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A revolution in criminal law?

If asked what motivates me to do this work, there are two overriding emotion. The first, unsurprisingly as a lawyer, is a deep commitment to the rule of law. Not in some theoretical sense that is given in law lectures but the practice of it in every day work. All defendants should be entitled to a vigorous defence, and we should cherish our principles – innocent until proven guilty; the holding of the state to account in their investigations and for justice to be done.

However the second emotion is a combination of fear and anger. Many of my clients are more intelligent and engaging than me, yet they have ended up accused of serious offences or in prison, I on the other hand, am a graduate professional with all the privilege that this entails. How did we end up in those different places? Why were the chances that were given to me, not available to those that I represent? I am convinced that, had the stable life and education that was on offer to me, been given to many of my clients, then they would not have found themselves in the criminal justice system. Generation, after generation of our fellow citizens have been “left behind”. They form the vast majority of both defendants and victims in the courts. If we want to stop this happening in the future, we cannot simply look to the criminal justice system but we will need to invest in education and our communities.

However as well as the “nurture argument” about how and why people make bad choices, I have become intrigued by the nature argument as well.

The warrior gene

Some of you may have read about the so called “Warrior gene” that is said to pre-dispose individuals to violence. The fascinating element is to how this has already been used in criminal cases and whether this will herald a new age about how we deal with crime.

In a US case from 2006, the defendant Davis Waldroup accepted that he killed his estranged wife’s friend and shot and injured his former wife. After 11 hours of deliberation, the jury acquitted him of first degree murder and convicted him of voluntary manslaughter and attempted second degree murder. The defence had called an expert to say that Waldroup could not commit first degree murder because “he was unable to engage in the reflection and judgement necessary to to premeditate the crime”. The reason according to the Defence was genetics.

Scientists had identified a gene “MAOA”, nicknamed the “warrior gene” that pre disposes individuals to violence. Scientific research had suggested that violence associated with having a “warrior gene” was significantly worsened if the perpetrators had been sexually abused as a child (which was the position in the Waldrup case). So a combination of issues with Nature – (presence of the warrior gene) and nurture (the defendants childhood) had combined to give the defendant a potential defence to the most serious of all violent offences.

This is a potentially startling development that has the potential for a revolution in criminal justice across the world. How would be measure the culpability of an individual if his genetic make up is a factor that shows a pre-disposition to violence?

But oddly enough, even if defence lawyers around the world seek to have their clients tested and push this issue to the forefront, the real controversy will come if prosecutors start to use it. What happens if prosecutors, faced with circumstantial evidence of a crime or the possibility of other suspects, want to perfect their evidence with a blood sample or saliva swab from the most likely defendant to see if they have the so-called murder gene. Or what if the government announced a murder gene collection database?

Once that starts happening, we will all be up in arms!!

Despite those misgivings and that we will probably see the justice system initially resist these arguments, I think by sheer attrition, we will commence a period of acceptance after which the technology of genetics and predisposing genes will become another chapter in the criminal law handbook which will change the field forever.

This article first appeared in LAG in January 2017.