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URL: http://www.bailii.org/ew/other/EWLC/2006/304(8).html
Cite as: [2006] EWLC 304(8)
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PART 8
INFANTICIDE
INTRODUCTION
8.1 In the CP,[1] we set out the medico-legal debate surrounding the offence/defence of infanticide. As recognised when the Infanticide Bill was considered by the House of Lords in 1938, its subject matter "belongs to the territory where law and medicine meet, and to some extent carries with it difficulties which attach to both."[2]
8.2 During our consultation, we sought the views of a range of medical and legal experts on the topic of infanticide. Almost half of the written responses to the CP considered the issue. Further, we commissioned research on infanticide cases, which we have included as an appendix to this report[3].
8.3 Based on the response to our consultation, we believe that although the Infanticide Act 1938 has been subject to criticism, it is a practicable legal solution to a particular set of circumstances. Therefore, we will be recommending that the offence/defence of infanticide should be retained without amendment.[4]
8.5 In this Part, we set out the current law of the offence/defence of infanticide and consider its distinguishing features. We then briefly outline its history and previous reform proposals. This is followed by a survey of consultation responses and recent research. Finally, we set out our recommendations and reasons, first on the substantive law of the offence/defence of infanticide and, secondly, on the procedural dilemma presented by the case of Kai-Whitewind.[5]
CURRENT LAW
8.6 Infanticide is an offence in its own right. The Infanticide Act 1938 provides that when a mother kills her child, when the child is under 12 months old, and at the time the balance of the mother's mind was disturbed as a result of her not having fully recovered from the effect of giving birth or due to the effect of lactation, then the mother will be guilty of infanticide rather than murder.[6] A mother charged with murder in these circumstances may also raise infanticide as a defence.[7] Punishment for infanticide is the equivalent of that for manslaughter, namely a maximum life sentence. In most cases an infanticide conviction results in a non-custodial sentence (albeit often subject to a treatment or hospital order).[8]
8.9 Secondly, even when raised as a defence, the burden of proof is on the prosecution to disprove a claim of infanticide beyond reasonable doubt. In contrast, section 2 of the Homicide Act 1957, which provides for the defence of diminished responsibility, explicitly shifts the burden of proof to the defendant to discharge on the balance of probabilities.[9]
8.10 Thirdly, the offence/defence of infanticide does not require that the act or omission of killing be causally linked to the disturbance of the mother's mind. There need only be a temporal connection. In contrast, diminished responsibility requires that the defendant's "abnormality of mind … substantially impaired his mental responsibility for his acts or omissions in doing or being a party to the killing."[10]
8.11 Fourthly, apart from the verdict of a coroner's jury returning a verdict of suicide, the phrase "the balance of her mind was disturbed" is unique to infanticide. At the time the phrase was introduced, Parliament decided not to use an existing legal term of art.[11] It is different to both the test for insanity and the test for diminished responsibility ("abnormality of mind"). It is notable that none of these tests accord with medical terminology.
HISTORY AND PREVIOUS REFORM PROPOSALS
8.13 The historical background to the offence/defence of infanticide is set out in the CP.[12] The Infanticide Act in its current form was created in 1938. It replaced an earlier Act passed in 1922. At the time the original Infanticide Act was passed in 1922, and again in 1938, Parliament recognised and debated its potential flaws and considered alternative options.[13] For example, the phrase "the balance of her mind was disturbed" was challenged and the problems inherent in introducing medical evidence were acknowledged. Similarly, the link between the disturbance of the mind and birth was questioned and a broader basis of disturbance induced by poverty and despair was proposed. The need to ensure unmeritorious cases did not fall within the offence/defence of infanticide was stressed. Problems associated with setting an age limit were also acknowledged – it was recognised that any time limit was ultimately arbitrary to some extent. However, despite these concerns, Parliament decided on the current form of the offence/defence of infanticide as the best means of avoiding the "black cap farce"[14] whereby judges
were required to pass a mandatory sentence of death ("with all its dreadful paraphernalia")[15] on mothers who were convicted of murdering their babies, only for the death penalty to be commuted to a lesser sentence.[16]
8.14 Since 1938, various law reform bodies have revisited many of the concerns debated at the time the Infanticide Acts were introduced.[17] There has been no consensus arising from the deliberations of these bodies as to whether the offence/defence of infanticide should be retained, and, if so, in what form.
