I. INTRODUCTION
The part of English criminal law that deals with causing death or injury to other people intentionally or recklessly is widely said to be a mess—and as regards the non-fatal offences, particularly so.Footnote 1 But it is clarity, rationality and simplicity itself when compared with the law on criminal liability for causing death or personal injury negligently, as a brief analysis of that part of the law, we believe, will show. Where a person negligently causes the death of another, he sometimes commits one or other of the two varieties of involuntary manslaughter. Constructive manslaughter will apply where the death (though unforeseen) was the consequence of another crime. The crime on which constructive manslaughter is based must be one committed with mens rea, and an offence of negligence will not do;Footnote 2 and furthermore, the ‘base’ crime must be one that is ‘dangerous’ in the sense that all sober and reasonable people would have realized it involved some risk of some harm, albeit not serious harm, to someone.Footnote 3 So, in practice, this branch of manslaughter usually operates where a death is the unintended result of a criminal assault; but it may operate in other situations too, as in the leading case of Newbury and Jones, where the ‘basic offence’ was dropping a broken paving-stone upon a passing train.Footnote 4 If the death was not inflicted in the course of a criminal offence, or one bad enough to found a charge of constructive manslaughter, the negligent killer may be guilty of manslaughter by gross negligence. But this, unlike constructive manslaughter, requires negligence as to death, not merely negligence as to some degree of harm.Footnote 5 And it also requires negligence that was ‘gross’, rather than simple; although the test for determining whether the defendant's negligence reached this higher level is, according to most commentators, vague, circular and uncertain.Footnote 6
Although academics commonly complain that the law on involuntary manslaughter spreads the net of criminal liability too wide, the general public, by contrast, seems to feel that it spreads the net too narrowly, and appear to think it wrong that causing death by simple negligence is not a crime. And reacting to this, Parliament has gradually supplemented involuntary manslaughter with a long list of specific homicide offences in which the fault element is lower than gross negligence: causing death by dangerous driving;Footnote 7 causing death by careless driving when intoxicated;Footnote 8 causing death by aggravated vehicle-taking;Footnote 9 causing death by careless driving;Footnote 10 causing death by driving when unlicensed, disqualified or uninsured;Footnote 11 death resulting from a failure of a family member to intervene when a vulnerable person was being mistreated;Footnote 12 and now corporate manslaughter.Footnote 13 If we count involuntary manslaughter at common law as two offences, then the list of different types of negligent homicide now known to English law has now swollen to no less than nine.
And yet, as the pages of our local papers loudly tell us when someone has ‘walked free’ who they think ought to have gone to prison for his neglect for the bodily safety of his fellow citizens, the resulting law is unsatisfactory. And unsatisfactory it is, surely, if only because it is so full of strange anomalies and inconsistencies.
The first, and perhaps less serious, anomaly is that in some situations a person incurs criminal liability for homicide on the basis of simple negligence, whereas in other similar situations—most, in fact—a higher level of fault is necessary. Thus, the driver of a motor vehicle on the road who, by an act of simple negligence, causes death, is now guilty of causing death by careless driving and liable to imprisonment for up to five years. But the driver of a boat or train who causes death by simple (as against gross) negligence incurs no criminal liability for homicide at all (though by causing the accident which caused the death he will often have committed some other criminal offence). And the same is true, as was prominently reported in the press recently, where a death is caused by a negligent cyclist.Footnote 14
The second and graver anomaly is that, whereas serious criminal offences are often committed by those whose negligence causes death, there is usually no criminal liability, as such, for negligently injuring other people, however gravely.Footnote 15 Those who cause injury by negligence will often have committed some other criminal offence along the way; and, in practice, the fact that someone has been injured is likely to be the reason why they are prosecuted for it. But where this is so, the ‘incidental’ offences will range enormously in gravity, from those punishable by several years' imprisonment, to others punishable merely with a fine. And in some cases there will be no incidental offence at all, so that the defendant, though he would have incurred criminal liability if the victim had been killed, or had been injured in a slightly different context, in this context incurs no criminal liability at all.
So if the driver of a motor vehicle on the highway negligently causes injury he may be guilty of dangerous driving, if he was very careless; or if he was less careless, he may be guilty of driving without due care and attention. In the first case he is liable to two years' imprisonment and an unlimited fine;Footnote 16 in the second case, to a level 4 fine only.Footnote 17 Similarly, if a person causes ‘serious injury’ by the negligent navigation of a boat, this will involve him in criminal liability, with the possibility of a prison sentence.Footnote 18 But if he causes injury by negligently injuring another user of the water with a jet-ski, which does not count as a boat, he will not commit any criminal offence at all, however gross the negligence, and however grave the injury.Footnote 19 If a parent neglects his child, so that it gets hurt or becomes ill, the parent will commit a criminal offence;Footnote 20 but if it is a dependant and vulnerable adult who similarly suffers, the family members who neglected him will incur no criminal liability at all. If the owner of a fierce dog fails to keep it under control and some innocent person gets badly bitten, the owner can be prosecuted for an offence under section 3 of the Dangerous Dogs Act 1991 that carries two years' imprisonment, and for which the Court of Appeal has held that immediate prison sentences are properly imposed.Footnote 21 If on the other hand the animal was a lion, shark or alligator there is no criminal liability at all, unless the owner had neglected to obtain a licence for keeping it;Footnote 22 though it would be otherwise if the owner ran an aquarium or zoo, and as a business rather than as a hobby, because then the Health and Safety at Work etc Act 1974 (HSWA) would come to the rescue of the prosecutor.
