Italian earthquake manslaughter ruling: should we jail scientists for failed predictions?

EarthquakeSipa Press/Rex Features
By Simon Hetherington

If you type the word “seismologist” or “earthquake” into any decent search engine, you will get, as you would expect, a mass of hits on science-based websites. This week, you will also get a good number on legally-focussed sites. Almost as much as the scientific community, the legal community is shocked by the jailing of Italian scientists this week, for their failure correctly to predict an earthquake which killed about 300 people. (In point of fact, the Italian system allows for two appeals before sentence is implemented, so that “jailing” is some way from being a confirmed reality.)For a general idea, look here.

Now, there are of course nuances in the differences between legal systems which mean that the UK newspapers’ reporting of the convictions “for manslaughter” is simplistic. What we would understand as manslaughter in England is not a gold-standard of legal definition. It is a peculiarly (though not necessarily uniquely) English legal notion; other countries tend to prefer the notion of culpable homicide. The differences are partly linguistic, partly semantic, and partly substantive.

But actually, those nuances and differences, which might slightly misdirect the casual reader, are not important to the scientific or legal communities in this context. Those communities are not concerned with the definition of a crime; the commentators are not arguing that in England the scientists would have been charged with one offence rather than another. The noise being made is really about the fact that criminal process was invoked against the scientists at all, with some fuzzy references to Galileo’s prosecution by the Vatican in the 17th century thrown in.

Scientists will not advise governments – it is claimed – if they are at risk of prosecution should their advice turn out to be bad. Clearly that is an undesirable outcome. Scientists do not know everything; they work hard to understand the world and to use that understanding to general benefit – but they are not always right and they do not always agree. It is inappropriate to criminalise people for the imperfection of scientific knowledge. To be abundantly clear: these scientists should not go to prison.

But before we get too far along that road we should at least see where it leads. It should not necessarily lead, for example, to immunity from consequence where scientific expertise is negligently or recklessly deployed. In English law, gross negligence is capable of founding a charge of manslaughter; for example, if a surgeon were to operate with gross negligence he or she could expect to be charged. A version of the ordinary principles of negligence would be applied – based on the breach by the accused of a duty of care to the deceased. I don’t think that sensible people would quarrel with that.

However, a key aspect of the English law of negligence is causation: crudely, did the negligent act or omission cause the death? And English lawyers would be hard put to see that causative chain in the making of inaccurate predictions about an earthquake. Even the threshold needed to maintain a civil action for negligence would be hard to demonstrate here, much less the greater standard required to support criminal liability.

On the now notorious occasion – 25 years ago this month – when a certain weather-forecaster who has surely blushed enough by now laughed off the idea that a hurricane was about to hit Britain, I don’t think anyone believed that he (or the Met Office) had caused the deaths or the damage that ensued. No-one sued him; he didn’t go to prison. Just as it should be.