A hard case to prove?

A French judge ruled in December that Continental Airlines and one of its mechanics were guilty of involuntary homicide for their role in the 2000 crash of an Air France Concorde jet that killed 113 people. Hot on the heels of the ruling, the following week Continental Airlines confirmed that lawyers had filed its appeal against the verdict.

The previous month saw news that lawyers were preparing criminal suits for negligence and involuntary homicide against Servier, France’s second biggest pharmaceutical company, in connection with weight loss drug Mediator. This allegedly caused around 500 deaths from heart damage and 3,500 hospital admissions in France.

The amphetamine derivative drug was launched in 1976 and fears concerning the side-effects materialised in 1999. It was banned in Spain and Italy in 2005, never authorised for sale in the US or the UK, but remained on the shelves in France until 2009.

These two recent cases against huge corporations could suggest that involuntary homicide is a fairly new phenomenon. In fact the offence dates back to the French Penal Code of 1810. It’s possible that early prosecutions met with a fair degree of success but certainly in modern times this doesn’t appear to be the case.

Perhaps the most dramatic involuntary homicide investigation – and certainly the one which hit international media headlines - was that surrounding the car crash death of Princess Diana, her companion Dodi Al Fayed and their driver in September 1997. French police arrested photographers and a driver on suspicion of involuntary homicide and non-assistance to persons in danger. But involuntary homicide would appear to be a hard case to prove.

In January 2009, French judges rejected charges of involuntary homicide (and aggravated fraud) against six doctors and pharmacists. The case involved distribution of contaminated human growth hormone to nearly 1,000 French children, more than a hundred of whom later died from, or evinced symptoms of, Creutzfeldt-Jakob disease (CJD). It took place 25 years after the hormone was administered and 18 years after the investigation began. During the course of the investigation, one of those suspected died of old age.

The September 2001 explosion at a Toulouse chemical factory that killed 31 people and injured more than 2,000 was one of western Europe’s biggest industrial disasters of recent years. It was followed in February 2009 by charges against energy company Total’s Grande Paroisse subsidiary, which owned the AZF chemical fertiliser factory, and the plant’s former director, Serge Biechelin, alleging, among other things, involuntary homicide and causing injury and destruction of property (around 30,000 homes and hundreds of businesses in a radius of 3.7 miles were damaged).

&#8220Even where there have been recent successful prosecutions in France - mainly against individuals - it seems to have been difficult to get the sentences to stick

 

Total had paid some €2bn in compensation but without acknowledging any criminal liability, and in fact both the company and its former CEO were cleared of responsibility by the French court later that year. Biechelin was also discharged due to lack of proof – although French prosecutors were reported in November 2009 to be appealing against the decision.

Even where there have been recent successful prosecutions in France - mainly against individuals – it seems to have been difficult to get the sentences to stick. For example, in November 1996 Church of Scientology leader Jean-Jacques Mazier was convicted of involuntary homicide and fraud following the March 1988 suicide of a member who prosecutors said was under financial pressure to pay for Scientology “audit sessions”.

Mazier was sentenced to a three year prison sentence with 18 months suspended and a 500,000 francs fine. On appeal, the entire prison sentence was suspended and it’s possible that the fine reflected more the fraud than the involuntary homicide as other fraud cases were brought against Scientology members at the same time.

In December 2008 an appeal court acquitted then-Rennes regional prison director Alain Jego of involuntary homicide, overturning an April 2008 ruling that held Jego liable for neglecting to prevent an inmate’s suicide.

Involuntary homicide in France is defined as a negligent killing punishable by a fine and/or a prison sentence. In the UK, the equivalent charge would be manslaughter and, in the case of corporate defendants – corporate manslaughter. And it appears that French prosecutors are experiencing the same difficulties as their UK counterparts when it comes to bringing successful prosecutions, particularly against corporations.

The risk is not one that companies on either side of the Channel can afford to ignore. But it will be interesting to see whether the conviction of Continental Airlines and its mechanic still stands following the airline’s appeal.