INFANTICIDE BILL. [H.L.] (Hansard, 21 June 1928)

§ LORD DARLING
My Lords, in asking your Lordships to accord a Second Reading to this Bill, I should like to explain very shortly what is the defect in the law which it is designed to remedy and how it comes about that I make this proposal. Last week, in charging the Grand Jury at Liverpool Assizes, Mr. Justice 617 Talbot called attention to this matter in these words:— The law upon the matter is unsatisfactory and it is right that every appropriate opportunity should be taken to call public 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. Your Lordships will realise at once what a grave defect this is. To attempt to procure that the child shall not come into the world at all is a most serious offence, punishable with penal servitude. Indictments are quite common and I myself have tried many of them for procuring abortion or attempting to procure abortion. But so far as one can see there has always been this gap in the law of England, that to kill the child in the act of delivery of the woman before the child has acquired an existence separate from its mother was no offence at all, although—and this is very curious—it is stated by Sir Edward Coke that if any one, whilst the child was being born, inflicted upon it an injury and, after that injury, it was fully born and existed as a separate creature from its mother, then the person may be punished for the crime of having inflicted upon a creature who at the time when the injury was inflicted, was not within the law, an injury from which the child died after it come fully into existence.
That was the opinion of Sir Edward Coke, and is stated with his authority, but it was disputed by Lord Hale, who relied upon a statement in Bracton and was of opinion that the law was to a contrary effect. This cannot now be maintained because, in consequence of a case decided a few years ago in the Court of Criminal Appeal, it becomes plain that the view taken by Sir Edward Coke was a true one. But there still remains the hiatus that I explained just now, that if the injury be inflicted upon the creature in the course of birth, and it dies before it has acquired a separate existence, no crime is committed under the law of England, although the person who did it might long have meditated upon it and might have taken every possible means to secure what the common people would call child-murder. No offence at all is committed and no punishment can follow. This was ex- 618 plained in the words that I have just read from the charge to the Grand Jury of Mr. Justice Talbot. He went on to say—and I think I may as well read it, because his words could hardly be improved upon— The legal description of what is meant by fully complete birth is that it must be proved that the entire child has actually been born into the world in a living state. The fact that it has breathed is not conclusive proof of that. There must be an independent circulation in the child before it can be counted alive. The result of the law is that a fully born child in many cases can be destroyed with impunity, and I do not think it very creditable to our Legislature that the defect in the law should have been left unremedied. That is my excuse for introducing this Bill to your Lordships.
But this is not the first attempt that has been made to cure this defect in the law. As long ago as 1879 a Committee sat under the presidency, I think, of Sir James Fitzjames Stephens, and upon that Committee were many great criminal lawyers. I believe I am not wrong in saying that Lord Blackburn was a member of it. They were told to codify the Criminal Law of England, and they drew up a code, and in it they included a clause which dealt with this very defect in the law which this Bill is designed to remedy. As your Lordships know, the law of England never has been codified, and I am very glad myself that it has not. We are in a much better position under the law of England than countries which rely upon a code, in my opinion, and the law is more easily and better administered by our Judges than it would be if they had to read paragraphs and subparagraphs, as they do, I believe, in countries where the law is codified. Therefore that code was never passed into law, but there was this defect noticed by those eminent lawyers, and it would have been remedied if their proposal had become the law of England. But that is not the only attempt. Exactly twenty years ago a Bill was introduced into the House of Commons by Lord Robert Cecil, who is now a member of your Lordships' House. It was read a second time, and then was referred to a Standing Committee of the House of Commons. It passed through the Standing Committee, and I have read it, and I am bound to say that it is, 619 as you might expect, a very much better Bill than the Bill which I now ask your Lordships to read a second time, because this is a very difficult subject to deal with, and the Amendments which were proposed in Standing Committee and were adopted made that Bill a vast improvement on the Bill which I have now introduced. I did not know that when my Bill was drawn up, or it would not have been in precisely the shape in which it comes before your Lordships.
As I have said, Lord Robert Cecil's Bill came through Standing Committee, and on December 9, 1908, Lord Robert Cecil asked the Prime Minister if he could allow it to be treated as a non-contentious Bill, and facilities given to it by the Government. It that had been done it would have become law almost twenty years ago. Mr. Asquith, then Prime Minister, however, said that it was a very admirable Bill, but he could not say that it came within the description of a non-contentious measure, and so facilities could not be given to it. Therefore the Bill lapsed through causes which I dare say your Lordships will appreciate. Twenty years later a Judge of Assize has again to complain of this defect in the law. Mr. Justice Talbot has done it, and it is in order that this may no longer be a reproach to our legal system that I would ask your Lordships to accord a Second Reading to this Bill. I would like to add that, should you do so, I will then propose that the Bill be referred to a Select Committee of this House, and it will then be possible for it to be considered, word by word, most carefully by those who have had long experience in administering the Criminal Law of this country. I beg to move.

