Held: The word "wilfully", when used in the context of an offence prohibiting cruelty to children, "means that the act is done deliberately and intentionally, not by accident or inadvertence, but so that the mind of the person who does the act goes with it" ( per Lord Russell of Killowen C.J.). Note: the word "wilfully" is occasionally an element of animal welfare offences, such as that of wilfully, without any reasonable cause or excuse, administering a poisonous drug or substance to an animal (Protection of Animals Act 1911, s 1(1)(d)).
Lord Russell of Killowen C.J.:
We have to deal with a case reserved by Wills J. for the consideration of this Court. The charge is one of manslaughter, and it is founded upon the Prevention of Cruelty to Children Act, 1894 (57 & 58 Vict. c. 41), s. 1. Two questions arise on the case, first, whether the direction of the learned judge was right in law, and, if so, secondly, whether there was evidence upon which the jury could properly convict the prisoner. If the direction was wrong in point of law, or if the evidence was insufficient, the conviction cannot stand. The charge is preferred under s. 1 of the statute to which I have referred (57 & 58 Vict. c. 41), the material words of which are as follows: "If any person over the age of sixteen years, who has the custody, charge or care, of any child under the age of sixteen years, wilfully assaults, illtreats, neglects, abandons, or exposes, such child, or causes or procures such child to be assaulted, illtreated, neglected, abandoned, or exposed, in a manner likely to cause such child unnecessary suffering, or injury to its 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." It is desirable to refer to the history of the legislation dealing with this subject. The former statutory provision was contained in the Poor Law Amendment Act, 1868 (31 & 32 Vict. c. 122), s. 37 (a section since repealed), which provided that "When any parent shall wilfully neglect to provide adequate food, clothing, medical aid, or lodging, for his child, being in his custody, under the age of 14 years, whereby the health of such child shall have been, or shall be likely to be, seriously injured, he shall be guilty of an offence punishable on summary conviction." Therefore under that statute it was made the duty of the parent, if he was able to do so, to provide medical aid for his child, where necessary, and if he did not do so he was guilty of an offence, and liable to punishment. That was followed by the Act of 1889, which it is not necessary further to refer to, because the provisions of that Act were in effect the same as those of the Act now in force so far as the present case is concerned. It is important to observe that the Poor Law Amendment Act, 1868, was passed shortly after the trial of the case before Willes J., which has been referred to, R. v. Wagstaffe 10 Cox, C. C. 530. That case was tried in January, 1868, and the Act received the Royal Assent on July 31 of the same year, and there can be very little doubt that the clause in question (s. 37) was inserted in consequence of the decision, because the Legislature was of opinion that circumstances such as existed in the case of R. v. Wagstaffe were not adequately provided for. There is, no doubt, considerable difference between the language of the Act now in force and that which was contained in the Act of 1868. In the Act now in force the expression "medical aid" does not occur, and it becomes necessary to consider whether the omission of those words makes any difference with regard to the present case. It would be an odd result if we were obliged to come to the conclusion that, in dealing with such a subject as the protection of children, the Legislature had meant to take what may be described as a retrograde step; for the course of legislation, and the provisions of the Act of 1894, shew an increased anxiety on the part of the Legislature to provide for the protection of infants. We must decide the case on the words of the statute. Before considering the summing-up of the learned judge, I will summarise the facts. [His Lordship shortly stated the facts set out in the case.]
