CASE: R V MILLER [1982] 2 ALL ER 386

LORD(S): ACKNER, MAY LJJ, STOCKER J

Criminal law Damage to property Arson Actus reus Coincidence of actus reus and mens rea
Accused accidentally starting fire Accused later having opportunity to put out fire Accused failing
to do so Property damaged as a result Whether omission of accused to act a sufficient actus reus
Whether there is coincidence of actus reus and mens rea

BRIEF FACTS:

One night, while squatting in someone else's house, the appellant (Miller) lit a cigarette and then lay
down on a mattress in one of the rooms. He fell asleep before he had finished smoking the cigarette
and it dropped onto the mattress. Later he woke up and saw that the mattress was smoldering. He did
nothing about it and merely moved to another room and went to sleep again. The house caught fire.
The appellant (Miller) was rescued and subsequently charged with arson, contrary to S.1(1) and (3) a
of the Criminal Damage Act 1971. At his trial, he submitted that there was no case to go to the jury
because his omission to put out the fire, which he had started accidentally, could not in the
circumstances amount to a sufficient actus reus. The judge ruled that once he had discovered the
mattress was smoldering the appellant had been under a duty to act. He directed the jury that they
must find the appellant guilty if they concluded that by failing to act the appellant had given no
thought to the possibility of there being an obvious risk that property would be damaged or that, if he
had recognized that there was such a risk, he had still done nothing about it. The accused was
convicted and he consequently appealed wherein his conviction was upheld.

ISSUES FOR DETERMINATION:

1. Whether the actual omission of the appellant to act to put out the fire in the mattress was in
law a sufficient actus reus to constitute the offence alleged.
2. On appeal, the question was raised as to what extent, if at all, except as specifically provided
by statute, an omission to act can sufficiently constitute criminal liability.

HOLDIING OF THE CROWN COURT:

(a) A mere omission to act did not, by itself, give rise to criminal liability unless a statute
specifically so provided or the case was one in which in a criminal context the common law
imposed a duty on a person to act in a particular way towards another, such as a parent to his
child.1 (b) Furthermore, the actus reus and the mens rea normally had to coincide. The
conduct of the accused person had, however, to be looked at as a whole, and if as a whole it
contained both the actus reus and the mens rea they were sufficiently coincident. 2 (c) An
unintentional act followed by an intentional or reckless omission to rectify it or its
consequences could in certain circumstances amount to an intentional or reckless act, i.e.
where there was on the part of the accused person an element of adoption of what he had
unintentionally done earlier by what he deliberately or recklessly failed to do later 3 as was
held in Commonwealth v Cali4, Green v Cross5 and Fagan v Metropolitan Police
Commissioner.6 (d) In the circumstances the whole of the appellant's conduct, from the
moment he lay down with the lighted cigarette until the time he left the mattress smoldering
and moved to another room, had to be regarded as one act, and his failure to extinguish the
incipient fire, once he had discovered it, had a substantial element of adoption on his part of
1
Page 392 of [1982] 2 All ER 386
2
Ibid
3
Page 393 of [1982] 2 All ER 386
4
[1923] 247 Mass 20
5
[1910] 103 LT 279
6
[1968] 3 All ER 442.
 what he had unintentionally done earlier. It followed that the judge had been correct to leave
the case to the jury.7 The appeal would accordingly be later dismissed as discussed below.

