R. v Miller [1982] UKHL 6

House of Lords
Between
R.AppellantMillerRespondent
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal (Criminal Division) of the 3rd day of March 1982 complained of in the said Appeal be, and the same is hereby, Affirmed and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Certified Question be answered in the affirmative: And it is also further Ordered, That the Costs incurred by the Respondent in the Courts below and also the Costs incurred by him in respect of the said Appeal to this House be paid out of central funds pursuant to section 10 of the Costs in Criminal Cases Act 1973, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments.Cler: Parliamentor:

HOUSE OF LORDS

REGINA (RESPONDENT)

v.

MILLER (APPELLANT)

(ON APPEAL FROM THE COURT OF APPEAL (CRIMINAL DIVISION))

Lord Diplock Lord Keith of Kinkel Lord Bridge of Harwich Lord Brandon of Oakbrook Lord Brightman

Lord Diplock

My Lords,The facts which give rise to this appeal are sufficiently narrated in the written statement made to the police by the appellant Miller. That statement, subject to two minor orthographical corrections, reads:—
"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."
He was charged upon indictment with the offence of "arson contrary to section 1(1) and (3) of the Criminal Damage Act, 1971"; the particulars of offence were 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 was tried in the Leicester Crown Court before a recorder and a jury. He did not give evidence, and the facts as set out in his statement were not disputed. He was found guilty and sentenced to six months' imprisonment.From his conviction he appealed to the Court of Appeal upon the ground, which is one of law alone, that the undisputed facts did not disclose any offence under section (1) of the Criminal Damage Act 1971. The appeal was dismissed, but leave to appeal to your Lordships' House was granted by the Court of Appeal who certified that the following question of law of general public importance was involved."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 question speaks of "actus reus". This expression is derived from Coke's brocard in his 3rd Inst. ch. i. fo.10:
"Actus non facit reum, nisi mens sit rea", by converting incorrectly into an adjective the word reus which was there used correctly in the accusative case as a noun. As long ago as 1889 in Reg. v. Tolson (1889) 23 QBD 168 , 185-187, Stephen J. when dealing with a statutory offence, as are your Lordships in the instant case, condemned the phrase as likely to mislead, though his criticism in that case was primarily directed to the use of the expression "mens rea"
. In the instant case, as the argument before this House has in my view demonstrated, it is the use of the expression "actus reus"2that is liable to mislead, since it suggests that some positive act on the part of the accused is needed to make him guilty of a crime and that a failure or omission to act is insufficient to give rise to criminal liability unless some express provision in the statute that creates the offence so provides.My Lords,it would I think be conducive to clarity of analysis of the ingredients of a crime that is created by statute, as are the great majority of criminal offences today, if we were to avoid bad Latin and instead to think and speak, (as did Sir James Fitzjames Stephen in those parts of his judgment in Reg. v. Tolson to which I referred at greater length in Sweet v. Parsley [1970] A. C. 132, 162/3) about the conduct of the accused and his state of mind at the time of that conduct, instead of speaking of actus reus and mens rea.The question before your Lordships in this appeal is one that is confined to the true construction of the words used in particular provisions in a particular statute, viz. section 1(1) and (3) of the Criminal Damage Act 1971. Those particular provisions will fall to be construed in the light of general principles of English criminal law so well established that it is the practice of parliamentary draftsmen to leave them unexpressed in criminal statutes, on the confident assumption that a court of law will treat those principles as intended by parliament to be applicable to the particular offence unless expressly modified or excluded. But this does not mean that your Lordships are doing any more than construing the particular statutory provisions. These I now set out:—
"(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."
This definition of arson makes it a "result-crime" in the classification adopted by Professor Gordon in his work The Criminal Law of Scotland 2nd Ed. (1978). The crime is not complete unless and until the conduct of the accused has caused property belonging to another to be destroyed or damaged.In the instant case property belonging to another, the house, was damaged; it was not destroyed. So in the interest of brevity it will be convenient to refer to damage to property and omit reference to destruction. I should also mention, in parenthesis, that in this appeal your Lordships are concerned only with the completed crime of arson, not with related inchoate offences such as attempt or conspiracy to destroy or damage property belonging to another, to which somewhat different considerations will apply. Nor does this appeal raise any question of "lawful excuse". None was suggested.The first question to be answered where a completed crime of arson is charged is:
"Did a physical act of the accused start the fire which spread and "damaged property belonging to another (or did his act cause an existing fire, "which he had not started but which would otherwise have burnt itself out "harmlessly, to spread and damage property belonging to another)?"
I have added the words in brackets for completeness. They do not arise in the instant case; in cases where they do, the accused, for the purposes of the analysis which follows, may be regarded as having started a fresh fire.The first question is a pure question of causation; it is one of fact to be decided by the jury in a trial upon indictment. It should be answered "No" if, in relation to the fire during the period starting immediately before its ignition and ending with its extinction, the role of the accused was at no time more than that of a passive bystander. In such a case the subsequent questions to which I shall be turning would not arise. The conduct of the parabolical priest and Levite on the road to Jericho may have been indeed deplorable, but English law has not so far developed to the stage of treating it as criminal; and if it ever were to do so there would be difficulties in defining what should be the limits of the offence.3If on the other hand the question, which I now confine to:
"Did a physical act "of the accused start the fire which spread and damaged property belonging to "another?", is answered "
Yes", as it was by the jury in the instant case, then for the purpose of the further questions the answers to which are determinative of his guilt of the offence of arson, the conduct of the accused, throughout the period from immediately before the moment of ignition to the completion of the damage to the property by the fire, is relevant; so is his state of mind throughout that period.Since arson is a result-crime the period may be considerable, and during it the conduct of the accused that is causative of the result may consist not only of his doing physical acts which cause the fire to start or spread but also of his failing to take measures that lie within his power to counteract the danger that he has himself created. And if his conduct, active or passive, varies in the course of the period, so may his state of mind at the time of each piece of conduct. If at the time of any particular piece of conduct by the accused that is causative of the result, the state of mind that actuates his conduct falls within the description of one or other of the states of mind that are made a necessary ingredient of the offence of arson by section 1(1) of the Criminal Damage Act 1971, (i.e. intending to damage property belonging to another or being reckless as to whether such property would be damaged) I know of no principle of English criminal law that would prevent his being guilty of the offence created by that subsection. Likewise I see no rational ground for excluding from conduct capable of giving rise to criminal liability, conduct which consists of failing to take measures that lie within one's power to counteract a danger that one has oneself created, if at the time of such conduct one's state of mind is such as constitutes a necessary ingredient of the offence. I venture to think that the habit of lawyers to talk of "actus reus", suggestive as it is of action rather than inaction, is responsible for any erroneous notion that failure to act cannot give rise to criminal liability in English law.No one has been bold enough to suggest that if, in the instant case, the accused had been aware at the time that he dropped the cigarette that it would probably set fire to his mattress and yet had taken no steps to extinguish it he would not have been guilty of the offence of arson, since he would have damaged property of another being reckless as to whether any such property would be damaged.I cannot see any good reason why, so far as liability under criminal law is concerned, it should matter at what point of time before the resultant damage is complete a person becomes aware that he has done a physical act which, whether or not he appreciated that it would at the time when he did it, does in fact create a risk that property of another will be damaged; provided that, at the moment of awareness, it lies within his power to take steps, either himself or by calling for the assistance of the fire brigade if this be necessary, to prevent or minimise the damage to the property at risk.Let me take first the case of the person who has thrown away a lighted cigarette expecting it to go out harmlessly, but later becomes aware that, although he did not intend it to do so, it has, in the event, caused some inflammable material to smoulder and that unless the smouldering is extinguished promptly, an act that the person who dropped the cigarette could perform without danger to himself or difficulty, the inflammable material will be likely to burst into flames and damage some other person's property. The person who dropped the cigarette deliberately refrains from doing anything to extinguish the smouldering. His reason for so refraining is that he intends that the risk which his own act had originally created, though it was only subsequently that he became aware of this, should fructify in actual damage to that