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Arlie Loughnan, Manifest Madness: Mental Incapacity in Criminal Law, Oxford: Oxford
University Press, 2012, xxiii + 282 pp., hb., £65.

Manifest Madness offers a theoretically sophisticated, historically informed account of seven

aspects of English criminal law which it identifies as making up the ‘terrain’ of mental
incapacity. In addition to the four topics that might appear obvious – insanity, unfitness to
plead, diminished responsibility and infanticide – Loughnan also brings non-insane
automatism, infancy and intoxication within the boundaries of mental incapacity. The first
task of the book, as Loughnan explains at the outset, is to provide a theoretical justification
for drawing the boundary in that way. The second task she sets herself is to provide a socio-
historical account of each of the seven doctrines, focusing in each case on the evidential
aspects of the doctrine and the forms of knowledge on. The third is to reveal what she refers
to as the ‘deep structures of the terrain’ (3), summed up in the titular phrase ‘manifest
madness’. I shall discuss each of these in turn; but to summarise, I think that on the whole
Loughnan performs the second task extremely well, while in the first and third she makes
significant, but problematic, contributions to criminal law theory.

The terrain of mental incapacity is defined, on Loughnan’s account, by two formal features.
Each of the seven doctrines constructs a certain kind of qualitative difference between the
defendant and others, which Loughnan terms ‘abnormality’; and insofar as the doctrines are
exculpatory, ‘the evaluative inquiry is not indexed to the reasonable person’ (16). The
functions of mental incapacity doctrines are not, however, limited to exculpation. Infanticide
is both an offence and a defence; diminished responsibility, as the name implies, imputes
some responsibility to the defendant; and voluntary intoxication, for Loughnan, is best
understood as a doctrine of imputation, enabling the courts to attribute mental states of ‘basic
intent’ to defendants who might otherwise be able to deny mens rea. Unfitness to plead and
infancy are procedural doctrines which in Loughnan’s view have significant features in
common.

Loughnan identifies three moves which distinguish her account from the predominant
approaches in the existing literature. The first, which she considers ‘[p]erhaps the most
notable feature’ of her theory, is to talk about ‘doctrines’ rather than defences. Loughnan’s
reasoning in support of this move draws heavily on Antony Duff’s Answering for Crime
(Oxford: Hart, 2007). Her reliance on Duff is odd, because the second move she wishes to
make is away from accounts that centre on moral evaluation and towards a functional account
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which focuses on the way mental condition doctrines relate to other aspects of criminal law;
and Duff’s is a ‘moral evaluation’ perspective par excellence. If one is concerned with how
what the law calls insanity affects the moral evaluation of conduct, it makes sense to argue
that the real moral significance of at least some grave mental disorders is that they make it
inappropriate to hold the sufferer responsible for her actions at all. They ground an
‘exemption’ from moral responsibility, as opposed to an ‘excuse’ which negates
blameworthiness for conduct for which one is prima facie responsible. For Duff, moreover,
the morally crucial feature of a true defence is that it is the accused’s answer to an accusation
of wrongdoing: hence his point, which Loughnan takes as a further reason to talk of doctrines
rather than defences, that in some cases of very grave disorder an exculpatory explanation
will be offered only from a third-person perspective, typically that of a psychiatrist. (This is
by no means true of all insanity defences; someone who had an epileptic seizure or a
psychotic episode may be perfectly capable of explaining that fact.) If, however, one is
interested not in moral philosophy but in a functional account of existing common-law
doctrine, it seems clear that insanity and diminished responsibility belong among the excuse
defences. Like other excuses and unlike exemptions, they focus on the defendant’s mental
state in relation to a specific act, and avoid any suggestion of a blanket denial of
responsibility, in contrast, for example, to the concept of démence under the Napoleonic
Code.

Loughnan also claims that insanity and diminished responsibility differ from true defences
because they are not necessarily advanced by the defendant; but this is not a special feature of
mental condition defences. It is equally a feature of loss of control (formerly provocation),
which can sometimes be foisted by the prosecution and/or the judge on a defendant who
wished only to plead self-defence.