Although the phrase ‘health and safety at work’ conjures up the mental picture of exploited proletarians maimed gruesomely in dark satanic mills, the HSWA in fact creates a set of offences that go far beyond the context of industrial accidents. It does penalize, of course, employers who negligently fail to ensure the physical safety of the workplace.Footnote 23 But it also penalizes (inter alia) employers and self-employed persons for negligence in the course of their businesses that creates risks to the health and safety of anyone who comes into contact with it;Footnote 24 occupiers of ‘non-domestic premises’ who negligently create risks to the health and safety of those who come and work there;Footnote 25 controllers of industrial premises who negligently allow them to emit poisonous fumes;Footnote 26 and those who negligently design, manufacture, import or supply dangerous equipment for the workplace, or dangerous fairground equipment.Footnote 27 Thus high-profile prosecutions under this Act were brought against Transco when their negligent workmanship resulted in a devastating gas explosion in a house,Footnote 28 and against Balfour Beatty when their negligent track maintenance caused the Hatfield train crash.Footnote 29 Less dramatically, a prosecution was brought under this Act against a landlord who let to a young woman a room with a negligently maintained gas fire, as a result of which she was gassed by fumes;Footnote 30 and another was brought against the landlady of a pub in Christchurch, whose customer suffered severe burns to his mouth when, by negligence, he was served a glass of bleach instead of beer.Footnote 31 When a child hurt his head falling down a flight of stairs at an infant school in Wales, and later tragically caught MRSA in hospital and died, a prosecution under section 3 of this Act was brought against the head-teacher.Footnote 32 It was to an offence against this Act that, in July 2007, the Metropolitan Police pled guilty following the drowning of two boys in a swimming-pool at a police training centre.Footnote 33 And of course it was also for an offence under this Act that, in 2007, the Metropolitan Police was fined £175,000 and ordered to pay £385,000 costs over the shooting at Stockwell tube station of the innocent Brazilian electrician, Jean Charles De Menezes, in July 2005.Footnote 34
The crimes created by the HSWA are, of course, offences of negligent endangerment, and it is not a necessary ingredient of any of them that someone should be hurt or killed. But it tends to be in such cases that they are used, as is clear from the Health and Safety Commission's official ‘Enforcement Policy Statement’.Footnote 35 Their coverage, though not universal, is plainly very wide, and prosecutors regularly use them as a ‘gap-filler’ where injury or death has been caused by negligence and no other offence appears to have been committed.Footnote 36
For those who think it right that death or injury caused by negligence should result in criminal liability, the fact that prosecutions under this Act in practice fill so many gaps is good. However, even looking at it from their point of view, the resulting law is still not satisfactory. First, there are many gaps unfilled. Secondly, until recently most of the offences under the HSWA were only punishable with fines;Footnote 37 though a change in the law has now made them punishable with imprisonment.Footnote 38 And thirdly, it seems to be widely felt that a conviction for a HSWA offence is in some way inappropriate. What people are angry about, and feel others should be punished for, is the fact that someone has been hurt or killed, and they instinctively feel that the conviction should be for an offence of injury or killing. That this is so is clearly demonstrated by the pressure that led to the creation of an offence of ‘corporate homicide’: a new offence which was thought to be appropriate, whereas convictions under the HSWA were not, even though the unfortunate fact that a legal person cannot be sent to prison means that the punishment imposed will be of necessity the same. And it is also shown by the general derision that greeted the announcement by the Crown Prosecution Service that, following the Stockwell shooting, no one would be prosecuted for homicide, but the Metropolitan Police would be prosecuted for a HSWA offence.
Aside from the question of whether the existing law is thought to be adequate—which depends on whether it is thought that negligently causing death or injury should be punishable by the criminal law at all—this area of the law is obviously unsatisfactory because it is so complex, arbitrary and muddled. Whilst a case can be made for specific offences of endangerment, and also for aggravated versions of them when the dangerous behaviour resulted in injury or death,Footnote 39 no case can be made for this area of English law as it stands now.
All this prompts the question—might it be better all round if English law were to face the matter squarely, and instead of proliferating specific offences of killing or hurting particular people by particular types of negligence we introduced a general offence of causing death by simple negligence, backed up by a general offence of similarly causing injury? This, after all, is basically the position in the countries of continental Europe;Footnote 40 and it is, in particular, the position in the law of our nearest neighbour, France.
In the next section of this article, the French criminal offences of negligent homicide and negligent injury will be examined, and in the process we shall see some of the problems which English law might have to face if such offences were to be created here. In the third and final section, we shall attempt to faire le bilan: to look at this area of French law in the round, and see whether French law in this area contains anything from which English law might usefully learn.
II. OFFENCES OF NEGLIGENT HOMICIDE AND NEGLIGENT INJURY IN FRANCE—THE LEGAL BACKGROUNDFootnote 41
In French criminal law, the basic rule is that for offences other than the most trivial regulatory ones, guilt presupposes intention in the defendant.Footnote 42 However, in the case of negligent homicide and negligent injury, the importance of protecting human life and the integrity of the human body are thought to justify a major exception.
There is nothing new in this, because offences of negligent homicide and negligent injury were included in Napoleon's Code pénal of 1810,Footnote 43 and their origins go back to pre-revolutionary French law. Writing in the 19th century, the authors of a classic commentary on the Code pénal said this:
Homicide without the intention to harm, but through some fault or other, is imputable to the actor. The agent's culpability does not consist at all of his intention, or in his desire to cause the harm that he has caused, but he can fairly be blamed for a fault of foresight and precaution. He is at fault; and when the consequence of this fault has been the deprivation of a person's life, the conscience of the public demands reparation. As the Exposé des Motifs [to the 1810 Code pénal] explains: ‘This is the price that the law should attach to the life of men, that it should punish homicide held to be involuntary, and which is not free from blame, although not gravely criminal. Whosoever, by failing to observe the regulations, by clumsiness, imprudence, inattention, neglect or negligence has committed or caused an accidental death or injury, shall not be guilty of a murder. He will come before justice with a conscience clear of the blood which he has spilt. But this blood, although spilt accidentally, is still that of a human being. It does not cry aloud for vengeance. But it demands, and will obtain, an expiation.’Footnote 44
The law on criminal liability for negligent death and injury is now contained in the Criminal Code of 1994. Although no longer really ‘new’, this Code is still generally referred to as the Nouveau code pénal, or ‘NCP’, and that is how it will be described here.
