Arlie Loughnan

Drink Spiking and Rock Throwing: The Creation and Construction of Criminal Offences in the Current Era

18 — AltLJ Vol 35:1 2010 Politicians [and others] often express themselves as if the creation of a new offence is the natural or only appropriate response to a particular event or series of events giving rise to social concern ... [T]here is little sense that the decision to introduce a new offence should only be made after certain conditions have been satisfied, little sense that making conduct criminal is a step of considerable social significance.1

Emergent Authority and Expert Knowledge: Psychiatry and Criminal Responsibility in the UK

In the UK context, the rise of the discipline and practice of forensic psychiatry is intimately connected with the concurrent development of principles and practices relating to criminal responsibility. In this article, we seek to chart the relationship between psychiatry and the principles and practices of criminal responsibility in the UK over the early modern, modern and late modern periods. With a focus on claims about authority and expert knowledge around criminal responsibility, we suggest that these claims have been in a state of perpetual negotiation and that, as a result, claims to authority over and knowledge about criminal non-responsibility on the part of psychiatrists and psychiatry are most accurately understood as emergent and contingent. The apparent formalism of legal discourse has tended to conceal the extent to which legal policy has been preoccupied with maintaining the primacy of lay judgments in criminal processes of evaluation and adjudication. While this policy has been somewhat successful in the context of the trial - particularly the murder trial - it has been undermined by administrative procedures surrounding the trial, including those that substitute treatment for punishment without, or in spite of, a formal determination of criminal responsibility.

Madness and crime: historical perspectives on forensic psychiatry.

The human sciences have been profoundly significant in the development of modern society and our current understanding of individuals and groups within them. The human sciences have a fascinating history – emerging first as products of the bourgeois society that arose in the era of the Enlightenment and the French Revolution, the human sciences developed in a dialectical relationship between humanization and disciplining, emancipation and coercion, assimilation and marginalization, and democratic rights and political control. In this article, we sketch the general historical background of forensic psychiatry and we discuss the main themes, points of interest and questions that emerge in the jurisdiction-specific contributions to the special edition of International Journal of Law and Psychiatry for which this article serves as Introduction. Recurring themes include: forensic psychiatry’s relation to legal traditions and schools; the relation between legal and medical ideals, theories, discourses and practices, including in particular differing and changing meanings of criminal insanity and non-responsibility.

Australia: A land of plenty (of legislative regimes)

Australia is a common law-based federation of states and territories that derived its legal system from England. Australia has no national Bill of Rights but its federal constitution grants specific powers to the federal government with the remaining powers exercised by each state. Two states have created human rights statutes. The federal powers to govern crime and tort are limited to crimes or torts falling within one of a number of narrow federal constitutional heads of power. Therefore, most criminal law and tort law is state based and, hence, varies across Australia. On the one hand, each state legislature has ultimate constitutional power to alter the common law through legislation. The federal constitution also enables the enforcement throughout Australia of tortious and criminal decisions by state courts. On the other hand, the High Court of Australia is the ultimate arbiter of the common law of Australia as applicable in each state. The common law system of precedent applicable in Australia thus enables the High Court to bring significant uniformity to tort and crime law in Australia albeit constricted by potentially conflicting state legislation. During the past few decades, statute-based law has proliferated in Australia in many areas including both the criminal and tort spheres. Much of this legislative reform has been driven by ‘law and order’ politics, public policy objectives and lobbying by a powerful insurance industry. Overall, the proliferation of statutes has increased the diversity of both criminal and tort law throughout Australia. Particularly in the area of tort, different states have adopted quite disparate statutory regimes for resolving high frequency disputes such as those involving motor vehicles and work place injuries. However, there remains a strong common law of both tort and crime with a unifying thread provided by the High Court of Australia. There are eight state/territories in Australia of which New South Wales (NSW), Victoria and Queensland are by far the most populous (containing over 75 per cent of the Australian population between them). This chapter most commonly uses NSW as an example because over 30 per cent of Australias population resides in NSW.

The Terrain of Mental Incapacity in Criminal Law

This book offers a study of the terrain of mental incapacity in criminal law. I am particularly interested in the relationship between legal doctrines, practices, and knowledge about mental incapacity. I suggest that the terrain of mental incapacity in criminal law is traversed by a set of mental incapacity doctrines, and marked out by particular legal practices concerning evidence and proof, which themselves rest on different types of knowledges of mental incapacity. I argue that this terrain has a distinctive character, which I analyse under the label ‘manifest madness’. And by introducing the concept of ‘manifest madness’, I invite scholars to engage in a rethinking of this area of criminal law. My study of mental incapacity is based on the criminal law of England and Wales. It advances our understanding of mental incapacity in three main ways. First, I develop a theorized account of the scope of the mental incapacity terrain, based on a rethinking of what it is that particular criminal law doctrines share, and on what basis they are connected. Second, the book provides a careful sociohistorical study of each of the legal doctrines classed as mental incapacity doctrines on my account. In doing this, I focus on a particular mental incapacity doctrine, its attendant practices of evidence and proof, and the different types of knowledge enlisted in those practices. Last, based on my close and systematic study of each doctrine, and with a view to the mental incapacity terrain as a whole, I offer an analysis of the deep structures of the terrain, presented as ‘manifest madness’.