One need not be convinced by Loughnan’s ‘defences to doctrines’ argument to accept the
conclusion of her functional analysis, that all the mental incapacity doctrines are predicated
on the identification of defendants who are different from others, whether permanently or
transiently, as opposed to those who are excused because they did what anyone might have
done in the circumstances. She refines this point in her third move, ‘from function to form’
(22), that is, to an identification of the specific form such difference takes. Here Loughnan
develops the theme that the relevant difference is ‘abnormality’. As she admits, this might
seem counterintuitive in the case of infancy, but even here there is an implicit contrast with
an adult standard of normality. Current debates about raising the age of criminal
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responsibility suggest that Loughnan is on to something here: one often hears it argued that
adolescents’ brains are not fully developed, implying that their reasoning processes are
‘abnormal’ by adult standards. Loughnan does not take a position on whether the age of
responsibility should be raised: her concern is with the function and symbolic importance of
the boundaries marking out the responsible subject of criminal law, rather than with moral
issues about where those boundaries should be drawn,

Those exculpatory doctrines that construct the defendant as ‘abnormal’ are not ‘indexed,’
writes Loughnan, to the standard of the ‘reasonable person’, a figure so ‘central to the
modern criminal law’, that she finds ‘something intriguing about its absence’ from the terrain
of mental incapacity (36). It seems to me that there is less of a puzzle here than Loughnan
thinks, and that the absence of the ‘reasonable person’ standard is an almost inevitable
corollary of the presence of ‘abnormality’. The ‘reasonable person’, as Loughnan notes
(following Tatjana Hörnle), is one of a number of possible formulae for a person who meets a
certain kind of social expectation (35). In the new law on loss of control which has replaced
provocation, a different formula is used: ‘a person of D’s sex and age, with a normal degree
of tolerance and self-restraint and in the circumstances of D’ (Coroners and Justice Act 2009,
s. 54(1)(c)). In place of the ‘reasonable person’ we find the person who is ‘normal’ in certain
respects, but this is still in effect a ‘reasonable person standard’. The reasonable person is the
person who meets standards of behaviour expected of normal people. If someone is identified
as abnormal, it at least raises a question as to whether it is fair to expect them to meet the
same standards. The ‘exculpatory doctrines’ of mental incapacity identify the situations in
which those deemed abnormal are not held to normal standards of behaviour. Intoxication, on
the other hand, is a doctrine that normal standards continue to apply in some circumstances to
people who have put themselves in an abnormal condition.

The recent case of R v Oye [2013] EWCA Crim 1725 shows how the antithesis between
abnormality and reasonableness can work against the defendant, when coupled with the rule
that the onus of proving insanity or diminished responsibility lies with the accused. The Court
of Appeal held that a person claiming to suffer delusions which would, if proved on the
balance of probabilities, found an insanity defence, cannot plead mistaken self-defence on the
basis that he used reasonable force in the circumstances as he believed them to be. In the
surprisingly old-fashioned language of Davis LJ, ‘it makes as little sense to talk of the
reasonable lunatic as it did, in the context of cases on provocation, to talk of the reasonable
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glue-sniffer’ (ibid., [47]). In light of this decision we should perhaps add insanity to the list of
doctrines that are partly inculpatory.

Loughnan’s analysis of the distinguishing features of mental incapacity doctrines provides

the foundation for her socio-historical account of the seven doctrines she has identified. In
one respect it is, as I have suggested, a flawed foundation because it obscures the extent to
which the ‘exculpatory doctrines’, in particular insanity, have always been treated by the
courts as excuse defences. The failure of Loughnan’s theoretical apparatus to focus on the
judges’ resistance to allowing mental incapacity to become anything like an exemption
(except in the case of infancy) may explain the disappointingly brief and thin character of her
discussion of the ‘nature and quality’ and ‘knowledge of wrong’ limbs of the insanity
defence, which served historically both to align the defence to the logic of excuses and to
keep the power of medical expertise at bay. (Loughnan and I do not disagree about the
historical point, as can be seen in our co-authored article ‘Emergent Authority and Expert
Knowledge: Psychiatry and Criminal Responsibility in the UK’ (2014) Int. J. Law &
Psychiatry, in press.)

In other respects, Loughnan succeeds admirably in interweaving historical and doctrinal

scholarship in her quest for the ‘deep structure’ of mental incapacity doctrines. The central
argument of her historical analysis is that while all forms of mental incapacity have become
objects of expert knowledge, the expert’s entry into the courtroom has not banished lay
knowledge, the form of knowledge defined by the very fact of not being the province of
experts. On the contrary, it is the interplay between lay and expert knowledges that has
largely shaped the ways in which mental incapacity of abnormality is constructed in the
criminal courtroom. This is not only because lay juries adjudicate on defences but because
judges, who are laypeople in relation to medicine, draw on lay knowledge to develop and
sustain legal doctrine. For example, Loughnan argues convincingly that the notoriously
obscure distinction between crimes of ‘basic’ and ‘specific intent’ – voluntary intoxication
affording a defence only to the latter – has deep historical roots and reflects a persistent lay
understanding of the effects of alcohol.

