Infanticide

Section 1 of the Infanticide Act 1938 sets out the offence in a single, dense provision: it applies "where a woman by any wilful act or omission causes the death of her child being a child under the age of twelve months", and the mental element is 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" (the Act also extends to disturbance caused by lactation). Where those conditions are met and the circumstances would otherwise have amounted to murder or manslaughter, the Act provides that "she shall be guilty of felony, to wit of infanticide", to be dealt with and punished as if the offence had been manslaughter. CPS guidance summarises the effect in modern terms: a woman meeting the statutory criteria "may be guilty of infanticide and fall to be sentenced for manslaughter rather than murder: section 1 Infanticide Act 1938."

Infanticide operates in two distinct ways, reflecting its dual character as both a standalone offence with which a defendant can be directly charged, and a partial defence a jury can return in place of a murder or manslaughter verdict. CPS guidance notes that the offence "can be charged even where the elements of murder are not made out", since its own criteria are wider than an intention to kill or cause grievous bodily harm - for example capturing certain reckless or negligent killings by a mother in the qualifying period that would not independently satisfy the mens rea for murder. Because manslaughter is the notional 'ceiling' penalty rather than the mandatory life sentence for murder, infanticide gives the court broader sentencing discretion appropriate to cases where the killing is closely bound up with the physiological and psychological aftermath of childbirth, rather than calculated harm.