Professor Philip Stevens of the Department of Public Law in the Faculty of Law at the University of Pretoria (UP) recently delivered his inaugural lecture, presenting the topic ‘Criminal Law in the Wake of Science – Can Neuroscience Inform the Criminal Law? Medico-Legal Perspectives from South Africa’.

Prof Stevens’ address focused on the interaction between neuroscience and law, coined “neurolaw”, which concerns the interplay between the legal system and advancements made within the field of neuroscience. In this context, neuroscience deals with the human brain and seeks to enhance the understanding of how human behaviour and also criminal behaviour are influenced by the brain. As such, Prof Stevens addressed the emerging nature of neuroscience in South African criminal law with specific reference to its applicability to different levels of criminal liability.

“Few things are as intricate and difficult to comprehend as the human mind and psyche,” said Prof Stevens. “Traditionally, whenever the mental state of an accused person is assessed, either to assess criminal responsibility, or in terms of possible mitigation or aggravation of punishment, the law has turned to the forensic psychiatry/psychology model for plausible answers. Science and law have one common characteristic – they are both in a constant state of evolution.”

Prof Stevens shared fascinating examples of cases where physical injury to the brain resulted in anti-social and/or criminal behaviour. In this regard, it has been observed that numerous symptoms of antisocial personality disorder are consistent with the symptoms of frontal lobe dysfunction and that, similarly, the development of psychopathy may, in selected cases, be traced to frontal lobe damage early in life. It is also notable that the frontal lobes contain the brain’s primary serotonergic projections and, as such, abnormalities in serotonin metabolism may lead to impulsive aggression.

“In these cases, as unique as the facts were, an illustration is provided of an alternative explanation in respect of the possible cause of criminal behaviour, ultimately taking a different slant as opposed to the classic forensic psychiatry/psychology model in terms of assessing for mental illness, specifically in cases where mental illness giving rise to the insanity defence is claimed.

“Neuroscientific research is becoming increasingly useful in advancing our comprehension of the neural correlates of human behaviour cognition and emotion, and could potentially become highly significant when criminal responsibility fails to be assessed. The question which inevitably arises is – can neuroscience inform criminal law in terms of assessing criminal responsibility as well predicting future dangerousness in dangerous offenders? Should courts become more receptive to neuroscientific evidence as an alternative explanation to criminal behaviour?” Prof Stevens said.

Importantly, Prof Stevens cautioned that while it is easy to denounce the evil doer, it is far more difficult to understand him. This is an important fact that is often overlooked, yet it is of critical importance in ensuring justice in criminal trials.

While neuroscience has advanced to the level where it can supplement forensic psychiatric and psychological evidence in criminal trials, it is still relatively novel and its presentation and use in courts will inevitably result in multifaceted challenges. To date, there have not been any cases in South African criminal law where neuroscientific evidence was introduced in support of either exoneration or mitigation or aggravation of sentence.

Professor Elsabe Schoeman, Dean of the Faculty of Law at UP, congratulated Prof Stevens on an excellent inaugural address, affirming that he is well-placed to advance this new and developing area of law, having laid the foundation for its development in South African criminal law in his lecture.

“In this area of law that is eminently suited to transdisciplinary research collaborations, you have demonstrated that, by breaking down the silos, and working across disciplines, we are able to find better grounded and well-informed solutions to some of our biggest challenges, and, ultimately, to achieve justice in the true sense of the word,” Prof Schoeman said. “I look forward to seeing you embrace this challenge as you put UP Law at the forefront of this cutting-edge research.”

Prof Stevens was promoted to full professor in criminal law and statutory crimes from 1 January 2020, and holds the degrees LLB (cum laude), LLM (cum laude), and LLD (doctorate in Criminal Law) from the University of Pretoria.

Watch the lecture: