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You are here: BAILII >> Databases >> The Law Commission >> A New Homicide Act For England And Wales? (Consultation Paper) [2005] EWLC 177(9) (20 December 2005)
URL: http://www.bailii.org/ew/other/EWLC/2005/177(9).html
Cite as: [2005] EWLC 177(9)
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PART 9
INFANTICIDE
QUESTIONS AND PROVISIONAL PROPOSALS
9.1 We ask:
(1) Should the offence/defence of infanticide be retained or abolished?
[paragraphs 9.72-9.74]
(2) If the offence/defence of infanticide should be retained, should it be:
(a) minimally reformed; (our provisional proposal)
(b) moderately reformed; or
(c) radically reformed?
[paragraphs 9.75-9.92]
(3) If the offence/defence of infanticide is abolished, should infanticide cases be subsumed within a reformed defence of diminished responsibility?
[paragraphs 9.93-9.95]
(4) If a biological mother of a child of one year or less is convicted of murdering that child and at trial did not raise the defence of infanticide, should the judge be empowered to order a psychiatric report on the mother with a view to establishing whether or not there is evidence that at the time of the killing the requisite elements of a charge of infanticide were present?
[paragraphs 9.97-9.106]
(5) If so, should the judge then be able to postpone sentence and certify the conviction for appeal on the ground of fresh evidence?
[paragraphs 9.97-9.106]
(6) Are consultees aware of any alternative reforms which could provide a way of addressing the problem which was identified in Kai-Whitewind?
[paragraphs 9.97-9.106]
9.2 The minimal, moderate and radical reform options are set out in detail in paragraphs 9.75-9.92.
INTRODUCTION: A UNIQUE OFFENCE
9.3 Infanticide is an offence in its own right.[1] It is also a defence to a charge of murder.[2] Notwithstanding that the offence involves deliberate killing, it routinely results in non-custodial sentences for those women who are convicted of it.[3] It is also the only offence in English law for which mental abnormality is a prerequisite. The offence is infrequent. In 2000, for instance, there were only two cases in England and Wales.[4] Recent research into the significant features or characteristics of particular cases dealt with either by the courts or the prosecuting authorities is limited.[5] We have commissioned research by Professor R D Mackay in this area as part of the Review.
HISTORICAL BACKGROUND
9.5 Until the seventeenth century, the law classified infanticide as murder. In 1624, the crime of concealment of the death of an illegitimate child was introduced, largely in response to the medical difficulty of proving that a dead infant had been born alive.[6] Proven cases of infanticide continued to be classed as murder. The 1624 Act was repealed in 1803.[7] By the mid to late nineteenth century, concerns were expressed regarding the severity of the death penalty for mothers convicted of murdering their infants.[8] These concerns largely arose from society's increasing recognition of the social stigma and poverty experienced by mothers of illegitimate children. Sympathy for these mothers was reflected in the high acquittal rate and the large proportion of death sentences passed on such women that were commuted to imprisonment.[9] This situation was considered to be making a "solemn mockery" of the judicial process.[10]
9.6 At this time, medico-psychological theories emerged which associated childbirth with increased mental vulnerability and instability.[11] These theories were adopted as a basis for taking a more lenient approach to infanticide cases. However, it seems that the introduction of the more lenient approach was motivated largely by the "solemn mockery" being made of the judicial process in infanticide cases.[12] Thus, although a medical basis was introduced, it appears that the tacit intention was that it would have broader application than strict cases of mental disturbance induced by the effects of giving birth or lactation.
9.7 The medical model of infanticide was first adopted in the Infanticide Act 1922 ("the 1922 Act"). It provided that a mother who killed her newly born child when "she had not fully recovered from the effect of giving birth to such a child, but by reason thereof the balance of her mind was disturbed" would be guilty of infanticide rather than murder. It soon became clear that the restriction of infanticide to "newly born" children led to arbitrary and arguably unjust results.[13] In 1938, infanticide was extended to include children under the age of 12 months and disturbance of the mind by reason of lactation ("the 1938 Act").[14] This remains the law in England and Wales today, and has been adopted by numerous common law jurisdictions.[15]
INFANTICIDE AND DIMINISHED RESPONSIBILITY UNDER SECTION 2 OF THE HOMICIDE ACT 1957
9.8 When the 1922 Act was enacted there was, of course, no partial defence of diminished responsibility in English law. So, from its inception, the offence/defence of infanticide has served the purpose of mitigating the harshness of the law of murder insofar as women who kill their infant children are concerned. The question whether or not the 1938 Act is now otiose in the light of section 2 of the 1957 Act has been rigorously examined on at least two occasions.[16] There are obvious differences between the provisions of the 1938 Act and section 2 of the 1957 Act. Four of these differences are perhaps of the greatest importance.
9.10 Secondly, infanticide, unlike diminished responsibility, is an offence in its own right.
RETAINING BUT REFORMING THE OFFENCE OF INFANTICIDE: MINIMAL, MODERATE AND RADICAL REFORM OPTIONS
9.17 Some countries have a lower age limit, some a higher one.[17] The Victorian Law Reform Commission heard evidence that most infanticide cases occur within two years of birth.[18] So, a minimal expansion of the offence/defence could involve extending the age limit to two years. This has been the course adopted in the Crimes (Homicide) Act 2005 in Victoria, Australia,[19] following the recommendations of the Victorian Law Reform Commission.[20]
CRITICISMS OF THE OFFENCE
The psychiatric basis of the offence
9.20 The most common criticism of the 1938 Act is what is often claimed to be the unsubstantiated psychiatric premise on which it is based. Those who would seek to abolish the offence argue that it medicalises a condition in order to absolve the actor from moral blame. Professor Walker has characterised the Act as a process of "myth-making by legislation."[21] In other words, it has created a link between childbirth and infanticide that would not otherwise have existed.
9.22 The fact that the offence is necessarily gender specific, coupled with the uncertain psychiatric basis which underlies it, has continued to fuel debate. According to Ussher, the origin of the nineteenth-century image of women as "infirm and labile" leading to biological vulnerability can be traced as far back as the misogynistic works of the fifteenth-century witch hunters Sprenger and Kraemer.[22] For the purposes of legal discourse, a concept of biological vulnerability presents women as irrational and unable to take responsibility for their actions.
9.23 Some critics have claimed that the 1938 Act exemplifies a wider pattern of neutralising female guilt, responsibility and dangerousness, to obviate the need for punitive or custodial sanctions.[23] For many critics this has undesirable consequences. The privileges it affords women are said to be bought at the expense of making "legal invalids of women, of excluding them from their full status as legal subjects and of perpetuating their social and legal subordination".[24]
9.24 Postpartum depression has, however, been the subject of a great deal of psychiatric research. Postpartum psychosis remains central to perinatal psychiatry, despite uncertainty over its nosological status.[25] In 1987, Kendall attempted to assess the impact of childbirth on maternal mental health by cross-linking case registers of maternity and psychiatric admissions. Mental illness was shown to be far more common in women after childbirth than at any previous time.[26]
9.25 There is also a close relationship between postpartum psychosis and major affective disorder. Although the actual mechanism by which this occurs is unknown, it is believed that the hormonal changes following childbirth trigger affective disorder in women who are genetically vulnerable to such illnesses. In 1995, Cooper and Murray were able to identify a group of women who became depressed after childbirth but not after other life events.[27]
9.26 Notwithstanding criticism of the psychiatric basis of the offence/defence of infanticide, some have argued that the policy of mitigation for mothers who kill their infants embodied in the 1938 Act can be justified in psychiatric terms.[28] Maier-Katkin and Ogle analyse the existence of several different postpartum psychiatric conditions, which can range in severity from the mild to the moderate. As many as half of all new mothers are affected by the "baby-blues". Most people, however, at some point in their lives experience transient depression, especially in response to a prolonged situation of stress. That means it is hardly surprising that researchers find that new mothers also experience depression.
