R V Miller (James)

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R. v Miller (James), [1983] 2 A.C. 161 (1983)
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Regina Respondent v Miller Appellant
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House of Lords
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17 March 1983
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[1983] 2 W.L.R. 539
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[1983] 2 A.C. 161
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House of Lords
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Lord Diplock , Lord Keith of Kinkel , Lord Bridge of Harwich , Lord Brandon of
Oakbrook and Lord Brightman
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1983 Feb. 16, 17; March 17
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Crime\u8212\'3fArson\u8212\'3fConduct of defendant\u8212\'3fUnintentional setting
fire to mattress by falling asleep while smoking\u8212\'3fNo effort made to
extinguish fire\u8212\'3fDamage caused to house\u8212\'3fWhether unintentional act
combined with intentional omission sufficient to constitute offence\u8212\'3f
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Criminal Damage Act 1971 (c. 48), s. 1 (1) (3)
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{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
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The defendant, a vagrant, went to live in an unoccupied house. After returning
there one night he lit a cigarette and lay down on a mattress in the room he was
using. He fell
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*162
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asleep before he had finished the cigarette, and it dropped onto the mattress,
setting it alight. He awoke later when the mattress was smouldering, but did
nothing to extinguish it, and merely moved to another room. The house caught fire
and damage to the value of \u163\'3f800 was caused. The defendant was charged with
arson, contrary to
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section 1 (1) and (3) of the Criminal Damage Act 1971
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\sa200
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. On his appeal against conviction, the Court of Appeal dismissed the appeal and
certified the following question of law: \ldblquote 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 will be destroyed or damaged, fails to
take any steps to extinguish the fire or prevent damage to such property by that
fire?\rdblquote
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On appeal by the defendant pursuant to leave of the House of Lords:-
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Held, dismissing the appeal, that where a defendant was initially unaware that he
had done an act that in fact set in train events which, by the time he became aware
of them, would make it obvious to anyone who troubled to give his mind to them that
they presented a risk that property belonging to another would be damaged, the
defendant was guilty of the offence under
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section 1 (1) of the Criminal Damage Act 1971
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\sa200
\sb200
if, when he did become aware that the events in question had happened as a result
of his own act, he did not try to prevent or reduce the risk by his own efforts or
if necessary by summoning the fire brigade and the reason why he did not was either
because he had not given any thought to the possibility of there being any such
risk or because having recognised that there was some risk involved he had decided
not to try to prevent or reduce it; that accordingly, in the circumstances, the
defendant had been rightly convicted (post, pp. 179C-E, F - 180A).
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Reg. v. Caldwell [1982] A.C. 341, H.L.(E.)
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considered.
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Per curiam.
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(i) It would be conducive to clarity of analysis of the ingredients of a crime
that is created by statute to consider and refer to the conduct of the defendant
and his state of mind at the time of that conduct, instead of making use of the
expressions actus reus and mens rea (post, pp. 174D-E, 179F - 180A). The habit of
lawyers of referring to the \ldblquote actus reus,\rdblquote suggestive as it is
of action rather than inaction, is no doubt responsible for any erroneous notion
that failure to act cannot give rise to criminal liability in English law (post,
pp. 176B, 179F - 180A).
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(ii) In the general run of cases of destruction or damage to property belonging to
another by fire (or other means) where the prosecution relies on the recklessness
of the defendant, the direction recommended by the House of Lords in
}
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l?
Reg. v. Caldwell [1982] A.C. 341
}}}
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is the appropriate direction to give to the jury (post, pp. 179B-C, F - 180 A).
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Decision of the Court of Appeal (Criminal Division)
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[1982] Q.B. 532; [1982] 2 W.L.R. 937; [1982] 2 All E.R. 386
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affirmed.
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The following cases are referred to in the opinion of Lord Diplock:
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}{\fi-360 \li {\*\pn \pnlvlblt \ilvl0 \ls1 \pnindent400 \pnf1 {\f2 \pntxtb
\u160\'3f}}{\listtext \b0 \cf1 \f3 \ri200 \i0 \qj \fs20 \li400 \u160\'3f\tab }\ls1
{\pntext }
{\pard }\b0 \cf1 \f3 \ri200 \i0 \qj \fs20 \li400
}
{\b0 \cf1 \f3 \i1 \fs20
Fagan v. Metropolitan Police Commissioner [1969] 1 Q.B. 439; [1968] 3 W.L.R. 1120;
[1968] 3 All E.R. 442, D.C.
}
}
.
\par {\pntext }
}
{\pntext }
}
{\b0 \cf1 \f3 \i1 \fs20
l?
Reg. v. Caldwell [1982] A.C. 341; [1981] 2 W.L.R. 509; [1981] 1 All E.R. 961, H.L.
(E.)
}}}
}
.
}
{\b1 \cf36 \f3 \i1 \fs20
*163
}
}
\par {\pntext }
}
{\pntext }
}
{\b0 \cf1 \f3 \i1 \fs20
"http://uk.westlaw.com/Document/I51E29700E42811DA8FC2A0F0355337E9/View/FullText.htm
l?
Reg. v. Lawrence (Stephen) [1982] A.C. 510; [1981] 2 W.L.R. 524; [1981] 1 All E.R.
974, H.L.(E.)
}}}
}
.
\par {\pntext }
}
{\pntext }
}
{\b0 \cf1 \f3 \i1 \fs20
Reg. v. Tolson (1889) 23 Q.B.D. 168
}
}
.
\par {\pntext }
}
{\pntext }
}
{\b0 \cf1 \f3 \i1 \fs20
"http://uk.westlaw.com/Document/IC7072550E42811DA8FC2A0F0355337E9/View/FullText.htm
l?
Sweet v. Parsley [1970] A.C. 132; [1969] 2 W.L.R. 470; [1969] 1 All E.R. 347, H.L.
(E.)
}}}
}
.
\par {\pntext }
}
}
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
The following additional cases were cited in argument:
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
{\pntext }
}
{\b0 \cf1 \f3 \i1 \fs20
Commonwealth v. Cali (1923) 247 Mass. 20
}
}
.
\par {\pntext }
}
{\pntext }
}
{\b0 \cf1 \f3 \i1 \fs20
Fowler v. Padget (1798) 7 Durn. &; E. 509
}
}
.
\par {\pntext }
}
{\pntext }
}
{\b0 \cf1 \f3 \i1 \fs20
"http://uk.westlaw.com/Document/IB244ED10E42711DA8FC2A0F0355337E9/View/FullText.htm
l?
Goldman v. Hargrave [1967] 1 A.C. 645; [1966] 3 W.L.R. 513; [1966] 2 All E.R. 989,
C.A.
}}}
}
.
\par {\pntext }
}
{\pntext }
}
{\b0 \cf1 \f3 \i1 \fs20
Green v. Cross (1910) 103 L.T. 279, D.C.
}
}
.
\par {\pntext }
}
{\pntext }
}
{\b0 \cf1 \f3 \i1 \fs20
"http://uk.westlaw.com/Document/IF8C74F81E42711DA8FC2A0F0355337E9/View/FullText.htm
l?
Meli v. the Queen [1954] 1 W.L.R. 288; [1954] 1 All E.R. 373, P.C.
}}}
}
.
\par {\pntext }
}
{\pntext }
}
{\b0 \cf1 \f3 \i1 \fs20
"http://uk.westlaw.com/Document/I09D54ED0E42811DA8FC2A0F0355337E9/View/FullText.htm
l?
Musgrove v. Pandelis [1919] 2 K.B. 43, C.A.
}}}
}
.
\par {\pntext }
}
{\pntext }
}
{\b0 \cf1 \f3 \i1 \fs20
"http://uk.westlaw.com/Document/I9B078630E42711DA8FC2A0F0355337E9/View/FullText.htm
l?
