R.+v+Miller

1983, House of Lords.

- Miller arrived home drunk, lit a cigarette, and fell asleep. He woke up to find the mattress on fire. His response was to get up and go to the next room. He next woke up when the police and firemen arrived. - Miller was charged with arson.
 * Facts:**

//"(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."//

- Miller was convicted by the trial court, and his appeal was dismissed by the Court of Appeal.

Is the //actus reus// of the offence of arson present when someone accidentally sets a fire, intending to damage property or being reckless as to whether such property would be destroyed, fails to take any steps to extinguish the fire?
 * Issue:**
 * Held: YES.**


 * Reasoning (Lord Diplock):**

__**//Was there actus reus?//**__ - The Latin words "Actus reus" suggest 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." The Latin is misleading. - Arson is a **results-crime**: "The crime is not complete unless and until the conduct of the accused has caused property belonging to another to be destroyed or damaged." Here there it is established that there was damage to property. - Question (1): "Did a physical act of the accused start the fire which spread [...]?" It is a simple question of __causation__. - Here, yes. (If the answer were no, then English law would not treat the case as arson.) - 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. - Nobody would question Miller's guilt if he'd realized his cigarette was causing a fire right when he dropped it, and did nothing. The judge doesn't think we should draw a difference here even though Miller realized a few hours later, upon waking up, because he still could have acted to prevent the fire and didn't. - One is guilty of arson if one realizes the risk of property damage when setting the fire and also when one realizes the risk later but when something can still be done to prevent the damage.
 * RATIO: Failure to act can give rise to criminal liability.**

__**//Was there mens rea?//**__ - There are two mens rea that make this qualify as arson: (1) intending to damage property (2) being reckless as to whether such property is damaged. (2) is relevant here. - For (1): the mens rea is that the accused //himself// must realize the risk of damage - For (2): the risk must be obvious to //anyone// [reasonable person] - The prosecution did not argue that Miller was reckless by smoking in bed; but rather that he was reckless in seeing the mattress - מזרונים on fire and leaving. - The trial judgment treats the whole conduct of the accused (from the cigarette smoking until the police arrive) 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 was reckless. - There are two competing theories, "the duty theory" and the "continuous act theory" that both lead to this one, uncontested, result. - The House of Lords prefers the duty (or responsibility) theory.