Child‐Killing in English Law

DOIhttp://doi.org/10.1111/j.1468-2230.1937.tb00025.x
Date01 March 1938
Published date01 March 1938
AuthorD. Seaborne Davies
March,
1938
MODERN
LAW
REVIEW
269
CHILD-KILLING IN
ENGLISH
LAW
PART
I1
2.
Proposals
for
Reform
EFORE
we relate the actual recommendations of the
1866
Commission,l’
it
is advisable to note the diversity of
opinions expressed by the witnesses before it.
It
explains
the number of different proposals subsequently embodied in draft
bills and, partly, the reason why reform was
so
long delayed.
Baron Bramwell was very representative of the school of
thought which doubted the desirability and the practicability
of
reform. He expressed doubts about the time-limits of the pro-
posed new offence and about the persons who should be covered
by
it.
He objected to the principle of alternative verdicts and
thought juries would be as reluctant to convict of an offence
punishable with penal servitude for life as they were to convict
on a capital charge.12
Most witnesses, including Cranworth, Martin, Willes, Avory
and Stephen, favoured the creation of a new offence “between
murder and concealment,” but they differed widely on the exact
details of the reform. The majority would limit the exemptive
effects of the reform to mothers; a minority would extend
it
to
other persons. Opinion was fairly evenly divided on the question
whether
it
should cover legitimate as well as illegitimate mothers.
On
the time-limit of the exemption from the law of murder the
suggestions ranged, mainly, from a week to three months. Though
he was somewhat confused on the general lines of the reform desir-
able, Stephen enunciated very clearly the dominant consideration
which should determine this particular feature of
it.
In view
of the interpretation of the Act of
1922
by the Court of Criminal
Appeal, we append an extract from his evidence on this subject.lS
B
l1
The First and Second Criminal Law Commissions
(1834-48)
recommended
no reforms relating to our subject save those touching concealment of birth
described above, p.
215.
I*
By
1874
he had advanced sufficiently to approve of the reform proposals
in the‘pmicide Law Amendment Bill described below.
1’
The operation of the criminal law presupposes in the mind of the person
who
is
acted upon
a
normal state of strength, reflective power, and
so
on, but
a
woman just after child-birth is
so
upset, and is in such a hysterical state altogether,
that it seems to me you cannot deal with her in the same manner as if she was in
a
regular and proper state
of
health.
.
.
.
Besides that, there is
a
strong sym-
pathy, which
it
is never safe to neglect and which,will always exist, with the
miserable condition of the woman
;
and there is
a
sort
of
feeling
(I
do
not say it
is
very reasonable, and
I
do not know exactly how to connect it with the fact)
as a general rule against the father
of
the child, who goes unpunished, which
makes its way with juries and with the public.
It
seems to me that that being
so,
and
as
you
have to legislate for human nature as you find it, it would be
a
very
desirable thing to pass
a
special statute
.
.
.
enacting that any woman who
killed her new-born child with intent to conceal the birth should be liable to the
severest secondary punishment in the discretion of the judge.
.
.
.
I
do
not
know
MODERN
LAW
REVIEW March,
1938
A
common source of confusion was the idea that the one and
the same single proposal could avoid the breakdown in the law
relating to infanticides and stop the gap in the law of murder
which gave impunity to the slayers of unborn children. Stephen
fell in
1866
into the further difficulty of trying to include the ele-
ment of concealment of birth in the reform and that coloured his
views
at
that date on the question of the time-limit. He sub-
sequently disembarrassed himself of this complexity.14
A common proposal of
this
period, which
is
of particular
interest
as
it was revived as late as
rgog,
was that the Judges
should have restored to them the power of recording, instead
of
passing, the death sentence. This power they had possessed in
cases of murder until
1861
and it did help them to avoid “the
solemn mockery” of passing the capital sentence in cases in which
long experience taught that it would never be executed. Rather
surreptitiously, apparently, they had been deprived of this power
by
the Offences against the Person Act,
1861,
s.
2.
Some
of
them
felt aggrieved; others agreed that this discretion was better
vested in the Home Office.
A
full explanation of the history
of
this matter merits a separate article, but it is noteworthy here
inasmuch as many reformers thought that the restoration of this
lost power would
in
itself be a great corrective of the evils of the
then state of the law of murder, and, particularly, of its break-
down in infanticide cases. The suggestion illustrates a perennial
tendency to avoid reforms of the substantive law by relying upon
a
recourse to judicial or executive discretion.
The Commission itself, after remarking upon the difficulties
involved in the existing rules relating to proof of live-birth, recom-
mended that an Act should be passed “making
it
an offence-
unlawfully and maliciously to inflict grievous bodily harm or
serious injury upon a child during its birth, or within seven days
afterwards, in case such
a
child has subsequently died.
No
proof
that the child was completely born alive should be required.’’
tkat
I
should wish
to
limit the lime very nicely because the eflect
of
child-birth upon a
woman’s nerves
lasts
for
a considerable time in some cases. I would rather haus a
little
indcfrniteness
in
the law than run the
risk
of
an encounter between the law and
public ssntiment.”
In
reply to the
question,
“You
would
not
say that if an
in-
fanticide occurred three weeks
0:
a
month after the birth of the child,
it
should be
too
long
a
time
?
Stephen said,
No,
I
am inclined to think (but
I
give the opinion
with
some degree
of
misgiving about it), that an attempt to conceal the birth
ought
to
be an element of the special offence-and, of course, an attempt to con-
ceal
could not exist, except
in
the case of what is,
in
ordinary language,
a
new-born
child;
it
could not exist when everybody knew that the child was born.”
B.P.P.,
1866,
PI,
pp.
291-2.
e
of comprehensive single proposal is well illustrated by
a
section
in
a
dzfiE2mitted to the Commission by Willes,
J.,
who suggested the creation
of
a
misdemeanour (Avory would make
it
a
felony) of causing an
injury
to, or the
death of,
a
child at or about
the
time of birth, for which offence proof of the death
of the child
before
birth was
to
be
no
bar to conviction.
Ibid.,
pp.
zgz.z34-6,670.

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