(B) Offences not special to the product context

In the French context, general crimes of negligent homicide and causing personal injuries play a very important part in the prominence of claims for compensation being brought in the criminal courts by way of action civile.⁴⁰ Here, English law is strikingly different from the traditional French approach, though not quite as far from its approach after reform of the law in 2000.

(I) Murder

In the affaire du sang contaminé, some of the parties civiles argued that the administration of a product to a person knowing that it was highly likely to kill was ‘poisoning’ and so akin to murder, but the courts refused to find the requisite intention to kill in this situation.⁴¹ While the matter has not been tried in the context of the supply of a lethal product, there are also similar types of difficulty in the English law approach to the mens rea for murder. In looking at this law, it is important to realise that, in making their formulations, English judges have very much in mind that they need to be comprehensible to laymen, as they form the basis of questions put by trial judges to juries.

A good starting point is that the requisite intention for murder is satisfied where it was the defendant’s purpose to kill the victim or that he foresaw that death is virtually certain to follow from the act or omission in question,⁴² but English law then adds (some say, unjustifiably) that a person who intends to commit ‘grievous’ (that is, very (p.408) serious) bodily harm and actually causes death is also guilty of murder (this being an example of ‘constructive intention’).⁴³ In R v Maloney⁴⁴ while Lord Bridge was careful to exclude from the mens rea of murder mere recklessness (where an accused foresaw to a high degree of probability that death or really serious injury would result from his act), he accepted that recklessness could provide evidence of the requisite intention from which a jury would be entitled to draw an inference of the existence of intention to kill.⁴⁵ Some writers supported this on the basis that ‘[b]y giving jurors this “elbow-room” in cases where death or serious harm was foreseen as certain, one naturally allows the jury to move from a fact-finding exercise to a strongly evaluative decision about whether the label of murder is appropriate for the killing’.⁴⁶ The current approach is to be found in R v Woollin where the proper direction to the jury was put in terms of being ‘not entitled to [find] the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty (barring unforeseen intervention) as a result of the defendant’s action and that the defendant appreciated that such was the case’.⁴⁷

How do these approaches compare to that taken in French law and how would they apply to facts such as the affaire du sang contaminé? First, putting aside the situation of ‘constructive intention’, there is a striking similarity in the approaches to the élément moral for murder in French law. The court found that the relevant officers of the French National Blood Transfusion Centre were aware that the continued supply of the products for which they were responsible would cause infection with HIV and that this was the causal agent of AIDS which could kill, but that their purpose in permitting the continued supply was saving money.⁴⁸ While the French discussion is complicated by the arguably distinct nature of the crime of poisoning from murder, some jurists consider that knowledge of the deadly nature of the substance administered and an intentional administration of it is sufficient,⁴⁹ which is similar to the approach in R v Woollin since the (known) deadliness of a substance would often make death a ‘virtual certainty’.⁵⁰ The Cour de cassation, however, requires the Cour d’assises to find (in its ‘sovereign assessment’) an ‘intention to kill’, though it permits it to infer an intention to kill from the circumstances.⁵¹ This approach has considerable similarity with that advocated by Lord Bridge in Maloney, as it leaves to the tribunal of fact the question whether an intention to kill should be inferred or (as the House of Lords in Woollin preferred) ‘found’.

There are, moreover, echoes in English discussions of the observations made by the Cour d’appel of Paris in the affaire du sang contaminé which considered that it was (p.409) wrong to infer an intention to kill in a relationship such as in the case of the ‘relationship of a manufacturer of a therapeutic product/doctor/patient’ where there was no ‘relationship of conflict’.⁵² For example, Horder puts the case of a doctor administering to her patient a treatment which itself involves a very high risk of death, but which constitutes the only chance of cure: this would be not be murder, nor indeed would the patient’s death be unlawful, for ‘everything hinges on the doctor’s direct intention’—to kill or to cure.⁵³ The (potential) value of the defendant’s purposive conduct rules out criminal responsibility even in respect of an intentional action which is virtually certain to lead to death (though one may think that where death was a ‘virtual certainty’ a doctor would not undertake such a treatment).