ARGUMENTS OF COUNSEL FOR THE APPELANT

Counsel for the appellant in his submissions relied on the case of Commonwealth v Cali.8 That was a
case in which the defendant, Cali, was convicted of burning a building in Leominster in
Massachusetts with intent to injure the insurers of it. At the defendant's trial there was apparently
evidence which tended to show that the defendant either started the fire or, after it had got under way,
purposely refrained from any attempt to extinguish it. He was duly convicted and appealed. The
judgment of the Court of Appeal, delivered by Braley J, ended in this way9;

“The instructions to the jury that, "If a man does start an accidental fire what is his conduct
in respect to it? A question might ariseas if after the fire has started accidentally, and he then
has it within his power and ability to extinguish the fire and he realizes and knows that he
can, and then he forms and entertains an intent to injure an insurance company he can be
guilty of this offence. It is not necessary that the intent be formed before the fire is started,"
also show no error of law. It is true as the defendant contends, that, if he merely neglected in
the emergency of the moment to act, his negligence was not proof of a purpose to commit the
crime charged. The intention, however, to injure could be formed after as well as before the
fire started. On his own admissions the jury were to say whether, when considered in
connection with all the circumstances, his immediate departure from the premises for his
home in Fitchburg, without giving any alarm, warranted the inference of a criminal intent or
state of mind, that the building should be consumed.”10

ARGUMENTS OF COUNSEL FOR THE CROWN

Counsel for the Crown invited the appellant court to find the law as suggested by Professor Glanville
Williams in his Textbook of Criminal Law 11. As an alternative to the way in which the rule is there
stated, counsel submitted that the law is or should be that where a person has created a state of affairs
himself, the consequences of which the criminal law would punish given the relevant mens rea, then if
that person subsequently and with the appropriate mens rea omits to do something which he could do
to prevent the mischief against which the law is directed he is guilty of the relevant criminal offence. 12

JUDGEMENT OF LORD MAY LJ

Lord May LJ observed that; the issue in the instant case is whether the actual omission of the
appellant to act to put out the fire in the mattress was in law a sufficient actus reus to constitute the
offence alleged. This appeal therefore raises the question to what extent, if at all, except as
specifically provided by statute, an omission to act can sufficiently found criminal liability. 13

On such limited authority as there is, we do not dissent from the proposition that unless a statute
specifically so provides, or the case is one in which in the criminal context the common law imposes a
duty on one person to act in a particular way towards another, such as a parent to his or her child, then
a mere omission to act, with nothing more, cannot make the person who so fails to do something
guilty of a criminal offence. Lord May LJ further stated inter alia that;

7
Ibid
8
Supra
9
Pages 2425
10
Page 390 of [1982] 2 All ER 386
11
Pages 143144
12
Page 392 of [1982] 2 All ER 386
13
Page 393 of [1982] 2 All ER 386
 “Save in exceptional cases and subject to what follows, we think that normally the actus reus
and the mens rea must coincide. Nevertheless, we also think that the answer to the problem
which arises in the instant case depends on what is really meant by that last proposition.
Some criminal offences are committed and complete in a second, others occupy a much
longer period in time. We feel that it may well be artificial to consider merely the parts of
what is alleged to be criminal conduct and to conclude that just because they are separate in
point of time an actus reus cannot be conjoined to either a previous or subsequent mens rea
to complete the commission of a crime… In our opinion, an unintentional act followed by
an intentional omission to rectify that act or its consequences can be regarded in toto as an
intentional act. We do not seek to define the rule, if rule it be, any more precisely because
each case must depend on its own facts and we prefer to leave it to the trial judge to give the
jury what he considers to be the appropriate direction in any given case. We would only say
that an unintentional act followed by an intentional omission to rectify it or its
consequences, or a reckless omission to do so when recklessness is a sufficient mens rea
for the particular case, should only be regarded in toto as an intentional or reckless act
when reality and common sense so require this may well be a matter to be left to the
jury…”14

CONCLUSION
The court concluded that as Miller was responsible for having created the dangerous situation, he was
under a duty to take action to resolve it once he became aware of the fire. It was not necessary that the
he was subjectively aware of the risk of damage posed by the fire, provided that this would be obvious
to a reasonable person who troubled to turn his mind to the matter. Miller was therefore held liable for
his omission to take any steps to put out the fire or otherwise seek help, and was accordingly
convicted of arson at the crown court and his conviction was subsequently upheld on appeal.

14
Ibid