R v Sheppard
| Jurisdiction | England & Wales |
| Judge | Lord Diplock,Lord Edmund-Davies,Lord Fraser of Tullybelton,Lord Keith of Kinkel,Lord Scarman |
| Judgment Date | 27 November 1980 |
| Judgment citation (vLex) | [1980] UKHL J1127-1 |
| Date | 27 November 1980 |
| Court | House of Lords |
[1980] UKHL J1127-1
Lord Diplock
Lord Edmund-Davies
Lord Fraser of Tullybelton
Lord Keith of Kinkel
Lord Scarman
House of Lords
My Lords,
The appellants ("the parents") were convicted at Northampton Crown Court of an offence under section 1(1) of the Children and Young Persons Act 1933 of wilfully neglecting their infant child, Martin, between 1st July 1978 and 29th January 1979, in a manner likely to cause him unnecessary suffering or injury to health.
The child, who had been a slow developer, died, at the age of sixteen months, on 28th January 1979 of hypothermia associated with malnutrition, a condition which increases the susceptibility of infants to hypothermia. If Martin had received timely medical attention his life might well have been saved. For five days or more before his death he had probably suffered from gastro-enteritis which had caused him to vomit up and so fail to ingest the food that had been offered to him; but the details of such symptoms of serious illness as were apparent during the period before his death do not affect the question which falls to be decided by your Lordships in this appeal and is a question of law alone.
The gravamen of the charge against the parents was that they had failed to provide Martin with adequate medical aid on several occasions during the seven months to which the charge related and, in particular, during the week immediately preceding his death. In the light of the trial judge's instructions given to the jury as to the law applicable to the offence charged, it can safely be inferred from the verdicts of guilty, that the jury found :
(1) that injury to Martin's health had in fact been caused by the failure by each of the parents to have him examined by a doctor in the period prior to his death; and that
(2) any reasonable parents, i.e. parents endowed with ordinary intelligence and not indifferent to the welfare of their child, would have recognised from the manifest symptoms of serious illness in Martin during that period that a failure to have him examined by a doctor might well result in unnecessary suffering or injury to his health.
The parents, a young couple aged 20 and 22 respectively, occupied poor accommodation, particularly as respects heating, where the family, which included another (older) child, subsisted on a meagre income. They would appear, on the evidence, to have been of low intelligence. Their real defence, if it were capable of amounting to a defence in law, was that they did not realise that the child was ill enough to need a doctor; they had observed his loss of appetite and failure to keep down his food, but had genuinely thought that this was due to some passing minor upset to which babies are prone, from which they recover naturally without medical aid and which medical treatment can do nothing to alleviate or to hasten recovery.
We do not know whether the jury would have thought that this explanation of the parents' failure to have Martin examined by a doctor might be true. In his instructions the judge had told the jury that to constitute the statutory offence with which the parents were charged, it was unnecessary for the Crown to prove that at the time when it was alleged the parents should have had the child seen by a doctor, either they in fact knew that their failure to do so involved a risk of causing him unnecessary suffering or injury to health or they did not care whether this was so or not. Following a line of authority by appellate courts that was binding upon him, the trial judge treated the offence as one of strict liability and told the jury that the test of the parents' guilt was objective only :
"Would a reasonable parent, with knowledge of the facts that were known to the accused, appreciate that failure to have the child examined was likely to cause him unnecessary suffering or injury to health?"
That was the question that the jury by their verdict, answered "Yes"; not any question as to the parents' own state of mind.
The Court of Appeal, regarding themselves as bound by the same line of authority, felt compelled to dismiss the parents' appeal; but expressed their opinion that the law on this subject was worthy of review by your Lordships' House and gave the parents leave to appeal. They certified as the point of law of general public importance involved in their decision to dismiss the appeal :
"What is the proper direction to be given to a jury on a charge of wilful neglect of a child under section 1 of the Children and Young Persons Act, 1933 as to what constitutes the necessary mens rea of the offence?"
The relevant provisions of the section are in the following terms:
"1.—(1) If any person who has attained the age of sixteen years and has the custody, charge, or care of any child or young person under that age, wilfully assaults, ill-treats, neglects, abandons, or exposes him, or causes or procures him to be assaulted, ill-treated, neglected, abandoned, or exposed, in a manner likely to cause him unnecessary suffering or injury to health (including injury to or loss of sight, or hearing, or limb, or organ of the body and any mental derangement), that person shall be guilty of a misdemeanour, and shall be liable—
( a) on conviction on indictment, to a fine not exceeding one hundred pounds, or alternatively, or in default of payment of such a fine, or in addition thereto, to imprisonment for any term not exceeding two years;
( b) ……
(2) For the purposes of this section—
( a) a parent or other person legally liable to maintain a child or young person shall be deemed to have neglected him in a manner likely to cause injury to his health if he has failed to provide adequate food, clothing, medical aid or lodging for him, or if, having been unable otherwise to provide such food, clothing, medical aid or lodging, he has failed to take steps to procure it to be provided under the Acts relating to the relief of the poor;"
A provision in the same terms as section 1(1) has been on the statute book since the Prevention of Cruelty to, and Protection of, Children Act 1889. It was re-enacted successively in the Prevention of Cruelty to Children Acts 1894 and 1904, the former of which was in force when Reg. v. Senior [1899] 1 Q.B. 283 was decided and the latter when R. v. petch (1909) 2 Cr. App. R. 71 was decided. It was again re-enacted in the Childrens Act, 1908. A statutory offence defined in these terms has thus been in existence for more than ninety years.
