In France, scientific error has become a matter for the courts. Wendy Barnaby asks if British scientists can be similarly tried
At a recent Royal Society meeting, the Director General of the Ecole Superieure d'Electricite, Jean-Jacques Duby, maintained that French jurisdictions have established that scientific error is a punishable offence. Scientists are most at risk of being drawn into litigation, he said, when they are asked to advise politicians. In these situations, they have been found guilty because they made the wrong decision. The best-known instance was the contaminated blood case, in which around 6,000 people were infected with HIV between 1983 and 1985 because they were given blood transfusions with contaminated blood. In this case, Professor Duby said the scientists were in danger of prosecution for scientific error.
There is also an increasing tendency for French scientists to be drawn into criminal cases, for example under a law that makes it an offence to put someone else's life in danger. The law was passed with reckless drivers and health and safety officers in mind. But it is now being used to sue experts who gave bad advice about the geological stability of land in the Alps. Their models showed that avalanches were unlikely in a particular area, and, as a result, chalets were built - only to be damaged by an avalanche.
In the blood contamination case, seven scientists may face charges of poisoning or manslaughter.
In this country, the situation is different. Scientists advise government ministers on a range of committees, some of which (such as the Advisory Committee on Releases to the Environment, set up under the Environmental Protection Act) are statutory bodies. The members of statutory bodies cannot be held individually responsible for the advice they give. For committees without legal status, the government has indemnified members against costs that may be incurred if they have acted in good faith in giving their advice. A Cabinet Office spokesperson said that no committee has been sued because of the advice it has given.
There are other stirrings, however. Last year, Friends of the Earth sent letters to directors of companies that have been allowed to release genetically modified organisms into the environment, warning them that they personally would be legally liable for any damage caused by the releases. The letters stated that the directors would incur liability under the Genetically Modified Food Safety and Producer Liability Bill, introduced into the last session of Parliament by Labour MP Alan Simpson. Simpson admits that his bill was a flyer, an instrument to create debate without any expectation that it would ever become law.
The Friends of the Earth letter has been dismissed by Neil White at solicitors Taylor, Joynson and Garrett. "It's a complete try-on," he said. "The suggestion that directors of a biotech company could be personally liable is nonsense.
"I don't think that there is any way in which the fact that, in accordance with a government-approved scheme, they are growing and selling GM crops could possibly lead to liability for the directors of these companies, unless there is some sort of fraudulent conduct on their part. It is arguable that if the crops are proved to have caused damage, the company might be liable. The company would run a state-of-the-art defence, saying that it did everything that was regarded as being appropriate with regard to the state of knowledge at the time. It would be very interesting to see how the courts would address that."
In a separate letter to the companies, Friends of the Earth addresses exactly this point. It quotes English Nature and the British Medical Association to the effect that there is insufficient evidence to inform decision-making on the release of GMOs into the environment, so Friends of the Earth want to see the precautionary principle applied in such cases.
According to Professor Duby, this principle has been used in France to make scientific ignorance a punishable offence. In 1993, he said, the highest administrative court in France (the Conseil d'Etat) convicted a hospital in a post-transfusional Aids case that occurred before the discovery of HIV. The judge said: "In a risk situation, an assumption must be held valid unless proven otherwise." In other words, concluded Duby, on the basis of the precautionary principle as the judge enunciated it, scientific experts can be sued on the basis that they should have known of risks uncovered in the future. In this case, they should have known that HIV would be discovered and that it would cause Aids. The best proof that they should have known was that the catastrophe did indeed happen!
Professor Duby said the way out of this situation might be to have a law on the rights and obligations of scientific experts. Such a law could enshrine the principle of "due diligence" as it currently applies to business experts.
In the opinion of Lord Justice Stuart Smith, an expert in personal injury, contract and insurance cases, British courts should not make findings of negligence against professionals without it being properly established that they were negligent. He would, he said, deplore a situation in which scientists could be sued and prosecuted for scientific error.