Ray v. Sempers [1974] A.C. 370; [1973] 3 W.L.R. 359; [1973] 3 All E.R. 131, H.L.
(E.)
}}}
}
.
\par {\pntext }
}
{\pntext }
}
{\b0 \cf1 \f3 \i1 \fs20
Reg. v. Barrett (1846) 2 C. &K. 343
}
}
.;
\par {\pntext }
}
{\pntext }
}
{\b0 \cf1 \f3 \i1 \fs20
"http://uk.westlaw.com/Document/I38F27710E42811DA8FC2A0F0355337E9/View/FullText.htm
l?
Reg. v. Brown [1970] 1 Q.B. 105; [1969] 3 W.L.R. 370; [1969] 3 All E.R. 198, C.A.
}}}
}
.
\par {\pntext }
}
{\pntext }
}
{\b0 \cf1 \f3 \i1 \fs20
"http://uk.westlaw.com/Document/I3A65DD30E42811DA8FC2A0F0355337E9/View/FullText.htm
l?
Reg. v. Church [1966] 1 Q.B. 59; [1965] 2 W.L.R. 1220; [1965] 2 All E.R. 72, C.C.A.
}}}
}
.
\par {\pntext }
}
{\pntext }
}
{\b0 \cf1 \f3 \i1 \fs20
"http://uk.westlaw.com/Document/I4D9758C0E42811DA8FC2A0F0355337E9/View/FullText.htm
l?
Reg. v. Instan [1893] 1 Q.B. 450
}}}
}
.
\par {\pntext }
}
{\pntext }
}
{\b0 \cf1 \f3 \i1 \fs20
Reg. v. Kaitamaki [1980] 1 N.Z.L.R. 59
}
}
.
\par {\pntext }
}
{\pntext }
}
{\b0 \cf1 \f3 \i1 \fs20
"http://uk.westlaw.com/Document/I9AF95560E42711DA8FC2A0F0355337E9/View/FullText.htm
l?
Reg. v. Majewski [1977] A.C. 443; [1976] 2 W.L.R. 623; [1976] 2 All E.R. 142
}}}
}
, H.L.(E.).
\par {\pntext }
}
{\pntext }
}
{\b0 \cf1 \f3 \i1 \fs20
"http://uk.westlaw.com/Document/I60AB1320E42811DA8FC2A0F0355337E9/View/FullText.htm
l?
Reg. v. Pitchley (1972) 57 Cr.App.R. 30, C.A.
}}}
}
.
\par {\pntext }
}
{\pntext }
}
{\b0 \cf1 \f3 \i1 \fs20
"http://uk.westlaw.com/Document/I6A89A000E42811DA8FC2A0F0355337E9/View/FullText.htm
l?
Reg. v. Speck [1977] 2 All E.R. 859, C.A.
}}}
}
.
\par {\pntext }
}
{\pntext }
}
{\b0 \cf1 \f3 \i1 \fs20
"http://uk.westlaw.com/Document/I6AF978D0E42811DA8FC2A0F0355337E9/View/FullText.htm
l?
Reg. v. Stone [1977] Q.B. 354; [1977] 2 W.L.R. 169; [1977] 2 All E.R. 341, C.A.
}}}
}
.
\par {\pntext }
}
{\pntext }
}
{\b0 \cf1 \f3 \i1 \fs20
"http://uk.westlaw.com/Document/ID7599CD0E42811DA8FC2A0F0355337E9/View/FullText.htm
l?
Reg. v. Treacy [1971] A.C. 537; [1971] 2 W.L.R. 112; [1971] 1 All E.R. 110
}}}
}
, H.L.(E.).
\par {\pntext }
}
{\pntext }
}
{\b0 \cf1 \f3 \i1 \fs20
"http://uk.westlaw.com/Document/I6ED3CCD1E42811DA8FC2A0F0355337E9/View/FullText.htm
l?
Reg. v. Venna [1976] Q.B. 421; [1975] 3 W.L.R. 737; [1975] 3 All E.R. 788, C.A.
}}}
}
.
\par {\pntext }
}
{\pntext }
}
{\b0 \cf1 \f3 \i1 \fs20
Rex v. Allen (1835) 7 C.& P. 153
}
}
;
\par {\pntext }
}
{\pntext }
}
{\b0 \cf1 \f3 \i1 \fs20
Rex v. Green (1835) 7 C.& P. 156
}
}
.;
\par {\pntext }
}
{\pntext }
}
{\b0 \cf1 \f3 \i1 \fs20
Rex v. Smith (1826) 2 C.& P. 449
}
}
.;
\par {\pntext }
}
{\pntext }
}
{\b0 \cf1 \f3 \i1 \fs20
Tunnicliffe v. Pickup [1939] 3 All E.R. 297, D.C.
}
}
.
\par {\pntext }
}
}
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
APPEAL from the Court of Appeal (Criminal Division).
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
This was an appeal, by leave of the House of Lords, by the appellant, James Miller,
from a judgment dated March 3, 1982, of the Court of Appeal (Ackner and May L.JJ.,
and Stocker J.) dismissing his appeal against conviction on June 26, 1981, at
Leicester Criminal Court before the recorder (Keith Matthewman Q.C.) on an
indictment charging him with arson, contrary to
}
l?
}}}
, for which he was sentenced to six months\rquote imprisonment.
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
The facts are stated in the opinion of Lord Diplock.
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
}
{\b0 \cf1 \f3 \i1 \fs20
John Gorman Q.C.
}
}
and
}
{\b0 \cf1 \f3 \i1 \fs20
Patrick Thomas
}
}
for the appellant. Two issues are raised by the certified question: (1) Whether
the mere omission to act was a sufficient actus reus for the purpose of
}
l?
}}}
. This issue involves the examination of \ldblquote the duty theory.\rdblquote
(2) Whether the reckless omission to rectify the
}
{\b1 \cf36 \f3 \i1 \fs20
*164
}
}
consequences of an earlier unintentional act or omission can in law be regarded as
one entire and culpable act for the purpose of
}
l?
section 1 (1)
}}}
of the Act of 1971. This issue involves \ldblquote the continuing act
theory.\rdblquote
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
The issues are twofold because the recorder at the trial adopted the duty theory
and so directed the jury. The Court of Appeal preferred the continuing act theory
subject to a gloss which placed the emphasis upon adoption by the appellant of his
previous act.
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
Reliance is placed on the following submissions: (1) The actus reus of the offence
now charged as arson consists in destroying or damaging property belonging to
another by fire.
}
(2) The appellant\rquote s act in lying down on a mattress with a lighted cigarette
and the fact of the mattress catching fire do not together or separately amount to
the actus reus of arson to the mattress: that fire was innocent. (3) After the
mattress was on fire the appellant did nothing to destroy or damage the premises by
fire. (4) There is no liability in criminal law for an omission to act unless there
is a legal duty to act imposed either by common law or by statute. (5) No statutory
provision imposes a duty neglect of which involves criminal liability in the
circumstances of this case. (6) No common law duty to extinguish an accidental fire
or fire innocently started has previously been declared in English law. (7) At
common law criminal liability for the neglect of a duty has arisen only in cases of
homicide: where the deliberate or grossly negligent neglect of the life or the
health of someone whose care has been undertaken by the defendant results in death.