Section 1 (2)( a) on the other hand has its legislative origin in section 37 of the Poor Law Amendment Act 1868. This made it a summary offence for a parent to "wilfully neglect to provide adequate food, clothing, medical aid or lodging for his child …. whereby the health of such child shall have been or shall be likely to be seriously injured." It was the only relevant provision that was in force when Reg. v. Downes (1875) 1 Q.B.D. 25was decided. It was repealed by the Prevention of Cruelty to and Protection of Children Act 1889 and for nineteen years, which covered the date when Reg. v. Senior was decided, there was no corresponding provision on the statute book until its reappearance in its present form but without the adverb "seriously" as a "deeming" provision in the Childrens Act, 1908.
My Lords, the language in which the relevant provisions of the Act of 1933 are drafted consists of ordinary words in common use in the English language. If I were to approach the question of their construction untrammelled (as this House is) by authority I should have little hesitation in saying that where the charge is one of wilfully neglecting to provide a child with adequate medical aid, which in appropriate cases will include precautionary medical examination, the prosecution must prove:
(1) that the child did in fact need medical aid at the time at which the parent is charged with having failed to provide it; and
(2) either that the parent was aware at that time that the child's health might be at risk if it were not provided with medical aid or that the parent's unawareness of this fact was due to his not caring whether the child's health were at risk or not.
In view of the previous authorities, however, which reach a different conclusion, it becomes necessary to analyse more closely the wording and structure of section 1(1) and (2)( a). This I propose to do first, then to proceed to examine the authorities themselves and finally to consider what weight should be given to the subsequent re-enactments by parliament of the self-same provisions.
The presence of the adverb "wilfully" qualifying all five verbs : "assaults, ill-treats, neglects, abandons or exposes" makes it clear that any offence under section 1 requires mens rea, a state of mind on the part of the offender directed to the particular act or failure to act that constitutes the actus reus and warrants the description "wilful". The other four verbs refer to positive acts, "neglect" refers to failure to act, and the judicial explanation of the state of mind denoted by the statutory expression "wilfully" in relation to the doing of a positive act, is not necessarily wholly apt in relation to a failure to act at all. The instant case is in the latter category, so I will confine myself to considering what is meant by wilfully neglecting a child in a manner likely to cause him unnecessary suffering or injury to health.
In construing the statutory language it is not always appropriate and may often be misleading to dissect a compound phrase and to treat a particular word or words as intended to be descriptive only of the mens rea of the offence and the remainder as defining...
To continue reading
Request your trial
-
Margaret Gardner v Rivington Gardner
...The leading case on the interpretation of the word, “wilful” when used in a statutory context pertaining to a criminal offence, is R v Sheppard & another (1980) 3 All E.R. 899 (H.L.). As it is a House of Lords Judgment, the reasoning and conclusion of the Court as regards, the definition o......
- Taylor v O'Keefe (Nordic Clansman)
- R v Gittins
-
Cox v Director of Public Prosecutions
...that the acts of the accused were "wilfully" done. To do something "wilfully" involves an intention or recklessness (see R v. Sheppard [1981] A.C. 394; Newington [1990] 91 Cr. App. R. 247; O'Reilly v. East Coast Cinemas [1968] 1 I.R. 56 and the Incorporated Law Society of Ireland v. Carroll......
-
Recklessness—The Continuing Search for a Definition
...vol. 1, cl.18). 3 ‘Indifference’ recklessness, i.e. displaying an indifference as to whether there is arisk or not, see R v Sheppard [1981] AC 394, R vKimber (1983) 77 Cr App R 225,R vBreckenridge (1984) 79 Cr App R 294 and R v Satnam and Kewal (1983) Cr AppR 149, cited by Andrew Ashworth, ......
-
Strict Criminal Liability: A Violation of the Convention?
...of a company of ‘causing’ the pollution of a river without the need foreither mens rea or negligence. See also R vSheppard [1980] 3 All ER 899 where theHouse of Lords held that in the offence of wilfully neglecting under s. 1 of theChildren and Young Persons Act 1933 there was an element of......
-
CORPORAL PUNISHMENT OF CHILDREN BY PARENTS Is It Discipline or Violence and Abuse?
...is specifically a matter which a court will consider in sentencing, see Tay Wee Kiat v Public Prosecutor[2018] SGHC 42. 55 R v Sheppard [1981] AC 394. This is clearest in the concurring speech of Lord Keith: at 418. The leading speech by Lord Diplock added an alternative interpretation of a......
-
Neglecting justice? Exploring Scottish convictions for ill-treatment and wilful neglect
...Council (2012), “Mentalhealth law online”, available at: www.bareboneslegal.com/dublas-v-nmc/ (accessed 14 January 2014).R. v Sheppard (1981), A.C. 394.Regina v Annette Hopkins and Regina v Margaret Priest (2011), EWCA Crim 1513 and 2011 WL 883613,Case Analysis, Westlaw.Richards, P., Morris......