When the NCP was being created, the architects of the reform did discuss the necessity and appropriateness of making unintentional conduct punishable in the criminal courts. One member of the Sénat (France's second parliamentary chamber) expressed concern that ‘the existence of a non-intentional responsibility was against the very notion of criminal behaviour as it is conceived in a society founded on the concepts of the rule of law, of liberty and of personal responsibility.’Footnote 45 Those who took that view accepted that negligence causing death or injury needed to be penalized in some way; but they thought that, instead of keeping it within the criminal law, administrative and civil sanctions would be more appropriate, given the lesser culpability involved. However, as when the original Napoleonic code was drafted, the moral argument for punishing negligence in this context once again prevailed. And French legal opinion in general accepts this. Such behaviour is seen as a blameworthy lack of interest in others in social situations and although the sanction ‘cannot be the same, […] repression is not opposable in principle and is linked with considerations of a well-accepted social utility.’Footnote 46
A. The Nouveau Code Pénal: An Intensification of Liability
In fact the NCP 1994 was tougher on negligent homicide and injury than the original Napoleonic Code, because it prescribed higher maximum penalties. Under the original Code, negligent homicide (homicide involontaire) carried a maximum penalty of two years' imprisonment, plus fine, and negligent injury (coups et blessures involontaires) a maximum of one year and a fine. Under the NCP, however, the normal maximum penalty for negligent homicideFootnote 47 went up to three years (plus fine), and for negligent injuryFootnote 48 from one to two years (plus fine)—and in each case a higher maximum penalty was prescribed where the negligence was particularly grave. The second paragraph of article 221-6 NCP, which deals with negligent homicide, provides that:
In the event of a deliberate violation of an obligation of safety or prudence imposed by statute or regulations, the penalty is increased to five years' imprisonment [and a higher maximum fine];
The second paragraph or article 222-19, which deals with negligent injury, increases the maximum penalty in such a case from the usual two years to three (and also prescribes a higher maximum fine).
The type of ‘gross negligence’ that is in issue here is called by French lawyers faute délibérée. Though vaguely similar to the English law concept of ‘subjective recklessness’, it is not identical. Like subjective recklessness it requires the defendant to have ‘acted with his eyes open’; but unlike subjective recklessness, faute délibérée is present if the defendant ‘broke the rules’ with his eyes open, even if in doing so he did not actually foresee that death or injury might result. So it is a conscious and wilful state of mind, but nevertheless remains an unintentional one; the will of the defendant is linked to the behaviour rather than to the particular result that ensues. For example, if an anaesthetist, knowing it was forbidden to leave his patient unattended, went outside to make a social phone call or to smoke a cigarette, his behaviour would amount to faute délibérée, even if it did not cross his mind at the time that the patient might die or suffer injury; and similarly if a driver intentionally raced another driver, consciously shot a red light or exceeded the speed limit, or drove when he was well aware that was drunk. Thus in one French case the pilot of an Air France Airbus A-320 was found to have committed a faute délibérée when, at an air-show, he made the conscious choice to undertake a particularly dangerous procedure that he knew to be unauthorized.Footnote 49 This concept is not known, as such, in the criminal law of England, although two influential writers have suggested that it could usefully be adopted in the context of the civil and criminal liability of doctors.Footnote 50
In 2003, the NCP became yet tougher still on negligently caused injury and death, because in response to the same sort of pressures which have produced a crop of new vehicular homicide offences in England, further articlesFootnote 51 were added which increased the penalties for negligent homicide and negligent injury when they occur in the context of certain types of particularly dangerous driving. In these cases of what the French popular press calls violence routière, the penalty for negligent homicide is now increased to 10 years, and for negligent injury to seven.
However, in parallel with these moves to increase the severity of this part of the law as it applies to negligent drivers, there has been a significant move to attenuate its application to other groups. And the factual context of these moves in the opposite direction is a development the preliminary signs of which are now visible on this side of the Channel, where they appeared in the recent prosecution of the corporation of Barrow-in-Furness, and its architect, for manslaughter over seven deaths from legionnaire's disease caused by a negligently maintained air-conditioning unit.Footnote 52 That is to say, in the context of the prosecution for negligent homicide or injury of local government officials, whose alleged failure to implement the law on health and safety form the background to an accidental death. The trend was set in the early 1970s by the prosecution and conviction of the maire of Saint-Laurent-du-Pont, following the death of 146 young people in a horrendous fire at a night-club called Cinq-Sept, his part in the tragedy being his failure to ensure that fire regulations were enforced.Footnote 53 In the years leading up to the enactment of NCP, and immediately following it, prosecutions of this sort had become increasingly common—to the point where they seemed, to those on the receiving end of them, to have added a new and wholly unreasonable hazard to municipal life. The person typically prosecuted in such a case was (and is) the maire: the elected head of a French municipal council. Like their counterparts in the UK, French maires are local politicians, and collectively form a powerful group to whom the national politicians are obliged to listen. It was the pressure exercised by these maires which led to two successive modifications to the rules on criminal liability for negligence, the first in 1996, and the second in 2000.
The psychological and social pressures that lay behind this rash of prosecutions against maires are perceptively described by a French professor, who puts the matter thus:
In a century, we have moved from a regime of liability for fault, which had its origins in liberal thought, to a regime of liability for risk, which rests on a concept of social solidarity … In other words, from damage being suffered we now immediately move on to seeking out, at all costs, a person who is to blame for it.
