The Law Commission

APPENDIX D
INFANTICIDE AND RELATED DIMINISHED RESPONSIBILITY MANSLAUGHTERS:

AN EMPIRICAL STUDY

By R D Mackay,^[1] Professor of Criminal Policy and Mental Health,
De Montfort Law School, De Montfort University, Leicester

D.1       The Infanticide Act 1938, section 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.

D.2       Section 1(2) of the 1938 Act provides that a woman indicted for the murder of her child under twelve months of age may be acquitted of that offence and convicted of infanticide if the requirements of section 1(1) above are satisfied. It is clear, therefore, that infanticide can either be charged as an offence in its own right or can be used as a defence to a charge of murder.

D.3       Diminished responsibility ("DR") reduces murder to manslaughter but, unlike infanticide, is not an offence in its own right. The essentials of the plea are contained in section 2(1) of the Homicide Act 1957, which provides:

Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility in doing or being a party to the killing.

D.4       The requirements of each of these provisions are markedly different, both in relation to the abnormal states of mind required and in respect of who may avail themselves of which plea. Infanticide is restricted to biological mothers of a child killed where the child is under 12 months old at the time. By contrast, the partial defence of DR has no such constraints in terms of perpetrator or victim.

D.5       Despite these obvious differences, there is a clear overlap between infanticide and DR. This led to the Butler Report on Mentally Abnormal Offenders to suggest that the offence of infanticide was no longer necessary, and that the defence of DR could be used instead.^[2] Both provisions have been the subject of much criticism as is clearly outlined in the Law Commission's Consultation Paper entitled "A New Homicide Act for England and Wales?"^[3] However, as the Commission points out "Recent research into the significant features or characteristics of particular cases [of infanticide] dealt with either by the courts or the prosecuting authorities is limited."^[4] As a result the research described below was commissioned as part of the Commission's review of the law of homicide.

D.6       In order to explore the nature of some infanticide cases and their relationship with DR it was decided to study, through the use of Crown Prosecution Service (CPS) files, a sample of infanticide convictions during the years 1990 to 2003 together with a sample, during the same period, of DR manslaughter convictions of biological mothers who had killed their children aged three years and under. The former sample, which will be discussed first in section A, contains 49 cases, while the latter, discussed in section B, is a sample of 35 cases.

The Research Findings

A. The Infanticide Sample

D.7       Although, during the research period of 1990 to 2003, there was a total of 49 defendants^[5] who were convicted of infanticide, in 11 of these cases, for a variety of reasons, no access was available to the relevant CPS files, leaving only skeleton statistical data. This means that in some cases only limited information was available and, where this is the case, this is made clear in the relevant Tables.

D.8       Tables 1a and 1b give a breakdown of the age distribution of the defendants. The mean age was 24.7 (age range 13 to 44) with the majority (67.3%, n=33) aged 25 and under.

Table 1a: age range of accused

	Frequency	Percent
0-16	6	12.2
17-20	10	20.4
21-25	17	34.7
26-30	5	10.2
31-35	3	6.1
36-39	7	14.3
40-44	1	2.1
Total	49	100.0

Table 1b: age of accused

	Frequency	Percent	Cumulative Percent
13.00	1	2.0
15.00	2	4.1	6.1
16.00	3	6.1	12.2
17.00	1	2.0	14.3
18.00	2	4.1	18.4
19.00	4	8.2	26.5
20.00	3	6.1	32.7
21.00	3	6.1	38.8
22.00	5	10.2	49.0
23.00	4	8.2	57.1
24.00	3	6.1	63.3
25.00	2	4.1	67.3
26.00	2	4.1	71.4
29.00	2	4.1	75.5
30.00	1	2.0	77.6
31.00	1	2.0	79.6
32.00	1	2.0	81.6
35.00	1	2.0	83.7
36.00	2	4.1	87.8
37.00	3	6.1	93.9
39.00	2	4.1	98.0
44.00	1	2.0	100.0
Total	49	100.0

D.9       The ethnic breakdown of defendants is presented in Table 2a and shows that of the 40 cases where relevant data were available 72.5% (n=30) were white with only one born outside the UK while of the ten non-white, eight were born outside the UK.

Table 2a: born UK * ethnic group Crosstabulation

	ethnic group
	white	black	asian	filipino	unknown	Total	Total
born UK	yes	29	0	2	0	9	40
	no	1	3	4	1	0	9
Total	30	3	6	1	9	49	49

D.10       With regard to criminal records, out of a total of 40 cases, only 5% (n=2) of the sample had previous convictions. As for psychiatric history, 65% (n=26) had had contact with psychiatric services. In relation to marital status, Table 2b below shows that of 40 cases where this information was available, 45% (n=18) were single at the time of the offence.

Table 2b: marital status

Frequency	Percent	Cumulative Percent	Cumulative Percent
single	18	36.7	36.7
married	12	24.5	61.2
co-habiting	10	20.4	81.6
no information	9	18.4	100.0
Total	49	100.0

D.11       Victims' sex/age distribution is presented in Tables 3a, 3b and 3c. The age range for victims was under 24 hours to 11 months. It can be seen that the majority, 65.3% (n=32), were female/daughters. With regard to age, 30.6% (n=15) were newborn in the sense of being aged under 24 hours while an additional 22.4% (n=11) were aged between one day and one month. By contrast, only 12.2% (n=6) were aged more than 6 months.

Table 3a: age range of victims



Table 3b: age range of victims

Frequency	Percent	Cumulative Percent	Cumulative Percent
under 24 hours	15	30.6	30.6
1 day to 1 month	11	22.4	53.1
1 to 3 months	8	16.3	69.4
4 to 6 months	9	18.4	87.8
7 to 10 months	5	10.2	98.0
11 - 12 months	1	2.0	100.0
Total	49	100.0

Table 3c: age range of victims * sex of victim Crosstabulation

sex of victim
male	female	Total	Total
under 24 hours	6	9	15
1 day to 1 month	3	8	11
1 to 3 months	2	6	8
4 to 6 months	3	6	9
7 to 10 months	3	2	5
11 - 12 months	0	1	1
Total	17	32	49

D.12       Table 3d shows that all the newborn victims (n=15) were killed by those aged 25 years and under.

Table 3d: age range of victims * age range of accused Crosstabulation

age range of accused

	0-16	17-20	21-25	26-30	31-35	36-39	40-44	Total
under 24 hours	6	2	7	0	0	0	0	15
1 day to 1 month	0	0	4	2	1	4	0	11
1 to 3 months	0	5	2	1	0	0	0	8
4 to 6 months	0	1	1	1	2	3	1	9
7 to 10 months	0	2	2	1	0	0	0	5
11 - 12 months	0	0	1	0	0	0	0	1
Total	6	10	17	5	3	7	1	49

D.13       Table 3e shows that all except one of the newborn victims were killed by a mother who was single at the time of the offence.

Table 3e: age range of victims * marital status Crosstabulation

age range of victims

marital status

	single	married	co-habiting	Total
under 24 hours	10	0	1	11
1 day to 1 month	1	6	3	10
1 to 3 months	2	3	3	8
4 to 6 months	2	2	2	6
7 to 10 months	3	0	1	4
11 - 12 months	0	1	0	1
Total	18	12	10	40

D.14       The place or venue where the killing actually took place is given in Table 4. It can be seen from this that the vast majority of the offences took place in the matrimonial/partner's/family home (89.8%, n=44).

Table 4: venue of offence

	Frequency	Percent	Cumulative Percent
matrimonial/partner's/family home	44	89.8	89.8
accused's home[6]	1	2.0	91.8
street	2	4.1	95.9
maternity unit/hospital	2	4.1	100.0
Total	49	100.0

D.15       Tables 5a and 5b give the "method of killing" and show that the most prevalent method was suffocation (36.7%, n=18) followed by battering (14.3%, n=7). Table 5c reveals that of the six victims who died of neglect, all but one was aged under 24 hours.

Table 5a: method of killing



Table 5b: method of killing

	Frequency	Percent	Cumulative Percent
sharp instrument	3	6.1	6.1
blunt instrument	2	4.1	10.2
battering	7	14.3	24.5
strangulation	4	8.2	32.7
poisoning	1	2.0	34.7
drowning	5	10.2	44.9
suffocation	18	36.7	81.6
shaking	2	4.1	85.7
neglect	6	12.2	98.0
thrown from window	1	2.0	100.0
Total	49	100.0

Table 5c: method of killing * age range of victims Crosstabulation

age range of victims

method of killing	Under 24 hours	1 day to 1 month	1 to 3 months	4 to 6 months	7 to 10 months	11- 12 months	Total
sharp instrument	2	1	0	0	0	0	3
blunt instrument	0	2	0	0	0	0	2
battering	2	0	2	1	2	0	7
strangulation	2	0	1	1	0	0	4
poisoning	0	0	1	0	0	0	1
drowning	1	1	0	2	0	1	5
suffocation	3	6	2	4	3	0	18
shaking	0	0	1	1	0	0	2
neglect	5	1	0	0	0	0	6
thrown from window	0	0	1	0	0	0	1
Total	15	11	8	9	5	1	49

ASPECTS OF THE TRIAL

D.16       The CPS files could not shed light on all of the intricacies of the trial process in each case but the following data were extracted and may help to explain a number of different aspects of what took place.

D.17       Table 6a shows that the majority of the defendants were initially charged with murder (75.5%, n=37) compared to 24.5% (n=12) facing an infanticide charge. However, table 6b shows that by the time the charges were finalised, after pre-trial negotiations, this had altered dramatically to 63.3% (n=31) of the accused facing a charge of infanticide and 36.7% (n=18) facing charges of murder and infanticide.

Table 6a: initial charge

	Frequency	Percent	Valid Percent
murder	37	75.5	75.5
infanticide	12	24.5	24.5
Total	49	100.0	100.0

Table 6b: final charge(s)

	Frequency	Percent	Valid Percent
infanticide	31	63.3	63.3
murder and infanticide	18	36.7	36.7
Total	49	100.0	100.0

D.18       Table 7 shows that there was no jury trial in all but two of the cases (95.9%, n=47). The two cases in question are described briefly in the Appendix A in cases 30 and 34. In both cases the defendants maintained a not guilty plea which in turn necessitated a full trial.

Table 7: jury trial

	Frequency	Percent
yes	2	4.1
no	47	95.9
Total	49	100.0

D.19       Table 8 reveals that in all but a single case the verdict was infanticide. The exception is case 34 where a jury rejected infanticide and convicted the defendant on a separate count of common law manslaughter.

Table 8: verdict

	Frequency	Percent
infanticide	48	98.0
CL manslaughter	1	2.0
Total	49	100.0

D.20       Table 9 below gives the sentence for each case. This reveals that a non-custodial sentence was given in the vast majority of cases (83.7%, n=41), with five (10.2%) defendants (described in cases 4, 6, 8, 30 and 34) receiving hospital orders, two with restrictions. This leaves three (6.1%) defendants who were given sentences of imprisonment. These cases are described in cases 22, 23 and 27. In this connection it is important to emphasise that cases 22 and 23 refer to the same defendant who killed two of her children.^[7] The first killing some six years earlier only came to light after she killed the second child when suspicions were aroused. It was clear from the sentencing judge's remarks that the second killing meant that a term of imprisonment was necessary. In case 34 although the defendant was given a term of 4 years detention in a young offenders institution, this was subject to a hospital direction under section 45A of the Mental Health Act 1983.

Table 9: sentence

	Frequency	Percent	Cumulative Percent
between 3 and five years	3	6.1	6.1
probation with treatment	20	40.8	46.9
probation order	19	38.8	85.7
hospital order	3	6.1	91.8
restriction order	2	4.1	95.9
supervision order	2	4.1	100.0
Total	49	100.0

THE PSYCHIATRIC REPORTS

D.21       The psychiatric reports on the CPS files which addressed the issues of infanticide/DR were all analysed. The maximum number of such reports in any one file was four. However, it can be seen from Table 10 below that in 11 cases there were no reports available owing to lack of access to the files. It was also clear in some cases that there were other reports which although referred to were not contained in the CPS files. What this means is that the CPS files clearly did not contain all relevant reports and the following analysis must be read with this caveat in mind. However, despite this deficiency in the data, the reports reveal much of interest. First, Table 10 reveals that only one file contained the maximum of four reports, compared to 18 files which each had two reports. The grand total of reports was 67.

Table 10: psychiatric reports on file

	Frequency	Percent	Cumulative Percent
one	15	30.6	30.6
two	18	36.7	67.3
three	4	8.2	75.5
four	1	2.0	77.6
none	11	22.4	100.0
Total	67	100.0

D.22       Table 11 below shows that the defence requested 41.6% (n=28) of the overall number of reports, followed by the prosecution at 32.8% (n=22).

Table 11: report sources

	Frequency	Percent	Cumulative Percent
court	4	6.0	6.0
prosecution	22	32.8	38.8
defence	28	41.8	80.6
police	6	9.0	89.6
unclear	7	10.4	100.0
Total	67	100.0

D.23       Tables 12a and 12b reveal that the most frequent primary diagnosis^[8] used in connection with the infanticide was postnatal depression (28.6%, n=14) followed by depression (14.3%, n=7), and puerperal psychosis (12.2%, n=6). It should be pointed out that there were eleven cases which contained no relevant information as to diagnosis owing to lack of access to the files.

Table 12a: primary diagnosis



Table 12b: primary diagnosis

	Frequency	Percent	Cumulative Percent
post natal depression	14	28.6	28.6
depression	7	14.3	42.9
personality disorder	1	2.0	44.9
puerperal psychosis	6	12.2	57.1
dissociative disorder	5	10.2	67.3
no information	11	22.4	89.8
abnormality of mind	1	2.0	91.8
mental disturbance	4	8.2	100.0
Total	49	100.0

D.24       Table 12c below reveals that all cases where the primary diagnosis was depression led to a probation order without a condition of mental treatment, as did seven of the cases on which there was "no information" as to diagnosis. By contrast, in four of the five cases where the primary diagnosis was dissociative disorder, a probation order with a condition of treatment was made. Further, nine of the 14 cases where the primary diagnosis was postnatal depression resulted in a probation order with a condition of treatment.

Table 12c: primary diagnosis * sentence Crosstabulation

primary diagnosis

Sentence

	between 3 and 5 years	probation with treatment	probation order	hospital order	restriction order	supervision order	Total
postnatal depression	1	9	2	1	0	1	14
depression	0	0	7	0	0	0	7
personality disorder	0	0	0	0	1	0	1
puerperal psychosis	0	2	1	2	1	0	6
dissociative disorder	0	4	0	0	0	1	5
no information	0	4	7	0	0	0	11
abnormality of mind	0	0	1	0	0	0	1
mental disturbance	2	1	1	0	0	0	4
Total	3	20	19	3	2	2	49

D.25       The psychiatric reports are of course vital as to how the plea progresses. Table 13 below shows the broad opinions given in all the reports in respect of whether or not the report writer favoured the plea.

Table 13: report opinions on infanticide

	Frequency	Percent	Cumulative Percent
no mention of infanticide	23	34.3	34.3
favours infanticide	43	64.2	97.0
for the court to decide	1	1.5	100.0
Total	67	100.0

D.26       It can be seen from this that, while 23 reports made no mention of infanticide of the 43 that did address the issue all of the report writers favoured infanticide. An additional report made it clear that although D's condition was a disturbance of the mind which fell within the Infanticide Act 1938, it was a matter for the court to determine if D's description of her state of mind was an accurate one. In those reports which favoured infanticide, some typical examples of the ways in which psychiatrists would couch their conclusions as to the ultimate issue are given with reference to case numbers:

Case 1

D.27       "This case comes within the ambit of the Infanticide Act 1938 and in my opinion at the time of her child's death the accused was suffering from a disturbance of mind due to the fact that she had not fully recovered from the effects of childbirth."

Case 2

D.28       "If infanticide is the charge, she would fall within the provisions of the 1938 Act, since she had not fully recovered from the effects of giving birth. To be more precise, she was not suffering from a puerperal psychosis but was depressed and poorly adjusted to motherhood."

Case 3

D.29       "She would appear to be emerging from the acute phase of a mental illness, in the context of which she caused the death of her two week old son, which, in my view amounted to a disturbance of the balance of her mind within the terms of the Infanticide Act 1938."

Case 10

D.30       "The concept of disturbance of balance of mind is normally only used in a legal context. To the extent that it is a medical issue…. her reaction to pregnancy can be interpreted as a form of dissociative disorder and the effect of giving birth may be regarded as a crisis which upset the previous and pathological equilibrium, thus disturbing the balance of her mind at the material time."

Case 18

D.31       "The law on [infanticide] seems to have been interpreted as a technical exercise to be lenient to women suffering from postnatal depression who kill their children. By defining postnatal depression in the accused the requirements of infanticide are fulfilled that is at the time of the acts the balance of her mind was disturbed by not having fully recovered from the effect of giving birth."

Cases 22 & 23

D.32       "Thus it appears to me that insofar as the criteria of the 1938 Act can be applied today; there is some medical evidence in support of infanticide. More importantly, the defendant's condition falls within the range of conditions which have been accepted by the courts as laying a basis for this defence even in the absence of identifiable mental disorder or proper analysis or discussion of the legal criteria."

Case 29

D.33       "In my opinion the nature and degree of her mental illness and its temporal relationship to childbirth would afford her a defence of infanticide under the terms of the Infanticide Act 1938."

Case 34

D.34       "The balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to her child. This arose against the setting of a disorder of personality…for this reason I believe she would have a defence of infanticide under section 1 of the Infanticide Act 1938."

D.35       With regard to the criteria contained in the 1938 Act, Table 14 below shows that, in those reports which directly addressed the issue, 35 expressly relied on "balance of her mind disturbed by reason of childbirth" rather than lactation which was not expressly relied upon in any of the reports. Also, in one report (classed as "balance of mind disturbed unspecified") although no actual mention was made of infanticide the author stated that "her balance of mind was disturbed to a significant degree by her postnatal depression to cause her not to know the causes or consequences of her actions" (Case 33).

Table 14: 1938 Act criteria * report opinion Crosstabulation

Report opinion

1938 Act criteria	No mention of infanticide	Favours infanticide	For jury to decide	Total
not mentioned	12	5	0	17
balance of mind disturbed effects of childbirth	0	36	1	37
balance of mind disturbed unspecified	1	0	0	1
mental disorder	10	2	0	12
Total	23	43	1	67

D.36       In relation to the 12 "mental disorder" reports, two favoured infanticide on the basis of D's mental disorder but did not mention the 1938 Act's mental disturbance criterion. However, four opined that D's condition satisfied the requirements for DR plea but made no mention of infanticide. The remaining six concluded simply that D suffered from a postnatal form of mental disorder but again made no mention of infanticide.

D.37       Tables 15a and 15b show that while 26 (38.9%) reports favoured DR rather than or as an alternative plea to infanticide, only two reports (3.0%) arising from the same case (no. 34) positively concluded that D's condition would not fall within section 2 of the Homicide Act 1957. In both reports it was opined that the personality disorder from which D suffered would not constitute an abnormality of mind within the meaning of the Homicide Act 1957. This is of interest in view of earlier concerns which have been expressed, particularly by the Criminal Law Revision Committee^[9], that not all cases of infanticide would fall within section 2 as the requirements contained in the latter are stricter and more difficult to satisfy.

In this connection, however, one cannot be confident that in the 39 (58.1%) reports which did not mention DR, the authors might not have regarded D's condition as satisfying the section 2 criteria, had they addressed that issue. Nevertheless, it is also of interest to note that almost 39% of the reports did favour DR and, with this in mind Table 15c below shows that none of the six reports which diagnosed "dissociative disorder" favoured DR but rather relied on other diagnostic categories. Although it must be repeated that one can only speculate about this matter, it does seem possible that those reports which diagnosed "dissociative disorder" would not have concluded that it constituted an "abnormality of mind" within section 2 of the 1957 Act. It may be more than mere coincidence that not one of these six reports concluded otherwise. In this connection it is also of interest to note that Table 15d below shows that of the five cases where the primary diagnosis was "dissociative disorder", all of the victims were "newborn" in the sense of being aged under 24 hours. Again, therefore, it seems possible that such a form of "mental disturbance" while triggering a verdict of infanticide might be less likely to fall within section 2.

Table 15a: possible DR Plea

	Frequency	Percent
no	2	3.0
yes	26	38.9
not mentioned	39	58.1
Total	67	100.0

Table 15b: report opinion on infanticide* possible DR Plea Crosstabulation

Possible DR Plea

report opinion on infanticide
	No	Yes	Not mentioned	Total
no mention of infanticide	0	4	19	23
favours infanticide	2	22	19	43
for jury to decide	0	0	1	1
Total	2	26	39	67

Table 15c: primary diagnosis * possible DR plea Crosstabulation

Possible DR plea

primary diagnosis	No	Yes	Not mentioned	Total
postnatal depression	0	10	18	28
depression	0	5	7	12
personality disorder	2	0	1	3
puerperal psychosis	0	5	6	11
dissociative disorder	0	0	6	6
abnormality of mind	0	1	0	1
mental disturbance	0	5	1	6
Total	2	26	39	67

Table 15d: primary diagnosis * age range of victims Crosstabulation

Age range of victims

primary diagnosis	under 24 hours	1 day to 1 month	1 to 3 months	4 to 6 months	7 to 10 months	11- 12 months	Total
postnatal depression	1	5	3	2	2	1	14
depression	3	0	3	1	0	0	7
personality disorder	0	0	1	0	0	0	1
puerperal psychosis	0	3	0	2	1	0	6
dissociative disorder	5	0	0	0	0	0	5
no information	4	1	1	3	2	0	11
abnormality of mind	1	0	0	0	0	0	1
mental disturbance	1	2	0	1	0	0	4
Total	15	11	8	9	5	1	49

Concluding Remarks

D.38       In order to explore the nature of some infanticide cases and their relationship with DR it was decided first to study a sample of 49 infanticide convictions during the years 1990- 2003. In doing so the data from this particular empirical research study reveal the following points:

(1) Although during the research period of 1990 to 2003 there was a total of 49 defendants who were convicted of infanticide, in 11 of these cases for a variety of reasons no access was available to the relevant files leaving only skeleton statistical data.

(2) The mean age of defendants was 24.7 (age range 13 to 44) with the majority (67.3%, n=33) aged 25 and under.

(3) The age range for victims was under 24 hours to11 months. The majority, 65.3 % (n=32), were female/daughters. 30.6% (n=15) of all victims were newborn in the sense of being aged under 24 hours. All the newborn victims were killed by those aged 25 years and under, see Table 3d.

(4) The vast majority of the offences took place in the matrimonial/partner's/family home (89.8%, n=44).

(5) The most prevalent method of killing was suffocation (36.7%, n=18) followed by battering (14.3%, n=7). Table 5c reveals that of the victims who died of neglect all but one was aged under 24 hours.

(6) Table 6a shows that while the majority of the defendants were initially charged with murder (75.5%, n=37) compared to 24.5% (n=12) facing an infanticide charge, by the time the charges were finalised, after pre-trial negotiations, this had altered dramatically to 63.3% (n=31) of the accused facing a charge of infanticide and 36.7% (n=18) facing charges of murder and infanticide, see Table 6b.

(7) There was no jury trial in all but two of the cases (95.9%, n=47). The two cases in question are described briefly in Appendix A in cases 30 and 34. In both cases the defendants maintained a not guilty plea which in turn necessitated a full trial.

(8) Table 8 reveals that in all but a single case the verdict was infanticide. The exception is case 34 where a jury rejected infanticide and convicted the defendant on a separate count of common law manslaughter.

(9) A non-custodial sentence was given in the vast majority of cases (83.7%, n=41), with five (10.2%) defendants (described in cases 4, 6, 8, 30 and 34) receiving hospital orders, two with restrictions. This leaves three (6.1%) defendants who were given sentences of imprisonment, see Table 9.

