## Facts

- The case involved a man (D1) and his mistress (D2), who were jointly indicted for the murder of D1's seven-year-old daughter, Nelly.
- Evidence at trial showed that Nelly was systematically starved to death.
- The jury found that both D1 and D2 intentionally deprived Nelly of food, with D2 being the primary motivator.
- Nelly died as a result of this intentional neglect.
- Both defendants appealed their convictions to the Court of Criminal Appeal, challenging their criminal responsibility based on omission rather than an act.

## Issues

1. Whether criminal liability for murder can arise from omissions rather than positive acts where a legal duty to act exists.
2. Whether both D1 and D2 had a legal duty towards Nelly, arising from parental relationship or assumed responsibility.
3. Whether the required mens rea for murder can be satisfied by intentional omission.

## Decision

- The Court of Criminal Appeal affirmed the convictions of both D1 and D2.
- It held that D1 had a legal duty to act by virtue of being Nelly’s parent.
- D2 was found to have assumed responsibility for Nelly and had a corresponding legal duty to provide care.
- The Court determined that the deliberate omission to act, where such a duty exists, can constitute the actus reus for murder.
- The presence of intent to kill or cause grievous bodily harm (mens rea) was established even though the conduct in question was an omission.

## Legal Principles

- Criminal liability is not confined to positive acts; an omission can suffice where there is a legal duty to act.
- Legal duty may arise from parental responsibility or by assuming care and control over another, extending liability for omissions beyond parents to those accepting such responsibility.
- The required mens rea for murder—intention to kill or cause grievous bodily harm—applies equally to cases of omission where a duty is owed.
- This case provided precedent for criminal liability in situations of neglect leading to death, expanding the traditional scope of actus reus.

## Conclusion

R v Gibbins & Proctor established that individuals can be criminally liable for murder when, having an established legal duty to act—such as through parenthood or assumed custodial responsibility—they intentionally fail to do so, resulting in death. The case is foundational in recognising omission as a basis for liability where a duty exists and the requisite intent is present.


R v Gibbins & Proctor (1918) 13 Cr App R 134