9.27 As to this last point, it has been observed that childbirth differs from most of the other events which are known or suspected to contribute to the aetiology of psychiatric disorders, "in occurring at a precise time, in affecting only one person and in having its occurrence routinely recorded for the population as a whole."[29] These unique advantages make it easier to calculate relative risks more accurately than is possible for other significant life events.
9.28 The most severe postpartum psychiatric illnesses are puerperal psychosis and psychotic depression. These are characterised by agitation, confusion, marked disturbance of sleep, hallucinations, delusions and violent behaviour. Postpartum psychotic depression combines the qualities of puerperal psychosis with those of severe depression. It has been said to affect 6.8 mothers per 1000 births.[30] Psychiatrists seem unable to agree, however, about the nature and aetiology of these psychoses during the postpartum period. One school maintains that biological changes associated with pregnancy have a role in precipitating the illness, whereas the other claims that puerperal psychosis is not a single illness but a collection of types of illnesses that manifest themselves during a period of vulnerability.[31]
9.29 There is at present, however, no official diagnosis of postpartum illness. The term was taken out of the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association in the earlier part of the twentieth century and in 1972 the World Health Organization also took it out of its International Classification of Diseases.[32] It would, however, be misleading to say that the link between childbirth and mental illness is mythical, as the existence of psychoses during the postpartum period is still referred to in diagnostic manuals.[33]
The Act only applies to the biological mother
9.31 The limitation of the offence/defence of infanticide to biological mothers is clearly based on the psychiatric assumptions underlying the Act. However, such a constraint precludes fathers and other primary carers such as adoptive, foster and step-parents (whether male or female) all of whom may be affected by the stress and environmental factors (that the Criminal Law Revision Committee was prepared to recognise)[34] from being able to rely on the defence.
9.32 Studies of homicide cases where the victim was under the age of one year have shown that women are consistently treated more leniently than men.[35] Wilczynski and Morris have also concluded that "mothers were less likely than fathers to be convicted of murder or to be sentenced to imprisonment and were more likely to be given probation and psychiatric dispositions".[36] If, as has been suggested, it is the consequences of early parenting and the social factors surrounding this which cause depression or other impairment of responsibility in parents of small children,[37] then perhaps the law should explicitly recognise this instead of maintaining a fiction that factors consequent on the birth only affect the biological mother?
9.33 Doughty[38] provides an example of a case in which a father killed an infant. In that case, the Court of Appeal held that the persistent crying of a seventeen-day-old baby could in theory amount to provocation (although they fully expected a jury to reject it on the merits).[39] This case provides an interesting contrast to infanticide cases. The father, who was said to be "caring and affectionate", had attempted to silence the child by covering his head with cushions and kneeling on them, thus killing him. He had his conviction for murder quashed and one of manslaughter substituted. He received a sentence of five years' imprisonment.
9.34 Why did he not receive a much lower sentence, as would a mother convicted of infanticide in similar circumstances? One possibility is that the circumstances in which mothers kill their infants differs from that of men (and possibly other carers) who kill infants. This difference may justify a disparity in treatment. According to Marks and Kumar, "[f]athers kill their infants more violently than do mothers, suggesting that there may be differences in male and female psychopathology with respect to this crime".[40] Similarly, Australian research indicates that most parental or in loco parentis child killers are male.[41] Further, the Australian Federation of Community Legal Centres has suggested that:
While men kill to control or punish their children or their partner, women kill children because they cannot cope with the extreme difficulties they encounter in trying to care for their children. [42]
9.35 This conclusion is supported by an Australian study of child homicides committed in Victoria between 1985 and 1995 conducted by Christine Alder and Kenneth Polk.[43] Alder and Polk state that: "[w]ithin the context of family child homicides, the content of the case studies indicated clear differences in situations where women were the offenders, in contrast to men."[44] For example, men were more likely to kill when they flew into a rage and assaulted the child, particularly if they were not the biological father. Biological fathers were more likely to kill children in the context of a separation from the mother or threat of separation. Alder and Polk state that: "[t]hreats to the man's control and possession of his wife in particular, and in some cases children, appear to be trigger events in many of these scenarios."[45]
9.36 However, Alder and Polk also note that there are "similarities in terms of the material circumstances of the men and women who committed these offences."[46] They conclude that "these are men and women with limited economic and social resources … most often they are at the lower end of the socio-economic spectrum … they are also often people who feel personally and socially isolated."[47]
9.37 Apart from the disparity between the treatment of biological mothers and other carers, the fact that the law only applies to the biological mother of the child can lead to apparent arbitrariness. Consider the case of the new mother whose mind is disturbed by the effects of giving birth, who in killing her own infant simultaneously kills someone else's infant for whom she is caring at the time. In such circumstances, there would be a presumption that her disturbed balance of mind had caused her to kill her own infant, and she could plead or be charged with infanticide. In relation to the other infant, however, she would be forced to rely on the defence of diminished responsibility.[48] Under the current law this would be complicated by the fact that diminished responsibility must be raised and proved by the defendant.
The age limit of the victim
9.38 As indicated in paragraph 9.16, the age limit of 12 months is arbitrary. Some might argue that it should be less than 12 months, as in Malaysia.[49] In support of this view, psychiatric research has suggested that 90 days is probably the most realistic time between childbirth and psychiatric presentation during which an illness should be designated puerperal, the highest rate of psychiatric admission being during the first 30 days after birth.[50] Thus, insofar as there is any psychiatric justification for the defence, it is arguable that the present age limit of the victim should be lowered. Having said that, in support of the status quo, it is worth noting that in a 1998 psychiatric study of suicide and other causes of mortality after postpartum psychiatric admission in Denmark, it was found that suicides and deaths from all unnatural causes were most likely to occur in the first year after childbirth.[51]
9.40 In New Zealand the offence of infanticide applies where the mother kills any of her children under the age of ten[52] and infanticide has been interpreted there as capable of applying to a child who was not the biological child of the accused.[53] However, as has been pointed out by Mackay,[54] it should be borne in mind that there is no diminished responsibility plea in New Zealand. In Victoria, Australia, Parliament is currently considering a Bill to extend the age limit of the victim to two years, pursuant to a recommendation of the Victorian Law Reform Commission.[55] However, like New Zealand, there is no diminished responsibility defence in Victoria.
The morally unsustainable mitigation of child killing
9.41 There is an argument that the offence/defence of infanticide should simply be abolished. For abolitionists, the 1938 Act unjustifiably enables a defendant who is guilty of murder to escape a conviction. After all, so the argument runs, the 1957 Act gives her[56] the opportunity of pleading diminished responsibility, provocation, or both together. By providing a special offence/defence of infanticide, the law devalues the life of the infant, implying that his or her life is more expendable, and his or her killing less serious, than that of a person over the age of 12 months.
