CHILD MURDER (RECORD OF SENTENCE OF DEATH) BILL. [H.L.] (Hansard, 18 May 1909)

§ LORD JAMES OF HEREFORD
had two Amendments on the Paper, the effect of which was that where a woman was charged with the murder of her infant child and the Court was of opinion that at the time the offence was committed the woman had not fully recovered from the effect of giving birth to the child, the Judge might direct the jury that they might acquit the prisoner on the charge of murder and convict her of manslaughter. He reminded their Lordships that when the Bill was read a second time there was not only a very strong feeling in its favour, 958 but the wish was expressed that the Bill should be extended. In the cause of humanity no woman who had been sentenced to death for the murder of her infant child during the past sixty or seventy years had been executed, and it was desired to avoid what might almost be called the farce of the solemn sentence of death being passed with the knowledge that it would never be carried into effect. The point was that if the sentence was so barbarous that it ought never to be carried out, it was too barbarous to be passed. In his opinion the Judge and the jury were better persons in the face of the public than the Home Secretary to determine what the sentence should be. The Judge and the jury had a great advantage, for in these cases much depended upon the appearance and demeanour of the accused. That which might represent one thing in a brazen woman represented another in a fragile broken down woman; and he suggested that, in the circumstances described in the clause, the Judge should be empowered to direct the jury that they might acquit the prisoner on the charge of murder and convict her of manslaughter. His Amendment was somewhat in rivalry with an Amendment standing on the Paper in the name of the Lord Steward, who proposed to move that in lieu of passing a sentence of death the Judge should sentence the woman to penal servitude for life or for a term of not less than three years. He (Lord James) could not give way to the Lord Steward, because he did not think this Amendment merciful enough. There were cases in which the unfortunate woman ought not to receive a sentence of three years penal servitude, and he therefore hoped the Committee would agree that the punishment should be in the discretion of the Judge. There was also an Amendment on the Paper in the name of Lord Ashbourne. He did not desire to anticipate his noble and learned friend's Amendment, but wished to assure him of his hearty support. He (Lord James), would now move his first Amendment.
Amendment moved— In page 1, line 5, to leave out the words 'convicted of' and to insert the words 'charged with.'"—(Lord James of Hereford.)

§ VISCOUNT CROSS ,
as a former Home Secretary who had had a large experience of these cases, thanked the Lord Chief Justice for bringing forward the Bill, and 959 hoped he would see no objection to Lord James of Hereford's Amendment. He thought the alteration which Lord James proposed would very much improve the Bill, as it brought in the Judge and the jury in place of the Home Secretary to determine what the sentence should be.

§ LORD ALVERSTONE
accepted the view that it would be better if the Judge and jury could reduce the conviction to manslaughter in the limited number of cases which he thought ought to be brought within the purview of the Bill. He was, therefore, prepared to accept the Amendment; but it would be impossible for him to accept the subsequent Amendment to be moved by Lord Ashbourne. If Lord James's Amendment were agreed to the clause would require a further Amendment making it clear that the conviction of manslaughter should be the result of evidence given at the trial. He would, therefore, suggest that instead of employing the words "the court is of opinion," which were inappropriate in view of Lord James's Amendment, the words "upon the trial evidence is given" should be substituted. The provision would then read— Where a woman is charged with the murder of her infant child and upon the trial evidence is given that at the time the offence was committed the woman had not fully recovered from the effect of giving birth to the child" etc.

§ THE LORD CHANCELLOR (LORD LOREBURN)
said that the course taken in regard to this subject was a very happy augury for law reform. He hoped that noble and learned Lords would at all times try and meet one another in regard to these subjects, which touched the interests of the community very closely although they did not excite great public interest. He accepted the view which seemed to prevail in the Committee that Lord James's Amendment should be adopted in lieu of that which appeared on the Paper in the name of the Lord Steward, and in that Lord Beauchamp agreed. He firmly believed that Lord James's Amendment would constitute a very real and substantial advance. Instead of providing that there should be a record in lieu of pronouncement of sentence, the Amendment proposed that it should be competent, in certain circumstances, for the Judge to direct the jury that they might find a verdict of manslaughter which excluded the death penalty altogether. He heartily supported the Amendment, but his approbation was not 960 conditional upon the refusal of the Amendment to be moved later by Lord Ashbourne, which he (the Lord Chancellor) also supported.

