Forensic Brain-Reading and Mental Privacy in European Human Rights Law: Foundations and Challenges

A central question in the current neurolegal and neuroethical literature is how brain-reading technologies could contribute to criminal justice. Some of these technologies have already been deployed within different criminal justice systems in Europe, including Slovenia, Italy, England and Wales, and the Netherlands, typically to determine guilt, legal responsibility, or recidivism risk. In this regard, the question arises whether brain-reading could permissibly be used against the person's will. To provide adequate legal protection from such non-consensual brain-reading in the European legal context, ethicists have called for the recognition of a novel fundamental legal right to mental privacy. In this paper, we explore whether these ethical calls for recognising a novel legal right to mental privacy are necessary in the European context. We argue that a right to mental privacy could be derived from, or at least developed within in the jurisprudence of the European Court of Human Rights, and that introducing an additional fundamental right to protect against (forensic) brain-reading is not necessary. What is required, however, is a specification of the implications of existing rights for particular neurotechnologies and purposes.

Is Virtually Everything Possible? The Relevance of Ethics and Human Rights for Introducing Extended Reality in Forensic Psychiatry

Extended Reality (XR) systems, such as Virtual Reality (VR) and Augmented Reality (AR), provide a digital simulation either of a complete environment, or of particular objects within the real world. Today, XR is used in a wide variety of settings, including gaming, design, engineering, and the military. In addition, XR has been introduced into psychology, cognitive sciences and biomedicine for both basic research as well as diagnosing or treating neurological and psychiatric disorders. In the context of XR, the simulated 'reality' can be controlled and people may safely learn to cope with their feelings and behavior. XR also enables to simulate environments that cannot easily be accessed or created otherwise. Therefore, Extended Reality systems are thought to be a promising tool in the resocialization of criminal offenders, more specifically for purposes of risk assessment and treatment of forensic patients. Employing XR in forensic settings raises ethical and legal intricacies which are not raised in case of most other healthcare applications. Whereas a variety of normative issues of XR have been discussed in the context of medicine and consumer usage, the debate on XR in forensic settings is, as yet, straggling. By discussing two general arguments in favor of employing XR in criminal justice, and two arguments calling for caution in this regard, the present paper aims to broaden the current ethical and legal debate on XR applications to their use in the resocialization of criminal offenders, mainly focusing on forensic patients.

Legal insanity and risk: An international perspective on the justification of indeterminate preventive commitment

Modern legal systems typically link the insanity or diminished responsibility of an offender for a crime committed in the past to his future dangerousness. This nexus serves across legal systems as a justification for the indeterminate commitment of the offender with diminished or no criminal responsibility. Conceptually, however, insanity and risk are not related legal issues. Moreover, empirical research suggests that there is only a weak link between insanity, diminished responsibility and mental illness on the one hand and risk of recidivism on the other. Other risk factors seem to be more important. The inference of risk from insanity or diminished responsibility that lies at the heart of the indeterminate commitment of mentally disordered offenders is therefore problematic. This should lead to a reconsideration of the preconditions for indeterminate commitment of mentally disordered defendants.

Forensic psychiatric evaluations of defendants: Italy and the Netherlands compared

BACKGROUND

Forensic psychiatric practices and provisions vary considerably across jurisdictions. The diversity provides the possibility to compare forensic psychiatric practices, as we will do in this paper regarding Italy and the Netherlands.

AIM

We aim to perform a theoretical analysis of legislations dealing with the forensic psychiatric evaluation of defendants, including legal insanity and the management of mentally ill offenders deemed insane. This research is carried out not only to identify similarities and differences regarding the assessment of mentally ill offenders in Italy and the Netherlands, but, in addition, to identify strengths and weaknesses of the legislation and procedures used for the evaluation of the mentally ill offenders in the two countries.

RESULTS

Italy and the Netherlands share some basic characteristics of their criminal law systems. Yet, forensic psychiatric practices differ significantly, even if we consider only evaluations of defendants. A strong point of Italy concerns its test for legal insanity which defines the legal norm and enables a straightforward communication between the experts and the judges on this crucial matter. A strong point of the Netherlands concerns more standardized practices including guidelines and the use of risk assessment tools, which enable better comparisons and scientific research in this area.

CONCLUSIONS

We argue that there appears to be room for improvement on both sides with regards to the evaluation of mentally ill offenders. More generally, a transnational approach to these issues, as applied in this paper, could help to advance forensic psychiatric services in different legal systems.

Prison and the brain: Neuropsychological research in the light of the European Convention on Human Rights

Prison is by its nature a deliberately impoverished environment, with few physical, mental and social activities. Various studies have shown negative effects of an impoverished environment on animal as well as human brain functions. A recent study in a Dutch remand prison showed that brain functions connected with self-regulation decline after 3 months of imprisonment. Reduced self-regulation appears to be a risk factor for recidivism. In this article, we examine the legal implications of these neuropsychological findings in a European context. Firstly, we analyse these results in the light of the principle of rehabilitation as interpreted in case law of the European Court of Human Rights. Secondly, we explore how the neuropsychological insights could be relevant in the context of the prohibition of torture, inhuman and degrading treatment (Article 3 of the European Convention on Human Rights (ECHR)). We argue that if the impoverished prison environment hampers rehabilitation, states are positively obliged to take appropriate measures to counter these effects. Ultimately, negative effects on brain functioning by impoverished prison environments could even raise an issue under Article 3 ECHR. Furthermore, we argue that neuropsychological insights have to be taken into account when establishing the threshold according to which the European Court on Human Rights judges prison conditions. We conclude that in the light of these considerations further research on the neuropsychological effects of the prison environment is required.

Who Establishes the Presence of a Mental Disorder in Defendants? Medicolegal Considerations on a European Court of Human Rights Case

Legal insanity is a peculiar element of criminal law, because it brings together two very different disciplines: psychiatry and psychology on the one hand and the law on the other. One of the basic questions regarding evaluations of defendants concerns the question of who should establish "true mental disorder," the judge or the behavioral expert? This question is complicated, and in this contribution it will be explored based on a Dutch case that was eventually decided by the European Court of Human Rights (ECtHR). We will argue that the ECtHR provides a valuable legal framework. Based on its merits, the framework could also be of interest to countries outside the Court's jurisdiction.