What is left of guilt if science can explain a defendant’s actions? We may be a long way yet from understanding all human behaviour, but recent developments in the law on diminished responsibility suggest a step towards deferring to the scientific interpretation. As the science develops, could there be scope for taking into account further psychiatric analysis when attributing responsibility?
Episode #91 of the ‘Making Sense’ podcast is entitled ‘The Biology of Good and Evil.’ The speaker is Robert Sapolosky, Professor of Biology and Neurology at Stanford University. Professor Sapolosky predicts that our current ideas about guilt and punishment will wilt in the face of advances in neuroscience. The interviewer (Sam Harris) puts the counter argument: that the public will never accept liberalising reform of criminal law that excuses defendants on the basis that science proves that they should not be blamed for their actions. Sapolosky’s response is to sketch the legal ascent of man i.e. brutal tribal retribution / state takes over some of the brutal retribution / state has a monopoly on brutal retribution / state retribution is brutal, but behind closed doors / state retribution stops being quite so brutal. He then points out that every civilizing step was met with the refrain, ‘the public will never wear that’, but they do, says the Professor, because the public come to see that the new way is better and they just get used to it.
So, in 2120, will cherished legal ideas such as the doctrine of mens rea or even trial by jury be regarded much as we regard trial by ordeal and the ducking stool? More parochially – will criminal barristers join the ranks of haruspices, pardoners and water diviners – professions that were once in good standing, but which have been eliminated by the march of science? (Who knows – it’s hard to find a decent soothsayer these days in order to get a view.) What we can say however is that one small but definite score in favour of science as applied to the law of homicide can be chalked up following the decision of the Court of Appeal in R v Brennan [2014] EWCA Crim 2387 and the cautious approval of that decision by the Supreme Court in R v Golds [2016] UKSC 61.
The defendant in Brennan had a nine-year history of disturbed childhood, sexual abuse and outpatient mental health treatment together with one instance when he was sectioned following a suicide attempt. On the undisputed psychiatric evidence, he suffered from a schizotypal disorder as well as an emotionally unstable personality disorder. He was obsessed with witchcraft and Satanist killings. He was also depressed. He had planned and executed the ritualistic killing of a client whom he had served as a male prostitute. He left notes of what he planned to do, and after killing the man with one or more knives, had scored his back and painted or written on the walls symbols such as a pentagram and references to Satan and to Krishna, before cleaning himself up and going to the police station to report what he had done.
The only issue at trial was diminished responsibility. Despite the undisputed psychiatric evidence, the Crown argued that the issue should be left to the jury, who duly convicted Mr Brennan of murder. The Court of Appeal held that in that case there was only one possible outcome. There was simply no basis for a verdict of murder and moreover this was so clear that the judge ought not to have left it open to the jury.
The consideration of Brennan by the Supreme Court in Golds (paragraphs 44 -51) repays careful reading. Fans of Lord Hughes will not be disappointed. He starts from the proposition that in most diminished responsibility cases, reason and science prevail because the psychiatrists and the parties agree on the outcome. The further step by the Supreme Court in the development of the defence was the conclusion that reason and science should always prevail. The principle was stated in the following terms:
“if the jury is to be invited to reject the expert opinion, some rational basis for doing so must at least be suggested, and none had been at trial nor was on appeal. It is not open to the Crown in this kind of situation simply to invite the jury to convict of murder without suggesting why the expert evidence ought not to be accepted.”
It is difficult to see how there is room for any alternative ‘rational basis’ that could overturn a true scientific consensus.
At first glance this rationale does not appear to subvert the primacy of the jury as the ultimate decision maker but viewed more closely that primacy is a fig leaf. Science is based on rational experience that leads to the establishment of objective truth. It is therefore difficult to see how there is room for any alternative ‘rational basis’ that could overturn a true scientific consensus. Science is the ultimate decision maker. Moreover, when the law allows scientists to determine the state of a defendant’s mind for the purposes of a statutory defence, that rationale must open the door for further advances in the study of our minds.
What if the science of mind develops to the point that experts agree that the firing of certain neurons in the frontal cortex conclusively demonstrates that an action was intended – would there be a rational basis for a jury not to accept that conclusion? At present the hold-up to this brave new world is probably due to the state of forensic psychiatry rather than any innate conservatism on the part of lawyers. The identification of psychiatric conditions tends to focus on identifying clusters of symptoms. As specialists in other fields of medicine more closely anchored in bio-chemistry like to point out, this is like trying to understand the causes and development of measles by saying that it’s all about the spots.
A blog is not the best forum to consider all the ramifications of developments in the law of homicide and there are several important qualifications that would need to be examined before you could conclude that diminished responsibility is now a question of trial by expert rather than trial by jury. We suggest however that Professor Sapolosky would note and approve the Supreme Court’s direction of travel. Our consideration of the entrails exposed in Golds is therefore confined to the prediction that where the science leads, the law will have to follow.
