Infanticide Act 1938
|Long title||An Act to repeal and re-enact with modifications the provisions of the Infanticide Act 1922.|
|Citation||1 & 2 Geo 6 c 36|
|Territorial extent||England and Wales|
|Royal Assent||23 June 1938|
|Commencement||23 June 1938|
|Text of statute as originally enacted|
|Revised text of statute as amended|
Section 1 - Offence of infanticide
Sections 1(1) to (3) now read:
(1) Where a woman by any wilful act or omission causes the death of her child being a child under the age of twelve months, but at the time of the act or omission the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child or by reason of the effect of lactation consequent upon the birth of the child, then, [if] the circumstances were such that but for this Act the offence would have amounted to murder [or manslaughter], she shall be guilty 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 the child.
(2) Where upon the trial of a woman for the murder of her child, being a child under the age of twelve months, the jury are of opinion that she by any wilful act or omission caused its death, but that at the time of the act or omission the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child or by reason of the effect of lactation consequent upon the birth of the child, then the jury may, [if] the circumstances were such that but for the provisions of this Act they might have returned a verdict of murder [or manslaughter], return in lieu thereof a verdict of infanticide.
(3) Nothing in this Act shall affect the power of the jury upon an indictment for the murder of a child to return a verdict of manslaughter, or a verdict of guilty but insane, . . .
The word "if" was substituted for the words "notwithstanding that" in sections 1(1) and (2) by sections 57(2)(a) and (3)(a) of the Coroners and Justice Act 2009. The words "or manslaughter" were inserted in sections 1(1) and (2) by sections 57(2)(a) and (3)(a) of that Act.
The words at the end of section 1(3) were repealed by Part III of Schedule 3 to the Criminal Law Act 1967. Section 1(4) was also repealed by that Part.
In R v Gore, the Court of Appeal held that this expression meant "even if".
Restriction on institution of proceedings
Proceedings against a person for infanticide, if the injury alleged to have caused the death was sustained more than three years before the death occurred, or the person has previously been convicted of an offence committed in circumstances alleged to be connected with the death, may only be instituted by or with the consent of the Attorney General.
Where on the trial of any person for infanticide the jury are of the opinion that the person charged is not guilty of infanticide, but that he is shown by the evidence to be guilty of child destruction, the jury may find him guilty of that offence.
Mode of trial
Section 2 - Short title, extent and repeal
Section 2(2) provides that the Act does not extend to Scotland or Northern Ireland.
- The citation of this Act by this short title is authorised by section 2(1) of this Act.
- The Infanticide Act 1938, section 2(2).
- This Act came into force at royal assent because no other date was specified: The Acts of Parliament (Commencement) Act 1793
- R v Gore  EWCA Crim 2789
- The Law Reform (Year and a Day Rule) Act 1996, sections 2(1) and 2(2) and 2(3)(a)
- The Infant Life (Preservation) Act 1929, section 2(2)
- Archbold Criminal Pleading, Evidence and Practice. 1999. Paragraph 19-139 at page 1598.
- Archbold Criminal Pleading, Evidence and Practice. 1999. Paragraph 19-141 at page 1598.
- The Infanticide Act 1938, as amended from the National Archives.
- The Infanticide Act 1938, as originally enacted from the National Archives.