It is from her historical account that Loughnan distils her view of the ‘deep structure’ of
mental incapacity. Her analysis centres on the idea of ‘manifest madness’ – a term suggested
by George Fletcher’s concept of ‘manifest criminality’. By ‘manifest’, Loughnan means both
that the ‘madness’ is a ‘readable’ feature of the defendant’s conduct and that the conduct
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itself manifests the underlying incapacity. In the case of infanticide, for example, the
mother’s killing of her child can be ‘read’ as a self-evidently irrational act which ‘manifests’
a mental disturbance of which the birth or lactation was the cause.

The use of the term ‘madness’ emphasises that this is a lay rather than a scientific category,
but it also ‘manifests’ Loughnan’s tendency, which she does not explicitly theorise, to treat as
the paradigm cases of mental incapacity that subset of insanity defences where defendants are
insane in the sense that is synonymous with madness, rather than in the extended legal sense.
Other forms of mental incapacity are related to these paradigm cases by analogies which at
times become a little strained. I can see the sense in suggesting that the law treats childhood
as an ‘abnormal’ state, but it is taking it a bit far to say that in the eyes of the law young
children are manifestly mad! There is a similar problem with Loughnan’s identification as a
key feature of ‘madness’ that it is a ‘disposition’, a continuing state with analogies to status
or character. How does this apply to automatism? It is odd to talk about epilepsy or diabetes
as ‘dispositions’ to have seizures or become hyperglycaemic, and even harder to apply the
language of ‘disposition’ to the so-called ‘external’ causes of non-insane automatism like the
famous hypothetical attack by a swarm of bees (Kay v Butterworth (1945) 61 TLR 452).
What Loughnan should perhaps have argued here is that automatism is a penumbral instance
of mental incapacity: like the core instances of ‘madness’ it constructs the defendant as
(albeit momentarily) different in kind from normal agents, but unlike them it does not
construct that abnormality as dispositional. Such an argument would require an explanation
of why ‘madness’ rather than, say, infancy, should be taken as the paradigmatic form of
incapacity.

Despite these problems, the concept of ‘manifest madness’ does make a valuable contribution
to the understanding of mental condition defences. Loughnan is right to single out the
interplay between lay and expert knowledge, and between evidential and substantive aspects
of legal doctrine, as crucially important aspects of this area of law. The normative
implications of her argument, however, are highly ambiguous. Loughnan refrains from
drawing any general conclusion at the end of her book, ending instead with a discussion of
the conflicting judicial views of the application of the old law of provocation to mentally
abnormal defendants. Her final sentence about ‘the profound significance of the
normal/abnormal distinction for the criminal law and the disruption that flows from any
blurring of the conceptual boundaries between the two states’ (258) is capable of being read
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either as a conservative call to keep the boundaries clear, or as a critical comment on the
criminal law’s practices of normalisation and exclusion.

While Loughnan’s move from a moral-evaluative to a functional perspective has merit as a

way of clarifying the existing law and its evolution, it does seem necessary at some point to
bring moral evaluation back in. Loughnan’s analysis appears to sit well with a widely-held
view of moral responsibility as marking out those who are appropriate targets for what P.F.
Strawson famously called the ‘reactive attitudes’ (Freedom and Resentment and Other
Essays, London: Methuen, 1974). Strawson’s point, after all, was that no amount of expert
knowledge about the causes of human behaviour would induce people to stop resenting
conduct that appeared to manifest certain intentions and attitudes towards them. Certain kinds
of ‘abnormality’, however, place people outside the scope of social practices of blame and
praise and elicit an ‘objective’ rather than a ‘reactive’ attitude. A Strawsonian view, then,
appears to provide a basis for the kind of division of labour between lay and expert
knowledges that Loughnan’s analysis reveals: experts can help to identify various kinds of
abnormality, but the appropriateness of reactive attitudes is a matter of lay judgment which
any competent participant in the relevant social practices and relationships can make. That
leaves open the questions whether the experts can really do what they claim (and how non-
experts know whether they can or not) and whether the expression of reactive attitudes
adequately justifies anything like our existing penal practices. Let us hope that Arlie
Loughnan will return to these questions in future with as much insight and scholarship as she
has brought to this book.

Tony Ward1

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Law School, University of Hull