R v Miller
| Jurisdiction | England & Wales |
| Judge | Lord Diplock,Lord Keith of Kinkel,Lord Bridge of Harwich,Lord Brandon of Oakbrook,Lord Brightman |
| Judgment Date | 17 March 1983 |
| Judgment citation (vLex) | [1983] UKHL J0317-1 |
| Date | 17 March 1983 |
| Court | House of Lords |
[1983] UKHL J0317-1
Lord Diplock
Lord Keith of Kinkel
Lord Bridge of Harwich
Lord Brandon of Oakbrook
Lord Brightman
House of Lords
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"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.
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...
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