(10) The grand total of relevant psychiatric reports was 67.

(11) The most frequent primary diagnosis used in connection with the infanticide was postnatal depression (28.6%, n=14) followed by depression (14.3%, n=7) and puerperal psychosis (12.2%, n=6), see Tables 12(a) and 12(b).

(12) Of those reports that did address the issue, all of the report writers favoured infanticide (64.2%, n=43). 35 of these reports expressly relied on "balance of her mind disturbed by reason of childbirth" rather than lactation which was not expressly relied upon in any of the reports, see Table 14.

(13) While 26 (38.9%) reports favoured DR rather than or as an alternative plea to infanticide, only two reports (3.0%) arising from the same case (no. 34) positively concluded that D's condition would not fall within s 2 of the Homicide Act 1957, see Table 15(a).

ANNEX A – INFANTICIDE CASE SYNOPSES

Case 1

D.39       D, aged 29, got married after it was discovered she was pregnant. D had a normal pregnancy and gave birth to, V, a son. After three months D became depressed. She was eventually referred to a psychiatrist who diagnosed postnatal depression. D was given medication and her condition improved. Some two weeks later while alone in the matrimonial home, D described constant crying and putting a pillow over V's head. D then ran a bath and placed V in it face down. She then took some pills and slashed her wrists. The cause of V's death aged five and half months was drowning. A single report on file diagnosed postnatal depression and favoured both infanticide ("disturbance of mind due to the fact that she had not fully recovered from the effects of childbirth") DR. It recommended a probation order with psychiatric treatment. D was initially charged with murder and a second count of infanticide was later added by the CPS to which D was allowed to plead guilty. D was given a three year probation order with mental treatment.

Case 2

D.40       D, aged 19, had learning difficulties and had been referred to a psychiatrist as a child. The pregnancy was unplanned. D gave birth to a daughter, V. Ten weeks later V died from a blow to the back of the head. D claimed she had bumped V's head accidentally. The CPS said this failed to explain the severity of the injury. D was charged with murder and additional counts of infanticide and child cruelty by way of neglect were later added. D pleaded guilty to infanticide and was given a three year probation order. Two reports, one for the defence and one for the CPS, both favoured infanticide on the basis of her depressed mood and learning difficulties.

Case 3

D.41       D, aged 36, had an unplanned pregnancy. She gave birth to a son, V. After the birth D was prescribed medication for postnatal depression and some ten days after the birth V died as a result of blows to the head. At first D claimed that she had dropped V but later admitted holding V by the ankles and hitting his head against the stairs. A single report on file favoured infanticide. D was given a two year probation order with mental treatment.

Case 4

D.42       D, aged 35, had a long psychiatric history relating to pregnancy and childbirth. She had been given a three year probation order for attempted infanticide some five years earlier, having thrown her five week old baby from a third floor window. She gave birth to a daughter, V, and was receiving progesterone injections. D got up from bed and immersed V in a partly filled sink. She then got dressed and asked her boyfriend, who was not V's father, to call the police. V was pronounced dead shortly after the ambulance arrived. D was admitted to hospital under section 48 of the Mental Health Act 1983. D was charged with murder and a count of infanticide was later added by the CPS to which D was allowed to plead guilty. A single report on file diagnosed puerperal psychosis and concluded that both infanticide and DR manslaughter charges would be appropriate. D was given a hospital order.

Case 5

D.43       D, aged 18, lived with her parents. D's partner ended their relationship five days before the birth but resumed it shortly afterwards. D gave birth to a daughter, V. Some 11 weeks later D suffocated V by putting a plastic nappy bag over her head. V died three days later. D was charged with murder and a count of infanticide was later added by the CPS to which D was allowed to plead guilty. Two reports both favoured infanticide and DR if the charge was to be murder. D was given a three year probation order.

Case 6

D.44       D, aged 26 was born in Bangladesh and understood little English. She had had two daughters by her husband and gave birth to a third daughter, V, after a normal pregnancy. Two days after the birth she mentioned that her two daughters had been sexually abused and seemed very anxious. Three days later D's husband found V's dead body. Death was due to neck wounds caused by a razor blade. In addition, D's eldest daughter was found with neck wounds which required six stitches. D admitted the offences and said she had done this to save them from all the problems they might face in the world. D was admitted to hospital under section 48 of the Mental Health Act 1983. D was charged with murder and attempted murder. A count of infanticide was later added by the CPS to which D was allowed to plead guilty. Two reports (one an addendum with the main report not on file) both diagnosed puerperal depressive illness following childbirth. Neither mentioned infanticide but the report for the CPS favoured DR. Both reports favoured a hospital order. D was given a restriction order.

Case 7

D.45       D, aged 22, gave birth to a son, V. They both suffered infections in hospital. After discharge D was readmitted believing she had already killed V. There were signs of depression and D remained in hospital for two weeks. After discharge D said she was hearing voices. Two days later D suffocated V, aged five weeks, with her hand. She called the police but V was pronounced dead after an ambulance arrived. D was charged with murder and a count of infanticide was later added by the CPS to which D was allowed to plead guilty. A single report on file favoured infanticide on the basis of puerperal psychosis and recommended a probation order with mental treatment. D was given a two year probation order.

Case 8

D.46       D, aged 22, gave birth to a second child, V, a daughter. Some six days short of V's first birthday D placed V in a shallow bath and allowed her to drown. D's husband had returned unexpectedly but was refused entry to the matrimonial home. D had a psychiatric history, having attempted suicide on three occasions. D called the police but V could not be revived. D was charged with murder and a count of infanticide was later added by the CPS to which D was allowed to plead guilty. A report for the CPS favoured infanticide on the basis of postnatal depression with associated delusional ideas which led to the mistaken belief that D had to kill V for altruistic reasons. A second report (one of three the other two were not on file) did not mention infanticide but concluded that "her mental state was severely disordered and her responsibility for her actions was diminished". D was given a hospital order.

Case 9

D.47       D, aged 37, was born in Pakistan. She was married and had four daughters and one son before giving birth to V, her fifth daughter. Two days after the birth while D was still a patient at the maternity unit D was found by a nurse in a distressed state. V was in her cot with blood coming out of her nose. She could not be revived. The death was due to rib fractures showing the use of force to the chest. Two of D's other daughters had died in similar circumstances and were investigated as suspicious. D had a psychiatric history having received prior treatment for depression. D was charged with murder and a count of infanticide was later added by the CPS to which D was allowed to plead guilty. Two reports for the CPS found no evidence of any psychiatric disorder. A third report made no mention of infanticide but concluded that D had little control over her biology or her environment and could not cope. It favoured a non-custodial option. A fourth report favoured infanticide on the basis of postnatal depression. The CPS eventually accepted that D had held V excessively tightly against her body until V ceased to breath. D was given a three year probation order with a condition of mental treatment.

Case 10

D.48       D, aged 20, hid her pregnancy throughout. She gave birth, alone in a toilet where she worked, to a daughter, V. She was seen to go out shortly afterwards and then was seen returning from a nearby lake. A day later V's body was found in the lake wrapped in a bin liner. D claimed that after the birth V had not moved but a pathologist stated that V was born alive and survived for about 15 minutes. There was uncertainty as to the cause of death which was thought more likely to be due to neglect as opposed to drowning. D was charged with murder and concealing the birth. A count of infanticide was later added by the CPS to which D was allowed to plead guilty. A single report on file favoured infanticide on the basis of a dissociation culminating in a crisis due to the effects of giving birth which had disturbed the balance of her mind at the material time. D was given a two year probation order.

Case 11

D.49       D, aged 22, gave birth to V, a daughter. The pregnancy was unplanned and unexpected. Her partner suggested an abortion so D decided to return her parents' home to have the baby. Soon after the birth she returned to her partner who abused her physically. Some three months after the birth V was admitted to hospital due to shortage of breath. Some six months later, aged nine months, D brought V to hospital. V was already dead as a result of suffocation. A mitten was found lodged in the area below V's tongue. D was charged with murder and a count of infanticide was later added by the CPS to which D was allowed to plead guilty. A single report on file for the CPS diagnosed postnatal depression and stated that although this was a disturbance of the balance of her mind within the Infanticide Act 1938 it was for the court to determine whether D's description of her state of mind was accurate. D was given a two year probation order.

Case 12

D.50       D, aged 22, was born in Nigeria. D gave birth to V, a daughter, in hospital and was discharged the following day. D arrived at friend's house having phoned earlier to say that V hade been stillborn. Some days later D told the police that V had been sent to Nigeria but later admitted that she had abandoned V in a rubbish chute. A search was made and V was found dead, naked except for a nappy. Initially the CPS alleged that D had formed an intent to kill prior to birth. However two reports both favoured DR on the basis postnatal depression. One of the reports also favoured infanticide. D had been charged with murder but a count of infanticide was later added by the CPS to which D was allowed to plead guilty. D was given a two year probation order with a condition of mental treatment.

Case 13

D.51       D, aged 19, gave birth to V, a son. D had a psychiatric history and had taken several overdoses of pills. After the birth D was found to be depressed but she did not receive any psychiatric treatment. V was taken to hospital and died aged four months. The cause of death was suffocation. Initially D denied causing any injury to V and the CPS charged her with murder and cruelty. Later D wished to plead guilty to manslaughter but this was at first rejected by the CPS in the light of the first report for the CPS finding no evidence of mental disorder or postnatal depression or DR. However, a later report for the CPS diagnosed serious personality disorder and depression. It favoured both infanticide and DR. A third report on file for the defence also favoured both infanticide and DR on the basis of the same diagnoses. A count of infanticide was added by the CPS to which D was allowed to plead guilty. D was given a three year probation order with a condition of residence for the first six months.

Case 14

D.52       D, aged 16, was born in Jamaica. D lived at home with her mother. D said she was raped by her mother's boyfriend but did not disclose this. D had no idea she was pregnant prior to the birth of V, a female. D had come home from school and went upstairs for a rest. She gave birth to V alone in her bedroom. Fearing her mother's wrath D cut the umbilical cord and opened the window. D placed V on the window ledge to get it out of sight. D said V rolled off the ledge and fell to the ground. In the morning D's mother noticed blood on the sheets and floor and asked where the baby was. V died of head injuries and exposure. D had been charged with murder but a count of infanticide was later added by the CPS to which D was allowed to plead guilty. The first report on file favoured infanticide on the basis of extreme psychological stress which led to the balance of her mind being disturbed. A second report for the CPS noted that D had pleaded guilty to infanticide and recommended a supervision order. D was given a supervision order until aged 19.

Case 15

D.53       D, aged 29, had a psychiatric history of depression. D learned she was pregnant by her partner who was also her employer. The labour was prolonged and D gave birth to V, a son. D was in hospital for ten days. D experienced psychological difficulties caring for V and her depression increased. D lived with

her parents. Her condition deteriorated and when V was aged seven months she strangled him with a towel. D told her parents what she had done and then tried to commit suicide. D admitted the offence but said she had never planned anything. D was charged with murder and a count of infanticide was later added by the CPS to which D was allowed to plead guilty. Two reports both diagnosed puerperal psychosis and favoured infanticide (one of the reports also mentioned DR as an alternative but concluded that the case more warranted an infanticide rather than a manslaughter conviction). They both recommended probation. D was given a three year probation order with a condition of mental treatment.

Case 16

D.54       D, aged 24, was born in Bangladesh. She was married and had two children aged three and 14 months before giving birth to V, a daughter. D did not want a third child and was depressed after the birth. When V was aged eight weeks an ambulance was called as she was having breathing difficulties. V had no pulse and was declared dead. Death was due to severe head trauma and a post mortem showed that V had been the subject of repeated violence up to four weeks before death. D admitted repeatedly hitting V on the head but denied any intent to kill. D was transferred under section 48 of the Mental Health Act 1983. D was charged with murder and a count of infanticide was later added by the CPS to which D was allowed to plead guilty. Two reports both diagnosed postnatal depression. Neither report mentioned infanticide but both made it clear that her condition was present at the time of the offence. D was initially made the subject of a hospital order but the hospital refused to admit her. As a result a sentence review took place which culminated in D being given a three year probation order with conditions of mental treatment and residence for the first 12 months.

Case 17

D.55       D, aged 44, lived with her partner. She was shocked to discover she was pregnant as she said this would interfere with her career. D visited her family and saw a psychiatrist for depression. She was prescribed medication. After the birth of V, a daughter, D was prescribed medication for postnatal depression but she did not take it. She suggested V should be put in care. At aged five months D held V under the bath water. She confessed and said she could no longer cope. Two reports, both for the police, diagnosed postnatal depression. Only one mentioned infanticide and opined that D's condition fell clearly within the 1938 Act. As a result of medical opinion the CPS charged D with infanticide to which she pleaded guilty. D was given a three year probation order.

Case 18

D.56       D, aged 21, was born in Germany while her father was in the forces. D lived with her partner and became pregnant. D had a psychiatric history relating to drug abuse. D gave birth to twins after a C section. Some ten weeks after the births D's daughter (V1) had difficulty breathing and was taken to hospital where she died. There was a bruise found under V1's jaw and a post mortem found rib fractures and brain injury due to shaking which was the cause of death. The other twin, a son, V2, was examined and several old fractures were found. D was charged with murder in respect of V1 and section 18 grievous bodily harm in respect of V2. Two reports both favoured infanticide on the basis of postnatal depression and DR. As a result of these medical opinions the CPS charged D with infanticide to which she pleaded guilty together with the section 18 offence. D was given a three year probation order with a condition of mental treatment.

Case 19

D.57       D, aged 18, had experienced behavioural problems at school and had been referred to a psychologist and a psychiatrist. By age 16 D had had two abortions. She then formed a relationship with a partner and again became pregnant. The relationship ended and D went home to live with her parents. D then got a council flat. D gave birth to a daughter; V. Some two months later D visited her GP who found her to be moderately depressed. After another two months V was rushed to hospital as she was blue and lifeless. V was resuscitated and discharged the following day. Some two weeks later V died aged five months. D confessed to suffocating V with her hands and a blanket. A post mortem found V to have been suffering from a heart virus which might have been treated as a cot death had D not confessed. Two brief reports for the police both found D to be emotionally immature and to have mild depressive illness but neither mentioned infanticide. Shortly after the offence D was admitted to a psychiatric hospital under section 2 of the Mental Health Act 1983. A statement for the CPS on file makes it clear that the psychiatrist in charge of D's care diagnosed depression following V's birth and "at the time of the killing D's mind was disturbed by reason of her not having fully recovered from the effects of giving birth". The CPS charged D with infanticide to which she pleaded guilty. D was given a three year probation order.

Case 20

D.58       D, aged 16, was a sixth form student. D went on a camping holiday and became pregnant. She said this was as a result of rape. She kept her pregnancy a secret throughout and gave birth to a son, V, at home alone. D tried to clean V but he did not respond. She put V in a rucksack. Shortly afterwards D noticed the bag was moving and picked up a plastic boot jack with which she hit the bag until the movement stopped. D put the bag under the bed but later told her mother about it. D admitted the killing. There was one report on file which diagnosed severe dissociative state at the time of the birth but failed to mention infanticide. However, the summary of the prosecuting advocate on file mentions infanticide as a suitable disposal. D was charged with murder but a count of infanticide was later added by the CPS to which D was permitted to plead guilty. D was given a two year probation order with a condition of mental treatment.

Case 21

D.59       D, aged 19, was a university student. She had a failed relationship with a fellow student. She left university having attempted suicide. She later became pregnant and gave the child up for adoption. Two years later D got pregnant again and falsely told her partner she had had an abortion. D later gave birth to a son, V, alone in her flat. Several weeks later a friend found V's body in the freezer wrapped in plastic bags. A post mortem opined that the likely cause of death was suffocation. D admitted placing a flannel over V's mouth and then holding a pillow over his face. D said V was unwell and that she had helped him to die. A single witness statement on file by a doctor mentioned severe psychiatric illness and the fact that D was a psychiatric in-patient. After D's confession the CPS charged her with infanticide and concealment of birth. D pleaded guilty to the former and the latter was to lie on file. D was given a three year probation order.

Case 22

D.60       D, aged 25, was married. She had two abortions aged 16 and 19. She gave birth to V1, a daughter who was premature. 13 days later an ambulance was called as V was not breathing properly. V was pronounced dead at the hospital. A post mortem found a pulmonary haemorrhage for which there was no explanation. No injuries were found and as there was no cause for concern no further action was taken until some six years later, see case 23 in which D is the same person.

Case 23

D.61       D, aged 30, gave birth to her second daughter, V2. Some 15 days later an ambulance was called as V2 had stopped breathing. V2 was put on a ventilator and 9 days later was pronounced brain dead. A post mortem revealed concerns about possible suffocation. D was arrested but at first denied harming V. Later D admitted responsibility for the deaths of V1 and V2 through suffocation. A single report on file diagnosed a depressive reaction at the time of both killings and favoured infanticide. It did not consider that D's abnormality of mind was likely to fall within section 2 of the Homicide Act but considered that this was properly a matter for the jury. The CPS initially charged two counts of murder but later charged infanticide for both offences to which V was permitted to plead guilty. The trial judge's sentencing remarks state that D's depression was not severe and that she bore a significant moral responsibility for the deaths. In the light of the second death it was considered appropriate to pass a custodial sentence. Accordingly, D was sentenced to three years' imprisonment and three years' imprisonment concurrent.

Case 24

D.62       D, aged 37, was born in India. D came to the UK for an arranged marriage. D gave birth to a daughter, V. D seemed happy with her daughter. Some 11 days after the birth D's husband came home from work and found V dead. A post mortem showed skull fractures and concluded that the death was due to severe head injury. D denied the killing and blamed her brother's wife. However, there

was evidence that D had been celebrating the birth and had been drinking alcohol. D had been left alone with V before the death. D admitted drinking alcohol and taking pain killers prior to the killing. Two reports both diagnosed postnatal depression and favoured infanticide. One of the reports also favoured DR. The CPS initially charged murder but later charged infanticide to which V was permitted to plead guilty. D was given a three year probation order with a condition of mental treatment.

Case 25

D.63       D, aged 16, lived with at home with her mother. D got drunk at a party and had a brief relationship. As a result she became pregnant. D hid the pregnancy and gave birth at home alone to a son, V. D said V showed no signs of breathing. A post mortem opined that V had survived for several hours and had died as a result of strangulation. D said that V's head had become entangled in her pants and umbilical cord. D had put V in a box. V was later found with a pair of pants wound tightly round his neck. Two reports both diagnosed a dissociative disorder and favoured infanticide. The CPS initially charged murder but later charged infanticide to which D was permitted to plead guilty. D was given a three year supervision order.

Case 26

D.64       D, aged 39, had a psychiatric history of depression for which she had received in-patient treatment. After her marriage she had a planned pregnancy. D gave birth to a son, V. At first D was coping well but later became depressed. Some 12 weeks after the birth, on the day D was due to see her psychiatrist, she phoned the emergency services and said she had killed V by putting a pillow over his head. D then cut her wrists. A post mortem revealed that death was due to suffocation. D was transferred to hospital under section 48 of the Mental Health Act 1983. Three reports all diagnosed manic depressive psychosis in the postnatal period and favoured infanticide. Two of the reports also favoured DR. The CPS initially charged murder but later charged infanticide to which D was permitted to plead guilty. D was given a three year probation order with a condition of mental treatment.

Case 27

D.65       D, aged 18, had a psychiatric history and previous convictions. She formed a relationship with V's father, became pregnant and gave birth to V, a son. V's father was sentenced to a term of imprisonment several days before the offence. V was placed on the child protection register. At age seven months D phoned an ambulance stating that she had found V with no signs of life. A post mortem revealed the cause of death as due to a severe impact to the back of V's head which was too severe to be accidental. D eventually admitted the offence as due to frustration at V's constant crying. Two reports both diagnosed personality disorder and postnatal depression. They both favoured infanticide and DR. The CPS initially charged murder but later charged infanticide to which D was permitted to plead guilty. D who had been the subject of an interim hospital order under section 38 of the Mental Health Act was given a term of four years detention in a young offenders institution together with a hospital direction under section 45A of the Mental Health Act 1983.

Case 28

D.66       D, aged 13, had a relationship with a 26 year old male and got pregnant. D hid her pregnancy throughout. D gave birth to V, a daughter, at home alone. D held V under the water to stifle her cries. She then wrapped the body in a towel and hid it in her school bag. D phoned a friend in a distressed state and the friend's mother phoned the police. A post mortem revealed that the cause of death was drowning. Two reports both diagnosed depressive symptoms and post traumatic stress disorder arising out of the circumstances of the birth. The CPS initially charged murder but later charged infanticide to which D was permitted to plead guilty. D was given a two year supervision order.

Case 29

D.67       D, aged 32, was married and gave birth to V, a son, after a planned pregnancy. After the birth D began to have abnormal thoughts including the belief that V was Jesus. D saw her GP who diagnosed hypomania. D was later admitted to hospital under section 2 of the Mental Health Act 1983. She was discharged some two weeks later on the basis of a full recovery. Some three months later D phoned her husband to say that V, aged six months, was dead. D admitted that she had smothered V with a pillow because she could not cope. D was admitted to a psychiatric hospital shortly after the offence. Two reports both diagnosed bipolar affective disorder with psychotic symptoms. Only one of the reports addressed infanticide and favoured it. The CPS charged D with infanticide to which she pleaded guilty. D was given a two year probation order with a condition of mental treatment.

Case 30

D.68       D, aged 36, was born in Nigeria. D had a common law husband and gave birth to her first child, a son. D later became pregnant again and gave birth to V, a son. At aged five months the police found V in a bin liner wrapped in a quilt in a rubbish chute. A post mortem concluded that death was due to severe head injuries. D had told her brother that V was in hospital. D at one stage admitted what she had done but later denied that she had harmed V. D pleaded not guilty. Three reports all diagnosed puerperal psychosis at the time of the offence. Only one of the reports addressed infanticide and favoured it and DR. One of the other reports also favoured DR. D was charged with murder but a count of infanticide was later added to the indictment by the CPS which was considered by a jury first. As a result the jury convicted D of infanticide and a not guilty verdict was returned on the murder charge. D was given a Hospital Order under section 37 of the Mental Health Act 1983.

Case 31

D.69       D, aged 23, had a psychiatric history. She hid her pregnancy from her boyfriend. She gave birth to V, a daughter, alone at home. She breast fed V and then placed a hand over V's mouth and nose until she stopped breathing. D wrapped the body up and put it in a wardrobe. She later left the body on some nearby common land. A single report for the CPS found no formal mental disorder but

favoured infanticide on the basis that she was suffering from the effects of childbirth to such a degree that the balance of her mind was disturbed owing to physical and mental exhaustion. The report also favoured DR on the basis that the mental disturbance amounted to an abnormality of the mind. The CPS initially charged murder but later charged infanticide to which D was permitted to plead guilty. D was given a three year probation order.

Case 32

D.70       D, aged 25, was living with her boyfriend and her parents. She became pregnant but D hid this and was in denial. D gave birth to a son, V, alone at home in the bathroom. D claimed V was stillborn and had been left upside down in the toilet. D wrapped V in a towel and a carrier bag. She drove to the beach where she left V's body. A post mortem revealed that V had lived for at least five minutes and that the cause of death was neonatal anoxia probably due to blocked airways as a result of neglect. A single report diagnosed hysterical dissociation and favoured infanticide. D was charged with infanticide and concealment of birth to which she pleaded guilty. D was given a three year probation order with a condition of mental treatment.

Case 33

D.71       D, aged 20, had a relationship with her half brother. She had a psychiatric history. She had a daughter of ten months before giving birth to a second daughter, V. While in hospital D took an overdose. Three months after the birth D called the emergency services saying that V had stopped breathing. V was pronounced dead later that day. A post mortem stated that the cause of death was due to obstruction of airways rather than natural causes. D denied harming V at first but later admitted placing a pillow over V's head. A single report diagnosed a major depressive disorder. Although the report did not mention infanticide by name it stated the balance of her mind was disturbed to a significant degree by postnatal depression to cause her not to know the causes or consequences of her actions. The CPS initially charged murder but later charged infanticide to which D was permitted to plead guilty. D was given a three year probation order with a condition of mental treatment.

