HL Deb 22 November 1928 vol 72 cc269-79

Order of the Day for the Second Reading read.


My Lords, in asking you to accord a Second Reading to this Bill, I think I need say but few words to commend it to your Lordships. First of all, I desire not to postpone in any way the Motion which the noble Earl opposite wishes to bring on, and, secondly, I think it is necessary to say very little because your Lordships passed this Bill through all its stages last Session. I think it, did not become law because there was some little misapprehension in another place as to what it was intended to do. Members there possibly did not read it, and it had a most unfortunate title, of which I was not the author: it was called the Child Destruction Bill. It really is a Bill designed to prevent children being destroyed at birth. I gave it a different title, but the Parliamentary draftsman gave it that one, and naturally enough in the House of Commons, as the member in charge there told me, there was an idea that it had something to do with a method for getting rid of the redundant population, and therefore it did not obtain support.

The reason for the Bill is this. It was brought to my notice by one of His Majesty's Judges that there were a good many cases, far more than I should have thought likely, in which no punishment could be awarded to a person who had done a very cruel and wicked thing in the killing—I say killing because it is difficult to find another word—the killing of a child in these circumstances. If the child has been fully born, and has had an existence separate from its mother, not depending in any way on its mother's existence, if you kill it, however young it may be, it is murder. But if it has not yet acquired an absolutely separate existence, with a circulation and a life of its own, then it may be killed by any one and it is no offence at law at all. It does not come under the Acts which prohibit the procuring of abortion because it has gone beyond the stage to which those Acts apply. It is an old, old question, and there is no doubt, I think, that our law requires to have this gap, as it has been called, filled. I need say no more than this, that earlier in the year, when this Bill was read a second time, it was referred to a Select Committee, and it comes before your Lordships now in the form in which it left that Select Committee. I could give the names of the members of the Committee, but I do not think it is necessary. The Committee gave very careful consideration to the Bill and as it now stands the wording is not mine but theirs. That the injustice which is now possible must be remedied I think your Lordships will agree, if I read only this passage from the speech made on the Second Reading of the Bill by the noble and learned Lord on the Woolsack. He said, "Obviously, it is a gap which ought to be closed." Therefore, I beg to move that the Bill be now read a second time.

Moved, That the Bill be now read 2a.—(Lord Darling.)


My Lords, I should like to put before your Lordships some considerations why I think this Bill in its present form is not a satisfactory piece of legislation. The gap in the Criminal Law which has been mentioned by the noble and learned Lord undoubtedly exists, and has been recognised to exist by many generations of Judges. As the noble and learned Lord has explained, the gap is that, whereas the mother of a child who kills it after it has a separate existence is guilty of what was the crime of murder and is now the lesser offence of infanticide, yet, if she kills the child in the actual course of delivery or within such a short time afterwards that it has not had and cannot be proved to have had a separate existence, it is not an offence. To the logical mind of the criminal reformer, I think, it cannot be said that that is not a wrongful act and that it might not properly be made an offence. But the practical effect of making it an offence would, in my experience, be very small indeed. Your Lordships will appreciate the circumstances of a trial for infanticide in which the accused is a girl, who is nearly always an unmarried girl and, as happens in nearly every case, has given birth to a child for the first time. If you appreciate the circumstances under which, after a period of months of mental care, anxiety and shame, she is suddenly brought into labour with all the pangs of an unattended, uncared-for and, possibly, difficult labour in the case of a first delivery, you may very well understand that it is very difficult to persuade a jury that the acts of a woman in those circumstances are acts for which she ought to be held criminally responsible. It has been difficult enough in the past under the existing law to get convictions for infanticide. But when the girl is charged with an act done in the very course of delivery I venture to think it will be still more difficult.

