HL Deb 06 December 1928 vol 72 cc425-49

Order of the Day for the House to be put into Committee read.

Moved, That the House do now re-solve itself into Committee.—[Lord Darling.]

On Question, Motion agreed to.

House in Committee accordingly.

[The EARL OF DONOUGHMORE in the Chair.]

Clause 1:

Punishment for child destruction.

1.—(1) Subject as hereinafter in this subjection provided, any person who, with intent to destroy the life of a child capable of being born alive, by any wilful act causes a child to die before it has an existence independent of its mother, shall be guilty of felony, to wit, of child destruction, and shall be liable on conviction thereof on indictment to penal servitude for life:

Provided that no person shall be convicted of an offence under this section if it is proved that the act which caused the death of the child was done in good faith for the purpose only of preserving the life of the mother.

(2) For the purposes of this Act, evidence that a woman had at any material time been pregnant for a period of twenty-eight weeks or more shall be prima facie proof that she was at that time pregnant of a child capable of being born alive.

LORD ATKIN moved to leave out Clause 1 and insert the following new clause:— 1.—(1) A woman may be convicted of infanticide notwithstanding that the death of her child is caused by her in the course of delivery; and the term 'newly-born child' in the Infanticide Act, 1922, shall include a child while in the course of delivery. (2) For the purposes of this Act the course of delivery shall be deemed to continue until the child has an existence independent of its mother.

The noble and learned Lord said: When this Bill came before the House for Second Reading I ventured to take objection to it upon the ground that it went much further than was necessary and that, in particular, it exposed professional men to the danger of being charged with an offence which was a new offence and which it was unnecessary to put upon the Statute Book. The proposal in the Bill is a proposal which, as the noble Lord pointed out when he introduced the Bill, arose from a statement made by a learned Judge in charging the Grand Jury in a case where a woman was charged with committing the offence of infanticide. It was pointed out by the learned Judge that a gap existed in the law and that, whereas at present a woman can only be convicted of an offence if the child who is killed has had a separate existence from its mother, there might be cases in which the death was caused while the child was in the act of being born. It was said that that was a gap in the Criminal Law which required to be remedied. For my part I am prepared to accept the view that that gap ought to be remedied and the Amendment that I have to propose does in terms precisely provide for that position. In my Amendment I propose that instead of a new offence being created, the offence of infanticide should be extended so as to include the case of the killing of a child by the mother in the course of delivery.

The Bill of the noble Lord goes much further than that in two particulars with which I desire to deal. In the first place, it extends the offence to third persons other than the mother. We are dealing, in the first place, with a killing which takes place during the act of birth. I will deal with the provisions of the Bill which deal with the supposed killing before the child is born later on. We are dealing now with the short period, fortunately in most cases, when delivery has commenced and before the child has a separate existence actually apart from its mother. The Bill creates a new offence and is applied to third persons other than the mother. Who will these third persons be? I know of no cases in which it has ever been suggested that there was a deliberate act of killing a child in the course of delivery, unless it was by a doctor or midwife. From the nature of things your Lordships will see that it is practically impossible that there should be anybody else capable of killing the child during birth. For my part I am very reluctant that a new offence should be created, which would comprise professional men and professional women—because, as your Lordships are aware, mid-wives now have to be licensed—and which could expose them to the possibility of a charge of this kind being made. It happens from time to time that the doctor has to make up his mind that in order to save the mother's life the child must be sacrificed. This Bill, in the terms of it, would make such a doctor liable to a new offence, punishable by penal servitude for life, unless he discharges the onus of showing that he did it in good faith, for the purpose of preserving the life of the mother.

I object very strongly to any onus being put upon anybody to prove that he is innocent, and I also object, and I suggest to your Lordships that it is very inadvisable, that a new offence should be created under which professional men and women could carry on their very important vocations with the possibility of a criminal charge being brought against them, either by a disappointed parent or by a mischievous attendant. Nothing, to my mind, excuses the creation of new penal legislation unless there is a real social evil to be guarded against, or to be prevented in the future. Although I have not the long experience in criminal matters of the noble Lord, I have some experience, and I have made inquiries myself, and I have not come across a single instance, in the whole history of the administration of Criminal Law, where it has been suggested that there has been an improper act done to a child by a third person other than the mother, in the course of birth, and I should be very interested to hear whether my noble friend founds this proposal upon information that there is such an evil in existence.

Your Lordships will remember that under the present law relating to coroners, coroners have the duty to hold inquiries upon the births of children, including still-births, and I know of no case where in such circumstances any coroner has ever suggested, or where it has been suggested, that any third person has committed an offence. Therefore, I say it is inadvisable to create an offence where it is unnecessary to throw possible obloquy upon a professional man, and that it is perfectly sufficient to meet the only evil to which attention was originally called—namely, the case where a mother is supposed to have killed her child in the course of delivery. My Amendment, I think, makes that plain. It is a simple Amendment. It extends the crime of infanticide, and it extends it merely by saying that a mother may now be charged with the killing of her infant child shortly after birth and that she is liable to be convicted notwithstanding that the act was done in the course of delivery.