Case 34

D.72       D, aged 19, suffered from epilepsy and had a psychiatric history. D had a relationship with her partner and gave birth to a son, V. They were married after the birth. V had been in the maternity hospital and was readmitted within 24 hours. V died some 12 days later aged five weeks. A post mortem revealed that the cause of death was poisoning from a high dosage of D's epilepsy medication found in V's feeding bottles. D denied harming V. At first the CPS charged murder but later took the view that in the light of D's mental disorder it was not appropriate to proceed with a murder charge. D then pleaded not guilty to charges of infanticide and common law manslaughter. The latter charge was based on the fact that D might have given V the medication in the misguided belief that this would help V to whom D had passed on her epilepsy. Three reports all diagnosed epilepsy and personality disorder. Two of the reports favoured infanticide on the basis that the balance of D's mind was disturbed and

that this arose against the setting of a disorder of personality. Both reports also concluded that the personality disorder in question would not constitute an abnormality of mind within the meaning of section 2 of the Homicide Act 1957. A third report did not mention infanticide or DR. The jury rejected infanticide but convicted D of common law manslaughter. D was given a hospital order with restrictions under section 41 of the Mental Health Act 1983.

Case 35

D.73       D, aged 26, had been happily married for six years. She became pregnant and gave birth to a son, V. She had a psychiatric history having suffered from depression and having taken an overdose two years before the birth. She was given medication and remained well until two days after the birth when she said she felt different and unable to cope. She began to have irrational thoughts and felt a compulsion to neglect V and herself. On the day of the offence D picked up V, aged three months, from her mother-in-law and threw him out of an upstairs window. V did not recover. One report for the CPS on file was incomplete with the conclusion missing. A second report for the police diagnosed a psychotically depressed state at the time of the act but did not mention infanticide. A note on file from the CPS stated that it was in the public interest to proceed with infanticide. As a result D was charged with infanticide to which she pleaded guilty. D was given a three year probation order with a condition of mental treatment.

Case 36

D.74       D, aged 17, lived with her parents. At aged 15 she gave birth to a daughter having hidden the pregnancy. She eventually told her parents who were supportive but told her they would throw her out if it happened again. D did become pregnant once more and hid the pregnancy. D gave birth to a second daughter, V, and in order to stop her crying put her hands over V's mouth and covered her face with some clothing. She put V in a plastic bag and into a drawer. D told a friend in the morning that V was stillborn. A post mortem revealed that V had died from asphyxia as a result of compression of the face and neck. Two reports both diagnosed reactive depression and favoured infanticide. One of the reports opined that it was a matter of small moment whether D's condition brought her within infanticide or DR and considered that she satisfied both criteria. The CPS initially charged murder but later charged infanticide to which D was permitted to plead guilty. D was given a three year probation order.

Case 37

D.75       No reports on file but details of offence as follows. D, aged 17, gave birth to a son, V, who died aged seven months. A post mortem concluded that V had died from SIDS. However, following an argument with her partner D confessed to her mother that she had smothered V with a pillow. She said she had done this as she was angry that all her fiends were out enjoying themselves and she had to stay at home to look after V. The CPS initially charged murder but later charged infanticide to which V was permitted to plead guilty. D was given a three year probation order with a condition of mental treatment.

Case 38

D.76       D, aged 22, was born in the Philippines. She worked as a nanny to a Kuwaiti family and got pregnant. She hid the pregnancy and gave birth alone in her flat to a son, V. D immediately hit V's head on the floor several times. She then placed V in a plastic bag and bin liner and dropped him into a communal rubbish chute. D was bleeding heavily and sought help. She was taken to hospital where the placenta was found still to be in her body. D denied having given birth but eventually the police found V who was taken to hospital but could not be revived. A single report on file diagnosed a disturbance of D's mind due to a combination of her reaction to childbirth and "her characteralogical naivety" which fell within infanticide. The CPS initially charged murder but later charged infanticide to which D was permitted to plead guilty. D was given a three year probation order with a condition of mental treatment.

Cases 39

D.77       No reports on file but details of offence as follows. D, aged 19, was an orphan who had been in care. She began a relationship with an older married man and got pregnant. D gave birth to a daughter, V. She suffered from depression after the birth but seemed able to cope until V was aged three months when she strangled her. D went to a neighbour's house holding V's lifeless body. D admitted the killing saying as she could not stop V's crying she grabbed the first thing to hand, a dressing gown cord, and put it round V's neck and pulled. V turned blue and she panicked. The CPS initially charged murder but later charged infanticide to which D was permitted to plead guilty. D was given a three year probation order with a condition of mental treatment.

Case 40

D.78       D, aged 15, met her boyfriend when she was 13 and began a sexual relationship with him at aged 14. She got pregnant and at one stage she thought she had lost the baby and told her boyfriend. Later she realised she was still pregnant but did not tell him this. She then hid her pregnancy from everyone. She gave birth at home alone to a daughter, V. She cut the cord with a knife but said she could remember nothing further. Her father found her on the living room floor with a bloody duvet around her. She was taken to hospital where she said it was a heavy period. The hospital thought D had had a miscarriage but when the father searched at home he found V in a bag under the bed. A post mortem revealed that V had been alive for several minutes before D stabbed her to death with a kitchen knife. A single report on file diagnosed dissociative state throughout labour and delivery and supported infanticide. The CPS initially charged murder but later charged infanticide to which D was permitted to plead guilty. D was given a three year supervision order with a condition of mental treatment.

Cases 41 to 49 – No reports on file and only the following very brief offence details available.

Case 41

D.79       D, aged 37, put her daughter, V, aged six months into her cot while V's father was asleep. D put a battery from a laser pen into V's mouth and then gave V a little milk. D had seen a TV programme about the dangers of poisons in the home shortly before. The battery was found to be forced into V's throat. The CPS alleged that D had intended to kill V with the battery. The CPS initially charged murder but later charged infanticide to which D was permitted to plead guilty. D was given a three year community rehabilitation order with a condition of residence at a probation hostel.

Case 42

D.80       D, aged 24, was being treated for postnatal depression after the birth of her daughter, V, who cried a lot. After a visit to a local health clinic V began to cry and D shook her violently causing her a severe brain injury from which she died. The CPS charged infanticide to which D pleaded guilty. D was given a three year probation order with a condition of mental treatment.

Case 43

D.81       D, aged 23, hid her pregnancy from family and friends. She gave birth to a daughter, V, alone at home in her bedroom. D put her newly born daughter in a carrier bag and left her in the garden overnight. It was very cold and V died of exposure. D was charged with manslaughter but the CPS later charged infanticide to which D pleaded guilty. D was given a three year probation order.

Case 44

D.82       D, aged 22, gave birth to a daughter, V. D put her newly born daughter in a bag and left V in a park. V died of neglect. The CPS charged infanticide to which D pleaded guilty. D was given a three year probation order with a condition of a pregnancy test every six months.

Case 45

D.83       D, aged 23, gave birth to a daughter, V. D put a bed cover over her newly born daughter's neck for about a minute. V died of suffocation. The CPS initially charged murder but later charged infanticide to which D was permitted to plead guilty. D was given a three year community rehabilitation order with a condition of mental treatment.

Case 46

D.84       D, aged 19, hid her pregnancy. She gave birth to a son, V, alone in her bedroom. D strangled her newly born son and put his body in rubbish sack in her car. The CPS charged infanticide to which D pleaded guilty. D was given a three year probation order with a condition of mental treatment.

Case 47

D.85       D, aged 21, gave birth at home to a daughter, V. An ambulance was called as D was bleeding heavily. V's body was found with multiple stab wounds. The CPS charged infanticide to which D pleaded guilty. D was given a three year probation order with a condition of mental treatment.

Case 48

D.86       D, aged 24, lived with her partner. She gave birth to a son, V, but suffered from severe postnatal depression. At first she rejected V but later came to accept him. Some four months after V's birth D's partner came home to find him gasping for breath. V was put on a ventilator but was pronounced dead two days later. A post-mortem revealed skull fractures. D admitted hitting V's head on the bedroom wall several times. D was charged with murder but the CPS later charged infanticide to which D pleaded guilty. D was given a two year probation order with a condition of mental treatment.

Case 49

D.87       D, aged 39, went into her six month old daughter's bedroom, placed her on the floor and strangled her with her hands. D was charged with murder but the CPS later charged infanticide to which D pleaded guilty. D was given a three year probation order with a condition of mental treatment.

B. The Diminished Responsibility Sample

D.88       In paragraph 6 above it was stated that, in an attempt to further explore the nature of some infanticide cases and their relationship with DR, it was decided also to study a sample, during the years 1990 to 2003, of 35 cases of DR manslaughter convictions of biological mothers who had killed their children aged three years and under.

D.89       As with the infanticide sample, although there were 35 defendants^[10] who were convicted of DR manslaughter, in 9 of these cases for a variety of reasons no access was available to the relevant files, leaving only skeleton statistical data. This means that in some cases, only limited information was available and, where this is the case, this is again made clear in the relevant Tables.

D.90       Tables 1a and 1b give a breakdown of the age distribution of the defendants. The mean age was 28.7 (age range 18 to 45) with the majority (60.0%, n=21) aged 29 and under. In contrast to the Infanticide Sample it is of note that none of the DR accused were under 17 years of age.

Table 1a: age range of accused

	Frequency	Percent
17 to 20	4	11.4
21 to 25	8	22.9
26 to 30	10	28.6
31 to 35	9	25.7
40 to 44	3	8.6
45 to 49	1	2.9
Total	35	100.0

Table 1b: age of accused

	Frequency	Percent	Cumulative Percent
18.00	2	5.7	5.7
19.00	1	2.9	8.6
20.00	1	2.9	11.4
21.00	1	2.9	14.3
22.00	3	8.6	22.9
23.00	1	2.9	25.7
25.00	3	8.6	34.3
26.00	2	5.7	40.0
27.00	3	8.6	48.6
28.00	1	2.9	51.4
29.00	3	8.6	60.0
30.00	1	2.9	62.9
31.00	3	8.6	71.4
32.00	2	5.7	77.1
34.00	2	5.7	82.9
35.00	2	5.7	88.6
41.00	1	2.9	91.4
42.00	2	5.7	97.1
45.00	1	2.9	100.0
Total	35	100.0

D.91       The ethnic breakdown of defendants is presented in Table 2 and shows that of the 33 cases, where relevant data were available, 26 were white while 7 were black or Asian. Of the 26 white defendants, all were born in the UK, while of the 7 black or Asian, 4 were born in the UK.

Table 2: born UK * ethnic group Crosstabulation

born UK

ethnic group

Total

	white	black	asian	chinese	unknown
yes	26	3	1	0	0	30
no	0	2	1	1	1	5
Total	26	5	2	1	1	35

D.92       With regard to criminal records, out of a total of 26 cases where data were available, only 23.0% (n=6) of the sample had previous convictions. As for psychiatric history, again out of 26 cases 73.1% (n=19) had had contact with psychiatric services. In relation to marital status, Table 2b below shows that of 27 cases where this information was available, 28.6% (n=10) were single at the time of the offence.

Table 2b: marital status

	Frequency	Percent	Cumulative Percent
single	10	28.6	28.6
married	6	17.1	45.7
co-habiting	6	17.1	62.9
divorced	1	2.9	65.7
separated	4	11.4	77.1
not known	8	22.9	100.0
Total	35	100.0

D.93       Turning to victims, there was one case (no. 3) where the accused killed her four children, three of whom, being aged 3 and under, fell within the sample. This means that there was a total of 37 relevant victims. Their sex/age distribution is presented in Tables 3a, 3b and 3c. The age range for victims was under 24 hours to 47 months, with only 24.3% (n=9) under 12 months, so capable of qualifying for a verdict of infanticide. It can be seen, in contrast to the infanticide sample, that a bare majority, 51.4 % (n=19), were female/daughters.