That, of course, does not prevent the logical mind of a criminal reformer from saying that an act which clearly is wrong may be tried. My own view is that not a single child life will be spared by this new provision. But that is really not the reason why I got up to complain of this Bill. There is to my mind, with great respect, a very grievous social defect in it. It applies not merely to the mother but to third persons, and it applies to third persons who by a wilful act, intending to destroy the life of a child, do in fact cause its death. That applies to doctors and midwives, to doctors in particular, and it raises the momentous question as to what is the position of a doctor when he has to consider during delivery whether or not it is necessary to save the life of the mother or the life of the child. It will be seen that the scheme of the Bill is that such a doctor commits a criminal offence unless he proves, the onus being upon him, that he acted in good faith and that it was necessary to take the action he took in order to save the life of the mother. I submit to your Lordships that that would be an intolerable burden to throw upon the medical profession.

For my part I am very much opposed to the practice in legislation of creating crimes and throwing the onus upon any- one of proving that he is innocent. I think that is a course of legislation which has been adopted far too freely, but never in such a serious case as this, where the maximum penalty is penal servitude for life. It appears to me that doctors have been harried quite enough by litigation and to add this burden to the cares of an ordinary practitioner is perfectly horrible. It is quite impossible. I submit to your Lordships that the onus already put upon him is bad enough; and it would be all the greater if the doctor who may have to consider this momentous question has to bear in his mind the question whether or not he may be charged by a disappointed parent or by a malicious or mischief-making attendant with this particular offence, when he would have to justify to a jury the question whether or not it was in fact necessary to lose the life of a child. It is for these reasons that I think this Bill has gone very much further than was necessary.

In so far as it purports to make the matter criminal I cannot object to it in principle, though I do not think it will serve any particularly useful purpose; but in so far as it extends the offence to the killing of that which is called a child either in the course of delivery or while still in the body of the mother, I venture to think very serious difficulties will arise. In so far as it deals with the offence of killing a child, the provision as to twenty-eight weeks after conception seems to be quite unnecessary, because such an act as that would, as I am advised and as I understand, always be covered by the law as to procuring abortion. It is impossible in practice to kill the unborn child while still in the body of a mother without in fact procuring, and intending to procure, a miscarriage. For those reasons while the Bill remains in its present form, in the interest of professional men, who, I think, specially require to be protected by your Lordships' House, I venture to say that it is objectionable and ought not to be passed.


My Lords, I would like to associate myself with the arguments of the noble and learned Lord who has just spoken. We are bound to admit on the authority of the noble Lord opposite that there is a gap in the law, and for purposes of symmetry I conceive that there is an argument for filling that gap, but, if one passes from the law to human considerations, I would suggest to your Lordships that it is a gap which you should not be too anxious to fill. The majority of these cases of infanticide to which this Bill refers are cases, as the noble and learned Lord has said, of unmarried mothers who have suffered for months under the stress of anxiety, culminating very often in difficult labour, when they cannot be held to be wholly responsible as ordinary mortals for their actions, and for my part I think it is a very good thing if, in many of these cases, the law turns a blind eye to an offence of that character. Indeed, I think, if one reads the proceedings of the Law Courts, one can detect that the learned Judge trying the case is almost seeking for an opportunity to evade the conviction of these poor girls for felony, which would mark them for the rest of their lives. In many instances what they want is not legal conviction but rather the hand of understanding and fellowship which would help them along the road again.

For my part the fact that there is a gap in the law leaves me cold, when I feel all the time that this class do not require conviction and it is a pity almost if they are convicted. As far as my experience goes, it cannot honestly be said that they are fully responsible for their actions at the time. If I put myself in the position of a professional man who had knowledge of an act of this kind taking place, I have no hesitation in saying, if I satisfied myself that the act had been performed under the stress of impulse and anxiety, I should consider it no part of my duty to divulge the fact to the powers that be; in fact, I should regard it as a matter, in many instances, if it were done impulsively, as to which it was my duty to extend the advantages of professional privilege.

