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R v Shepherd (1862) 9 Cox CC 123

OMISSION – ACTUS REUS – DUTY OF CARE

Facts

The defendant was the mother of an eighteen year old girl who had died as a result of complications during childbirth. After going into labour, the girl had been taken into her stepfather’s home where both he and her mother attempted to care for her. However, the defendant had failed to take any steps to seek assistance from the midwife, which it was suggested may have saved the girl’s life. The defendant also presented evidence that she lacked any means to pay for the services of a midwife had one been contacted. She was charged with the manslaughter of her daughter.

Issue

The issue was whether the mother had a legal obligation to seek assistance from the midwife, in circumstances where the daughter was over the age of eighteen, and by extension whether the omission to do so could constitute the acuts reus for manslaughter.

Held

The court held that as the victim was over the age of eighteen, the defendant was not under any legal duty to assist her by calling the midwife; in the words of Erle CJ, the ratio of the decision was that:

“…the girl was beyond the age of childhood, and was entirely emancipated” (p. 9).

There was therefore no actus reus for manslaughter and the defendant was accordingly acquitted.

It is now questionable whether this case remains good law in the light of subsequent decisions such as R v Stone and Dobinson [1977] QB 345, in which the court accepted the existence of a duty of care between blood relatives even where the victim was an adult.


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