The portions of the summing-up which it is necessary to refer to are the following: "I told the jury that they must first of all be satisfied that the death of the child had been caused or accelerated by the want of medical assistance; and, secondly, that medical aid and medicine were such essential things for the child, that reasonably careful parents in general would have provided them; and, thirdly, that the prisoner's means would have enabled him to do so, without an expenditure such as could not be reasonably expected from him." A little further on in the case the learned judge states as follows:- "But I added that if he had done anything which was expressly forbidden by statute, and by so doing had caused or accelerated the child's death, he would be guilty of manslaughter, no matter what his motive or state of mind." Later on he adds this: "I said there could be no doubt that the prisoner had wilfully and deliberately abstained from calling in medical assistance, though he and those about the child were aware for some considerable period before its death that it was in a state of great danger, and that therefore the question was narrowed down to whether his failure to procure medical aid could be called neglecting the child so as to cause injury to its health. I pointed out that the language was very different from that of the repealed enactment." The question is whether that direction was substantially right. I think it was. Whether the words in the statute, "wilfully neglects," are taken together, or, as the learned judge did in directing the jury, are taken separately, the meaning is very clear. "Wilfully" means that the act is done deliberately and intentionally, not by accident or inadvertence, but so that the mind of the person who does the act goes with it. Neglect is the want of reasonable care - that is, the omission of such steps as a reasonable parent would take, such as are usually taken in the ordinary experience of mankind - that is, in such a case as the present, provided the parent had such means as would enable him to take the necessary steps. I agree with the statement in the summing-up, that the standard of neglect varied as time went on, and that many things might be legitimately looked upon as evidence of neglect in one generation, which would not have been thought so in a preceding generation, and that regard must be had to the habits and thoughts of the time. At the present day, when medical aid is within the reach of the humblest and poorest members of the community, it cannot reasonably be suggested that the omission to provide medical aid for a dying child does not amount to neglect. Mr. Sutton contended that because the prisoner was proved to be an affectionate parent, and was willing to do all things for the benefit of his child, except the one thing which was necessary in the present case, he ought not to be found guilty of the offence of manslaughter, on the ground that he abstained from providing medical aid for his child in consequence of his peculiar views in the matter; but we cannot shut our eyes to the danger which might arise if we were to accede to that argument, for where is the line to be drawn? In the present case the prisoner is shewn to have had an objection to the use of medicine; but other cases might arise, such, for instance, as the case of a child with a broken thigh, where a surgical operation was necessary, which had to be performed with the aid of an anæsthetic; could the father refuse to allow the anæesthetic to be administered? Or take the case of a child that was in danger of suffocation, so that the operation of tracheotomy was necessary in order to save its life, and an anæsthetic was required to be administered.
I think it cannot be doubted that, if this case had arisen under the Act of 1868, there would have been ample evidence to warrant a conviction, and in my opinion there is also ample evidence where the case arises under the Act of 1894. I am of opinion that the summing-up of the learned judge was right, and the conviction ought to be affirmed.
I wish to add that I dissent entirely from the view attributed to Pigott B. in R. v. Hines 80 C. C. C. Sessions Paper 309, and I am not satisfied that in the present case there was not sufficient evidence, at common law, to justify a conviction.
Mr Justice Day:
I entirely agree with the judgment of the Lord Chief Justice.
Mr Justice Wills:
I am of the same opinion. I will not deal with the question whether the evidence might have justified a conviction at common law, because it is unnecessary here to decide that question. As to the rest of the case, I can see no reason to doubt that I was right in the direction which I gave to the jury; but I was anxious to have the point settled by this Court, because the same question is not unlikely to arise in other cases, and similar questions may also arise, and have arisen within my own experience, in proceedings under the Prevention of Cruelty to Children Act, 1894, in cases where the cruelty charged is not followed by death. For these reasons I thought it wise to reserve the point for the consideration of this Court, though I had not at the trial, and have not now, any serious doubt upon the question.
Mr Justice Grantham:
I am of the same opinion, and I agree with the judgment of the Lord Chief Justice. Taking the last of the two words, "wilfully neglects," first, was the omission of what was left undone by the prisoner neglect? The jury say it was. Then was what was left undone wilfully left undone - that is, was the neglect to provide medical aid the wilful act of the prisoner? Mr. Sutton can only rely upon the fact that the prisoner was one of the sect called the "Peculiar People"; but that fact of itself goes to shew that what he omitted he left undone with intent - that is, wilfully. Can it be said that this is not wilful neglect? I am clearly of opinion that the prisoner's conduct amounted to wilful neglect, and that the summing-up of the learned judge was right. It may be asked, why should the line be drawn at drugs? A case might arise where it was necessary to apply an instrument where an injury had been suffered. To omit to do that would be wilful neglect. Or take the case of a fever, where quinine was necessary, or ice. Suppose the doctor were to say, "I know that if ice is applied the fever will abate." Could the father refuse to allow the application of ice without being guilty of wilful neglect?
[LAWRANCE and WRIGHT JJ. concurred.]