1. Introduction

In France, very many claims for damages in respect of death or more serious personal injuries have been brought by the injured party in the criminal courts. This prominent and traditional role for the criminal process results from a jigsaw puzzle of different elements. First, the victim of a crime is able to set in motion a prosecution as well as join one started by the public prosecutor, the ministère public (or parquet), participating fully in the process as the partie civile.¹ Secondly, there are a number of advantages for an injured person in claiming in the criminal rather than the civil courts, in terms of cost, relative speed, the quality of the investigation and the nature of the trial itself. Thirdly, there are very broad offences of involuntary homicide and causing personal injuries.² Fourthly, a range of defendants can be included within the criminal process—traditionally, individuals (whether private or those with public office), but more recently private companies and sometimes even public authorities.³ Fifthly, a criminal court’s finding a defendant guilty of an offence determines the issue of fault so as to award damages under articles 1382 or 1383 of the Civil Code, this forming one aspect of a doctrine known as the ‘unity of criminal and civil faults’.⁴

This traditional importance of the criminal process in imposing liability in damages for death and personal injuries was fully reflected in relation to cases involving liability (p.368) for products. Moreover, it was here that the affaire du sang contaminé was most dramatic, affecting public and professional attitudes to liability for products and product safety. It was also in this affaire where some very difficult questions were asked as to the type of offence appropriate to a case of a defendant who supplies a product knowing of its very high risk to life and health: where death results, should this be seen as akin to murder? While in French law the characterisation of a defendant’s offence does not have any direct impact on liability to compensate its victim, it has very important other effects—on the process, on the punishment and on public perception of the seriousness of the crime.

On the other hand, by no means all voices in France have favoured the criminalisation of negligent conduct which causes death or injury nor the link between criminal responsibility and compensation for death and personal injury.⁵ In particular, the French national association of maires, the elected and unpaid heads of the smallest administrative districts, who often found themselves found guilty of involuntary homicide for the slightest ‘speck of fault’⁶ in the exercise of their many powers and duties, campaigned for a ‘decriminalisation’ of their honest efforts, particularly in the provision of public services and the exercise of their powers of safety.⁷ At first maires and some other officials were protected directly by requiring that they could be prosecuted only with official permission (and thereby circumventing the normal role of parties civiles), but this special treatment was swept away by the new Criminal Code of 1994.⁸ However, the political pressure did not go away and two years later it led to legislation which tried to ‘subjectivise’ the fault element required of anyone for the offences of involuntary homicide and causing personal injuries⁹ and then in 2000 to broader legislative reform of the definition of fault for certain cases and of the procedural relationship between criminal and civil liability.¹⁰ These changes have affected and will continue to affect the impact of the criminal law in imposing criminal responsibility for products, though it is unlikely to do so in many cases where the manufacturer’s design or construction of the product or warnings accompanying it are in issue.¹¹ Moreover, while the loi of 2000 has partly broken the so-called ‘unity of criminal and civil faults’, ironically it is likely to increase the importance of the criminal process in compensating death and personal injuries.¹² These reforms can be seen only in the context of the earlier law, so I shall start by looking at the traditional picture and its application to liability for products before looking at their impact.