Autonomous Vehicles and the Prospective Change in Criminal Liability

Introduction

Hundred years ago people used to ride horses, and the typical manner of every-day personal transportation confined to vehicles with no power-engine. As of October 2017, the California Department of Motor Vehicles adopted rules concerning the allowance of autonomous cars to be tested and deployed on public roads. The Department released its revised regulations governing the safe deployment of autonomous vehicles on public roads and after a short public comment period, those new rules will be submitted to the state government, which will then begin enforcing them sometime in the middle of 2018. Therefore, the substantive enhancement of self-driving cars will result in the use of those vehicles in our every-day lives soon. The reason for this situation is probably that the „introduction of self driving cars promises an increase of safety in road traffic by taking the most accident prone factor out of the loop, the human driver”.¹  As it is apparent in other fields of technology (i.e. IT applications) people are receptive to utilize innovations, and the law shall be also adaptive to those changes in society.

The rapid change in transportation technology and the everyday use of self driving cars will constitute a landmark in the conception of criminal liability. As a preliminary remark we must emphasize, that the scope of this article does not embed civil law matters of the topic at stake, special concerns of civil law- and criminal law liability overlap though. As Graham Virgo puts it critically, the civil law and the criminal law mutually interlink and the criminal law cannot be viewed as an isolated island, since the legal system shall be conceived as a unified and consistent entity. Thus criminal lawyers shall take account of those civil law provisions on tort liability when analysing the principles of criminal responsibility, and vice versa.²

Within the auspices of the Centre for the Cooperation of Higher Education and Industry (FIEK), the Széchenyi István University of Győr has been doing a thorough research on the matters of autonomous vehicles since 2016. As participants of that research programme, in analyzing the practical problems of the use of autonomous vehicles, we endeavour to reveal those substantive criminal law issues concerning the prospective change in the principles of criminal liability.

Thus, the aim of this article is to highlight some prospective legal tendencies and solutions to the question: if robots cause harm, who is to blame?

The basic concepts of criminal law in terms of

autonomous vehicles

Prior to those matters of criminal liability we firstly need to give a historical and philosophical framework to our research. For a long time it was almost impossible to reasonably think of artificial intelligence, intelligent robots and autonomous vehicles as reality. The theme was only revealed by sci-fi artworks, such as Asimov „I, Robot” and Clarke „Space Odyssey”. One of the first philosophic attempts is of René Descartes’ in the 17^th century, alleging that if there were machines completely identical to human beings, we could even make distinction between them and us by recognizing that machines cannot express their thoughts, also machines cannot act consciously.³

Ironically, Hubert Dreyfus reaffirmed this approach in his opinion given in the early 1990’s by saying that it has become apparent that the artificial intelligence cannot reach the level of human cogitation.⁴  Nevertheless, nowadays’ researches on artificial intelligence suggest that by its ability of self-development, those sceptic remarks on artificial intelligence shall be revised.

As to the matter of self-driving cars, their first appearance was in the 1939 New York World Fair where the General Motors introduced the Futurama – a miniature of a city – with cars communicating by radio-waves.⁵  Throughout the past seventy years technology reached the level to deploy and introduce self-driving cars on real roads, as indicated above by the California example.⁶

We must emphasize that the introduction of autonomous vehicles imply several social and economical benefits. The most important concern is the real possibility to minimize the number of traffic accidents. One of the latest publications suggests that the average 41.000 lethal traffic-accidents might be reduced to cca. 200 per year in the USA should autonomous vehicles deployed widely.⁷

Autonomous cars can be easily used to logically organize the traffic itself. As a Research Paper of the University of Michigan Public Law and Legal Theory introduces, the so-called V2V technology is applied to enhance the communication amongst the self-driving cars by sharing the current traffic information in order to avoid places of traffic-jams and accidents.⁸  As another social benefit disabled or elderly people could also participate in traffic by using self-driving cars. Employers may also be motivated to apply self-driving technology, since autonomous trucks can be run through 24 hours of the day without having to provide for bait or rest-day for the driver.

This latter remark brings us to those possible social risks of the deployment of autonomous vehicles. Workplaces for human beings may disappear by the mass application of self-driving technology. Nevertheless the technology itself implies the risk of cyber-terrorism, since the supervision system of self-driving cars is internet-based.

As to the concept of autonomous vehicles, the U.S. Department of Transportation established SAE International’s Levels of Automation for Defining Driving Automation. Also the National Highway Transportation Safety Administration (“NHTSA”) in its 2013 Preliminary Statement established five levels of vehicle automation.⁹  The total automation is based on the so-called SLAM-technology (simultaneous localization and mapping) which consequently maps the car by its geographical position.

