Regina (Respondent)
v.
Miller (Appellant)
(On Appeal from the Court of Appeal (Criminal Division))
JUDGMENT
Die Jovis 17° Martii 1983
Upon Report from the Appellate Committee to whom was
referred the Cause Regina against Miller, That the
Committee had heard Counsel as well on Wednesday the 16th
as on Thursday the 17th days of February last upon the
Petition and Appeal of James Miller praying that the
matter of the Order set forth in the Schedule thereto,
namely an Order of Her Majesty’s Court of Appeal (Criminal
Division) of the 3rd day of March 1982, might be reviewed
before Her Majesty the Queen in Her Court of Parliament
and that the said Order might be reversed, varied or
altered or that the Petitioner might have such other
relief in the premises as to Her Majesty the Queen in Her
Court of Parliament might seem meet; and Counsel having
been heard on behalf of the Chief Constable of the West
Midlands Police (on behalf of Her Majesty) the Respondent
to the said Appeal; and due consideration had this day of
what was offered on either side in this Cause:
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 Q.B.D. 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”
2
that 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.
3
If 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.
4
In 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.
5
My 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.
6
So, 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.
Source: https://www.bailii.org/
