You don’t need to be a brain scientist to see that lawyers would benefit from a more sophisticated understanding of the human brain. Neuroscientists seek to determine how brain function affects human behaviour, and the system of law regulates how those humans interact with each other. According to a new Royal Society report, lawyers and neuroscientists should work together more.
The report, Neuroscience and the law, argues that neuroscience has a lot to offer the law, for example:
might neuroscience fundamentally change concepts of legal responsibility? Or could aspects of a convicted person’s brain help to determine whether they are at an increased risk of reoffending? Will it ever be possible to use brain scans to ‘read minds’, for instance with the aim of determining whether they are telling the truth, or whether their memories are false?
One aspect of the report which has been widely reported is the questions it raises about the age of criminal responsibility, which is currently age 10 in the UK. This is important to get right; children should not be blamed for actions if they are not intellectually capable of understanding or controlling them. Some argue that the age of responsibility, which is low compared to many other jurisdictions including Scotland. should be raised. The report offers a fascinating insight into the issue:
Neuroscience is providing new insights into brain development, revealing that changes in important neural circuits underpinning behaviour continue until at least 20 years of age. The curves for brain development are associated with comparable changes in mental functioning (such as IQ, but also suggestibility, impulsivity, memory or decision- making), and are quite different in different regions of the brain. The prefrontal cortex (which is especially important in relation to judgement, decision-making and impulse control) is the slowest to mature27. By contrast, the amygdala, an area of the brain responsible for reward and emotional processing, develops during early adolescence.
The report suggest that a more individually tailored approach may be necessary:
There is huge individual variability in the timing and patterning of brain development. This could be taken to imply that decisions about responsibility should be made on an individual basis at this stage of development.
All the talk of mind-reading and predetermination of criminal behaviour sounds like science fiction, but brain science is now sufficiently advanced – and advancing rapidly – that the legal system must do more to incorporate the lessons it offers.
And, in many ways, this is already happening. The report refers to 722 US criminal cases in which neurological or behavioral genetics evidence has been introduced in criminal cases on behalf of a criminal defendants in the past 7 years. This includes 449 murder case; things have clearly moved on a bit since the “Twinkie defence“.
So whether lawyers like it or not, neuro-scientific evidence is being increasingly used in courts, and it would therefore be sensible to learn more about it, and quickly. This is more likely to lead to evolution not revolution, with lawyers and judges understandably suspicious of science which seeks to explain away human behaviour, and reduce the role of human agency and free will, principles upon which the system of law is founded.
But the report does not recommend large-scale changes to the legal system, but rather that formal and regular interactions are set up between neuroscientists and lawyers through:
- an international forum,
- a better system for identifying quality expertise,
- the incorporation of an introduction to neuroscience and behavioural genetics into law degrees,
- training being made available for lawyers and probation officers
- further research in various key areas.
This all sounds very sensible. Neuroscience may not revolutionise the law, which is likely to retain the basic understanding of human agency and free will that has existed for centuries. But it may help us refine that understanding. If that means revising the age of criminal responsibility or improving the way the criminal justice system does risk assessment, then it may just make our legal system a bit cleverer.
Joanna Glynn QC of 1 Crown Office Row was a reviewer for this report but is not the writer of this post.
Sign up to free human rights updates by email, Facebook, Twitter or RSS