Rex v Huggins and Barnes: KBD 1730

Gaoler – Murder of Prisoner by Lack of Care

The defendant Huggins was warden of the Fleet Prison. A prisoner, Arne, died in 1725. Barnes, a gaoler had put him in a room ‘without fire, chamber-pot or close-stool, the walls being damp and unwholesome, and the room built over the common sewer’. Thus confined, Arne ‘by reason of his imprisonment in the said room sickened, and by duress thereof died’ 44 days later. Huggins was indicted and tried at the Old Bailey for his murder, under an allegation that as warden of the Fleet he ‘had the care and custody of the prisoners committed thither’, that ‘Barnes was his servant, employed by him in taking care of the prisoners’, that at the time of Arne’s imprisonment Barnes and Huggins knew the room to be as before described and that Huggins was ‘aiding and abetting Barnes in committing the said felony and murder.’ The jury had returned a special verdict finding that Barnes was in fact the servant of Huggins’ deputy, Gibbon, and that Huggins had visited the cell only once, some 15 days before Arne died.
Held: In a certiorari in the Kings Bench, the judges concluded that Barnes, if indicted, would, on the facts as found by the jury, have been guilty of murder, but that Huggins was not guilty.
Lord Raymond LCJ said: ‘Though he was warden, yet it being found, that there was a deputy; he is not, as warden, guilty of the facts committed under the authority of his deputy. He shall answer as superior for his deputy civilly, but not criminally. It has been settled, that though a sheriff must answer for the offences of his gaoler civilly, that is, he is subject in an action, to make satisfaction to the party injured; yet he is not to answer criminally for the offences of his under-officer. He only is criminally punishable, who immediately does the act, or permits it to be done. Hale’s P. C. 114. So that if an act be done by an under-officer, unless it is done by the command or direction, or with the consent of the principal, the principal is not criminally punishable for it. In this case the fact was done by Barnes; and it no where appears in the special verdict, that the prisoner at the Bar ever commanded, or directed, or consented to this duress of imprisonment, which was the cause of Arne’s death.’
In Strange’s report: ‘It is a point not to be disputed, but that in criminal cases the principal is not answerable for the act of the deputy, as he is in civil cases: they must each answer for their own acts, and stand or fall by their own behaviour. All the authors that treat of criminal proceedings, proceed on the foundation of this distinction; that to affect the superior by the act of the deputy, there must be the command of the superior, which is not found in this case.’
Fitz-Gibbons reported: ‘The act of the deputy cannot criminally affect the principal; so that unless the act be by command, consent, or privity of the principal, so as to make him an abettor, he cannot be guilty.’

Lord Raymond LCJ, Lord Chief Justice
(1730) 2 Str 883, (1730) 2 Ld Raym 1574, (1730) Fitz 177
England and Wales
Cited by:
CitedCraik, Chief Constable of Northumbria Police, Regina (on The Application of) v Newcastle Upon Tyne Magistrates’ Court Admn 30-Apr-2010
The claimant a retired Chief Constable sought judicial review of a decision to commit him for trial on a charge of unlawful imprisonment. The suspect and now prosecutor had been arrested and held in custody, but without the necessary timely review . .

Lists of cited by and citing cases may be incomplete.

Prisons, Crime, Vicarious Liability

Leading Case

Updated: 11 November 2021; Ref: scu.408854