Abstract
This chapter examines the use of neuroscientific evidence in the courts of England and Wales. It considers the breadth of use which has been made of this evidence. In particular it examines the use of this evidence in cases where the capacity of the legal actor has been questioned. This may apply in evaluations of criminal responsibility and in a civil context in assessing capacity to perform legally meaningful actions such as the making of wills. Consideration is given to what this evidence adds to determinations of whether individuals are in a persistent vegetative state in particular in relation to the withdrawal of treatment. This chapter looks at the use of expert evidence in court and briefly considers proposed changes. Finally the chapter considers how neuroscientific evidence may be used in the future and also whether it has wider application in the criminal and civil justice systems.
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Notes
- 1.
It is common to refer to English law and not to English and Welsh Law. Accordingly, references to English law should be read as applying to the law of England and Wales.
- 2.
By virtue of Section 2 of the 1998 Act courts are obliged, where appropriate, to take into account the jurisprudence of the European Court of Human Rights.
- 3.
Goddard LJ stated: ‘generally speaking, all evidence that is relevant to an issue is admissible, while all that is irrelevant is excluded.’ Hollington v. F Hewthorn & Co. Ltd. [1943] KB 587, 594.
- 4.
Police and Criminal Evidence Act 1984 s.78.
- 5.
Civil Procedure Rules r.35.7 courts may direct evidence be given by ‘a single joint expert’.
- 6.
Report of the Royal Commission on Criminal Justice, Cm 2263 (1993) ch.9, para 74.
- 7.
Civil Evidence Act 1972 s.3.
- 8.
(1993) 97 Cr. App. R. 20, 374.
- 9.
[1997] 1 Cr. App. R. 369 CA.
- 10.
Section 23(1).
- 11.
For example R v H [2007] EWCA Crim 2330 a case where scan evidence of an injury to the eye socket of the victim of a serious assault was used on appeal against sentence to assist the consideration of whether the appellant posed a ‘danger to society’.
- 12.
R v Harris; R v Rock; R v Cherry; R v Faulder [2005] EWCA Crim 1980.
- 13.
R v Harris; R v Rock; R v Cherry; R v Faulder [2005] EWCA Crim 1980, para 270.
- 14.
Bratty v Attorney General for Northern Ireland [1963] AC 386, 413.
‘Whilst the ultimate burden rests on the Crown of proving every element essential in the crime, nevertheless in order to prove that the act was a voluntary act, the Crown is entitled to rely on the presumption that every man has sufficient mental capacity to be responsible for his crimes: and that if the defence wish to displace that presumption they must give some evidence from which the contrary may be reasonably inferred.’ Per Lord Denning.
- 15.
Transcript (QBD, 4th July 1985).
- 16.
[1958] 1 All ER 193.
- 17.
[1958] 1 All ER 193, 194.
- 18.
At that time the Road Traffic Act 1930.
- 19.
[1958] 1 All ER 193, 194 per Goddard LCJ.
- 20.
In the English adversarial system both the defence and prosecution have the right to question each other’s expert witnesses. The judge also has the right to question witnesses.
- 21.
R v Mohammed Sharif [2010] EWCA Crim 1709.
- 22.
Criminal Procedure (Insanity) Act 1964 s 4. A person may be found unfit to plead where they are charged with a criminal offence and the court finds they are ‘under a disability’.
- 23.
The process by which a defendant is found unfit to plead is set out in the Criminal Procedure (Insanity) Act 1964. As amended by subsequent legislation.
- 24.
The Criminal Law Act 1967 Section 6(c) provides ‘if he stands mute of malice or will not answer directly to the indictment, the court may order a plea of not guilty to be entered on his behalf …’. This applies where a defendant refuses or is unable to speak in court.
- 25.
R v Mohammed Sharif [2010] EWCA Crim 1709, para 14.
- 26.
R v Mohammed Sharif [2010] EWCA Crim 1709 para 9 all quotations.
- 27.
R v Mohammed Sharif [2010] EWCA Crim 1709, para 17.
- 28.
R v Mohammed Sharif [2010] EWCA Crim 1709 para 18.
- 29.
R v Mohammed Sharif [2010] EWCA Crim 1709 para 19.
- 30.
R v Mohammed Sharif [2010] EWCA Crim 1709 para 19 ‘ the most likely explanation for the appellant’s medical problems is a previously unrecognised autosomal recessive disorder occurring as the result of multiple consanguineous marriages in his family.’ Similar comments were made about Mohammed’s blindness which were said to be related to an inherited genetic disorder.
- 31.
Coroners and Justice Act 2009
52 Persons suffering from diminished responsibility (England and Wales)
(1) In Section 2 of the Homicide Act 1957 (c. 11) (persons suffering from diminished responsibility), for subsection (1) substitute -
‘(1) A person (‘D’) who kills or is a party to the killing of another is not to be convicted of murder if D was suffering from an abnormality of mental functioning which—
(a) arose from a recognised medical condition,
(b) substantially impaired D's ability to do one or more of the things mentioned in subsection (1A), and
(c) provides an explanation for D's acts and omissions in doing or being a party to the killing.