… [W]hen attempts are made to prosecute an elected representative (whose name, incidentally, is not reported!) this is not because he is really responsible, but because it is he more than anybody else who represents society as the symbol of the crime. Durkheim would have said that if the maire is nearly always prosecuted in this type of case, it is because he is the best substitute for the crime, or the best symbolic agent of its happening. In the end, all this is not so far removed from the ‘primitive’ form of legal thinking that anthropologists know well, according to which there is offered up, in restitution for the damage caused by the crime, the destruction of a symbol.Footnote 54
Social pressures of this sort are, of course, at present very visible on this side of the Channel too. But three particular features of French law, over and above the very existence of criminal liability for death or injury caused by simple negligence, seem to have encouraged these social pressures to find a ready outlet in prosecutions. These are (i) close procedural links between criminal and civil and criminal proceedings; (ii) the tradition of a single concept of negligence (faute), applicable to both civil and criminal liability; and (iii) a theory of causation that spreads the net of liability extremely wide.
At a procedural level, in France the victim of a crime, or his relatives in the case of homicide, have a right to start a prosecution, or to join in one instituted by the public prosecutor, as what is called a partie civile; and if the defendant is then convicted, the criminal court will then award the partie civile damages on the same basis as would a civil court. And in addition to this, there used at one time to be a general rule of evidence that findings of fact in criminal cases were binding on the civil courts in subsequent proceedings there. This rule, of course, had the side effect of making judges in criminal proceedings for offences of negligence unwilling to acquit, even where there was no partie civile, because an acquittal would deprive the victims of any chance of compensation, and for that reason an exception was eventually made in respect of findings of ‘no negligence’.Footnote 55 But this particular change has not affected the broader right of the victim of an offence to constitute himself a partie civile.
At the level of substantive law, French law originally operated on the basis of a unitary concept of fault, so that negligence that was bad enough to give rise to civil liability under the French equivalent of the law of tort was automatically bad enough to give rise to criminal liability in those offences which can be committed negligently. Furthermore, this concept, faute, was (and is) considerably wider than its approximate equivalent in English, which is negligence. In French civil law, faute, like negligence in English law, covers any form of behaviour which falls short of the standards of the French equivalent of the reasonable man (le bon père de famille). But unlike negligence in English law, faute also covers any form of behaviour that amounts to a criminal offence, even a minor one which carries strict liability. In other words, liability for faute in French civil law is the equivalent of a combination of liability in the torts of negligence and the tort of breach of statutory duty; and as regards the second, a tort of breach of statutory duty not subject to the strict limits that apply to it in English law.
It goes without saying that, when faute in this broad sense was transported into criminal law as the basis for the offences of negligent homicide and negligent injury, the result was criminal offences that were extremely broad. Taken to the limit, it meant that homicide involontaire in French law was like constructive manslaughter, only without any restriction as to the type of ‘base’ offence which could give rise to it. And next to homicide involontaire there stood (and still stands) a similarly constructed crime of coups et blessures involontaires, applicable when the victim of the accident survived. An obvious application of all this was (and still is) that if a French worker is killed or badly injured, and this would have been prevented if his employer had carried out his obligations under French law on health and safety, the employer is automatically liable for a criminal offence of negligent homicide, or negligent injury. With this particular result, few if any French would quarrel—or English either, probably, if it were the law of England too. But when placed in combination with the French rules of causation, this broad notion of faute potentially produces other results which are much more questionable, including the excessive criminal liability of maires and other functionaries.
As regards causation in criminal law, French legal writers differentiate between three theories, each of which a legal system might theoretically apply. After giving the hypothetical case of a negligent driver who knocks down a pedestrian, who in hospital receives infected blood and years later dies of AIDS, the authors of a textbook explain the matter thus:
The first [theory] is that of l'équivalence des conditions, according to which all the events that contributed to the occurrence of the damage are equivalent, and each one is therefore capable of being treated in isolation as a cause. In the example given above, the careless driver would accordingly be guilty of homicide involontaire. The second theory is that of la proximité des causes, which means that the only cause taken into account is the one which is closest in point of time. Under this theory, the driver should only be prosecuted for negligent injury, because the immediate or direct cause of the death was the blood transfusion. The third theory is that of la causalité adéquate, under which the proper course is to identify the cause which is normally the most usual cause of this type of damage. If applicable, this theory would also exclude liability for homicide involontaire in the example given.Footnote 56
Broadly speaking, French criminal law rejects the second theory, and wavers between the first theory and the third, with a general preference for the first. In a minority of cases, the courts have applied the third theory of la causalité adéquate: as in the celebrated case in which a careless driver knocked over the rider of a petrol-assisted bicycle, who promptly remounted, chased his accidental assailant yelling abuse, and in the process got so excited that he had a heart attack and died: a bizarre sequence of events which led to the driver's initial conviction for homicide involontaire, and its later quashing by the Cour de Cassation.Footnote 57 But more usually the French courts apply the first and stricter theory of l'équivalence des conditions, according to which everything that had a logical connection, however remote, with the eventual death or injury is treated as a legal cause. A striking example is the willingness of the French courts—unlike their English counterpartsFootnote 58—to convict of homicide involontaire drug-dealers whose customers accidentally kill themselves by taking overdoses. In one French case the supplier's conviction was upheld, even though the deceased had had two regular suppliers, and the prosecution could not show that it was the defendant who had provided the fatal dose; even if it was the other supplier's dose, the court said, both suppliers had helped to create the general situation in which the death of the deceased took place.Footnote 59 And it is this extensive theory of causation that the French courts traditionally applied when confronted with prosecutions of maires, whose alleged failures to enforce the rules on public safety in their towns and cities were the background against which some supposedly preventable accident had occurred. Thus in one case, for example, the minder of a five-year-old who knew he could not swim allowed him to bathe in a part of municipal lake where there was a notice warning that bathing was dangerous and there were no life-guards, and then failed to keep an eye on him, so that he drowned. On these facts, not only was the child-minder convicted of homicide involontaire, but also the maire, because of his faute in failing to ensure that national regulations about bathing places were complied with, inter alia by providing a bigger team of guards and better notices.Footnote 60
B. The 1996 Reform—A New and Narrower Definition of ‘Faute’
The first legislative step towards reducing the potential criminal liability of maires was a statutory change designed to sever the previously sacred unité des fautes, under which any behaviour which amounted to faute for the purpose of civil liability automatically constituted faute for the purposes of criminal liability for non-intentional offences too. This change took the form of re-writing article 121-3 of the NCP, the provision in the ‘general part’ of the Code which deals with the fault element. In its original form in 1994 this simply said:
There is no felony (crime) or misdemeanour (délit) in the absence of an intent to commit it.
