ARCHBOLD 2013

SWEET & MAXWELL

II NATURE OF INDICTABLE OFFENCES

A. WHEN AN INDICTMENT LIES

(1) GENERAL

1-2 An indictment is the ordinary common law remedy for all treasons,
misprisions of treasons and offences of a public nature: 
2 Hawk. c. 25, ss.1, 4. It is also the means by which certain
offences created by or under statute are brought before the Crown
Court for trial

(2) Breach of common law duty

1-3 An indictment lies at common law for a breach of duty which is not
a mere private injury but an outrage on the moral duties of society,
e.g. neglect to provide sufficient food, medical aid or other 
necessaries, for a person unable to provide for himself, and for 
whom the defendant is obliged by duty or contract to provide, where
such neglect injures the health of that person, whether the person
injured is of extreme age (R. v. Instan [1893] 1 Q.B. 450), or of 
tender years (R. v. Senior [1899] 1 Q.B. 283 at 289), or is the 
defendant or servant (R. v. Smith (1865) L. & C. 607), or an 
apprentice (R. v. Smith (1837) 8 C. & P. 153), or is a person of 
unsound mind (R. v. Pelham [1846] 8 Q.B. 959). See also post, 19-22
et seq. (manslaughter). The common law is strengthened by statutory
provisions, e.g. Offences against the Person Act 1861, s.26 (servants
and apprentices); CYPA 1933, s.1 (persons under 16); MHA 1983, s.127
(persons of unsound mind).It being a democratic principle, however,
that it is for Parliament and not the executive or judges to 
determine whether conduct not previously regarded as criminal should
be treated as such, statute is now to be regarded as the sole source
of new offences: R. v. Jones; Ayliffe v. DPP; Swain v. Same [2007] 
1 A.C. 136, HL; and R. (Gentle) v. Prime Minister [2008] 1 A.C. 1356,
HL (at [40]) (and see post, 1-5). 
Unless a statute specifically so provides, or the case is one
in which the common law, in the criminal context, imposes a duty or 
responsibility on one person to act in a particular way towards 
another, then a mere omission to act cannot make the person, who so 
fails to do something, guilty of a criminal offence: see R. v. Miller
[1983] 2 A.C. 161, HL, where the appellant was held liable for his
reckless omission to take steps to nullify a risk of damage to 
property which had been created by his own earlier inadvertent act
(see furth post, 23-10, 23-31). The House of Lords approached the
facts on the basis that-unlike the case of the mere bystander-the 
appellant had a duty to act.  

(3) Acts prejudicing the public

1-4 An indictment lies at common law for any act of wilful negligence
which endangers human life or health: Williams v. East India Co.
(1802) 3 East 192; Shillito v. Thompson (1875) 1 Q.B.D. 12; or 
against an innkeeper for failing to provide traveller with food and
lodging without reasonable excuse, on being tendered a reasonable 
price; the question of what amounts to a reasonable excuse being a 
question of fact for the jury: R. v. Higgins (1948) 1 K.B. 165 32
Cr.App.R. 113, CCA. 
An indictment also lies for all nuisances of a public 
nature, though occasioned by an act in itself innocent, if the 
creation of the nuisance is the probable consequence of the act: 
R. v. Moore (1832) 3 B. & Ad. 184; and see 1 Hawk. c. 75 ss.6, 7.
As to the offence of public nuisance generally, see paos, 31-40 et
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SWEET & MAXWELL

II NATURE OF INDICTABLE OFFENCES

A. WHEN AN INDICTMENT LIES

(1) GENERAL

1-2 An indictment is the ordinary common law remedy for all treasons,
misprisions of treasons and offences of a public nature: 
2 Hawk. c. 25, ss.1, 4. It is also the means by which certain
offences created by or under statute are brought before the Crown
Court for trial

(2) Breach of common law duty

1-3 An indictment lies at common law for a breach of duty which is not
a mere private injury but an outrage on the moral duties of society,
e.g. neglect to provide sufficient food, medical aid or other 
necessaries, for a person unable to provide for himself, and for 
whom the defendant is obliged by duty or contract to provide, where
such neglect injures the health of that person, whether the person
injured is of extreme age (R. v. Instan [1893] 1 Q.B. 450), or of 
tender years (R. v. Senior [1899] 1 Q.B. 283 at 289), or is the 
defendant or servant (R. v. Smith (1865) L. & C. 607), or an 
apprentice (R. v. Smith (1837) 8 C. & P. 153), or is a person of 
unsound mind (R. v. Pelham [1846] 8 Q.B. 959). See also post, 19-22
et seq. (manslaughter). The common law is strengthened by statutory
provisions, e.g. Offences against the Person Act 1861, s.26 (servants
and apprentices); CYPA 1933, s.1 (persons under 16); MHA 1983, s.127
(persons of unsound mind).It being a democratic principle, however,
that it is for Parliament and not the executive or judges to 
determine whether conduct not previously regarded as criminal should
be treated as such, statute is now to be regarded as the sole source
of new offences: R. v. Jones; Ayliffe v. DPP; Swain v. Same [2007] 
1 A.C. 136, HL; and R. (Gentle) v. Prime Minister [2008] 1 A.C. 1356,
HL (at [40]) (and see post, 1-5). 
Unless a statute specifically so provides, or the case is one
in which the common law, in the criminal context, imposes a duty or 
responsibility on one person to act in a particular way towards 
another, then a mere omission to act cannot make the person, who so 
fails to do something, guilty of a criminal offence: see R. v. Miller
[1983] 2 A.C. 161, HL, where the appellant was held liable for his
reckless omission to take steps to nullify a risk of damage to 
property which had been created by his own earlier inadvertent act
(see furth post, 23-10, 23-31). The House of Lords approached the
facts on the basis that-unlike the case of the mere bystander-the 
appellant had a duty to act.  

(3) Acts prejudicing the public

1-4 An indictment lies at common law for any act of wilful negligence
which endangers human life or health: Williams v. East India Co.
(1802) 3 East 192; Shillito v. Thompson (1875) 1 Q.B.D. 12; or 
against an innkeeper for failing to provide traveller with food and
lodging without reasonable excuse, on being tendered a reasonable 
price; the question of what amounts to a reasonable excuse being a 
question of fact for the jury: R. v. Higgins (1948) 1 K.B. 165 32
Cr.App.R. 113, CCA. 
An indictment also lies for all nuisances of a public 
nature, though occasioned by an act in itself innocent, if the 
creation of the nuisance is the probable consequence of the act: 
R. v. Moore (1832) 3 B. & Ad. 184; and see 1 Hawk. c. 75 ss.6, 7.
As to the offence of public nuisance generally, see paos, 31-40 et
seq.