intervene in individual thought processes, there is a real risk of breach of the right to mental privacy and freedom of thought.194 The concern around this notion is that memories will be recovered via an intrusion into a person’s mental privacy and integrity, when they would otherwise be forgotten.195 Likewise, considering the malleability of long‑term memories, the permissibility of memory recovery technology could open doors to malicious application of this kind of intervention, including memory alteration. Criminal responsibility The inclusion of neurotechnology in the criminal justice system may also have significant implications for the manner in which cases are heard, even altering the tests used in court. In determining whether a person is criminally responsible for the crime committed, in most cases, with the exception of strict liability offences, they must have the requisite mental state, or mens rea, at the time they committed the crime.196 The premise behind this principle is that ‘it is generally neither fair nor useful to subject people to criminal punishment for unintended actions or unforeseen consequences unless these resulted from an unjustified risk’.197 Due to direct intervention with the offender’s mind, the lines between sole responsibility and ‘third party’ involvement are blurred when neurotechnology is involved which can have implications as to how the current legal tests apply. For example, when it comes to crimes committed due to an impulse where the offender cannot physically resist committing the offence, BCIs could be installed to alert the offender of an impending impulse to offend.198 This may have implications when it comes to a court’s consideration of the mens rea element, but precisely how it would be interpreted remains an open question. Where the offender is aware that they may commit a crime, but actively ignore warnings, could criminal responsibility be traced back to the moment they ignored the implant’s notification or turned off the 26 BCI?199 Alternatively, does the notification by the implant indicate that these impulses exist separate from a conscious intent to commit the crime? Similarly, where this BCI malfunctions, the court will have to consider this as an external influential factor either in the analysis of mens rea or as a mitigating factor during sentencing.200 Sentencing Neurotechnology may also potentially extend to applications in the period after adjudication, as part of the sentencing process or even as an alternative to incarceration. A key perceived advantage when compared to conventional sentencing options is that neurotechnology may provide a greater focus on rehabilitation by reducing the risk of reoffending.201 Forms of rehabilitation such as cognitive behavioural therapy and education programs are favoured over more biological approaches such as neurotechnology, which can be highly invasive in nature.202 However, the conventional solutions may fail to consider the ‘extensive interplay of the environment and biology and the plasticity of the brain in response to environmental influence’ and that more effective forms of rehabilitation may ensure public safety.203 By reducing tendencies which lead to a pattern of criminal behaviour, these interventions do not act as a ‘biological fix’.204 Examples of such mechanisms include neurotechnology which identifies neural precursors that trigger feelings of aggression and then stimulates the brain to calm the subject down, allowing them to make rational decisions after obstructive influences, such as aggression, are no longer present.205 In the Netherlands, a judge can impose mandated mental health treatment after incarceration where the period of treatment carries from four years or as long as the judge deems necessary.206 Neurotechnology may be offered as part of such mandated mental health treatment in an effort to aid the process for rehabilitation and eventual Protecting Cognition: Background Paper on Human Rights and Neurotechnology