Criminal liability for negligencea lesson from across the channel?

International and Comparative Law Quarterly

Volumn 59, Issue 1, 2010, Pages 1-24

  Spencer Jr , Q C ^a   Brajeux, Marie Aimée ^b  

^a UNIVERSITY OF CAMBRIDGE   (United Kingdom)

^b QUEEN MARY UNIVERSITY OF LONDON   (United Kingdom)

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EID: 77952623897     PISSN: 00205893     EISSN: 14716895     Source Type: Journal    
DOI: 10.1017/S0020589309990042     Document Type: Article

References (107)

1. Simester and Sullivan, Criminal Law, Theory and Doctrine (3rd edn, Hart, Oxford, 2007) §11.10: 'Judges and commentators have expressed a great deal of dissatisfaction with the law relating to non-fatal offences . . .'
2. Andrews v DPP [1937] AC 576.
3. Newbury [1977] AC 500, approving Church [1966] 1 QB 59.
4. [1977] AC 500; exactly what criminal offence this was not identified, either in the judgment of the Court of Appeal or of the House of Lords, though they were presumably guilty of the [ICLQ offence of endangering railway passengers contrary to the Offences Against the Person Act 1861 s.32.
5. See, inter alia, Misra [2004] EWCA Crim 2375; [2005] 1 CrAppR 21.
6. Smith and Hogan, Criminal Law (12th edn (David Ormerod) Oxford, OUP, 2008) 531.
7. Road Traffic Act 1988, s 1; created in 1956, and originally punishable with five years; maximum penalty raised to 10 years in 1993, and in 2003 to 14 years.
8. Road Traffic Act 1988, s 3A; created in 1991; originally punishable by five years' imprisonment, raised in 1993 to 10, and in 2003 to 14.
9. Theft Act 1968, s 12A; created in 1992; originally punishable with five years' imprisonment, raised in 2003 to 14.
10. Road Traffic Act 1988, s 2B; created by the Road Safety Act 2006; punishable with five years' imprisonment.
11. Road Traffic Act 1988, s 3ZB; created by the Road Safety Act 2006; punishable with two years' imprisonment.
12. Domestic Violence, Crimes and Victims Act 2004, s 5; punishable with 14 years' imprisonment.
13. Corporate Manslaughter and Corporate Homicide Act 2007.
14. http://blogs.guardian.co.uk/news/2008/07/dangerous-cycling.html
15. Though Northern Ireland, perhaps surprisingly, does have a criminal offence of causing grievous bodily harm by dangerous driving: Road Traffic (Northern Ireland) Order 1995 (NI 18), art 9.
16. Road Traffic Act 1988, s 2; (first created in 1930).
17. Road Traffic Act 1988, s 3; (first created in 1930).
18. Merchant Shipping Act 1995, s 58.
19. Goodwin [2006] EWCA Crim 3184; [2006] 1 WLR 546.
20. Children and Young Persons Act 1933, s 1.
21. Cox [2004] EWCA Crim 282, [2004] 2 CrAppR (S) 54 (three months' imprisonment of a woman of previously good character); Richards [2008] EWCA Crim 1427 (four months' youth custody of a man of 19, also of good character).
22. As required by the Dangerous Wild Animals Act 1976.
23. Section 1.
24. Sections 2 and 3.
25. Section 4.
26. Section 5.
27. Section 6.
28. Transco plc v HM Advocate 2005 SLT 211, 2005 SCCR 117.
29. Balfour Beatty Rail Infrastructures Ltd [2006] EWCA Crim 1586.
30. This was the tragic background to the later proceedings in Beedie [1998] QB 356.
31. (2007) 171 JPN 571. A fine of £8,000 was imposed, plus a compensation order of£1,200. Details of all Health and Safety Executive prosecutions are published on their website, at http://www.hse.gov.uk/ prosecutions/
32. R v Porter [2008] EWCA Crim 1271. The Court of Appeal quashed the conviction because (in effect) there was no evidence of negligence.
33. BBC News (3 July 2007).
34. The Guardian (1 November 2007).
35. At the head of a list of factors pointing towards a prosecution, §33 puts 'the severity and scale of potential or actual harm' and later in the list mentions 'the wider relevance of the event, including serious public concern'; in §39 it is stated that a prosecution should be brought where a death has occurred. This document is available online at http://www.hse.gov.uk/pubns/ hsc15.pdf
36. And the recent House of Lords decision in R v Chargot Ltd (trading as Contract Services) [2008] UKHL 73, [2009] 1 WLR 1, which holds-in effect-that wherever a workman is killed or injured the employer is criminally liable unless he can talk his way out of it, is certain to encourage its use in this kind of way.
37. Though sometimes they are enormous. A fine of £10 million was imposed on Balfour Beatty, above (n 29) reduced to £7.5 million on appeal.
38. Health and Safety (Offences) Act 2008, which came into force on 16 January 2009.
39. See generally C Clarkson, 'Aggravated Endangerment Offences' [2007] Current Legal Problems 278-295.