There is another provision in the Bill which to my mind is objectionable; that is, that this offence is not confined to the killing of a child in the course of birth, but is extended to the killing of the child before delivery has begun, whilst it is still in the body of the mother, while she is still pregnant. That, I venture to suggest, is an unnecessary proposal because it has this serious disadvantage, to my mind, that it would overlap the existing law as to procuring abortion. The practice of abortion is one that is very rife in these days, much more so than a great many of your Lordships would believe unless you had occasion to deal with the matter. It is a practice which I can tell you, from the experience I have had in trying cases, causes, where it is successful, in many cases untold pain and suffering and in many cases death.

The present provision of the law as to abortion is that any person who uses either instruments or any other means, with the intention of procuring a miscarriage, commits an offence which is punishable by precisely the same punishment as is provided in this Bill—namely, the maximum punishment of penal servitude for life. I am advised, and I have found it to be so in books of authority upon medical jurisprudence, that it is really impossible to kill a child in the body of the mother without procuring a miscarriage and without, therefore, obviously intending to procure a miscarriage as the natural result of the action taken. It appears to me that in that respect the provision in the Bill is unnecessary, and, indeed, is undesirable, because it weakens the law as to abortion by narrowing it, and by creating an offence which requires that there should be an intention to kill the child; whereas that is not necessary in the ordinary law as to abortion. Therefore, I desire that my noble and learned friend's Bill should be reduced to small and reasonable dimensions; that it should be confined to meeting the only evil which really exists, and that this evil should be met, not by creating a new offence, but by slightly extending the bounds of an old offence. It would, therefore, become unnecessary to deal with Clause 2 of the Bill, which provides all the machinery that is necessary in view of the fact that a completely new offence is being created.

I hope your Lordships will limit the scope of the Bill. The present position is one which it seems to me is very undesirable in the interests of the medical profession and the nursing profession. I think your Lordships would be sorry to create an offence which seemed to point unnecessarily in their direction unless you are satisfied that there is a real, solid, existing, social evil. For those reasons I commend the Amendment to your Lordships and I beg to move.

Amendment moved— Page 1, line 6, leave out Clause 1 and insert the said new clause.—(Lord Atkin.)


It happens that when this subject was under discussion in a previous Session of Parliament, the Bill which my noble and learned friend Lord Darling had introduced was referred to a Select Committee and was amended in the Select Committee to a form which is not quite that in which it now appears but in substance was certainly in the direction of the form in which my noble and learned friend has now introduced his Bill, and which was resolved upon after the Select Committee had heard the Government draftsman and, I think, a representative of the Home Office. At any rate, it was done after some consideration. I know of the facts because it happens that your Lordships thought fit to appoint me to be a member of that Committee. I may say at once that I have not the least prejudice against any proposal for dealing by an independent method with a grave question and a grave danger at which this Bill is aimed, if it really dealt with it. I have attended to what was said by my noble and learned friend opposite with a view to seeing whether the proposal he makes, as he explains it, really deals with the grave matter with which this House resolved last Session to deal and resolved by its Committee to deal on the lines on which it is dealt with by the Bill.

Two matters are dealt with here: First of all, the character of the offence which is in question and the dangers to society which it involves; secondly, the safeguards which are necessary to be taken and the persons against whom decent society must be protected. With regard to the offence, my noble and learned friend opposite has said, with knowledge gained to some extent as a Judge of the King's Bench Division and by inquiry, that the crime of abortion is one of the most serious crimes now prevalent, that it is prevalent in a grave degree and is resorted to with great resolution for reasons which are perfectly obvious to those who understand the social aspects of this question. So that the danger which is dealt with is a real and a grave danger. Abortion is a felony. I was a little surprised to see in one part of the clause that the offence aimed at by this Bill could be an act of abortion. My noble and learned friend said that he would reduce the crime, which is abortion at present according to his view and is a felony involving the possibility of penal servitude for life, to the misdemeanour to which he reduces the limited offence which he creates by this Bill. I do not understand that. There seems to me to be a real inconsistency. Why the noble and learned Lord should be ready to leave one branch of this class of offence to be a felony punishable by penal servitude for life and as to the major area should say it is sufficiently dealt with by a slight provision creating a new misdemeanour passes my comprehension.

The offence is a most grave offence. It is quite true that the loophole for evasion of the long-established severity of the Criminal Law to prevent this offence, which was pointed out by a learned Judge a year or two ago, had not been down to that time generally appreciated. I wondered myself when the charge to the Grand Jury was delivered whether perhaps it might open the eyes of people who have been ready to incur the penalties of abortion to a point where the crime could be committed—I mean the crime in the broad sense—without the risk of punishment, and for my part I had apprehensions about that matter having been brought to public notice as it was, but I do not know anybody who has had experience of the administration of the Criminal Law who did not recognise, when this matter was presented to a Grand Jury, that it ought to be dealt with. There are aspects of that crime of abortion with regard to the living person and with regard to the unborn which it is not necessary to dwell upon, but which emphasise the gravity of the matter.