§ LORD ALVERSTONE
said the reason he could not accept the Home Office Amendment standing in the name of Lord Beauchamp was that he had himself not infrequently in cases of manslaughter inflicted a penalty of only six months. He would be very sorry to have to sentence some of these poor people to penal servitude for a term of not less than three years.
On Question, Amendment agreed to.
Amendment moved— In page 1, line 6, to leave out the words 'the court is of opinion' and to insert the words 'upon the trial evidence is given.'"—(Lord Alverstone.)
On Question, Amendment agreed to.

§ LORD ASHBOURNE
moved to further amend the clause so that the court might, "having regard to all the circumstances of the case," adopt the course proposed in the clause. The question dealt with was, he said, an exceedingly difficult one. It was by no means as easy as a person looking at it superficially would suppose. It was desirable to retain every possible safeguard for the preservation of infant life, and not by any suggestion in legislation or speech to indicate that the life of a little child was not to be regarded as worthy of every protection. This Bill sought to obviate what had grown into almost a scandal in the passing of sentences of death which it was known would never be carried out. He agreed with the Lord Chief Justice as far as he had gone, but was afraid that if the clause stood in its present form without some addition it would have but a very slender operation. lie words were— Where the court is of opinion that at the time the offence was committed the woman had not fully recovered from the effect of giving birth to the child.
If, therefore, the mother had recovered from the effects of giving birth to the child she would get no protection at all from this measure. A strong and healthy young woman might in a very short time recover from the effects of childbirth and be physically restored to health. But the time of her difficulties would not be over. It might be that after that she would 961 have to face desertion by the man who should have most protected her, or she might be cast off by her family or be thrown out of employment, or sickness and destitution might reach her and she might be subjected to tremendous temptation. He did not think it desirable that in such a case it should be impossible to give the woman the protection of this measure. Unless some such Amendment as he proposed were adopted the old formula would have to be gone through, and the woman convicted of murder and sentenced to death, followed by an appeal to the Home Office for the exercise of the prerogative of mercy. He had sought to deal with this point by adding the words, "or having regard to all the circumstances of the case." He admitted that these words were, perhaps, rather too general, and might be not sufficiently precise; and he would be very glad to consider whether other words could not be found that would widen somewhat the wording of the provision in the Bill without making it too elastic. The Lord Chief Justice had declared that he could not accept the proposed words, and that if the Amendment were carried it would be fatal to the Bill. As that was the view of his noble and learned friend he thought the matter might be allowed to stand over till the next stage, and in the meantime he would endeavour to present the Amendment in a form which would be free from objection.
Amendment moved— In page 1, line 8, to leave out the word 'and,' and to insert the words 'or having regard to all the circumstances of the case.'"—(Lord Ashbourne.)

§ LORD ALVERSTONE
could not accept the Amendment because it would place the most dangerous responsibility upon the Judge of deciding whether he ought to direct a verdict of murder or of manslaughter. There were many cases of the death of children between the ages of six months and a year, after the mother had quite recovered and where there was strong ground for thinking that the child had been got rid of. If the Amendment were adopted it would be open to the Judge in all cases to direct the jury that they might bring in a verdict of manslaughter instead of murder. That would be done before the verdict was given, and the considerations which would influence the Judge in making his recommendations to the Home Secretary were to influence his mind as to what direction should 962 be given to the jury. It amounted to this, that whenever an infant child was murdered by the mother the Judge had to consider before he directed the jury whether or not he might tell them that they could bring in a verdict of manslaughter. That went further than anything that had been hitherto proposed. His objection to it was that it placed upon the Judge in all cases of the murder of a child by the mother the responsibility of deciding whether he ought to direct a verdict of murder or of manslaugther. He asked their Lordships to say that they would not break down the principle that the death sentence should not depend upon any discretion of the learned Judge, but would define the cases in which they wished the jury to reduce the crime from murder to manslaughter. He could not take responsibility for the Bill if the words proposed were inserted.

§ LORD JAMES OF HEREFORD
still hoped they might convert the Lord Chief Justice to seeing that they were not imposing too great a burden upon Judges by this Amendment. His noble and learned friend had pictured the great responsibility that would rest upon a Judge if this Amendment were carried. Every Judge who had to try a case of murder now bore that responsibility. In cases of murder it was the Judge's duty now to tell the jury that they might bring in a verdict of manslaughter. The responsibility which it was proposed by the Amendment to cast upon the Judge and jury now rested upon the Home Secretary, who might not be a lawyer and who altered a sentence according to information brought to him behind the scenes. Why was it better to give this power to the Home Secretary in preference to giving it to the learned Judge? The Judge would act with the additional safeguard that the jury would see that sentimentality did not prevail. The Judge was capable of bearing this responsibility to a much greater extent than any Home Secretary. Whilst he felt strongly that the Amendment was a wise and merciful one, and one that, in the cause of humanity, ought to be accepted, still they must be practical in the matter; and he suggested that the Amendment might be withdrawn with a view to arriving at a form of words which would meet with general agreement.

