13

My children were now at school but it was well known that I was always disappearing early from the pub after work to take care of them, sometimes even dragging myself away from one of Iain’s spellbinding bar soliloquys, because the nanny was going home and Jen was busy at work. My colleagues got into the habit of saying, whenever a case concerning children came into the office, ‘Dick loves children, give that one to Dick.’ As if there was any similarity between helping a child of my own with reading homework and examining someone else’s dead child. No, the truth was that many people avoided child cases if they could.

It did not take me long to learn why. For there is nothing more likely to bring great joy to the private life of the forensic pathologist as a new baby and nothing so likely to bring great misery to his professional life. Fact: it is quite easy to kill a baby, especially a newborn, without anyone being able to prove it. Fact: sometimes it looks as though someone has killed a baby when the death is entirely natural.

A baby case came in, everyone looked at me and I soon found myself at a mortuary on the edge of London. The deceased was a newborn girl found in a black bin bag washed up at the edge of a lake at a beauty spot. The umbilical cord and placenta were still attached.

My examination told me that the baby had certainly been born at full term. She was fully developed, covered in the waxy vernix of the newborn, weighed over 7lb and seemed to have been entirely healthy with no anatomical abnormalities or diseases that could have caused her to die.

The police explained that the mother had been easily located. She was insisting that the baby had been stillborn. The police doubted her word. They wanted to charge her. In fact, they wanted to charge her not with infanticide but with murder. And so we found ourselves in the middle of a really difficult area of both the law and pathology. No wonder the office had been so pleased to hand me this case.

Infanticide is manslaughter, and so carries a far lighter sentence than murder. It was introduced in 1922 for the prosecution of mothers who killed newborns under thirty-five days old. Back then, killing a baby was not considered such a terrible offence as killing an adult. It was believed that no baby could suffer like an adult victim and no baby would be missed like an adult member of the family. And it was well understood that one possible motive was shame at illegitimacy.

We might discount this thinking today, but one important aspect of the 1922 Act has endured. The law recognized that there could be a ‘disturbance of a mother’s mind which can result from giving birth’, something which today we call postnatal depression – or its even more serious sister, puerperal psychosis. This view was retained by a new Infanticide Act in 1938. From then until now, a mother who kills a baby under twelve months old can be charged with infanticide if it can be shown that ‘the balance of mind is disturbed by the effects of childbirth or lactation’.

The reform of this law has been debated many times. The Royal College of Psychiatrists recently suggested the definition of infanticide should be broadened to recognize that a baby’s birth may have created overwhelming stress, for instance the stress of an extra member of the household where the family is struggling in poverty. Others thought that infanticide was a charge that should equally apply to fathers, and some that it should apply where the victim was under two years old, not one year. Some pointed to a lack of medical evidence to justify the reference to breastfeeding affecting the balance of a mother’s mind.

In fact, after reviewing all these suggestions, amendments have been minimal. But the unchanging law masks changing attitudes, including the recognition that children and babies have rights.

As I examined that baby found at the lakeside, the first question I had to ask myself was not whether this was murder or manslaughter but whether the baby had died at all. Because a baby who has never lived cannot die. Nor be killed. And, in the legal sense, a child in the womb has not lived. Anti-abortionists may disagree, but that is the current practicality of the law. The underlying question for the pathologist in such circumstances is: when is a person not a person? And this is important because a person has rights, legal rights to inheritance or title, and human rights. Kill a person and you can be charged with murder or manslaughter. But not if the person never actually lived.

Under English law, a dead newborn is assumed to have been stillborn. If murder or manslaughter is suspected, it is up to the pathologist for the prosecution to prove that the baby lived long enough to establish a separate existence.

One breath is all it takes. Or a movement. Or a pulsation of the umbilical cord which indicates a heartbeat. And the baby must be completely out of the mother’s body: a baby born head first, as most are, can theoretically take breaths but still die before the rest of the body is free of the mother. In that case, there has been no separate existence and the baby cannot have been killed.

A baby who has died in the womb in the last day or so of the pregnancy will show the early signs of decomposition, and these are distinctive (for instance, the colour of a dead Caucasian child will probably be pinky-brown). If the baby has been dead for a longer period, diagnosis is even easier: the skull may have collapsed and the skull bones might be overlapping, for instance. But if the baby died less than a day before birth or, much more commonly, during the process of birth, there is of course no decomposition.

If there has been resuscitation, mouth-to-mouth or chest compression, the effects can be marked on a tiny body and this can confuse things still further. A final problem is that the bodies of newborn babies who are killed or born dead are, for complex psychological reasons, often concealed. By the time they are found and the pathologist gets to work, it can be impossible to establish the cause of death, let alone whether the baby ever had a separate existence.

This little girl in the bin bag had been found soon enough to prevent decomposition and too late for resuscitation, so her body was unmarked. So now I had to try to establish whether she had actually breathed in this world or not.

