Negligent offences: expert opinion!

Negligent offences: expert opinion!

Is it possible to conclude that a negligent offence has been committed solely on the basis of an expert's statement that a handling error leading to damage is possible?

Jean, Geneva

When an offence is committed, the law distinguishes three main levels of intent. These are: intent, where the perpetrator acts consciously and willingly; wilful intent, where the perpetrator knows that the result of his or her action is possible and accepts it; and negligence.

Under Article 12 of the Criminal Code (CC), unless the law expressly provides otherwise, only the perpetrator of a felony or misdemeanour who acts intentionally or with intent is punishable. Thus, in general, negligence is not punishable unless specifically provided for by the legislator. Examples of offences punishable by negligence include negligent homicide and negligent bodily harm, while there is no such thing as negligent theft.

Anyone who commits a felony or misdemeanour without realising the consequences of his or her act or without taking them into account, because he or she failed to take the precautions required by the circumstances and by his or her personal situation, is acting negligently. This is known as culpable short-sightedness. Negligence is therefore analysed on a case-by-case basis, according to all the elements of the case; it can be a source of mitigation of the penalty, when the judge hesitates between possible wilfulness and negligence, or, on the contrary, it can form the basis of the penalty when the balance tips between an acquittal and liability due to negligence.

For example, in the case of a motorist who hits a pedestrian, it will be necessary to determine whether the driver was short-sighted in view of the circumstances of the accident (in particular by breaching a road traffic rule, which includes not only compliance with speed limits but also the obligation to remain in control of the vehicle) and whether he should be sentenced for his negligence at the wheel, or whether he was a reckless driver who deliberately took the risk of injuring or killing someone.

Article 139 of the French Code of Criminal Procedure (CPP) states that all lawful means of evidence, capable of establishing the truth, may be produced in court. Thus, the testimony of an expert or a third party is a form of evidence in the same way as a DNA sample. The judge is free to assess the evidence gathered on the basis of his or her own personal view of the proceedings as a whole, which enables him or her to decide how much weight to give to statements made in court or to the police, depending on the elements of the case he or she has to decide. It is therefore quite possible for a criminal conviction to be based primarily on expert opinion.