Table 3a: age range of victims



Table 3b: age range of victims

	Frequency	Percent	Cumulative Percent
under 24 hours	1	2.7	2.7
1 day to 1 month	1	2.7	5.4
1 to 3 months	1	2.7	8.1
4 to 6 months	5	13.5	21.6
11 to 12 months	1	2.7	24.3
over 12 months	28	75.7	100.0
Total	37	100.0

Table 3c: age range of victims * sex of victim Crosstabulation

age range of victims

sex of victim

	male	female	Total
under 24 hours	0	1	1
1 day to 1 month	1	0	1
1 to 3 months	1	0	1
4 to 6 months	4	1	5
11 to 12 months	0	1	1
over 12 months	12	16	28
Total	18	19	37

D.94       The place or venue where the killing actually took place is given in Table 4. It can be seen from this that the vast majority of the offences took place in the matrimonial/partner's/family home (88.6%, n=31).

Table 4: venue of offence

	Frequency	Percent	Cumulative Percent
matrimonial/partner's/family home	31	88.6	88.6
victim's home[11]	1	2.9	91.4
street	1	2.9	94.3
canal	1	2.9	97.1
river	1	2.9	100.0
Total	35	100.0

D.95       Tables 5a and 5b give the "method of killing" and show that the most prevalent method was suffocation (34.3%, n=12) followed by drowning (20.0%, n=7) and strangulation (14.3%, n=5). Table 5c reveals that all bar one of those who was suffocated was over 12 months of age.

Table 5a: method of killing



Table 5b: method of killing

	Frequency	Percent	Cumulative Percent
sharp instrument	4	11.4	11.4
battering	2	5.7	17.1
strangulation	5	14.3	31.4
poisoning	2	5.7	37.1
drowning	7	20.0	57.1
suffocation	12	34.3	91.4
shaking	1	2.9	94.3
neglect	1	2.9	97.1
thrown from bridge	1	2.9	100.0
Total	35	100.0

Table 5c: method of killing * age range of victims Crosstabulation

age range of victims

method of killing

	under 24 hours	1 day to 1 month	1 to 3 months	4 to 6 months	11 to 12 months	over 12 months	Total
sharp instrument	0	0	0	1	0	3	4
battering	0	0	0	1	0	1	2
strangulation	0	0	0	1	0	6	7
poisoning	0	0	0	0	0	2	2
drowning	1	0	0	1	0	5	7
suffocation	0	0	0	0	1	11	12
shaking	0	0	1	0	0	0	1
neglect	0	1	0	0	0	0	1
thrown from bridge	0	0	0	1	0	0	1
Total	1	1	1	5	1	28	37

ASPECTS OF THE TRIAL

D.96       The CPS files could not shed light on all of the intricacies of the trial process in each case, but the following data were extracted and may help to explain a number of different aspects of what took place. First, all 35 cases were pleas of guilty to manslaughter by reason of DR which, in the light of the medical reports, were accepted by the prosecution. So in none of the cases within the sample were any of these female defendants required to prove their DR defence to a jury. This may say something about the nature of these cases In any event, earlier research into the operation of the DR plea revealed that, in a more general sample of 157 cases, no jury trial took place in 77.1% of cases and that out of a total of 29 females only four (13.8%) came before a jury compared to 32 (25%) males out of a total of 128.^[12]

D.97       With regard to verdicts, it follows that all cases bar one (n=34) resulted in verdicts of DR manslaughter. The only exception was a single case (no. 26) where the defendant was found unfit to plead. However, the psychiatric reports did favour DR and, had she been fit to plead, this would more than likely have been the verdict.

D.98       Table 6a below gives the sentence for each case. This reveals that a hospital order was given in the majority of cases (57.1%, n=20). Of those 20, 14 defendants received hospital orders with restrictions and six without restrictions. In only one case was the accused sentenced to a term of imprisonment (case no. 28) while the remaining defendants (40%, n=14) were all given probation orders. The number of hospital orders stands in stark contrast to those made in the infanticide cases.

Table 6a: sentence

Sentence	Frequency	Percent	Cumulative Percent
between 3 and five years	1	2.9	2.9
probation with treatment	12	34.3	37.1
probation order	2	5.7	42.9
hospital order	6	17.1	60.0
restriction order	14	40.0	100.0
Total	35	100.0

D.99       Table 6b shows that in relation to the nine victims under 12 months of age (i.e. those capable of qualifying for an infanticide verdict) 44.4% (n=4) were given a restriction order while the rest (55.6%, n=5) all received probation orders.

Table 6b: age range of victims * sentence Crosstabulation

age range of victims

sentence

	between 3 and 5 years	probation with treatment	probation order	hospital order	restriction order	Total
under 24 hours	0	1	0	0	0	1
1 day to 1 month	0	1	0	0	0	1
1 to 3 months	0	0	1	0	0	1
4 to 6 months	0	1	0	0	4	5
11 to 12 months	0	1	0	0	0	1
over 12 months	1	8	1	6	10	26(+2) [13]
Total	1	12	2	6	16	35(+2)13

THE PSYCHIATRIC REPORTS

D.100       The psychiatric reports on the CPS files which addressed the issues of DR/infanticide were all analysed. The maximum number of such reports in any one file was five. However, it can be seen from Table 7 below that in nine cases there were no reports available owing to lack of access to the files. It was also clear in some cases that there were other reports which, although referred to were not contained in the CPS files. What this means is that the CPS files clearly did not contain all relevant reports and the following analysis must be read with this caveat in mind. However, despite this deficiency in the data, the reports reveal much of interest. First, Table 7 reveals that only one file contained the maximum of five reports, compared to 11 files which each had two reports. The grand total of reports was 67.

Table 7: psychiatric reports on file

	Frequency	Percent	Cumulative Percent
one	3	8.6	8.6
two	11	31.4	40.0
three	7	20.0	60.0
four	4	11.4	71.4
five	1	2.9	74.3
none	9	25.7	100.0
Total	67	100.0

D.101       Table 8 below shows that the defence requested 55.1% (n=37) of the overall DR reports followed by the prosecution at 35.9% (n=24).

Table 8: report sources

	Frequency	Percent	Cumulative Percent
court	4	6.0	6.0
prosecution	24	35.9	41.9
defence	37	55.1	97.0
unclear	2	3.0	100.0
Total	67	100.0

D.102       With regard to diagnostic groups, Tables 9a and 9b reveal that by far the most frequent primary diagnosis^[14] used in connection with these DR pleas was depression (51.4%, n=18). It should be pointed out that although there were nine files containing no DR reports in six of these cases it was possible to identify the primary diagnosis from other sources. In only three cases could this not be achieved.

Table 9a: primary diagnosis



Table 9b: primary diagnosis

	Frequency	Percent	Cumulative Percent
schizophrenia	4	11.4	11.4
depression	18	51.4	62.9
personality disorder	2	5.7	68.6
psychosis	5	14.3	82.9
no information	3	8.6	91.4
organic brain damage	2	5.7	97.1
mental illness	1	2.9	100.0
Total	35	100.0

D.103       Table 10 below shows the relationship between diagnosis and sentence. This reveals that the majority of those with a diagnosis of depression (n=10) received a hospital order, six of whom were given restriction orders. The remaining restriction orders were given to all those diagnosed with schizophrenia (n=4) and to all those except one with a diagnosis of psychosis (n=4). Unlike the infanticide sample it is of interest to note that all except two of the DR probation orders carried a condition of mental treatment. This may say something about the different nature of the conditions which resulted in successful verdicts of infanticide as opposed to DR manslaughter. In particular, none of the infanticide sample diagnosed with depression who were given probation orders had a condition of mental treatment imposed.

Table 10: primary diagnosis * sentence Crosstabulation

sentence

primary diagnosis	between 3 and 5 years	probation with treatment	probation order	hospital order	restriction order	Total
schizophrenia	0	0	0	0	4	4
depression	1	6	1	4	6	18
personality disorder	0	1	1	0	0	2
psychosis	0	1	0	0	4	5
no information	0	2	0	1	0	3
organic brain damage	0	2	0	0	0	2
mental illness	0	0	0	1	0	1
Total	1	12	2	6	14	35

D.104       The psychiatric reports are of course vital as to how a DR plea progresses. Table 11 below shows that all the reports in the CPS files which addressed the issue favoured DR.

Table 11: report opinions on DR

	Frequency	Percent
no mention of DR	7	10.4
favours DR	60	89.6
Total	67	100.0

D.105       With regard to infanticide, Table 12 below shows that 12 reports addressed this issue with eight in favour and four of the view that D's condition did not fall within the 1938 Act. It will be recalled that there were only nine victims under the age of 12 months which in turn means that only nine defendants were capable of qualifying for a verdict of infanticide. The cases in question are numbers 1, 2, 3, 7, 10, 12, 17, 20 and 21. In one of these cases (n. 20) there was only a single report which favoured DR but did not mention infanticide. However, in the other eight cases, infanticide was considered in 12 of the reports.

Table 12: possible infanticide plea

	Frequency	Percent	Cumulative Percent
yes	8	11.9	11.9
no	4	6.0	17.9
not mentioned	55	82.1	100.0
Total	67	100.0

D.106       First, there were the eight reports from the five cases which favoured infanticide. Brief details are as follows.

Case 3

D.107       One of the reports for the defence states that "at the time of the offence the balance of her mind was disturbed by reasons of mental disorder, and by reason of the effects of the birth and that this will substantially impair her mental responsibility". Although this report mentions concepts contained in the 1938 Act, it goes on to make it clear that DR is the appropriate plea.

Case 7

D.108       A report for the defence concluded that "the defence of infanticide is based on outdated psychiatric theories and strictly speaking is rarely sustainable. Nevertheless, the Act is usually interpreted very widely and is held to encompass cases very much like this one".

D.109       A second report for the defence made mention of "abnormality of mind" but not DR. Rather it concluded that "infanticide would be an appropriate finding in view of the evidence for the disturbance of the balance of her mind at the time".

Case 10

D.110       A report for the defence having favoured DR added that "Also within the terms of s 1(1) of the Infanticide Act 1938 the balance of her mind was disturbed".

D.111       A report for the CPS stated "The depression she was suffering from at the time of the killing constitutes a disturbed balance of mind within the terms of s 1(1) of the Infanticide Act 1938".

Case 12

D.112       A report for the defence stated that "Her mental condition might also be construable as at least aggravated by the birth and certainly by the caretaking of her son. The question, therefore, of whether she had not recovered from the effect of giving birth to her son is a possible construal of events, making a plea possible under the Infanticide Act 1938. Both factors, namely her disease of the mind impairing her responsibility for her actions and the greater vulnerability brought about by the birth of her son are relevant. As both conditions as legal criteria permit the substitution of a manslaughter plea for the murder charge the difference is perhaps academic".

Case 17

D.113       A report for the defence stated that "In this case the childbirth further disturbed the balance of her mind such that she had not fully recovered from its effects at the material time. It can be argued therefore that the killing also amounts to infanticide within the meaning of the Infanticide Act 1938".

D.114       A report for the CPS stated "Although I agree that her mental state would fulfil the definition of infanticide within the meaning of the Infanticide Act 1938, it would appear more logical from a medical point of view to consider this a case of DR".

D.115       It is difficult to come to any firm conclusions as to why infanticide was not successfully used in these five cases, which produced a total of eight reports favouring infanticide. However, as is noted below, in case 12, where D was given a restriction order, there was also a report which expressly rejected infanticide. With regard to the other four cases, two (cases 7 and 10) resulted in a probation order with the other two (cases 3 and 17) being given restriction orders. What seems more than likely is that, as all these reports also favoured DR, this was the route eventually favoured by the CPS to settle these particular cases.

D.116       Further, there were four reports from four cases which rejected infanticide. Brief details are as follows.

Case 1

D.117       A report for the defence concluded "I can find no evidence that at the material time the balance of her mind was disturbed by reason of her not having fully recovered from the effects of giving birth …I am therefore of the opinion that the defence of infanticide would not be open to her".