However, where statute so provides, there is a misdemeanour in the case of recklessness, negligence or deliberate endangerment.
There is no petty offence (contravention) in the event of force majeure.
But as rewritten in 1996 it said:
There is no felony (crime) or misdemeanour (délit) in the absence of an intent to commit it.
However, the deliberate endangering of others is a misdemeanour where statute so provides.
A misdemeanour also exists, where statute so provides, in cases of recklessness, negligence, or failure to observe an obligation of due care or precaution imposed by any statute or regulation, where it is established that the offender has failed to show normal diligence, taking into consideration where appropriate the nature of his role or functions, of his capacities and powers and of the means then available to him.
There is no petty offence in the event of force majeure.
The general idea behind this change was to reassure maires and other people in similar positions that, when deciding if they were en faute for the purpose of homicide involontaire or coups et blessures involontaires, the criminal courts (i) were no longer bound to take the fact that some regulation had been broken as conclusive; and (ii) should consider whether, given the budgetary and other constraints within which they were obliged to operate, they could really have done any better than they did. But not everybody saw it as really changing anything. According to the court in one case decided shortly after it, the new formula merely expressed ‘formally what was already put into practice by anterior jurisprudence’.Footnote 61 This was the much-publicized case of the thermes de Barbotan, arising from a dreadful incident in which a spa in the course of rebuilding had been re-opened to the public before the works were finished, a contractor laying bitumen accidentally started a fire, and 21 users of the spa perished in the resulting blaze. Among others, the maire of the town of Cazubon was prosecuted for failing to enforce safety regulations on the site. On appeal his conviction was affirmed, prompting a commentator to write: ‘From the conviction of the maire of Saint-Laurent-du-Pont over the fire at Cinq-Sept Footnote 62 to that of the maire of Cazubon over the fire at the thermes de Barbotan, the criminal responsibility of elected representatives for carelessness or negligence appears to have developed little.’Footnote 63
C. 2000—Attenuation of Liability by New and Stricter Rules about Causation
And so the change in 1996 was not enough to satisfy the maires, who continued to press for a further and more radical change. Four years later, in 2000, article 121-3 of the NCP was rewritten yet again: a further upheaval which provoked one commentator to remark that, if every four years is a proper interval for the Olympic Games or the European Cup, it is undesirably short for a rethink of the basic rules governing criminal liability.Footnote 64 The change this time was to alter, at one and the same time, the rules about the definition of negligence and the rules about causation. A new and lengthy paragraph was inserted after the third paragraph of article 121-3, to provide that in cases of ‘simple negligence’ a natural person (as against a legal person) is liable only for the consequences of his act that are direct and immediate, and that to make him criminally liable for the remoter consequences of his act a higher degree of fault is now required. The new paragraph is as follows:
In the case referred to in the preceding paragraph, natural persons who have not directly contributed to causing the damage, but who have created or contributed to create the situation which allowed the damage to happen or who failed to take steps enabling it to be avoided, are criminally liable where it is shown that they have broken a duty of care or precaution laid down by statute or regulation in a manifestly deliberate manner, or have committed a specified piece of misconduct which exposed another person to a particularly serious risk of which they must have been aware.
The types of extra-serious fault which are now necessary to make a natural person criminally liable for accidental death or injury where these are the indirect consequence of his action (or inaction) are two. The first is faute délibérée, the type of ‘conscious negligence’ which we described above, where we explained that it has the effect of increasing the maximum penalty when it is present. The other is a new type of aggravated negligence, existing somewhere between faute délibérée and faute simple, to which French lawyers have given the name of faute caractérisée. Literally translated this means ‘downright fault’ or ‘outright fault’, and in practice it equates more or less with the English notion of ‘gross negligence’. Thus the director of a factory was held guilty of faute caractérisée when, as a result of disorganised working practices, a heavy piece of concrete fell from a travelling crane and injured someone – similar incidents having already happened, to his knowledge, twice before.Footnote 65 (When bracketing these two aggravated forms of fault together, French lawyers refer to them collectively as faute qualifiée: ‘qualified fault’.)