9.42 Against this position, is the argument that the existence of the offence/defence of infanticide does not imply that the law devalues the lives of infants. Mothers found guilty of infanticide are still held accountable for a serious offence. However, like the defences of provocation and diminished responsibility, the offence/defence of infanticide recognises that the circumstances of the killing (in particular, the disturbance of the mother's mind) justify the provision of a lesser offence than murder. In the words of the Law Reform Commission of Victoria, the offence/defence of infanticide recognises that infanticide is a "distinctive kind of human tragedy" which calls for a distinctive response.[57] Further, the case of Doughty demonstrates that infanticide is not the only defence that can apply in cases of child homicide.[58]
Degrees of child killing
9.43 In their study of child homicide, Alder and Polk identify five classifications of child homicide.[59] These are: neonaticide (killing of an infant within 24 hours of his or her birth), fatal physical assault, attempted suicide or suicide by a parent accompanied by child killing, exceptional psychiatric disturbance of a parent leading to child killing, and distinctive cases which fall outside the previous classifications.[60] Given the different circumstances in which children are killed, even within the first 12 months of life, it may be appropriate to recognise different degrees of culpability and limit the offence/defence of infanticide accordingly.
9.45 Sainsbury[61] was one such case. In that case the appellant, a woman aged seventeen, pleaded guilty to infanticide. She had fallen pregnant at the age of fourteen as a result of a relationship with a boyfriend. She did not tell anyone and eventually gave birth without any medical assistance in the bathroom of her boyfriend's flat. The baby was disposed of in a river. It was not known whether it was alive or dead at the time. The Court of Appeal reduced a sentence of 12 months detention to one of probation. Lewis[62] was a similar case in which (for reasons which are not clear) the defendant pleaded guilty to diminished responsibility and the Court of Appeal imposed the same sentence as in Sainsbury.
9.47 The recent Australian case of Azzopardi[63] is an example of a very young, but not newly born, baby being killed by her mother whilst she was suffering from postnatal depression. The baby was five weeks old. Significantly, the defendant had wrestled with the symptoms of post-natal depression for some time prior to the killing. She had been unable to breastfeed and on being kept awake at night she had sat up ruminating upon what she saw as her inability to be a good mother. One expert described her as suffering from "significant depression, characterised by sleep disruption, loss of appetite, ruminations about guilt and worthlessness, together with a sense of hopelessness."[64] To exclude this case from the offence/defence of infanticide on the basis that the mother did not kill the child within 24 hours of its birth may appear arbitrary and may lead to injustice.
SUMMARY OF PREVIOUS PROPOSALS FOR REFORM
The common factors
9.48 The law has recently been described by the Court of Appeal as "unsatisfactory and outdated."[65] Previous proposals for reform suggest that there is a need to reform the law of infanticide. The proposals share the following:
(1) a desire to rid the Act of the unsubstantiated and outdated reference to lactation;
(2) a desire to make the law accurately reflect the fact that it can be the circumstances consequent upon the birth of the infant which affect the balance of the defendant's mind as opposed to a specific psychiatric condition;
(3) acknowledgement of the benefit of being able to charge a particular defendant with a specific offence other than murder; and
(4) restriction of the law to biological mothers.
The Butler Report
9.49 Problems with the link between mental illness and female biology would undoubtedly have been addressed by some of the earlier proposals for reform of the 1938 Act. In its Report on Mentally Abnormal Offenders in 1975, the Butler Committee addressed the issue of infanticide in conjunction with that of diminished responsibility.[66] The Committee described it as an offence based on the concept of diminished responsibility, for the purpose of avoiding a conviction of murder or manslaughter. The Committee recommended the abolition of the 1938 Act. It is important to bear in mind that this was in the context of the proposed abolition of the mandatory life sentence and that, accordingly, it was envisaged that each case would attract appropriate and individualised penalties. There was not a rejection of the underlying purpose of the Act and there was no criticism of the sentences that the judiciary had been imposing.
9.50 The Committee noted that, "[a]lthough the maximum penalty on conviction of infanticide is imprisonment for life, in practice the mother who has killed her child is almost invariably treated very leniently." It was also noted that it would have been unlikely that the Act would ever have been conceived if the defence of diminished responsibility had been recognised.[67] The reason for this was that the defence of diminished responsibility is so widely interpreted that it would, in practice, cover all cases of infanticide by a woman whose balance of mind is disturbed. The Committee was of the view that the mental disturbance necessary for a conviction under the 1938 Act would fit comfortably into the meaning of section 2(1) of the 1957 Act.
9.51 The Committee noted that the medical principles that underpinned the 1938 Act, "may no longer be relevant".[68] The Committee report stated:
The theory behind the Act was that childbirth produced a hormonal disorder which caused mental illness. But puerperal psychoses are now regarded as no different from others, childbirth being only a precipitating factor. Minor forms of mental illness following childbirth are common, but psychoses, which usually occur in the first month, are much less so (between 1 and 2 per 1,000 deliveries). The danger to the infant in the acute stages is well recognised and guarded against in the provisions made for the care of such cases. Mental illness is probably no longer a significant cause of infanticide. Dr DJ West, who studied cases where married women had killed their children, found no particular association with this period. The operative factors in child killing are often the stress of having to care for the infant, who may be unwanted or difficult, and personality problems; to some extent these affect the father as well as the mother and are not restricted to a year after the birth.[69]
9.53 The Committee acknowledged, however, that the 1938 Act offered the following two advantages over diminished responsibility. Firstly, as is observed above, it allows the prosecution to charge infanticide as opposed to murder. Conversely, there is no provision enabling the prosecution to charge manslaughter by virtue of diminished responsibility. Rather, the prosecution is forced to wait for the accused to rely on diminished responsibility as a defence. Secondly, by charging infanticide the prosecution thereby concedes the issue of mental disturbance, obviating the need for the defendant to prove it.[70]
9.54 The Committee's recommendation as to abolition was predicated on the recommendation:
(1) that the mandatory life sentence for murder should be abolished, as should the provision for diminished responsibility which would then be unnecessary; or
(2) that there should be some revision of section 2 of the 1957 Act. The burden of proving "diminished responsibility" should be removed from the defendant, who should have only to adduce evidence to raise the issue. The present practice by the courts of accepting a plea of guilty to manslaughter where there is sufficient medical evidence supporting "diminished responsibility" should continue. It should be open to the prosecution, if the defence agrees, to charge manslaughter in the first instance where they have evidence to show that a case for diminished responsibility can be made out.
The Fourteenth Report of the CLRC
9.56 In 1980, the Criminal Law Revision Committee (CLRC) revisited the law of infanticide and departed significantly from the proposals of the Butler Committee.[71] In its fourteenth report the CLRC referred to the fact that the Butler Committee had proposed the abolition of the 1938 Act, but stated that following the publication of the CLRC working paper many informed bodies were persuaded that the Act ought to be retained.[72] The CLRC was of the opinion that the offence of infanticide should be retained.