40. See for example the German Criminal Code, §222 (Fahrlässige Tötung, up to five years' imprisonment and fine) and §229 (Fahrlässige Köperverletzung-up to three years' imprisonment and a fine); the Dutch Criminal Code §307 (veroorzaken van de dood door schuld-up to nine months' imprisonment) and §308 (zwaar lichamelijk letsel door schuld-up to six months' imprisonment); and the Italian Criminal Code, §589 (omicidio colposo-six months to five years, with higher penalties applicable in certain cases) and §590 (lesioni personali colpose-up to three months' imprisonment in 'normal' cases, but up to five years in certain cases). French law is described in greater detail later.
41. For a full account see Y Mayaud, Violences involontaires et responsabilité pénale (Dalloz, 2003). For a critical account of the attempts to rewrite the rules to protect public officials in 1996 and 2000
42. see P Morvan, L'irrésitible ascension de la faute caractérisée: l'assaut avorté du législateur contre l'échelle de la culpabilité, in Mélanges offerts à Jean Pradel (Cujas, 2006).
43. NCP article 121-123, para 1. The text of this article is set out below, in section B of Part II of the paper.
44. Arts §319 and 320.
45. Chaveau and Hélie, Théorie du Code Pénal (Paris, 1887) §1407. (Authors' translation).
46. Rapport fait par le groupe de travail sur la responsabilité pénale des élus locaux, Rapport d'information de M. Pierre FAUCHON, fait au nom de la commission des lois nx 328 (1994-1995) 22 juin 1995; Rapport Sénat, 95-96, nx 32, 9.
47. Mayaud (n 41), Introduction to Livre II,.§ II.04 75.
48. NCP §221-6: 'Causing the death of another person by clumsiness, rashness, inattention, negligence or breach of an obligation of safety or prudence imposed by statute or regulations, in the circumstances and according to the distinctions laid down by article 121-3, constitutes manslaughter punished by three years' imprisonment and a fine of E45,000. 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 to a fine of E75,000.'
49. NCP §221-19: 'Causing a total incapacity to work in excess of three months to another person by clumsiness, rashness, inattention, negligence or breach of an obligation of safety or prudence imposed by statute or regulations, in the circumstances and according to the distinctions laid down by article 121-3, is punished by two years' imprisonment and a fine of E30,000. In the event of a deliberate violation of an obligation of safety or prudence imposed by statute or regulation, the penalty incurred is increased to three years' imprisonment and to a fine of E45,000.'
50. TGI Colmar, 14 March 1997, Gaz Pal 1998, 1, 267;
51. CA, Colmar, 9 April 1998, Gaz Pal 2001, 1, 665; appeal to the Cour de Cassation rejected, Cass Crim, 23 Mai 2000, Gaz Pal 2001, 1, 687. The case was the legal sequel to a much-publicized crash at Mulhouse-Habsheim in June 1988
52. See A Merry and A McCall Smith, in Errors, Medicine and the Law (CUP, Cambridge, 2001), in which they draw a distinction between, on the one hand, 'slips and lapses' and, on the other hand, 'violations'. It is from their book that we took the hypothetical example of the anaesthetist who leaves his patient go out for a smoke or to ring a friend.
53. Arts 221-6-1 and 222-19-21
54. The manslaughter prosecutions failed, but both were eventually convicted of offences against health and safety legislation, the Council being fined £125,000 and the architect £15,000; details can be found on the website for the Centre for Corporate Accountability, http://www. corporateaccountability.org/manslaughter/cases/acqcases/3.htm
55. The decision of the Cour de Cassation is reported at 1974 Bull Crim 115.
56. H Mouthouh, 'Libres propos sur la responsabilité pénale des élus: la logique sacrificielle du bouc émissaire' (Dalloz, 2000) No 6, V (authors' translation).
57. First in 1983 by adding a new article (470-1) to the Code de Procédure Pénale allowing a criminal court to give damages to a defendant acquitted of a criminal offence of negligence, and then in 2000 by adding another new article (4-1) providing that such an acquittal does not prevent a civil court awarding damages on the basis of faute.
58. On this, see F. Desportes and F. Le Gunehec, Droit Pénal Général, (10th edn, Economica, 2003) §498-6.
59. F Desportes and F Le Gunehec (n 55) §446-447. (Authors' translation).
60. Cass Crim, 25 April 1967, Gaz Pal, 1967, I, 343. And compare the case of the motorist whose victim died of an infection contracted in hospital (n 69) below.
61. Kennedy (No 2) [2007] UKHL 38; [2007] 3 WLR 612.
62. CA Limoges, 4 June 1997 BICC 1997. 1262.
63. CA Grenoble, 23 May 1996; JCP 1996. IV 2228; the decision is criticized by Bénoit, 1999 D, 57, because when deciding the case the court failed to take account of the reform in 1996, which was by then in force.