At a theoretical level, the result is to turn something that was originally simple into something rather complicated. Originally, a defendant would incur criminal liability for an unintended death or injury if he caused it by any behaviour that French law regarded as amounting to faute simple: which meant, roughly speaking, any failure to behave as a reasonable person, or the commission of any criminal offence. But in order to grasp the legal position today it is necessary to draw a plan, which looks like this:
And though easy to state in theory, the distinction between a ‘direct cause’ and an ‘indirect cause’ is not always easy to apply in practice. Even if most cases will fall clearly on one or other side of the line, there will obviously be many that sit uncomfortably on the border. And the result, of course, is to produce a large body of case-law, not all of which can be intelligibly reconciled.Footnote 66
So how does this rather complex body of law work in practice? As regards negligent drivers, the new law seems to work in much the same way as the old, and the courts seem reluctant to allow them to escape liability for the consequences of their simple negligence by arguing that, if it caused the death or injury, it did so indirectly. So when a driver, travelling at excessive speed, lost control of his car after he accidentally hit a wild boar which had suddenly run across the road in front of him, causing him to swerve for 100 metres before colliding with an oncoming car whose driver died in the resulting crash, the Cour de Cassation refused to accept the argument that his faute in driving at excessive speed was only the indirect cause of the death.Footnote 67 It took a similar line when the driver of a heavy lorry negligently crashed, so rupturing some of the sacks that he was carrying and releasing a cloud of powder which temporarily obscured the vision of some other drivers, who then crashed as well.Footnote 68 (Though in a case where a driver, temporarily blinded by the sun, hit a person on a pedestrian crossing, who was taken to hospital with a broken bone in his foot, where he contracted a ‘hospital infection’, and died, the Cour de Cassation quashed the conviction and sent the case back for a retrial, on the ground that the trial court had failed to examine whether, on these facts, there was any causal link at all.)Footnote 69
Nor has the new law offered much relief to medical practitioners. Traditionally, the legal position was that French doctors were liable to be prosecuted criminally for the sort of negligence for which, under English law, they could at most be sued—and like civil actions in the UK, in France prosecutions against doctors have multiplied.Footnote 70 Although in theory French medical defendants can now argue that the death or injury was only the indirect result of their negligence, and hence that they are only liable criminally for faute qualifiée, this argument does not usually avail them. For example, in one leading case a cosmetic surgeon agreed to operate on a 64-year-old woman whose health as well as her physical appearance left much to be desired. He carried out the operation itself with all due care, but because of her pre-existing medical condition it caused her to die of a thrombosis. When prosecuted for homicide involontaire on the basis that he should not have operated at all, he sought to argue that his faute in this respect was the indirect cause, and hence he was guilty only if his decision to operate amounted to a faute qualifiée; but the Cour de Cassation would have none of it, and held his initial error was the cause directe. But by contrast, this line of argument was held to be open to the head of medical services in a hospital who put the care of a patient into the hands of a trainee, whose blunder killed him; in this case, the defendant's act had indeed merely created the situation which permitted another cause to intervene.Footnote 71 In the medical context, the French criminal courts, like the English civil courts,Footnote 72 have had to decide whether there is in law any causal link at all when, instead of killing his patient outright, a doctor's negligence merely reduces his chances of survival in a situation where they were already fairly low; and like the English courts, they have answered this question in the negative.Footnote 73
By contrast, the new law—as intended—appears to have been moderately helpful to maires in relieving them of liability for acts of minor carelessness which helped to set the scene for some accidental injury or death. Thus, in one sad case, a school had sent out a party of 40 pupils on a cycle ride along a road which at one point led along the edge of a precipice, over which one of them unfortunately fell and died. Among the people prosecuted was the maire, for negligently failing to put up a sign warning of the danger. The Cour d'Appel at Rennes quashed his conviction, because his behaviour was only the indirect cause of the accident, and his faute (if any) did not amount to faute caractérisée.Footnote 74 Similarly, the maire's conviction was quashed in another case where, after a motorist driving with excessive speed had crashed into a procession, the maire had been prosecuted for alleged negligence in failing to impose a ban on traffic while it was taking place.Footnote 75 Though in other cases where the negligence was more obvious—as where a child was crushed under a large pipe which other children were rolling around in a municipal playground, and the maire had been personally warned of the danger—the maire was convicted because the court identified a faute caractérisée. Footnote 76 Another group of public servants whose criminal liability has been attenuated by the 2000 reform are teachers. In December 1995, six primary school children and one adult were tragically drowned during a visit to the gorge of the river Drac when a sluice-gate on a hydro-electric plant upstream was opened unexpectedly. Among those prosecuted were the teachers who had organised the trip. They were eventually acquitted on the ground that their responsibility for the tragedy was indirect, and their faute (if any) was not faute caractérisée. Footnote 77
In theory, it might have been expected that the new law would also be helpful to employers, whose negligence is frequently of the sort that merely sets the scene for someone else's carelessness to operate; but in practice it does not seem to have helped them. In cases where their failure to enforce safety regulations at the workplace was categorised as causing the damage indirectly, the French courts have usually upheld the conviction on the basis that it amounted to faute caractérisée. Footnote 78 This is much resented by employers, of course, who as a group complain that ‘le chef d'entreprise est le mal aimé de la justice’: ‘the businessman always gets the rough end of justice’.Footnote 79
A final point to note about the reform in 2000 is that the new rules about faute caractérisée and indirect causation apply to natural persons only. Thus legal persons—including not only trading corporations but also municipalities (as against their maires)—are still in principle criminally liable for all the consequences of their simple negligence, however indirect.
III. COULD ENGLISH LAW LEARN ANYTHING USEFUL FROM THE FRENCH LAW ON CRIMINAL LIABILITY FOR NEGLIGENCE?
Does this brief examination of French law reinforce the suggestion that English law could usefully acquire general offences of negligently causing death or injury, or does it point us in the opposite direction?
We suspect that the initial reaction of many English readers who have got this far will be to say ‘Merci, non’. Not only does this part of French law appear to be infernally complicated, but more fundamentally, to English lawyers who are dismayed at the growth of criminal liability for negligence at home, the scene in France may seem the final stage of an atavistic move away from criminal liability for (real) fault and towards a system based on the notion that, where anything bad has happened, somebody must be singled out for public blame and punishment; a bonanza for the criminal bar and a joy for the editors of tabloid newspapers, but for the proponents of a civilised criminal justice system, a cause of misery and depression. A state of affairs, in other words, that would fully satisfy the partie civile in one French case, who said: ‘Defendants shouldn't be able to hide behind the law in order to avoid responsibility’.Footnote 80
However, our view is that the existence of such offences in France, and indeed elsewhere in continental Europe, strengthens the case for the creation of such offences, and the complications to which they have given rise in France in an attempt to limit the scope of them do not seriously undermine the case for such offences here.
