R. v Stone (John Edward), [1977] Q.B.

354 (1976)

For educational use only

*354 Regina v Stone
Regina v Dobinson
Positive/Neutral Judicial Consideration

Court
Court of Appeal (Criminal Division)

Judgment Date
21 December 1976

Report Citation
[1977] 2 W.L.R. 169
[1977] Q.B. 354

Court of Appeal

Geoffrey Lane L.J. , Nield and Croom-Johnson JJ.

1976 Dec. 9; 21

Crime—Homicide—Manslaughter—Infirm person—Some attempts made to care for her—No professional help obtained—
Death by neglect—Whether duty of care—Reckless disregard of danger to health and welfare—Whether inadvertence
sufficient—Whether proof necessary of indifference to obvious risk of injury to health, or of determination to run risk actually
foreseen

The appellants, a partially deaf and almost blind man of low average intelligence and no appreciable sense of smell, and
his mistress, who was ineffectual and inadequate, lived together in his house with his mentally subnormal son. The
man’s sister came to live at the house as a lodger in one room without ventilation, toilet or washing facilities except a
polythene bucket. She was morbidly anxious not to put on weight, denied herself proper meals, spent days at a time in
the room and within three years became helplessly infirm so that she did not leave her bed, but she did not complain.
The mistress, who took the sister such food as she required attempted to wash her with the aid of a neighbour, who
advised the mistress to go to the social services. The licensee of a public house which the appellants used to visit advised
the mistress to obtain a doctor. The sister had refused to give the appellants the name of her doctor, whom they had
unsuccessfully tried to find. An attempt by the man to obtain his own doctor for her was unsuccessful, but the appellants
did no more to enlist outside professional help although aware of the poor condition of her health. They did not mention
anything to the social worker who used to visit the son. Some three weeks after the attempt to wash the sister she died
from toxemia spreading from infected bed scores, prolonged immobilisation and lack of food. If she had received
medical care in the intervening period, she would probably have survived.

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R. v Stone (John Edward), [1977] Q.B. 354 (1976)

The appellants were charged with her manslaughter. The jury were directed to consider the circumstances in relation to
each of the appellants according to their individual knowledge of the sister’s condition and their appreciation of the need
to act and the consequences of inaction in view of procurable facilities, and to determine whether the prosecution had
established a gross neglect of duty of care amounting to reckless disregard of the sister’s health and well-being. The
appellants were convicted.

On appeal against conviction:-

Hld, dismissing the appeal, (1) that on the facts the jury were entitled to find that the appellants had assumed a duty to
care for the sister and were obliged to summon help or care for the sister themselves when she became helplessly infirm
(post, p. 361E-H).

(2) That, since the appellants had undertaken the duty of caring for the sister who was incapable of caring for herself, the
breach of duty which had to be established was a reckless disregard of danger to her health and welfare by indifference to
an obvious risk of injury to health or by actually foreseeing the risk and determining nevertheless to run it; that mere
inadvertence was insufficient; and that, since the jury had been directed in accordance with the principles applicable, the
appeal failed (post, p. 363F-H).

On June 18, 1976, at Sheffield Crown Court (Boreham J.) the appellants. John Edward Stone and Gwendoline Dobinson, were
convicted on an indictment charging both of them with manslaughter, in that, they between July 31, 1975, and August 3,
1975, unlawfully killed Fanny Stone. The victim died resident in a house occupied by her brother, the appellant Stone, and his
housekeeper and mistress, the appellant Dobinson. They each applied for leave to appeal against conviction on the following
grounds:

(1) the appellant was under no legal duty to care for the victim or to obtain medical assistance for her;
(2) there was no or insufficient evidence that the appellant had assumed such a duty;
(3) the judge failed to direct the jury adequately or at all as to the circumstances in which such a duty arose in law;
(4) the judge was wrong in law in directing the jury that a legal duty arose whenever any grown-up person chose to
undertake the charge of another human being who, by reason of infirmity, mental or physical illness or old age was
incapable of looking after herself;
(5) the judge failed to direct the jury at what moment and in what circumstances a person assumed such a duty in
respect of another when that other had been and continued to be resident in a household and to whom the
householder had owed no legal duty; such a direction was essential having regard to the evidence and to the
circumstances which led to the death of the victim;
(6) alternatively, there was no or insufficient evidence that the appellant was in breach of such a duty; and
(7) the judge misdirected the jury in stating that, in circumstances where such a duty existed, the test as to whether or
not the appellant was in breach of it was whether or not he had behaved with reckless disregard for the welfare of
the victim but that the Crown did not have to prove that the appellant was reckless as to whether the victim lived
or died, in consequence of the direction given the jury were not directed as to the degree of neglect which the Crown
were required to establish. The appellant Stone applied also for leave to appeal against severity of sentence. Leave
to appeal was granted by the single judge.

