Workshop: Law and the Whole Truth

Workshop: Law and the Whole Truth

10-11 August 2017, University of Glasgow

This interdisciplinary legal workshop presents and examines different perspectives relevant to the relationship between law and the "whole truth". The workshop, introduced by Prof. Burkhard Schafer (University of Edinburgh), is divided into four sessions: 1) Information disclosure and the whole truth; 2) Defamation, perjury and the whole truth; 3) Law, neuroscience and the whole truth; and 4) Philosophical perspectives on law and the whole truth.

All talks will take place in the Reid Room, 69 Oakfield Avenue, G12 8QQ.

This workshop will be of interest to solicitors working in a range of legal areas, such as media law, medical negligence and criminal law. Certificates of attendance, for the purposes of CPD certification, will be available on request.

 

Thursday 10th

[9.30-10: coffee]

10-10.45: Prof. Burkhard Schafer (University of Edinburgh, School of Law) – Introduction to workshop

Session 1: Information disclosure and the whole truth

10.45-11.30: Dr Tracey Elliott (University of Leicester, School of Law) – “Must we tell the family? Genetic information, disclosure and telling the truth post Montgomery

11.30 -12.15: Dr Ema Sullivan-Bissett (University of Birmingham, Department of Philosophy) – "Belief, Truth, and Biological Function"

12.15-12.45: General discussion

[lunch]

Session 2: Defamation, perjury and the whole truth 

2-2.45: Campbell Deane (Partner at BKF & Co, Glasgow) – “Veritas: the worst defence for publishers”

2.45-3.30: Prof. Alan Paterson (University of Strathclyde, Law School) – “Legal Truth – where the duties to the Court and the Client collide”

3.30-4: General discussion

 

Friday 11th 

[10.15-10.45: coffee]

Session 3: Law, neuroscience and the whole truth

10.45-11.30: Prof. Francis Shen (University of Minnesota, Law School) – “Neuroscience, Mental States, and the Law”

11.30 -12.15: Dr Neil Garrett (Princeton University, Neuroscience Institute) – “How the brain adapts to dishonesty”

12.15-12.45: General discussion

[lunch] 

Session 4: Philosophical perspectives on law and the whole truth 

2-2.45: Prof. Paul Roberts (University of Nottingham, School of Law) – “Against Legal Truth”

2.45-3.30: Dr Simon Barnes (University of Edinburgh, School of Law) – "Psychopathy and the insanity defences: clarifying the terrain"

3.30-4.15: General discussion and conclusion (Prof. Burkhard Schafer)

  

Abstracts:

 

Dr Simon Barnes – “Psychopathy and insanity defences: clarifying the terrain”

Psychopathy is excluded from the scope of insanity defences in many jurisdictions, at least insofar as this might form the basis of a defence. Underlying these exclusions are legal conceptions of psychopathy, often presented as a distillation of responsibility-relevant features of the condition. Over recent decades, however, there has been an explosion of scientific interest in this area, leading to a tension between emerging scientific understanding and sometimes simplistic legal conceptions. This paper presents a critical examination of legal conceptions of psychopathy, in light of relevant clinical portrayals of psychopathy and findings from cognitive psychology and neuroscience. This interdisciplinary perspective on psychopathy is then tested against differing approaches to insanity, focusing for brevity on the disparate approaches to the defence in Scots and English law. It is argued that there is a risk of oversimplification where science is applied in a legal context, and that some psychopaths could potentially succeed with some insanity defences (in the absence of any formal exclusions). The complexity of psychopathy, though, including its possible dimensional nature, brings a number of wider issues into focus, which are also highlighted.