To deal with the point about complication first, if this part of French law is complicated, this surely is because at a crucial point in its development two mistakes were made: first, defining faute too widely, and secondly, adopting an excessively broad notion of causation. If these mistakes had been avoided at the outset, so too would have been the complicated task of putting matters right. If criminal offences of negligent homicide or injury were to be created in English law, the French experience shows that it would be necessary to reflect carefully on the rules of causation. In English criminal law, the rules about causation have mainly evolved in the context of offences where the mental element was intention or subjective recklessness, and in that context they produce what most people would instinctively feel to be a just result. In the case of someone who foresaw the harm, or even actually intended it—like the defendant in Blaue,Footnote 81 who deliberately stabbed his victim in the chest with a knife, puncturing her lung—the argument that the chain of causation between the injury and death was broken by some intervening eventFootnote 82 does not generate much sympathy. But where the defendant did not foresee the harm, let alone intend it, our feelings about what consequences it is just and unjust to hold him liable for are very different. If people are to be criminally liable for the consequences of their simple negligence, then it is surely right that their liability should be limited to those that are immediate and direct, as is the case in France today.
But the real question is whether we accept that negligence is a proper basis for imposing criminal liability, and in particular liability for causing death or serious injury. This is an issue that has been debated by legal theorists in the English-speaking world for many years. Sixty years ago, there was a view among respected legal writers that, as Jerome Hall put it, ‘penalisation for negligent behaviour (regardless of capacity) is an unwarranted repudiation of the principle of mens rea; and that although the objective standard is defensible in private and in corrective law, it is invalid in penal law.’Footnote 83 For this, two reasons were traditionally given. The first was a utilitarian one. The threat of punishment, it was said, only works in respect of behaviour that is deliberate and conscious—that is, as a deterrent from acts done with mens rea; hence punishing negligence is cruelty without purpose. And secondly, it was said to be unfair, for the same reasons as strict liability is unfair: because it involved punishing those who ‘couldn't help it’.
In the 1960s, the fallacies in both these arguments were demonstrated with clarity and elegance by the legal philosopher Herbert Hart. There is, he said, a clear utilitarian justification for imposing criminal liability for negligent behaviour in that the risk of incurring it makes a person stop and think. Here, he said:
[T]he threat of punishment is something which causes him to exert his faculties, rather than something which enters as a reason for conforming to the law when he is deliberating whether to break it or not. It is perhaps more like a goad than a guide.Footnote 84
And as long as the person had the capacity to conform to the law if he tried a little harder, punishing him for his failure to do so is not unfair, in the way that unfairness is involved in strict liability. ‘There seems a world of difference between punishing people for the harm they unintentionally but carelessly cause, and punishing them for the harm which no exercise of reasonable care on their part could have avoided.’Footnote 85 The generation of criminal law theorists that came after Hall and his contemporaries has usually accepted that criminal liability for negligence is justified, but only within limits. Glanville Williams said that it was justified for ‘regulatory offences’ that carry neither ‘imprisonment nor odium’, and thought ‘there would be much to be said for enacting that no one should be sent to prison on account of negligence.’Footnote 86 Professors Smith and Hogan took a position that was broadly similar, but thought that imposing heavier punishment on negligence could be justified, exceptionally, in certain contexts:
The negligent handling of certain instruments—notably motor-vehicles and firearms—can have such drastic consequences that society is almost bound to adopt any measures which seem to have a reasonable prospect of inducing greater care … For this reason, if for no other, it is thought that manslaughter by gross negligence, as well as some statutory crimes of negligence may be justified.Footnote 87
Other influential writers in the English-speaking world have taken a similar position,Footnote 88 and we suspect that most writers in the English speaking legal world today would agree with the views of the 19th-century French commentator that were quoted earlier in this article.Footnote 89
If English legal writers have some qualms about imposing criminal liability for negligence, these are clearly not shared by Ministers or lawyers in the civil service. When framing legislation to create new criminal offences, and even to reshape old ones, the government in its various shapes and forms is only too happy to make negligence the basis of liability rather than intention or subjective recklessness, irrespective of whether the new offence will be punishable with imprisonment; and more often than not, Parliament is equally content to vote such legislation through. At the beginning of this article we saw some striking examples in the context of new criminal offences in relation to behaviour that causes death or injury, or creates a risk of it; but even a cursory glance at the statute book in recent years shows that the trend is much more general. To take a few examples drawn at random, criminal liability based on negligence has been imposed on medical staff who store or handle body-parts where the complex consent procedures laid down by the Human Tissues Act 2004 have not been complied with,Footnote 90 on persons entering into an agreement with unlicensed gangmasters,Footnote 91 and those who are found in possession of extreme pornographic images.Footnote 92 And the Sexual Offences Act 2003 has ‘toughened up’ the pre-existing law by substituting negligence for subjective recklessness as the basis for criminal liability for a wide range of prohibited sexual acts, where an element in the offence is either absence of consent, or presence of a participant below a stated age.
In short, in English law criminal liability for negligence is very much alive, and looks set to remain so; and in offences designed to protect against death and injury, legal writers accept that it is justified, and the wider public and the legislator embrace it with enthusiasm.
This being so, the creation of general offences of negligent homicide and negligent injury, as exist in France and elsewhere in continental Europe, would give the law a degree of coherence that it clearly lacks at present. And on coherence there is a further and important point. The general offences of negligent homicide and negligent injury that exist in France (and elsewhere) are placed, as regards the maximum penalties applicable, at a point on the scale that gives these offences an intelligible relationship to other offences that are more serious. This, of course, is emphatically not the case as regards the fragmented clutter of offences that partly cover this area of law in England: where the maximum penalties for negligent homicide range, with no apparent structure, from two years' imprisonment, to life.