The facts are stated in the judgment.

Gerald Coles Q.C. and Robert S. Smith for the appellants. The unique feature in the present case is a finding that a duty of
care arises after the victim becomes helpless. In such a situation there must be not only a very clear direction on the duty
arising but also on the specific circumstances in which such a duty arises.

To establish a case of manslaughter by negligence, the prosecution must prove that a duty of care exists. Before such a duty
can arise, there must be a matter of choice of assumption of the duty. Inaction is insufficient. No single authority establishes
that a duty arises simply because a person becomes helpless in one’s home.

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R. v Stone (John Edward), [1977] Q.B. 354 (1976)

In regard to manslaughter by negligence, a careful reading of the authorities reveals that, to establish a breach of duty, if duty
there be, it is necessary to show a recklessness, which means foresight of the possibility of death or, at least, serious injury
to health. The degree of criminal culpability is set by saying that the accused, having realised that death or serious injury are
possible, must then act recklessly in relation to those consequences. Further, the test is subjective so far as concerns the
omission to act.

Geoffrey Rivlin for the Crown. There was a legal duty on the appellants to care for the deceased, which they accepted. Given
that they had taken on themselves the task of providing or assisting in the provision of her basic needs and that she occupied
a room in the house, once helplessness supervened and in the absence of any steps to divest themselves of her charge by
placing her in the care of others, it was implicit that they had made the choice to accept the legal duty. As she was in effect
“a prisoner” in their home, it is unrealistic to contend otherwise. On two separate occasions the judge gave a proper direction
on the assumption of the legal duty.

The authorities cited by the appellants appear to reveal a distinction between manslaughter resulting from acts of commission
and omission. To find a conviction there has to be a wicked and reckless disregard of the duty, which would inevitably involve
foresight (as distinct from intention) of death or some serious harm, of which there is ample evidence in the present case.
The appellants seek to put too high a burden on the Crown. The judge’s direction that, if the appellants did not appreciate
that their neglect “would lead to any dire results” they should be acquitted, cannot be criticised. The judge also gave a full
and proper direction that the jury should consider the case by subjective standards.

Coles Q.C. replied.

Cur. adv. vult.

December 21. GEOFFREY LANE L.J.

read the following judgment of the court. On June 18, 1976, at Sheffield Crown Court before Boreham J. and a jury the two
appellants were convicted of manslaughter. The appellant Stone was sentenced to three years’ imprisonment and the
appellant Dobinson to 18 months’ imprisonment suspended for two years; she was also made the subject of a supervision
order. By leave of the single judge, the appellant Stone now appeals against conviction and sentence and the appellant
Dobinson against conviction.

In 1972, at 75, Broadwater, Bolton-on-Dearne in Yorkshire, there lived three people. The appellant Stone, an ex-miner now
aged 67, widowed for 10 years, who is partially deaf, almost totally blind and has no appreciable sense of smell; the appellant
Dobinson, now aged 43, who had been his housekeeper and mistress for some eight years, and the appellant Stone’s son,
Cyril, aged 34, who is mentally subnormal. The appellant Stone is of low average intelligence; the appellant Dobinson is
described as ineffectual and somewhat inadequate.

There was an addition to that household in 1972. The appellant Stone had a younger sister called Fanny, about 61 at the date
of her death. She had been living with another sister called Rosy. For some reason, probably because Rosy could not tolerate
her any longer, she had decided to leave. She came to live at no. 75, where she occupied a small front room. She was in
receipt of a pension of £11.60 a week and gave her brother £1.50 towards the rent. She was eccentric in many ways. She was
morbidly and unnecessarily anxious about putting on weight and so denied herself proper meals. She would take to her room
for days. She would often stay in her room all day until the two appellants went to the public house in the evening, when she
would creep down and make herself a meal.

