Liability for failing to act after creating a dangerous situation (R v Miller duty)
Tomasz Nowak, an adult, is staying overnight at his friend Ellen's flat in Leeds. He lights a candle on a bookshelf and falls asleep on the sofa. He wakes to find that the candle has set the curtain smouldering and realises the fire may spread. Annoyed and tired, he goes into the spare room and back to sleep without trying to put the fire out or raising the alarm. The fire spreads and badly damages Ellen's living room. He is charged with arson (Criminal Damage Act 1971, s.1(1) and (3)). He says he did not intend or foresee any damage when he lit the candle.
Which of the following best describes whether Tomasz can be criminally liable for the damage caused by the fire?
Choose one answer to see the reasoning.
Worked answer
Correct answer C: He can be liable, because having created the danger and become aware of it, he came under a duty to take reasonable steps to deal with it, and failed to do so with the required mens rea.
THE RULE TO REMEMBER
A person who creates a dangerous situation, becomes aware of it and fails to take reasonable steps to counteract it can be liable for the consequences, provided he has the mens rea at that point.
Liability for failing to act after creating a dangerous situation (R v Miller duty)
English law imposes no general duty to act, but there are recognised exceptions. One is where the defendant has himself created a dangerous situation: once he becomes aware of the danger he has created, he comes under a duty to take reasonable steps to counteract it, and a failure to do so can form the actus reus of the offence (R v Miller [1983] 2 AC 161, applied in R v Evans [2009] EWCA Crim 650). Tomasz started the fire, if innocently, by leaving the candle burning. When he woke and realised the curtain was smouldering and might spread, a duty arose to take reasonable steps, such as putting it out or raising the alarm. He did neither. His conduct from that point onward can be treated as a continuing course of conduct, so it does not matter that he had no mens rea when he first lit the candle. Provided the jury find that he intended the damage or was subjectively reckless as to it when he chose to go back to sleep, he can be convicted of arson.
Why A is wrong: The general rule is subject to exceptions, including where D creates a dangerous situation and becomes aware of it.
Why B is wrong: The duty and the mens rea can arise later, when D becomes aware of the danger he created; they need not exist at the initial act.
Why D is wrong: Contract and close relationships are other sources of a duty, but they are not the only ones; creating the danger is enough.
Why E is wrong: Carelessness is not enough; criminal damage requires intention or subjective recklessness (R v G).
A little more practice done.
Related questions
Subjective recklessness in criminal damage (R v G)
Which of the following best describes whether Priya was reckless as to the damage to the warehouse?
Lawful excuse based on an honest belief in the owner's consent (Criminal Damage Act 1971, s.5)
Which of the following best describes whether Ben has a defence?
Aggravated arson of the defendant's own property (Criminal Damage Act 1971, s.1(2) and (3))
Which of the following best describes Victor's liability under s.1(2) and (3) of the Criminal Damage Act 1971?
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