9.58 The CLRC's main objection to the proposal of the Butler Committee was that a redefined section 2 of the 1957 Act would prove too restrictive and would exclude some cases that were dealt with as infanticide under the Act. Further, there would be a danger of diagnostic disputes which did not arise under the Act.[73] Finally, infanticide was an offence for which imprisonment was rarely an appropriate sentence, and for which a life-sentence, the maximum for manslaughter, was never imposed.[74]
9.59 The CLRC proposed amendments to section 1(1) of 1938 Act which were designed to reflect contemporary medical evidence. Thus, the CLRC recommended that the reference to, "the effect of lactation" be removed as there could no longer be said to be any medical connection between lactation and mental disorder.[75]
(1) overwhelming stress from the social environment being highlighted by the birth of a baby with the emphasis on the unsuitability of the accommodation etc;
(2) overwhelming stress from an additional member of a household struggling with poverty;
(3) psychological injury, and pressures and stress from a husband or other member of the family from the mother's incapacity to arrange the demands of the extra member of the family;
(4) failure of bonding between mother and child through illness or disability which impairs the development of the mother's capacity to care for the infant.[76]
In cases now dealt with as infanticide it is a matter of human experience that the mental disturbance is connected with the fact of the birth and the hormonal and other bodily changes produced by it, even when it is related primarily to environmental or other stresses consequent upon the birth; but we think that the connection, where it is indirect in this sense, might be difficult to establish by medical evidence if expressed in a modern statute as a direct consequence of the birth.[77]
9.62 Two members of the CLRC dissented from the proposition that the offence should be widened so as to encompass such problems likely to be precipitated by environment.[78] Their main objection was that there would be no logical reason why, if factors of environment disturbed the balance of mind, this should be limited to infanticide as opposed to minimising the penalty for any criminal offence. Secondly, the lack of bonding, relied on as the basis for the proposal, could not be said to exclude cases of child cruelty and neglect which did not result in death. It was said that there would be a real danger of defendants being artificially brought within the ambit of the offence because of the conflation of factors relating to birth and adverse social conditions contributing to imbalance of mind.
9.64 Other proposals made by the CLRC included the retention of the 12 months age restriction,[79] as well as provision for an offence of attempted infanticide. They also recommended that the burden of proof on the defendant in infanticide should only go to adducing sufficient evidence to raise the issue.[80] This was consistent with the recommendation as to the burden of proof in cases of diminished responsibility.[81]
The Law Commission: Draft Code
(1) A woman who with the fault specified in section 56 or section 57(1)(c), kills or is a party to the killing of her child by an act done when the child is under the age of twelve months and when the balance of her mind is disturbed by reason of the effect of giving birth or of circumstances consequent upon that birth, is not guilty of murder or manslaughter but is guilty of infanticide.
(2) A woman who in the circumstances specified in subsection (1), attempts or is a party to an attempt to kill her child is not guilty of attempted murder but is guilty of attempted infanticide.
(3) A woman may be convicted of infanticide (or attempted infanticide) although a jury is uncertain whether the child had been born and had an existence independent of her when his death occurred (or, in the case of an attempt, when the act was done).
THE PRESENT LEGISLATIVE CONTEXT: DOMESTIC VIOLENCE, CRIME AND VICTIMS ACT 2004
(1) A person ("D") is guilty of an offence if
(a) a child or vulnerable adult ("V") dies as a result of an unlawful act of a person who(b) was a member of the same household as V, and(c) had frequent contact with him,(d) D was such a person at the time of that act,(e) at that time there was a significant risk of serious physical harm being caused to V by the unlawful act of such a person, and(f) either D was the person whose act caused V's death or(g) D was or ought to have been, aware of the risk mentioned in paragraph (c),(h) D failed to take such steps as he could reasonably have been expected to take to protect V from the risk, and(i) the act occurred in circumstances of the kind that D foresaw or ought to have foreseen.
(2) The prosecution does not have to prove whether it is the first alternative in subsection (1)(d) or the second (sub-paragraphs (i) to (iii)) that applies.
(3) If D was not the mother or father of V
(a) D may not be charged with an offence under this section if he was under the age of 16 at the time of the act that caused V's death;(b) for the purposes of subsection (1)(d)(ii) D could not have been expected to take any such step as is referred to there before attaining that age.
(4) For the purposes of this section
(a) a person is to be regarded as a "member" of a particular household, even if he does not live in that household, if he visits it so often and for such periods of time that it is reasonable to regard him as a member of it;(b) where V lived in different household at different times, "the same household as V" refers to the household in which V was living at the time of the act that caused V's death.
(5) For the purposes of this section an "unlawful" act is one that
(a) constitutes an offence, or(b) would constitute an offence but for being the act of:(i) a person under the age of ten, or(ii) a person entitled to rely on a defence of insanity. Paragraph (b) does not apply to an act of D.[82]
OPTIONS FOR REFORM
The abolitionist position
9.73 The abolitionist position is supported by the argument noted in paragraphs 9.41-9.42 that categorising the killing of infants merely as "infanticide" may seem to be devaluing the life of the most vulnerable in society. Whatever the cause, infanticide is a form of domestic violence. However, the sentencing pattern which has emerged over the last fifty years in infanticide cases means that the death of a child under the age of one year contrasts sharply with sentencing under other legislation. For example, schedule 21 of section 269 of Criminal Justice Act 2003 imposes a minimum sentence on a convicted child-killer of 25-30 years' imprisonment, subject to a number of conditions.[83] In contrast, the court in Sainsbury noted that "of 59 cases of infanticide recorded … between 1979 and 1988, not one has resulted in a custodial sentence. There have been 52 orders either of probation or supervision, six hospital orders, one of which was restricted."[84]
9.74 The abolitionist position is also supported by criticisms of the limitation of the offence/defence of infanticide to biological mothers, noted in paragraphs 9.31-9.37. The disparity between the treatment by the criminal justice system of biological mothers and other carers, particularly fathers, who kill their children, is arguably discriminatory and may lead to injustice. For example, as noted in paragraph 9.32, research by Morris and Wilczynski has shown that in general women who kill their children are more likely to be treated with greater lenience than men.[85] [Question 1]
The minimal reform position
9.75 The minimal reform position holds that the offence/defence of infanticide should be retained, subject to minor amendments. Those in favour of minimal reform not only believe that there is a psychiatric need to preserve infanticide as a separate category of killing, but use psychiatric evidence to justify the disparity in the way that child-killings are treated by the courts. For example, according to Kendall et al the risk of mental illness after childbirth varied according to the length of time that had elapsed since child-birth, and the nature of the illness: the risk of psychotic illness was increased 35 fold in the first 30 days after delivery.[86] On this view, however, the 'lactation' theory should be consigned to history, as it has been shown to be unfounded.
9.76 On the minimal reform view, there is a case for raising the age limit of the victim to, say, two years, which would catch almost all instances of child-killing influenced by postpartum depression. This is the approach incorporated in the Crimes (Homicide) Act 2005 in Victoria, Australia, in line with the recommendations of the Victorian Law Reform Commission.[87]
The moderate reform position
9.80 The CLRC's proposal would widen the ambit of infanticide, by making factors consequent upon the birth extraneous to the defendant's psychology, but capable of affecting it, relevant to whether she was suffering from disturbance of the mind.[88] An alternative formulation of this approach is noted by the Court in Kai-Whitewind.[89] Rather than "circumstances consequent upon birth", the Court used the phrase "circumstances subsequent to the birth, but connected with it".[90]
9.83 Against this proposition is the research of Alder and Polk, which shows that the circumstances in which women kill their children is notably different to that in which men kill their children.[91] This difference arguably justifies the continued limitation of the offence/defence of infanticide to biological mothers, while at the same time incorporating circumstances consequent upon birth as part of the offence/defence. This is supported by the fact, that although the psychiatric evidence is uncertain, the "disturbance of the mind" that may lead to mothers killing their infant children appears to be linked the mother's post-natal condition, whether due to the effects of birth, or circumstances consequent thereon. Further, fathers and other carers would still be able to put forward a plea of diminished responsibility, or possibly even provocation.[92]
9.84 Although as indicated in paragraph 9.63 the causes of mental disturbance or abnormality should be of only evidentiary significance to the existence of a disturbed balance of mind, the moderate reform position would require that the defendant's act or omission which caused the death of the infant must be causally connected to the 'disturbance of mind'. Otherwise, a defendant could potentially make a successful plea of infanticide on the basis that her mind was disturbed, even if that disturbance was not the cause of the act or omission that resulted in the infant's death.[93] Such an amendment would bring the offence/defence of infanticide in line with the defence of diminished responsibility in section 2 of the 1957 Act.
