Gore (Deceased), R v

Section 1(1) of the Infanticide Act 1938 creates a distinct, lower-grade offence. A conviction does not require proof of all the ingredients of murder, including an intention to kill or cause grievous bodily harm. The required mental element is that the mother caused the child’s death by a wilful act or omission, together with the statutory disturbance of mind.

An indictment following the statutory language is sufficient. A guilty plea will ordinarily be treated as an acknowledgement of every ingredient of the offence. A conviction following a voluntary, informed and unequivocal guilty plea will be unsafe only in rare circumstances.

The appellant pleaded guilty at Preston Crown Court in 1996 to infanticide after her newborn child died following an unattended birth. She was sentenced to a three-year probation order with psychiatric treatment. She did not appeal during her lifetime and died in 2003.

Following a review of child-homicide convictions, the Criminal Cases Review Commission referred the case. The appellant’s parents were granted leave to pursue the appeal on her behalf. The reference raised the construction of section 1(1) of the Infanticide Act 1938, the adequacy of the indictment, the effect of psychiatric evidence, causation, and the safety of a conviction founded on the guilty plea.

1. Appeal dismissed. The conviction was safe.

2. Section 1(1) of the Infanticide Act 1938 creates an offence wider than conduct which would otherwise amount to murder. The prosecution need not prove an intention to kill or cause really serious bodily harm. The mens rea is supplied by the requirement that the mother caused the death by a wilful act or omission, alongside the statutory disturbance of mind arising from childbirth or lactation.

3. The phrase concerning circumstances in which the offence would, but for the Act, have amounted to murder is not an additional condition requiring proof of murder mens rea. It operates despite that possibility. The construction advanced for the appellant would make the separate offence under section 1(1) unduly narrow and would deprive section 1(2) of effective work as a partial defence and alternative verdict.

4. The particulars of the indictment followed the offence-creating provision and were adequate. They did not need expressly to allege an intention to kill or cause grievous bodily harm. In any event, the appellant had repeatedly chosen to plead guilty after legal advice, and no prejudice from the alleged drafting defect was established. Any curable defect could have been amended.

5. The evidence supported the inference that the child was born alive and died because the appellant wilfully failed to obtain attention. The later psychiatric evidence did not undermine the conclusion that she was fit to plead, understood the charge and made an informed, unequivocal plea. Such a plea acknowledged every ingredient of infanticide, and the exceptional circumstances required to render it unsafe were absent.

• Court of Appeal (Criminal Division) — following a Criminal Cases Review Commission reference, dismissed the appeal and upheld the conviction: [2007] EWCA Crim 2789.
• Crown Court at Preston — the appellant pleaded guilty to infanticide in 1996 and received a three-year probation order with psychiatric treatment. She did not appeal during her lifetime.