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Law and Neuroscience

Picture of brain pathways

Recent years have seen enormous advances in scientific understanding of the brain and behaviour. Academics within the Law School, including Paul Catley, Dr. Lisa Claydon and Dr. Stephanie Pywell, are examining the use and potential use of evidence from neuroscience and associated brain sciences within the justice system. They are collaborating with neuroscientists, psychologists and psychiatrists to understand the reliability of scientific claims, and working with lawyers worldwide to understand how science is being used in different jurisdictions and to recommend best practice.

  • Is memory reliable?
  • Can brain imaging reveal whether someone is lying or concealing the truth?
  • Will brain imaging enable us to identify whether someone is in chronic pain and the extent of that pain?
  • We know that the brain develops over time, but how should this affect attributions of criminal responsibility?
  • Should we use knowledge drawn from brain imaging to assess the risk someone poses to society?
  • When does enhancement become unfair competition?
  • Will new understandings of how cognition drives behaviour alter our understanding of criminal responsibility?

These are just some of the many fascinating and important questions for the law that are being raised by developments in the brain sciences.

Our place in developing the law

The Open University Law School is the leading UK centre for the study of the legal implications of advances in the brain sciences. Emerging knowledge from cognitive neuroscience is affecting our understanding of agency, responsibility and capacity. It raises questions about the law’s approach to mental condition defences and the age of criminal responsibility. It challenges the court’s approach to the reliability of memory evidence, and offers opportunities for more informed decision making in relation to end of life and treatment decisions. It presents challenges for the courts, politicians and society more generally when scientists claim to be able to use brain imaging to detect memories and/or lies. It also may hold the potential to detect implicit bias.

Neuro-enhancement raises questions about fair competition, not just in sport, but in all walks of life. In the future, brain imaging might enable accurate assessments as to whether someone is in pain and the extent of that pain – potentially invaluable information in personal injury and disability claims.

Recently, members of the Law School have been discussing all these issues with leading lawyers and members of the Supreme Court, planning which areas we should prioritise for further investigation.

Dr. Lisa Claydon and Paul Catley, together with colleagues from Canada, the Netherlands, Singapore and the USA, are undertaking comparative studies into the use of neuroscientific evidence in the courtroom in different jurisdictions. Initial research has focused on the use of such evidence by those accused of criminal offences. Lisa is particularly interested in how the brain sciences can impact on legal understanding of agency and responsibility, and has been conducting a £200,000+ Arts and Humanities Research Council project on this topic with Professor Patrick Haggard of the Institute of Cognitive Neuroscience at UCL. Both Paul and Lisa have been looking out how the brain sciences can inform our understanding of mental condition defences. Paul has also been working with Dr. Stephanie Pywell on legal implications arising from the potential for brain imaging to facilitate communication with those in minimally conscious states. This work overlaps with work Lisa has undertaken on the court’s responses to the use of brain computer interfaces to enable patients with locked in syndrome to appeal to be allowed to die.

We believe it is essential to work with scientists and lawyers from around the world rather than in isolation. Lisa was a member of the Royal Society panel that reported on Neuroscience and the Law in 2011 and a member of the International Neuroethics Society’s Programme Committee. With colleagues from a range of disciplines and from around Europe, Paul and Lisa jointly founded the European Association for Neuroscience and Law. The Association has worked with the Italian judiciary and with the Ministry of Justice in the Netherlands amongst others to share knowledge of the issues reaching the courts and to identify best practice. The Association has not only brought experts together, but has also worked to foster links between young researchers through its International Postgraduate School on which Paul and Lisa have taught since its inception in 2011. The School provides an opportunity for graduates from the sciences and from law and philosophy to learn more about this intersection between law and science.

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