Dr Tracey Elliott – Must we tell the family? Genetic information, disclosure and telling the truth post Montgomery

In Montgomery v Lanarkshire Health Board [2015] UKSC 11, the Supreme Court re-examined the duty of a doctor towards a patient in relation to advice about treatment and its risks. The full ramifications of Montgomery are still being worked out, but by adopting a test for disclosure which defines a material risk as being not merely one to which a reasonable (or ‘prudent’) patient would be likely to attach significance, but as including a risk to which “the doctor is or should reasonably be aware that the particular patient would be likely to attach significance”, the Supreme Court may be seen as aligning the requirements of the law more closely with those of professional practice.

In some cases, however, information provided to a patient about a medical condition may have profound implications for their family. Advances in genetic testing and knowledge in relation to the human genome and inheritable conditions mean that it is possible to test patients to ascertain whether they have, or are likely to develop numerous genetic conditions. However, since blood relations, particularly close relatives, will have genetic material in common, the implications for such individuals of a patient being diagnosed with a genetic disorder such as Huntingdon’s disease may be very significant. This in turn raises difficult issues for healthcare providers about whether, and to what extent, the results of tests revealing that a patient suffers from a genetic mutation should be disclosed to third parties. Issues relating to the disclosure of genetic information were recently considered for the first time by an appellate court in ABC v. St. George’s Healthcare NHS Trust [2017] EWCA Civ 336, with the Court of Appeal holding that ABC had an arguable claim in negligence and under Article 8 ECHR against the trust for their failure to tell her that her father had Huntingdon’s Disease. This paper examines this case, considering the competing interests involved in protecting patient confidentiality in relation to genetic information and in the disclosure of such information to relatives in order that they may make informed decisions about their health and reproductive choices, and whether, and in what circumstances, liability should be imposed on health care providers in negligence, or under Article 8 for failing to tell relatives about genetic disorders.

Dr Neil Garrett – “How the brain adapts to dishonesty”

Dishonesty is an integral part of our social world, influencing domains ranging from finance and politics to personal relationships. Anecdotally, digressions from a moral code are often described as a series of small breaches that grow over time. In this talk I provide evidence for a gradual escalation of dishonesty and reveal a neural mechanism supporting it, adaptation. Behaviourally, I show that the extent to which participants engage in dishonesty increases with repetition. Using functional MRI, I show that brain regions involved in processing emotion are sensitive to the history of dishonest behaviour, consistent with adaptation. These findings uncover a biological mechanism that supports a ‘slippery slope’: what begins as small acts of dishonesty can escalate into larger transgressions. I will end the talk by drawing out the implications of these findings for jurisprudence and society in general. 

Prof. Alan Paterson – “Legal Truth – where the duties to the Court and the Client collide”

This paper focuses on the tension between the lawyer’s duty of candour to the court and the lawyer’s duty of confidentiality to the client. In so doing it necessarily examines aspects of “legal truth” and “the whole truth” in terms of the adversarial system. Swearing to tell “the truth, the whole truth and nothing but the truth” is quite misleading – civil party litigants on oath may be expected to tell the truth, but not the whole truth. Not the least interesting aspect of the topic is the contrast that exists between common law and civilian legal systems in this area and the tensions which arise when a jurisdiction switches from one approach to legal truth to another.

Prof. Paul Roberts – “Against Legal Truth”

The concept of ‘legal truth’ regularly crops up in jurisprudential theorising, interdisciplinary scholarship, and more informal public discussion of legal process. The implicit, and sometimes express, contention is that ‘legal truth’ is different from, and may be contrasted with, another kind of truth or, possibly, truths. But this way of speaking and thinking is confused and misleading. There is only one meaningful concept of truth, and it is actually quite simple and widely accepted by philosophers since Aristotle: p is true if p. And exactly the same concept of truth pertains to law as it does to any other practical domain containing propositional claims or knowledge.

