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Wednesday, 31 October 2012

The Italian seismologists: prosecution by yearning

I have often maintained (without a claim to originality) that one can tell a great deal about any particular society by two things: first, the way in which it classifies people as criminals, and secondly, how it chooses to punish them. A good illustration comes with the recent news about six Italian scientists and a government official being imprisoned for failing to give adequate warning of an earthquake that killed more than 300 people in L'Aquila in 2009.


The news report states:

“The seven, all members of a body called the National Commission for the Forecast and Prevention of Major Risks, were accused of negligence and malpractice in evaluating the danger and keeping the central city informed of the risks.”

It is hard to know where to begin, assuming the report to be accurate. We need to look very carefully at any particular criminal offence to examine what it is supposed to achieve. Is it to ban something which is plainly a breach of someone else’s rights, however framed, such as assault or other crimes against the person? Is it to protect the environment or stop some other more general but clearly identifiable harm? Is it to do with public morality? Or is it simply trying to find a scapegoat to make everyone feel better; a type of “prosecution-by-yearning”?

One good example of the last kind was the arrest of the paparazzi who had been trying to photograph Princess Diana on the night of her death. The paparazzi then and now are often not very admirable people, but the fact that they were trying to take a photograph was not an excuse for Princess Diana’s chauffeur to drive recklessly – as indeed the French authorities conceded by releasing them without charge. More recently, one thinks of the threatening language employed by United States’ authorities against BP for an oil spill, although at least they were on more solid ground given that a clear link could be made between BP’s action and subsequent environmental damage.

I wonder if the prosecution of the scientists was motivated by similar populist concerns. Everyone should sympathise with those who suffered because of the earthquake. But it does not follow that someone was criminally liable. Simply put, the fact that someone does their job conscientiously but badly on one occasion is not normally sufficient to attract criminal liability – otherwise we would have a lot more criminals.

I doubt very much the scientists in question deliberately set out to mislead the public or the government (and if so would have opened themselves to a different sort of legal liability such as fraud, or censure by their professional body if they have one). Instead the reasoning seems to have been along the following rather crude lines: they were paid to study a phenomenon and warn of the known danger associated with it; they failed to do so; lives were lost as a result of the lack of warning; therefore the scientists should be imprisoned. (I repeat the caveat at the beginning that I am only going on the international news report.)

There are two immediate objections. First, applying the same reasoning, a host of others will have to be prosecuted too, as I inferred above. All of the economists and financial journalists paid to study the financial system would be good candidates for a start. As well as their lack of warning leading to catastrophic financial damage - far outweighing the usual costs of even severe earthquakes – a number of people have apparently been driven to suicide by financial ruin, which was also eminently foreseeable in the event of a major economic depression. Indeed, some figures I have read put the number of post-2008 financially related suicides higher even than the 300 lives which were tragically lost at L’Aquila.

Secondly, the consequences of punishing failure with the heavy and blunt weapon of the criminal law will have an obvious negative effect of putting people off becoming seismologists in the first place. I cannot imagine any talented young scientists in Italy will be lining up to study the subject at the moment. Far from improving warnings, therefore, the criminal prosecution may lead to no-one accepting a job involving making them at all. As for people who are already seismologists, either they will start crying wolf continuously (and perhaps by the same logic be prosecuted for criminal negligence for over-warning) or they will look for a change in career.

Again, this does not mean that there should be no consequences for properly negligent seismologists or other scientists. If it emerges that someone has been adding figures wrong or negligently failing to look at data, the professional repercussions would normally be sufficient to dissuade anyone else from similarly poor performance.

Something much more than mere failures to give warning should therefore be needed to justify criminal prosecutions of scientific experts for failing to give warnings of known phenomena. What, therefore, was special about this particular group of scientists and this particular instance of allegedly poor performance? If anything, I think the opposite was true and that the failure to foresee the earthquake was not necessarily poor performance at all. If there is one thing certain about seismology, it is that it is an uncertain science. The earthquakes in New Zealand and Japan in recent years, for example, occurred in known earthquake zones in first world countries, where well-paid specialists monitor the signs and study the risks on a daily basis, yet they failed to predict what occurred.

No-one in New Zealand, or Japan as far as I am aware, ever thought the experts should be made criminally liable as a result. Instead the lesson learned was that seismology is an imprecise subject and therefore any population in a high risk zone should spend time and money preparing for earthquakes – as indeed both New Zealand and Japan did, meaning that they suffered far fewer casualties and managed a far swifter recovery than, say, countries affected by the 2004 Tsunami managed.

The criminal justice system in this country comes in for regular rough treatment on behalf of the popular press. Here is a good example, however, of why we should be grateful for what we have, since an equivalent prosecution in this country would be hard to imagine.

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