L'Aquila Earthquake Conviction Overturned; Analytical Responsibility

The seven earthquake experts who were convicted of manslaughter in the wake of the L'Aquila quake in 2009 have had their convictions overturned.  This will be generally welcomed by scientists and other analysts because of the concern that legal risks would deter honest enquiry.  At the time of the original conviction, medical physicist Professor Malcolm Sperrin was quoted as saying that: "if the scientific community is to be penalised for making predictions that turn out to be incorrect, or for not accurately predicting an event that subsequently occurs, then scientific endeavour will be restricted to certainties only and the benefits that are associated with findings from medicine to physics will be stalled."

This is undoubtedly a valid concern.  But should analysts be entirely exempt from legal redress?  The analyst's role is to inform decisions by identifying relevant outcomes and assigning probabilities to them, via collecting and processing information.  Analysts add value by giving decision-makers an accurate picture of their decisions' likely consequences, so that their decisions under uncertainty can be well-informed.  Like other practitioners - GPs, financial advisers, and engineers, for example - their work has a practical and (in theory) measurable impact.  It is difficult to argue consistently that analysts should as a matter of principle be entirely protected from legal responsibility for their work.

"You will destroy a great empire..."

In the UK, however, the idea of scientific or analytical responsibility in general has not been sufficiently tested for there to be a clear legal position.  The government has issued principles governing scientific advice for policy but these are primarily ethical and relate to the motives of the advisers - conflicts of interest and so on - without touching on any requirement for methodological rigour.  Is it possible to imagine a legal code for analysts, failure to adhere to which might lead to culpability for negligence?  There are it seems to me two main problems with any project to build a notion of responsibility for analysts that could operate legally: first, that of measuring an analyst's performance in the first place, and second, that of establishing that they had a causal role in any wrongs incurred.

The first problem is that of ascertaining the extent to which an analyst was doing a bad enough job as to be regarded as negligent.  It isn't a hopeless endeavour to try to measure some aspects of an analyst's performance, as the Good Judgment Project has demonstrated.  But there are other key aspects of analysis - in particular, the generation of novel hypotheses or identification of new scenarios - for which we must almost entirely rely on analysts' brains as black boxes.  Could failure of imagination ever be proved negligent?  It's difficult to imagine how, given the obscurity of this kind of creative analytical activity.

The second problem is that of establishing an analyst's impact on a decision-maker.  It is that any given decision depends not just on analysis but on a range of other factors, including the objectives of the decisionmaker, their appetite for risk, their resources and constraints and so on.  To prove civil negligence, a claimant must establish that their damage would not have happened but for the defendant's actions.  This would be hard to prove for most decisions.  To prove criminal negligence or malfeasance on the part of an analyst would seem to require a standard of proof that was higher still.

Having said all this, analysts of every kind want to have impact, and to be taken seriously.  The idea of analysis as a distinct from domain expertise is a new one, however, and to some extent we are at the birth of the profession.  There is room for a code of practice for analysis in general, even if building a legal framework around it would be difficult.