R v Miller

A person who accidentally creates a danger to another’s property may incur criminal liability by failing to counteract that danger after becoming aware of it. For arson, the relevant conduct extends from the act starting the fire until the resulting damage is complete.

Liability arises where the accused can prevent or reduce the risk but fails to try, either because no thought is given to an obvious risk or because a recognised risk is deliberately taken. A person who remains no more than a passive bystander throughout does not incur liability on this basis.

The appellant accidentally set fire to a mattress while smoking in a house where he was staying. He awoke, saw that the mattress was burning, and moved to another room without attempting to extinguish the fire or summon assistance. The fire spread and damaged the house.

He was convicted at Leicester Crown Court of arson contrary to sections 1(1) and 1(3) of the Criminal Damage Act 1971 and sentenced to six months’ imprisonment. The Court of Appeal (Criminal Division) dismissed his appeal but certified whether the conduct element of arson could be established where a defendant accidentally started a fire and then, with the required intention or recklessness, failed to prevent the resulting damage.

1. Appeal dismissed unanimously. Lord Diplock delivered the leading speech. Lord Keith of Kinkel, Lord Bridge of Harwich, Lord Brandon of Oakbrook and Lord Brightman agreed with his reasons. The certified question was answered in the affirmative.

2. Per Lord Diplock, arson under sections 1(1) and 1(3) of the Criminal Damage Act 1971 is a result crime. It is complete only when the accused’s conduct has caused property belonging to another to be destroyed or damaged. The first inquiry is therefore whether a physical act of the accused started the fire, or caused an otherwise harmless fire to spread. A person whose role throughout was only that of a passive bystander would not be liable on this basis.

3. Where the accused’s act started the fire, the whole period from immediately before ignition until completion of the damage is relevant. Causative conduct during that period may include both positive acts and a failure to take measures within the accused’s power to counteract a danger which the accused created. The accused’s state of mind may change during the same period.

4. Per Lord Diplock, liability is not excluded merely because the accused first appreciates the danger after the initial act. If the accused then has power to prevent or minimise the damage, the subsequent failure to act may constitute relevant conduct when accompanied by the intention or recklessness required by section 1(1).

5. In the exceptional case of initially unrecognised danger, the jury should determine whether the accused, after becoming aware that events caused by the accused’s act presented an obvious risk to another’s property, failed to try to prevent or reduce that risk. Recklessness is established where the failure results either from giving no thought to the possibility of the obvious risk or from recognising some risk and deciding to take it. The ordinary direction in Reg v Caldwell [1982] AC 341 required adaptation to address later awareness.

6. The appellant had started the mattress fire, later became aware of it, and did nothing to extinguish it or summon the fire brigade. The jury could therefore find the necessary conduct and recklessness. The order of the Court of Appeal was affirmed, and the respondent’s costs were ordered to be paid from central funds.

1. House of Lords: The appeal was dismissed unanimously, the order of the Court of Appeal was affirmed, and the certified question was answered in the affirmative.
2. Court of Appeal (Criminal Division): The appeal against conviction was dismissed. The court granted leave to appeal and certified a question of law of general public importance.
3. Leicester Crown Court: The appellant was convicted by a jury of arson contrary to sections 1(1) and 1(3) of the Criminal Damage Act 1971 and sentenced to six months’ imprisonment.