other person's property; and what he so intends, in fact occurs. There can be no sensible reason why he should not be guilty of arson. If he would be guilty of arson, having appreciated the risk of damage at the very moment of dropping the lighted cigarette, it would be quite irrational that he should not be guilty if he first appreciated the risk at some later point in time but when it was still possible for him to take steps to prevent or minimise the damage.4In that example the state of mind involved was that described in the definition of the statutory offence as "intending" to damage property belonging to another. This state of mind necessarily connotes an appreciation by the accused that the situation that he has by his own act created involves the risk that property belonging to another will be damaged. This is not necessarily so with the other state of mind, described in the definition of the statutory offence as "being reckless as to whether any such property would be damaged". To this other state of mind I now turn; it is the state of mind which is directly involved in the instant case. Where the state of mind relied upon by the prosecution is that of "intending", the risk of damage to property belonging to another created by the physical act of the accused need not be such as would be obvious to anyone who took the trouble to give his mind to it; but the accused himself cannot form the intention that it should fructify in actual damage unless he himself recognises the existence of some risk of this happening. In contrast to this, where the state of mind relied upon is "being reckless", the risk created by the physical act of the accused that property belonging to another would be damaged must be one that would be obvious to anyone who had given his mind to it at whatever is the relevant time for determining whether the state of mind of the accused fitted the description "being reckless whether such property "would be damaged". Reg. v. Caldwell [1982] AC 341 , 352; see also Reg. v. Lawrence [1982] A.C. 510, 526 for a similar requirement in the mental element in the statutory offence of reckless driving.In Reg. v. Caldwell this House was concerned with what was treated throughout as being a single act of the accused: viz. starting a fire in the ground floor room of a residential hotel which caused some damage to it; although, if closer analysis of his conduct, as distinct from his state of mind, had been relevant, what he did must have been recognised as consisting of a series of successive acts. Throughout that sequence of acts, however, the state of mind of Caldwell remained unchanged, his acknowledged intention was to damage the hotel and to revenge himself upon its owner, and he pleaded guilty to an offence under section 1(1) of the Act; the question at issue in the appeal was whether in carrying out this avowed intention he was reckless as to whether the life of another would be thereby endangered, so as to make him guilty also of the more serious offence under section 1(2). This House did not have to consider the case of an accused who although he becomes aware that, as the result of an initial act of his own, events have occurred that present an obvious risk that property belonging to another will be damaged, only becomes aware of this at some time after he has done the initial act. So the precise language suggested in Caldwell as appropriate in summing up to a jury in the ordinary run of cases under section 1(1) of the Criminal Damage Act 1971 requires some slight adaptation to make it applicable to the particular and unusual facts of the instant case.My Lords,just as in the first example that I took the fact that the accused's intent to damage the property of another was not formed until, as a result of his initial act in dropping the cigarette, events had occurred which presented a risk that another person's property would be damaged, ought not under any sensible system of law to absolve him from criminal liability, so too in a case where the relevant state of mind is not intent but recklessness I see no reason in common sense and justice why mutatis mutandis a similar principle should not apply to impose criminal liability upon him. If in the former case he is criminally liable because he refrains from taking steps that are open to him to try to prevent or minimise the damage caused by the risk he has himself created and he so refrains because he intends such damage to occur, so in the latter case, when as a result of his own initial act in dropping the cigarette events have occurred which would have made it obvious to anyone who troubled to give his mind to them that they presented a risk that another person's property would be damaged, he should likewise be criminally liable if he refrains from taking steps that he within his power to try and prevent the damage caused by the risk that he himself has created, and so refrains either because he has not given any thought to the possibility of there being any such risk or because, although he has recognised that there was some risk involved, he has nonetheless decided to take that risk.5My Lords,in the instant case the prosecution did not rely upon the state of mind of the accused as being reckless during that part of his conduct that consisted of his lighting and smoking a cigarette while lying on