(8) Accordingly the appellant\rquote s omission to prevent damage to the premises
was not a breach of any legal duty and was innocent. (9) The continuing act theory
is a fundamental invasion of the principle \ldblquote actus non facit reum, nisi
mens fit rea\rdblquote and is not good law. (10) Alternatively, the continuing act
theory together with the adoption gloss accepted by the Court of Appeal is
inappropriate in this case because (a) it involves the fiction that the appellant
did an act when in fact he did nothing; (b) it confuses the consequences of an
innocent event with a continuing act and penalises the event in the light only of
the consequences; (c) it supposes that the appellant adopted the fire on his
discovery of it which is an issue of fact never canvassed at trial and is a
supposition inconsistent with the proved facts. (11) Accordingly if, contrary to
the appellant\rquote s submission, the principles declared by the Court of Appeal
are correct in law, the conviction ought nevertheless to be set aside (a) as being
unsafe or unsatisfactory in all the circumstances of the case; (b) as based on the
wrong decision of the material point of law.
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
The following submissions are supplemental to the above: (1) \ldblquote actus
reus\rdblquote is not now limited to the overt act of the accused. It essentially
includes a culpable act or omission of the accused:
}
{\b0 \cf1 \f3 \i1 \fs20
"http://uk.westlaw.com/Document/ID7599CD0E42811DA8FC2A0F0355337E9/View/FullText.htm
l?
Reg. v. Treacy [1971] A.C. 537
}}}
}
,
}
{\b0 \cf1 \f3 \i1 \fs20
per
}
}
Lord Diplock; Russell on Crime, 12th ed. (1964), pp. 25, 26. (2) The law requires
mens rea to be causative of actus reus: Russell on Crime, 12th ed. , pp. 53, 54 and
Marston, \ldblquote Contemporaneity of Act and Intention in Crimes\rdblquote
}
{\b0 \cf1 \f3 \i1 \fs20
(1970) 86 L.Q.R. 208
}
}
, 214. (3) A course of conduct pursued ab initio because of an existing mens rea
is looked at as a whole because it is to introduce fiction to do otherwise:
}
{\b0 \cf1 \f3 \i1 \fs20
l?
Meli v. the Queen [1954] 1 W.L.R. 228
}}}
}
and
}
{\b0 \cf1 \f3 \i1 \fs20
l?
Reg. v. Church [1966] 1 Q.B. 59
}}}
}
. (4) The law should not and does not recognise a retrospective mens rea. Where
the
}
{\b1 \cf36 \f3 \i1 \fs20
*165
}
}
accused acts innocently in the first place, or sets in train consequences by some
involuntary act, and then forms mens rea before the actus reus of the alleged
offence is complete, there must be proved to have occurred with that mens rea a
culpable act or culpable omission on his part: Glanville Williams, Criminal Law,
the General Part, 2nd ed. (1961), p. 3 and Marston,
}
{\b0 \cf1 \f3 \i1 \fs20
86 L.Q.R. 208
}
}
, 225. This may be found in a course of continuing conduct, but the concept of an
antecedent but
}
{\b0 \cf1 \f3 \i1 \fs20
continuing act
}
}
is a fiction and is inconsistent with causation. (5) Where the actus reus includes
a culpable act, the act must be the voluntary act of the accused.
}
Where the actus reus includes a culpable omission, the element of culpability can
be found only in the neglect of a duty to act. (6) The criminal law does not
include the last opportunity rule postulated by Professor Glanville Williams
}
{\b0 \cf1 \f3 \i1 \fs20
[1982] Crim.L.R. 773
}
}
, which is relied on by the respondent nor does it include the wide duty
postulated by Professor Smith
}
{\b0 \cf1 \f3 \i1 \fs20
"http://uk.westlaw.com/Document/I1A091AC0E42811DA8FC2A0F0355337E9/View/FullText.htm
l?
[1982] Crim.L.R. 528
}}}
}
which is also relied on by the respondent. (7) If a duty in the terms proposed is
to be introduced into English law the duty would be of far reaching application and
the limits would require consideration by the Law Commission and by Parliament:
Glanville Williams
}
{\b0 \cf1 \f3 \i1 \fs20
[1982] Crim.L.R. 773
}
}
and Hughes, \ldblquote Criminal Omissions\rdblquote (1958) 67 Yale Law Journal,
pp. 590, 631, 634. (8) The seat of fire in the present case was the mattress which
ex hypothesi could not be left to burn itself out without danger. It is artificial
and wrong to examine each stage in the spread of a fire once set as a separate
fire. A distinction which may be appropriate in construing a statute which limits
civil liability is not appropriate in construing a statute which imposes criminal
liability.
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
The analysis of crimes into result crimes and conduct crimes is not disputed, but
is irrelevant; it is the conduct causing the result which is penalised; whether it
is result crime or conduct crime the question remains whether the accused acted or
omitted to act with the requisite mental element, which is not retrospective.
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
The duty theory. The argument at the trial and in the Court of Appeal proceeded on
the basis that submissions (1) to (5) of the first group of submissions above were
correct. The actus reus alleged was the omission to extinguish the mattress,
allegedly in breach of duty at common law. The position at common law is stated by
Smith and Hogan, Criminal Law, 4th ed. (1978), pp. 45-47. In the absence of any
clear common law principle a duty for the purpose of the criminal law should be
statutory. For the purpose of the criminal law the duty must be more specific than
the duty of care which founds civil negligence: see Glanville Williams, Criminal
Law, the General Part, 2nd ed. , p. 4.
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
At the trial the recorder in his ruling distinguished the case of the person who
finds a fire from that of the person who unintentionally started it. This is not a
valid distinction. Neither the stranger nor the innocent author should be under
duty. The criminal law ought not to adopt a distinction which penalises an innocent
act: see the judgment below
}
{\b0 \cf1 \f3 \i1 \fs20
l?
[1982] Q.B. 532
}}}
}
, 535B, 539G and
}
{\b0 \cf1 \f3 \i1 \fs20
Fagan v. Metropolitan Police Commissioner [1969] 1 Q.B. 439
}
}
, 445F-G. Such a distinction is illogical since the inherent danger is the same in
either case. Further, the distinction leads to absurdity: if the appellant awoke
and found material smouldering which had been ignited either by his own or by his
fellow companion\rquote s cigarette, and neither
}
{\b1 \cf36 \f3 \i1 \fs20
*166
}
}
of them acted to extinguish the fire, guilt of crime depends on proof which of the
two inadvertently or unconsciously dropped the cigarette. The recorder\rquote s
ruling was fortified by reference to Glanville Williams, Textbook of Criminal Law
(1978) , pp. 143-144 (see
}
{\b0 \cf1 \f3 \i1 \fs20
l?
[1982] Q.B. 532
}}}
}
, 535A). That passage which in fact suggests that the continuing act theory is
open to criticism since: (i) what is in issue is not the concurrence of actus reus
and mens rea but whether in the first place there is an actus reus; (ii) Professor
Glanville Williams went on to found this exception upon the concept of duty to
which the continuing act theory is irrelevant; (iii) the exception was rightly
described as inadequately supported by authority; insofar as it was founded upon
}
{\b0 \cf1 \f3 \i1 \fs20
Fagan\rquote s case [1969] 1 Q.B. 439
}
}
, Professor Glanville Williams is critical of the decision, and the Court of
Appeal in the present case
}
{\b0 \cf1 \f3 \i1 \fs20
l?
[1982] Q.B. 532
}}}
}
, 540Bagreed with him; (iv) in comment on this passage and on propositions to be
found in Smith and Hogan, Criminal Law, 4th ed. , p. 46, and in Kirchheimer,
\ldblquote Criminal Omissions\rdblquote (1942) 55 Harvard Law Review, pp. 615, 625
, Marston, 86 L.Q.R. 208, 228 states, \ldblquote There is only a thin trickle of
authority to support such wide statements.\rdblquote See also his observations at
pp. 237-238; (v) the Law Commission Report on Offences of Damage to Property (Law
Com. No. 29), in particular at paragraphs 42 and 43, accepted the existing law
relating to \ldblquote an act of damage to property.\rdblquote The possibility of
the suggested exception does not appear to have been considered.