In the light of the SAE categories and those definitions of the NTSHA the levels of autonomous vehicles range from zero to Level5 as follows: level zero means no automaticity, since all the manoeuvres are carried out by a human driver. In the case of Level1 cars an automatic system helps the driver in some driving features, such as steering or parking. Level2 cars are able to obtain certain driving manoeuvers automatically by an automatic system, such as the ACC (adaptive cruise control) technology. The remarkable difference is between Level2 and Level3 systems, since Level3 contains not only the successful completion of the manoeuvre but the check of it as well. At this level, the human driver shall be able to take control of the vehicle at any moment.¹⁰  At Level4 the automatic system is able to carry out and control those tasks of driving but only in certain driving-situations, whilst Level5 cars have the same driving abilities as an average human driver.¹¹

In the light of the above conceptions we need to rethink those basic elements of crimes, how they can be applied in case of autonomous vehicles. Firstly, the concept of a perpetrator of a crime has been conceived as a human being. Usually national criminal laws compose definitions of crimes by using “who”, “whoever”, etc. as the indications of the perpetrator. Thinking of the autonomous vehicles, traffic crimes will not be perceived as actions committed by human agents. In this conceptualization the concept of certain crimes’ perpetrators shall be revised. Generally speaking, offences contain criminal behaviour manifesting as acts or omissions. In terms of the autonomous vehicles actions and omissions cannot be associated to those self-driving systems steering and moving the car. The conduct of a crime does not mean a human act any more.

Autonomous vehicles and criminal liability

As we set forth above, generally speaking some features of the civil law and criminal law liability overlap. Therefore, before analysing those matters of criminal law liability for the damages caused by autonomous vehicles, first we need to enlight certain concerns of the civil law (tort law) responsibility.

A civil law-related research distinguishes between the liability of the automated vehicle licence holder and the manufacturer.¹²  Taking account of the Hungarian civil law, which has German roots, there are three forms of civil law responsibility in the Act V of 2013 on the Hungarian Civil Code to be taken into consideration in terms of damages revealing throughout the work of autonomous vehicles. Beside general principles and rules of warranty (Articles 6:159-170 of the Hungarian Civil Code) we must take into consideration the strict liability form for highly dangerous activities (Article 6:535). This latter form of civil law responsibility almost completely excludes exculpation of the liability for damages emerging within the field of dangerous activity.¹³  Finally, as a form of strict liability, those rules concerning product liability are also of importance in terms of self-driving cars, provided for in Articles 6:550-559 of the Hungarian Civil Code.

Apparently, the civil law adjudication is remarkably easier of possible damages emerging from the application of autonomous vehicles than that of criminal law methods. Civil law responsibility is underpinned by objective (strict) forms of liability based on the principle of neminem laedere which has consistently been reiterated in judicial practice as well.

The criminal-law adjudication of the liability for damages revealed through the application of self-driving vehicles is much more sophisticated than that of civil law. In the field of criminal law, as a general rule there is no presumption of unlawfulness of the act, like in the case of strict liability tort cases. Another pattern of criminal law is that throughout the criminal procedure one must prove the material wrongfulness of the act, as well as the personal guiltiness and culpability, and finally the responsibility of the defendant to reach conviction. Thus, the lack of the presumption of unlawfulness of the act in criminal law automatically puts the burden of proof to the prosecution in terms of the perpetrator’s personal liability.¹⁴

The above fact entails that one must consider whether those elements set forth in the definition of crime (Hungarian Criminal Code, Article 4.) are completely present. Prospective changes in application of legal definition of the statutory definition of crime might be rethought in terms of autonomous vehicles, since that legal definition determines offences as actions (or omissions). Concerning  damages, caused by self-driving cars, innovative solutions shall be found also within the scope of legal defences (i.e. legal justifications and excuses), as well as  examples of vicarious liability. Concepts of wilfulness, recklessness and negligence, and other elements of mens rea shall also be revised. We must also take account of the problematic of personal qualification (i.e. what are those statutory personal circumstances to be attached to perpetrators for punishability). Finally, criminal law has to afford special attention to those background provisions, such as that of administrative law, which provide for the in-detailed rules of criminal law framework.

The traditional flow-sheet for criminal responsibility presupposes that a natural person commits a human action or omission and that the court declares the personal liability of the human perpetrator and applies criminal sanctions. Bearing in mind the SLAM technology of autonomous vehicles, we must emphasize that those methods of the above criminal law flow-sheet can only be reasonable up to Level3 cars, since there is no “human” action and human driver from Level4 onwards. Thus, one of the most important questions is who to be blamed for those damages revealing application of criminal law.