In early Spring 1975 the police called at the house. Fanny had been found wandering about in the street by herself without
apparently knowing where she was. This caused the appellants to try to find Fanny’s doctor. They tried to trace him through

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R. v Stone (John Edward), [1977] Q.B. 354 (1976)

Rosy, but having walked a very considerable distance in their search they failed. It transpired that they had walked to the
wrong village. Fanny herself refused to tell them the doctor’s name. She thought she would be “put away” if she did. Nothing
more was done to enlist outside professional aid.

In the light of what happened subsequently there can be no doubt that Fanny’s condition over the succeeding weeks and
months must have deteriorated rapidly. By July 1975 she was, it seems, unable or unwilling to leave her bed and, on July 19,
the next-door neighbour, Mrs. Wilson, gallantly volunteered to help the female appellant to wash Fanny. She states:

”On July 19 Mrs Dobinson and I went to Fanny’s room in order to clean her up. When I went into the
room there was not a strong smell until I moved her. Her nightdress was wet and messed with her
own excreta and the dress had to be cut off. I saw her back was sore, I hadn’t seen anything like that
before. I took the bedclothes off the bed. They were all wet through and messed. and so was the
mattress. I was there for about two hours and Mrs. Dobinson helped. She was raw, her back,
shoulders, bottom and down below between her legs. Mrs. Dobinson appeared to me to be upset
because Fanny had never let her attend to her before. I advised Mrs. Dobinson to go to the social
services.”

Emily West, the licensee of the local public house, the Crossed Daggers, gave evidence to the effect that during the whole of
the period, from July 19 onwards, the appellants came to the public house every night at about 7 p.m. The appellant Dobinson
was worried and told Emily West that Fanny would not wash, go to the toilet or eat or drink. As a result Emily West
immediately advised Dobinson to get a doctor and when told that Fanny’s doctor lived at Doncaster, Emily West suggested
getting a local one. It seems that some efforts were made to get a local doctor, but the neighbour who volunteered to do the
telephoning (the appellants being incapable of managing the instrument themselves) was unsuccessful.

On August 2, 1975, Fanny was found by Dobinson to be dead in her bed. The police were called. On arrival they found there
was no ventilation in the bedroom, the window had to be hammered open and the bed was so sited that it was impossible
to get the door fully open. At one side of the bed on a chair was an empty mineral bottle and on the other chair a cup Under
the bed was an empty polythene bucket. Otherwise there was no food, washing or toilet facilities in the room. There was
excrement on the bed and floor. It was a scene of dreadful degradation.

The pathologist, Dr. Usher, gave evidence that the deceased was naked, emaciated, weighing five stone and five pounds, her
body ingrained with dirt, lying in a pool of excrement. On the bed on which she was lying were various filthy and crumpled
bed-clothes, some of which were soaked in urine. There was excrement on the floor and wrapped in newspapers alongside
the bed. There was a tidemark of excreta corresponding with the position in which her body was lying. At the mortuary Dr.
Usher found the deceased’s body to be ulcerated over the right hip joint and on the underside of the left knee; in each case
the ulceration went down to the bone. There were maggots in the ulcers. He found pressure sores over the back of the right
shoulder, the outside of the left kneecap to the underside of the left knee, over the right hip joint, to the inner aspect of the
left shin and on the left instep where the body had been lying. Such ulcers could not have been produced in less than two to
three weeks. The ulcers were due to the general poor condition of the skin and the protruding bones which would have had
a greater effect upon her than a normal person. She was soaked in urine and excreta. Her stomach contained no food products
but a lot of bile stained fluid. She had not eaten recently. He found no natural disease. The disinclination to eat was a condition
of anorexia nervosa which was not a physical condition but a condition of the brain or mind. She had been requiring urgent
medical attention for some days or even weeks. He said:

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R. v Stone (John Edward), [1977] Q.B. 354 (1976)

”If two weeks prior to my seeing the body she had gone into hospital there is a distinct possibility that
they may have saved her; and three weeks earlier the chances would have been good. If her condition
on July 19 was no worse than that described by Mrs. Wilson, then her survival would have been
probable.”

