HL Deb 18 December 1928 vol 72 cc668-70

Read 3ª (according to Order).

Clause 1:

Punishment for child destruction.

1.—(1) Subject as hereinafter in this subsection 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.

LORD DARLING had given Notice to move three Amendments in the proviso—namely, to leave out "convicted" and insert "guilty," to leave out "if" and insert "unless," and, after "was," to insert "not." The noble Lord said: My Lords, I undertook, when your Lordships passed the Bill through Committee, that I would move some words to deal with what was pointed out as possibly a grievance which might arise under the proviso to Clause 1. It was pointed out that there are occasions in which it is necessary at the confinement of a woman, in order to save her life, that the child about to come into the world should be destroyed. It must be very rare, I fancy, that that should be done in good faith, but it was stated that it might arise and that a third person might be indicted, though having acted in good faith. That was provided against by the words "Provided that," and so on, but it was then pointed out that it might be said that the onus was upon the person, who would be a third person, who had destroyed the child, to prove that he acted in good faith for the purpose of saving the life of the mother.

Therefore I desire to move three Amendments which would result in the onus being put upon the prosecution, so that it would be necessary for the prosecution from the start to prove—or else there would be no case to go to a jury—that the person who was accused of destroying the child had not done so honestly and in good faith. In order to make that change it is necessary to pass these three Amendments, which are on the Paper, so as to make the proviso read thus:— Provided that no person shall be guilty of an offence under this section unless it is proved that the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother. I beg to move the first of my Amendments, to leave out "convicted" and insert "guilty."

Amendment moved— Clause 1, page 1, line 14, leave out ("convicted") and insert ("guilty").—(Lord Darling.)

LORD PARMOOR

My Lords, I am very glad that the noble Lord proposes these Amendments, which make the point quite clear, as I think it ought to be made clear, that the onus of proof is on the prosecution.

EARL RUSSELL

My Lords, I thought the noble and learned Lord on the Woolsack was going to say a word because he indicated that he would require to be satisfied. If he is satisfied with these words I am entirely satisfied.

THE LORD CHANCELLOR (LORD HAILSHAM)

My Lords, this Amendment was really produced by the noble Lord, Lord Darling, partly after seeing me, in order to make it quite clear that the burden of proof had been shifted. I think it does shift the onus, as was indicated also by the noble Lord the Leader of the Opposition and the noble Earl.

On Question, Amendment agreed to.

LORD DARLING

My Lords, there are now two consequential Amendments, which I beg to move.

Amendments moved— Page 1, line 15, leave out ("if") and insert ("unless"). Page 1, line 16, after ("was") insert ("not").—(Lord Darling.)

On Question, Amendments agreed to.

Bill passed, and sent to the Commons.