CHILD MURDER (TRIAL) BILL. (Hansard, 16 May 1922)

§ LORD PARMOOR
My Lords, this Bill has been brought up from the Commons, where it was referred to a Grand Committee at which, I am told, the Home Secretary was present, and certain Amendments were accepted which reduce the Bill to its present form. After it had been reduced to its present form there was never any Division in opposition to it. I think, however, I ought to say that the merit of placing the Bill in this form is really due to your Lordships' House. In 1908 the then Lord Chancellor, Earl Loreburn, introduced a 437 Bill to deal with this matter, but that was rejected on the Second Reading by a small minority. In the following year a Bill was introduced on the same subject by the then Lord Chief Justice, Lord Alverstone, and the Second Reading was carried by 75 votes to 18. On the occasion of the Second Reading, however, certain objections were pointed out to the principle on which that Bill was founded, especially by the late Lord James of Hereford, and on the Committee stage the framework of the Bill was amended in accordance with suggestions made by the noble Lord. After that the Bill was accepted and read a third time without further Division or opposition.
The Bill which I am now introducing to your Lordships' House is verbatim in the same terms as the Bill which left your Lordships' House in 1909 after discussion and consideration, Its purpose may be stated very shortly. On the former occasion I noticed that the Lord Chancellor stated that for sixty years a verdict of murder had never been followed by execution in cases of this kind, and certainly for a very large number of years now the conviction for murder, under the terms to which this Bill refers, has never been followed by an execution of the mother. I believe the almost universal practice is for the sentence to be commuted to penal servitude for life; and, afterwards, to a somewhat short period having regard to the conditions of the particular case.
The objection raised when the Bill was last introduced was that it gave a certain discretion to the Judge which ought, under our constitutional judicial process, to be left to the Home Secretary. There was also a suggestion that instead of passing sentence in public it might be recorded in secret. These objections were pointed out by the late Lord Halsbury. Both objections are avoided in the simple terms of the present Bill. The measure only refers to the case of a woman who is charged with the murder of her infant child and upon whose trial evidence is given that at the time of the offence the woman had not fully recovered from the effect of giving birth to the child. On every occasion when this matter has been discussed, either here or in the other House, a distinction has been drawn between a woman who, in certain circumstances, might really be guilty of a cruel child murder and a woman who is charged with murder at a time when she had not fully 438 recovered from the effects of giving birth to the child. In such a case the option is given to the jury to convict her of manslaughter instead of murder, and if that is followed the matter could be safely left to the discretion of the Judges.
What I want to insist upon is that in this way the present practice is really maintained. It is not a question of the jury convicting under the head of murder for an offence which no one desires to be dealt with as murder. It is a question of the jury returning a verdict of manslaughter, and then leaving the punishment to the discretion of the Judge. I think it was the Lord Chancellor who said in this House that to leave the law as it is was really worse than a farce. The sentence was a farce, and it was a cruel farce, especially in regard to the mother, to insist that any such verdict in these circumstances should be recorded against her. It is hardly necessary for me to deal further with the provisions of the Bill, and I ask your Lordships to give it a Second Reading.

§ LORD PHILLIMORE
My Lords, I desire to support this Bill. I am cognisant of what happened in 1908 and 1909, when Lord Alverstone consulted me with regard to Lord Loreburn's proposal. Lord Loreburn's proposal was dictated by a generous desire to repair what was a great misfortune, but he went at it in the wrong way. He proposed to give it to the Judge, not to the jury, to determine whether the matter should be manslaughter or murder. Lord Alverstone, on behalf of the Judges, opposed that measure, and it was not carried. I suggested to Lord Loreburn that he should propose some measure like the present Bill, but he did not wish to risk another fall. Then Lord Alverstone came in with his Bill, and this was also objectionable. He proposed to leave the law exactly as it stood and simply say that a Judge might record a sentence of death instead of pronouncing it in open Court.
During the debate Lord James of Hereford made a proposal which was very much like the present Bill. Afterwards he introduced it and carried it. The only difference between his proposal and the present measure was that he left more to the Court and less to the jury. Judges felt a great objection to this matter being 439 put into their hands. They said that it was for the jury, under proper direction, to find the crime and for the Judge to give proper punishment. I remember discussing the matter with Mr. Justice Channell, and I have written to him now and have recalled what took place. He agrees with me that the present measure is one which ought to command consent.
Under the present proposals the Judge is to be able to tell the jury that the woman was not insane but responsible for her actions, but, just as provocation of a certain kind will reduce murder to manslaughter, they may consider, if she has not fully recovered from her confinement, that what she has done is manslaughter only and not murder. The jury may find murder nevertheless, but they may, and probably always will, find manslaughter. As a Judge for sixteen years I have had a great number of child murder cases to try. Some of them no doubt were very bad; many of them by no means bad; but I have always felt great difficulty in the present state of the law. There was hardship in certain cases on the woman, hardship on the spectators, the jury and upon the Judge, and very often considerable difficulty in getting the jury to return the right verdict, knowing all the while that though the right verdict would be followed by the solemn sentence of death there was no chance of it being carried out. I think the Bill is a well conceived measure and I hope it will be passed by your Lordships' House.