He said that the cause of death was (1) toxemia spreading from the infected pressure areas (this could have been alleviated
by keeping her clean); and (2) prolonged immobilisation. There was no physical reason for her being immobile. Death was
due to immobilisation, which caused the pressure sores, and lack of food. Depression might have caused the lack of mobility.
The sores on the left knee he thought did not develop in two weeks. Lack of ventilation would have aggravated the other
matters. With regard to the condition of the mattress, he thought it would take weeks to get into that condition.

The prosecution alleged that in the circumstances the appellants had undertaken the duty of caring for Fanny who was
incapable of looking after herself, that they had, with gross negligence, failed in that duty, that such failure caused her death
and that they were guilty of manslaughter.

The appellant Dobinson was seen by Detective Inspector Ashton on August 2, 1975. She said, in answer to questions, that the
deceased had been living in the state she was found for months now, but that she had never complained. She said that the
deceased provided her own meals but if she wanted anything from the shops the deceased told her. The deceased would
only have biscuits and pop. She would not eat much else because she said it made her fat. Mrs. Wilson actually did the
shopping and she, the appellant Dobinson, signed the deceased’s pension book because the deceased did not seem as though
she could be bothered with anything. The appellant said she kept telling Ted (the other appellant), but that he would not do
anything. He just told her, “Leave it while tomorrow.” She was asked why she did not get help and she replied, “I asked him
to get a doctor. He said he had tried to, but because the deceased was not on his panel the doctor wouldn’t come.” When
asked why she did not speak to the lady next door or to Mrs. Wilson’s daughter, who was a nurse, she is said to have replied,
“I daren’t. He is boss down there. I daren’t do anything unless he tells me. She is not my sister, so I left it to him.” When asked,
“You are a woman and you go into her bedroom. Your own common sense would tell you that she needed attention?” She is
said to have replied, “She never complained so I didn’t bother.” When asked, “Did you change her bed or see she was
washed?” she replied, “About three weeks ago me and Mrs. Wilson gave her a wash down and tried to clean her up.” When
asked, “What did you think of her at that time?” she replied, “She was all sore and filthy.” When asked why she did not call
someone she is said to have replied, “She didn’t complain, so I left her.” In evidence she denied those parts of her statement
which incriminated the appellant Stone. She disputed that she said, “She dare not do anything without Ted” and “he just
would not bother to do anything and he would say leave it while tomorrow.” She also denied that she said:

”I know she never got out of bed to go to the toilet because she was too ill. She did what she wanted
in the bed. Anyway I kept telling him (the appellant Stone) to do something; but all he would say was
‘tomorrow’ and he would not lift a finger to help her.”

With regard to the words she was reported to have used, “I realised for the past two weeks that she was not going to live,
and I could see that she was filthy and smelt” she said she did not say that and added, “I may have said that I knew she was
poorly.”

The appellant Stone was interviewed subsequently. He was asked, “Did Gwen tell you that Fanny was in a bad way?” He

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R. v Stone (John Edward), [1977] Q.B. 354 (1976)

replied, “Yes, but Fanny was very stubborn and would not let anyone do for her.” He was asked “If Gwen told you about
Fanny’s condition, why did you not get medical assistance?” He replied, “I tried to get our doctor to come but he would not.
I also tried to find out who her doctor was but I could not.” He was asked, “Why did you not get an ambulance to take her to
hospital?” He replied, “I did not think.” He said:

”I remember Gwen and Mrs. Wilson going up to see her. They said she was in a baddish way. I said,
‘We must do something.’ I do not remember whether there was any attempt to get a doctor after
that. I did not think she was dying. Previously she had gone to bed for long periods of time, and she
had then got up again and had been all right. I would ask her if she was getting up but she always
said, ‘When I am ready.’ I could not see her in the room and I could not tell whether she was looking
all right. I went up three or four days before she died. I asked her, ‘Are you all right, Fanny’ and she
said ‘Yes.’”

There is no dispute, broadly speaking, as to the matters on which the jury must be satisfied before they can convict of
manslaughter in circumstances such as the present. They are (1) that the defendant undertook the care of a person who by
reason of age or infirmity was unable to care for himself; (2) that the defendant was grossly negligent in regard to his duty of
care; (3) that by reason of such negligence the person died. It is submitted on behalf of the appellants that the judge’s
direction to the jury with regard to the first two items was incorrect.

