R v Shepherd (1862) 9 Cox CC 123
Report citation: (1862) Le & Ca 147.
Court: Court for Crown Cases Reserved. Decision: 25 January 1862.
Sarah Shepherd’s manslaughter conviction was quashed because the circumstances did not establish a legal duty to obtain a midwife for her daughter. The court distinguished a failure that attracted moral blame from an omission capable of supporting criminal liability.
Facts
Shepherd’s unmarried daughter, Mary Ann Ashton, was about eighteen. She had worked in domestic service and sometimes returned to live with her mother and stepfather between jobs, earning money by making gloves. After a stay with an aunt, she returned to the family home shortly before her death.
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Mary Ann went into labour at her stepfather’s house while he was away at work. Her mother did not obtain a midwife or another suitable attendant. Mary Ann died in childbirth on 26 October 1861.
The prosecution alleged that Shepherd had deliberately withheld assistance because she bore ill will towards her daughter. Shepherd was indicted for murder. The trial judge directed the jury to consider whether her neglect caused the death and, if so, whether she intended that result. The jury convicted her of manslaughter, and the judge reserved the question whether she had been under a legal duty to obtain assistance.
Issue
Could the mother’s failure to obtain a midwife amount to manslaughter on the facts proved? The issue was the existence of a legal obligation to act, rather than simply whether assistance could have been obtained or might have saved the daughter.
Reasoning
Erle CJ stressed the need to define the boundaries of criminal liability. The court accepted for the purpose of the reserved question that ordinary care would have secured a midwife’s attendance. However, there was no evidence that Shepherd had money at her disposal to pay for professional assistance. The possibility that a midwife might have attended without payment did not, in these circumstances, establish criminal responsibility for failing to ask.
The court distinguished recognised duties arising from custody, the relationship between parents and young children, and relationships such as master and apprentice. Mary Ann was beyond childhood and was regarded as independent of her parents. The judges found no sufficient basis in the circumstances for imposing the duty alleged against Shepherd.
The prosecution also sought to rely on an undertaking by Shepherd to attend her daughter. In the argument recorded in Leigh and Cave, Mellor J observed that there was no evidence of such an undertaking.
Decision and significance
The court quashed the manslaughter conviction. A moral obligation to help did not by itself establish the legal duty required to convict Shepherd for her omission.
The result should be understood in its factual setting: an independently working daughter, the particular household arrangements and the absence of evidence that the mother could pay for assistance. The judgment did not lay down a general rule that every parental duty necessarily ends on a child’s eighteenth birthday.
Sources: Original report in Leigh and Cave, pages 147–156; original report in Cox’s Criminal Cases, volume 9, page 123 onwards.