I did carry out the centuries-old flotation test knowing that it had really lost credibility – but fearing I would be criticized if I did not. The belief that if the lungs of a dead newborn float then the baby must have breathed and had a separate existence has been proven a myth. A lung that sinks when placed in water does point to the possibility that the baby has been stillborn because it suggests that the baby did not breathe sufficiently to expand the lungs. But the opposite is even less likely to be true: if the lung floats, that does not mean the child must have breathed spontaneously. It is now known that the lungs of many stillborn babies will float, particularly where there are gases due to early decomposition if the baby has died a day or two before birth.

I also examined microscopically the lungs’ tiny air sacs, the alveoli. For what it was worth, the child’s lungs floated. Macroscopic and microscopic appearances did strongly suggest that there had been a period of separate existence.

My next job was to read the statements I had been given and see how they related to the baby I had examined. The key statement came from a barman who lived and worked at the same hotel as the baby’s twenty-one-year-old mother. It began:

When Mandy came to work at the hotel as assistant manager she seemed all right except that I only had to look at her to think she was pregnant. I have two sisters with children and she certainly looked pregnant to me. This was common knowledge among the bar staff but Mandy always denied it.

The staff all stayed in one part of the hotel and the barman’s room was by the fire escape at the back. He woke very early one morning to the sound of a baby crying outside his door. He looked out of his window

… and saw the back of Mandy, maybe fifty yards away, going through the gate towards the woods. It was definitely Mandy. I’m not sure what she was wearing and I couldn’t say whether she was carrying anything. I wondered where she was going. I started to think about it. I thought she might have a problem so I got dressed and decided to go out and join her. I know people in this trade do sometimes get pissed off and just want to talk.

It took me a few minutes to get dressed. I went down the fire escape and out through the gate into the woods. I walked towards the lake and I saw Mandy walking back from the direction of the lake.

She said, ‘What are you doing out here?’

She seemed OK to me as far as I could ascertain. She was fully dressed but for the life of me I can’t say what she was wearing. She basically said she was pissed off with everything and everybody. She didn’t specify. I sat down with her on a seat facing the lake and we just spoke in general about my girlfriend and the band I play with and other things. We talked about the mist rising off the water. I didn’t suspect anything was particularly wrong. She seemed to be her normal self. The only unusual thing she said was, ‘I’ve come on tonight and I’ve had blood clots.’

I never pursued the point but it seemed a funny thing for her to say to me. We must have talked for about forty-five minutes and I never suspected anything. I never thought any more about the baby I’d heard crying.

We went back to the hotel and she came into my room for a cigarette, then she left. I never noticed anything unusual about her at all. I then went back to bed and had a sleep.

Later that day the staff remarked to each other that Mandy looked slimmer. And the next afternoon, there was a commotion. According to the barman’s statement:

I was working in the bar when a woman came in asking for the phone, she had a dog with her. A bit later another member of staff came in, Roger, and he said, ‘The Old Bill are over by the lake, a baby’s been found.’

When he said this I really came over ill. I remembered hearing this baby cry the previous morning and seeing Mandy by the lake and I suddenly thought it all fitted. I didn’t know what to do. I said to Roger, ‘I know who it is.’

He said, ‘Mandy?’

And I said, ‘Yes.’

That is fairly convincing evidence from a witness that the baby had lived, and perhaps lived for a good few minutes if the mother had time to give birth in the hotel toilet (evidence of this was soon found) and then get dressed and walk out of the hotel with her crying baby to dispose of it. And that fitted with the pathological evidence from the lungs that the baby had lived after birth.

But could we say for sure that she had killed her baby – and, if so, how?

This was an upsetting case for everyone, not least because of the cool way the mother had given birth, disposed of her daughter – stillborn or not – and then returned to work that day pretending nothing was wrong. Today she might be regarded as a tragic figure. Thirty years ago, many of those involved in the case saw her as an unnatural, calculating baby-killer. She showed no remorse, saying the baby had been born dead – and she showed no sadness either. The police and Crown Prosecution Service remained adamant that the charge should be murder.

I was very confident from all the evidence that the baby had lived. But then, how had she died? I could not find evidence on the child’s body of violence or trauma and no incontrovertible indication of asphyxiation. A very detailed laboratory analysis of the stomach confirmed the baby had taken in water from the lake, but not enough to indicate drowning: it could have got there passively, by non-sinister means.

I gave as cause of death ‘1a: Lack of care’.

The Crown Prosecution Service pressed ahead with its murder charge but they were dismayed by my findings. They wanted me to say that the mother had taken more active steps to end the child’s life.