At the close of the prosecution case submissions were made to the judge that there was no, or no sufficient evidence that
the appellants, or either of them, had chosen to undertake the care of Fanny.

That contention was advanced by Mr. Coles before this court as his first ground of appeal. He amplified the ground somewhat
by submitting that the evidence which the judge had suggested to the jury might support the assumption of a duty by the
appellants does not, when examined, succeed in doing so. He suggests that the situation here is unlike any reported case.
Fanny came to this house as a lodger. Largely, if not entirely due to her own eccentricity and failure to look after herself or
feed herself properly, she became increasingly infirm and immobile and eventually unable to look after herself. Is it to be
said, asks Mr. Coles rhetorically, that by the mere fact of becoming infirm and helpless in these circumstances she casts a
duty on her brother and the appellant Dobinson to take steps to have her looked after or taken to hospital? The suggestion
is that, heartless though it may seem, this is one of those situations where the appellants were entitled to do nothing; where
no duty was cast upon them to help, any more than it is cast upon a man to rescue a stranger from drowning, however easy
such a rescue might be.

This court rejects that proposition. Whether Fanny was a lodger or not she was a blood relation of the appellant Stone; she
was occupying a room in his house; the appellant Dobinson had undertaken the duty of trying to wash her, of taking such
food to her as she required. There was ample evidence that each appellant was aware of the poor condition she was in by
mid-July. It was not disputed that no effort was made to summon an ambulance or the social services or the police despite
the entreaties of Mrs. Wilson and Mrs. West. A social worker used to visit Cyril. No word was spoken to him. All these were
matters which the jury were entitled to take into account when considering whether the necessary assumption of a duty to
care for Fanny had been proved.

This was not a situation analogous to the drowning stranger. They did make efforts to care. They tried to get a doctor; they
tried to discover the previous doctor. The appellant Dobinson helped with the washing and the provision of food. All these

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R. v Stone (John Edward), [1977] Q.B. 354 (1976)

matters were put before the jury in terms which we find it impossible to fault. The jury were entitled to find that the duty
had been assumed. They were entitled to conclude that once Fanny became helplessly infirm, as she had by July 19, the
appellants were, in the circumstances, obliged either to summon help or else to care for Fanny themselves.

Mr. Coles’ second submission presents greater difficulty. It is that the judge’s direction on the nature of the negligence or
recklessness required was wrongly stated. This is how the matter was left to the jury: *362

”Have the Crown proved that either or both of these defendants was guilty of gross neglect of Fanny
amounting to a reckless disregard for the health and wellbeing of that woman. Do not place your
judgment on the question of recklessness as to whether she died or not. What has to be proved is
not that, but that there was a reckless disregard for their duty of care. It may well be that that will
involve a consideration of what they thought would be the consequences of their reckless disregard,
if you found there was one. For example, if I were in charge of a person and I was guilty of some
major neglect, but I genuinely did not appreciate that it would lead to any dire results, you would
probably say, ‘That person is not very bright, but I am not sure he is guilty of recklessness!’”

Then, at a later stage in the direction:

”... were either or both of these defendants in grave neglect of that duty, were they reckless or did
they show a reckless disregard for their obligations. Again it depends to a large extent on the extent
of their knowledge of her condition; of their individual appreciation of the need to act. It depends to
some extent on their appreciation of the consequences of inaction; it depends on the facilities which
were available or which they could readily have made available. Mr. Stone says ‘nothing was done
because I was not aware of the gravity of the matter of the danger to Fanny’s life and of the situation.
I did not know the actual conditions in which my sister was lying.’ If that is true or if it may be true
then you will acquit him. If you are sure that he did know then you ask yourselves: what did he do
about it, and what could he have done ... You do not judge him on what you would have done
yourselves; but you take the man as you find him ... So far as Mrs. Dobinson is concerned ... did she
do her incompetent best? Certainly if she did that, then you would acquit her.”

