Artificial Intelligence is applicable to all fields of the legal world. In the field of criminal law, Artificial Intelligence is used in criminal investigation, which poses a challenge for consultants and lawyers to the extent that they must respect the fundamental rights of any person.
One of the main risks of Artificial Intelligence applied to Criminal Law is the lack of transparency in its use , which would harm the principle of defense and we must answer such basic questions as: are we willing to let an Artificial Intelligence decide on our right to defense?
It is one thing to use Artificial Intelligence for entertainment or other fields, and another to apply it directly to criminal investigations through the use of algorithmic systems that make decisions related to the judiciary and even the police.
Thus, in the regulations that are expected to come into force in the very distant future, that is, in the European Regulation on Artificial Intelligence, they have categorized these uses as high risk , to the extent that they violate the right of defense.
One of the most complex uses of Artificial Intelligence in the criminal field would be the possibility of predicting whether a crime will be committed or not, or whether the person who has committed it may repeat it, based on the profile of a person or selected groups.
For its part, Artificial Intelligence applied to Criminal Law has been the subject of debate on several occasions , with the European Parliament itself showing concern in this regard and, as an example, the Resolution of said body of October 6, 2021 , which referred to two specific practical cases:
- The first, in relation to the use of facial recognition techniques.
- The second, also related to the use of biometric data, following various research projects.
Artificial Intelligence can also be used at the procedural level, although it must respect transparency controls, as well as guarantee the rights of defense and equality of arms that our criminal system protects. In other words, Artificial Intelligence cannot be applied without any control.
Also within the criminal field and, particularly, within the criminal procedural field, we must question whether a robot/machine that uses Artificial Intelligence can be criminally responsible for the crimes it commits.
The prosecutor of the Provincial Prosecutor's Office of Madrid, Mr. Ricardo Zamarro Ballesteros , delved into it in mid-October 2023, who, very forcefully, pointed out that " Artificial Intelligence is not a subject of law, nor is it recognized, at the moment, legal personality, so that at the moment criminal liability for infractions committed using it would be attributed to the natural persons who use this technology, or who program it to commit crimes ."
This issue had already been addressed by the European Parliament's Resolution of 16 February 2017 , which, in its paragraph 59 f), recognised the electronic personality of robots and could be held liable, which was also explored in depth in the Budapest Convention on Cybercrime.
A series of questions arise, still unanswered, and it is that, in principle, it would not be possible to impute crimes to Artificial Intelligence for direct intent , although it could be for eventual intent. Nor would it be possible to consider Artificial Intelligence as a necessary collaborator, so, for the moment, perhaps the best solution would be to consider it as a legal entity, thus applying the doctrine developed by the Supreme Court on the criminal liability of legal entities and, for all, Judgments of the Supreme Court, Criminal Chamber, No. 514/2015, of September 2 and 234/2019, of May 8.
As for crimes committed by or with Artificial Intelligence, although they will be analyzed in later articles, some of the most relevant ones, which do not constitute a numerus clausus classification, are the following:
- Computer fraud, pursuant to Article 249 of the Criminal Code.
- Market and consumer-related offences under Article 248 of the Criminal Code, paragraph 2 – 2º.
- Crimes of pornography and, among others, child pornography, said conduct being included in article 189 and 189 bis of the aforementioned regulations.
- Discovery and disclosure of secrets in accordance with Article 197, 197 bis and 197 ter of the Criminal Code.
- Crime of damage in accordance with article 264 of the aforementioned legal body.
- Public distribution or dissemination through technological devices that result in consumption or generate risks under Article 361 bis of the Criminal Code.
- (…).
Therefore, decisions in criminal matters must be assessed and issued by the Judge who, although they can be supplemented by Artificial Intelligence, cannot be replaced by a system of algorithms that has drawn conclusions through experiences that do not even refer to the person being judged, which, again, we reiterate, would constitute a violation of equality of arms, as well as the right of defense.