CONSULTATION AND RECENT RESEARCH
Provisional proposal
8.15 In the CP we set out a number of options for reform, ranging from the abolition of infanticide to a radical overhaul of the existing offence/defence.[18] We provisionally proposed that the offence/defence of infanticide be retained and minimally reformed as follows:
(1) removing the reference to lactation (on the basis that the link between psychiatric disorder and lactation is unfounded); and
(2) raising the age limit of the victim to two years (this would capture almost all instances of child-killing connected to postpartum psychiatric disorder).[19]
Consultation responses
8.16 Forty-five of the written responses to our consultation considered the issue of infanticide, some exclusively.[20] The majority considered that a separate offence/defence of infanticide should be retained.[21] There were, however, a number of consultees who thought that, in the light of current medical knowledge and the existence of the defence of diminished responsibility, the separate offence/defence of infanticide was obsolete.
8.19 Apart from the written responses, we held a meeting on infanticide attended by a range of medical and legal professionals. Although a variety of views were expressed, many of those who attended believed that the separate offence/defence of infanticide should be retained unless the defence of diminished responsibility could be reformed to ensure that the perceived benefits of the offence/defence of infanticide[22] were protected.
Recent research
8.20 In the CP we noted that "[r]ecent research into the significant features or characteristics of particular cases [of infanticide] dealt with either by the courts or the prosecuting authorities is limited."[23] As part of our review, we commissioned research in this area by Professor R D Mackay.[24] The results of Professor Mackay's research are included in Appendix D of this report. Professor Mackay studied a sample of Crown Prosecution Service files for the period 1990 to 2003. The cases studied fell into two groups. First, a sample of cases resulting in infanticide convictions (49 cases). Secondly, a sample of cases of diminished responsibility manslaughter convictions of biological mothers who had killed their children aged three years and under (35 cases). The results of Professor Mackay's research have informed our final recommendations.
8.21 In response to our consultation, Professor Ian Brockington,[25] who attended our meeting on infanticide, provided two tables. These tables are included in Appendix E. The first table sets out mental disorders that may occur during parturition (childbirth) and the post-partum period. The second table provides a classification of different types of infanticide. These tables are particularly relevant to the issue of the psychiatric foundation of the offence/defence of infanticide.
8.22 Finally, on the issue of lactation Dr Maureen N Marks,[26] who also attended our meeting on infanticide, referred us to recent research that she and her colleagues had conducted on the possible link between lactation and psychiatric disorder. This is discussed further in paragraph 8.26 below.
SUBSTANTIVE LAW: RECOMMENDATION AND REASONS
Recommendation
Psychiatric foundation
8.24 As discussed in the CP, there has been considerable debate about the psychiatric foundation of the offence/defence of infanticide.[27] This debate was evident in the consultation responses we received. For example, Professor Jenny McEwan stated that the provisions of the Infanticide Act "are no longer considered to have any basis in medical science". Similarly, Professor Herschel Prins stated that recent research in ante-natal and post-natal care shows that the basis for current practice enshrined in the Infanticide Acts was "somewhat anachronistic".
8.25 Based on our consultation meeting with a range of medical and legal experts on the subject of infanticide, we believe that there is sufficient medical evidence on which to justify the offence/defence of infanticide as it stands. Our belief is supported by the work of Professor Brockington, who provided us with tables categorising the different psychiatric disorders associated with infanticide and the different types of infanticide.[28] Although no psychiatric disorders (perhaps, bar one) are specific to childbirth, the incidence of certain disorders is higher following childbirth. This temporal connection indicates that some women are more vulnerable to psychiatric disorder in the postpartum period.
8.26 There is also some evidence to support the lactation theory. A recent study conducted by Dr Marks and her colleagues suggests that lactation may increase dopamine sensitivity in some women, which may trigger psychosis.[29] Although this evidence is not conclusive, we are not aware of evidence that definitively refutes the lactation theory. Thus, on balance, we recommend retaining the reference to lactation.
Limitation to biological mothers
8.27 The link between physiology and psychiatric disorder that underpins the offence/defence of infanticide limits its application to biological mothers. As noted in the CP,[30] this limitation prevents other carers, such as fathers, adoptive, foster or step-parents, who may be affected by the stressors associated with caring for an child, from relying on the offence/defence of infanticide.
