Abstract

The role of science and, more specifically, medical science in explaining criminal behaviour has been acknowledged since time immemorial. With reference to the defence of pathological criminal incapacity within the context of substantive criminal law, the role of mental health sciences is well established. The defence of pathological criminal incapacity has historically been rooted within the fields of forensic psychiatry and psychology. Recently the role of neuroscience in assessing criminal responsibility has become an issue of academic and practical debate. A question that falls to be assessed is whether the time has arrived to open the door to other sciences, such as neuroscience, to supplement the traditional mental health science model to assess criminal responsibility properly. In this article, the defence of pathological criminal incapacity will be used as an example of an area within substantive criminal law where the role of science becomes crucial in assessing criminal responsibility. The historical context of this area of criminal law will be canvassed against the backdrop of advances made in neuroscience to provide an alternative perspective to the traditional model of mental health science. From a procedural perspective, issues relating to the admissibility of neuroscientific evidence will be addressed in order to illustrate both the substantive criminal law pertaining to the theme of discussion as well as the procedural aspects relating to the theme.
‘(Neuroscience) is one of those things that holds both promise and terror for the legal system.’