his mattress and falling asleep without extinguishing it. So the jury were not invited to make any finding as to this. What the prosecution did rely upon as being reckless was his state of mind during that part of his conduct after he awoke to find that he had set his mattress on fire and that it was smouldering, but did not then take any steps either to try to extinguish it himself or to send for the fire brigade, but simply went into the other room to resume his slumbers, leaving the fire from the already smouldering mattress to spread and to damage that part of the house in which the mattress was.The recorder, in his lucid summing-up to the jury (they took twenty-two minutes only to reach their verdict) told them that the accused having by his own act started a fire in the mattress which, when he became aware of its existence, presented an obvious risk of damaging the house, became under a duty to take some action to put it out. The Court of Appeal upheld the conviction, but their ratio decidendi appears to be somewhat different from that of the recorder. As I understand the judgment, in effect it treats the whole course of conduct of the accused, from the moment at which he fell asleep and dropped the cigarette on to the mattress until the time the damage to the house by fire was complete, as a continuous act of the accused, and holds that it is sufficient to constitute the statutory offence of arson if at any stage in that course of conduct the state of mind of the accused, when he fails to try to prevent or minimise the damage which will result from his initial act, although it lies within his power to do so, is that of being reckless as to whether property belonging to another would be damaged.My Lords,these alternative ways of analysing the legal theory that justifies a decision which has received nothing but commendation for its accord with commonsense and justice, have, since the publication of the judgment of the Court of Appeal in the instant case, provoked academic controversy. Each theory has distinguished support. Professor J. C. Smith espouses the "duty theory"; Professor Glanville Williams who, after the decision of the Divisional Court in Fagan v. Metropolitan Police Commissioner [1969] 1Q.B. 439 appears to have been attracted by the duty theory, now prefers that of the continuous act. When applied to cases where a person has unknowingly done an act which sets in train events that, when he becomes aware of them, present an obvious risk that property belonging to another will be damaged, both theories lead to an identical result; and since what your Lordships are concerned with is to give guidance to trial judges in their task of summing up to juries, I would for this purpose adopt the duty theory as being the easier to explain to a jury; though I would commend the use of the word "responsibility", rather than "duty" which is more appropriate to civil than to criminal law since it suggests an obligation owed to another person, i.e. the person to whom the endangered property belongs, whereas a criminal statute defines combinations of conduct and state of mind which render a person liable to punishment by the State itself.While in the general run of cases of destruction or damage to property belonging to another by fire (or other means) where the prosecution relies upon the recklessness of the accused, the direction recommended by this House in Reg. v. Caldwell (ubi sup.) is appropriate, in the exceptional case, (which is most likely to be one of arson and of which the instant appeal affords a striking example) where the accused is initially unaware that he has done an act that in fact sets in train events which, by the time the accused becomes aware of them, would make it obvious to anyone who troubled to give his mind to them that they present a risk that property belonging to another would be damaged, a suitable direction to the jury would be: that the accused is guilty of the offence under section 1(1) of the Criminal Damage Act 1971 if, when he does become aware that the events in question have happened as a result of his own act, he does not try to prevent or reduce the risk of damage by his own efforts or if necessary by sending for help from the fire brigade and the reason why he does not is either because he has not given any thought to the possibility of there being any such risk or because having recognised that there was some risk involved he has decided not to try to prevent or reduce it.6So, while deprecating the use of the expression "actus reus" in the certified question, I would answer that question "Yes" and would dismiss the appeal.

Lord Keith of Kinkel

. my lords,For the reasons given in the speech of my noble and learned friend, Lord Diplock, which I have had the benefit of reading in draft and with which I agree, I too would dismiss this appeal.

Lord Bridge of Harwich

My Lords,For the reasons given by my noble and learned friend, Lord Diplock, I would dismiss this appeal.

Lord Brandon of Oakbrook

My Lords,I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Diplock. I agree with it, and for the reasons which he gives I would answer the certified question "Yes" and dismiss the appeal.

Lord Brightman

My Lords,I would dismiss this appeal for the reasons given by my noble and learned friend, Lord Diplock.

B964601 Dd. 8209971