8.28 The potential link between "environmental or other stresses consequent upon birth" and mental disturbance was recognised by the Criminal Law Revision Committee ("CLRC").[31] In 1980, the CLRC recommended the amendment of the offence/defence of infanticide to incorporate disturbance of the mother's mind by reason of the effect of giving birth or circumstances consequent upon that birth.[32] This approach formed the basis for the moderate reform position outlined in the CP.[33] The radical expansionist position in the CP also adopted this approach, as well as extending the offence/defence to other carers.[34]
8.30 A number of consultees who supported the retention of the offence/defence of infanticide explicitly stated that it should not be extended beyond biological mothers, arguing that male or other carers tend to kill children in notably different circumstances to mothers.[35] For example, the Police Federation stated that if the offence/defence of infanticide were extended, it "would be used repeatedly by men or other family members, when the real issue had been failure to control their temper." This belief was echoed by Professor Leonard Leigh, based on his experience as a member of the Criminal Cases Review Commission. Professor Leigh stated: "It seems right that where it is a male partner who kills, his defence should be restricted to diminished responsibility with its concomitant burden of proof [on the defendant] so minimising any possibility that a spurious excuse will be accepted."
8.31 Based on the evidence supporting the physiological/psychiatric foundation of the offence/defence of infanticide discussed in paragraphs 8.25 to 8.26 above, together with the reluctance of consultees to expand it beyond its current ambit, we are not recommending that the offence/defence of infanticide incorporate 'circumstances consequent upon birth'. Nor do we recommend that it be extended to fathers or other carers.[36]
Age limit
8.32 Originally under the Infanticide Act 1922 the offence/defence of infanticide applied only in cases where the baby was "newly-born". However, as a result of concerns that this restriction was leading to injustice, the age limit was extended to 12 months in 1938. At the time the age limit was extended, a number of members of the House of Lords who supported the amendment acknowledged that it was necessarily arbitrary.[37] However, according to Viscount Dawson of Penn, the then President of the College of Physicians, who introduced the 1938 Infanticide Bill, "[i]t is rare to have the insanity following child-birth not better within a year."[38] Beyond a year, there was a risk that the Act would "provide a means of escape for the murderer of the unwanted child."[39]
8.33 Many of the issues debated in 1938 regarding the age limit were raised again during our consultation. According to a number of the medical professionals who attended our meeting on infanticide, most postpartum psychiatric disorders linked to infanticide are resolved within 12 months after birth.[40] The majority of infanticides linked to psychiatric disorder occur within the first three months.[41] Amongst those who attended our meeting, some expressed concern that there is a risk that if the age limit of the victim is increased to two years, then unmeritorious cases (such as cases of ongoing abuse) will fall within the offence/defence of infanticide. The obverse concern is that some cases that would otherwise come within the offence/defence are excluded if the victim is older than 12 months. Further, if a mother kills any older siblings or children other than her own at the same time as her own child (under 12 months), she will only be able to claim infanticide in respect of her own child.[42] However, it must be kept in mind that cases involving 'disturbance of the mind' that occur outside the 12 months limit (or involve older children) will generally fall within the defence of diminished responsibility, albeit without some of the benefits of the offence/defence of infanticide.[43]
8.34 There was some support from consultees to raise the age limit to two years.[44] However, on balance we do not consider it necessary or appropriate to do so. Further, we do not believe it is either necessary or appropriate to extend the offence/defence to cases where a mother kills a child who is not her own.
Merger with diminished responsibility
8.35 Some consultees, notably the Royal College of Psychiatrists, argued that infanticide should be subsumed within diminished responsibility on the basis that postpartum psychiatric disorders should not in principle be distinguished from other disorders when determining criminal liability. Others argued that singling out mental disorders in biological mothers for special treatment tended to "pathologise" motherhood,[45] and reflected a broader tendency by lay and medical discourse "to represent women – especially in activities connected with reproduction – as lacking in responsibility."[46]
8.36 We do not consider that infanticide should be subsumed within diminished responsibility. Infanticide cases are unique given the status of the perpetrator and victim, and the link between childbirth and some kinds of psychiatric disorder. We consider that the lesser category of offence, and consequently the more lenient sentences that are customary, are warranted.[47] If infanticide were merged with diminished responsibility, it would be classed as 'second degree murder' under our proposals. We do not believe that such a serious offence label (and possibly less lenient sentence) is appropriate.
