Coroners and Justice Bill

At the request of my noble friend Lady Murphy and with the permission of the Committee, I am moving Amendment 171 and speaking to Amendment 172. The amendments were tabled by my noble friend, who is sorry that she cannot be here this afternoon. Clauses 47 and 48 make purely technical amendments to the offence of infanticide, which is effectively retained unchanged by this Bill. Amendments 171 and 172, on the other hand, would abolish infanticide completely both as an offence and as a partial defence to murder in England, Wales and Northern Ireland. The Infanticide Act 1922 effectively abolished the death penalty for a woman who deliberately killed her newborn child while the balance of her mind was disturbed as a result of giving birth, by providing partial defence to murder. The sentence that applies, as with other partial defences to murder, is the same as that for manslaughter. The Infanticide Act 1938 extended this defence to mothers the balance of whose mind was disturbed at the time of the act or omission by reason of not having fully recovered from the effect of giving birth or by reason of the effect of lactation consequent on giving birth. Before the partial murder defence of diminished responsibility was introduced into UK law by the Homicide Act 1957, this provided an important means of selecting a more appropriate sentence for a mother found guilty of killing her infant child than the mandatory life sentence or death penalty applying to murder at the time. In recent years, however, it has become rare for a mother who kills her infant child to receive a custodial sentence, except in exceptional circumstances. As a result, the provisions on infanticide here and in other jurisdictions have been the subject of criticism. For example, the 1975 Butler committee, the Law Reform Commission of Canada and the New South Wales Law Reform Commission have all recommended the abolition of infanticide. The Royal College of Psychiatrists in this country, too, believes that the offence or defence of infanticide should be abolished, with cases that would otherwise come under that offence being dealt with through the defence of diminished responsibility. The arguments for abolition are fourfold: first, the doubt as to the biological basis of post-partum disorders, along with the evidence suggesting that external factors play as much of a part; secondly, the overlap with the defence of diminished responsibility; thirdly, the evidence that the majority of post-partum mood disorders do not impair mental functioning; and, fourthly, if we accept that mental disorders in carers are often not biologically based but associated with social and economic factors, the lack of logic in confining infanticide to natural mothers of children under 12 months. Arguments for retaining infanticide include the attraction of a defence that recognises the experience of women, the advantages of having an offence with which women may be charged, rather than relying on the defendant to raise the defence of diminished responsibility, and fears of an increase in sentences passed on infanticide offenders if they are sentenced as manslaughter offenders. I turn first to the arguments for abolishing infanticide. What is the cause of post-partum disorders? Is it biological or something else? The existence of post-partum disorders such as the maternal blues, post-partum depression and post-partum psychosis is not in dispute. There is considerable debate, however, about the cause of such disorders, with little evidence to show that they are caused primarily by hormonal or chemical imbalances. In the case of the maternal blues, factors such as lack of sleep, the social situation, economic factors and general stress are the main influences. In the case of post-partum depression and post-partum psychosis, pre-existing mental illness may be exacerbated by the birth and care of a baby. The symptoms of post-partum depression are no different from those of other forms of major depressive or psychotic illness. In rare cases—one in 1,000 births—where a sudden psychosis develops after birth, there is some evidence that a sudden change in hormones after birth may be a contributing factor. Since one in 25 women who have puerperal psychosis kill their babies, it is crucial to pick this condition up early. However, most of the women who come before the courts for infanticide do not fall into this group; they fall fairly and squarely into other categories. For example, the mother of Baby P, who was older than 12 months, would characterise one group, and the young schoolgirl who gives birth in secret and then kills the child in a desperate panic after birth would be another. This latter group tends to be mentally normal. If there is going to be an infanticide defence, it should surely be based on the operative socio-economic factors, not on antiquated beliefs about the link between women’s biology and their degree of criminal responsibility. The reference in the definition to lactation is, frankly, archaic and has no basis in medical science. Hormonal changes may play a part in the post-menstrual period and at the menopause, as has often been argued in court, but we do not have separate legislation to deal with them. On the other hand, since socio-economic factors are not otherwise used to excuse people from criminal responsibility, there seems to be no good reason for retaining infanticide. Many researchers would agree that all three types of post-partum disorder are associated with multiple factors: psychological factors, such as low motivation for pregnancy and low level of psychological health; and demographic factors, such as socio-economic status, stress and psychiatric and genetic predispositions. It would appear that biological factors cannot be blamed for any but a small minority of cases, but rather a combination of external and internal factors. Lactation does not figure anywhere. It is questionable whether the defence should be based on medical criteria at all. Does this not lead to the unjustified exclusion of social, psychological and economic factors as valid bases for a defence? Women who kill their children and attempt to kill themselves are usually living difficult lives with violent or absent spouses, financial difficulties, a handicapped child, fear of the spouse