The legal status of Uncertainty

Abstract

Abstract. An exponential improvement of numerical weather prediction (NWP) models was observed during the last decade (Lynch, 2008). Civil Protection (CP) systems exploited Meteo services in order to redeploy their actions towards the prediction and prevention of events rather than towards an exclusively response-oriented mechanism1. Nevertheless, experience tells us that NWP models, even if assisted by real time observations, are far from being deterministic. Complications frequently emerge in medium to long range forecasting, which are subject to sudden modifications. On the other hand, short term forecasts, if seen through the lens of criminal trials2, are to the same extent, scarcely reliable (Molini et al., 2009). One particular episode related with wrong forecasts, in the Italian panorama, has deeply frightened CP operators as the NWP model in force missed a meteorological adversity which, in fact, caused death and dealt severe damage in the province of Vibo Valentia (2006). This event turned into a very discussed trial, lasting over three years, and intended against whom assumed the legal position of guardianship within the CP. A first set of data is now available showing that in concomitance with the trial of Vibo Valentia the number of alerts issued raised almost three folds. We sustain the hypothesis that the beginning of the process of overcriminalization (Husak, 2008) of CPs is currently increasing the number of false alerts with the consequent effect of weakening alert perception and response by the citizenship (Brezntiz, 1984). The common misunderstanding of such an issue, i.e. the inherent uncertainty in weather predictions, mainly by prosecutors and judges, and generally by whom deals with law and justice, is creating the basis for a defensive behaviour3 within CPs. This paper intends, thus, to analyse the social and legal relevance of uncertainty in the process of issuing meteo-hydrological alerts by CPs. Footnotes: 1 The Italian Civil Protection is working in this direction since 1992 (L. 225/92). An example of this effort is clearly given by the Prime Minister Decree (DPCM 20/12/2001 "Linee guida relative ai piani regionali per la programmazione delle attivita' di previsione, prevenzione e lotta attiva contro gli incendi boschivi – Guidelines for regional plans for the planning of prediction, prevention and forest fires fighting activities") that, already in 2001, emphasized "the most appropriate approach to pursue the preservation of forests is to promote and encourage prediction and prevention activities rather than giving priority to the emergency-phase focused on fire-fighting". 2 Supreme Court of the United States, In re Winship (No. 778), No. 778 argued: 20 January 1970, decided: 31 March 1970: Proof beyond a reasonable doubt, which is required by the Due Process Clause in criminal trials, is among the "essentials of due process and fair treatment" 3 In Kessler and McClellan (1996): "Defensive medicine is a potentially serious social problem: if fear of liability drives health care providers to administer treatments that do not have worthwhile medical benefits, then the current liability system may generate inefficiencies much larger than the costs of compensating malpractice claimants".