8.37 Further, merger of infanticide with diminished responsibility presents procedural problems concerning the burden of proof. The burden on the defendant to prove psychiatric disorder in order to successfully plead diminished responsibility may be impossible to discharge in neonaticide cases (the killing of a baby within 24 hours of his or her birth). In such cases, the mother may give birth alone and suffer from a transient disorder. At our meeting on infanticide Professor Brockington, Dr Margaret Oates[48] and Dr Marks all expressed concern that neonaticide cases must be covered by a special defence because the mother's culpability is very low. Further, the mother is in a particularly difficult position with regard to discharging the burden of proof.
Causation
8.40 A significant feature of section 1(1) of the Infanticide Act 1938 is that there is no requirement of a causal link between the killing of the child and the disturbance of the mind suffered by the defendant. So, any murder of a child under the age of 12 months by its biological mother, whatever the reason, is capable of amounting to infanticide as long as at the time of the murder the balance of her mind was disturbed. Some consultees consider that this is an anomaly that ought to be rectified.[49]
Application to first degree murder and second degree murder
8.42 The offence/defence of infanticide applies to cases that, if not for the Infanticide Act 1938, "would have amounted to murder".[50] If our recommended statutory framework for homicide offences is adopted,[51] we recommend that the offence/defence of infanticide should apply to both first degree murder and second degree murder. As noted in the CP, [52] we make this recommendation for two reasons. First, if the offence/defence of infanticide were limited to cases that "would otherwise be first degree murder" it would lead to an unjust anomaly. A mother whose intention was more culpable would be guilty of a lesser offence (first degree murder reducing to infanticide) than a mother whose intention was less culpable (second degree murder). Secondly, the offence/defence of infanticide was introduced in part to avoid labelling as murderers mothers who commit infanticide. During our consultation, we did not receive any responses objecting to the application of the offence/defence of infanticide to both first degree murder and second degree murder.
PROCEDURAL ISSUE: RECOMMENDATION AND REASONS
The Kai-Whitewind dilemma
8.44 In the case of Kai-Whitewind[53] K, a mother of three, denied killing her youngest child, B, whom it was alleged was conceived in the course of a rape. K had previously told a health visitor that she felt like killing B and could not bond with him. However, K alleged B had died of natural causes. K reported that, five days before he died, B had brought up green vomit and brown fluid and, on the day he died, had suffered a nosebleed and later stopped breathing. The Court of Appeal identified the following dilemma: how should the law deal with cases in which a mother suffering from a postpartum psychiatric disorder kills her child, but denies the killing? Her denial may be a symptom of the very disorder that prompted the killing.[54] Without the defendant's co-operation, it is virtually impossible under the adversarial system to obtain and present psychiatric evidence in order to found a plea or charge of infanticide. As a result, if the mothers denial is rejected by the jury such cases lead to a murder conviction with a mandatory life sentence.
8.45 Currently, this problem can in theory be dealt with under the 'fresh evidence' provisions of the Criminal Appeal Act 1968.[55] However, this procedure inevitably involves considerable delays, and it is likely that the mother would be held in custody pending appeal. In an attempt to capture more of these cases with the offence of infanticide rather than murder and to accelerate the appeal process, we put forward the following provisional proposal in the CP.[56]
Provisional proposal
8.46 We provisionally proposed that:
in circumstances where infanticide is not raised as an issue at trial and the defendant (biological mother of a child aged 12 months or less) is convicted by the jury of murder [first degree murder or second degree murder], the trial judge should have the power to order a medical examination of the defendant 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 such evidence is produced and the defendant wishes to appeal, the judge should be able to refer the application to the Court of Appeal and to postpone sentence pending the determination of the application.
