 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

 No common law duty to extinguish an accidental fire or fire innocently started has
previously been declared in English law
 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.
 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

Problems with the continuing act theory

(1)

 D didn’t actually do anything

 It penalizes the event in light of the consequences
 The continuing act theory deals with the concurrence of actus reus and mens reas
not the absence of actus reus (this case)

(2)
 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 Fagan
 The question which Fagan poses is how many crimes can be committed by so
construing an act as "continuing" 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
 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.

The essence of this conduct is the unconscious physical act, namely the dropping of the
lighted cigarette onto the mattress, followed by a realization that the act is one's own act.

The criminal law is not seeking here merely to punish the consequences of an innocent
act; the law is punishing a sequence of behavior, in part action, in part inaction.
(3)

 It is emphasized that arson is a "result crime."

 The crime is not complete until the house was damaged. Section 1 (1) of the
Criminal Damage Act 1971 refers to property which a person "damages."
 Insofar as damage by fire is concerned the court is entitled to consider the whole
of the accused'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 overemphasize 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.

To summarize the above, in "a result crime" the conduct leading to the prohibited result
may happen over a period of time. The court should look at the whole of an accused'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:

 Over the years, the courts have gradually evolved new categories of duty to act in
the sphere of the criminal law
 The relevant test in this case has been proposed by Professor J. C. Smith [1982]
Crim. L.R. 528, as follows: "where D's act puts in peril P'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."
 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'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

By failing to fulfill that duty and being reckless as to the damage which the fire might
cause, he recklessly caused the damage to the house.
Ratio: Reasonable person – ought to