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
Both Glanville Williams, Textbook of Criminal Law, pp. 143-144, and Smith and
Hogan, Criminal Law, 4th ed., p. 46, were influenced by the American case of
}
{\b0 \cf1 \f3 \i1 \fs20
Commonwealth v. Cali (1923) 247 Mass. 20
}
}
. The latter textbook states in a footnote: \ldblquote Since 1971, it is possible
that this might be arson in English law. The only question is whether D. can
properly be said to have destroyed or damaged property by fire.\rdblquote
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
The duty theory as it is expounded by Professor J. C. Smith in a note upon the
decision of the Court of Appeal in the present case
}
{\b0 \cf1 \f3 \i1 \fs20
l?
[1982] Crim.L.R. 526
}}}
}
, 528, is wide indeed and appears to be indistinguishable from the civil duty of
care. Further, he states that the duty should apply, \ldblquote whether or not
D.\rquote s act involved fault of any kind.\rdblquote The duty as proposed
(Professor Smith) is limited to the danger of which the accused knows; it has not
been suggested to apply to the danger which the accused fails to appreciate, albeit
he is \ldblquote reckless\rdblquote within
}
{\b0 \cf1 \f3 \i1 \fs20
l?
Caldwell [1982] A.C. 341
}}}
}
.
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
If the answer to the certified question is \ldblquote yes,\rdblquote then that
answer marks a significant judicial extension of the law as hitherto understood,
the limits whereof cannot readily be ascertained: see Stephen, History of the
Criminal Law In England (1883), vol. 2, pp. 113-114; Russell on Crime, 12th ed.,
pp. 20, 402-403;
}
{\b0 \cf1 \f3 \i1 \fs20
Kenny\rquote s Outlines of Criminal Law,
}
}
19th ed. (1966), pp. 19-20;
}
{\b0 \cf1 \f3 \i1 \fs20
Holmes, the Common Law
}
}
(1881), p. 278;
}
{\b0 \cf1 \f3 \i1 \fs20
Smith and Hogan, Criminal Law,
}
}
4th ed., p. 45 and
}
{\b0 \cf1 \f3 \i1 \fs20
Glanville Williams, Criminal Law, the General Part,
}
}
2nd ed., pp. 4, 5.
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
In conclusion on this issue, the Court of Appeal
}
{\b0 \cf1 \f3 \i1 \fs20
l?
[1982] Q.B. 532
}}}
}
, 539G, 540D, correctly doubted the recorder\rquote s direction that the appellant
was under a duty to extinguish the mattress fire. The law is correctly set out in
submission 7 of the first set of submissions above an$ is illustrated by the
judgment of the Court of Appeal in
}
{\b0 \cf1 \f3 \i1 \fs20
"http://uk.westlaw.com/Document/I6AF978D0E42811DA8FC2A0F0355337E9/View/FullText.htm
l?
Reg. v. Stone [1977] Q.B. 354
}}}
}
, 361A, G,
}
{\b1 \cf36 \f3 \i1 \fs20
*167
}
}
363F-G, that the duty of care is one which the accused must be proved to have
undertaken before he can be found guilty of crime by neglecting it.
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
If it is to be sufficient to bring an accused within
}
l?
section 1 of the Criminal Damage Act 1971
}}}
recklessly to permit damage then the statute should so provide.
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
The continuing act theory. The concept of a continuing act is derived from
}
{\b0 \cf1 \f3 \i1 \fs20
}
}
and is understood to be distinct from continuous action and repetitive acts. The
Divisional Court (p. 445B) expressly distinguished a continuing act from an act
with continuing consequences. The concept of a continuing act is a dangerous
departure from the maxim \ldblquote actus non facit reum nisi mens sit
rea.\rdblquote The maxim has always been understood to mean that actus reus and
mens rea should be contemporaneous.
}
The danger is discussed by Marston,
}
{\b0 \cf1 \f3 \i1 \fs20
86 L.Q.R. 208
}
}
, who comments at p. 238, \ldblquote if applied generally, it could condemn an
accused for an act that he committed without mens rea whereas the crime for which
he was convicted required it.\rdblquote
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
The distinction between continuing act and continuing consequences is questionable
and difficult in practice to apply. This is demonstrated by the dissenting judgment
of Bridge J. in
}
{\b0 \cf1 \f3 \i1 \fs20
Fagan [1969] 1 Q.B. 439
}
}
, 446C, E-F, The case is an unsatisfactory one for extracting any clear principle.
The question which
}
{\b0 \cf1 \f3 \i1 \fs20
Fagan
}
}
poses is how many crimes can be committed by so construing an act as \ldblquote
continuing\rdblquote that the accused can be found guilty once he has formed the
mens rea even though he does not perform any fresh voluntary muscular contraction
after that time: Marston,
}
{\b0 \cf1 \f3 \i1 \fs20
86 L.Q.R. 208
}
}
, 222. Applying the test of voluntary muscular contraction here it may be observed
that Miller never acted at all because he fell asleep with a lit cigarette and
presumably dropped it while asleep. The present case is concerned entirely with
consequences.
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
Glanville Williams, Textbook of Criminal Law , p. 143, while regarding the decision
in
}
{\b0 \cf1 \f3 \i1 \fs20
}
}
, as sensible on its facts criticised the continuing act theory on which the
decision was founded. The Court of Appeal in the present case
}
{\b0 \cf1 \f3 \i1 \fs20
[1982] Q.B. 532540B-C
}
}
agreed with his criticism and proposed the total act rule instead. The total act
rule is nevertheless a departure from the maxim and postulates that an innocent act
together with subsequent mens rea can be regarded in toto as a guilty act.
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
The total act rule as proposed by the Court of Appeal
}
{\b0 \cf1 \f3 \i1 \fs20
l?
[1982] Q.B. 532
}}}
}
, 540D-F; (v) it is unsupported by authority.
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
Whether
}
{\b0 \cf1 \f3 \i1 \fs20
}
}
, 540G is arbitrary and is wrong in principle for the following reasons: (i)
whether the accused is guilty of crime (albeit he is, ex hypothesi, under no duty
to act
}
{\b0 \cf1 \f3 \i1 \fs20
l?
[1982] Q.B. 532
}}}
}
, 540G) depends upon whether the jury consider that the legal rule of entire
conduct should operate; (ii) the jury\rquote s decision on this point may depend
solely on the scale or nature of the actual consequences and is in any event
entirely unpredictable; (iii) the appropriate judicial direction is at large; (iv)
the rule involves a legal fiction that the accused is deemed to have acted ab
initio intentionally or recklessly when he did not: see Professor J. C. Smith
}
{\b0 \cf1 \f3 \i1 \fs20
[1982] Crim.L.R. 527
}
}
was rightly or wrongly decided on its facts, and whether the law should be that of
the continuing act or the total act, the Court of Appeal were wrong in the present
case to conclude
}
{\b0 \cf1 \f3 \i1 \fs20
l?
[1982] Q.B. 532
}}}
}
that the
}
{\b1 \cf36 \f3 \i1 \fs20
*168
}
}
\ldblquote appellant\rquote s conduct in relation to the mattress from the moment
he lay on it with a
}
{\b0 \cf1 \f3 \i1 \fs20
lighted cigarette
}
}
until the time he left it smouldering\rdblquote should be regarded as one act.
