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Legal culture is usually 20 years behind science. That shouldn’t sound controversial – science is about testing, then announcing, the new. Courts are increasingly about following through on largely unknown consequences of scientific development.

With a legal definition of insanity rooted firmly in the 19th century, criminal lawyers are used to encouraging medical experts to develop forensic schizophrenia to define as insane those who cannot then be treated. Now the challenge is more subtle: the idea that a sane person foresees and intends the natural consequences of their actions is under examination. However you slice it, the challenge is a serious one. It raises the prospect not only of claiming that ‘my brain made me do it’, but also that ‘my brain didn’t stop me doing it’.

There seem to me to be two issues. The first is the extent to which we are prepared to limit individuals’ freedom for what is perceived as the greater good. Should we replace the unwritten doctrine that the more specific the intent to hurt, the longer the sentence? If not, how do we deal with those whose brains permit small but critical malfunctions, infrequently but unpredictably? Second, do we adopt the science before it has answered what, in legal terms at least, is the corollary question: namely, to what extent can individuals with neurological deficiencies overcome their difficulties?

As a layman (and a religious one at that), I expect and hope we will discover that behavioural problems cannot entirely be explained by science. Experience leads me to believe that people with a predilection to be nasty, brutish and short can often avoid all three.

The 21st-century criminal justice system thus faces three challenges which, if not entirely new, have a bright, fresh look to them. How do we deal with people who, science tells us, may well be dangerous one day? How do we sort out those who can, but do not, help themselves? And, most crucially, as our knowledge of what makes us tick develops, how do we match criminal responsibility to punishment?

We seem to be on the cusp of a revolution in the way we perceive human ‘wickedness’, yet for those engaged in determining who is locked up, for what, and for how long, the emphasis is still on doing a quick, cheap, job. The current plethora of ill-considered legislation demonstrates (perhaps by design) an illusion of activity, rather than careful thought or planning. That, in turn, suggests that the Government is either engaged in dodging these issues, or has not yet recognised their existence. The phrase ‘Justice is Blind’ has had a rather depressing makeover.

Click here to read Raymond Tallis's response: My brain made me do it

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Simon Myerson, QC, is a barrister at Park Court Chambers, where his practice covers criminal, clinical negligence, public law and general commercial matters