Passing now to what intimately concerns the profession to which I belong, I would point out to your Lordships the hardship that is inflicted on men and midwives who are called upon to do their duty under considerable difficulties. This Bill throws upon them the onus of proving what may be their duty. They have to prove that they are not committing a crime. Apart from its injustice, it would go far to inhibit them and discourage them from doing their work without let or hindrance, and, from the point of view of fairness and justice to the doctor and from the point of view of the interests of the community, I would emphatically urge your Lordships to reject a Bill which throws the onus of disproving a crime upon one of the servants of the State. For those reasons I hope your Lordships will not give this Bill a Second Reading.


My Lords, may I say a word first on the strictly legal aspect of this measure. The measures of the noble and learned Lord opposite have this in common. I have noticed sometimes that, although they all deal with matters which we deprecate and which we should like to see cured, they always present a great deal of difficulty in obtaining the necessary evidence and the necessary proof. I would remind your Lordships and the noble Lord of a Bill, which he will remember very well, dealing with misconduct at auctions. I think we all felt that there was a mischief to be cured. I happened to be on the Select Committee which considered it, but we then felt that the proof of the matter would be very difficult. It is rather the same in this case. I am ashamed to say that I have not read the proceedings of the Select Committee and I do not know exactly what evidence was given, but your Lordships have heard what has already been said, that the majority of these cases are cases where a woman in a state of collapse and very great physical discomfort, to put it at its lowest, hardly responsible for her actions, does something which results in the death of the child when no one else is present. What reasonable proof can you give that will convince a jury that she feloniously and wickedly killed that child?

Then, if I may turn for a moment to the human aspect which has been dealt with by two noble Lords, do not your Lordships think that a jury will be inclined to say that in the mental and physical state in which a woman is at that moment she probably hardly knows what she is doing? One often has evidence that she becomes unconscious for half an hour, or something of that sort, and really does not know what passes. If this were a crime which could be stopped by this Bill, and if it were a conscious crime which penalties would deter, I think there would be a great deal more to be said for this Bill going forward, but if it does go forward I cannot help feeling that it would still be advantageous to refer it again to the Select Committee to consider carefully all the circumstances, and particularly safeguards. To throw upon doctors and midwives the onus of proving that they are innocent is a very serious thing, and a most undesirable thing. I do not know whether the actual words of the Bill go as far as that, but they do look rather like it and that is an undesirable form of legislation. We have always taken the view in this country that it is for the prosecution to show the guilty mind and act of the prisoner, not for the person charged to show that he is innocent. I hope that even if your Lordships read this Bill a second time to-day, the noble and learned Lord in charge of it, in deference to what has been said, will allow it to be further considered in its details by a Select Committee before it goes further.


My Lords, perhaps as this matter is eminently one of legal and criminal procedure, your Lordships would like to hear a few words from myself as to the attitude which the Government take up with regard to it. The first question, I think, which one asks oneself is whether or not there is, in fact, a gap in the Criminal Law which this Bill is calculated to close. In regard to that, perhaps it is convenient that I should remind your Lordships of the genesis of the Bill in its earlier and less desirable form. It came before your Lordships' House originally in the summer of this year, and it came before your Lordships' House largely because of a charge to a Grand Jury by a learned Judge of great experience, Mr. Justice Talbot. In his charge to the Grand Jury he said this: 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. The learned Judge went on to point out what was necessary for complete birth; that it was not enough to prove that the child had breathed, but that you had also to prove that there had been an independent circulation in the child before it could be counted alive. He finished by saying:— 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. I confess that I also share the view that it is not very desirable that that defect in the law should be left un-remedied.

When the Bill came before your Lordships' House in the summer I ventured to point out that I doubted whether the cases were quite as frequent as the learned Judge seemed to think, but that there is at present a position under which a child fully born can be killed with impunity either by its mother, or by any third person, unless it can be proved that it had an independent circulation, does not seem to be a very satisfactory state in which to leave our Criminal Law. Assuming that there is a gap, then comes the question of whether this Bill satisfactorily closes it. It has been pointed out that there are two classes of persons, broadly speaking, with regard to whom this Bill may be called into operation. First of all there is the mother of the child herself. Some of your Lordships have said that when an unmarried mother in the pangs of childbirth kills her child she is very often largely irresponsible and hardly conscious of what she is doing. I do not think any one of your Lordships would be disposed to dispute that proposition, but it applies not merely when she kills the child while it is in the act of being born, or before it has an independent circulation, it also applies when she kills the child almost immediately after its birth, which is the common case of infanticide and which has been recognised as a crime by our law.