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
The appellant\rquote s conduct as a whole was never considered or put to the jury
at the trial. His conduct has to be related to the mattress so far as the present
charge is concerned. For the purposes of
}
l?
section 1 (1)
}}}
of the Act of 1971 the conduct under consideration is that which \ldblquote
destroys or damages\rdblquote property and not conduct which \ldblquote allows or
permits any property to be destroyed or damaged.\rdblquote
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
The Court of Appeal
}
{\b0 \cf1 \f3 \i1 \fs20
[1982] Q.B. 532540D-
}
}
F, emphasised as an important consideration in relation to the circumstances of
}
{\b0 \cf1 \f3 \i1 \fs20
}
}
, the \ldblquote substantial element of adoption\rdblquote of what the accused
had \ldblquote done a little earlier.\rdblquote This is new reasoning in relation
to
}
{\b0 \cf1 \f3 \i1 \fs20
Fagan\rquote s case
}
}
. In the present case the Court of Appeal
}
{\b0 \cf1 \f3 \i1 \fs20
[1982] Q.B. 532540H
}
}
, made the following finding about the appellant: \ldblquote Clearly his failure
with knowledge to extinguish the incipient fire had in it a substantial element of
adoption on his part of what he had unintentionally done earlier, namely set it on
fire.\rdblquote But the concept of adoption was not the subject of argument below.
Moreover, the concept of adoption obscures the essential issue whether an omission
can be a criminal act and adds nothing. If by way of adoption of an accidental fire
an accused (or a stranger) does some act to promote a fire or to make a fraudulent
insurance claim, no problem exists in finding an actus reus. If he does nothing it
is a legal fiction that he has adopted the fire because he has not extinguished it.
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
If it is a relevant issue, the issue whether this appellant in fact adopted the
fire which he had earlier unwittingly caused, was an issue for the jury which was
never canvassed at trial nor considered by them. \ldblquote Adoption\rdblquote
must mean something more than mere failure to extinguish and there was no evidence
that the appellant in fact adopted the fire. He abandoned it.
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
[Counsel was stopped on the adoption issue.] In conclusion on this issue, the
continuing act theory, the total act rule, the concept of adoption by omission to
act of an existing state of facts are all novel attempts to circumvent the maxim
\ldblquote actus non facit reum nisi mens fit rea\rdblquote because the \ldblquote
abstract justice\rdblquote of this case seems to require it. Either the appellant
was under a duty to act or he was not. If he was not, fictions ought not to be
devised which would weaken such a fundamental principle of English law.
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
In so far as
}
{\b0 \cf1 \f3 \i1 \fs20
}
}
, ,established a principle that mens rea can supervene and render culpable a
previous innocent act it was wrongly decided. The Court of Appeal
}
{\b0 \cf1 \f3 \i1 \fs20
l?
[1982] Q.B. 532
}}}
}
, 536G have rightly regarded it as a decision on its own particular facts. It is
distinguishable from the present case because there is no evidence that the
appellant \ldblquote acted\rdblquote in any voluntary or deliberate sense. The
Divisional Court
}
{\b0 \cf1 \f3 \i1 \fs20
[1969] 1 Q.B. 439 445F
}
}
, were taking the point that Fagan\rquote s conduct was not an act of \ldblquote
mere omission or inactivity.\rdblquote Moreover that decision is unsupported by
authority. To the extent that it established that a supervening mens rea can render
a previous innocent act culpable those appearing for the appellant are unaware of
any previous review of the case by the Court of Appeal or by this House. It was
reviewed or referred to from a different point of view
}
{\b1 \cf36 \f3 \i1 \fs20
*169
}
}
in
}
{\b0 \cf1 \f3 \i1 \fs20
"http://uk.westlaw.com/Document/I9AF95560E42711DA8FC2A0F0355337E9/View/FullText.htm
l?
Reg. v. Majewski [1977] A.C. 443
}}}
}
and
}
{\b0 \cf1 \f3 \i1 \fs20
"http://uk.westlaw.com/Document/I6ED3CCD1E42811DA8FC2A0F0355337E9/View/FullText.htm
l?
Reg. v. Venna [1976] Q.B. 421
}}}
}
. It is not contended that where there is a continuing course of conduct that a
subsequent mens rea may not suffice to found a criminal charge: see
}
{\b0 \cf1 \f3 \i1 \fs20
l?
Ray v. Sempers [1974] A.C. 370
}}}
}
, 382B, F, 386F, 390, but that does not constitute a retrospective mens rea.
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
}
{\b0 \cf1 \f3 \i1 \fs20
Commonwealth v. Cali, 247 Mass. 20
}
}
, was rightly distinguished by the Court of Appeal
}
{\b0 \cf1 \f3 \i1 \fs20
l?
[1982] Q.B. 532
}}}
}
, 536C-D. It lays down no principle decisive of the present case. No principle of
continuing act, or total act, or guilty adoption of an innocent act was disclosed.
As regards
}
{\b0 \cf1 \f3 \i1 \fs20
Green v. Cross (1910) 103 L.T. 279
}
}
, the terms of section 2 of Cruelty to Animals Act 1849 are no guide to the
construction of
}
l?
}}}
and the case asserts no more as a general rule than that \ldblquote there are acts
of omission which in some circumstances may be said to be acts which the person has
caused to be committed,\rdblquote
}
{\b0 \cf1 \f3 \i1 \fs20
per
}
}
Lord Alverstone C.J. at p. 283. Further, the case does not advance the duty theory
or the continuing act theory; but it was a circumstance of emphasis that the trap
was deliberately, albeit lawfully, set by the respondent which distinguishes that
case from the present.
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
As regards some of the authorities relied on by the Crown,
}
{\b0 \cf1 \f3 \i1 \fs20
l?
Reg. v. Pitchley (1972) 57 Cr.App.R. 30
}}}
}
, does not establish that a supervening mens rea makes a previous innocent act
culpable.
}
{\b0 \cf1 \f3 \i1 \fs20
"http://uk.westlaw.com/Document/I09D54ED0E42811DA8FC2A0F0355337E9/View/FullText.htm
l?
Musgrove v. Pandelis [1919] 2 K.B. 43
}}}
}
and
}
{\b0 \cf1 \f3 \i1 \fs20
l?
Goldman v. Hargrave [1967] 1 A.C. 645
}}}
}
, 665, do not establish the proposition that whether the fire which damaged the
house was the first small fire or the second fire which spread to the house the
appellant must be deemed to have caused both fires. [Reference was also made to
}
{\b0 \cf1 \f3 \i1 \fs20
Rex v. Allen (1835) 7 C.& P. 153
}
}
;
}
{\b0 \cf1 \f3 \i1 \fs20
Rex v. Green (1835) 7 C. & P. 156
}
}
;
}
{\b0 \cf1 \f3 \i1 \fs20
Reg. v. Barrett (1846) 2 C. & K. 343
}
}
;
}
{\b0 \cf1 \f3 \i1 \fs20
Fowler v. Padget (1798) 7 Durn. & E. 509
}
}
, 514; Wharton\rquote s Criminal Law, 14th ed., vol. 2 (1979), section 172 ;
Perkins on Criminal Law, 2nd ed . (1969), p. 230 and Bates Buddin and Meure, System
of Criminal Law (1979) (New South Wales, Victoria and South Australia), p. 251.]
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
}
{\b0 \cf1 \f3 \i1 \fs20
A. W. Palmer Q.C.
}
}
and
}
{\b0 \cf1 \f3 \i1 \fs20
David McCarthy
}
}
for the Crown. This case is not concerned with a bystander or with a question of a
mere omission to act. The question certified shows that it relates to a person who
started the fire. As to the continuing act theory favoured by Professor Glanville
Williams, arson is a \ldblquote result crime,\rdblquote the prohibited result
being the destruction or damage by fire of the property charged in the indictment,
therefore is it not right to isolate the physical act which triggered off the
result. It is necessary to consider the whole course of conduct of the accused.