8.47 As noted in the CP, this procedure recognises the exceptional nature of these cases. It would expedite the appeal process by allowing the trial judge to certify the matter for appeal rather than requiring the appellant to apply to the single judge of the Court of Appeal for leave.[57] Certification for appeal would be reliant on credible expert evidence to the effect that the balance of the mother's mind was disturbed by reason of the effect of birth or lactation. This procedure would also enable the trial judge to grant bail pending appeal[58] to ensure that the mother is not subject to imprisonment for a matter that, if resulting in a verdict of infanticide, is likely to lead to a non-custodial order. If the Court of Appeal considered it appropriate to admit the 'fresh evidence' of the mother's mental disorder[59] and as a result considers the murder conviction to be unsafe, then it would have the power to substitute a verdict of infanticide for murder.[60]
8.48 Under our procedure, there would be no obligation on the defendant to undergo a medical examination (consonant with the adversarial system). In cases in which the mother has other grounds for appeal, such as in Clark[61] and Cannings,[62] the defence may advise against the mother undergoing examination. Such cases would continue to be subject to the usual appellate procedure.[63]
8.49 As discussed in the CP, it is possible that a similar dilemma could arise more generally in cases in which the defendant may be suffering from diminished responsibility. However, as stated in paragraph 9.105 of the CP, we did not propose, nor do we now recommend, that this procedure be extended to such cases. Infanticide is a rare offence and in many cases the prosecution will charge infanticide if there is any evidence of a mental disorder. The public interest rarely requires a custodial disposal. By contrast, cases of diminished responsibility can rightly result in lengthy custodial sentences. As stated in the CP, in infanticide cases where a mother is suffering from a mental disorder but denies the killing, "the chasm between the disposal which is appropriate and the one which the judge is forced to impose under the present law is vast."[64]
Consultation
8.50 There is no easy solution to the Kai-Whitewind dilemma. The procedure we provisionally proposed is not perfect. For example, some consultees were concerned that it would provide a defendant with "two bites of the cherry"[65] by giving her the opportunity to run one defence at trial and another on appeal. Others were concerned that a mentally impaired defendant who is 'in denial' may still refuse to undergo a medical examination even after a murder conviction. Further, the Criminal Bar Association expressed concern that the issue of infanticide would be raised for the first time on appeal from which there would be no appeal. Despite these concerns, our provisional proposal received significant support from consultees, including judges, legal practitioners, academics, police, interest groups, and medical professionals.[66]
8.51 A number of consultees suggested alternative procedures for dealing with the Kai-Whitewind dilemma. One suggestion was that, like provocation, the trial judge should have the discretion to leave infanticide to the jury, even if the prosecution or defence (or both) objects.[67] However, as discussed in paragraph 9.101 of the CP, we do not believe this would solve the Kai-Whitewind dilemma. The trial judge could only exercise this discretion if there was evidence on which a reasonable jury could reach a verdict of infanticide. Without evidence of a mental disorder to support a finding that the balance of the mother's mind was disturbed, a reasonable jury could not reach a verdict of infanticide. Evidence of mental disorder is almost certainly dependent upon the defendant consenting to a medical examination. If the defendant is 'in denial' she will not provide evidence of a mental disorder. Nor is it likely that the prosecution would or could provide evidence of a mental disorder. Therefore, although in theory the option of giving the judge discretion to leave infanticide to the jury in such cases is appealing, it is unlikely to work in practice.
8.53 In the event that a biological mother is convicted of murdering her child under the age of 12 months and she did not raise the defence of infanticide at trial, the trial judge would have an automatic discretion to initiate a further hearing to determine whether, at the time of the murder, the balance of the mother's mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child or the effect of lactation.[68] A positive finding would result in a special verdict of 'murder at the time of a disturbance of balance of the mind'. As a special verdict, this would be different from and exist in addition to an ordinary verdict of infanticide. The judge would then have the power to pass a sentence equivalent to that for second degree murder (a discretionary life sentence).[69]
8.54 This issue would need to be determined by a second jury.[70] On this approach, a jury should determine the ultimate issue because anything short of that would be tantamount to a trial judge being seen to overturn the verdict of the trial jury.[71]
8.55 As noted in paragraph 8.40 above, section 1(1) of the Infanticide Act 1938 does not require that the act of killing be causally linked to the disturbance of the mind. This lack of a causal link ensures that a finding of guilt of murder, and any possible finding of a special verdict of a disturbance of the balance of the mind, cannot be inconsistent. Further, a separate appeal route for each would be preserved.[72] Any appeal of the murder verdict could be expedited without disruption to the timetable of the Court of Appeal.[73]
8.56 There are a number of advantages to this alternative approach. [74] First, it ensures that the issue of infanticide is raised for the first time at trial rather than at the appeal stage from which there would be no appeal.[75] Secondly, it provides a disincentive to the defence adopting a "two bites at the cherry" strategy. A positive outcome at the second hearing still results in a finding of murder (albeit as a special verdict) rather than infanticide. Further, the second hearing is at the discretion of the trial judge, it is not an automatic entitlement. Thirdly, it preserves the defendant's right of appeal with respect to the initial verdict of murder.