(1A) Those things are—
(a) to understand the nature of D's conduct;
(b) to form a rational judgment;
(c) to exercise self-control.
(1B) For the purposes of subsection (1)(c), an abnormality of mental functioning provides an explanation for D's conduct if it causes, or is a significant contributory factor in causing, D to carry out that conduct.’
(2) In Section 6 of the Criminal Procedure (Insanity) Act 1964 (c. 84) (evidence by prosecution of insanity or diminished responsibility), in paragraph (b) for ‘mind’ substitute ‘mental functioning’.
- 32.
Homicide Act 1957 s 2
(1) Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of the mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing ….
- 33.
[2005] EWCA Crim 1142.
- 34.
[2005] EWCA Crim 1142, para 8.
- 35.
For a fuller examination of this case and its use of neuroscientific evidence see Claydon L. Law Neuroscience and Criminal Culpability in Current Legal Issues 2010 vol 13 (2011, Oxford University Press) 141–169, 152.
- 36.
[2003] UKHL 10 para 41.
- 37.
[2008] EWCA Crim 1305.
- 38.
(1998) 87 Cr App R 45 (CA).
- 39.
WL 1918514.
- 40.
This raises a further interesting questions namely whether in the future neuroscientific evidence will be admitted which relates to the reliability of witness’ evidence.
- 41.
Bratty v Attorney General for Northern Ireland [1963] AC 386
‘No act is punishable if it is done involuntarily: and an involuntary act in this context – some people nowadays prefer to speak of it as ‘automatism’ – means an act which is done by the muscles without any control by the mind such as a spasm, a reflex action or convulsion; or an act done by one who is not conscious of what he is doing such as an act done while suffering from concussion or while sleepwalking.’ Per Lord Denning.
- 42.
[2001] EWCA CRIM 2698.
- 43.
M' Naghten s Case All ER Rep. (1843) 10 C & F 200, 8 Eng Rep 718, [1843–60] All ER Rep 229 at 233. The M’Naghten Rules ‘… to establish a defence on the ground of insanity it must clearly be proved that, at the time of committing the act the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know he was doing what was wrong.’
- 44.
R v Sullivan [1983] 2 All ER 675 (HL).
- 45.
[2008] EWHC 2859 (Ch).
- 46.
[2008] EWHC 2859 (Ch), quotations taken from paras 23–35.
- 47.
[2008] EWHC 2859 (Ch), quotations taken from paras 62–63.
- 48.
[2008] EWHC 1100 Ch.
- 49.
Mini Mental State Examination.
- 50.
[2006] EWCA Civ 449.
- 51.
[2006] EWCA Civ 449, para 27.
- 52.
The notes included the following: ‘MRI head demonstrates extensive decreased signals in the periventricular areas especially near anterior and posterior horns but also in the basal ganglia and the brainstem. Noted also advanced supratentorial atrophy. All this is in keeping with the diagnosis of longstanding disseminated encephalomyelitis.’ [2006] EWCA Civ 449, para 44.
- 53.
[2006] EWCA Civ 449, para 53.
- 54.
Banks v. Goodfellow (1870) 5 Q.B. 549, 565.
- 55.
Sharp and another v. Adam and others [2006] EWCA Civ 449, para 93.
- 56.
Sharp and another v. Adam and others [2006] EWCA Civ 449, para 93.
- 57.
Sharp and another v. Adam and others [2006] EWCA Civ 449, para 93.
- 58.
‘Although Dr Hawkes had referred to himself in his written report in this respect as a lay observer, the deputy judge was, we think, entitled to take this part of his cross-examination as expert opinion.’ Sharp and another v. Adam and others [2006] EWCA Civ 449, para 93.
- 59.
Sharp and another v. Adam and others [2006] EWCA Civ 449, para 95 citing CPR 42. 11 (3).
- 60.
[2009] EWCA 2576 (Ch).
- 61.
[2009] EWCA 2576 (Ch), para 24 (v).
- 62.
[1969] 2 All ER 1015.
- 63.
[1985] 1 All ER 367.
- 64.
[1985] 1 All ER 372.
- 65.
[1985] 1 All ER 372.
- 66.
[1985] 1 All ER 374 He had convictions for theft, house breaking, burglary, several driving offences and one conviction for assaulting a police officer.
- 67.
[1985] 1 All ER 373 According to the evidence at the age of 17 he had received hospital treatment for cuts following an attack with a bottle. The following year he had been hit over the head with a poker. That same year he received further injuries to the head as a result of either being kicked or hit by someone using a knuckle duster. A year later he head butted someone who was the other side of a plate glass window and received cuts to his head as a result. That year he also sustained a back injury.
- 68.
If you exclude the assault conviction for head butting a police officer in order to resist arrest which had taken place in 1973.
- 69.
[1985] 1 All ER 373, 379.
- 70.
If you exclude the assault conviction for head butting a police officer in order to resist arrest which had taken place in 1973, 380.
