The Journal of Criminal Law

It is widely accepted that the purpose of the Infanticide Act 1938 is to offer mercy for women who kill their infants while ‘the balance of her mind was disturbed’ due to birth/lactation. However, to date there is limited judicial interpretation of the statute and debate continues as to whether the disturbance of mind must be based on medical evidence of a bio-psychiatric illness. Recent cases indicate women are now finding it difficult to make use of infanticide, especially where the victim is newborn, thus clarification on the meaning of this law is urgently needed. Drawing on statutory interpretation and supported by in-depth historical analysis of the law and Parliament's intent, we argue that the Infanticide Act can and should be interpreted to include social factors that lead women to fatally harm their infants in early motherhood, and should not require a mental disorder diagnosis. In this regard, we highlight the need for a gender-sensitive approach to statutory interpretation which takes account of the history and context of this crime, and lived realities of women who kill their babies. Such an interpretation not only provides just outcomes in these cases, but also re-establishes the purpose of the legislation and clarifies interpretation. In applying the rules of statutory interpretation, we identify the significant role of the socio-historical context of legislation, particularly for older statutes that are rarely used. The article finishes with a brief exploration of the potential for statutory reform.

Over the past four decades, criminal procedural systems in England and Wales and the Netherlands have undergone significant transformations that have reshaped the role of the defence lawyer. In England and Wales, a once staunchly adversarial model—anchored by the Police and Criminal Evidence Act 1984—has seen due process norms gradually subordinated to managerial imperatives of efficiency and economy. Key reforms, including amendments to the right to silence, the introduction of the defence case statement under the Criminal Procedure and Investigations Act 1996, and the establishment of the Criminal Procedure Rules 2003, have imposed new disclosure and case-management duties on defence practitioners, often without a commensurate expansion of their powers or resources. The advent of pre-charge engagement further frontloads defence involvement, yet remains underutilised amid systemic backlogs.

Conversely, the Dutch inquisitorial framework has incrementally adopted adversarial elements—driven by European human-rights directives and Strasbourg jurisprudence—to bolster suspects’ procedural safeguards. From the acceptance of pre-interrogation legal assistance following Salduz (Salduz v Turkey, App No 36391/02, ECHR 1542, (2009), 49 EHRR) to ongoing reforms in the Code of Criminal Procedure, Dutch defence lawyers now confront greater obligations to articulate investigative requests early, even as judges and prosecutors cede parts of their traditional oversight in favour of streamlined, preliminary inquiries. Simultaneously, managerial pressures in the Netherlands mirror those in England and Wales, with output-oriented funding and rising workloads challenging the effective exercise of enhanced defence rights.

This comparative analysis reveals a convergence: both jurisdictions prioritize efficiency, often at the expense of fair-trial guarantees. While English defence advocacy risks erosion under managerialism, Dutch lawyers shoulder expanded adversarial responsibilities without always having adequate infrastructural support. As each system rebalances its checks and balances, the enduring question is whether these ‘shifting systems’ ultimately advance justice or merely recalibrate the procedural burdens borne by those who defend the accused.

Transferred malice is a staple feature of English substantive criminal law. Mostly, the cases deal with transferred intent. However, there is an opinion in the academic literature which argues that the rule can also be applied to recklessness as a lesser form of mens rea in cases where another risk than that primarily foreseen by the offender materialises. The comment argues that this view has no grounding in historical case law, that in practice a transfer will rarely ever be needed in recklessness scenarios, and that an application to cases where the secondary risk was unforeseeable would not be in line with standard thresholds of criminalising behaviour.