9.86 Thus, the moderate reform position would:
(1) incorporate either "circumstances consequent upon birth" or "circumstances subsequent to the birth, but connected with it" into the offence/defence of infanticide, in accordance with the CLRC's recommendations;
(2) require that the "disturbance of the mind" of the mother is causally connected to the act or omission by the mother which resulted in the infant's death;
(3) raise the age limit of the child to 2 years; and
(4) remove the reference to lactation. [Question 2(b)]
The radical expansionist position
9.88 On the radical expansionist view, it is thus possible that someone such as the father in Doughty[94] would be able to rely on the defence, if he could produce evidence of mental disturbance influencing his actions at the time of the offence. This might be repugnant to many people. However, schedule 21 of section 269 of the Criminal Justice Act 2003 mentions as mitigating factors lack of premeditation and mental disorder, along with provocation, especially in the form of prolonged stress.
9.91 Finally, the radical expansionist position would remove the reference to lactation.
9.92 Thus the radical expansionist position would:
(1) extend the offence/defence of infanticide beyond biological mothers to fathers and possibly to other carers;
(2) require that the "disturbance of the mind" of the carer is causally connected to the act or omission by the carer which resulted in the infant's death;
(3) remove the restriction on the age limit of the victim; and
(4) remove the reference to lactation. [Question 2(c)]
Merger with diminished responsibility
9.93 Whatever the preferred option, the future of the offence cannot be viewed in the absence of whatever is proposed for reform of diminished responsibility. The relationship between, and potential merger of, infanticide and diminished responsibility is discussed in paragraphs 9.8-9.13. One problem with a 'merger' solution may be, if true, the claim that: "Postnatal depression is frequently undetected and therefore untreated in clinical practice, partly because women do not report their symptoms to health professionals."[95] If that is true, it may be difficult for the defendant to discharge the burden of proof under a revised section 2 of the 1957 Act, through supporting medical evidence. Further, there would be a danger that the tendency to impose compassionate and lenient sentences in cases of infanticide may be erased when such cases are subsumed into the generality of diminished responsibility sentencing.
9.95 However, if infanticide is widened in terms of its applicability to carers other than the biological mother and the 12 month limit in relation to the age of the victim is removed or increased (as has been recommended in other jurisdictions)[96] then there are likely to be considerably more cases where infanticide is pleaded as a defence. In such circumstances, a 'merger' solution may be more appropriate. [Question 3]
Application to "first degree murder" and "second degree murder"
9.96 The present offence/defence of infanticide applies to cases that, if not for the 1938 Act, would constitute murder. If our proposed statutory framework for the law of homicide is adopted,[97] we make the firm proposal that the offence/defence of infanticide would apply to cases that would otherwise be "first degree murder" or "second degree murder". We make this proposal for two reasons. Firstly, the offence/defence of murder infanticide was introduced in part to avoid labelling mothers who commit infanticide murderers. Secondly, if the offence/defence of infanticide was limited to cases that would otherwise be "first degree murder", then this would lead to the unjust result that a mother who intended to kill would plead infanticide, whereas a mother who merely intended serious harm or acted recklessly would be classed as a second degree murderer. To avoid this anomaly, the offence/defence of infanticide must apply to both first and second degree murder.
Charging and procedure at Trial
9.97 In the recent case of Kai-Whitewind, the Court of Appeal highlighted two areas of concern in relation to the offence/defence of infanticide.[98] The first was whether as a matter of substantive law infanticide should extend to circumstances subsequent to the birth, but connected with it, such as the stresses imposed on a mother by the absence of natural bonding with her baby.[99] Clearly this is something which could readily be dealt with by the moderate reform option. The second area has not been a feature of previous proposals for reform. It was described as when the mother who has in fact killed her infant is unable to admit it:
This may be because she is too unwell to do so, or is too emotionally disturbed by what she has in fact done, or too deeply troubled by the consequences of an admission of guilt on her ability to care for any surviving children. When this happens it is sometimes difficult to produce psychiatric evidence relating to the balance of the mother's mind. Yet, of itself, it does not automatically follow from denial that the balance of her mind was not disturbed: in some cases it may help to confirm that it was.[100]
9.98 It is easy to see how cases which should be dealt with as infanticide are actually dealt with as murder with the catastrophic consequences that this entails. If someone is in denial then it becomes impossible, in an adversarial system, to obtain and present psychiatric evidence. This problem is also manifest in some cases which ought to be dealt with by way of diminished responsibility but which cannot be, as the denial of the accused (a) prevents diagnosis and so the evidence is not available at trial, and/or (b) prevents legal representatives from exploring or raising the issue.[101]
9.99 When this has arisen in cases which, it is claimed on appeal, ought to have been dealt with by way of diminished responsibility, the Court of Appeal has consistently held that the defendant must put her entire defence at trial. She cannot attempt to have two trials by referring to evidence on appeal which could have reasonably been introduced at the time of trial. However, when it is the case that there is psychiatric evidence that (i) the defendant was ill and it was the illness itself which prevented her from making disclosure to doctors and instructing legal representatives as to her mental condition, and (ii) the evidence is unopposed by the respondents,[102] then it will be in the interests of justice for such evidence to be received for the purpose of section 23(2)(d) of the Criminal Appeal Act 1968.[103]
9.101 In cases where the defendant may have grounds for an infanticide defence, but denies having killed the child, as was the case in Kai-Whitewind, some would like to see a situation where the jury were automatically given the option of considering infanticide. This is not possible. Although a trial judge has the power to leave the option of a verdict for a lesser offence on the indictment, he can only do so where there is some evidence which could go to support such a verdict, on the case as presented by the prosecution.[104] For this to apply to infanticide there would need to be evidence of mental imbalance at the time of the killing. The possibility of the trial judge ordering an independent psychiatric report in order to see if such evidence is available is not a feasible one. This is notwithstanding that provision already exists for a judge to remand an accused to hospital in order that a report on the accused's mental condition is prepared.[105] Without the cooperation of the defendant, medical examination is not possible. The procedure would derogate from the right against self-incrimination. Such a procedure would also interfere with the integrity of the adversarial process and militate against whatever defence was being put leading to grounds for appeal in the event of a conviction for either murder or infanticide.[106]
9.102 One possibility for easing the problem identified in Kai-Whitewind is as follows. In those limited circumstances where infanticide is not raised as an issue at trial and the defendant (biological mother of a child of one year or less) is convicted by the jury of murder, the trial judge should, within the conclusion of 28 days from conviction, have the power to order a thorough medical examination of the defendant. This would be with a view to establishing whether or not there is evidence that at the time of the killing the requisite elements of a charge of infanticide were present. If so, then the trial judge should be able to postpone sentence and the fixing of the minimum term.[107] Rather he would be empowered to certify the murder conviction for appeal.[108] This would be done following a hearing in open court. The procedure amounts to recognition of the very exceptional circumstances of this type of case.[109] This would obviate the need for an appellant to apply to the single judge of the Court of Appeal for leave. It is designed to ensure a hearing before the full court on the basis of fresh evidence. Where a certificate for leave to appeal is granted by the trial judge, bail pending appeal may also be granted by the Crown Court.[110] The Court of Appeal would then consider whether to admit the fresh evidence and, if it did, whether the juries verdict was unsafe. It would have the power to substitute a verdict of infanticide for murder. [111]
9.103 The defendant could not and would not be compelled to undergo such an independent medical assessment and it may well be the case that she would not wish to take advantage of the procedure. Indeed, in circumstances where there are likely to be grounds of appeal against conviction it is entirely conceivable that she would be advised not to. However recent public endeavours to prevent the repetition of miscarriages of justice[112] in cases where mothers have been wrongly convicted of murdering infants, as in the cases of Clark[113] and Cannings,[114] may contribute to greater vigilance in the gathering, disclosure and admission of expert evidence. Accordingly, it is to be hoped that cases where biological mothers are wrongly convicted and rightly maintain their innocence will be fewer. Short of a referral by the Criminal Cases Review Commission, there can only be one appeal against conviction in any particular case.[115] In the event of defence counsel advising of the existence of additional grounds of appeal against the murder conviction, leave would have to be sought in the usual way from the single judge.