Recommendation and reasons
8.59 We believe that our recommendation is the best possible solution in the context of the adversarial system. It would preserve the right of the defendant not to be compelled to give evidence and to instruct her defence counsel at trial. It would expedite the appeal process, while still conforming to our system of appellate justice and the rules on fresh evidence. It would allow the trial judge to postpone sentence until the issue of infanticide is resolved. It would provide a disincentive to the "two bites of the cherry" tactic by requiring the defendant to go through the appeal process as an alternative to entering a plea of infanticide at an early stage at or before trial. It is a power exercised at the trial judge's discretion, and therefore cannot be relied upon as a defence strategy. Further, the certificate for appeal would depend on credible expert evidence that the defendant was suffering from an imbalance of the mind. It aims to avoid over-convicting or under-convicting the defendant (or an ill-founded acquittal) in line with the interests of justice.[76] Finally, and most importantly, the procedure we have recommended would only apply to a small number of cases, to remedy a considerable injustice: an unwarranted murder conviction coupled with a mandatory life sentence.
Ü Þ
Note 2 Hansard (HL), vol 108, col 292 (22 March 1938). [Back] Note 3 Appendix D: Professor R D Mackay, Infanticide and Related Diminished Responsibility Manslaughters – An Empirical Study (2006) [Back] Note 4 Subject to the reference to ‘murder’ being replaced with ‘first degree murder or second degree murder’. [Back] Note 5 [2005] EWCA Crim 1092, [2005] 2 Cr App R 31. [Back] Note 6 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 her act or omission the balance of her mind was disturbed by reason of her not having fully recovered from the effect of 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 of 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 7 Infanticide Act 1938, s 1(2) provides:
Where upon the trial of a woman for the murder of her child, being child under the age of twelve months, the jury are of the opinion that she by any wilful act or omission caused its death, but that 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 giving birth to the child or by reason of the effect of lactation consequent upon the birth of the child, then the jury may, notwithstanding that the circumstances were such that but for the provisions of this Act they might have returned a verdict of murder, return in lieu thereof a verdict of infanticide. [Back] Note 8 See Appendix D: R D Mackay, Infanticide and Related Diminished Responsibility Manslaughters – An Empirical Study (2006) para 21. [Back] Note 9 Homicide Act 1957, s 2(2). Lambert, Ali and Jordan [2002] QB 1112. Similarly, the other metal impairment defence of insanity also places the burden of proof on the defendant. [Back] Note 10 Homicide Act 1957, s 2(1). [Back] Note 11 The then Lord Chancellor (Viscount Birkenhead) who introduced the amendment to include this phrase in the Bill stated that “they are new words. They are not terms of art.” These new words were designed to avoid misunderstanding and “to give effect to the intention” of the framers of the Bill. Hansard (HL), vol 50, cols 761 to 762 (25 May 1922). [Back] Note 12 Paras 9.5 to 9.7. [Back] Note 13 Hansard (HL), vol 50, cols 436-41 (16 May 1922), vol 50, cols 756 to 68 (25 May 1922) vol 50, cols 1096 to 99 (22 June 1922), vol 108, cols 292 to 309 (22 March 1938). [Back] Note 14 As dubbed by the press at the time: Lord Arnold, Hansard (HL), vol 108, col 303 (22 March 1938). When pronouncing a sentence of death, judges donned a Black Cap. [Back] Note 15 The then Lord Chancellor (Viscount Birkenhead) Hansard (HL), vol 108, col 759 (25 May 1922). [Back] Note 16 In 1908 to 1909, when a Bill similar to the Infanticide Bill 1922 was introduced in the House of Lords, the then Lord Chancellor stated that a verdict of murder had not been followed by an execution in cases of this kind for the past 60 years: Hansard (HL), vol 108, col 437 (16 May 1922). [Back] Note 17 For a summary of the main reform proposals in the UK, including previous