§ THE LORD CHANCELLOR
said the 963 Amendment moved by Lord Ashbourne would, in his opinion, be a very useful addition to the Bill. It was now agreed that in cases where the woman at the time the offence was committed had not fully recovered from the effect of giving birth to the child the jury should find a verdict of manslaughter; but there ought to be something further than that. Whether that something further was expressed properly in the words of Lord Ashbourne's Amendment might be open to question, and he thought it would be desirable, in the circumstances to postpone the consideration of the Amendment to the Report stage. Without the Amendment he was afraid the Bill would amount to uncommonly little. He could not understand the curious objection of the Lord Chief Justice to taking responsibility for the Bill with this Amendment incorporated. He thought it would become the noble and learned Lord better than his ermine, because he would not only then have the power of punishing but also the power of mercy.

§ LORD ASHBOURNE
said his opinion remained absolutely unchanged that the Bill as it stood was inadequate. So far as it went he approved of it, but it was obvious that it left unredressed and undealt with a number of cases that required consideration. He agreed that his proposed words might be considered too vague and general. He therefore asked permission to withdraw the Amendment with a view to seeing whether before the Report stage a form of words could not be arrived at which would be free from objection and at the same time give that widening to the Bill which he thought it required.

§ LORD ALVERSTONE
asked the Lord Chancellor to take the case of a servant girl who, nine months after the birth of her child, when she had perfectly recovered, strangled the child and threw the body into the river. On what ground could it be suggested that the Judge ought to direct the jury that that might be a case in which the sentence could be reduced? He was thankful to say that every Home Secretary he had known had always adopted the suggestion of the Judges as to mercy. He constantly sent to the Home Secretary a recommendation as to the alteration of a sentence and the exercise of mercy, and therefore there was no shirking on his part from that responsibility. He opposed the Amendment because he was unwilling that 964 there should be any power in the Judge to say whether the punishment was to be one of death or not.
Amendment, by leave, withdrawn.

§ LORD JAMES OF HEREFORD
then moved his second Amendment which he had already fully explained.
Amendment moved— In page 1, line 8, to leave out from the word 'child' to the end of the clause, and to insert the words 'the judge may direct the jury that they may acquit the prisoner on the charge of murder and convict her of manslaughter.'"—(Lord James of Hereford.)

§ THE EARL OF HALSBURY
asked the Committee to consider whether the Amendments were in order. The Bill as read a second time was a Bill to enable sentence of death to be recorded without being actually pronounced in cases of child murder where the Judge was satisfied that the sentence was not likely to be carried out. That was the substance of the Bill then. But now it was proposed to alter the law of England. It seemed to him that the Amendments were absolutely out of order.

§ LORD ALVERSTONE
said he had handed in Amendments both to Clause 2 and to the Title of the Bill which had been rendered necessary in consequence of the adoption of Lord James's Amendment.

§ THE EARL OF HALSBURY
said that would not put the Amendments in order. After a Bill had been read a second time only its machinery could be altered. They could only put things into the Bill which were applicable to its purpose and object. As amended in Committee, this became a Bill to alter the law of England.

§ THE LORD CHANCELLOR
said it was quite true that the Title was not large enough after the adoption of Lord James's Amendment, but he understood that that was to be put right by an Amendment to the Title.

§ THE EARL OF HALSBURY
said that, in his opinion, that would not do.
On Question, Amendment agreed to.
Clause 1, as amended, agreed to.
Clause 2:

§ LORD ALVERSTONE
moved to amend this clause, which ran— This Act may be cited as the Child Murder (Record of Sentence of Death) Act, 1909, by omitting the words "(Record of Sentence of Death)" and inserting the word "(Sentence)."
Amendment moved— In page 1, lines 25 and 26, to leave out the words '(Record of Sentence of Death),' and to insert the word '(Sentence).'"—(Lord Alverstone.)
On Question, Amendment agreed to.
Clause 2, as amended, agreed to.
Title amended.
Bill re-committed to the Standing Committee, and to be printed as amended. (No. 57.)