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Pagallo, Ugo; Quattrocolo, Serena --- "The impact of AI on criminal law, and its two fold procedures" [2018] ELECD 1416; in Barfield, Woodrow; Pagallo, Ugo (eds), "Research Handbook on the Law of Artificial Intelligence" (Edward Elgar Publishing, 2018) 385

Book Title: Research Handbook on the Law of Artificial Intelligence

Editor(s): Barfield, Woodrow; Pagallo, Ugo

Publisher: Edward Elgar Publishing

ISBN: 9781786439048

Section: Chapter 14

Section Title: The impact of AI on criminal law, and its two fold procedures

Author(s): Pagallo, Ugo; Quattrocolo, Serena

Number of pages: 25

Abstract/Description:

The aim of the chapter is to examine current trends of AI that may affect the tenets of the criminal law field. By ascertaining whether, and to what extent, the increasing autonomy of AI decision-making can affect such tenets of this field, as the notion of an agent’s culpability (i.e. its means rea), vis-à-vis matters of criminal conduct (i.e. the actus reus), a further differentiation appears critical: AI technology can be used either for law enforcement purposes, or for committing (new kinds of) crimes. The analysis is correspondingly divided into two parts. On the one hand, focus is restricted upon the risks of using AI-based evidence in criminal proceedings. More particularly, attention is drawn to Articles 6 and 8 of the European Convention on Human Rights (“ECHR”). On the other hand, the chapter scrutinizes whether an increasing set of decisions taken by smart robots and AI systems may already fall within the loopholes of the system. The overall aim is to show that current provisions of criminal law, such as the ECHR's rules, can properly tackle the normative challenges of AI as a means for law enforcement purposes and yet, the primary rules of the law that intend to directly govern individual and social behavior do not cover some of the new cases brought on by the use of the technology under examination. The lacunae that follow as a result suggest that we should take into account a different set of norms and procedures, namely, the secondary rules of change that permit to create, modify, or suppress the primary rules of the system. Current developments of AI do not only cast light on the resilience of today’s criminal law systems and the principle of legality, but also on basic categories of jurisprudence and its European counterpart, that is, the “general theory of law.”