My noble friend Lord Darling framed a Bill, which was accepted here in principle, and was sent to a Select Committee. All that the Bill was designed to do was to provide that, in the case unprovided for, the penalty of abortion should be incurred by those who were engaged in the act. That seems to be entirely consistent with the policy which has been pursued in our judicial administration. Let the act be proved and the persons who have been criminally guilty of it shall be subject to the same punishment as though there had not been a loophole in the law of abortion. That is what the Bill broadly proposes, and for my part I have great difficulty in seeing how this grave offence shall be guarded against in this particular, in which there is almost an invitation to criminally-minded people to take the action they are so ready to take, until you put the law on an even footing.

My learned friend has been concerned about the effect of these proposals in respect of the liability of medical practitioners and of registered midwives. Let all due effect, I say, be given to that legitimate concern. No self-respecting person, no person of any experience, wishes to imperil a decent doctor who has performed a terrible task and has deprived a fellow creature of life. No one wishes that he should be lightly exposed to criminal proceedings. But it is not the respectable medical practitioner who runs this risk, as I conceive it, and it is not the decent midwife; it is the people who at the present time practise abortion, and, in a vast number of cases, escape without any penalty, because it is a crime most difficult to bring home to those who are guilty of it. So far as I am concerned, I should regard it as a mockery to pass a Bill through this House which left the people who provide the means for this crime and actually put it into effect free of risk, which expressly exempted them from risk, and put such penalty as may be incurred upon the unhappy woman whom, for money, they involve as an accomplice in a criminal transaction.

It seems to me that this House would abundantly provide for the security of the respectable medical practitioner and the respectable midwife if a clause or subsection were inserted which provided that there should be no prosecution of a registered medical practitioner or a registered midwife without the sanction of the Attorney-General. A clause of that kind is easy to frame, and, for my part, I see no objection to it, but I oppose the proposition of my noble and learned friend, after hearing it explained, because it minimises and belittles a most grave class of crime, and because it exempts from liability in respect of that class of crime the persons who are most guilty when it is carried into effect. For those reasons I trust your Lordships will not accept the Amendment of my noble friend opposite.


I do not know that I agree entirely with the noble and learned Lord, Lord Atkin, and I am not convinced by the admirable speech from his point of view of the noble Lord opposite [Lord Merrivale]. Perhaps I may point out in the first instance that the Amendment we are now dealing with is on Clause 1, and refers to the offence I want to deal with shortly—that of the woman. We are not now dealing with Clause 2, which raises quite a different question—that of the offence of the doctor or of the midwife.


I am sure my noble friend will pardon me. If he will read Clause 1 he will see that it provides that, subject to the exceptions, "any person who, with intent to destroy the life of a child" and so on "shall be liable on conviction" to a penalty. "Any person" includes the medical man and the midwife in my understanding of it. If I had not thought so I should not have addressed your Lordships on those matters.


I understand what the noble Lord has said, but I do not think a discussion on this clause covers the argument of the noble Lord as regards the midwife or the doctor. So far as the midwife and the doctor are concerned, if I am right in my reading of this proposed Bill, they are entirely included under Clause 2 of the Bill.


Clause 2 deals with the power of Quarter Sessions.


"Where upon the trial of any person for the murder or manslaughter of any child" and so on, then, if he is found guilty of the offence under this Bill, which is, in that respect, a new offence, he becomes liable to be convicted and punished as if he had been convicted upon an indictment under Section 58 of the Offences against the Person Act, 1861.


If it is not inconvenient to my noble friend I would say that as I understand the Bill—and it is not a Government Bill—Clause 1 is the clause which creates the offence under the actual Bill whether it is committed by the mother or by any other person. Clause 2 merely avoids the risk of a person being prosecuted for this particular offence and getting off because it is proved that what he really did was to commit manslaughter or abortion. Clause 2 really prevents a person getting off by reason of the fact that he is indicted under this Act when in truth he has committed the offence of abortion and vice versa. Clause 2 does not create an offence.


I accept that at once. I have made a mistake in reading the Bill, and I must apologise to the noble Lord opposite if I was wrong in my argument, and both points do arise under the Amendment we are now discussing. To discuss the matter as regards the mother and the midwife and the doctor together under this Amendment has a certain convenience. We can discuss both points of view under this Amendment. I think that is the result of what the noble and learned Lord, the Lord Chancellor, has said. Take first of all the case of the mother. We are bound to have regard to the conditions in which an offence of this kind is likely to take place. It must inevitably take place immediately after the act of labour has been finished, when, I will not say the child, because it may not be regarded as a child, but when what may become a child has been separated from the mother. Therefore the Bill really for the first time introduces the crime of infanticide as against the crime of murder owing to the very special conditions in which a woman is placed at the time when the child is born. I should have thought that what the noble Lord has said was perfectly right, that if you are to have this gap in the law filled up that is the position. I am not cognisant myself that the question has very often arisen in Criminal Law, but if we are to get this gap filled up, which seems to be common ground, why should the offence created be greater than infanticide under the Act which I think is referred to in the Amendment of the noble and learned Lord, the Infanticide Act, 1922?

