre of a bitter controversy over a new million­square foot Costco warehouse store and adjacent shopping mall. The Costco-Comercial Méxicana complex, which opened last September in Cuernavaca, a small town 40 miles from México City, stands on what used to be 24 acres of lush forest surrounding a renowned 1 93Os architectural gem, the hotel and arts centre Casino de la Selva, once a peaceful retreat for Méxican intellectuals, writers, artists and European émigrés.

After buying the land in 2001 from the Méxican government for the knockdown sum of $10 million, Costco promptly devastated the area, destroying 46 rare plant species, cutting down more than 700 thousand year old trees, and concreting over the unexcavated archaeological remains of a 3,000 year old Olmec site. Despite peaceful protests from thousands of local residents and other campaigners — many of whom were violently attacked, arrested and imprisoned by the state police, and, on another occasion, allegedly harassed by Costco’s security guards and dogs — the company demolished Casino de La Selva, along with most of its extensive historic collection of murals by many of México’s leading 20th century painters.

As a result, environmental and human rights organisations — including Amnesty International and a United Nations Commission — have condemned Costco-Comercial Méxicana for gross violations of a wide range of basic rights. In a damning indictment the UN High Commissioner’s Report on Human Rights in México recently accused the company of civil rights abuses and of violating the Méxican people’s right to a healthy environment and depriving them of their artistic, historical and cultural heritage.

Although Méxican, American and Canadian NGOs and environmental and human rights groups have called for a boycott of Costco and CCM stores, and one Méxican artist whose murals were destroyed has filed a $15 million lawsuit against Costco, the threat is unlikely to be taken seriously by the Gonzalez clan who make up the majority of CCM’s board of directors.

Nemesis

What is more probable is that Gonzalez Nova’s nemesis has arrived in the person of Jean Newlove. According to her Méxican lawyer Demetrio Guerra, the federal prosecutor is likely to order a second trial on the basis that the Percalito, by trespassing and speeding within an exclusion zone, violated maritime laws — a federal crime already investigated by Cozumel’s port captain, whose March 2001 report was disregarded by the state prosecutor.

‘The most serious aspect of the original case is that it really should have been investigated and dealt with by a federal, not a state prosecutor,’ explains Guerra, who claims that Gonzalez Nova and his sons are also likely to be indicted for perjury if a new trial proceeds. Who was at the wheel when MacColl died may therefore eventually be established; but whoever was driving, it is possible that Gonzalez Nova, as captain of the Percalito, may face the ultimate responsibility for allowing his boat to enter the protected zone at five times the legal speed limit and allowing an incapable, unlicensed seaman to drive. In fact, none of those on board was licensed to drive the Percalito in coastal waters. The £127,000 Percalito, registered in Guernsey, has a top speed of 33 knots and two 315 horsepower engines: although Gonzalez Nova was certified as a yacht captain in 1976, his licence permits him, in coastal waters, to operate a vessel with engines up to only 100 horsepower.

Influence of Casa Alianza

Another reason why the federal authorities are taking an unusual interest in this case may be thanks to the clout of Fred Shortland, the UK director of the leading human rights organisation Casa Alianza. Shortland is the chief coordinator of the JFK campaign, and he persuaded senior British Foreign Office representatives to arrange meetings for Newiove with, among other authorities, México’s Ministers of Tourism and Foreign Affairs, the Attorney General and one of President Fox’s aides. None of them had any knowledge of the case and expressed apparently genuine shock and regret — the first time Newlove has received an apology from a public official. All these authorities have encouraged Newlove to persist with her appeal to the federal prosecutor, and the Attorney General has stated that he wants to be kept informed of the progress of the new investigation.

‘For a private individual like Jean to gain access to leading political and judicial figures was an unprecedented and major accomplishment for the campaign. If we have done nothing else, we have succeeded in raising awareness at the highest levels of what happened to Kirsty, and what needs to be done to implement tougher laws to protect the safety of tourists,’ Shortland says.

It has been impossible, despite repeated attempts, for anyone to contact Gonzalez Nova either personally or through his lawyers. The federal prosecutor’s decision on whether to open a new case is expected by the end of this year or early 2005. Whatever the decision, or the eventual outcome of a new trial, it cannot assuage the family’s tragedy. But it can help to ensure that justice is seen to be done.

A BBC4 documentary about the case will be shown in the autumn.

Alix Kirsta's website