It looks weird in continental legal systems to put the question whether the autonomous car itself shall be a subject of criminal responsibility.¹⁵  Apparently, within nowadays’ criminal law there is only negative answer for that question, since criminal responsibility is underpinned by human actions and personal culpability. Nevertheless, theoretical concerns of robots’ liability are still interesting. As John Locke conceived, we can consider whatever a human entity which has autonomous will. Having autonomous will means to comprehend the core of the rules and to have the ability to be happy or sad.¹⁶  Another identical approach is that of Immauel Kant’s. In his Critique of Practical Reason he reasoned that a human being is conscious in terms of his existence and liberty and knows that the only reason for his actions is himself. Therefore, human beings are conscious of having the possibility to abstain from certain actions and the fact that not doing so may entail their liability.¹⁷  Finally, one of the examples of the latest legal literature is that of Sabine Gless’, Emily Silverman’s and Professor Thomas Weigend’s, „If Robots Cause Harm, Who is to Blame?”. In their article their suggested “robots, in short, are incapable of understanding the meaning of punishment and therefore cannot draw a connection between anything ‘done to them’ and their prior fault.”¹⁸  In sum: within nowadays’ legal constructions we can exclude the possibility to set criminal liability to an autonomous vehicle itself, however in the light of technological enhancement, this opinion may become overridden.

All in all, the vehicle itself cannot become a subject of criminal liability therefore we need to pose the question who to be blamed for those possible damages. Taking into consideration those specific legal adjudication of traffic crimes, based on Hungarian criminal law, the normal method of criminal responsibility is to be applied for the perpetrator (natural person) as long as the offence is committed, consequently in case he actually drives the car at stake. Autonomous vehicles do not need to be driven all the way. Consequently, one of the possible solutions for the above legal problems of criminal liability, the concept of a driver in traffic rules shall be amended in order to consider the person as a driver who sets the car into self-driving mode or the owner of the car (“man behind the machine”).¹⁹  This legal construction is applied in some of the member states of the USA, such as Nevada, Texas, and Michigan, although it would be quite hard to implement the above construction for criminal responsibility into the German-rooted continental criminal law systems: certain concerns of causality and those concepts of wilfulness, recklessness and negligence would be remarkably hard to prove.

The prospective changes in the consideration of criminal responsibility in terms of autonomous vehicles reveal the so called corporate liability however other forms of liability without personal guiltiness is forecasted. A prospective private-law-like strict liability may reveal as a form of criminal responsibility, whereto no wilfulness or recklessness is needed to be proven but only the fact, who was the actual owner or licensed holder of the car itself.

The so-called vicarious liability forms may also be reign, bearing especially in mind that that form of criminal responsibility has already built in the text of the Hungarian Criminal Code in case of certain offences, wherein directors’ responsibility is set per se, should their employee commit an offence.

As Article 293 paragraph (4) of the Act C of 2012 on the Hungarian Criminal Code reads:

“The director of an economic operator, or any person working for or on behalf of the economic operator vested with authority to exercise control or supervision shall be punishable according to Subsection (1), if the person working for or on behalf of the economic operator commits the criminal offense defined in Subsections (1)-(3) for the benefit of the economic operator or on its behalf, and the criminal act could have been prevented had he properly fulfilled his control or supervisory obligations.”

Article 397 of the Hungarian Criminal Code contains a specific economic crime with the title: Omission of Oversight or Supervisory Responsibilities in Connection with Budget Fraud. That offence apparently manifests directors’ criminal liability for their employee as follows:

„The director of an economic operator, or a member or employee with authority to exercise control or supervision, if the member or employee fails to discharge the obligation of exercising control or supervision, and thus makes it possible for the member or employee of the economic operator to commit the budget fraud within the framework of their respective functions, is guilty of a felony punishable by imprisonment not exceeding three years.”

The liability for those damages caused by self-driving cars may be associated to several traffic crimes, nevertheless we suggest drafting a specific offence sui generis for those actions and omissions which entail criminal responsibility in terms of autonomous driving systems. Finally, one must take account of the category of criminal law justifications when deciding over criminal responsibility for autonomous vehicles. In this area those justifications of error, justifiable defence²⁰  or necessity as justification²¹  may be of importance.

Conclusion

Bearing in mind that rapid change of technological area, autonomous vehicles will unequivocally applied extensively. Since secure traffic and transport are of special importance in every society, the mass deployment of self-driving cars is firmly positive. Legal systems shall be receptive to these social changes, we must emphasize though that it is not only and not principally criminal law to use as means to react societal problems stemming from modernization.

Today’s separate branches of law such as criminal law and private law, undeniably has been converging.  The emergence of strict liability in terms of criminal cases is a hallmark of that convergence. Yet, legislator shall be aware of and remain within the issue and essence of those separate fields of law. Therefore, legislation shall abstain from implementing legal constructions and concepts which are not in line with the system of that separate branch of law.

A prospective change and paradigm-shift may be forecasted in terms of classical perception of criminal law. Those new forms of activity which result in remarkable damages and are to be considered dangerous to society will not be easy to be adjudicated in that manner what we apply today. Therefore, inventing new routes is inevitable in dogmatics of criminal liability.