sexually assaulting the child or fear of losing custody of the child. By relying simply on the medical to the exclusion of social factors, we force psychiatrists to distort their diagnoses in order to conform to the requirements of legislation. In a word, if the killing was committed as a result of an abnormality of mind, it is covered by the defence of diminished responsibility; if it was not, a quasi-psychiatric or pseudo-psychiatric defence is not appropriate. There is the issue of how to deal with young girls who kill their newborn infants within 24 hours of a secret birth. Establishing an abnormal mental state in retrospect may be hard indeed. Would it not be more honest to stop pretending that such cases were the result of childbirth itself or that it was hormones that drove the mother to it? I remind the Committee that if Amendment 150A, tabled by the noble and learned Lord, Lord Lloyd of Berwick, were accepted, there would be extenuating circumstances to cover this kind of case. If it is accepted that factors other than hormonal imbalances are involved in the killing of young children, the question arises of whether it is appropriate to limit the defence to natural mothers. In over 50 per cent of cases of child killings, men are responsible, most commonly the stepfather of the child. The reasons given for such killings are often similar to those given by natural mothers: uncontrollable crying, pent-up frustration with the child, difficult economic circumstances and so on. If the test is changed in relation to mothers and broadened beyond mere medical factors, should it not also apply to fathers? Would that extend the test too far? What about stepmothers or women who adopt children? At this point, it is pertinent to question the ideological basis of infanticide, although I would feel more comfortable if the noble Baroness, Lady Murphy, were making this point. Women are given special treatment by way of gender-specific law, based on the notion that they are naturally susceptible to mental instability as a result of giving birth. Arguably this conveys a stereotype of women as inherently unstable because of their biology. Infanticide may benefit individual offenders, and one is sympathetic to that, but it is pertinent to question the wider implications of a law that makes special concessions for women based on a notion of inherent disability. The defence of diminished responsibility does not contain the same problem as it does not single out women on any notion of a particular vulnerability to mental illness. As the Law Commission has said, to accord a special defence to women seems to be based on an idea that any woman who is mentally unwell and who commits what would seem to be the ultimate maternal crime of killing her child must have done so because of her state of unwellness. Otherwise, how could a mother kill her own child? However, such a presumption would be medically wrong and no different from the organic cerebral consequences of epilepsy, for example, in men, who cannot benefit from a special defence. I turn to the arguments for retaining infanticide. The first turns the last argument on its head and maintains that there are advantages in recognising women’s experiences by way of a gender-specific offence or defence. It is suggested that, if infanticide were subsumed under the defence of diminished responsibility, the special problems faced by women with children would cease to be recognised by way of a separate offence or defence; the defence of diminished responsibility would focus attention on an individual woman’s mental state rather than on the special pressures commonly experienced by women that may have led to their mental state. It is also argued that there may be procedural advantages in being able to charge a woman with infanticide rather than with murder and shifting the onus on to her to raise the defence of diminished responsibility. Achieving a proper reduction in conviction is not then reliant on the defendant’s co-operation, as it is with diminished responsibility, where only the defendant can raise the issue. That can be important when a defendant is in denial and will not allow her legal advisers to put forward a psychiatric defence or submit to a psychiatric examination, which she perceives as designed to prove that she did kill her child. However, it is believed that this more general problem relating to diminished responsibility should be solved by changing the rules so that that defence could be raised not only by the defence but by the Crown or the judge, as with insanity. Rather than retaining infanticide to avoid this problem in a small number of cases, infanticide should be subsumed under diminished responsibility and the rules about raising that defence altered. In any case, in the majority of cases infanticide is used as a defence rather than an offence and the prosecution always has the option of accepting a plea of guilty to manslaughter where a woman is charged with murder and there is clear evidence of mental disturbance. Lastly, it is argued that there are disparities between the sentences passed on those found guilty of infanticide and those found guilty of manslaughter and that infanticide should be retained because, if it were abolished, sentences imposed on women who kill their children would increase. However, manslaughter attracts a wide range of sentences and courts have a wide discretion to impose a non-custodial sentence for manslaughter where this is appropriate in the circumstances of the individual case. I simply do not believe that the courts would deal differently or less sympathetically with women in this situation if the charge were manslaughter rather than infanticide. If this is wrong and current sentencing guidelines prove inadequate to cover the range of circumstances in which diminished responsibility applies so as to include infant killing, I presume that the guidelines could be modified. It seems that the clear balance of the argument lies in favour of the abolition of infanticide rather than its retention. The Law Commission, in its report of November 2006, recommended no change simply, I believe, because the consultees could not agree on a satisfactory alternative. However, the 1938 Act does not reflect modern medical or legal thinking and we should surely try to do better. I beg to move.