Case 2

D.118       A report for the defence opined "In that the killing did not result from a disturbance of the balance of her mind as a result of giving birth to the victim, I do not believe that she fulfils the criteria for the legal concept of infanticide".

Case 12

D.119       A report for the CPS stated that "It is also difficult to say that the balance of her mind was disturbed by reason of her not having recovered from the effect of giving birth to her son (Infanticide Act 1938). It is not possible to say the illness recurred because she gave birth to her son"

Case 21

D.120       A report for the defence concluded "She did not form an intent to kill or to do serious harm to the baby therefore her alleged offence does not fit the definition of infanticide".

D.121       Despite these rejections of infanticide, all four reports did favour DR. In addition, there were other reports in each of these four cases which also clearly supported DR.

Concluding Remarks

D.122       As has already been emphasised, this study seeks to further explore the nature of the relationship of infanticide with DR by presenting data on 35 cases of DR manslaughter convictions of biological mothers who had killed children aged three years and under during the years 1990 to 2003. In doing so, the data from this particular empirical research study reveal the following points:

(1) There was a sample of 35 defendants who were convicted of DR manslaughter. In nine of these cases, for a variety of reasons, no access was available to the relevant files leaving only skeleton statistical data.

(2) The mean age was 28.7 (age range 18 to 45) with the majority (60.0%, n=21) aged 29 and under. In contrast to the Infanticide Sample none of DR defendants was aged under 17 years of age.

(3) There was a total of 37 victims. The age range for victims was under 24 hours to 47 months, with only 24.3% (n=9) under 12 months so capable of qualifying for a verdict of infanticide. A bare majority, 51.4 % (n=19), were female/daughters.

(4) The vast majority of the offences took place in the matrimonial/partner's/family home (88.6%, n=31).

(5) The most prevalent method of killing was suffocation (34.3%, n=12) followed by drowning (20.0%, n=7) and strangulation (14.3%, n=5)

(6) All 35 cases were pleas of guilty to manslaughter by reason of DR which in the light of the medical reports were accepted by the prosecution.

(7) All cases bar one (n=34) resulted in verdicts of DR manslaughter. The only exception was in a single case (no. 26) where the defendant was found unfit to plead, although the psychiatric reports did favour DR.

(8) A hospital order was given in the majority of cases (n=20), with 14 defendants receiving hospital orders with restrictions and six without restrictions. In only one case was the accused sentenced to a term of imprisonment (case no. 28) while the remaining defendants (40%, n=14) were all given probation orders.

(9) In relation to the nine defendants who killed victims under 12 months of age (i.e. those capable of qualifying for an infanticide verdict) 44.4% (n=4) were given a restriction order while the rest 55.6% (n=5) all received probation orders.

(10) With regard to diagnostic groups, Tables 9a and 9b reveal that by far the most frequent primary diagnosis used in connection with these DR pleas was depression (51.4%, n=18).

(11) The majority of those with a diagnosis of depression (n=10) received a hospital order, six of whom were given restriction orders. The remaining restriction orders were given to all those diagnosed with schizophrenia (n=4) and to all those except one with a diagnosis of psychosis (n=4).

(12) All of report writers whose reports were in the CPS files which addressed the issue (89.6%, n=60) favoured DR.

(13) With regard to infanticide, 12 reports, arising from nine cases where the victims were under the age of 12 months, addressed this issue with eight in favour and four of the view that D's condition did not fall within the 1938 Act. The eight reports which favoured infanticide also supported a plea of DR as did the four reports which rejected infanticide. All the other reports in these cases also supported a plea of DR.

ANNEX B – DIMINISHED RESPONSIBILITY CASE SYNOPSES

Case 1 (V under 12 months)

D.123       D, aged 26, had had two abortions and had given birth to a son who had died of meningitis at aged seven months. She began a relationship with her partner and gave birth to a daughter whom he said was not his child. Some time after this D's friends remarked on her weight gain but D denied she was pregnant. D eventually gave birth alone upstairs to V, a second daughter, while her partner was downstairs with her first daughter. D put V in a bath and she drowned but also had a skull fracture. D put V in a bag and two days later the police were called after the body was found. D denied causing any injury to V. The CPS charged D with murder, as infanticide was not supported by the medical reports. D had had an emergency operation on the base of her brain some ten years before. Five reports, two for the CPS and three for the defence, all diagnosed organic brain damage. The two CPS reports opined that D's condition was an abnormality of mind. One report concluded that it was not possible to consider the extent to which D's responsibility was diminished while the other, although it initially thought this issue should be decided by the jury, later in an addendum concluded that as a result of the findings of a CAT scan section 2 was satisfied. The three defence reports all favoured DR. One of them found no evidence of the balance of D's mind being disturbed and that therefore a defence of infanticide was not open to her. D's plea of DR was eventually accepted by the CPS and she was given a three year probation order with a condition of mental treatment.

Case 2 (V under 12 months)

D.124       D, aged 31, was married, had a son but later divorced. D became depressed and sought psychiatric help. D then met her partner and gave birth to a daughter, V. D again suffered from depression and spoke of killing V and herself. A day later D drove to her former husband's home and said V, aged 11.5 months, was dead. D said she had put a pillow over V's face. The police were called and V was found suffocated at D's home. D tried to hang herself and later said she had heard voices telling her to kill V. D was admitted to a psychiatric hospital. Four reports, three for the CPS and one for the defence, all diagnosed depression and favoured DR. One of the CPS reports stated that the killing did not result from a disturbance of the balance of her mind as a result of giving birth to V and so did not fulfil the criteria for the legal concept of infanticide. D's DR plea was accepted and the trial judge stated that, having regard to the medical reports, any jury properly directed would bring in a DR verdict. D was given a three year probation order with a condition of mental treatment.

Case 3 (One V under 12 months)

D.125       D, aged 32, was born in Hong Kong and came to the UK when aged 13. She was married and had four children. She had a psychiatric history and three weeks before the index offences she attempted suicide. She said that she decided to kill all her children with the same tie she had tried to strangle her husband with. The tie snapped while she was strangling her eldest child, a son V1 aged five, so she then used a belt to strangle her other three children in chronological order, a son V2 aged three, a daughter V3 aged two and a son V4 aged four months. D had

suffered from depression exacerbated by pregnancy and had difficulty coping with her children. Although the CPS considered an infanticide charge in respect of the youngest V, DR manslaughter was accepted as a plea for all four Vs as all three reports, two for the CPS and one for the defence, favoured DR on the basis of depressive psychosis. One of the reports for the CPS also opined that at the time of the offence the balance of her mind was disturbed by reason of mental disorder and that, by reason of the effects of birth, this would have substantially impaired her mental responsibility. D was given a hospital order with restrictions.

Case 4

D.126       D, aged 27, had a relationship which lasted four months. Later she wrote to her ex-partner saying she was pregnant. He advised an abortion. D was devastated by this rejection. She lived with her parents and became depressed. She gave birth to a daughter, V. Some 15 months later she went to a neighbour to say she could not wake up V. An ambulance was called and V was pronounced dead. Hospital staff were suspicious and D admitted suffocating V with a pillow. D said she could not take any more and had decided it was either V or herself. Two reports, one for the defence and one for the CPS, both favoured DR on the basis of depressive disorder and personality problems. D's plea of DR was accepted by the CPS and she was given a hospital order.

Case 5

D.127       D, aged 29, was married and had two children, one aged six and V aged three. D's husband was a coal miner and there was a fear of pit closure and job loss. D became depressed and was diagnosed with "acute psychotic depression" for which she received in-patient treatment. D's condition seemed to improve but there were concerns over her medication. D went to a neighbour to say that she had strangled V with a belt. D said her mind went blank and then all that came into her mind was to kill V. Two reports for the defence both favoured DR on the basis of psychotic depression. D's plea of DR was accepted by the CPS and she was given a hospital order with restrictions.

Case 6

D.128       D, aged 35, had been married for some time. She had two children aged 15 and 13. She separated but kept in contact with her husband. D became pregnant after a relationship with a married man. D gave birth to a son, V. When V was 18 months he was found dead after D had attempted suicide. The cause of death was drowning. D admitted giving V a sleeping pill and putting him in the bath in order to save from all the hurt in the world. D had a psychiatric history and had told a psychiatrist that she could not cope and sometimes felt like drowning V. A single report for the CPS favoured DR on the basis of abnormality of mind as a result of mental illness although it was difficult to assess a precise psychiatric diagnosis. D's plea of DR was accepted by the CPS and she was given a hospital order.

Case 7 (V under 12 months)

D.129       D, aged 19, lived with her partner and gave birth to a son, V. D had a psychiatric history and had been referred to a psychiatrist during the pregnancy. V, aged 14 weeks, was admitted to hospital suffering from brain injuries. A post-mortem revealed sub-dural haemorrhaging suggesting violent shaking. D at first said V's father was responsible but later admitted the offence. D continued to give conflicting accounts of the death. D was charged with murder and child cruelty. A report for the defence diagnosed an abnormal personality which it opined was an abnormality of mind within section 2 but that it was for the jury to decide if there was a substantial impairment of mental responsibility. This report also concluded that the Infanticide Act "is usually interpreted very widely and is held to encompass cases very much like this one". A second report for the defence made mention of "abnormality of mind" but not DR. Rather it concluded that "infanticide would be an appropriate finding in view of the evidence for the disturbance of the balance of her mind at the time." D's plea of DR was accepted by the CPS and she was given a three year probation order with a condition of residence.

Case 8

D.130       D, aged 22, was married and gave birth to a daughter, V. After the birth D suffered psychiatric problems and was admitted to hospital for four months. She later took an overdose. On the day of the offence D left V, aged 30 months, with friends. When D collected V she seemed upset. D went home and cut V's throat with an electric carving knife. She then tried to kill herself. D said she had decided to kill herself and that the need to kill V followed on from this. Two court reports both diagnosed schizophrenia but made no mention of DR. A third report for the defence also diagnosed schizophrenia and favoured DR. D's plea of DR was accepted by the CPS and she was given a hospital order with restrictions.

Case 9

D.131       D, aged 26, had separated from her husband when she found out she was pregnant. D gave birth to a son, V. D was admitted to a psychiatric hospital suffering from "psychotic depression". V was taken into care. On her discharge D was allowed supervised access to V. D lived with her mother and V with a foster mother. D went to visit V and asked the foster mother if she could stay overnight. D was allowed to sleep with V and suffocated him with her hands. D told police that if she could not have V then no one else could. Two reports, one for the CPS and one for the defence, both favoured DR on the basis of schizophrenia. D's plea of DR was accepted by the CPS and she was given a hospital order with restrictions.

Case 10 (V under 12 months)

D.132       D, aged 27, suffered from sickle cell anaemia. She lived with her partner and gave birth to a son, V, who suffered from gastro-oesophageal reflex. During and after the pregnancy, D was frequently admitted to hospital because of her condition. When V was aged six months D called an ambulance saying that he had slipped under the water in the bath. V was alert and needed no treatment.

Three hours later D again called an ambulance and V was found unconscious. V was taken to hospital and died of a massive head injury. D said she had accidentally dropped V and was angry and had hit him with the TV remote control. Two reports, one for the CPS and one for the defence, both diagnosed depression and favoured DR and infanticide on the basis that the balance of her mind was disturbed within the 1938 Act. D's plea of DR was accepted by the CPS and she was given a three year probation order with a condition of treatment.

Case 11

D.133       D, aged 18, had lived with her partner who had a child by another woman. D got pregnant and gave birth to a son, V, who was born 11 weeks premature. D's partner had another affair and moved out. D became depressed and saw her GP. D went to her mother's house and told her that V, aged 33 months, was dead. D said she had suffocated V with her hands. Two reports, one for the defence and the other from an unclear source, both diagnosed depression and favoured DR. D's plea of DR was accepted by the CPS and she was given a hospital order.