I agree that the offence ought to be dealt with, but is it a greater offence than infanticide? If you are dealing with this offence, you should not put it either under what I may call the abortion law or the murder law, but under the intervening provision which arises as regards infanticide. I think I may say in reference to what the noble and learned Lord, Lord Merrivale, has said, that there is no intention here of any kind to diminish either the penalty for or the character of ordinary murder or of abortion. It is a gap in a certain sense between the two and it comes much nearer, if you consider the condition in which a woman is placed, to the offence of infanticide, which, after all, is only an offence reduced to that class of offence owing to the condition in which a woman is left—practically in a condition when she is hardly responsible at all, for any action she may take. I do not understand, I admit, why the noble and learned Lord should regard an offence of this kind as greater than the offence of infanticide.


May I point out to my noble friend that any Judge before whom an offence under this Bill if it becomes an Act may be tried may limit the punishment in the same way as the punishment can be limited in any case of felony? It may be a case for minor punishment, it may not be a case for imprisonment at all, but there is absolute power in the Court.


In answer to the noble and learned Lord, I am afraid I must say, with all respect to the learned Judges, that the particular views of particular Judges notoriously differ upon matters of this kind, and I think it should be settled upon the face of the Act which creates the offence. It is a matter, to my mind, certainly of very great importance that on questions of this kind you should not make the law harsher than is absolutely necessary in order that the crime may be suitably punished both as a deterrent and as a punishment in the particular case.

The other point, which is quite distinct, is the question of the doctor or the nurse. For reasons which we all know, unfortunately, I suppose we shall not have the advantage this afternoon of hearing the views of my noble friend Lord Dawson of Penn, but I should like to ask whether it is necessary, having regard to the existing limitations of the law, that in a matter of such extreme difficulty the possibility of a prosecution of this kind against an innocent man should be instituted. I regard that as a very serious question. I understand that the noble and learned Lord, who has far greater experience than I could possibly have had in these matters, has not found in his extensive experience any illustration of the particular crime with which we are dealing here, that is, the destruction of a child after birth but before separation from its mother. I must say I cordially support him and I shall support him if he goes to a Division on his Amendment, because I think the Bill as it stands is unduly harsh, and if you have an unduly harsh law in such a matter you are more likely to create concealment and other matters of that kind than if you make the punishment and the procedure more directly applicable to the offence. Therefore, if the noble and learned Lord presses his Amendment to a Division I shall certainly support him.


I regret that this Amendment has been moved because it is really only another method of doing what the noble Lord attempted to do when he moved that the Bill be read a second time six months from the date of my introducing it. This Amendment would leave a great part of the evil which the Bill attempts to prevent absolutely uncontrolled. It would deal with the case of where the woman herself, the woman in labour, killed the creature, and purposely killed it, mind you, before it had a separate existence. It would deal with that and with that offence alone, and it would say that that offence was nothing more than the offence of infanticide, which involves a comparatively light punishment. A woman who, when giving birth to a child, waits until the creature is brought into existence before killing it and then kills it, is liable to be convicted of murder. She can be tried for murder, convicted of murder, and it is conceivable that she might be hanged for murder. But if she acts a little earlier, if she kills the creature before it is fully unconnected with her existence, before it has an existence of its own, she can do it as the law stands without incurring any penalty whatever, and if this Amendment were passed she would, if she did it, and did it on purpose, and did it after having resolved on it from the moment she knew she was pregnant, be guilty, if the noble Lord's Amendment is carried, of nothing but the modified offence of infanticide.

But that is not all. If the Amendment were carried this would happen. As the law stands at present, a woman who desires not to have a child born alive and continuing to exist can go to a professional abortionist—there are many of them—and say: "I expect my delivery about a certain time. When I know it is coming on I shall send a message to you. You come. I only ask you to do what is perfectly safe. Do not wait until the child is born before killing it, cutting its head off maybe, do not wait till then because you might get convicted of murder, but before it has a separate existence—you are a skilful person you know, you are an abortionist, you are a nurse, or you are both—when it is in that condition, neither a separate living soul nor yet merely a fœtus, you kill it, and by the law of England you commit no offence whatever." If this Amendment were carried that condition of things, monstrous as it seems to me, would still be the law of England. The noble and learned Lord does nothing to prevent a person of that kind doing it for money, and very likely a great deal of money will be charged in some cases. After all, my noble and learned friend Lord Merrivale probably knows more about this kind of thing from the Court where he presides than anybody else in your Lordships' House. When it is said that this is an unnecessary Bill, I rely, as I relied when your Lordships passed this Bill last Session, upon the fact that one of the Judges of the King's Bench, Mr. Justice Talbot, had brought to his notice so many cases of this kind that he thought it right and necessary to call public attention to the matter. It was that which led me to bring in this Bill. The Lord Chancellor at the time expressed his surprise that there were so many cases. I have spoken to learned Judges since and I find that there are far more of these cases than people who do not attend at Assizes have the least idea of.