Law Commission recommendations, see the CP, paras 9.48 to 9.67. [Back] Note 18 Paras 9.72 to 9.95. [Back] Note 19 Paras 9.75 to 9.78. [Back] Note 20 Consultation responses on the procedural issue raised by the case of Kai-Whitewind are discussed in paras 8.50 to 8.51 below. [Back] Note 21 A range of professionals and organisations supported the retention of the offence/defence of infanticide, including judges, lawyers, academics, police, medical professionals, interested organisations and members of the public. [Back] Note 22 Such as the ability to charge infanticide as an offence and placing the legal burden of proof on the prosecution to disprove infanticide when it is raised as a defence. [Back] Note 24 Professor of Criminal Policy and Mental Health, Department of Law, De Monfort University, Leicester. [Back] Note 25 Professor emeritus, Department of Psychiatry, University of Birmingham. [Back] Note 26 Head of the Perinatal Mental Health Research Unit, Institute of Psychiatry, King’s College London. [Back] Note 27 See paras 9.20 to 9.30. [Back] Note 28 See Appendix E. See also, I Brockington, Motherhood and Mental Health (1996). [Back] Note 29 M N Marks, A Wieck, A Davies, N Brown, R McIvor and I C Campbell, “Neuroendocrine Studies in Women at Risk of Post Partum Psychiatric Illness”, (forthcoming). [Back] Note 30 Paras 9.31 to 9.37. [Back] Note 31 Criminal Law Revision Committee, Fourteenth Report: Offences Against the Person (1980), Cmnd 7844, para 105. [Back] Note 33 Paras 9.79 to 9.86. [Back] Note 34 Paras 9.87 to 9.92. [Back] Note 35 London Criminal Courts Solicitors’ Association, Professor L Leigh, Police Federation and Refuge. See also the CP, paras 9.33 to 9.36 and 9.83. [Back] Note 36 They should look to our reformulated defence of diminished responsibility. [Back] Note 37 See eg, The Earl of Munster’s comments, Hansard (HL), vol 108, col 306 (22 March 1938). [Back] Note 38 Hansard (HL), vol 108, col 296 (22 March 1938). [Back] Note 39 Viscount Dawson of Penn, Hansard (HL), vol 108, col 296 (22 March 1938). [Back] Note 40 Infanticide consultation meeting, 24 March 2006. [Back] Note 41 Infanticide consultation meeting, 24 March 2006. [Back] Note 42 The VLRC also recommended applying the offence/defence of infanticide to the killing of older siblings. This recommendation was not enacted by Parliament: VLRC, Defences to Homicide: Final Report (2004) paras 6.38 to 6.41. [Back] Note 43 See Appendix D: R D Mackay, Infanticide and Related Diminished Responsibility Manslaughters – An Empirical Study (2006), Part B. [Back] Note 44 In Victoria, Australia, Parliament extended the age limit to two years in accordance with a recommendation of the Victorian Law Reform Commission (VLRC): Crimes (Homicide) Act 2005, s 5 and VLRC, Defences to Homicide: Final Report (2004) paras 6.38 to 6.41. However, Victoria does not have a defence of diminished responsibility which might otherwise cover such cases. [Back] Note 45 Justice for Women. [Back] Note 46 Professor J McEwan. [Back] Note 47 We have been informed anecdotally that in some cases women who are convicted of infanticide are given a community-based sentence, when a treatment-based order may be more appropriate given their mental condition. Without treatment, these women may lose contact with their other children. In contrast, a women convicted of diminished responsibility manslaughter is more likely to be given a treatment order. This difference in sentencing is born out by the results of Professor Mackay’s empirical study in Appendix D: R D Mackay, Infanticide and Related Diminished Responsibility Manslaughters – An Empirical Study (2006) paras 21 and 42. The answer to this problem is to ensure appropriate sentences (including treatment orders) are passed, rather than merging infanticide with diminished responsibility. [Back] Note 48 Consultant Perinatal Psychiatrist, Queen’s Medical Centre, Nottingham. [Back] Note 49 Justice and the Royal College of Psychiatrists. [Back] Note 50 Infanticide Act 1938, s 1(1). Section 1(2), which operates as a defence, applies when a woman is tried for murder. [Back] Note 53 [2005] EWCA Crim 1092, [2005] 2 Cr App R 31. [Back] Note 54 Above at [139]. [Back] Note 55 Criminal