How then would an English court view a case similar to the position of the officer of the National Blood Transfusion Centre in the affaire du sang contaminé, that is, where a defendant’s direct purpose in continuing to supply a product is not to kill its recipients, but to save money, but where he is aware that it is ‘virtually certain’ that a considerable number of its recipients will die as a result? Here, the defendant’s direct purpose was not especially valuable (for example, to attempt to save life or relieve from pain⁵⁴); in these circumstances, an English judge would have to go beyond the direction as to a direct intention to kill and give a Woollin direction, so that the jury would be instructed that they should not convict unless they feel sure that death or serious bodily harm was a virtual certainty (barring unforeseen intervention) as a result of the defendant’s action and that the defendant appreciated that such was the case. On the facts of the hypothetical case, a jury may well be entitled to convict.

Moreover, if we change the facts slightly (but significantly) it becomes apparent that there is a relationship here with manslaughter by gross negligence. Let us take a hypothetical case modelled loosely on the Ford Pinto prosecution in America.⁵⁵ A large manufacturer of motor vehicles markets a saloon car towards the lower end of the market. After some 12.5 million models of the car are put on the market, the manufacturer realises that its fuel system design will cause an estimated 180 burn deaths, 180 serious burn injuries and 2,100 burned vehicles.⁵⁶ It further estimates that the cost to itself of these deaths and damage would be £49.5 million, whereas the cost of recall and replacement of the fuel systems would be £11 per vehicle, i.e. £137 million. The manufacturer therefore decides on a (financial) cost/benefit ratio from its point of view that it would be cheaper to allow the deaths and injuries (and pay damages) rather than to recall the product. In these circumstances, it could be argued that the manufacturer murdered any person who dies as a result of the fuel system of the vehicle in question, for while it was not the purpose of the manufacturer to bring about this result, it was aware that somebody’s death would be the ‘virtually certain’ result of its (p.410) decision not to recall the vehicles, even though this could not be said of any individual person.

However, the question can be made more difficult (and the manufacturer’s position stronger) if we assume that the manufacturers decision was not merely cost-efficient to itself, but also constituted ‘reasonable care’ under the cost/benefit analysis of the tort of negligence (which does not rest merely on financial utility to the defendant, but on an overall assessment of the costs (in terms of finance but also the social utility of the defendant’s conduct as against the risk).⁵⁷ Where a manufacturer or supplier of a product acts reasonably in this sense, but knows that its action will be ‘virtually certain’ to cause someone’s death (even if that person cannot be predicted or identified), is this murder?⁵⁸ The answer should perhaps be no, on the basis that if a person is judged to have acted without negligence, that is, taking all reasonable care that the law requires of a person in the circumstances, it would be wrong to say that he ‘murdered’ a person who died as a result. For it could be argued that the negligence formula is not merely a basis for the imposition of liability in damages: it reflects a judicial assessment of the proper decision to have been made by a person in the defendant’s position and so where a defendant has acted properly, it would be pointless and unfair to punish and deter. How can a defendant’s action in this situation be murder when the relevant example of the lesser offence of involuntary manslaughter requires ‘gross’ negligence?⁵⁹ It may instead, though, be argued that this puts too much weight on the civil law’s understanding of negligence and not enough on the criminal law’s more ‘subjective’ concerns.

However, if the non-negligent manufacturer in the case just outlined should not be considered to have murdered the people who are ‘virtually certain’ to die as a result of his design decisions, one should perhaps openly acknowledge that the reason why the fault element for murder should be restricted in the context of the manufacture and distribution of products to its primary significance of the purpose with which an action is made flows from the nature of that context. In the context of products more generally, the civil law of negligence rests on an assumption that no product can be absolutely safe and where a manufacturer has balanced correctly the considerations to be taken into account in deciding the appropriate level of safety, conduct which implements the resulting view should not be sanctioned solely on the ground that there was a high statistical likelihood of it causing death: a high probability and a likely serious harm are very important factors in deciding negligence, but have to be weighed against the cost (financial and social) of avoidance. Only where a manufacturer’s conduct falls so far short of that proper balance should it be incriminated, a result which can be made in terms of ‘gross negligence’ under the law of manslaughter. On the other hand, the idea that the criminal law allows a manufacturer or supplier of (p.411) a product to take conscious decisions which it is aware are overwhelmingly likely to lead to some peoples deaths remains a very uncomfortable one, as it seems to put far too low a value on human life.