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Note 1 Infanticide Act 1938, s 1(1) provides:
Where a woman by any wilful act or omission causes the death of her child being a child under the age of twelve months, but at the time of the act or omission the balance of her mind was disturbed by reason of her not having fully recovered from the effect of her giving birth to the child or by reason of the effect of lactation consequent upon the birth of the child, then notwithstanding that the circumstances were such that but for this Act the offence would have amounted to murder, she shall be guilty of felony, to wit infanticide, and may for such offence be dealt with and punished as if she had been guilty of the offence of manslaughter of the child. [Back] Note 3 N Walker, Crime and Insanity in England: Volume One, The Historical Perspective (1965) 133:
… the virtual abandonment of prison sentences as a means of dealing with a crime involving the taking of human life is one of the most striking developments in the history of our sentencing policy. [Back] Note 4 N Lacey, C Wells and O Quick, Reconstructing Criminal Law: Text and Materials (3rd ed 2003) 776. [Back] Note 5 Mackay relied on a sample of cases between 1982-1985 as the basis for his research in: R D Mackay, “The Consequences of Killing Very Young Children” [1993] Crim LR 21, 21. Alder and Polk reviewed cases of child homicide in Victoria, Australia, committed between 1985 and 1995: C Alder and K Polk, Child Victims of Homicide (2001). [Back] Note 6 An Act to Prevent the Destroying and Murthering of Bastard Children 21 James 1 c 27 1624. [Back] Note 7 Lord Ellenborough’s Act 42 Geo 3 c 58 1803. [Back] Note 8 K O’Donovan, “The Medicalisation of Infanticide” [1984] Crim LR 259, 261; J A Osbourne, “The Crime of Infanticide: Throwing Out the Baby with the Bathwater” (1987) 6 Canadian J of Family L 47, 53; C B Backhouse, “Desperate Women and Compassionate Courts: Infanticide in Nineteenth-Century Canada” (1984) 34 U Toronto LJ 447, 462; T Ward, “The Sad Subject of Infanticide: Law, Medicine and Child Murder, 1860-1938” (1999) 8(2) Social and Legal Studies 163, 164-165. [Back] Note 9 K O’Donovan, “The Medicalisation of Infanticide” [1984] Crim LR 259, 261; J A Osbourne, “The Crime of Infanticide: Throwing Out the Baby with the Bathwater” (1987) 6 Canadian J of Family L 47, 53; C B Backhouse, “Desperate Women and Compassionate Courts: Infanticide in Nineteenth-Century Canada” (1984) 34 U Toronto LJ 447, 461. [Back] Note 10 N Walker, Crime and Insanity in England: Volume One, The Historical Perspective (1965) 130; K O’Donovan, “The Medicalisation of Infanticide” [1984] Crim LR 259, 261; K Laster, “Infanticide: A Litmus Test for Feminist Criminological Theory” (1989) 22 Australian and New Zealand J of Criminology 151, 162. [Back] Note 11 B McSherry, “The Return of the Raging Hormones Theory: Premenstrual Syndrome, Postpartum Disorders and Criminal Responsibility” (1993) 15 Sydney LR 292, 297-298, 315; C L Meyer and M Oberman, Mothers Who Kill their Children: Understanding the Acts of Moms from Susan Smith to the “Prom Queen” (2001) 11. [Back] Note 12 N Walker, Crime and Insanity in England: Volume One, The Historical Perspective (1965) 130; K O’Donovan, “The Medicalisation of Infanticide” [1984] Crim LR 259, 261; K Laster, “Infanticide: A Litmus Test for Feminist Criminological Theory” (1989) 22 Australian and New Zealand J of Criminology 151, 162. [Back] Note 13 Eg, in O’Donoghue (1927) 20 Cr App R 132, the Court of Appeal held that the offence could not apply to a child of 35 days. [Back] Note 14 Infanticide Act 1938, s 1(1). [Back] Note 15 For example, similar provisions exist in the Australian states of Victoria (Crimes Act 1958, s 6), New South Wales (Crimes Act 1900, s 22A) and Tasmania (Criminal Code Act 1924, s 165A), as well as various other common law countries. [Back] Note 16 The Butler Committee and the Criminal Law Revision Committee (CLRC) both examined the point: Report of the Committee on Mentally Abnormal Offenders (1975) Cmnd 6244 (The Butler Report); Criminal Law Revision Committee, Offences Against the Person (1980) Report 14, Cmnd 7844. The former resolved that those cases with which the 1938 Act was concerned could just as well be dealt with under section 2 of 1957 Act whereas the CLRC came to a different conclusion. [Back] Note 17 Under the Malaysian Penal Code, the child must be “newly born” (s 309A), whereas in New Zealand the offence of infanticide applies to children under ten: Crimes Act 1961 (NZ), s 178. Under New Zealand law there is no defence of diminished responsibility. [Back] Note 18 Victorian Law Reform Commission, Defences to Homicide: Final Report (2004) para 6.39. [Back] Note 19 Crimes (Homicide) Act 2005, s 5. [Back] Note 20 Victorian Law Reform Commission, Defences to Homicide: Final Report (2004) para 6.37-6.41. [Back] Note 21 N Walker, Crime and Insanity in England: Volume One, The Historical Perspective (1965) 136. [Back] Note 22 J Ussher, “Reproductive Rhetoric and the Blaming of the Body” in P Nicolson and J Ussher (eds) The Psychology of Women’s Health and Health Care (1992) 34-35. [Back] Note 23 H Allen, “Rendering Them Harmless” in P Carlen and A Worrall (eds) Gender, Crime and Justice (1987). [Back] Note 24 Edwards (1985) cited in H Allen, “Rendering Them Harmless” in P Carlen and A Worrall (eds) Gender, Crime and Justice (1987). [Back] Note 25 L Appleby, C Kumar and R Warner, “Editorial: Perinatal Psychiatry” (1996) 8 International Review of Psychiatry 5, 5. [Back] Note 26 Ibid. See also, R E Kendall, J C Chalmers and C Platz, “Epidemiology of Puerperal Psychoses” (1987) 150 British J of Psychiatry 662. [Back] Note 27 P J Cooper and L Murray, “Course and Recurrence of Postnatal Depression. Evidence for the Specificity of the Diagnostic Concept” (1995) 166 British J of Psychiatry 191, cited in L Appleby, C Kumar and R Warner, “Editorial: Perinatal Psychiatry” (1996) 8 International Review of Psychiatry 5, 5. [Back] Note 28 D Maier-Katkin and R Ogle, “A Rationale for Infanticide Laws” [1993] Crim LR 903, 905-09. [Back] Note 29 R E Kendall, J C Chalmers and C Platz, “Epidemiology of Puerperal Psychoses” (1987) 150 British J of Psychiatry 662, 671. Kendall, Chalmers and Platz further state:
