ISSUE 5 2008 - Sweet & Maxwell

390 Case & Comment [2008]
offence would otherwise amount to murder. Thirdly, if s.1(1) were to be interpreted
as meaning that the offence of infanticide could only be committed where the crime
would otherwise have been murder, there would be no need for s.1(2), which provides
that a jury may return a verdict of infanticide where the offence would otherwise have
been murder.
Logical as these points appear to be, there seems to be an element of strain in the
court’s reasoning. The possibility of reducing manslaughter to infanticide has not been
canvassed in the leading textbooks, and it might be thought rather late, some 70 years
after the 1938 Act, to give it this expansive meaning. Reporting on his research into
infanticide and other child-killing cases in the early 1980s, Professor Mackay noted:
‘‘In the fifth case D asphyxiated her seven-week-old child by stuffing tissue paper
into its throat. A psychiatric report stated that D suffered from a manic illness
that would fall within both infanticide and diminished responsibility. However,
the D.P.P. decided not to charge infanticide as he considered this to be
available only in cases where the alleged actions, in the absence of any mental
disturbance caused by birth, would amount to murder. In his opinion the lack of
evidence of any evidence of intent precluded an infanticide charge so D pleaded
guilty to manslaughter and received three years’ probation.’’ R.D. Mackay, ‘‘The
Consequences of Killing Very Young Children’’ [1993] Crim. L.R. 21 at 28.
Perhaps the DPP was wrong, in the early 1980s, but this seems to have been the
prevailing view in the profession for many years. It should be added (a) that Hallett
L.J. appears to misunderstand the thrust of Professor Mackay’s research at para.23
(only his case D is relevant); and (b) that Professor Mackay’s more recent research for
the Law Commission reveals no cases of manslaughter being reduced to infanticide:
Murder, Manslaughter and Infanticide, Law Com. No.304 (2006), Appendix D.
The Court of Appeal’s reinterpretation is, however, a benevolent one. It is desirable
that infanticide (assuming its continued existence) should be capable of being charged
both in cases where the offence might otherwise have amounted to murder and
in cases where the offence would only have been manslaughter. A proposal to
change the law in this direction has been made in recent years but, again, only by
a kind of side-wind. The Criminal Law Revision Committee was, following a public
consultation, exercised by the problem of a woman who merely attempted to kill
her young child soon after the birth and who might therefore find herself charged
with attempted murder. Their solution was to recommend attempted infanticide ‘‘as
an alternative verdict to attempted murder or attempted manslaughter’’ (CLRC, 14th
Report, Offences against the Person (1980), para.113). This appears to be the first
mention of reducing a manslaughter offence to infanticide, and it then found its
way into the Committee’s recommendations more generally: ‘‘the act or omission
is such as would otherwise amount to murder or manslaughter’’ (para.19(b)). This
recommendation was incorporated into the draft criminal code of 1989, cl.64(1) of
which begins:
‘‘A woman who, but for this section, would be guilty of murder or manslaughter
of her child is not guilty of murder or manslaughter, but is guilty of infanticide, if
her act ...’’
This was not a major issue in the latest homicide reform proposals from the Law
Commission, but it was discussed. In Murder, Manslaughter and Infanticide, LawCom.
No.304 (2006), the Commission recommends ‘‘that the offence/defence of infanticide
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