When it is said by my noble and learned friend opposite that this is creating a new offence, I ask: What is the harm? I could give him Lord Coke's authority—I expect he knows the passage better than I do—for saying that, where people commit new crimes, it is the duty of the law to find new punishments, and this has been acted upon for centuries. But is this matter so entirely new? Before the War, Lord Robert Cecil, as he then was, introduced into the House of Commons a Bill to prevent this very offence. It passed through the House of Commons and it would have been presented for the Royal Assent, but Mr. Asquith said at the time—not, I think, that it was a matter that would not brook delay, but that it was a matter that ought to be attended to, though the Government could not give time for it. Otherwise there would have been no need to trouble your Lordships now. More than that, the matter was dealt with when there was a question of codifying the Criminal Law of England, and Sir Fitzjames Stephen, Lord Blackburn and others, who were charged with the codification of the law, provided means of stopping this offence. This question has not burst suddenly upon an astonished world. It has been thought of for a long time. It seems to me that we are not creating a new offence except in a very technical meaning of the word. There are many acts that are offences, though they are not offences in the technical sense of the Law Courts. But this is an offence, as my noble and learned friend Lord Merrivale has said, of the gravest possible character, and one for which, unfortunately, the law at present provides no punishment.

My noble and learned friend opposite said that this Bill overlaps the existing law about abortion, If it does that, then Mr. Justice Talbot was absolutely wrong in what he said to a Grand Jury. Abortion is a punishable offence already, punishable with penal servitude for life under the Offences against the Person Act. If this does overlap, then it is no new offence at all but an old offence that is punishable very severely. Then my noble and learned friend spoke of the question of onus. I was rather surprised, by the way, that my noble friend who leads the official Opposition should say that this arose on Clause 2. My noble and learned friend opposite [Lord Atkin] knew far better. He knew that this arose upon Clause 1, and that is why he said that he objected to the Bill because it put the onus upon the defendant. I am not sure that it does so. It applies to anybody who takes part in killing what would soon be a separate child, but it says:— Provided that no person shall be convicted of an offence under this section if it is proved that the act which caused the death of the child was done in good faith for the purpose only of preserving the life of the mother. There may be cases in which it is necessary to kill the child in order to preserve the life of the mother, and naturally this act is performed, not by the mother herself, but by a qualified doctor or accoucheur.

I do not feel at all sure on the point, and it may be not a little doubtful whether this puts the onus upon the accused person, for it does not say that it must be proved by the defence. It might be proved by the prosecution. There may be something in the point, and if it would modify the position of the noble and learned Lord I should not have the least objection at the proper time to move to alter it in this way:— Provided that no person shall be guilty of an offence under this section unless it is proved that the act…was not done… —and so on. Then it would be put upon the prosecution to prove that the person who did the act had not done it only to preserve the life of the mother. As to the rest, I am sorry that I cannot accept the Amendment of the noble and learned Lord, for the reasons that I have given. I think that it would be fatal to the Bill, and as to third persons, persons other than the woman herself, it would give them an absolute charter by Act of Parliament to go on killing creatures who were almost living souls. Accordingly I resist this Amendment.


This is, as your Lordships have appreciated, a Bill brought in by a private member and not in any sense a Government measure, and I think it is fair to add that it is not in any sense a Party measure as to which we are in disagreement. I am therefore expressing only my personal view, charged perhaps with special responsibility having regard to my official position in this House. The fact that the Bill has been given a Second Reading commits the House, I think, only to the principle that there is a gap in the Criminal Law which it is desirable to fill in, and the first question in considering which of these two alternative Bills—for that is really what this Amendment amounts to—should be accepted is: Which is the right way of stopping the gap? I think the first thing is to determine exactly what the gap is.

It is by the law of England murder deliberately to take the life of a child when it has once become a separate entity and has had, in the legal sense, a separate existence. It is by the law of England a felony to kill a fœtus, to destroy the life of a child in the body of its mother, but by English law a child has not a separate existence merely by reason of the fact that it has breathed. It has to be proved affirmatively that it has acquired a separate and distinct circulation from that of its mother and there is, therefore, a very appreciable interval of time after the commencement of labour before it can be said that the child has become a separate person, so that the killing of it should be an offence, and if the life be taken of that living thing after the commencement of its birth, but before it has acquired a separate existence in the sense which I have indicated, then it is at present no offence at all. It can be done with impunity, and nobody can be punished if they are proved to have done it, however maliciously and however wickedly.

On the Second Reading of the Bill originally introduced by Lord Darling I expressed some little regret at the fact that publicity had been given to the fact of the existence of this gap, because I felt that it was a gap whose existence was not generally known and that the offence was not often likely to be committed, and the fact that publicity had been given to it might result in advantage being taken of the existence of this gap in our jurisprudence. However, that was a matter on which the learned Judge, for no doubt excellent reasons, thought it right to take his own course, and it is not a matter in regard to which your Lordships have any responsibility; but the gap having been disclosed, then surely it does become incumbent upon us, as your Lordships have indeed affirmed by the Second Reading of this Bill, to close the gap.

