Recent Judicial Decisions
| Date | 01 October 1982 |
| DOI | 10.1177/0032258X8205500414 |
| Published date | 01 October 1982 |
| Author | John Wood |
| Subject Matter | Article |
PROFESSOR SIR JOHN WOOD, C.B.E., LL.M.,
The University
of
Sheffield,
Legal Correspondent
of
the Police Journal.
RECENT
JUDICIAL
DECISIONS
FIRE, FIRE
R. v. Miller [1982] 2 W.L.R. 937 Court of Appeal
Miller, a vagrant, was living in an unoccupied house. There was a
mattress in the
room
he was using. He fell asleep one night
and
his
cigarette set fire to the mattress. It began to smoulderand awoke him
but he did nothing
about
it,
but
moved to another room! Afire broke
out and £800's worth of damage was done. He was charged with
arson under ss. 1(1) and 3 of the Criminal Damage Act 1971.
Hewas
convicted
and
sentenced to six months' imprisonment.
It was obvious
that
Miller was reckless, a concept
that
has recently
been considered in R. v. Caldwell [1981] 2 W.L.R. 509. This point
was not in dispute. At the close of the prosecutioncase at the trial a
submission of no case to answer had been made. It was argued
that
there was no actus reus - the fire setting had been accidental. The
failure to do something
about
it was an omission. It was submitted
that
this could not be used to establish acharge unless there was a
positive duty to act. This line of defence was rejected by the trial
Judge who drew a distinction between an omission where a
situation of danger was encountered, and where that situation of
danger had been created, whether intentionally or accidentally by the
person himself. He used Glanville Williams' text book (1978) at
p. 143 as support.
This view was challenged on appeal.
It
was said
that
an omission
could only be regarded as criminal in the circumstances if it followed
acriminal act. No cases in point could be found except an American
precedent, Commonwealth v. Cali(1923) 247 Mass. 20. In
that
case,
which involved arson too but above all intent to defraud insurers, it
was said
that
if the omission was donewith acriminal intent it would
be adequate to found a conviction, even though the original fire was
innocent.
Glanville Williams relied upon Fagan v. Metropolitan Police
Commissioner[1969] 1Q.B. 439. This (ridiculous!) case concerned a
motorist who drove a car on to a policeman's foot. He did this
"accidentally"
but
when asked to move took some time to do so. The
"act" in not removing the car - it is strictly an omission - was
held to support assault even if the original driving on to the foot was
accidental. No one seems clear whether the original act was
accidental or deliberate. One Judge, Bridge, J, dissented. An earlier
case, Green v. Cross (1910) 103 L.T. 279 was also relied on by the
382 October 1982
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