In many jurisdictions, including England and Wales, psychopaths are unable to succeed with an insanity defence. This has been influenced by a legal view of psychopathy as a condition characterised by a reduced ability to comply with the law, which is otherwise fully understood. Evidence from cognitive neuroscience, however, may potentially challenge this traditional legal conception of psychopathy. In this regard it has already been suggested, based partly on scientific evidence, that it may be appropriate for at least some psychopaths to succeed with an insanity defence where they can be shown to lack moral competence. In this thesis, I critically examine this possibility. I first examine the insanity defence in English law, showing how psychopaths have effectively been excluded from the defence by judicial interpretation of the insanity defence criteria. Consequently, if psychopaths lacking moral competence were to be identified, reform (or reinterpretation) of the defence would be required. I then present philosophical arguments in favour of the case that some psychopaths should gain access to an insanity defence, before clarifying which psychopaths ought potentially to succeed, and which criminal offences ought potentially to be relevant, for the purposes of a reformed or reinterpreted defence. In order to clarify which psychopaths are relevant psychopaths (RPs), it is necessary to go beyond existing scientific evidence. It is argued, based on emerging neuroscientific findings and current research techniques, that while it is not currently possible to identify RPs, it may be possible in the future. Even if it this becomes possible, however, the philosophical case for access to an insanity defence remains deeply problematic. Although RPs may lack moral competence, for example, they may nevertheless possess other capacities relevant to criminal responsibility. After closer examination, it is argued that the case for access to an insanity defence may be best viewed as a case for mitigation rather than exculpation. I conclude by considering some of the implications of this analysis in an English legal context, should it become possible to identify RPs. Of particular relevance is the possibility that RPs may be at high risk of causing serious harm to others. This illuminates important possible relationships between responsibility and risk, and diagnostic advancements and risk assessment, in this area. There are also broader implications for the management of psychopaths in the future, given that greater scientific understanding may lead to enhanced predictive abilities that could tempt policymakers towards more radical strategies. This thesis contributes to an ongoing debate about the role that cognitive neuroscience may play in decisions about the criminal responsibility of psychopaths. My main contribution is to clarify how psychopaths lacking moral competence may be identified in the future, and relate this neuroscientific discourse to arguments for providing these persons with access to an insanity defence. It is argued, however, by reference to legal, policy, scientific and philosophical considerations, that the risk such persons would pose, rather than their capacity for criminal responsibility per se, may have significant legal and policy implications in England and Wales in the future.

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Two prominent historians, David Cannadine and Brad Gregory, have recently contended that history is distorted by overemphasis on human difference and division across time and space. This problem has been acute in studies of Native-Newcomer relations, where exaggeration of Native pre-contact stability and post-contact change further emphasized Native-Newcomer difference. Although questioned in economic, social and political spheres, emphasis on cultural difference persists. To investigate the problem, this study examined the Algonquian wihtiko (windigo), an apparent exemplar of Native-Newcomer difference and division. With a focus on the James Bay Cree, this study first probed the wihtiko phenomenon’s Native origins and meanings. It then examined post-1635 Newcomer encounters with this phenomenon: from the bush to public opinion and law, especially between 1815 and 1914, and in post-1820 academia. Diverse archives, ethnographies, oral traditions, and academic texts were consulted. The cannibal wihtiko evolved from Algonquian attempts to understand and control rare but extreme mental and moral failures in famine contexts. It attained mythical proportions, but fears of wihtiko possession, transformation and violence remained real enough to provoke pre-emptive killings even of family members. Wihtiko beliefs also influenced Algonquian manifestations and interpretations of generic mental and moral failures. Consciously or not, others used it to scapegoat, manipulate, or kill. Newcomers threatened by moral and mental failures attributed to the wihtiko often took Algonquian beliefs and practices seriously, even espousing them. Yet Algonquian wihtiko behaviours, beliefs and practices sometimes presented Newcomers with another layer of questions about mental and moral incompetence. Collisions arose when they discounted, misconstrued or asserted control over Algonquian beliefs and practices. For post-colonial critics, this has raised a third layer of questions about intellectual and moral incompetence. Yet some critics have also misconstrued earlier attempts to understand and control the wihtiko, or attributed an apparent lack of scholarly consensus to Western cultural incompetence or inability to grasp the wihtiko. In contrast, this study of wihtiko phenomena reveals deeper commonalities and continuities. They are obscured by the complex evolution of Natives’ and Newcomers’ struggles to understand and control the wihtiko. Yet hidden in these very struggles and the wihtiko itself is a persistent shared conviction that reducing others to objects of power signals mental and moral failure. The wihtiko reveals cultural differences, changes and divisions, but exemplifies more fundamental commonalities and continuities.