Forced ‘brain reading’ in criminal law not prohibited under the European Human Rights Convention

Techniques for imaging the brain such as magnetic resonance imaging (MRI) and positron emission tomography (PET) enable us to examine the structure and activity of a person’s brain. Electroencephalography (EEG) is another technology to measure brain activity. Such techniques provide an objective assessment of a person’s subjective mental states and can make a meaningful contribution in criminal law. EEG for instance can be used to measure brain activity that is linked to the recognition of a specific image, such as a photo of the murder weapon. MRI and PET can be used as tools in risk assessment, among other things: research has shown that certain brain characteristics strongly correlate with anti-social and aggressive behavior. Such features may contribute to assessing the risk of reoffending.

Human rights

However, often, suspects and convicted offenders are unlikely to voluntary cooperate in a brain scan. It is therefore an important question whether the use of forced brain scans is legally permitted. Coercive brain reading in criminal investigations raises fundamental questions in the light of the European Convention on Human Rights. These questions  mainly relate to  the prohibition of inhuman treatment, the right to privacy, the right to freedom of thought, the right to freedom of expression, and the privilege against self-incrimination.  

Ligthart investigated to what extent these human rights permit the deployment of forced brain scans in criminal law. To that end, he studied the case law on research methods with relevant parallels. One of the aspects he looked at was case law on DNA testing and the use of other coercive medical procedures in investigating criminal offenses.

Fundamental challenges

According to Ligthart, although the human rights he examined limit the use of brain scans in criminal investigation, they do not exclude their forced use. Some forms, such as risk assessment and memory detection described above are allowed, also without the suspect’s or convicted offender’s valid consent.

However, the rise of neurotechnological brain reading does pose challenges to traditional human rights, especially as regards the protection of suspects and convicted offenders. Neurotechnologies necessitate specifying and reinterpreting long-standing human rights. In particular, the privilege against self-incrimination requires revaluation, Ligthart argues, and the freedom of expression is in need of further development.