Proof that Evidence-Based Medicine can make you a bit loony?

Proof that Evidence-Based Medicine can make you a bit loony?

I have discussed the strange mentality that EBM can incubate in certain individuals previously in this blog. The so-called skeptics would probably approve heartily of the latest pronouncement from an evolutionary biologist that use of unproven treatments for the deadly disease Ebola is unethical outside of a prospective randomised controlled trial:

http://scientiasalon.wordpress.com/2014/08/14/on-the-science-and-ethics-of-ebola-treatments/

The same bug-eyed loonies 


that find the notion of a terminal cancer patient getting some hope through trying an innovative treatment quite awful, will probably be horrified at the prospect of someone with Ebola, which in the current outbreak has a mortality of 55%, trying an untested treatment in the hope that it may benefit them. It is an indictment of their inflexible thinking that they cannot see the difference between this situation and experimental treatment of more common but less lethal diseases. 

It's also proof that scientists by and large shouldn't stray into the field of ethics. A bit like another famous evolutionary biologist (and his followers) should keep out of religious debates. 

Neurolaw in the UK

Neurolaw in the UK

Neuroscientific evidence will continue to increase in importance in criminal trials. The biggest danger is the potential failure to properly test such evidence, and it is important that judges and lawyers understand the limitations of much neuroscientific evidence. What educational resources are available in the UK?

The Royal Society's Brainwaves project looked at developments in neuroscience and their implications for society and public policy. One module looked at neuroscience and the law. The medical Royal Colleges and the Royal Society of Medicine hold seminars on medico-legal matters, for example the RSM is holding a series of events on Sleep and the Law (the first meeting is on Sep 30th). A medico-legal seminar was held at Keele in 2013 on automatism which was expressly aimed at both medical experts and lawyers. There are a number of events organized for lawyers on neurolaw in the United States. Most of the universities known for neurolaw are in the USA. 

British universities do offer modules in this area, for example the University of Kent offer a module on "Neuroscience in Law: Forensic, Medical and Ethical Aspects". Much of the expertise in this area is in the field of forensic psychiatry, and indeed there is a dedicated Forensic Psychiatry Chambers, as well as many forensic psychiatrists working in high and medium secure units throughout the country. There are related disciplines such as neuroethics which inform discussion about the use of neuroscience in the law. 

There are a number of academics with a special interest in neurolaw in the UK - Lisa Claydon, Paul Catley, and Robin Mackenzie. There is a European body for neurolaw, the European Association for Neuroscience and Law (EANL). There certainly appears to be much academic activity on the continent. It would be a useful resource for the UK to have an established centre for neurolaw to aid education of the legal profession and the judiciary. Neuroscience has great potential to aid legal decision-making, but there also needs to be appropriate skills in handling expert evidence in neuroscience.  Neurolaw may still be in its infancy, but we need to be proactive rather than reactive. 

The limits of the adversarial system

The limits of the adversarial system

A recent action against barrister Lawrence McNulty emphasized that despite what some lay people might believe, there are limits in the adversarial system to the tactics counsel can employ at trial. In fact, although lawyers are retained by their clients, they are nonetheless "officers to the court". This is why a lawyer cannot argue that if his client is innocent if he knows otherwise. He may argue that the case against him has not been proven beyond a reasonable doubt, but he may not argue for this innocence.

Lawrence McNulty is appealing the decision. The disciplinary tribunal found that he had contravened professional ethics in several ways. He had argued a defence of entrapment without the necessary notice. The allegations of entrapment “were completely unfounded and his conduct had the potential to undermine public confidence in the legal profession and the administration of justice”. Further, he made a "deliberate and misguided attempt to undermine the authority of the judge and to neutralise his summing-up", and had also attacked police witnesses without giving them the opportunity of reply. 

It must be emphasized that such behaviour and resulting disciplinary action is notable for its rarity, and no one has suggested that the barrister in question is not normally conscientious and ethical. Nonetheless, it is an important reminder that the courts are interested in justice, and although the adversarial system may seem like a bun fight to the layperson, there are consequences if counsel stray across certain boundaries when representing their client. 