A further and subsidiary advantage of such offences could be that they might indirectly solve the problem about mens rea and drunkenness. As every English criminal lawyer knows, this is part of our law that is particularly complex and particularly unintelligible. Attempts to explain it occupy a sizeable part of every textbook on criminal law, and in law schools, a sizeable part of the efforts of every teacher. In France, happily, this indigestible body of law has no equivalent. If the defendant acted without intention, then in principle he is not guilty of an offence for which intention is required, and this is so whether his lack of intention was due to drink, or drugs, or any other cause.Footnote 93 In a leading French case, a drunken van-driver, having been refused a further drink at a bar attached to a service station, demolished with his van the front of the bar, a small garden and two petrol pumps before he drove off on his inebriated way. Prosecuted and convicted for the French equivalent of criminal damage, which requires intention, at trial he claimed that it was a drunken accident, and when convicted he appealed to the Cour de Cassation on the ground that, when giving reasons for convicting him, the courts below had not dealt adequately with the issue of drunkenness in relation to mens rea. The Cour de Cassation dismissed his appeal by saying that the only issue in the case was whether he acted intentionally or not, and that this was a matter for the trial court to decide in the light of all the evidence, which it had done.Footnote 94 But if a person causes death or injury when he is too drunk to know what he is doing, in France he does not ‘get away with it’. The basic rule in French law is that all crimes and délits—the more serious offences—require intention.Footnote 95 But, as we have seen, there is an exception to the rule in respect of injury and death, where the law also recognizes criminal liability for negligence. And so, without resort to any of the complications that flow from the House of Lords's attempt in DPP v Majewski Footnote 96 to avoid this happening in England, there is no question of a person who kills or maims another in a state of extreme drunkenness being able to ‘walk free’ because he did not know what he was doing.
The obvious objection to introducing general offences of negligently causing death or injury in England is that it would extend the reach of criminalization further than it ought to go, and make the law excessively heavy-handed. To English readers, French law in this area appears at first sight to be astonishingly severe. In France, not only do dangerous drivers, whom everybody hates, routinely end up with convictions for negligent homicide, but so too, apparently, do heads of companies and mayors, and even members of other social groups who generally enjoy a wide degree of public sympathy, like teachers, doctors and nurses.Footnote 97 And they get prosecuted and convicted, furthermore, even when nobody has been killed, and for negligence which may be grave, but which is also often relatively slight.
In practice, however, this part of French law is a great deal less severe than it at first appears, because French criminal justice, unlike criminal justice in England, makes extensive use of suspended sentences. And so it is that, though a conviction for homicide involontaire will normally result in a prison sentence, the convicted defendant will rarely go to gaol. This is so, even when the defendants were negligent drivers. In France in 2004, for example, 1507 drivers were convicted of homicide involontaire, of whom 1415 were sentenced to imprisonment: but of these, only 452 received a sentence of which any part was immediate.Footnote 98 Negligent employers and contractors do end up in prison occasionally.Footnote 99 But for a teacher, maire or doctor to actually hear the clang of the prison gates following a conviction for homicide involontaire would be virtually unheard of. The maire who was convicted for his part in the disastrous fire at the thermes de Barbotan in which 21 people died, got a suspended sentence of 12 months, plus a fine of 10,000 francs, the equivalent of about £1,000. To the French it is English law in this area that looks harsh, not theirs. A decision like Evans,Footnote 100 where the Court of Appeal upheld a sentence of 10 months' immediate imprisonment on a woman of good character who, distracted by a tail-gating van, ran down a cyclist ahead of her, or Poel,Footnote 101 where the Court of Appeal imposed a sentence of two years' immediate imprisonment on a lorry-driver of good character who failed to notice a stationary vehicle ahead of him when he briefly looked down to fiddle with his radio, would be by French standards unbelievably severe. The pilot whose faute délibérée at the Mulhouse-Habsheim air-show crashed an Air France Airbus, killing three people and injuring scores of others, received a sentence of only 18 months, of which the court suspended all but six; a sentence raised to 20 months, 10 of them suspended, on appeal.Footnote 102
That said, of course, criminal liability is no laughing matter, whether or not actually going to prison is the result. No one—and in particular, no respectable person like a teacher, doctor or mayor—relishes the thought of a criminal conviction. And irrespective of the outcome, the very fact of being prosecuted, particularly for a grave offence, is stressful; to some extent, as the American writer Malcolm Feely pointed out in a slightly different context many years ago, ‘the process is the punishment’.Footnote 103 But even when this is taken into account, current French attitudes towards the proper punishment of negligence are noticeably less punitive than current attitudes in England. In France, it seems to be accepted that the proper judicial reaction to a negligent homicide or wounding is a fine, plus the stigma of a conviction and a ‘virtual’ prison sentence. But in England, public opinion, as reflected in the tabloid newspapers, sees any sentence other than an immediate prison sentence as allowing the convicted person to ‘walk free’. And this attitude has become internalized by the courts, which now regularly impose sentences of immediate imprisonment for negligent homicide in those cases in which this is a criminal offence. As long as this attitude prevails in England, the practical result of introducing general criminal liability for negligently causing death or injury would be a further inflation of the prison population by the incarceration of a new group of defendants who are substantially less culpable than those who normally end up in prison now. This uncomfortable fact should make us pause before we accept the case for the creation of these general offences.
But even if the case for general offences of negligent homicide and negligent injury is rejected, there is still one useful lesson, we believe, that can be learnt from this area of French law. With their concept of faute délibérée, which we examined earlier, the French appear to have found a coherent and intelligible test for drawing a line between simple negligence and negligence that is more severe. In English law, by contrast, we have so far managed nothing better than a rule that requires judges to tell juries, in prosecutions for manslaughter for gross negligence, that ‘gross negligence’ is negligence which they think is bad enough to deserve punishment.