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
It is plain that the appellant would be liable in tort for the damage done to the
house. In circumstances such as the present the defendant\rquote s duty is far less
onerous in criminal law than at civil law: (i) generally, duty in criminal law must
be based on the accused\rquote s own personal act; (ii) the defendant in criminal
law need only reach the standard of the reasonable man. Any genuine attempt to
rectify the situation which is the subject of the indictment will suffice; (iii) in
crime, the Crown must prove a state of mind which is a necessary ingredient of the
offence charged.
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
Under the continuing act theory the appellant is guilty of arson. If an ordinary
jury would not have stated that the appellant did not damage this house an
acquittal should follow, but to say in general terms that it did
}
{\b1 \cf36 \f3 \i1 \fs20
*170
}
}
not would be an abuse of language. On consideration of the appellant\rquote s
total conduct here it will be seen that he did nothing to stop the fire. There was
no act of God or novus actus interveniens. The essence of this text is that the
person, such as the appellant, on becoming conscious of his surroundings realises
that it is his act that has caused the fire and therefore if he does nothing to put
it out or prevent it spreading he is reckless within the principle of
}
{\b0 \cf1 \f3 \i1 \fs20
l?
}}}
}
. The essence of this conduct is the unconscious physical act, namely the dropping
of the lighted cigarette onto the mattress, followed by a realisation that the act
is one\rquote s own act.
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
The criminal law is not seeking here merely to punish the consequences of an
innocent act; the law is punishing a sequence of behaviour, in part action, in part
inaction.
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
It is emphasised that arson is a \ldblquote result crime.\rdblquote The crime is
not complete until the house was damaged.
}
l?
Section 1 (1) of the Criminal Damage Act 1971
}}}
refers to property which a person \ldblquote damages.\rdblquote Insofar as damage
by fire is concerned the court is entitled to consider the whole of the
accused\rquote s conduct here from the moment the accused inadvertently starts a
process, which if unchecked might cause damage, then when he is conscious of it
deliberately stands by and allows that process to take hold and result in the final
damage. It is deceptive to overemphasise the importance of the fact that here the
appellant was asleep and isolate his unconscious act from the rest of his conduct.
Suppose a man in a crowded room accidentally drops a lighted cigarette onto the
carpet. Shortly, afterwards he discovers what he has done but does nothing about
it. The house is destroyed. To isolate the conduct to the accidental moment of
dropping the cigarette is an affront to common sense.
}
l?
Section 1 (3)
}}}
refers to \ldblquote damaging property by fire.\rdblquote In
}
{\b0 \cf1 \f3 \i1 \fs20
Green v. Cross, 103 L.T. 279
}
}
, the Divisional Court applied the test of total conduct. If in the present case
the appellant had only awoken on t(e arrival of the fire brigade he could not have
been charged with committing any offence.
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
As to the respective functions of judge and jury in a case such as the present, it
is for the judge to decide whether the accused\rquote s total conduct
constituted \ldblquote damaging property by fire.\rdblquote If he decides this
question in the affirmative it is for the jury to decide: (a) whether the accused
started the original fire; (b) whether he became aware that it was his act which
caused the fire; (c) whether he made a decision not to prevent the results of the
fire; (d) whether the final result or the final damage was caused by a combination
of the original act and the decision not to prevent the results; (e) whether dhe
accused was reckless in deciding not to prevent the results of his act. The
Crown\rquote s formulation does not catch the person who leaves in panic from a
fire that he has inadvertently started.
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
To summarise the above, in \ldblquote a result crime\rdblquote the conduct leading
to the prohibited result may happen over a period of time. The court should look at
the whole of an accused\rquote s conduct in deciding when the actus reus begins and
ends, and will not readily separate that conduct into acts and omissions when the
conduct in fact brought about the prohibited result, where at some stage of that
conduct the accused possessed the necessary mens rea for the crime in question:
}
{\b0 \cf1 \f3 \i1 \fs20
l?
Meli v. the Queen [1954] 1 W.L.R. 228
}}}
}
and
}
{\b0 \cf1 \f3 \i1 \fs20
l?
Reg. v. Church [1966] 1 Q.B. 59
}}}
}
. The conduct causing the result may be a combination of activity and inactivity:
}
{\b0 \cf1 \f3 \i1 \fs20
l?
}}}
}
.
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
The test to determine whether it does so amount to that actus reus is no more than
this: look at the definition of the crime charged and ask the question: \ldblquote
does the accused\rquote s conduct taken as a whole fall within the definition of
this crime?\rdblquote in the present case the indictment alleged that the
appellant \ldblquote without lawful excuse damaged by fire\rdblquote the house in
question. In ordinary parlance it would be said the appellant did damage the house
by fire and that the process of damaging the house extended from the moment that
the mattress ignited until the damage charged in the indictment was complete.
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
The duty theory. It has not been disputed that the appellant would be liable in
tort for the damage in question. This must be based on a duty of care. Some
breaches of duty give rise to civil liability and others to criminal liability.
Miller by virtue of the terms of the
}
"http://uk.westlaw.com/Document/I07FF0530E44911DA8D70A0E70A78ED65/View/FullText.htm
l?
Criminal Damage Act 1971
}}}
was duty bound to put out this fire. There is a duty at common law to prevent the
spread of fire.
}
{\b0 \cf1 \f3 \i1 \fs20
l?
}}}
}
highlights the difference between the duty at civil law and the duty under the
criminal law. In that case the farmer could not be guilty of arson for: (a) he did
not physically cause the fire in question and (b) he used some means, albeit
negligent methods, to attempt to put out the fire.
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
Over the years, the courts have gradually evolved new categories of duty to act in
the sphere of the criminal law: contrast
}
{\b0 \cf1 \f3 \i1 \fs20
Rex v. Smith 2 C. & P. 449
}
}
with
}
{\b0 \cf1 \f3 \i1 \fs20
"http://uk.westlaw.com/Document/I4D9758C0E42811DA8FC2A0F0355337E9/View/FullText.htm
l?
Reg. v. Instan [1893] 1 Q.B. 450
}}}
}
. The relevant test in this case has been proposed by Professor J. C. Smith
}
{\b0 \cf1 \f3 \i1 \fs20
"http://uk.westlaw.com/Document/I1A091AC0E42811DA8FC2A0F0355337E9/View/FullText.htm
l?
[1982] Crim. L.R. 528
}}}
}
, as follows: \ldblquote where D\rquote s act puts in peril P\rquote s person or
his liberty, or his property, and D knows that this is so or may be so, he is under
a duty to take reasonable steps to prevent that peril from resulting in the harm in
question.\rdblquote Where the harm results and is of a kind which, given actus
reus and mens rea, is justiciable by the criminal law, then the defendant\rquote s
failure with the appropriate mens rea to perform the duty constitutes the offence.
It is both rational and desirable for the law to visit with criminal sanction a
combination of accidental act, inaction and mens rea when the result of that
combination is to produce a result which the law desires to prevent. Therefore,
when the appellant became aware of the fire at the mattress, which his act had
caused, he had a duty reasonably to prevent that fire from spreading:
}
{\b0 \cf1 \f3 \i1 \fs20
l?
}}}
}
. By failing to fulfil that duty and being reckless as to the damage which the
fire might cause, he recklessly caused the damage to the house. Contrast with the
circumstances of the present case those in
}
{\b0 \cf1 \f3 \i1 \fs20
Tunnicliffe v. Pickup [1939] 3 All E.R. 297
}
}
, where it is inherent in the judgment of the Divisional Court that the damage in
question was caused accidentally but that the defendant was not guilty of any
unlawful act or omission. It is implicit in that judgment that if the appellant
there had done nothing to put out the fire he would have been guilty of an unlawful
omission. This reasoning must be on the basis that there was a duty on the lorry
driver to put out that fire. A fortiori if the lorry driver had caused the fire as
the appellant had done in the present case.