§ THE LORD CHANCELLOR (VISCOUNT BIRKENHEAD)
My Lords, the noble and learned Lord who has just spoken has given a history of the fortunes of the legislative proposals which have preceded this, and in the main I agree with his view that this measure is less open to objection than those which have previously undergone examination in this House. I agree with him and Lord Parmoor that there is a ease which requires corrective treatment. It is not edifying or humane that the death sentence should be pronounced in cases in which every person who hears it knows perfectly well that it will not be carried into effect. For this reason I am of opinion that the House will be well advised to give the Bill a Second Reading.
I am bound to point out, however, for Lord Parmoor's consideration, that artistically it is not much more perfect than some of its predecessors which came in for a good deal of criticism. In the first place the 440 Title of the Bill exhibits it as one which is to provide that a woman charged with the murder of her infant child may, under certain conditions, be convicted of manslaughter. It is a commonplace that the jury may in certain cases of murder return a verdict of manslaughter if they think proper on the facts, and the only effect of the Bill, if, indeed, it has any new effect, is to give statutory authority for a jury, in the cases to which the Bill refers, to return a verdict of manslaughter on facts which amount in law to murder—in other words, to return a verdict which is not in accordance with the evidence according to the existing law, which is not altered.
Apart from this the Bill is open to objection on two grounds. I think it right to indicate the first impression that I have formed, in order that the promoters of the Bill may, if the matter goes further, devote their attention to it. In the first place, an express provision that a jury may return the verdict of manslaughter in these cases might appear to reflect upon the right which they most undoubtedly possess and habitually exercise of returning a verdict of manslaughter in any murder case. The argument upon that point is patent.
In the second place the drafting of the Bill, whatever authority it may have in the shape of the previous passage in this or any other House, would appear to me to be open to very considerable criticism. The operative clause is Clause 1:— 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 recovered from the effect of giving birth to the child, the jury may convict her of manslaughter instead of murder. Those words appear to me to be altogether lacking in precision. What is their effect? Evidence is to be given that when the offence was committed the woman had not fully recovered from the effect of giving birth to the child. The language used is most general in character. Many women do not fully recover from the physical consequences of having given birth to a child for nine months, or even, in rare cases, for nine years after the birth of the child. There is no limitation of any kind in point of time.
There is an even more serious defect in the language of the Bill; there is nothing whatever to connect the fact that 441 the woman had not recovered from the effect of giving birth to the child with the, commission of the offence. In other words, the Bill, as it is at present drafted, does not say whether the nature of the ailment from which the woman is suffering is such as to have deflected her will, her realisation of what is right and what is wrong, or her capacity for distinguishing between what is right and what is wrong. The clause simply says that if a woman has, in fact, not wholly recovered she may be convicted of manslaughter. In other words, if she is suffering from some minor indisposition which might easily be continued for some months and commits murder, whether her indisposition has clouded or impaired her power of distinguishing right from wrong or not, the jury may give this direction.
I make these observations from a prima facie examination of the words of the Bill because I think it right that my noble and learned friend, who is, of course, extremely competent to consider the cogency, if there be cogency, of these objections, may apply his mind to them between now and the Committee stage. I have already made it plain that I think there is a case for legislation, and I am far from desiring to oppose the Second Reading of this Bill.