The Evolution of the Insanity Defence in England and Wales

The Evolution of the Insanity Defence in England and Wales

The insanity defence in English law is typically pleaded in the crown court, where the statutory special verdict applies. This dates back to the Criminal Lunatics Act 1800. Prior to this, only the common law insanity defence applied, which resulted in a plain acquittal (although often civil detention occurred given the profound degree of impairment required to persuade a lay jury of insanity before medical experts were permitted in court, the first case being in 1760). This still applies when the insanity defence is successful in the magistrates court. It results in a verdict of not guilty by reason of insanity, although between 1883 and 1964 the verdict was 'guilty of the act but insane at the time' (introduced by the Trial of Lunatics Act 1883, with the original wording restored by the Criminal Procedure (Insanity) Act 1964). This outcome was unacceptable to monarch and parliament for the man who attempted to assassinate King George III, Hadfield, and so emergency legislation was passed to enable his detention.

Hadfield was a veteran of the First War of the Coalition, and had been part of the bodyguard of the Duke of York at the battle of Lincelles, where he received a serious head wound from a sabre. It was clear that prior to the injury he had been a loyal and brave subject. It was likely that the visible head injury (counsel invited the jury “to inspect the membranes of the brain itself”) and his previous loyal service helped persuade the jury that this behaviour was contrary to his pre-morbid character. This was the first case where the concept of partial insanity was accepted as the basis of an acquittal. Hadfield’s counsel, Erskine, argued that delusion “unaccompanied by frenzy or raving madness [was] the true character of insanity”. Hadfield’s delusion was that he must die to save the world, but he could not die by his own hand. Thus he contrived to be killed in the course of an assassination attempt. 

The statutory special verdict allowed for only one disposal until recently - detention at Her Majesty's Pleasure. Once the death penalty was abolished and the defence of diminished responsibility was introduced for homicide, the insanity defence became less and less attractive given the prospect of indefinite detention. The insanity defence became virtually obsolete. However the Criminal Procedure (Insanity and Fitness to Plead) Act 1991 gave judges the choice of four disposal options, later reduced to these three:

1) A hospital order with or without a restriction order (mandatory for homicide where there is a mental condition)

2) Supervision order

3) Absolute discharge

Mackay found that this legislation resulted in increasing numbers of successful insanity defences. 

So rather than being motivated by compassion, the statutory special verdict was a regressive step. During the 19th century it was widely considered that the insane were still capable of being deterred, and so the detention of the insane had a punitive element to it. Indefinite detention very often did amount to detention for life, and the conditions in the asylums of the time were appalling by modern standards. Prime Minister Gladstone considered the special verdict 

"an inducement...to morbid minds for the commission of crime by an apparent declaration of innocence in the teeth of the facts."

This perception led to the substitution of the original verdict of 'not guilty by reason of insanity' with 'guilty of the act but insane at the time', as noted above. 

DIME Weapons and Blood Libels

DIME Weapons and Blood Libels

There have been "accusations" that Israel are using dense inert metal explosive (DIME) weapons in Gaza. The accusations amount to blood libel, which sadly is a common tactic among opponents of Israel. The accusations' source is Mads Gilbert, who is arguably not an unbiased source, being politically on the far left and of course embedded in the Hamas machine currently. 

DIME weapons are not, contrary to the allegations, banned. DIME weapons are designed to minimise collateral casualties, so it would be strange to consider them an inappropriate weapon. Part of the blood libel is the assertion that DIME weapons "cause cancer", which is based on animal models which are notoriously unreliable. This accusation is coupled with the accusation that DIME weapons are particularly lethal, an odd combination. 

Any weapon used inappropriately can be a war crime, but there is nothing about DIME weapons which makes them worse than "conventional" weapons. The evidence DIME weapons are being used seems tenuous in any case, and seems to be a pretext for demonizing Israel - a classic blood libel.

Let Sleeping Judges Lie?

