R v Miller [1983] 2 AC 161

Miller, sleeping on a mattress in a house, accidentally started a fire by a cigarette. On waking and seeing the mattress alight, he simply moved rooms and went back to sleep. The House of Lords held that, having created the danger, his failure to act could constitute arson.

Facts

The appellant, James Miller, had been staying at a house for a couple of weeks. After an evening of drinking, he returned to the house and went to sleep on a mattress while smoking. His own signed statement to the police recorded the events:

“Last night I went out for a few drinks and at closing time I went back to
“the house where I have been kipping for a couple of weeks. I went upstairs
“into the back bedroom where I’ve been sleeping. I lay on my mattress and
“lit a cigarette. I must have fell to sleep because I woke up to find the
“mattress on fire. I just got up and went into the next room and went back
“to sleep. Then the next thing I remember was the police and fire people
“arriving. I hadn’t got anything to put the fire out with so I just left it.”

The fire spread from the mattress and damaged the house, No. 9 Grantham Road, Sparkbrook, which belonged to another person.

Miller was indicted for arson under section 1(1) and (3) of the Criminal Damage Act 1971. The particulars alleged that he:

“on a date unknown between the 13th and 16th days of August 1980,
“without lawful excuse damaged by fire a house known as No. 9 Grantham
“Road, Sparkbrook, intending to do damage to such property or recklessly
“as to whether such property would be damaged.”

He did not give evidence at his trial before a recorder and jury in the Leicester Crown Court. The facts in his police statement were undisputed. He was convicted and sentenced to six months’ imprisonment.

Issues

Miller appealed to the Court of Appeal on the single ground of law that the undisputed facts disclosed no offence under section 1 of the Criminal Damage Act 1971, because the fire was started accidentally and the alleged criminality lay only in his subsequent failure to act.

The Court of Appeal dismissed the appeal but certified the following question of law of general public importance:

“Whether the actus reus of the offence of Arson is present when a
“Defendant accidentally starts a fire and thereafter, intending to destroy or
“damage property belonging to another or being reckless as to whether any
“such property would be destroyed or damaged, fails to take any steps to
“extinguish the fire or prevent damage to such property by that fire?”.

The core issue before the House of Lords was therefore whether, on a proper construction of section 1(1) and (3) of the Criminal Damage Act 1971, the necessary conduct element of arson is present where a defendant inadvertently starts a fire but, on later discovering it, intentionally or recklessly fails to take reasonable steps to prevent or minimise damage.

Judgment

Statutory framework and nature of the offence

The House considered section 1(1) and (3) of the Criminal Damage Act 1971, which provide, so far as material:

“(1) A person who without lawful excuse destroys or damages any
“property belonging to another intending to destroy or damage any such
“property or being reckless as to whether any such property would be
“destroyed or damaged shall be guilty of an offence.”

“(3) An offence committed under this section by destroying or damaging
“property by fire shall be charged as arson.”

Lord Diplock described this statutory definition of arson as creating a “result-crime”: the offence is only complete when the accused’s conduct has caused destruction of or damage to property belonging to another.

He emphasised that the relevant period for assessing both conduct and state of mind runs from immediately before the ignition of the fire until the completion of the damage. During this period, the conduct causative of the result may consist not only of positive acts (such as starting or spreading the fire) but also of failures to take measures within the accused’s power to counteract the danger he has created.

Omissions and the conduct element

Addressing the expression “actus reus” used in the certified question, Lord Diplock observed that it is liable to mislead by suggesting that only positive acts can found criminal liability and that omissions cannot do so unless expressly provided for. He stated that there is no principle of English criminal law preventing liability where the conduct causative of the prohibited result consists of failing to take steps within one’s power to counteract a danger that one has oneself created, provided the requisite state of mind is present at the time of that failure.

In this context, he explained that where the defendant’s physical act has started a fire which damages another’s property, the jury must consider his conduct and state of mind throughout the relevant period. If at any point in that period the defendant’s conduct which is causative of the damage is accompanied by a culpable mental state of intention or recklessness within section 1(1), liability may arise.

Lord Diplock considered the situation where a person unintentionally sets in train events which, by the time he becomes aware of them, present an obvious risk that another’s property will be damaged. He reasoned that it would be irrational, and inconsistent with a sensible system of law, to absolve such a person from criminal liability if, on becoming aware of the risk and having it within his power to prevent or minimise the damage, he deliberately refrains from acting and thereby allows the risk to materialise.

