R v Tunstill  EWCA Crim 1696
Infanticide wrongly withdrawn from jury "This was a case where the child was killed soon after birth so that this case can be distinguished from the situation where mental ill health, usually post-partum psychosis, develops over a period of time. Nonetheless, there was evidence from Dr Bashir and Dr Khisty which showed that notwithstanding the existence of the appellant's pre-birth mental disorder, the effects of giving birth had led to a further condition, characterised by Dr Bashir as an acute stress reaction which was a causative factor in disturbing the balance of the appellant's mind. The issue of causation is a matter of fact for a jury after appropriate direction from a judge as to what can constitute a legally effective cause. For the reasons given, we consider that the effects of birth are not required by s.1(1) to be the sole cause of a disturbance of balance of the mind. In the circumstances, we are persuaded that the judge should not have withdrawn infanticide from the jury. There was evidence fit for the jury's consideration. It is not for this court to assess the likelihood of its success. Dr Barlow's evidence was to the contrary, but the issue for us is whether a jury should have had this alternative option to consider. We think it should have had that opportunity. In the circumstances, therefore, the conviction for murder is unsafe and the verdict is quashed. In our judgment, the interests of justice require a re-trial and we so order."
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.
Court of Appeal
Regina v Tunstill
2018 July 10; 19
Treacy LJ, Yip J, Judge Marson QC
Crime— Homicide— Infanticide— Defendant suffering mental disorder killing baby soon after giving birth— Judge ruling balance of defendant’s mind disturbed by “other circumstances” namely pre-existing mental disorder exacerbated by circumstances of birth— Judge rejecting infanticide as alternative verdict— Defendant convicted of murder— Whether effects of birth required to be sole cause of disturbance of balance of mind for infanticide verdict— Infanticide Act 1938 (c 36), s 1(1) (as amended by Coroners and Justice Act 2009 (c 25), s 57(2)(a)(b))
The defendant, who was under great stress and suffered from mood problems, gave birth to a baby in the bathroom of her home. Shortly afterwards, she stabbed the baby to death and put her body in the bin. Two days later the defendant attended hospital and told staff she had suffered a miscarriage. When they discovered she had given birth they informed the police. The defendant was charged with murder. She said she had no recollection of killing the victim and claimed that, by reason of a history of mental illness and her state of mind at the time of the killing, she lacked the requisite intention for murder. She raised the partial defence of diminished responsibility. Three consultant forensic psychiatrists gave evidence to the court and agreed that the defendant was fit to plead. They also agreed that the circumstances prior to the alleged offence would have been extremely stressful for the defendant. The two defence psychiatrists gave evidence, respectively, that the defendant was suffering from paranoid schizophrenia and, at the time of the offence, severe depression. The judge ruled that there was evidence capable of supporting a defence of diminished responsibility and left the issue to the jury. He rejected the defence submission that the judge should leave infanticide contrary to section 1(1) of the Infanticide Act 1938 as an alternative verdict for the jury and referred to the limited ambit of the offence. He held that, on the evidence, if the balance of the defendant’s mind was disturbed, it had been disturbed by pre-existing mental disorder and exacerbated by the circumstances of the birth, which amounted to “other circumstances”. Accordingly, there was no proper basis on which to leave a count of infanticide to the jury. The defendant appealed against conviction on the ground that although she had a pre-existing mental disorder, she had been placed in a worse position than a defendant who did not, because the judge had ruled that she could not definitively point to the balance of her mind being disturbed by a failure to recover from childbirth, as opposed to any pre-existing mental health problem.
On the appeal—
Held, appeal allowed. The conditions for demonstrating diminished responsibility and infanticide laid down by statute were in very different terms and included very different approaches to a defendant’s mental state at the relevant time. The focus of section 1(1) of the Infanticide Act 1938 was on whether the balance of the mother’s mind was disturbed as a result of failure to recover fully from the effects of childbirth. There was evidence capable of showing that the balance of the defendant’s mind was, at the time of the killing, disturbed. The evidence of the two psychiatrists relied on by the defendant was to the effect that her pre-existing condition, taken together with the effect of having given birth, was the cause of that disturbance of the balance of her mind. It would seem anomalous that a person who, prior to childbirth, was in a fragile mental state and whose balance of mind was disturbed as a result of a failure to recover from childbirth, should be placed in a different and less favourable position from someone affected solely by the experience of childbirth. To require evidence that the balance of the defendant’s was disturbed by failing to recover from giving birth to the child or the effect of lactation on her, at the exclusion of all “other circumstances”, in a situation such as the present, was unnecessarily harsh and ran counter to the intent of the legislation. The phrase “by reason of” in section 1(1) did not necessarily need to be read as if it said “solely by reason of”. It was enough for the failure to recover from the effects of birth to be an operative or substantial cause of the disturbance of balance of mind, even if other underlying mental problems were part of the overall picture. The words “by reason of” in section 1(1) imported a consideration of causation. The wording of section 1(1) showed that the relevant causation was that the balance of a mother’s mind was disturbed as a result of not having fully recovered from the effect of giving birth to her child. There was no required causal link between the disturbance of balance of mind and the act or omission causing death. The issue of causation was a matter of fact for a jury after an appropriate direction from a judge as to what can constitute a legally effective cause. The effects of birth were not required by section 1(1) of the 1938 Act to be the sole cause of a disturbance of balance of the mind. The judge should not have withdrawn infanticide from the jury and there had been evidence fit for the jury’s consideration. The conviction for murder was unsafe, it would be quashed and a retrial ordered (paras 13, 27, 29, 30, 31, 32, 35, 36).
R v Smith  2 QB 35, CA, R v Kai-Whitewind  2 Cr App R 31, CA and R v Hughes (Michael)!, SC(E) considered.
Simon Kealey QC (assigned by the Registrar of Criminal Appeals) for the defendant.
Louise Blackwell QC (instructed by Crown Prosecution Service, Appeals Unit, Special Crime Division) for the Crown.
Georgina Orde, Barrister