My noble friend Lord Darling proposes to close it by the provision of Clause 1, which makes it a felony for any person to take the life of a child in the course of its being born, unless that life be taken for the necessary purpose of saving the existence of the mother. The noble and learned Lord, the Leader of the Socialist Party in this House, took objection to the Bill as presented to the House and preferred the Amendment of my noble and learned friend Lord Atkin, first of all because he said that the provision of Lord Darling's Bill was unduly harsh, and he preferred the more lenient punishment provided by Lord Atkin's Amendment. I do not think he can have appreciated that the punishment provided is exactly the same. Under Lord Darling's Bill the punishment would be the same as that which is prescribed by the Infanticide Act, which is the same as for manslaughter—namely, penal servitude for life. Therefore, if that be the reason why the noble and learned Lord proposes to support the Amendment, it is a reason which has vanished into thin air.

Now I come to the points which Lord Atkin urged in favour of his Amendment. He said, first of all, that this is an offence which is not often committed by anybody other than the mother. I think probably, so far as my experience goes, which is far less than his, that that is quite true, but I do not think that that is a real answer when we appreciate that attention has been now drawn to the fact that this is a way to procure what is practically abortion with impunity, and that there are unfortunately, as the noble and learned Lord himself pointed out, people who make a trade of abortion, and I believe a profitable trade in proportion to its danger. The practice of abortion is unhappily very rife in this country at the present moment, and if the Amendment be carried then any practising abortionist can always say to anybody who consults him: "I cannot take the risk of procuring abortion, but send for me whenever your child is being born and I can get rid of it for you with perfect safety; I shall have committed no offence at all"—and he will be right, and the Criminal Law cannot touch him. It would provide for the abortionist a charter with which I think it would be somewhat dangerous to provide him.

Then Lord Atkin said that if this Bill were passed difficulty would be created for the doctor who was acting in good faith. That very difficulty was one to which I drew the attention of the House when my noble friend Lord Darling originally introduced his measure last Session. Some provision has been made in the Bill as now presented to cover that particular case. I think myself it would be advisable to go further in providing that protection, and I should advise my noble and learned friend either to accept or introduce an Amendment which made it clear that the doctor was not charged with the burden of proving he was acting in good faith; or, if your Lordships preferred it, to accept the suggestion of Lord Merrivale that no prosecution should take place under this Bill without the previous fiat of the Attorney-General, which I think from experience would probably be a very adequate protection.

I do not think, when once you have it made clear that as long as the act is done in good faith it is no criminal offence, that you are really putting the medical man in a position of embarrassment, because one knows that it is necessary sometimes to procure abortion for the sake of the mother of the unborn child, and I have never heard that any doctor has been embarrassed, or has hesitated, in the discharge of that duty, by reason of the knowledge that if he was not acting in good faith then he would be guilty of a criminal offence. I do not think, therefore, that the embarrassment would be greater under this Bill than under the existing law, but I quite agree that care must be taken that we do not make the offence go further than is necessary, and I personally advise my noble friend Lord Darling, and your Lordships, if necessary, to make that clear either now or, perhaps more conveniently, on the Report stage.

I would like to point out what I am sure Lord Atkin will appreciate when I call attention to it, that his proposal really would not work but would produce what I might almost call a ridiculous effect. The Infanticide Act is not an Act which creates a new offence. It is an Act which says that that which would otherwise be the offence of murder shall be a less offence under certain conditions—namely, when the person murdered is a new-born child, and when the mother who has taken its life is so disturbed and unbalanced in her mind at the time by reason of the fact of her having just given birth to the child, that she really does not appreciate what she is doing. The words in Section 1 are:— Where a woman by any wilful act or omission causes the death of a newly-born child, but at the time of the act or omission she had not fully recovered from the effect of giving birth to such child, and by reason thereof the balance of her mind was then disturbed, she shall be guilty only of infanticide and not of murder. If the noble and learned Lord's Amendment were carried the effect would be that if a woman at the time of killing her child in the course of delivery, the child whose killing is struck at by the Bill, was so disturbed that the, balance of her mind was upset then she would be guilty of infanticide and would be liable to penal servitude for life; but if her mind was not upset by the condition in which she was, and if she did the act in cold blood perfectly deliberately, then she would be committing no offence at all.

I am sure that the noble and learned Lord does not intend that, but it is the result of his Amendment as he has drafted it. The reason why the Amendment arrives at such an unintended result is that I think my noble and learned friend has for the moment lost sight of the fact that the Infanticide Act is not creating an offence but is modifying the penalty under certain specified conditions. In this Bill we are creating an offence. That is what we intend to do. What we are hitting at is something which, at the moment, is not punishable by law and we are declaring that it shall be punishable by law. Therefore, it is not appropriate, if my noble and learned friend will forgive my saying so, to adopt the machinery by saying that the Infanticide Act shall apply to such cases. In those circumstances your Lordships will see that this seems to be a case in which it is not desirable to relieve from liability the professional abortionist, whether man or woman, who takes advantage of the loop-hole which has been so obligingly pointed out to him, and to punish only the woman who happens to kill the child at the time when her mind is disturbed and upset. As I pointed out, the question of penalty will be the same whether the Amendment or the Bill is passed, and the question of penalty, I think, can be trusted to the discretion of Judges who have acted and are acting mercifully as well as justly in the administration of the Criminal Law.