Why, then, does the idiom of ‘legal truth’ persist? This paper explores this question, and provides a tentative answer, diagnosing the source of the malady in two – separate, but potentially mutually aggravating – symptoms. First, it is suggested that legal-truthers may be confusing the (conceptual and ontological) question of the nature of truth with other kinds of question. For example, they may be referring to (institutional, social and political) questions of law’s power to fix meaning and define reality; or to questions about the (ontological) status of legal propositions; or to (epistemological) questions of what the factual truth actually is or was, and how we can reliably know it, in relation to any particular disputed matter in contested legal proceedings. Whilst the concept of truth is simple and straightforward, the truth of the matter is often complex and irremediably uncertain. Developing robust epistemological criteria and effective practical heuristics for supporting and evaluating truth-finding in legal process is an urgent, and relatively neglected, set of tasks for jurisprudential and evidentiary scholarship.

A second confusion to which legal-truthers may be prone draws attention to an essential insight about legal process in general, and criminal adjudication in particular. It is entirely correct to say that the facts ascertained, accepted or assumed in criminal adjudication are sometimes contradicted by other forms of inquiry (eg journalism, history, academic research); or indeed by other legal processes (eg civil trials alleging private wrongs, reinvestigations by the Criminal Cases Review Commissions, collateral proceedings for asset recovery or compensation claimsfor miscarriages of justice). It is also fair to say that, although modern legal systems strive to correct their demonstrable errors where they can (eg through regular appeals procedures), the law is not scandalized by apparently discrepant factual findings nor does this kind of contradiction generally prompt systematic institutional reform. But these justified observations in no way warrant the further inference that ‘legal truth’ – the truth produced by particular legal proceedings – is a special kind of institutionalised product, with epistemological characteristics deviating from truth simpliciter. Rather, the fact is that truth is not the primary currency of legal proceedings; justice is. In criminal adjudication, in particular, truth-finding serves justice, not the other way around; and whilst accurate fact-finding is an essential requirement of any rational process of adjudication, truth in law sometimes has to give way to other criteria of justice.

The priority of justice to truth in legal adjudication is hardly a new or startling insight, yet it continues to generate controversy and debate. So far as positive English law is concerned, the question of fundamental priorities in criminal adjudication has been settled authoritatively since 2005 at the very latest – and has been hiding in plain sight ever since. Criminal trials that deviate from the truth do so either by accident (because fact-finding in the context of contested criminal proceedings is sometimes very difficult and inherently uncertain) or by design (because justice demands it). In neither scenario is it apt or necessary to invoke any peculiar concept of ‘legal truth’. But the concept of ‘legal truth’ does not merely invite Occam’s Razor, it is also positively mischievous in manufacturing puzzlement and diverting attention away from the correct characterisation, and understanding, of criminal trial proceedings. ‘Legal truth’, in short, is worse than good for nothing, and our jurisprudence and public discourse would be well shot of it.

Prof. Francis Shen – “Memory Detection and the Law”

Assessing the credibility of human memory is a central feature of the criminal and civil justice systems, from early stages of investigations to courtroom adjudication. For over two decades scientists and legal scholars have observed that brain-based memory detection using electroencephalography (EEG) might have the potential to improve legal outcomes. Yet interdisciplinary research on the legal application of EEG-based memory detection has been slow to develop. In this talk, Professor Shen will discuss novel research exploring the legal use of EEG-based memory detection. Professor Shen will discuss how the technology works, how it is distinct from lie detection, and why it might one day be promising for forensic use.  

Dr Ema Sullivan-Bissett – “Belief, Truth, and Biological Function”

I give an explanation of why truth is the standard of correctness for belief by appeal to biological function. Other explanations have focused on the nature of belief itself in order to explain why truth is the standard of correctness in this domain. I suggest moving away from thinking about belief to thinking about believers. In particular, thinking about the particular (biological) circumstances of believers, and how they might contribute to the nature of belief and its formation. I will argue that human believers are not so strongly hooked up to truth as has been supposed. Although focus on the biological function of our mechanisms for belief production can explain why truth is the standard of correctness for belief, it also demonstrates that the connection to truth had by human believers is more tenuous than is often supposed.