Appeal Act 1968, s 23(2)(d). See the discussion in the CP, paras 9.99 to 9.100. See also the recent case of Neaven [2006] EWCA Crim 955, [2006] All ER (D) 217. [Back] Note 56 Paras 9.102 to 106. [Back] Note 57 Trial judges have the power to certify a matter for appeal, but it is rarely used: Criminal Appeal Act 1968, s 1(2)(b). Our procedure would be an exception to the general principle that an appeal against conviction takes place after the conclusion of the Crown Court proceedings. [Back] Note 58 Supreme Court Act 1981, s 81(1)(f). [Back] Note 59 Criminal Appeal Act 1968, s 23(2)(d). See the discussion in the CP, paras 9.99 to 9.100. See also the recent case of Neaven [2006] EWCA Crim 955, [2006] All ER (D) 217. [Back] Note 60 Even if the appeal fails and the matter is remitted back to the Crown Court for sentence, the Crown Court could take the evidence of mental disorder or provocation (eg, due to prolonged stress) into account as a mitigating factor in fixing the minimum term: Criminal Justice Act 2003, s 269 and sch 21 para (11)(c) and (d). [Back] Note 61 (Appeal against conviction) (No 2) [2003] EWCA Crim 1020, [2003] 2 FCR 447. [Back] Note 62 [2004] EWCA Crim 1, [2004] 1 WLR 2607. [Back] Note 63 The CP, para 9.103. [Back] Note 66 Calvert-Smith J, Gage LJ, Wilkie J, London Criminal Courts Solicitors’ Association, Society of Labour Lawyers, Dr Jones and Dr Hiscox, Professor Mackay, Professor O’Donovan, Professor Taylor, Police Federation, Association for Post-Natal Illness, Justice, Liberty, Refuge, Royal College of Paediatrics and Child Health and Dr Henshaw. [Back] Note 67 A similar issue arose in relation to murder and manslaughter in the recent case of Coutts [2006] UKHL 39, [2006] 1 WLR 2154. Lord Bingham stated at [23]:
The public interest in the administration of justice is, in my opinion, best served if in any trial on indictment the trial judge leaves to the jury, subject to any appropriate caution or warning, but irrespective of the wishes of trial counsel, any obvious alternative offence which there is evidence to support. [Back] Note 68 There would need to be a reasonable delay between the hearings in order to gather the necessary medical or other expert evidence. [Back] Note 69 If our recommendations regarding the structure of murder are not enacted, the sentence could be the equivalent to that for manslaughter. [Back] Note 70 It would be a separate issue to the finding of guilty or not guilty of murder, and would therefore require the selection of a jury other than the one which had determined the main issue at trial: Juries Act 1974, s 11(4) and (5). [Back] Note 71 In Massachusetts trial judges are empowered to substitute a verdict of manslaughter for a jury verdict of second degree murder (Massachusetts Rules of Criminal Procedure, r 25(b)(2)), as occurred in Commonwealth v Woodward 1997 WL 694119 (Mass Super). In the appeal from that case, the Supreme Judicial Court of Massachusetts held that the trial judge did not abuse his discretion, stating that the policy was aimed at “promoting judicial responsibility to ensure that the result in every criminal case is consonant with justice.” The Court noted that this power had been used infrequently: Commonwealth v Woodward 694 NE2d 1277 (Mass 1998) at [6-8]. [Back] Note 72 The murder verdict at trial would be subject to appeal provided for by the Criminal Appeal Act 1968, ss 1 and 2. The special verdict at the second hearing would not be a conviction and therefore could be appealed by way of reliance on a separate provision, similar to that for findings of disability, such as Criminal Appeal Act 1968, s 15(1). [Back] Note 73 This observation was made by the Criminal Bar Association. The process would not be substantively different to other determinative rulings made in advance of trial. [Back] Note 74 A number of consultees suggested a two-stage trial process, though not one exactly the same as the alternative outlined here: see Criminal Bar Association, Pitchford J and Sir Igor Judge (meeting 23 March 2006). [Back] Note 75 This point was emphasised by the Criminal Bar Association. [Back] Note 76 See Coutts [2006] UKHL 39, [2006] 1 WLR 2154.
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