I would like to add that the offence which we are asked to create is an offence which was made penal in the Indian Criminal Code a great many years ago. Your Lordships know that the Indian Criminal Code was drawn by most distinguished lawyers. In that Code, Section 312 has an offence of causing a miscarriage, and Section 315 has an offence which is described as acts done with the intent to prevent a child being born alive or to cause it to die after birth which, when one comes to read the section, is the sort of offence we are dealing with here. On all those grounds I would venture to submit to your Lordships that the Amendment ought to be rejected, and that the Bill ought to be allowed to remain in its present form, but that, probably most conveniently on the Report stage because one wants time to consider any form of words which is brought forward, some provision might properly be made for seeing that the position of the doctor or of a properly certified nurse or midwife or nurse acting as a legitimate accoucheur should be adequately protected.


The speech to which we have just listened has been, perhaps, the most useful of the speeches that have been made from the point of view of instructing your Lordships on the subject before us. I was very glad to hear the noble and learned Lord say that he would, as I understood, make it his business to see that before the Bill left this House there would be no doubt that the onus of proof was put upon the proper party. That, I think, is at any rate of importance if this Bill goes on. The noble and learned Lord so admirably described the gap which exists and the methods for filling it that I do not think I need follow him there. So far as I gather, the only difference between those who have spoken on both sides, is that some of us think that the Bill does more than fill the gap and others think that the Amendment of the noble and learned Lord, Lord Atkin, will do rather less than fill the gap.

I might say a word in defence of my noble and learned Leader who is said to have made an error regarding the penalties. He, at any rate, shared that with the father of the Bill who ought to have known about the penalties and who, when he was speaking, spoke about their being exposed to modified penalties under the Infanticide Act; so that my noble and learned leader was not alone in that mistake.


The noble Earl will pardon me. If this were carried they are modified by reason of the Act which provides a different punishment for the crime of infanticide to that to which the same act used to render people liable.


I cannot say that I understood that when the noble and learned Lord was speaking, but of course I accept his explanation.


I noted the point myself when I was reading the matter up in the library, and I marked it down for mention to your Lordships, but I thought I had already taken so long that I omitted it.


It is rash, of course, on the part of anyone to attempt to find fault with the noble and learned Lord, Lord Darling, and I shall not pursue the subject. Your Lordships really have the matter before you and I cannot doubt, none of us I think can doubt, that once public attention has been called to this matter something must be done. Whether this does not go unnecessarily far is another question and one on which each of your Lordships will decide for himself. But I was not very much impressed by the speech of the noble and learned Lord, Lord Merrivale, if I may say so, because he seemed to me in many of his arguments not to be really germane to the matter of the Amendment, which does not deal with abortion or anything in the nature of abortion. Nor do I know why he was given a testimonial by the noble and learned Lord in charge of the Bill as being specially familiar with abortionists, midwives and people of that class. In the Court over which he presides people generally come before him, I think, something like twenty years or more after the time, and, on the other hand, in some cases before the time, when the presence of a midwife was necessary. I was not aware that that was an experience which existed largely in that Court. I do not wish to detain your Lordships at this hour because I think the noble and learned Lord, the Lord Chancellor, has really put the case perfectly clearly. The issue, I think, is simply that some of us think that the Bill goes unnecessarily far and others think that the Amendment does not go far enough. If the Amendment fails to go far enough it could, of course, be amended later.


I should like to say a few words on the questions raised by my Amendment. First of all, may I deal with what was said by the noble and learned Lord the Lord Chancellor who, on any question of law, ought, of course, to be listened to with great respect and by nobody more than myself. Unfortunately, this is only another instance of the case where lawyers, like doctors, sometimes differ, but your Lordships will be able no doubt to form an opinion about it. I understood the Lord Chancellor to say that the Infanticide Act created no new offence. The words of the Act are:— Where a woman by any wilful act or omission causes the death of her newly-born child, but at the time of the act or omission she had not fully recovered from the effects of giving birth to such child, and by reason thereof the balance of her mind was then disturbed, she shall, notwithstanding that the circumstances were such that but for this Act the offence would have amounted to murder, be guilty"— of what? of felony, to wit of infanticide, and may for such offence be dealt with and punished as if she had been guilty of the offence of manslaughter of such child. The Act creates a new offence, the offence of infanticide. It provides for a separate indictment for the offence of infanticide as opposed to the offence of manslaughter and the offence of murder. I think I am right in saying that the offence of infanticide is a new offence, that it was created as a new offence and is punished and treated as a new offence, and there are certain sections of the Act of Parliament which are only applicable, I think, because it is a new offence.