No doubt it is true that when a crime of that kind is committed the circumstances under which it has been committed are matters properly to be taken into account and under our modern system of Criminal Law are, I think, invariably taken into account in considering what steps shall be taken to- wards the unfortunate woman. In many cases the Courts have taken the view that in such a case it is not right that she should suffer any punishment, but that some probation system should be brought into play under which she can be taken care of and shepherded into wiser and better ways. That, of course, would equally be the case under this Bill should it become law. I do not suppose anybody contemplates that in a case of that kind any punishment would be inflicted on the mother if she killed the child before it was fully born, any more than in the case of a child fully born where the circumstances were such as have been described, and where, in the interests of the mother herself, it was probably desirable that there should be some power to put her under the care of a sympathetic probation officer, rather than leave her without such assistance.

Then comes the other class of persons, the doctor and the midwife. With regard to that, I agree that it is most important that the position of such professional persons should be safeguarded. Those of your Lordships who remember the Bill in its original form will remember that the attention of the House was called to the very point to which my noble and learned friend Lord Atkin and my noble friend Lord Dawson of Penn have called attention this afternoon—namely, that, the position of a doctor in such circumstances as they have described had to he protected. It was partly on that account that the Bill was sent to a Select Committee of your Lordships' House, which, incidentally, I see contained among its members my noble friend Lord Dawson of Penn. Whether or not the exact phraseology of the Bill as it stands is sufficient to safeguard that position is no doubt a matter which may well be carefully considered, and, as the noble Earl who has just spoken suggested, may be considered either by a Select Committee or by your Lordships' House in Committee, whichever may be more convenient.

I am not sure that I quite agree with rev noble and learned friend Lord Atkin, when he said the burden is put upon the doctor of proving the necessity of taking life in order that he may escape from responsibility. What he has to prove is that he acted in good faith for the purpose of preserving the life of the mother, and, although in fact he was mistaken in thinking that it was necessary for that purpose to kill the child, as I read the Bill he would not be under any liability so long as he acted in the honest belief that the necessity existed. But that is a matter of phraseology and eminently a Committee point. It is obviously a point which ought to be made clear if there is any doubt, about it, and, since my noble and learned friend Lord Atkin takes that point, there is obviously a doubt about it and it ought to be made clear. I do not think, however, that that is a reason for rejecting the Second Reading altogether, and leaving the gap unclosed, especially now that attention has been called to it not only by debate in this House but by the charge of the learned Judge to which I have called attention.

In those circumstances, if I might venture to give advice to your Lordships' House, I would suggest, that it would be a reasonable thing to allow the Bill to have a Second Reading and then to consider it, either in Committee in this House or, if your Lordships think it better, as the noble Earl suggested, by another Select Committee, so that the Bill may be carefully examined in order to make sure that it does not go further than is necessary to close the gap and does not impose upon any third parties any risk of being convicted for acts done in good faith. I quite agree that it is most important in passing Legislation of this kind that we should not go to the opposite extreme and, in attempting to remedy an injustice, create another wrong. I think it is important to make sure that the wording of the Bill is right and not wider than is necessary for the purposes which are indicated, and I still feel that, since the existence of this gap in our Criminal Law has been recognised by Judges now for many years past, and since it is one to which public attention has been drawn, it is right that an effort should be made by the Legislature to close it.


My Lords, I shall be quite content, as I suppose my noble friend Lord Dawson of Penn will be content, not to divide the House on this matter, being satisfied that this Bill should be considered in Committee. One would then be in a position to form an opinion whether the Bill in its ultimate form does meet the position which is felt to exist at the present moment.

On Question, Bill read 2ª, and committed to a Committee of the Whole House.