§ LORD PHILLIMORE
My Lords, I think this House is very much indebted to the noble and learned Lord for bringing this matter to its attention. I can well conceive that it is desirable to cover the gap between the offence of procuring abortion and the offence of killing a fully-born child with separate existence. That that gap has hitherto been uncovered is a misfortune. I agree with the noble and learned Lord that probably his particular measure will require further consideration, and that very 620 likely the measure that was in the House of Commons may afford, at any rate, useful advice to the Committee in finally shaping this Bill. I cordially support the proposal that the Bill be read a second time.

§ THE LORD CHANCELLOR
My Lords, I think that most of your Lordships agree with the view just expressed by my noble friend Lord Phillimore, that we are indebted to the noble and learned Lord who has brought this matter to the attention of this House. That this gap in the Criminal Law has existed has been known to lawyers for a great many years, and the only criticism which I venture to make upon the charge of Mr. Justice Talbot, which has been read to your Lordships, is this, that I doubt whether it is true to say that there are many cases in which this offence, or what ought to be an offence, has happened, and has happened without punishment. But obviously it is a gap which ought to be closed. On the other hand there are one or two considerations which come to my mind. First of all I think it is important that if we are to make an amendment in the Criminal Law we should be very careful to ensure that there is not to be overlapping in the Bill to which Lord Darling has referred and the provisions of the Act with regard to infanticide. We should be very careful to provide that a person charged with one offence should not get off because that person was only guilty of the other offence, and so it would be possible to ring the changes between various Acts.
Then further, in looking at the Bill now before your Lordships, I observe that it is made an offence wilfully to kill a child in the act of birth. I believe it to be a fact that there are cases in which a doctor has to choose between losing the life of the mother and wilfully destroying the life of the child which is being born. Obviously such a state of affairs, if it exists, must be safeguarded and protected by legislation. I am not sure that that matter is covered by the Bill as drawn. That is a question which will require consideration. It seems to me in these circumstances that while it is eminently desirable that this matter should be dealt with, and that therefore this Bill should be given a Second Reading, it is also important before the Bill 621 becomes crystalised into an Act of Parliament that it should be very carefully considered and if necessary amended, by members of your Lordships' House who are familiar with the administration of the Criminal Law. I am very glad, therefore, that my noble and learned friend Lord Darling has intimated that in the event of a Second Reading being accorded to the Bill, he will in due course move that it be referred to a Select Committee, which I understand from him is likely to consist of members of this House who have practical experience of the Criminal Law, and will so be in a position to ensure, first of all, that the gap is adequately closed and, secondly, that when closing it we do not do injustice in any other directions. With these observations I beg to support the Motion of my noble and learned friend Lord Darling.

§ LORD DARLING
My Lords, I only desire to say upon the second point to which the Lord Chancellor called attention, that I realise that there is some anxiety on the part of those who may have to assist women in the course of their accouchement lest they should be in the dilemma which the Lord Chancellor has mentioned and be obliged, in order that two lives may not be sacrificed, intentionally to sacrifice that of the child. I would add that in Lord Robert Cecil's Bill as it emerged from the Standing Committee that case was provided for by a clause in the Bill. If that Bill had become law there need have been no kind of anxiety on the part of the medical profession or midwives and, of course, I shall myself do all that I can to see that the Select Committee, if your Lordships will let this Bill go to a Select Committee, include that protection in this Bill before it is passed.

§ LORD DARLING
My Lords, I beg to move that this Bill be referred to a Select Committee of this House.