On the other hand, my report delighted the defence solicitor, who wrote to the CPS:

We would invite you to consider whether the charge of murder should now be withdrawn, bearing in mind the apparent lack of an alleged act on the part of our client which led to the death of the baby … Your pathologist says that death was caused shortly after birth due to an omission on the part of our client. Clearly a charge of murder would not therefore be appropriate … [indeed] we invite you to consider that a charge of manslaughter [i.e. infanticide] would not succeed as you would not be able to show that the death of the baby was the result of a grossly negligent omission … simple lack of care is not enough [to prove this charge]. Our client told the police how she laid the baby down and rocked it but thought that it was dead.

It is true that the Crown Prosecution Service, for a murder case, had to prove a wilful act of omission: that is, the deliberate failure to provide normal care at birth, such as cutting the cord and keeping the baby warm and fed. It is very hard, in the case of a frightened, inexperienced teenage girl, to prove that not doing these things is wilful. In fact, Mandy was not a teenager and she was not inexperienced, as we were to find out, but, for a while at least, the prosecutors were miserable.

‘I am particularly concerned,’ their letter to me began, ‘regarding the vague nature of your report … I am not medically trained but I have a medical dictionary and these are some of the points which have occurred to me …’

She listed six detailed points about the baby’s death.

Medical dictionaries were the scourge of doctors then – as the internet is now. Sometimes I wonder why I bothered with sixteen years of training when all I needed to do was buy a medical dictionary or learn how to Google. But if a dictionary gave that lawyer a way into my work, then let her consult it: I am only too happy to enlarge on my findings and rarely am given a chance to discuss a case.

In response to these written questions from the CPS, I made a further statement, giving detailed answers to each of her points to show that most of her concerns, like meconium, were routinely found in newborns and none of them meant the baby had necessarily been asphyxiated. I stuck to my view that lack of care had caused the child’s death. Although the mother might have actively killed the child, we – I – couldn’t prove it.

The CPS were not at all satisfied. At a case conference with counsel, I was put under great pressure to step closer to the prosecution’s case than the pathology of the child really allowed. I did not give in. Afterwards, I sent further notes answering points they had raised:

It is not possible to define exactly the passage of time necessary to cause suffocation by blocking the airways, however in a newborn baby the minimum time is unlikely to be more than 15–30 seconds. There were no injuries to the mouth or nose to positively confirm that pressure had been applied to those areas, however such injuries are not always present in cases of suffocation. Their absence, while preventing a positive conclusion, is not completely inconsistent with suffocation having occurred.

I have given the survival period of less than fifteen minutes. I think it is unlikely that the period of survival was as short as one or two minutes, only because the changes in the lungs are well-established. I think it unlikely or very unlikely that a single breath would have resulted in the degree of changes I noted in the lungs. It is certainly the common event that a child will cry after birth but, like all things in medicine, it is not absolute and there is individual variation. The act of crying most certainly assists in the expansion of the lungs.

It is not possible from my examination of the baby to make any specific comment concerning the well-being of the mother. There are, however, no features present on the child to suggest that this may have been an unusually difficult or traumatic delivery.

It is very difficult to define lack of care. In my opinion, minimum care of a child immediately after birth is to wrap it in some sort of material to prevent the baby from cooling. Any other form of care may need previous experience rather than professional training. The minimum care of placing a child in a towel will, very markedly, at least reduce the risk of hypothermia. Hypothermia could have caused the death of this child within fifteen minutes. A child has a very large surface area from which to lose heat and this surface area would have been wet as a result of fluids from delivery, once again increasing heat loss. The cooler the environment in which the child lies, the greater the heat loss.

The pathological features of a huge number of possible reasons for the child’s death, including hypothermia, drowning and asphyxiation, may not be present in a child when one would expect them to be in an adult. I cannot exclude or confirm any of them.

The disappointed prosecution still pressed ahead, reluctantly conceding to the lesser charge of infanticide. They also threw in that ancient but rarely brought charge, concealment of a baby.

Mandy was tried at the Old Bailey. Prosecuting counsel was quoted in newspaper reports telling the jury:

When she became pregnant she decided to conceal her pregnancy and the existence of the baby once it was born. She followed the plan through to its logical conclusion by leaving, and allowing or causing, the child to die and disposing of the body by tying it in a black refuse bag. She continued to lie after birth by joining in with the general disapproval expressed when the body was found.

The court was then told that Mandy had initially claimed the pregnancy was a result of a rape but then changed her story. In fact, she had given birth before, on her mother’s lavatory two years previously, when the child had been offered for adoption. A second unwanted pregnancy soon afterwards was terminated.

The jury found her guilty of infanticide. The judge thundered, ‘You and only you had responsibility for that young child and you failed her …’ But he added, ‘It is clear that you were not at that time entirely responsible for what you did.’

She was sentenced to two years on probation and ordered to undergo one year of psychiatric treatment. There was a sense of disappointment in the prosecuting team, as everyone knew her sentence would have been harsher if she had been found guilty of murder. For myself, I had no regrets. It would have been unbearable if she had been tried for murder on the basis of evidence produced under pressure but against my conscience.