64. TC Toulouse, 19 Fév 1997, Gaz Pal 1997, 1, 396, note Riera.
65. See (n 53).
66. See (n 60).
67. Desportes and Le Gunehec (n 55) 461.
68. CA Paris, 4 December 2000. Gaz Pal 2001, 1, 115, note S Petit; quoted in Mayaud, (41) 148.
69. A summary of it, extending to some 50 pages, will be found in the commentary to article 221-226 of the NPC in annual Dalloz edition of the Code Pénal. A much fuller account is given in Yves Mayaud, above (n 41).
70. Cass Crim, 25 Sept 2001, Bull Crim No 188.
71. Cass Crim, 29 April 2003: pourvoi No 01-88.592.
72. Cass Crim, 5 October 2004: Bull No 230.
73. Mayaud (n 41) §99.05.
74. Cass Crim, 5 September 2000: Bull No 262.
75. Gregg v Scott [2005] UKHL 2, [2005] 2 AC 176; note [2005] CLJ 282.
76. Cass Crim, 20 November 1996; Bull Crim No 417; Mayaud (n 41) §95.45.
77. CA Rennes, 19 September 2000, Gaz Pal 2000, 2, 2361; Mayaud (n 41) §65.52.
78. Cass Crim, 18 June 2002: Bull No 138.
79. Cass Crim, 2 December 2003: Bull Crim No 231, JCP 2004. IV. 1106.
80. CA Lyon, 28 June 2001, Gaz Pal 20001, 2, 1140, note S Petit; Mayaud (n 41) §62.54.
81. Cass Crim, 11 February 2003: Bull No 28; Cass Crim, 11 January 2005: Pourvoi No 04-81.196; cited in the Appendix to report by Fauchon (n 45).
82. Mayaud (n 41) §91.12.
83. Quoted by Riera (n 61) 403.
84. [1975] 1 WLR 1411.
85. In that case, the victim's refusal, on conscientious grounds, to have a blood transfusion.
86. J Hall, Principles of Criminal Law (Bobbs-Merrill, Indianapolis, 1947) 333.
87. Similar views were put forward by JWC Turner in England; Turner, 'The Mental Element in Crimes at Common Law' in Modern Approach to the Criminal Law (1945) 195.
88. HLA Hart, 'Intention and Punishment', Chapter 5 in J Gardner (ed), Punishment and Responsibility (2nd edn, Clarendon Press, Oxford, 2008) 134.
89. 'Negligence, mens rea, and criminal responsibility' Chapter 6 in J Gardner (ed), Punishment and Responsibility (n 84) 136.
90. GL Williams, Textbook of Criminal Law (2nd edn, Stevens, London, 1983) 93-94.
91. JC Smith and B Hogan, Criminal Law (1st edn, Butterworths, London, 1965) 229. This passage has been retained in subsequent editions: see (12th edn, by David Ormerod, 2008) 147.
92. For example, AJ Ashworth, Principles of Criminal Law (4th edn, Clarendon Press, Oxford, 2003) 195-196: 'The argument is therefore moving towards the conclusion that negligence may be an appropriate standard for criminal liability where: (i) the harm is great; (ii) the risk is obvious; and (iii) the defendant has the capacity to take the required precautions.' Ashworth, like other writers, suggests that a criminal code should 'provide separate crimes of negligence, with lower maximum sentences, at appropriate points in the hierarchy of offences.' cf Simester and Sullivan (n 1) §5.5.
93. See Chaveau and Hélie (n 44).
94. Human Tissue Act 2004, s 5 (three years).
95. Gangmasters (Licensing) Act 2004, s 18 (six months).
96. Criminal Justice and Immigration Act 2008, s 63 (three years).
97. J Pradel, Manuel de Droit Pénal Général (14th edn, Cujas, 2002) §482.
98. The case of Norbert Beault, Bull Crim 1999 No 197.
99. NCP, art 121-123, para 1. See (n 42).
100. [1977] AC 443. At the time of writing, a reform of this area of the law is being considered by the English Law Commission. In January 2009 this published Law Com No 314, Intoxication and Criminal Liability, which contains a Draft Bill with no less than nine clauses.
101. As this article went to press, Le Monde (4 December 2009) reported the institution of criminal proceedings for homicide involontaire against the former governor of a French prison, arising from a decision to put a prisoner into the same cell as a dangerous psychopath, who murdered him.
102. Annuaire Statistique de la Justice (Edition 2006, Ministère de la Justice) 163. (It should also be mentioned that those who receive short gaol sentences in France, even when 'immediate', in practice often do not serve them. This is because a French prison sentence does not take effect immediately, and where the convicted person was not in prison awaiting trial, the sentenced person will not actually go there unless and until the public prosecutor makes an order bringing the sentence into effect; which, when prisons are overcrowded, does not always happen.)
103. In 2007, for example, the owner of a crane which collapsed and fell into a school playground, killing a child of eight, received a two-year sentence, of which six months was immediate: Le Figaro (26 June 2007) 8. In this case the maire was prosecuted too, but acquitted.
104. [2007] 1 CrAppR (S) 555 (89).
105. [2006] EWCA Crim 3186.
106. See (n 49).
107. MA Feely, The Process is the Punishment; Handling Cases in a Lower Criminal Court (Russell Sage Foundation, New York, 1979).