\par
}
}
\u160\'3f
}
{\b1 \cf36 \f3 \i1 \fs20
*172
}
}
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
There is a further factor in these cases to be considered. Fire is particularly
dangerous in its speed of spread and capacity to damage not only persons and
property in the vicinity but those whose daily duty it is to fight fires. Thus,
}
l?
}}}
provides that an offence committed under that section by destroying or damaging
property by fire shall be charged as arson and by
}
"http://uk.westlaw.com/Document/I08039910E44911DA8D70A0E70A78ED65/View/FullText.htm
l?
section 4
}}}
that a person guilty of arson under section 1 (1) or (2) shall be liable to
imprisonment for life, whereas in cases other than arson, such sentence only
applies to a conviction under
}
l?
section 1 (2)
}}}
. If a person quite wilfully ignores an incipient fire that he has begun, he
should be liable to the penalties of the criminal law. Therefore the proper test is
that stated by Professor J. C. Smith above, but it should be confined to cases
where the peril arises from fire.
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
The following examples illustrate the ambit of the Crown\rquote s contention and
are situations in which the application of one or other of the foregoing principles
would give rise to liability in other alleged crimes.
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
Assault and battery. (i) D accidentally drives his car onto P\rquote s foot. He
then deliberately allows it to remain there:
}
{\b0 \cf1 \f3 \i1 \fs20
}
}
. (ii) D is innocently standing with his legs straddling a corridor. He hears P
running along the corridor from around a blind corner. He realises that P will
collide with him. He deliberately remains where he is and P does collide with him.
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
Murder, manslaughter and grievous bodily harm. (i) The driver of a car has left it
parked on a hill. D, a passenger, remains seated in it. Accidentally D knocks off
the handbrake. The car rolls down the hill towards P. D realises what is happening
but does nothing. The car hits P. (ii) D accidentally runs P down with his car. P
is knocked out and lying in the road. D deliberately leaves him there in the path
of oncoming cars, one of which runs over him.
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
Theft. D, believing (correctly) that his employer would consent, borrows his
employer\rquote s power drill intending to return it in a few days. Having used it,
he innocently omits to return it. Some time later, realising that it has not been
missed, he dishonestly decides not to return it. In fact, he never has occasion to
use it again, and never touches it or does an \ldblquote act\rdblquote in relation
to it.
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
Handling stolen goods. (i) X hides stolen goods on D\rquote s property. D realises
what has happened and intending to assist X, does nothing:
}
{\b0 \cf1 \f3 \i1 \fs20
"http://uk.westlaw.com/Document/I38F27710E42811DA8FC2A0F0355337E9/View/FullText.htm
l?
Reg. v. Brown [1970] 1 Q.B. 105
}}}
}
. (ii) X steals money and gives it to D. D, not knowing that it is stolen, pays it
into his bank account. Later he discovers that it was stolen. Not wishing to report
X he takes no steps either to draw the money out, or return it to its rightful
owner:
}
{\b0 \cf1 \f3 \i1 \fs20
l?
Reg. v. Pitchley, 57 Cr.App.R. 30
}}}
}
.
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
Rape. (
}
"http://uk.westlaw.com/Document/I912BE710E44911DA8D70A0E70A78ED65/View/FullText.htm
l?
Section 1 (1) of the Sexual Offences (Amendment) Act 1976
}}}
). has intercourse with P. After he has penetrated her, he becomes aware that she
does not consent. Nevertheless, he does not desist:
}
{\b0 \cf1 \f3 \i1 \fs20
Reg. v. Kaitamaki [1980] 1 N.Z.L.R. 59
}
}
.
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
Indecency with children. (
}
"http://uk.westlaw.com/Document/I86CB9C80E44811DA8D70A0E70A78ED65/View/FullText.htm
l?
Indecency with Children Act 1960
}}}
.) P, a child, places her hand on D\rquote s penis. D passively permits her to
keep her
}
{\b1 \cf36 \f3 \i1 \fs20
*173
}
}
hand there for about five minutes. He neither does nor says anything to encourage
her:
}
{\b0 \cf1 \f3 \i1 \fs20
"http://uk.westlaw.com/Document/I6A89A000E42811DA8FC2A0F0355337E9/View/FullText.htm
l?
Reg. v. Speck [1977] 2 All E.R. 859
}}}
}
.
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
Deception. (
}
"http://uk.westlaw.com/Document/IDF747320E44811DA8D70A0E70A78ED65/View/FullText.htm
l?
Section 15 of the Theft Act 1968
}}}
.) (i) D and X go into a shop. D wants to purchase goods but is short of cash. X
offers to pay for him by cheque. He makes out a cheque and hands it over. While the
assistant is away wrapping the goods, X confides to D that there is no chance that
the cheque will be met. D takes no steps to tell the assistant and receives
possession of the goods:
}
"http://uk.westlaw.com/Document/IDF77F590E44811DA8D70A0E70A78ED65/View/FullText.htm
l?
section 16 (2) (a) of the Theft Act 1968
}}}
before amendment by the
}
"http://uk.westlaw.com/Document/IB4F65900E44911DA8D70A0E70A78ED65/View/FullText.htm
l?
Theft Act 1978
}}}
. (ii) D goes into a restaurant and orders a meal intending to pay for it. Having
eaten the meal, he dishonestly decides not to pay and seizes his opportunity to run
out: contrast
}
{\b0 \cf1 \f3 \i1 \fs20
l?
}}}
}
.
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
}
{\b0 \cf1 \f3 \i1 \fs20
Gorman Q.C.
}
}
in reply. The Crown\rquote s appeal to \ldblquote ordinary parlance\rdblquote
cannot be the proper canon of construction; ordinary parlance would not distinguish
culpable from innocent action. A penal statute should not be construed to penalise
conduct which under previous legislation was not culpable in the absence of clear
words.
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
Their Lordships took time for consideration. March 17. LORD DIPLOCK.
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
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:
\par
}
{\b0 \cf1 \f3 \ri1000 \i0 \qj \fs20 \li1000
}
{\b0 \cf1 \f3 \ri1000 \i0 \qj \fs20 \li1000
\rdblquote 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\rquote 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\rquote t got
anything to put the fire out with so I just left it.\rdblquote
\par
}
}
\u160\'3f
\par
}
}
}
}
\u160\'3f
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
He was charged upon indictment with the offence of \ldblquote arson contrary to
}
l?
}}}
\ldblquote ; the particulars of offence were that he:
\par
}
{\b0 \cf1 \f3 \ri1000 \i0 \qj \fs20 \li1000
}
{\b0 \cf1 \f3 \ri1000 \i0 \qj \fs20 \li1000
\rdblquote on a date unknown between August 13 and 16, 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.\rdblquote
\par
}
}
\u160\'3f
\par
}
}
}
}
\u160\'3f
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
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\rquote imprisonment.
\par
}
}
\u160\'3f
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
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
}
l?
}}}
. The appeal was dismissed, but leave to appeal to your Lordships\rquote House
was granted by the Court of Appeal who certified that the following question of law
of general public importance was involved:
}
{\b1 \cf36 \f3 \i1 \fs20
*174
}
}
\par
}
{\b0 \cf1 \f3 \ri1000 \i0 \qj \fs20 \li1000
}
{\b0 \cf1 \f3 \ri1000 \i0 \qj \fs20 \li1000
\rdblquote 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?\rdblquote
\par
}
}
\u160\'3f
\par
}
}
}
}
\u160\'3f
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
The question speaks of \ldblquote actus reus.\rdblquote This expression is derived
from Coke\rquote s brocard in his Institutes, Part III (1797 ed.) , c. 1 fo.10:
\ldblquote et actus non facit reum, nisi mens sit rea,\rdblquote by converting,
incorrectly, into an adjective the word \ldblquote reus\rdblquote which was there
used correctly in the accusative case as a noun. As long ago as 1889 in
}
{\b0 \cf1 \f3 \i1 \fs20
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
\ldblquote mens rea.\rdblquote In the instant case, as the argument before this
House has in my view demonstrated, it is the use of the expression \ldblquote actus
reus\rdblquote 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.