He gave the example of a person who throws away a lighted cigarette expecting it to go out, but later becomes aware that it has caused combustible material to smoulder and that, unless promptly extinguished, it will likely damage another’s property. If that person intentionally leaves the smouldering material so that the damage in fact occurs, Lord Diplock considered that there can be no sensible reason why he should not be guilty of arson. The timing of his appreciation of the risk (whether at the moment of the initial act or later) should not matter for liability, provided he can still intervene to prevent or reduce the damage.

Recklessness

The House addressed the mental element of “being reckless” under section 1(1), drawing on Reg. v. Caldwell and Reg. v. Lawrence. Lord Diplock contrasted intention and recklessness. For intention, the accused must personally recognise the risk that his conduct may cause damage. For recklessness, however, he explained that the risk created by the accused’s act must be one that would be obvious to anyone who troubled to give his mind to it at the relevant time for assessing recklessness.

He then adapted the approach in Caldwell to the special facts where the accused only becomes aware after the initial act that events have occurred which present such an obvious risk. In such a case, if those events would have made the risk obvious to anyone who gave thought to them, the accused is criminally liable if, on becoming aware that the events have occurred as a result of his own act, he refrains from taking steps within his power to prevent or minimise the damage, either because he gives no thought to the possibility of risk or because, recognising some risk, he nevertheless decides to take it.

Application to Miller

In Miller’s case, the prosecution did not allege that he was reckless when lighting and smoking the cigarette or when falling asleep on the mattress. The alleged recklessness related to his conduct after he awoke to find the mattress on fire. He then knew that his own prior act had created a fire which presented an obvious risk of damage to the house, yet he took no steps either to extinguish it or to summon the fire brigade and instead went into another room to sleep, leaving the fire to spread.

Lord Diplock noted that the recorder had directed the jury that, having started a fire that presented an obvious risk of damaging the house, Miller came under a duty to take some action to put it out. The Court of Appeal upheld the conviction, apparently reasoning that Miller’s whole course of conduct from falling asleep with a cigarette until completion of the damage could be treated as a continuous act, and that recklessness at any stage of that conduct would suffice for arson.

Lord Diplock referred to academic debate between what he called the “duty theory” and the “continuous act” theory. He considered that, in cases like Miller’s, both theories lead to the same result. For practical guidance to juries, he preferred the “duty” (or, as he favoured, “responsibility”) analysis: when a person by his own act creates a danger, and later becomes aware of events which obviously threaten another’s property, he bears a responsibility to take reasonable steps within his power to prevent or minimise damage.

He suggested that, in such exceptional cases, a suitable direction to the jury is that the defendant will be guilty of the section 1(1) offence if, when he becomes aware that, as a result of his own act, events have occurred which obviously risk damaging another’s property, he does not try to prevent or reduce that risk, either by his own efforts or by summoning help, and that his reason for not doing so is either that he has not thought about the possibility of such risk or that, having recognised some risk, he has chosen not to try to prevent or reduce it.

Applying this analysis, Miller’s omission after becoming aware of the smouldering mattress and its obvious risk to the house, coupled with his reckless state of mind, constituted the necessary conduct element of arson under section 1(1) and (3).

Conclusion of the House

Lord Diplock answered the certified question in the affirmative and would dismiss the appeal. The other members of the Appellate Committee (Lords Keith of Kinkel, Bridge of Harwich, Brandon of Oakbrook and Brightman) all expressly agreed with Lord Diplock’s reasons and conclusions. The House also ordered that the order of the Court of Appeal (Criminal Division) of 3 March 1982 be affirmed, that the appeal be dismissed, that the certified question be answered “in the affirmative”, and that the respondent’s costs be paid out of central funds under the Costs in Criminal Cases Act 1973.

Implications

This decision confirms that, under section 1 of the Criminal Damage Act 1971, a defendant who inadvertently creates a dangerous situation can commit arson through a later omission, where at the time of the omission he has the requisite intention or recklessness and it remains within his power to prevent or minimise damage.

The case clarifies that the conduct element of such an offence is not limited to the initial act that starts the fire, but extends over the whole period up to completion of the damage. It underlines that failing to take reasonable steps to counteract a danger one has created, after becoming aware of it, can amount to the relevant conduct for a result crime like arson.

The judgment gives practical guidance on directions to juries in cases where the defendant is initially unaware of having created a risk but later becomes aware of it. It also contributes to the broader understanding of recklessness in criminal damage and the role of omissions in English criminal law.

Verdict: The House of Lords affirmed the order of the Court of Appeal (Criminal Division), answered the certified question in the affirmative, and dismissed Miller’s appeal, thereby upholding his conviction for arson.

Source: R v Miller [1983] 2 AC 161