The appellants’ contention is that the prosecution in order to succeed must show recklessness on the part of the defendant;
that recklessness in this context means foresight of the likelihood or possibility of death or serious injury and a determination
nevertheless to persist in the omission to provide care. We were referred to a number of 19th century decisions which are
historically interesting but of small practical assistance. Mr. Coles relied principally on the decision of this court in Reg. v.
Lowe [1973] Q.B. 702 . In that case there were two counts, one alleging manslaughter of a child on the grounds that the
defendants’ cruelty alleged under the second count caused its death, and the second count charging cruelty to a child by
wilfully neglecting it so as to cause unnecessary suffering or injury to health under section 1 (1) of the Children and Young
Persons Act 1933 . The judge had directed the jury that if they found the appellant guilty on the second count they must find
him guilty under the first count of manslaughter, even though they acquitted him of recklessness. That was held to be a
misdirection. Phillimore L.J., delivering the judgment of the court, went on to say, at p. 709: *363

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R. v Stone (John Edward), [1977] Q.B. 354 (1976)

”Now in the present case the jury negatived recklessness. How then can mere neglect, albeit wilful,
amount to manslaughter? This court feels that there is something inherently unattractive in a theory
of constructive manslaughter. It seems strange that an omission which is wilful solely in the sense
that it is not inadvertent, the consequences of which are not foreseen by the person who is neglectful
should, if death results, automatically give rise to an indeterminate sentence ...”

Mr. Coles submits that that passage is support for his argument that there must be an appreciation by the defendant of the
risk of death or serious injury before a conviction for manslaughter in these circumstances can result. We disagree. The court
is saying simply that there must be proved the necessary high degree of negligence, and a direction which fails to emphasise
that requirement will be defective. It is to Andrews v. Director of Public: Prosecutions [1937] A.C. 576 , that one must turn to
discover the definition of the requisite degree of negligence. Lord Atkin, at p. 582, cites with approval the words of Lord
Hewart C.J. in Rex v. Bateman (1925) 19 Cr.App.R. 8 , and goes on to say, at p. 583:

”Simple lack of care such as will constitute civil liability is not enough; for purposes of the criminal
law there are degrees of negligence: and a very high degree of negligence is required to be proved
before the felony is established. Probably of all the epithets that can be applied ‘reckless’ most nearly
covers the case. It is difficult to visualise a case of death caused by reckless driving in the connotation
of that term in ordinary speech which would not justify a conviction for manslaughter: but it is
probably not all-embracing for ‘reckless’ suggests an indifference to risk whereas the accused may
have appreciated the risk and intended to avoid it and yet have shown such a high degree of
negligence in the means adopted to avoid the risk as would justify a conviction.”

It is clear from that passage that indifference to an obvious risk and appreciation of such risk, coupled with a determination
nevertheless to run it, are both examples of recklessness.

The duty which a defendant has undertaken is a duty of caring for the health and welfare of the infirm person. What the
prosecution have to prove is a breach of that duty in such circumstances that the jury feel convinced that the defendant’s
conduct can properly be described as reckless, that is to say a reckless disregard of danger to the health and welfare of the
infirm person. Mere inadvertence is not enough. The defendant must be proved to have been indifferent to an obvious risk
of injury to health, or actually to have foreseen the risk but to have determined nevertheless to run it.

The direction given by the judge was wholly in accord with those principles. If any, criticism is to be made it would be that
the direction was unduly favourable to the defence. The appeals against conviction therefore fail.

As to sentence, it is submitted on behalf of the appellant Stone that a term of three years was, in all the circumstances,
excessive and that the difference in culpability between the two appellants was not accurately *364 reflected in the wide
variation between their sentences. It is clear that a sentence of immediate imprisonment was unavoidable, if for nothing else
at least to mark the public disapproval of such behaviour. We think, however, that we are now able to extend some mercy to

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this man who is greatly handicapped. We therefore propose to substitute a sentence of 12 months’ imprisonment for the
three years ordered by the judge.

Representation

Solicitors: Registrar of Criminal Appeals ; Director of Public Prosecutions .

Appeals against conviction dismissed. Appeal by the appellant Stone against sentence allowed. Sentence varied. Certificate
under section 33 (2) of the Criminal Appeal Act 1968 that point of law of general public importance was involved in the
decision, namely, “whether in a case of manslaughter it is necessary to prove that the defendant was reckless as to whether
the victim would suffer death or serious bodily harm.” Leave to appeal refused. (L. N. W. )

(c) Incorporated Council of Law Reporting for England & Wales

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