The use of neuroscientific evidence in the courtroom by those accused of criminal offenses in England and Wales

Catley, Paul and Claydon, Lisa (2015). The use of neuroscientific evidence in the courtroom by those accused of criminal offenses in England and Wales. Journal of Law and the Biosciences, 2(3) pp. 510–549.

DOI: https://doi.org/10.1093/jlb/lsv025

Abstract

This examination of the extent of the use of neuroscientific evidence in England and Wales identifies 204 reported cases in which such evidence has been used by those accused of criminal offences during the eight year period from 2005 - 2012. Based on the number of reported cases found, the use of such evidence appears well established with those accused of criminal offences utilising such evidence in approximately 1% of cases in the Court of Appeal (Criminal Division). Neuroscientific evidence is used to quash convictions, to lead to convictions for lesser offences and to lead to reduced sentences. In addition cases are identified where neuroscientific evidence is used to avoid extradition, to challenge bail conditions and to resist prosecution appeals against unduly lenient sentences. The range of uses identified is wide: including challenging prosecution evidence as to the cause of death or injury, challenging the credibility of witnesses and arguing that those convicted were unfit to plead, lacked mens rea or were entitled to mental condition defences. The acceptance of such evidence reflects the willingness of the courts in England and Wales to hear novel scientific argument, where it is valid and directly relevant to the issue(s) to be decided. Indeed in some of the cases the courts expressed an expectation that structural brain scan evidence should have been presented to support the argument being made.