It is possible, therefore, though we ourselves do not think it likely, that technical differences of this kind may be responsible for the striking difference in the magnitude of the relative risks associated with childbirth and other stressors. [Back] Note 30 D J Power and D H D Selwood, Criminal Law and Psychiatry (1987) 140. [Back] Note 31 F Kane “Postpartum Disorders” in The Comprehensive Textbook of Psychiatric Disorders (4th ed 1985) 1343-48, cited in D Maier-Katkin and R Ogle, “A Rationale for Infanticide Laws” [1993] Crim LR 903, 908. [Back] Note 32 D Maier-Katkin and R Ogle, “A Rationale for Infanticide Laws” [1993] Crim LR 903, 908. [Back] Note 33 The World Health Organization’s ICD-10 Classification of Mental and Behavioural Disorders refers to “Mental and behavioural disorders associated with the puerperium, not elsewhere classified”: World Health Organization, The ICD-10 Classification of Mental and Behavioural Disorders: Clinical Descriptions and Diagnostic Guidelines (1992) 195. [Back] Note 34 See paras 9.60-9.61. [Back] Note 35 M N Marks and R Kumar, “Infanticide in England and Wales” (1993) 33 Medicine, Science and the Law 329, cited in R D Mackay, Mental Condition Defences in the Criminal Law (1995). Marks and Kumar’s study found that:
… Home Office statistics revealed that from 1982-8 214 children under one year were victims of homicide. Of those, 45% were neonaticides and in each case the mother was the chief suspect. The majority of these mothers (29) were not indicted while the others with the exception of one acquittal and one finding of diminished responsibility, were all convicted of infanticide and received probation. When compared to the fathers, … fathers were convicted of more serious offences … [and] received stiffer penalties. [Back] Note 36 A Wilczynski and A Morris, “Parents Who Kill their Children” [1993] Crim LR 31, 35. [Back] Note 37 Eg, Ussher states that: The term ‘postnatal depression’ may be a misnomer if it implies that the woman herself is ill, that her unhappiness is caused by an internal dysfunction resulting from childbirth. For is it not the social reality of caring, of mothering, which may be depressing? Men who rear children suffer from depression, as do men and women caring for elderly or sick relatives.
J Ussher, “Reproductive Rhetoric and the Blaming of the Body” in P Nicolson and J Ussher (eds) The Psychology of Women’s Health and Health Care (1992) 51. [Back] Note 38 Doughty (1986) 83 Cr App R 319. [Back] Note 39 The decision has been criticised not least because the crying of an infant should not amount to provocation any more than snoring or bad weather. [Back] Note 40 M Marks and R Kumar, “Parents who kill their infants” (1995) 3(5) British J of Midwifery 249, 251. [Back] Note 41 Heather Strang, Children as Victims of Homicide (1996) 3. [Back] Note 42 Cited by the Victorian Law Reform Commission, Defences to Homicide: Final Report (2004) para 6.30. [Back] Note 43 C Alder and K Polk, Child Victims of Homicide (2001). [Back] Note 44 Ibid, 28. See also, chs 3, 4 and 5. [Back] Note 48 The Royal College of Psychiatrists has previously recommended that the age limit should be extended to five years provided that the youngest victim was under 12 months as it has been found that cases where a mother kills all her children at once are not uncommon. See P T d’Orban “Women Who Kill Their Children” (1979) 134 British J of Psychiatry 560, 564, cited in R D Mackay Mental Condition Defences in the Criminal Law (1995) 212. [Back] Note 49 Penal Code (Malaysia), s 309A. [Back] Note 50 R E Kendall, J C Chalmers and C Platz, “Epidemiology of Puerperal Psychoses” (1987) 150 British J of Psychiatry 662, 666. [Back] Note 51 L Appleby, P B Mortensen and E B Faragher “Suicide and Other Causes of Mortality after Post-partum Psychiatric Admission” (1998) 173 British J of Psychiatry 209, 209: Although postnatal women as a whole appear to have a low rate of suicide, severe post-partum psychiatric disorder is associated with a high rate of deaths from natural and unnatural causes, particularly suicide. The risk is especially high in the first postnatal year, when suicide risk is increased 70-fold. [Back] Note 52 Crimes Act 1961 (NZ), s 178. [Back] Note 53 P [1991] NZLR 116. [Back] Note 54 R D Mackay, Mental Condition Defences in Criminal Law (1995) 213. [Back] Note 55 Crimes (Homicide) Act 2005, s 5; Victorian Law Reform Commission, Defences to Homicide: Final Report (2004) paras 6.38-6.41. [Back] Note 56 Writing about infant homicide Marks and Kumar state: Contrary to popular belief, mothers and fathers are equally likely to have killed a child and, unlike neonaticidal mothers, those who commit infant homicide are likely to be married, or both parents cohabiting, and both parents are the biological parent of the child.
