R v Miller

Facts

James Miller was a squatter in a house in Birmingham. One night he lay on a mattress and lit a cigarette, then fell asleep. When he woke, he saw that the mattress was smouldering. He didn't try to put the fire out or call for help. He simply moved to another room and went back to sleep.

The fire spread and damaged the house. Miller was convicted of arson, contrary to s 1(1) and (3) of the Criminal Damage Act 1971.

Issue

When he dropped the cigarette, Miller had no mens rea: he was asleep and had no idea he was causing a fire. When he woke and realised what was happening, he did nothing. Can a person be guilty of an offence when the only "act" happened without mens rea, and the guilty mind came only later, during an omission?

Decision

The House of Lords dismissed Miller's appeal and upheld his conviction. Lord Diplock gave the only speech.

Reasoning

No general duty to act. English criminal law doesn't generally punish people for failing to act. But there are exceptions where the law imposes a duty.

Creating the danger. Lord Diplock held that where a person accidentally creates a situation that's dangerous to property, then becomes aware of it, they're under a duty to take reasonable steps to prevent or reduce the damage. If they fail to do so, with the necessary mens rea (here, intention or recklessness as to the damage), they commit the offence.

The responsibility approach. The Court of Appeal had treated Miller's conduct as a continuing act, starting when he dropped the cigarette and continuing until the fire spread, as in Fagan v Metropolitan Police Commissioner [1969] 1 QB 439. Lord Diplock thought it was clearer to explain liability as a duty arising from Miller's responsibility for creating the danger. Either way, the result was the same.

Reasonable steps didn't require Miller to fight the fire himself. Calling the fire brigade would have been enough.

Why it matters

Miller is the leading authority on the creation of a dangerous situation as a source of a duty to act. It sits alongside the other recognised duty situations:

• statute;
• contract, as in R v Pittwood (1902) 19 TLR 37, where a level-crossing keeper left the gate open;
• a special relationship, such as parent and child (R v Gibbins and Proctor (1918) 13 Cr App R 134);
• voluntary assumption of care, as in R v Stone and Dobinson [1977] QB 354; and
• creating the danger (Miller), extended to gross negligence manslaughter in R v Evans [2009] EWCA Crim 650.

It also shows how the law handles the coincidence of actus reus and mens rea: the mens rea must exist at the time of the relevant act or omission, and the court will look for a point where both are present.

How it comes up in exams

Omissions problems often involve someone who causes harm by accident and then walks away. Work through it like this:

1. Is the defendant's liability based on an act or an omission?
2. If it's an omission, identify a recognised duty to act. Did D create the danger (Miller)?
3. Did D become aware of the danger, and fail to take reasonable steps?
4. At that point, did D have the required mens rea for the offence?

Then consider causation in the usual way.

Frequently asked questions