Criminal Law and the Science of Prediction

It was a devastating earthquake on many levels: loss of life as over three hundred people died, loss of property as buildings crumbled, and loss of history as an ancient medieval fortress town came tumbling down. All it took was seconds as the earth shook on April 6,2009 in the tiny hilltop village of L’Aquila, Italy. Yet, behind the disaster were years of earthquake readiness and scientific predictions. Behind the devastation was months of tremors; warning signs that something was not quite right. Yet, disasters happen and this one certainly did.

But was there someone to blame? The government thought so when they charged six scientists and one government official with manslaughter. Finally, after a lengthy trial, on October 22, 2012, Judge Marco Billi found them guilty of manslaughter and sentenced them to six years imprisonment. Those convicted included the head of the Serious Risks Commission, the Director of the National Earthquake Centre, and a physicist. The prosecutor built a case of mismanagement, inaccuracy, and the withholding of crucial information, which could have saved lives. The defence emphasized the unpredictability of earthquake prediction and the “chill effect” such a verdict would bring. Indeed after the verdict, a number of Italian scientists quit government posts as scientists across the globe warned of the harmful effects the verdict would have on future research efforts.

There are clearly two sides to the issue but, when looked at more closely, the two sides are not in opposition. The prosecutor is correct in characterizing erroneous or even untimely information as an act or omission, which can and should ground a criminal charge. In Canada, manslaughter requires an underlying unlawful act, which can be viewed as objectively dangerous in nature, which then causes the death of a human being.  Here, the allegation the scientists knowingly mislead the people of L’Aquila, may be a basis for such a manslaughter charge.

However, a mere failure to accurately predict a major disaster is not, in itself, a basis for a manslaughter charge. If it were, the defence’s concern that such prosecution would curtail scientific innovation would be correct. Such a prosecution would be the antithesis of the scientific method. A scientific hypothesis must be first tested before accepted. If the experiment does not produce the results expected, then the hypothesis is modified: such trial and error is needed to produce a final result. Without the ability to make mistakes with impunity, many medical treatments would not be developed.

There is also the difficulty with predictions, whether under the rubric of science or not as seen by the successes and failures of polls and the pollsters who interpret them. As Nate Silver, predictor extraordinaire, explains in his new book "The Signal and the Noise," although some outcomes are predictable if we crunch enough numbers and gather enough data, some, like earthquake prediction, is not possible at this time. How then can we expect a standard of behaviour in an area that is impossibly non-standard?

There is also, a “half-way” opinion between the two: that certain failures or breaches of rules should stay in the regulatory arena and sanctioning should be through the controlling regulatory scheme as opposed to the criminal law.

All of the above is, of course based, on the facts and the level of liability would be commensurate with those facts. In the Italian case, if the findings of the trial Judge were as submitted by the prosecutor, then not unlike the Walkerton, Ontario tainted water incident, the criminal law is properly engaged. However this case is viewed the decision has caused much debate. To sample the various viewpoints, read this, this, this, and this. To read more about public disasters that attract the intervention of criminal law, please read my posting from January 15, 2012 on Public Disasters and the Criminal Law and my posting from February 25, 2012 entitled Safety First: Laboratory Safety and the Criminal Code.

Public Disasters and the Criminal Law

The tragic and unfortunate Costa cruise ship disaster is a good example of how popular social activities, which are inherently legal and legitimate, can turn, on a dime, into a textbook criminal case. It is no surprise the Captain of the ill-fated ship is being investigated for a number of offences, including manslaughter. Indeed, after reading the victims’ accounts of the disaster, it should be expected. But caution is required when demanding “justice” for public disasters through the aegis of the criminal law.

Usually, government uses regulation to control legitimate and desirable activities, which if carried out improperly or without due care, would result in harm to individuals or the public at large. Any breach of regulation may result in a charge under the statute, which is then known as a public welfare offence. Thus, our local dry cleaner, which provides us with clean shirts and starched collars, must conform to government rules regarding the safe and proper use and disposal of chemicals.

When the failure to fulfill regulatory requirements is significantly outside of the public welfare scheme, the conduct becomes criminal and must be framed by the Criminal Code. When the Exxon Valdez struck a reef in 1989 and spilled 11 million gallons of crude oil into the Alaskan waters, the criminal law was invoked. In 2000, the Walkerton tainted water scandal, which left seven people dead and scores ill from e-coli­ bacterial ingestion, resulted in criminal charges of public endangerment, fraud, and breach of public trust against the two town managers. So too, when the British Columbian Ferry, Queen of the North, ran aground in 2006 causing both an environmental and social disaster (2 people died), the navigation officer, who had control of the ship at the time, was charged with criminal negligence causing death.

However, when these public welfare matters are criminalized, they are treated like any other criminal case. The conduct, which initially arose from legal activities, becomes part of the criminal law nomenclature as it is labeled as manslaughter, criminal negligence, or even murder. By labeling and identifying this conduct as criminal, the matter leaves the public opinion arena and enters a legal one where the case must adhere strictly to all relevant legal principles. Consequently, what appears to be an open and shut case of manslaughter may, in a courtroom, deteriorate into a plea to a lesser charge or even an acquittal.

Not only are legal requirements at issue in such a case, but other factors may impact the prosecution’s ability to prove a case beyond a reasonable doubt such as the credibility of witnesses, the conduct of the police, and the availability of institutional resources.  Admittedly, these factors are present when dealing with any criminal case, but when dealing with a public welfare crime, it is very difficult to prove the essential fault element or required criminal intention, which typically deals with a failure of a person to act in accordance with a required standard of care.

In a public welfare case the alleged offender is under a duty or standard of care, which would require him to fulfill his duties and responsibilities with all due care and attention. For a Crown to establish a failure of care, to the criminal standard needed for conviction would require evidence relating to the standard of care and a detailed examination of what those duties and responsibilities are in the circumstances.  Prosecutors would need to delve into corporate culture and industry standards. As a result, such trials can be lengthy and complicated with unsatisfying results.

That explains why the Exxon Valdez’s Captain, charged originally with criminal mischief, operating the Exxon Valdez while intoxicated, and reckless endangerment, and a misdemeanor charge of negligently discharging oil, was only convicted of the misdemeanor and was sentenced to $50,000 restitution order and 1000 hours of community service. It also explains why the town managers in the Walkerton case pleaded guilty to the lesser offence of common nuisance with one accused receiving a conditional sentence of nine moths and the other, a one-year jail term. Finally, it explains why the BC ferry navigator, Karl Lilgert, has yet to be tried on his charges, although the incident occurred in 2006. Lilgert’s preliminary hearing was heard in May 2011 and he is now in the Supreme Court system as he awaits a jury trial.

So, for those awaiting a speedy outcome from the Costa tragedy, or indeed, any other public disaster, they will be disappointed. For the few who actually stick with the case to the bitter end, the result may be even more socially disconcerting. All of this may lead us to wonder if our criminal law can appropriately respond to crimes of such epic proportions and make us re-consider if it even really should in the first place. The problem is: what’s the alternative?

Update on Sunday, January 15, 2012 at 4:28PM by Lisa A. Silver

For more discussion on the criminalization of public welfare offences and the use of the civil sanction as an alternative to the criminal justice system, read my Masters Thesis.