- 71.
Meah was awarded £60,000. The award was quite low in comparison to the awards typically given in miscarriages of justice because given Meah’s previous employment history meant that his loss of earnings were viewed as negligible. Two of Meah’s victims subsequently sued him and were awarded damages (W v. Meah; D v. Meah and another [1986] 1 All ER 935). An attempt by Meah to recover these awards against the driver and his insurers failed, the damage being held to be too remote (Meah v. Mcreamer and others No.2 [1986] 1 All ER 943.
- 72.
Subsequently the courts have had to consider a similar scenario to Meah's case. In Gray v. Thames Trains and another [2009] UKHL 33, [2009] 4 All ER 81 it was accepted that Gray had suffered a personality change as a result of a train accident caused by the defendants' negligence. It was accepted that but for the personality change Gray would not have committed the killing for which he was subsequently convicted. However, in this case the House of Lords rejected the claim for compensation; taking the view that to allow such a claim would be to allow the claimant to profit from his criminality.
- 73.
In Rehman v University College London and another [2004] EWHC 1361 (QB) experts agreed that a CT scan should have been undertaken to identify whether the claimant’s bowel was perforated. This examination was delayed by two days and as a result the claimant received damages for her pain and suffering during the days in question.
- 74.
See Airedale NHS Trust v Bland [1993] AC 789 and NHS Trust (AVM) [2001] Fam 348.
- 75.
[1993] AC 789.
- 76.
[1993] AC 789, 795.
- 77.
Dr. Keith Andrews, Director of Medical Research Services at the Royal Hospital and Home, Putney – a hospital with a large brain injury rehabilitation centre. Professor Bryan Jennett, former Foundation Professor of Neurosurgery at Glasgow University’s Institute of Neurological Science. Professor Jennett was the person who with Professor Plum jointly coined the term persistent vegetative state. Dr. Cartlidge a consultant neurologist and university lecturer and Professor Behan from the Institute of Neurological Sciences at Glasgow Southern General Hospital.
- 78.
[2006] EWHC 3152 (Fam).
- 79.
R Clauss and W Nel, 'Drug Induced Arousal from the Permanent Vegetative State' (2006) 21 Neuro Rehabilitation 23–8 and AM Owen and others, 'Detecting Awareness in the Vegetative State' (2006) 313 Science 1402.
- 80.
Professor Keith Andrews, who had given evidence in the Anthony Bland case and Professor John Pickard, Professor of Neurosurgery, one of the authors of the Royal College of Surgeons 2003 report.
- 81.
For a review of some of the neuroscientific and philosophical arguments in relation to criminal responsibility see Claydon L, Mind the Gap, in Freeman M and Goodenough, O. R. (eds) Law Mind and Brain, (Ashgate, 2009) 55–80.
- 82.
R v Malcolm MacMahon [2010] ECWA CRIM 1953.
- 83.
The English courts in relation to a particular applicant have accepted the mandatory testing regime does not contravene Article 8 of the ECHR see Corbett v Secretary of State for Justice and Another [2009] EWHC 2671 (Admin) – where the imposition of the regime was said to be a proportionate interference with the applicants rights in view of Article 8(2) in view of the risk posed by the applicant’s release.
- 84.
The Human Rights Act 1998 Section 19 requires that the Government makes a statement of compatibility before the second reading of a new piece of legislation.
- 85.
Hansard, HL Vol.692, 5.45pm (June 12, 2007).
- 86.
Date of download 6th January 2011.
- 87.
See for example Greely H. T., and Isles J., Neuroscience Based Lie Detection: The Urgent Need for Regulation American Journal of Law and Medicine, 33 (2007): 377–431.
- 88.
Laycock v Lagoe 40 BMLR 82, 89. In this case a defendant wanted the claimant to undergo a second brain scan. The court set out a two part test. Was it in the interests of justice to require the claimant to undergo a further scan? On the facts the answer to this was yes. The second question was whether the party who opposed the test had put forward a substantial reason for the test not to be undertaken? The court found that the danger to the claimant was not ‘imaginary or illusory and therefore has to be regarded as substantial.’ The court therefore ruled that the second scan should not be ordered.
- 89.
[2009] EWCA CRIM 1101 ‘We had to rule out any possible mental illness because you refused to be examined, and you refused to have a brain scan, or any other test which might show whether you were suffering from some real illness, so the only basis one can sentence you is on the basis that you suffered this episode because you were taking cannabis.’
- 90.
[2001] 2 Cr App R.
- 91.
R v Robb (1991) 93 Cr App R 161,166 all quotations taken from Law Commission Consultation Paper 190 paras 3.5 and 3.6.
- 92.
See footnote 12 and the accompanying text.
- 93.
See Law Commission Consultation Paper No 190 Part 6.
For a fuller examination of the Law Commission's suggestions see footnote 35 page 167.
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Claydon, L., Catley, P. (2012). Neuroscientific Evidence in the English Courts. In: Spranger, T. (eds) International Neurolaw. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-21541-4_17
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