Case 12 (V under 12 months)

D.134       D, aged 28, had a history of manic-depressive illness for which she was receiving medication. D had a relationship and got pregnant. They never cohabited and she received very little support. D gave birth to a son, V. On the day of the offence when V was six months old, D called the police and said someone had entered her flat and stabbed V. The cause of death was multiple stab wounds. On that day D was due a visit from a new health visitor and eventually admitted that she wanted everything to be perfect so in order to keep V quiet she picked up a knife and stabbed him. Three reports, one for the court, defence and CPS, all diagnosed manic-depressive psychosis and favoured DR. The defence report opined that infanticide was a possible plea while the CPS report stated that "it is not possible to say the illness recurred because she gave birth to her son" and so rejected infanticide. D's plea of DR was accepted by the CPS and she was given a hospital order with restrictions.

Case 13

D.135       D, aged 31, was married and gave birth to a son, V1 aged seven, and a daughter, V2 aged 44 months. D got depressed after V2's birth and thought the neighbours were against her and would harm her children. D's husband arranged for her to see her GP but before this happened she strangled both Vs and slashed her wrists. D admitted killing both Vs saying she had done so to save them from being sexually abused by her neighbours. Four reports all diagnosed paranoid psychosis. Two of these reports, both for the defence, favoured DR. D's plea of DR was accepted by the CPS and she was given a hospital order with restrictions.

Case 14

D.136       D, aged 34, was married but had a history of depressive illness. She had two sons, V1 aged 47 months and V2 aged 24 months. D got divorced. Several months later she contacted her father saying she needed help. On arrival at D's home the father found her sitting holding V2. V1 was found dead upstairs. D had cut her wrists and admitted smothering V1 with a pillow and trying to kill V2. Three reports, two for the CPS and one for the defence, all diagnosed severe depressive illness and favoured DR. D's plea of DR was accepted by the CPS and she was given a three year probation order with a condition of treatment. D also pleaded guilty to the attempted murder of V2.

Case 15

D.137       D, aged 27, lived with her partner for four years. She gave birth to a son, V. D was later admitted to hospital suffering from postnatal depression. D was discharged from hospital five days before V's death. D admitted to her partner that she had manually strangled V, aged 16 months. D was later sectioned under the Mental Health Act 1983. There was only one report on file, although there was reference on the CPS file to others. This report for the police did not address DR but diagnosed manic depressive psychosis. D's plea of DR was accepted by the CPS and she was given a hospital order with restrictions.

Case 16

D.138       D, aged 25, met her partner and after four months was pregnant. D gave birth to a son, V1 aged eight. Five years later D gave birth to a second son, V2 aged 35 months. She separated from her partner three months later. D's partner married another woman. D became depressed. D's friends realising something was wrong, broke into D's home and found V1's body in a bunk bed and V2's body in a state of decomposition. D had severe cuts to her left wrist. A post-mortem revealed the cause of both deaths to be manual strangulation. Four reports, three for the defence and one for the CPS, all diagnosed severe depressive illness and favoured DR. D's plea of DR was accepted by the CPS and she was given a hospital order

Case 17 (V under 12 months)

D.139       D, aged 23, was married and had a planned pregnancy. D gave birth to a son, V. D had a long psychiatric history and became paranoid that social services would remove V from her, as they had already removed her older daughter, aged ten. D eventually threw V, aged four months, from a bridge and he died of head injuries. Two reports, one for the CPS and one for the defence both diagnosed schizophrenia and favoured DR. Both reports also favoured infanticide but the CPS report considered it more logical from a medical point of view to consider it as a case of DR. D's plea of DR was accepted by the CPS and she was given a hospital order with restrictions.

Case 18

D.140       D, aged 31, had a daughter aged eight when she met a female partner. D and her partner wished for another child and selected a father they both knew. D became pregnant and was seen by psychiatric services as she had a history of depression. D had a son, V. D's relationship with her partner ended but D wanted her back. D eventually went to hospital and admitted killing V. A post mortem revealed the cause of death as drowning. D said she held V under the bath water. Three reports, two for the CPS and one for the defence, all diagnosed severe depressive illness and favoured DR. D's plea of DR was accepted by the CPS and she was given a hospital order with restrictions.

Case 19

D.141       D, aged 22, had a relationship and got pregnant. D gave birth to a daughter, V. D had irregular contact with V's father. D went to her neighbours to say V was dead as she had stopped breathing but V was found to be fit and well. Several hours later D summoned the neighbours again and on this occasion V was found dead. A post mortem revealed the cause of death as asphyxiation. D admitted placing her hands round V's neck and forcing her face into her chest. Three reports, two for the defence and one for the CPS, all diagnosed depression and personality disorder and favoured DR. D's plea of DR was accepted by the CPS and she was given a three year probation order with a condition of mental treatment.

Case 20 (V under 12 months)

D.142       D, aged 29, had her first child at age 17 but found it difficult to cope and social services were involved. When aged 22 she met her second partner and had a second child who was adopted. D suffered from depression and had received in-patient psychiatric treatment. D gave birth to a third child, V, a daughter. When V was aged five months D phoned her partner to say V had been abducted. V was eventually found drowned in the canal. D said she heard voices telling her to do this. D was admitted to hospital under section 48 of the Mental Health Act 1983. A single report for the defence favoured DR on the basis of puerperal psychosis. D's DR plea was accepted and she was given a hospital order with restrictions.

Case 21 (V under 12 months)

D.143       D, aged 30, had attended a school for children with learning problems and had a history of behavioural and personality difficulties. D separated from her husband when her first son was only a month old. D eventually had an off and on relationship with another man and got pregnant. D concealed the pregnancy from her parents as she lived alone with her now four year old son. D gave birth alone to a second son, V. D carried on as normal and told no one about the baby. V was eventually found dead outside a neighbour's house. V, aged 25 days, was left in a cardboard box and had died of neglect. D denied intending to harm V but the CPS alleged V was unwanted and charged murder by omission. Three reports, two for the defence and one for the CPS, all diagnosed personality disorder and favoured DR. One of the reports for the defence ruled infanticide out as a defence as D did not form any intent to kill or cause GBH. D's plea of DR was accepted by the CPS and she was given a three year probation order with a condition residence.

Case 22

D.144       D, aged 25, had two older children. D stabbed V, her 18 month old daughter and set fire to her flat. D stabbed herself four times intending to kill herself. Two reports favoured DR on the basis of depression. Ds DR plea was accepted and she received a restriction order.

Case 23

D.145       D, aged 42 born in Malaya, drowned V, her two year old son. There was a background of domestic violence and psychiatric problems. A custody battle was underway with her husband who was violent towards D. D said she could think of no other way to keep V safe. She felt overwhelmed with blackness. A report for the defence favoured DR on the basis of depression. A report for the CPS also favoured DR but diagnosed borderline personality disorder. Ds DR plea was accepted and she was given a three year probation order.

Case 24

D.146       D, aged 20 born in Uganda, suffocated her 40 month old daughter at home due to depression and suicidal thoughts. Two psychiatric reports for the defence both favoured DR on the basis of depression. D's DR plea was accepted and she received a hospital order.

Case 25

D.147       D, aged 45 born in Guyana, was divorced. D had two children of this marriage. D married again and gave birth to a daughter, V. D had a psychiatric history of puerperal psychosis and found it difficult to care for V. D eventually stabbed V, aged 43 months, with a knife. D said she was told to do this as voices in her head were telling her it was God's will. Two reports, both for the defence, diagnosed psychosis and favoured DR. Both reports also considered that D's condition satisfied the insanity defence. D's DR plea was accepted and she received a restriction order.

Case 26

D.148       D, aged 42, smothered her daughter, V aged 22 months. Four reports all diagnosed schizophrenia and favoured DR. However, D was found unfit to plead and was given a restriction order.

Cases 27 to 35 No reports on file and only the following very brief offence details available

Case 27

D.149       D, aged 18, strangled her daughter, V, aged 41 months with an electric flex. D was suffering from depression and became upset because she could not afford to buy V an ice cream. D's DR plea was accepted and she was given a three year probation order with a condition of mental treatment.

Case 28

D.150       While suffering from postnatal depression D, aged 21, suffocated her daughter, aged 14 months, and then tried to kill herself. D's DR plea was accepted and she was given a sentence of four years imprisonment.

Case 29

D.151       D, aged 29, parked by a river, partially undressed her daughter, V aged 17 months, and threw her in. V's drowned body was found three and a half miles downstream some 11 days later. V was on the at risk register and likely to be taken into care. D said if she could not have V then no one could. D's DR plea was accepted and she was given a hospital order.

Case 30

D.152       D, aged 25, took her younger son to hospital and admitted poisoning him and her daughter, V, aged 29 months, who had already died. V's body was exhumed and a post-mortem revealed that death was due to a paracetamol overdose. D's DR plea was accepted and she was given a three year probation order with a condition of mental treatment.

Case 31

D.153       D, aged 22, who had been receiving treatment for depression suffocated her daughter, V, aged 13 months. D's DR plea was accepted and she was given a three year probation order with a condition of mental treatment.

Case 32

D.154       While suffering from depression D, aged 41, poisoned her son, V aged 26 months, by giving him her own epilepsy medication and a linctus sedative. D then tried to kill herself. Ds DR plea was accepted and she was given a three year probation order with a condition of mental treatment.

Case 33

D.155       D, aged 32, suffocated her son, V aged 15 months, and then inflicted injuries upon herself. D had had a brain operation recently and had a history of mental health problems. D's DR plea was accepted and she was given a three year probation order with a condition of mental treatment.

Case 34

D.156       D, aged 35, had a downs syndrome daughter, aged 22 months. The police were called to D's house and found V drowned in the bathroom. D's DR plea was accepted and she was given a three year probation order with a condition of mental treatment.

Case 35

D.157       D had recently separated from her husband and was suffering from depression. D gave her daughter, V aged 15 months, some sleeping pills and beat her with a walking stick. Although a trial began, the jury was directed to return a DR verdict by the trial judge. D was given a hospital order with restrictions.

Note 1    Acknowledgments: To the Law Commission whose generous funding made this research possible. To the Crown Prosecution Service for authorising the research and in particular to all the staff at the Departmental Records office whose assistance was invaluable. To the Home Office for help with homicide statistics. To David Hughes and Keren Murray of the Law Commission’s Criminal Law Team for helpful comments on earlier drafts.    [Back]

Note 2   Committee on Mentally Abnormal Offenders (Butler Report), Cmnd 6244 (1975), para 19.27.    [Back]

Note 3   Law Commission Consultation Paper No 177, Parts 6 and 9.    [Back]

Note 4   Above, para 9.3.    [Back]

Note 5   A very brief account of each case is given in Annex A. The cases are numbered 1 to 49 so as to include all the relevant defendants in the sample. Any reference to a case number in the text can be followed up in the appendix. Cases 22 and 23 concern the same defendant in respect of two victims 6 years apart and, for the sake of convenience, are treated as two separate cases.     [Back]

Note 6   See case 10 in Annex A.    [Back]

Note 7   For the sake of convenience the two killings are treated as two separate cases.    [Back]

Note 8   The primary diagnosis was the one which an overall analysis of the infanticide reports in each case seemed to support the plea. Clearly, in some cases there was a lack of unanimity over diagnosis. In short the primary diagnosis is based on a cumulative view of the reports in each case.    [Back]

Note 9   Criminal Law Revision Committee, Offences against the Person(1980) Report 14, Cmnd 7844, para 102.    [Back]

Note 10    A very brief account of each case is given in Annex B. The cases are numbered 1-35 so as to include all the relevant defendants in the sample. Any reference to a case number in the text can be followed up in the appendix.    [Back]

Note 11    See case 9 in Annex B.    [Back]

Note 12    See R.D. Mackay “The Diminished Responsibility Plea in Operation – An Empirical Study” Law Com No 290 at page 145.    [Back]

Note 13    It will be recalled that there are 37 victims but only 35 defendants/sentences. See case 3 in Annex B where three of the victims fell within the sample. D was given a restriction order.    [Back]

Note 14    The primary diagnosis was the one which an overall analysis of the DR reports in each case seemed to support the plea. Clearly, in some cases there was disagreement over diagnosis. In short the primary diagnosis is based on a cumulative view of the reports in each case.    [Back]