The BBC has reported that a trial was abandoned after the judge apparently fell asleep. This is probably commoner than realised. There was an Australian judge who received a great deal of publicity for falling asleep and snoring loudly during several cases, as reported by Grunstein and Banerjee in the journal Sleep:

According to the newspaper, it was claimed that the judge fell asleep numerous times during a corporate fraud trial and in another separate shooting trial, both in 2002. Subsequently, in 2003,
he was reported to have fallen asleep during a rape victim’s evidence.
Following this episode, Judge Dodd was found allegedly asleep during a drug-smuggling trial that, the newspaper stated, led to the jurors nicknaming him “Judge Nodd.” In 2004, he was reported to be asleep intermittently during a 7-month trial of 7 men who were eventually convicted of shipping 383 kg of pure cocaine into Australia. The newspaper alleged that, during this 2004 trial, the defense lawyer would hand notes to court staff who were sitting near to Judge Dodd to wake him up. The sleepiness was also noted by jurors in the trial, who commented on Judge Dodd’s loud snoring. The accused were subsequently sentenced for up to 24 years in prison.

The unfortunate Judge Dodd actually had a medical problem:

In late 2004, some months prior to any press reports about his sleepiness during trials, Judge Dodd obtained a medical consultation regarding his sleepiness, was diagnosed with obstructive sleep apnea, and was apparently treated effectively. There were no reported sleep episodes following commencement of treatment. This was confirmed in a statement by District Court Chief
Judge Reg Blanch.

Trials are quite boring for long stretches, and it is the jury more than the judge who has to pay attention to proceedings. Certainly it has been held that judicial sleep is not fatal to the defendant's prospects of a fair trial, as Grunstein's and Banerjee's paper relates:

The Appeals Chamber found that appellants had failed to establish that Judge Karibi-Whyte was asleep during substantial (emphasis added) portions of the trial, although video evidence apparently showed the judge having regular sleep episodes usually up to 10 seconds long, sometimes up to 30 seconds with snoring. On 1 occasion, the judge was asleep for 30 minutes. The Appeals Chamber did comment that the judge’s conduct was not regarded as appropriate for a judge but still rejected the ground of appeal. (International War Crimes Tribunal, The Hague)

Local journalist Miss Tamsen Vian-Courtenay commented that Judge Coombe’s “head fell so far forward as to be almost touching the table,” with sounds that she thought were snoring and that
the judge “seemed to wake up with a start.” However the Court of Appeals rejected the men’s appeals against the conviction, though they did reduce their sentences. Lord Justice Rose of the Appeals Court said it was “highly regrettable” that Judge Coombe had fallen asleep, but it did not render the conviction unsafe. “Because the appearance as well as the actuality of justice being done is important, no judge ought in any circumstances to fall asleep during any stage of a criminal trial.” However the men’s lawyers had not demonstrated that Judge Coombe had failed to sum up significant evidence. (Court of Appeal, London, United Kingdom)

So let sleeping judges lie.

Joint enterprise: possible reforms

Joint enterprise: possible reforms

There seem to be two main issues with joint enterprise, particularly when it is used in murder cases. The first is the level of involvement that is needed to make out the offence. It appears in some cases that the evidence required to support an assertion of a joint enterprise is quite tenuous. According to DPP v Woolmington, any and all elements that make out an offence need to be proved beyond reasonable doubt. It is not enough to suppose that friends must have known the intentions of each other, for example. The second is the issue of fair labelling. Where the defendant is undeniably involved in some way in the offence, their involvement may still be so tangential that being convicted of the full offence does not seem like fair labelling. There are particular issues with murder because of the mandatory life sentence.

Joint enterprise is a common law doctrine, and so reform via the courts is possible. This sort of incremental adjustment might be considered most appropriate. A diminution of the ambit of joint enterprise might be considered the best option, given the policy issues of joint enterprise in tackling gang violence.

Another option is a statutory replacement. Violent disorder is a suitable statutory alternative for less serious offences. The maximum sentence for this 'either-way' offence is 5 years imprisonment. An option with a higher maximum sentence might be appropriate for gang homicide cases.