\par
}
}
\u160\'3f
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
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
}
{\b0 \cf1 \f3 \i1 \fs20
Reg. v. Tolson
}
}
to which I referred at greater length in
}
{\b0 \cf1 \f3 \i1 \fs20
"http://uk.westlaw.com/Document/IC7072550E42811DA8FC2A0F0355337E9/View/FullText.htm
l?
Sweet v. Parsley [1970] A.C. 132
}}}
}
, 162-163) 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.
\par
}
}
\u160\'3f
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
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.
}
l?
}}}
. 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:
\par
}
{\b0 \cf1 \f3 \ri1000 \i0 \qj \fs20 \li1000
}
{\b0 \cf1 \f3 \ri1000 \i0 \qj \fs20 \li1000
\rdblquote (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.\rdblquote
\par
}
}
\u160\'3f
\par
}
}
}
}
\u160\'3f
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
This definition of arson makes it a \ldblquote result-crime\rdblquote in the
classification adopted by Professor Gordon in his work The Criminal Law of
Scotland,
}
{\b1 \cf36 \f3 \i1 \fs20
*175
}
}
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.
\par
}
}
\u160\'3f
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
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
\ldblquote lawful excuse.\rdblquote None was suggested.
\par
}
}
\u160\'3f
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
The first question to be answered where a completed crime of arson is charged
is: \ldblquote 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)?\rdblquote 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.
\par
}
}
\u160\'3f
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
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 \ldblquote
No\rdblquote 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.
\par
}
}
\u160\'3f
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
If on the other hand the question, which I now confine to: \ldblquote Did a
physical act of the accused start the fire which spread and damaged property
belonging to another?\rdblquote is answered \ldblquote Yes,\rdblquote 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.
\par
}
}
\u160\'3f
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
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
}
{\b1 \cf36 \f3 \i1 \fs20
*176
}
}
offence of arson by
}
l?
}}}
(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\rquote s power to counteract a danger that one has oneself created, if
at the time of such conduct one\rquote 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 \ldblquote actus reus,\rdblquote 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.
\par
}
}
\u160\'3f
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
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.
\par
}
}
\u160\'3f
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
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.
\par
}
}
\u160\'3f
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
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\rquote 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\rquote 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
}
{\b0 \cf1 \f3 \i1 \fs20
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.
\par
}
}
\u160\'3f
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
In that example the state of mind involved was that described in the definition of
the statutory offence as \ldblquote intending\rdblquote to damage property
belonging to another. This state of mind necessarily connotes an
}
{\b1 \cf36 \f3 \i1 \fs20
*177
}
}
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 \ldblquote being reckless as to whether any such property
would be damaged.\rdblquote 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 \ldblquote intending.\rdblquote 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
}
{\b0 \cf1 \f3 \i1 \fs20
he himself
}
}
recognises the existence of some risk of this happening. In contrast to this,
where the state of mind relied upon is \ldblquote being reckless,\rdblquote 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 \ldblquote being reckless whether such property
would be damaged\rdblquote :
}
{\b0 \cf1 \f3 \i1 \fs20
l?
}}}
}
, 352. See also
}
{\b0 \cf1 \f3 \i1 \fs20
"http://uk.westlaw.com/Document/I51E29700E42811DA8FC2A0F0355337E9/View/FullText.htm
l?
Reg. v. Lawrence [1982] A.C. 510
}}}
}
, 526 for a similar requirement in the mental element in the statutory offence of
reckless driving.
\par
}
}
\u160\'3f
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
In
}
{\b0 \cf1 \f3 \i1 \fs20
l?
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
}
{\b0 \cf1 \f3 \i1 \fs20
l?
Caldwell
}}}
}
as appropriate in summing up to a jury in the ordinary run of cases under
}
l?
}}}
requires some slight adaptation to make it applicable to the particular and
unusual facts of the instant case.
\par
}
}
\u160\'3f
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
My Lords, just as in the first example that I took, the fact that the
accused\rquote 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\rquote 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
}
{\b1 \cf36 \f3 \i1 \fs20
*178
}
}
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\rquote s property would be damaged, he should likewise be
criminally liable if he refrains from taking steps that lie 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.
\par
}
}
\u160\'3f
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
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.
\par
}
}
\u160\'3f
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
The recorder, in his lucid summing up to the jury (they took 22 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.
\par
}
}
\u160\'3f
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
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
\ldblquote duty theory\rdblquote ; Professor Glanville Williams who, after the
decision of the Divisional Court in
}
{\b0 \cf1 \f3 \i1 \fs20
}
}
appears to have been attracted by the duty theory, now prefers that of the
continuous act. When applied to cases
}
{\b1 \cf36 \f3 \i1 \fs20
*179
}
}
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
\ldblquote responsibility,\rdblquote rather than \ldblquote duty\rdblquote 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.
\par
}
}
\u160\'3f
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
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
}
{\b0 \cf1 \f3 \i1 \fs20
l?
}}}
}
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
}
l?
}}}
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.
\par
}
}
\u160\'3f
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
So, while deprecating the use of the expression \ldblquote actus reus\rdblquote in
the certified question, I would answer that question \ldblquote Yes\rdblquote and
would dismiss the appeal.
\par
}
}
\u160\'3f
\par
}
}
\u160\'3f
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
LORD KEITH OF KINKEL.
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
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.
\par
}
}
\u160\'3f
\par
}
}
\u160\'3f
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
LORD BRIDGE OF HARWICH.
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
My Lords, for the reasons given by my noble and learned friend, Lord Diplock, I
would dismiss this appeal.
\par
}
}
\u160\'3f
\par
}
}
\u160\'3f
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
LORD BRANDON OF OAKBROOK.
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
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 \ldblquote Yes\rdblquote and
dismiss the appeal.
\par
}
}
\u160\'3f
}
{\b1 \cf36 \f3 \i1 \fs20
*180
}
}
\par
}
}
\u160\'3f
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
LORD BRIGHTMAN.
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
My Lords, I would dismiss this appeal for the reasons given by my noble and learned
friend, Lord Diplock.
\par
}
}
\u160\'3f
\par
}
}
\u160\'3f
\par
}
}
\u160\'3f
\par
}
{\b1 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
{\b1 \cf1 \f3 \i0 \fs20
Representation
\par
}
}
}
{\b0 \cf1 \f3 \ri0 \i0 \qj \fs20 \li0
Solicitors: Lee, Bolton & Lee for Michael T. Purcell & Co., Birmingham ; Sharpe,
Pritchard & Co. for Ian S. Manson, Birmingham
}
.
\par
}
}
\u160\'3f
\par
}
{\qr \b0 \cf1 \f3 \ri0 \i1 \fs20 \li0
Appeal dismissed. (J. A. G. )
\par
}
}
}
{\b0 \cf5 \f3 \i0 \fs20
}
{\b0 \qc \cf1 \f3 \ri0 \i0 \fs20 \li0
{\b0 \qc \cf21 \f3 \ri0 \i0 \fs20 \li0
(c) Incorporated Council of Law Reporting for England & Wales
\par
}
}
}
{\b0 \qc \cf1 \f3 \ri0 \i0 \fs20 \li0
}
}
}
}\sect }

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