R v Miller
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ACKNER,LORD JUSTICE MAY |
| Judgment Date | 03 March 1982 |
| Judgment citation (vLex) | [1982] EWCA Crim J0303-1 |
| Docket Number | No. 3128/A2/81 |
| Court | Court of Appeal (Criminal Division) |
| Date | 03 March 1982 |
[1982] EWCA Crim J0303-1
Lord Justice Ackner
Lord Justice May
and
Mr. Justice Stocker
No. 3128/A2/81
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
MR. P. A. THOMAS appeared on behalf of the Appellant.
MR. D. L. McCARTHY appeared on behalf of the Crown.
On the 26th June, 1981, in the Birmingham Crown Court, this Appellant was convicted of arson and sentenced to six months' imprisonment. His application for leave to appeal against conviction was referred to the full court by the single judge. At the outset of the hearing of this case we granted leave to appeal as it seemed to the court that a pure question of law was involved.
The facts of this case were not in dispute. The Appellant is a man in his late thirties and a vagrant by nature. Early in August, 1980, he began squatting, or "skipping" as he described it, in an unoccupied house owned by a housing association in Grantham Road, Sparkbrook in Birmingham. On the evening of the 14th August, 1980, having certainly taken drink, though not to any extent to be relevant to this case, the Appellant returned to his squat; went to one of the first floor rear bedrooms which he was using; lit a cigarette; and then lay down on a mattress in that room preparatory to going to sleep. Unfortunately he fell asleep before he had finished smoking the cigarette and, either because he had had it in his hand or it was in his mouth when he fell asleep, it dropped on to the mattress on which he was sleeping and set it alight. Some time later the Appellant awoke, saw and realised that the mattress was smouldering but did nothing about it. Indeed, he moved into an adjoining room, leaving the mattress smouldering, and went to sleep in the company of a friend of his who was also occupying the same house. At about 4.15 a.m. on the 15th August, 1980, a police constable saw that the house was on fire. Damage to the extent of some £800 was caused to it. Both the Appellant and his friend had to be woken and rescued from the burning house by the fire brigade. The Appellant was taken to the police station and questioned. To begin with he disclaimed any knowledge of the fire or how it started, but after burns had been discovered on his clothing and on his arm, he accepted that the fire had been his fault. He ultimately made a written statement to the police in these terms: "Last night I went out for a few drinks and at closing time I went back to the house where I have been skipping 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 asleep 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 think 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 indictment charged the Appellant with arson contrary to section 1(1) of the Criminal Damage Act, 1971. The particulars of the offence alleged that without lawful excuse he had damaged by fire the relevant property, intending to damage it or being reckless whether it would be damaged. Following the decision of the House of Lords on the meaning of "reckless" in Commissioner of Police of the Metropolis v. Caldwell (1981) 2 W.L.R. 509, there could be no question that the Appellant had been reckless when, with realisation of what the situation was, he failed to put out the fire in the smouldering mattress and merely moved next door to another room. The mens rea for the alleged offence was therefore present and no question has been raised on this either below or before us.
The issue in this 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.
At the close of the case for the Crown, counsel for the Appellant submitted that there was no case to go to the jury. He argued that no sufficient actus reus had been proved as, on the admitted facts, the mattress had been set on fire accidentally. A mere omission thereafter to put that fire out could not give rise to criminal liability.
This submission was overruled. In his ruling the learned recorder referred to what he described as the old established doctrine that no-one is held criminally responsible in criminal law for the harmful consequences of his omission to act, whether the omission was careless or intentional, unless the prosecution are able to prove that he was under a legal obligation to take action in the particular circumstances in which he was placed. As it is put in Smith and Hogan on Criminal Law, 4th Edition, at page 45: "The question is to determine when the criminal law imposes a duty to act." Be that as it may, the learned recorder then went on to express the view that the law would and must draw a distinction between the case of persons coming across what is an already existing dangerous situation and doing nothing, when the law would not impose upon them a duty to act, and the very different situation of somebody who either accidentally or deliberately was responsible for the dangerous situation and failed to act. He took the view that in the latter case the criminal law would impose upon the person involved a duty to take action. He then quoted and relied upon the passage to which he had been referred in Professor Glanville Williams' Text Book of Criminal Law at pages 143/144.
Having so ruled, the learned recorder summed up by directing the jury that as the defendant had himself originally set fire to the mattress, and when he woke up realised that it was on fire, there was consequently then a duty upon him to act to put that fire out. As the summing-up then proceeded, it was perhaps not necessary for him to go that far. He directed the jury on the question of recklessness precisely in the words from the speech of Lord Diplock in Caldwell's case at (1981) 2 W.L.R. 516C, and then left the issue to the jury in this way: "If you come to the conclusion that by failing to act, his conscious failure to act, he gave no thought to the possibility of there being an obvious risk of damage - or recognising that his failure to act would involve some risk, but still failing to act to put out the mattress fire - then he is guilty. If you are not so sure of these matters then he is not guilty."
On this summing-up the jury convicted and the Appellant was sentenced to six months' imprisonment. He now appeals against his conviction on the grounds that the direction given by the learned recorder: to the jury was erroneous in law.
Counsel for the Appellant repeated his submission before us that a mere omission to act cannot be a sufficient actus reus for the offence of arson. He contended that one who innocently creates danger to another person or to another person's property is on principle in the same situation as that of a mere bystander who happens by when a situation of danger has developed. Counsel submitted that there must be a criminal act: one cannot adopt an accidental act by doing nothing about it and thus be guilty of crime. In addition he contended that, save in exceptional cases of which this is not one, there must be a coincidence of the appropriate mens rea and the actus reus.
In support of these submissions he referred us to the passages on pages 20 and 402 of Volume 1 of the 12th Edition of Eussell on Crime; to the relevant passage in Kenny's Outlines of Criminal Law which substantially follows the view of Russell, and to page 45 of Smith and Hogan to which we have already referred.
The only case in any way directly in point in so far as arson is concerned is that of Commonwealth v. Cali (1925) 243 Mass. 20. 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 way: "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 arise - as 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 crimnal intent or state of mind, that the building should be consumed."
Counsel for the Appellant before us of course argued that this decision was of persuasive value only. In any event, when one reads the report the two principal issues in the case were, first, how far the...
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