Special Issue on Criminal Responsibility and Neuroscience

Authors: Ed Johnston and Hannah Wishart

Introduction to the Special Issue

Over the course of the last decade neuroscience has become interwoven with law; this has become a worldwide phenomenon, owing to advancements in neuro technologies and discoveries. As a result, jurisdictions have sought to integrate neuroscience within criminal justice systems due to the potential and promise of exploring the brain of the defendant and the potential insight to the mentality of the defendant. Various international jurisdictions, most prominently, United States, Canada, India and Australia have used neuroscience in an attempt to influence the minds of policy makers to challenge current legislation and allow the law to be assisted by neuroscientific technology.

Our domestic legal system (England and Wales) is only beginning to consider the implications neuroscience can have on our current legal practices. This subsequently provides academics and legal scholars with the opportunity to explore how neuroscience impacts the law of England and Wales. This will be achieved by presenting arguments that raise interesting ideas about the use of such technology.

The Contributors Involved

Paul Catley BA, MA, MA (Ed), FHEA research focuses on the use and potential use of neuroscientific and genetic evidence in the courts and within the justice systems more widely. Paul is interested in discovering current practice and identifying best practice. Paul is currently involved in a project with colleagues in the United States, Canada, Singapore and the Netherlands to investigate the use of neuroscientific evidence by defendants in criminal trials. The project will be looking at the use of such evidence in five jurisdictions between 2005 and 2012. Paul's focus is the use of such evidence in England and Wales. Preliminary findings have been published in the Journal of Law and the Biosciences.

Paul's research interests are wide ranging and include: the use of neuroscientific evidence to detect memory/lies, the use of brain scanning to inform treatment and end of life decisions and the appropriate approaches of the law in cases where brain impairment / brain injury may impact on responsibility / capacity.

Dr Lisa Claydon is a Programme Committee member of the International Neuroethics Society and the Sectretary to the European Association for Neuroscience and Law. In 2011 Lisa worked with the Royal Society on its module entitled Neuroscience and Law. Together with my colleague Paul Catley of The Open University Lisa examines the use of neuroscientific evidence in the appeal courts in England and Wales over a ten-year period. The same research is being mirrored by colleagues from five other jurisdictions: the United States, Canada, the Netherlands, Singapore and Malaysia.

Lisa is particularly interested in mental conditions and other defences which are based on excusing conditions. She is actively researching the intersection between cognitive neuroscience and the criminal law. Lisa was involved in an AHRC funded project entitled 'A Sense of Agency' which is led by Professor Patrick Haggard of the Institute of Cognitive Neuroscience at University College London. This project examined neurocognitive and legal approaches to a personal sense of agency.

Ed Johnston LLB (hons), LLM (Criminal Justice), FHEA is a Senior Lecturer in Law and is responsible for teaching on a number of different modules across the LL.B degree. He is the module leader of two modules - Penology and Criminal Justice. Further to this, he teaches on Criminal Law, Sexual Offences and Offending: Criminal Justice Responses and the Intervention Initiative.

Alongside teaching, Ed is writing a PhD in the field of Criminal Justice. The thesis examines the role of the defence lawyer in the modern era. I have created a 'classic conception' of the defence lawyer and an empirical study will ascertain if the role needs to be re-conceived in light of the obligations imposed primarily by the Criminal Procedure Rules. 

Ed is very interested in research in field of neuroscience and law, primarily looking at how neuroscience intersects with criminal law and the implications such advances hold for the criminal justice system in England and Wales.

Caroline Roediger Mag. Iur. is the Research Fellow on the AHRC-funded Research Project "Sense of agency and responsibility: integrating legal and neurocognitive accounts" led by Professor Patrick Haggard, University College London (2014-2015). Her research interests include Biomedical Law, Neurolaw, and Ethics.  She studied at the Universities of Bonn (Germany) and Strasbourg (France) and worked as a Research Associate at the Institute of Science and Ethics of the University of Bonn (2009-2014).

Dr Elizabeth Shaw PhD, LLM (dist.), LLB (hons) joined the law school at Aberdeen University as a lecturer in September 2012. She received her LLM by research (on the topic of the criminal responsibility of psychopaths) and LLB from Aberdeen University. She undertook her PhD at Edinburgh University on the implications of free will scepticism for the criminal justice system and successfully defended her thesis in November 2013. Her research interests are interdisciplinary, involving criminal law, philosophy and neuroscience.

Hannah Wishart LLM (Criminal Law), LLB (hons) is a 2016 Visiting Fellow at the University of Warwick law school. She is a PhD candidate at the University of Manchester law school examining the extent to which adolescent should be held responsible for wrongdoing. She holds a LLM in Criminal Law. Hannah teaches across the law and criminology programmes at the University of Manchester in juvenile justice and criminological research methods.

Hannah has published in the Journal of Criminal Law and internationally in the Journal of Neuroethics (forthcoming).  Her research interests are youth justice, criminal law and neuroscience. Hannah is co-editor of the special issue.

An Overview of the Papers in The Special Issue

This Special Issue contains five peer-reviewed contributions from scholars from the United Kingdom and Germany, all of whom are research active in the field of NeuroLaw. Ed Johnston (University of the West of England) offers a critical examination of the potential implications of using neuroscientific technology in order to detect lies in England and Wales. The paper examines international issues with the intersection of neuroscienctific evidence and criminal procedure.

In her paper, Hannah Wishart (University of Manchester) examines how the criminal law of England and Wales makes allowances for cognitive immaturity in the framing of criminal responsibility. The article argues that neuroscience limitedly illustrates that adolescents potentially lack mental capacity, however the neuroscientific understanding that adolescents lack competence does support Lord Dholakia's Private Member's Bill to raise the minimum age of criminal responsibility to twelve years.

Dr. Lisa Claydon (Open University) and Caroline Roediger (University of Manchester) offer an exploratory paper on the partial defence to murder of loss of control in England and Wales. The paper examines a number of international approaches to the issue of a defendant killing their abusive partner. The paper centers on how the English courts interpret a fear of serious violence and whether a jury can consider the mitigating factors surrounding domestic violence.

Dr. Elizabeth Shaw (University of Aberdeen) assesses whether psychopaths should be held criminally responsible when they lack the ability to empathise. The paper focuses on the neurological and psychological techniques currently used to establish if psychopaths can appreciate the wrongfulness of their criminal conduct.

Paul Catley (Open University) closes the Special Issue with an investigation into the potential future uses of neuroscience and how the technology may reshape the law of England and Wales. This is carried out through lens international scholarly interest in the fields of law and neuroscience. Paul explores how neuroscience may impact the legal areas of personal injury, criminal defence, free will and neuro enhancement.