The other point dealt with by the Lord Chancellor was this. He said that my Amendment would produce an absurdity because the definition of infanticide states that at the time of the act or omission the woman had not fully recovered from the effect of giving birth to the child, and that by reason thereof the balance of her mind was then disturbed. I agree. Perhaps it is unnecessary to assure your Lordships that I had read that section and had taken it into account. It really never occurred to me that there never could be any chance that a woman charged with infanticide would be defended by Counsel of such courage as to suggest that in this case, a case where she was charged with causing the death of her child during the actual act of delivery, she ought to get off either because she had not recovered from the effect of giving birth to a child or by reason thereof the balance of her mind was then disturbed. But can you imagine anyone saying to a jury: "You ought to acquit on the charge of infanticide because she committed the act deliberately"? It seemed to me that that was a suggestion which, though I have heard a great many courageous defences put forward in the course of trials, would never have occurred to any Counsel, however bold. In those circumstances it occurred to me that it would go as a matter of course that the woman could be properly charged with infanticide, as she is now, for any act being done within a few minutes or it may be hours of the birth.

There is one other point I want to mention and that is in reference to what was said by my noble and learned friend Lord Merrivale. It certainly was a surprise to me to gather, after a little time, that he charged me in this Amendment with minimising the offence of abortion. I must say I thought it a peculiar charge, because I have expressed myself over and over again, both officially as a Judge and also in the position that I occupied for some time as President of the Medical and Legal Aid Society, against it, and I have dealt with cases of abortion over and over again. I thought I said in my speech that my objection to this Bill is not that it creates a special protection against abortionists, but that it minimises the offence of abortion, restricts it, because that which corresponds to procuring abortion under this Bill is only an offence if it is done with the intention of procuring the death of a child, which is not an ingredient in the ordinary case of abortion. The ordinary case of abortion is a case of merely attempting to procure miscarriage. I think it is a grievous defect in this Bill that there should be a provision which overlaps the ordinary law of abortion, and makes the offence only created where there was an intention on the part of the person charged to kill the child in the body of its mother. That is not necessary at the present moment in abortion and I repeat that the defect of this Bill is to weaken the protection against abortion and not to strengthen it.

The issue is really this. My noble friend Lord Darling, in introducing this Bill, said that he had had conversations with Mr. Justice Talbot. The question that was raised by Mr. Justice Talbot was this. He said:— The law upon the matter is unsatisfactory and it is right that every appropriate opportunity should be taken to call attention to it. It is a felony to procure abortion and it is murder to take the life of a child when it is fully born, but to take the life of a child while it is being born and before it is fully born is no offence whatever. That is the evil to which Mr. Justice Talbot referred. He was not dealing with the case of taking the life of a child before it was born, but only the case of taking the life while it was being born. The case which arose before Mr. Justice Talbot was that in which a mother was charged with killing her child. My Amendment will deal with every case of a mother charged with killing her child; therefore the only question that arises is whether or not there are third persons who are likely to intervene and kill the child in the course of delivery. The noble Lord said that he had spoken to the Judges, or to Mr. Justice Talbot, and that he had heard of a number of these cases and he drew a picture of a professional abortionist coming along and killing a child in the course of delivery after having given up the idea of procuring a miscarriage. I challenge my noble friend to point out a single instance where that has happened up to date, and I would, with great respect, say I cannot believe there has been up to the present moment such a case, unless be assures me to the contrary.


I beg the noble and learned Lord's pardon. I did not desire to intimate, nor did I intimate, that Mr. Justice Talbot had put that case before me. That was entirely an argument of my own, and if it be good or bad I am alone responsible for it. What Mr. Justice Talbot told me was that the cases in which advantage is taken of this gap are far more frequent than people seem to think.


I am much obliged to my noble friend. I thought that that must be the case, but my noble friend had drawn this picture of the abortionist who comes along and kills the child for a reward while it is being delivered, and then he went on to say that Judges spoke of a number of these cases. I thought for the time being that he was right and that these cases were usual. Let us take it now that there is not a single instance known in which this thing has ever happened. If it had happened it would have been discovered at coroner's inquests. I say quite firmly that at the present moment the difficulty which has been referred to does not exist. It is not an evil that has got to be overcome at all, because nobody has ever heard of such a case ever having taken place. I am prepared to accept what the noble Lord said, that there are many more cases than the public knows of where the mother has killed the child in the course of delivery, but every one of those cases is met by my Amendment and therefore there is no difficulty about it. My suggestion makes the offence of infanticide punishable with penal servitude for life or with a lesser punishment.

The real controversy between us is this. There is an evil. The evil is met by my proposal. There is a suggested hypothetical evil, but not a single instance has been produced in this House by any of the noble Lords who have spoken of any such case having been revealed. I venture to think there is not at present any possibility of any real social evil coming into existence even when this gap is known. Professional abortionists are not so ignorant of Criminal Law as is generally supposed. I think if you pass this Bill in the form in which it is at present there is not sufficient protec- tion for the medical men and the registered midwives who are subject to the possibility of having a criminal charge brought against them. My proposal goes all the way to meet the real evil that has been put before the public, and I ask your Lordships to accept it in preference

Resolved in the affirmative and Amendment disagreed to accordingly.

Clause 1 agreed to.

Remaining clauses agreed to.

Bill reported without amendment.