M N Marks and R Kumar, “Parents Who Kill their Infants” (1995) 3(5) British J of Midwifery 249, 251. [Back] Note 57 Law Reform Commission of Victoria, Mental Malfunction and Criminal Responsibility, (1988) Discussion Paper No 14, 69, quoted in Victorian Law Reform Commission, Defences to Homicide: Final Report (2004) at para 6.19. [Back] Note 58 (1986) 83 Cr App R 319. See paras 9.33-9.34. [Back] Note 59 C Alder and K Polk, Child Victims of Homicide (2001). [Back] Note 61 Sainsbury (1989) 11 Cr App R (S) 533. [Back] Note 62 Lewis (1989) 11 Cr App R (S) 577. [Back] Note 63 Azzopardi [2004] VSC 509. [Back] Note 65 Kai-Whitewind [2005] EWCA Crim 1092, [2005] 2 Cr App R 31, [139], per Lord Justice Judge. [Back] Note 66 Report of the Committee on Mentally Abnormal Offenders (1975) Cmnd 6244 (The Butler Report) para 19.3: An earlier and limited example of a special provision for reduced responsibility and the possibility of a lesser penalty (while not necessarily exempting altogether from punishment) is to be found in the Infanticide Act 1938. [Back] Note 67 Ibid, para 19.22. [Back] Note 68 Ibid, para 19.23. [Back] Note 70 Ibid, para 19.26. [Back] Note 71 Criminal Law Revision Committee, Offences Against the Person (1980) Report 14, Cmnd 7844. [Back] Note 72 Ibid, para 101. These bodies included the Police Federation, the Law Society, the Mothers’ Union, The Women’s National Commission, the National Council of Women of Great Britain and the Senate of the Inns of Court and the Bar. [Back] Note 73 Ibid, para 103. [Back] Note 74 Ibid, para 104. The CLRC was satisfied that the maximum penalty for infanticide should be no more than 5 years. [Back] Note 75 Ibid, para 105. [Back] Note 78 See the views of Sir David Napley and Lowry LJ: ibid, Annexes 6 and 7. [Back] Note 79 However it should be noted that in its working paper the CLRC had tentatively considered the possibility of extending the offence to cover the killing of an older child if done so within 12 months of the birth of a younger child killed at the same time. This was abandoned in the light of the proposals, which were designed to continue to accommodate existing practice: ibid, para 106. [Back] Note 80 Ibid, para 106. [Back] Note 82 Domestic Violence, Crime and Victims Act 2004, s 5(7) provides for a maximum term of imprisonment of up to 14 years or a fine or both. [Back] Note 83 This minimum sentence applies when the murder involved abduction of the child, or sexual or sadistic motivation: Criminal Justice Act 2003, s 269, Sched 21, para 4(2)(b). [Back] Note 84 Sainsbury (1989) 11 Cr App R (S) 533, 534. [Back] Note 85 A Wilczynski and A Morris, “Parents Who Kill their Children” [1993] Crim LR 31, 35. [Back] Note 86 See R E Kendall, J C Chalmers and C Platz, “Epidemiology of Puerperal Psychoses” (1987) 150 British J of Psychiatry 662, 665. It is worth noting that when Kendall et al attempted to identify the obstetric and social factors which are associated with an increased risk to the mother in the puerperium it was found that puerperal psychoses are more common in unmarried mothers: see Kendall et al, 669. [Back] Note 87 Crimes (Homicide) Bill 2005, s 5; Victorian Law Reform Commission, Defences to Homicide: Final Report (2004) para 6.37-6.41. [Back] Note 88 As noted in paragraph 9.63, the causes of mental disturbance or abnormality should be of only evidentiary significance to the existence of a disturbed balance of mind, and not requirements of substantive law. [Back] Note 89 [2005] EWCA Crim 1092, [2005] 2 Cr App R 31. [Back] Note 91 C Alder and K Polk, Child Victims of Homicide (2001) 28. See paras 9.34-9.36. [Back] Note 92 Eg, Doughty (1986) 83 Cr App R 319. [Back] Note 94 See paras 9.33-9.34. [Back] Note 95 M E Briscoe and P Williams, “Emotional problems in the clients of health visitors” (1985) 58 Health Visitor 197 and A Whitton, R Warner and L Appleby, “The pathway to care in postnatal depression: Women’s attitudes to post-natal depression and its treatment” (1996) 46 British J of General Practice 427, both cited in L Appleby, G Koren and D Sharp, “Depression in Pregnant and Postnatal Women: An Evidence-based Approach to Treatment in Primary Care” [1999] British J of General Practice 780, 780;. See also, T Byron, “Postnatal Depression” The Times 18 July 2005, 9:
[Postnatal depression] affects at least one new mother in ten, although research indicates that only 1 in four will seek help – often because many feel ashamed, as they think they are bad mothers (they aren’t) and are frightened that their child will be taken away (it won’t). [Back] Note 96 Victorian Law Reform Commission, Defences to Homicide: Final Report (2004) para 6.42 recommended:
- Extending the offence to cover the killing of an infant aged up to two years; and
- Applying the offence to the killing of older children as the result of the accused not having recovered from the effect of giving birth or any disorder consequent on childbirth. [Back] Note 98 [2005] EWCA Crim 1092, [2005] 2 Cr App R 31. [Back] Note 101 Kooken (1982) 74 Cr App R 30; Martin (Anthony) [2001] EWCA Crim 2245, [2003] QB 1, [54]-[78]. See also Appendix F. [Back] Note 102 In the event of a diagnostic dispute however the Court of Appeal would have to decide whether and to what extent the evidence should be accepted in order to determine the safety of the conviction. Martin (Anthony) [2001] EWCA Crim 2245, [2003] QB 1 appears to be singular in that the Court of Appeal felt unable to determine whether the psychiatric evidence for the appellant or the respondent should be preferred. [Back] Note 103 Section 23(2) provides:
The Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to –
(a) whether the evidence appears to the Court to be capable of belief;
(b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal;
(c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and
whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.
See also, Weekes (Stephen) [1999] 2 Cr App R 520; Gilfillan (1999) GWD 21-998; and Borthwick [1998] Crim LR 274. In Borthwick, the appellant had been examined by a psychiatrist prior to the trial. The appellant denied the offence and resisted analysis of his history, personality and relationships. There was evidence to suggest that he had underlying personality problems but, as he was pleading not guilty, the question of diminished responsibility did not arise. The appellant was tried claiming that he had not killed the deceased and was convicted. He was reassessed by the same psychiatrist a month later whereupon he admitted responsibility for the offence and maintained that the death was accidental. After three further interviews the psychiatrist concluded that the appellant was suffering from a psychotic mental illness which could amount to paranoid schizophrenia. The fresh evidence was admitted notwithstanding that the Crown argued that the evidence of impairment was not “overwhelming” or clear in terms of diminished responsibility. [Back] Note 104 Von Starck v The Queen [2000] 1 WLR 1270 (PC). [Back] Note 105 Mental Health Act 1983, s 35. This order must be made on the basis of the oral or written evidence of a registered medical practitioner that there is reason to suspect that the accused is suffering from a mental illness, psychopathic disorder, severe mental impairment or mental impairment, and the court is of the opinion that it would impracticable for a report on his medical condition to be made if the accused were remanded on bail. [Back] Note 106 In Coutts [2005] EWCA Crim 52, [2005] 1 WLR 1605, the Court of Appeal held that to leave manslaughter to the jury at the appellant's trial for murder would not have been in the interests of justice. This is because the only basis on which he could have been convicted of manslaughter was factually wholly different from the prosecution case and both the prosecution and the defence thought that it would not serve the appellant's interest in a fair trial for manslaughter to be left on the indictment. [Back] Note 107 Criminal Justice Act 2003, s 269. [Back] Note 108 Criminal Appeal Act 1968, s 1(2)(b). At present such a power exists only in relation to a matter of law or in very exceptional circumstances. [Back] Note 109 It would be an exception to the general rule that an appeal takes place after the conclusion of the Crown Court Proceedings. [Back] Note 110 Supreme Court Act 1981, s 1(f). [Back] Note 111 This has the advantage of being consistent with some of the mitigating factors adumbrated in schedule 21(11) of section 269 of the Criminal Justice Act 2003, in particular “(c) the fact that the offender suffered from any mental disorder or mental disability which (although not falling within section 2(1) of the Homicide Act 1957) lowered his degree of culpability, and (d) the fact that the offender was provoked (for example by prolonged stress) in a way not amounting to a defence of provocation.” Thus even if the appeal fails and the defendant is remitted back to the Crown Court for sentence there may substantial factors which can be taken into account in fixing the minimum term. [Back] Note 112 Sudden Unexpected Death in Infancy: A Multi-agency Protocol for Care and Investigation (2004), the report of a working group convened by The Royal College of Pathologists and the Royal College of Paediatrics and Child Health. [Back] Note 113 [2003] EWCA Crim 1020, [2003] 2 FCR 447. [Back]
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